Turner v. Fendall. excuse the non-performance of this duty. The rigor of this rule has been considerably relaxed, but the form of the writ, as directed by a late act of the legislature of Virginia, yet is, that the money shall be in court on the return-day, and there appears no excuse for omitting this duty, unless *it shall have been paid to the creditor. The sheriff may certainly *137] make such payment out of court, if no circumstance occurs which legally obstructs or opposes it, such as an injunction from the court of chancery, in which case, by the law of Virginia, the money must be retained; or an execution against the goods and chattels of the person to whom the money in his hands shall be payable. In the latter case, it seems to the court, still to be the duty of the sheriff to obey the order of the writ, and to bring the money into court, there to be disposed of as the court may direct. This was done in the case of Armistead v. Philpot, and in that case, the court directed the money to be paid in satisfaction of the second execution. This ought to be done, whenever the legal and equitable right to the money is in the person whose goods and chattels are liable to such execution. In the case of Turner v. Fendall, the sheriff not having brought the money into court, but having levied an execution on it, while in his hands, has not sufficiently justified the non-payment of it to the creditor; and therefore, the court committed no error in rendering judgment against him, on the motion of that creditor. If the payment of the damages should be against equity, that was not a subject for the consideration of the court of law which rendered the judgment. 1 He cannot levy on money in his own hands, arising from an execution in favor of the defendant. Baker v. Kenworthy, 41 N. Y. 215; nor will the court order it to be paid to the plaintiff in the second execution. Williams v. 86 Judgment affirmed.1 Rogers, 5 Johns. 163. But, it seems, that the sheriff may levy on a surplus in his hands, arising from an execution against the debtor. Harris's Appeal, 29 Penn. St. 240. See Means v. Vance, 1 Bailey 39. FEBRUARY TERM, 1803. WILLIAM MARBURY 7. JAMES MADISON, Secretary of State of the United States. Constitutional law.-Jurisdiction.-Mandamus.-Appointment and removal of officer.-Commission. The supreme court of the United States has not power to issue a mandamus to the secretary of state of the United States, it being an exercise of original jurisdiction not warranted by the constitution. Congress have not power to give original jurisdiction to the supreme court, in other cases than those described in the constitution. An act of congress, repugnant to the constitution, cannot become a law. The courts of the United States are bound to take notice of the constitution. It seems, that a commission is not necessary to the appointment of an officer by the executive. A commission is only evidence of an appointment. Delivery is not necessary to the validity of letters-patent. The president cannot authorize the secretary of state to omit the performance of those duties which are enjoined by law. ▲ justice of peace, in the District of Columbia, is not removable at the will of the president. When a commission for an officer, not holding his office at the will of the president, is by him signed and transmitted to the secretary of state, to be sealed and recorded, it is irrevocable; the appointment is complete. A mandamus is the proper remedy, to compel the secretary of state to deliver a commission to which the party is entitled. Ar the last term, viz., December term 1801, William Marbury, Dennis Ramsay, Robert Townsend Hooe and William Harper, by their counsel, Charles Lee, Esq., late attorney-general of the United States, *sever- [*138 ally moved the court for a rule on James Madison, secretary of state of the United States, to show cause why a mandamus should not issue, commanding him to cause to be delivered to them, respectively, their several commissions as justices of the peace in the district of Columbia. This motion was supported by affidavits of the following facts; that notice of this motion had been given to Mr. Madison; that Mr. Adams, the late president of the United States, nominated the applicants to the senate, for their advice and consent, to be appointed justices of the peace of the district of Columbia; that the senate advised and consented to the appointments; that commissions in due form were signed by the said president, appointing them justices, &c., and that the seal of the United States was in due form affixed to the said commissions, by the secretary of state; that the applicants have requested Mr. Madison to deliver them their said commissions, who has not complied with that request; and that their said commissions are withheld from them; that the applicants have made application to Mr. Madison, as secretary of state of the United States, at his office, for information whether the commissions were signed and sealed as aforesaid; that explicit and satisfactory explanation has not been given, in answer to that inquiry, either by the secretary of state, or any officer in the department of state; that application has been made to the secretary of the senate, for a certificate of the nomination of the applicants, and of the advice and consent of the senate, who has declined giving such a certificate. Whereupon, a Marbury v. Madison. rule was laid, to show cause on the fourth day of this term; this rule having been duly served Mr. Lee, in support of the rule, observed, that it was important to know on what ground a justice of peace in the district of Columbia holds his office, and what proceedings are necessary to constitute an appointment to an office, not held at the will of the president. However notorious the facts are, upon the suggestion of which this rule has been laid, yet the applicants have been much embarrassed in obtaining evidence of them. Reasonable information has been denied at the office of the department of state. Although a respectful memorial has been made to the senate, praying them to suffer their secretary to give extracts from their executive journals *139] respecting *the nomination of the applicants to the senate, and of their advice and consent to the appointments, yet their request has been denied, and their position rejected. They have, therefore, been compelled to summon witnesses to attend in court, whose voluntary affidavits they could not obtain. Mr. Lee here read the affidavit of Dennis Ramsay, and the printed journals of the senate of 31st January 1803, respecting the refusal of the senate to suffer their secretary to give the information requested. He then called Jacob Wagner and Daniel Brent, who had been summoned to attend the court, and who had, as it is understood, declined giving a voluntary affidavit. They objected to being sworn, alleging that they were clerks in the department of state, and not bound to disclose any facts relating to the business or transactions in the office. Mr. Lee observed, that to show the propriety of examining these witnesses, he would make a few remarks on the nature of the office of secretary of state. His duties are of two kinds, and he exercises his functions in two distinct capacities; as a public ministerial officer of the United States, and as agent of the president. In the first, his duty is to the United states or its citizens; in the other, his duty is to the president; in the one, he is an independent and an accountable officer; in the other, he is dependent upon the president, is his agent, and accountable to him alone. In the former capacity, he is compellable by mandamus to do his duty; in the latter, he is not. This distinction is clearly pointed out by the two acts of congress upon this subject. The first was passed 27th July 1789 (1 U. S. Stat. 28), entitled "an act for establishing an executive department, to be denominated the department of foreign affairs.” The first section ascertains the duties of the secretary, so far as he is concerned as a mere executive agent. It is in these words, "there shall be an executive department, to be denominated the department of foreign affairs, and that there shall be a principal officer therein, to be called the secretary of the department of foreign affairs, who shall perform and execute such duties as shall, from time to time, be enjoined on, or intrusted to him by the president of the United States, agreeable to the constitution, relative to correspondences, *140] commissions *or instructions to or with public ministers or consuls from the United States; or to negotiations with public ministers from foreign states or princes, or to memorials or other applications from foreign public ministers, or other foreigners, or to such other matters respecting foreign affairs as the president of the United States shall assign to the said department; and furthermore, that the said principal officer shall con Marbury v. Madison. duct the business of the said department in such manner as the president of the United States shall, from time to time, order or instruct." The second section provides for the appointment of a chief clerk; the third section prescribes the oath to be taken, which is simply, “well and faithfully to execute the trust committed to him ;" and the fourth and last section gives him the custody of the books and papers of the department of foreign affairs under the old congress. Respecting the powers given, and the duties imposed, by this act, no mandamus will lie: the secretary is responsible only to the president. The other act of congress respecting this department was passed at the same session on the 15th September 1789 (1 U. S. Stat. 68), and is entitled "An act to provide for the safe-keeping of the acts, records and seal of the United States, and for other purposes." