Marbury vs. Madison

John Marshall has become the fourth Chief Justice of the Supreme Court of the United States of America after it is established in 1789. By the time he became the Chief Justice in 1801, the Court was hardly eleven years of age and there were few decisions that could be taken as precedents and guides. Having opted for presidential form of democracy, distinct from the Parliamentary democracy of Britain, US could not afford to discard the legacy of Britain as far as judicial system is concerned. (Like India at present) They naturally referred to those cases as precedents and to their literature on jurisprudence. The earlier Chiefs before Marshall were not either so much enthusiastic or assertive, so that Marshall has become the icon that has set precedents that were followed faithfully by the next generations. As the principles enunciated by him were of universal value, they were followed even by the courts of other democratic countries. That is how they carried value for Indian jurisprudence as well.

The first major case considered by Marshall as the Chief Justice was the dispute described as between William Marbury and James Madison. The logic followed and the decisions given by Marshall in this case have become guiding lights in interpretation of constitution and legislations. The facts of the case are as follows:

In the year 1796 John Adams has become the President of the United States by election. Thomas Jefferson was the Vice President. They belong to different parties. Adams was a Federalist and Jefferson a Republican. At that time the election to the posts of President and Vice-President were held straight, not linked.Out of all the contestants, whoever gets the highest number of votes would be the President and the next one would be the Vice-President. The system is changed later. In the next election held in 1800, Jefferson got elected as the President and Adams lost. Election for President and Vice-President is held in the month of November in every leap year as now. But the elected person enters office on 4th March of the subsequent year, leaving nearly four months’ time in between for transition. It was changed to 20th January by passing the XX amendment in 1933. Some crucial changes took place during that transition period.

President Adams was anxious that the judiciary shall be filled by the persons of his party and took steps to appoint persons in different positions.(It remains the same even now with any political authority.) Such appointments need approval of Senate and he could obtain it easily as the Senate was dominated by his party members. This he did after the election results were announced. At that time John Marshall was his Secretary of State. In day-to-day administration, Secretary of State happens to be the person next to the President. Traditionally, the vice-president is kept aside as a reserve to step in, in case of need, as President. Thus John Marshall has played a key role during that period.

In the month of January, 1801 the then Chief Justice Ellsworth fell ill and resigned his post. The justices are entitled to hold office for life. But at that time, there was no glamour attached to the post as it is now. President Adams wanted to offer the post to John Jay, who was the first Chief Justice. But he resigned to take up the position as Governor of New York state. He called the system defective under which the position of Chief Justice “could not acquire the public confidence and respect which, as the last resort of justice of the nation, it should possess”. Thus he declined the offer of Adams. Then Adams felt Marshall was the most suitable for the post and appointed him. But it has to be approved by the Senate. By the time the approval process was completed, it was February and Marshall took charge as the Chief Justice on 4th February, 1801. But he was the chief officer of the executive as Secretary of State. Adams was not willing to search for another person to fill the post just for a period of one month as his term would end by 3rd March itself. Thus John Marshall held the two posts simultaneously for a period of one month. It is no doubt a rare case. By the time somebody comes to recognize the anomaly, the situation comes to an end.

After obtaining the approval of the Senate, the judicial appointments are to be made by issuing Commissions under the signature and seal of the President. The President sat until the midnight of 3 March, 8001 and signed the commissions as the next day Jefferson would enter office and he belongs to a different party. The President left the signed commissions with the Secretary of State to affix seal of the United States, enter in the prescribed register and communicate the same to the appointees. The appointments were for the posts of Justices of Peace and they would hold office for a period of five years. The approval was for 41 persons. Somehow, 17 of the commissions could not be delivered to the appointees. On 4th march Jefferson entered as President. He appointed his own Secretary of State, Mr. James Madison, one of the persons actively involved in framing the constitution. But he was not available in Washington to take oath. In fact, he could not come to enter office till 2nd May, 1801 as he was sick. During that period, he asked his Attorney General, Live Lincoln Sr. to act as Secretary of State.

It was an open knowledge that Adams tried to appoint men of his own party to judicial posts. When he came to know that some of the commissions signed by President Adams and sealed were remaining undelivered, Jefferson decided not to deliver them. William Marbury was one of the persons appointed as Justice of Peace for the Washington County and was expecting the orders. Their names were also approved by the Senate. So it was an open knowledge. He led the others to approach the Secretary of State with a request to deliver the commissions that were lying with him after signed by the President. He did not oblige. They approached the Secretary of the Senate with a request to supply a copy of the proceedings approving their appointments. There also they were not successful. Secretary’s office refused to give even copies of the commissions. Then they approached the Supreme Court with a request to issue a writ of mandamus to the Secretary of State to issue the commissions.

It was a petition directly to the Supreme Court invoking its original jurisdiction. The areas of original and appellate jurisdictions were specifically enumerated in the constitution itself. Section2 of Art.III states that “in all cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be a party, the Supreme Court shall have original jurisdiction. In all other cases…the Supreme Court shall have appellate jurisdiction, both as to law and fact, with such exceptions and under such regulations as the Congress shall make.” There is no mention of writs, except of habeas corpus, in the constitution. But the Judiciary Act passed in 1789 gave the Supreme Court the right to issue writs and also extended the original jurisdiction to the cases against the government.

In the affidavit, the petitioners described in detail all the efforts made by them to seek the issue of the commissions and how the office refused to give even any information in regard to the matter. Thus they suggested that they do not have any other means to get their grievances redressed except a writ of mandamus from the august Court. It was virtually a petition against the Secretary of State Mr. Madison. The problem arose only because the earlier Secretary of State Mr. Marshall himself failed to deliver the commissions. As a matter of principle, the Chief Justice John Marshall should have recused himself from hearing the case. But he did not. He was active on the bench and was guiding the proceedings.

Even from the beginning, courts of law have a tradition that the judges hearing the case give their individual opinions and the decision of the majority is passed on as the decision of the court. Other judges are entitled to give their dissent with reasons. It is only for record. This right of judges is codified in the constitution of India in the form of Art.145(5). But Marshall considered it unnecessary and disturbing. Earlier the justices who heard the case used to give their opinions separately. Consequently, there was nothing like an opinion of the court creating confusion regarding the final judgment of the court. Marshall decided that the court will deliver one final judgment and there will be no dissenting judgments, which would be sorted out before the final judgment is made. It gives clarity and avoids ambiguity, he said. Thus he became the dominant and guiding member of the bench. The practice in the courts of democratic countries is different. The Chief Justice is the first among the equals. Finding that the Chief Justice is becoming the decisive factor on the bench, President Jefferson appointed William Johnson to the Supreme Court in 1804, expecting he will break the monopoly of Marshall. It led to discussions in finalizing the judgments, but within the limits fixed by Marshall. Johnson did not dissent just for the sake of dissent. In fact he concurred with Marshall in some cases to the consternation of the President. (Unfortunately even now there is tendency to find fault with any judge if he deviates from the line of thinking of the President who happens to appoint him.) It is stated that the understanding developed between the judges over time led to consensus. The Court at that time was sitting only for a brief period in a year and the justices were not provided independent accommodation in Washington. They were made to live together in boarding houses, which might have led to more unanimity among them. In many cases later on, it can be seen that the justices appointed by a particular President gave judgments against their parties. Once appointed as a judge, they realize that they can be independent and also they have to be independent to do justice to the position.

In dealing with this case the court framed the questions to be decided as follows:

  1. Whether the petitioners have the right to get the commissions delivered to them as they are asking;
  2. If they have the right, is it violated?
  3. If it is violated, is there a remedy in law?
  4. If there is a remedy, is it in the form of a writ of mandamus as they are asking?

The court proceeded to answer each of these questions.

The right originated by virtue of an Act passed by the Senate in February, 1801 which sanctioned the appointments of “such number of discreet persons to be Justices of Peace, as the President of the United States, shall from time to time think expedient, to continue in office for five years.”

The riddle was that William Marbury and others who approached the court had no official information that they were appointed to the posts. They came to know of it unofficially and tried to get the official confirmation from the government itself. They believed that it was deliberately denied to them. If they are appointed, they get the right to continue in office for a period of five years, which means that the executive would lose the right to remove them during that period. The Act of Congress directs the Secretary of State to maintain a seal of the United States and to affix the same on all the commissions signed by the President. The seal shall not be affixed before the President signed the document. After affixing the seal, the document shall be entered in the prescribed register and deliver to the concerned persons. The process of appointment gives discretion to the President at different stages – to decide on appointments, to select persons to be appointed and after approval of the Senate, to prepare and sign the commissions. He could stop the process at any of the stages. After the commissions are signed, the process is complete as far as the President is concerned. At the same time the process is not complete as far as the appointees are concerned. The duty passes on to the Secretary of State to get the commissions sealed and enter in the prescribed register and see they are delivered. Whether the Secretary of State acts as an agent of the President or as a part of his statutory duties makes a lot of difference in law. Since the Congress has entrusted him the duty to maintain the seal and the register, he is deemed to be acting in pursuance of his statutory duty and not as agent of the President. The failure to communicate becomes the failure of the Secretary of State and not that of the President.

Section2 of Art.II of the US constitution states that the “Congress may by law vest the appointment of such inferior officers, as they think proper, in the President alone, in the courts of law or in the heads of departments.”  The appointment of Justices of Peace was obviously made under this provision. But the word ‘commission’ was not used in that connection. It is also stated that “The President shall have power to fill up all vacancies that may happen during the recess of the Senate, by granting commissions, which shall expire at the end of their next session.” The word ‘commission’ was used in connection with temporary appointments when the senate was not in session. It cannot be construed that the word ‘commission’ was used to signify any specific power of appointments. But when a supreme power, as the President of the United States happens to be, makes an appointment, it can be given the status of a ‘commission’. This specific stress on this commission is made as the court has made a distinction between an ordinary appointment and an appointment by commission.

The court also made a distinction between appointments of tenure posts, that is, the officer appointed will hold the post for a prescribed period and other appointments which can be terminated at the will of the executive. It is suggested that the appointments to tenure posts are deemed completed when the process of commission is completed, that is, when the commission is signed by the President. It does not depend on communication to the appointee. The result is that the appointee gets the right to the post as and when the commission is signed by the President. Commission means a warrant conferring authority. It is an instruction. By signing the commission the President is not offering a contract. He is making a command. It is deemed to be known as a public act.

It has to be noted that the United States formed into an independent country by wrenching freedom from the British. But they have no other source except the British to model the structure of their various institutions. The judicial system worked mostly on British lines. Reference is made frequently to the works of jurisprudence by British authors like Blackstone. In spite of it, the principles of Contract Act are not applied to the appointments by deliberately separating commissions as a distinct form of executive prerogative. Thus communication of the appointment by commission is not felt necessary to make the appointment final even if it was not communicated to the appointee. As a result of this interpretation, the appointees, William Marbury and his colleagues are deemed to have been appointed as justices of peace and acquired right to the offices.  They are deemed to have acquired that right when the commissions were signed by the then President Adams. Even if it is agreed that a communication is necessary to finalize the appointments, it comes only after the appointment is made. Lack of communication will not invalidate the earlier act of appointment.

If that interpretation were correct, those persons could as well go directly and start functioning as justices of peace. But the court did not tell them so. Then what is the use of all this exercise of interpretation and giving them the right of the posts?  It means that the failure of the then Secretary of State did not deprive them of their jobs. The fact that the appointments are for a fixed period, created in them a vested right to hold the post for that period and the executive is not allowed to terminate the appointment before that period. If this interpretation was known to the appointees, they would have gone and occupied the posts and started functioning, creating a ridiculous situation. But based on common sense they were under the impression that they cannot get the post unless the appointment order is there in their hands. So they approached the government to deliver the orders to them. They pleaded that at least a copy may be given if the original is not available. But they got none. And so they approached the court. To get any order from the court they have to show some proof that there are the commissions signed by the President. They had none.

Once the intimation itself is not considered necessary, the question of acceptance does not arise. Thus the case is taken out of the Contracts Act. Acceptance or rejection comes only after the appointment is made and it will not affect the fact that the appointment was made. The court has gone to the extent of declaring that the appointment and salary accrue from the date the commission was signed, whether it was communicated or not.

Failure of the executive to intimate the commission is violation of the legal right vested in the appointees. That right accrues to them by virtue of the commission.

Now the third question: if the right is violated, is there a remedy for it in law? To answer this, Marshall referred to the jurisprudence of Blackstone, the British jurist. He states that “it is a general and indisputable rule that where there is a legal right, there is also a legal remedy by suit or action at law whenever that right is invaded….All possible injuries whatsoever that did not fall within the exclusive cognizance of either the ecclesiastical, military or maritime tribunals are, for that very reason, within the cognizance of the common law courts of justice, because it is a settled and invariable principle in the laws of England that every right, when withheld, must have a remedy and every injury, its proper redress.” Having quoted it, Justice Marshall opines that the government of the US is a government of laws and its laws provide a remedy for violation of a vested legal right. To apply this rule, it is necessary to inquire whether there is anything in the law which allows ‘loss without an injury’. (Damnum Bosque injuria). The cases relating to offices of trust or profit or honor cannot be classified under this category. The office of justice of peace is such an office and laws have to protect the same. It is an office created by the Congress and security of laws must be available to it, throughout the period of five years that the officer is entitled to hold that office.

Failure of the executive to communicate the commission cannot be considered as a mere political act against which the injured individual has no remedy. (It implied that political actions do not have legal protection). There may be such cases, but not in relation to the important functions of the government. Even Blackstone declared that a personal injury from the king to a subject is impossible. He referred to the Acts on Pension Payments and Land Registrations wherein the rights of subjects are protected against any lapse on the part of the executive. Whether the legality of an act of executive can be considered by the court depends on the nature of the act. The constitution invests the President with certain discretionary powers and he appoints officers to help him in discharge of those duties. The officers have to act in conformity with his orders. In such cases the act of the officers cannot be questioned. But there are certain responsibilities bestowed on the officers by law and such acts are subject to review by the courts. If the performance of such duties affects the rights of any person, that person has a right to seek protection of laws.

It is also explained that the person does not get the right if he is appointed to a post from which he can be removed any time at the discretion of the executive. But when the appointment is made to a tenure post (this word is not used in judgment) with a fixed term of duration, the executive has no right to remove him for the prescribed period. He is deemed to have acquired a right which has to be protected. Such a right cannot be frustrated by withholding the commission. When the President signed the commission and the Secretary of State has affixed the seal on it, the petitioners acquired the right to act as justices of peace for a period of five years. The refusal to deliver the commissions to them amounts to violation of their rights and there is a remedy in law for it.

It can be seen that Marshall refers to Blackstone liberally indicating that he follows the British jurisprudence. Under the British law a contract is complete only when both the parties agree to it in the same sense. In this case the order of appointment is made but not communicated to the appointees. The order shall be received by the appointee and accepted by him. In the case of jobs appointments are usually made against applications. In such cases the question of acceptance by the appointees does not arise. Even then, there must be a communication to the other party to complete the process of appointment. But Marshall distinguished the two different forms of appointment – by a commission and by an appointment order. The commission is a warrant of a statutory authority to his subjects conferring certain rights. The President is the highest authority and he signed the order as a commission and so it has to be considered as an order or warrant which is final in itself. Thus the principles of contracts Act do not apply to it. Consequently, the appointees get the right to the posts and their rights are not affected in any way even if the commission was not conveyed to them. It has to be noted that it was for Marshall himself, as Secretary of State at that time, to communicate the commissions to them. But he failed. Now he takes the trouble to insist that the rights of the other party are not affected by his failure. Now the commissions are in the custody of his successor and it is for him to convey the same to the concerned persons. But he is not doing it. The petitioners request the court to issue a writ of mandamus directing the Secretary of State to issue the commissions so that they can occupy the posts and commence performance of their duties.

All this logic indicates that the court is in favour of the petitioners and will secure the posts for them. But the judgment is like detective story, in which the author deliberately leads the reader in the wrong direction and a new twist is introduced at the end pointing out the real culprit. That twist starts from the search for the remedy.

Being the highest court of law, they requested the court to issue a writ of mandamus to the Secretary of State to make him issue the commissions. Marshall again refers to Blackstone to explain what a writ of mandamus is. It is a command issuing in the king’s name from the court of king’s bench and directed to any person, corporation or inferior court of judicature within king’s dominions, requiring them to do some particular thing therein specified which appertains to their office and duty and which the court of king’s bench has previously determined or at least supposes to be consonant to right and justice.

Regarding the circumstances under which the writ of mandamus is to be issued, he refers to Lord Mansfield, another British Judge. He says “Whenever there is a right to execute an office, perform a service or execute a franchise (more especially if it be in a matter of public concern or attended with profit) and a person is kept out of possession or dispossessed of such right and has no other specific legal remedy, this court ought to assist by mandamus upon reasons of justice as the writ expresses and upon reason of public policy and preserve peace, order and good government.” Obviously, the writ has to be issued when there is no other specific remedy in law or when justice and good government has to have one. The writ would be directed to the government officer telling him to do a particular thing which is part of his duties.

Normally courts do not meddle with prerogatives of the executive. But what the petitioners want is only the delivery of commissions already signed and lying in the custody of the officer and there is nothing for the officer to deny. The propriety or impropriety of issuing the writ is determined based on the nature of the thing to be done rather than the officer who has to do it. If the act is subject to his own discretion, the officer can also reject the writ. But when he is under legal obligation to do it and the rights of somebody are affected by his refusal to do it, the courts are entitled to issue the writ and it has to be honored.  In fact such a decision was already made by the court earlier in 1792 in the case of pensions of disabled soldiers and officers. It was also clarified by passing an Act in 1793. But in this case the transmission of the commissions is not specifically mandated on the Secretary of State. Law is silent about it. The clarity was only that the Secretary of State shall affix the seal and enter it in the prescribed register. About delivery, it is silent. At the same time the petitioners have a legal right vested in them, which is frustrated by the executive by not delivering the same to the parties. The law placed the completed commissions in the hands of the Secretary of State. It is imperative on his part to deliver the same to the parties. What the petitioners are requesting is not an order to appoint them as justices of peace. That appointment was already made.  Now they are asking for delivery of the commission or a copy of it to enable them to enter offices.

Now the next question was whether this court can issue the writ. Section 1 of Art. III of the constitution only states that “The judicial power of the United States shall be vested in one Supreme Court and in such inferior courts as the Congress may from time to time ordain and establish.”  Under this provision, the Judiciary Act was passed in 1789 establishing the courts and creating the judicial offices. Section 2 of Art.III defined the original and appellate jurisdictions of the Supreme Court.  It states that “In all cases affecting Ambassadors, other public Ministers and Consuls and those in which a State shall be a party, the Supreme Court shall have original jurisdiction. In all other cases before mentioned, the Supreme Court shall have appellate jurisdiction, both as to law and fact, with such exceptions and under such regulations as the Congress shall make.”

As against this, section 13 of the Judiciary Act, 1789 states that “the Supreme Court shall have exclusive jurisdiction of all controversies of a civil nature where a State is a party” except between a State and its citizens. The ‘State’ refers to a state in the United States. In addition, it also conferred on the Supreme Court the right to issue writs of prohibition and mandamus “in cases warranted by the principles and usage of law.” There is no mention of writ power in the constitution itself.  Exclusive jurisdiction can be interpreted to include original jurisdiction also. But it is restricted to cases where a State is a party. In this case, none of the States is a party. It is a suit against the federal government by the citizens. The right to issue writs is also restricted to “cases warranted by the principles and usage of law” which gives much of discretion to the court.

The court expressed doubt whether they have the original jurisdiction to entertain the case.  The petitioners approached the court directly based on the Judicial Act, 1789. It is covered by exclusive jurisdiction in all civil matters, they argued. The right to issue writs also is included in that Act. The assignment of jurisdictions in the constitution under Art.III is of general nature. It contains neither restrictions nor any negative words to prevent extension of original jurisdiction by the Congress. In fact, the court must be happy that they got more power by virtue of the judicial Act, 1789. But the Chief Justice was skeptical of it.

If it is the intention of the framers of the constitution to allow the Congress to define the jurisdictions of courts, the Article would have been drafted in a different way. The Article specifically mentions some areas in which the Supreme Court has original jurisdiction and gave only appellate jurisdiction in other cases.  It means that original jurisdiction is forbidden to the Supreme Court in all other areas. The presence or absence of restrictive or negative words is of no significance. When there is affirmation of certain specific things, it means that it excludes all other things. One cannot presume that any of the clauses in the constitution are of no significance and intended to have no effect. The plain import of the words in the constitution is that in one class of cases its jurisdiction is original and not appellate; in another class of cases the jurisdiction is appellate and not original. Any other construction which renders any of the clauses ineffective shall be rejected, he said.

This case has come direct to the Supreme Court expecting original jurisdiction for the Court. But according to Art. III, this court has no such original jurisdiction in this case. So it cannot exercise the right to issue writs. In fact, there is a clause at the end of section 2 of the Art.III which states “…with such exceptions and under such regulations as the Congress shall make.” Any other judge would have taken it as an approval of constitution to give the Congress the right to vary the terms of jurisdiction. But Marshall refused to take advantage of it and enjoy the right. The Judiciary Act tried to extend the original jurisdiction of the Supreme Court.  But it is against the constitution and the constitution has not given that right to the Congress. To that extent, the Act is declared invalid. The principles enunciated in the constitution are fundamental and permanent. It organizes the government and assigns powers to respective departments of government. It is a written constitution. The powers of legislature are defined and limited. Those limits are not supposed to be exceeded. In such cases the Acts will be declared unconstitutional and so ineffective. The constitution can be changed but not by an ordinary Act. Otherwise a written constitution has no meaning. It is the prime duty of the judiciary to pronounce what the law is, to declare an Act as void if it is repugnant to the constitution. That is the plain effect of the doctrine of judicial review.

Just because the Act has given more powers to the judiciary than what was available under the constitution, the judge was not tempted to act on that. That is judicial restraint which unfortunately is scarce in some of the modern courts. That is why judges are asked to take an oath to uphold the constitution and to declare faith and allegiance to it.

Being one of the earliest judges Marshall had the opportunity to lay down basic principles to interpret the constitution. In many of the assessments of his contribution and particularly in analyzing the judgment in this case, it appears certain motives are attributed to the judge in giving the judgment. It is usually argued that he was hesitant to issue the writ as he was afraid that it may not be honored by the then executive. The fear might be real. But the judgment is not varied to suit the requirement. It was strictly according to the law as he understood it. And his explanation is quite rational and acceptable. That is why it is accepted as standard guide for the next generations of lawyers and judges. 

This is the case in which John Marshall laid down laudable precedents and principles. But unfortunately, the petitioners had to go empty handed.


Jawaharlal Jasthi 
on 03 January 2019
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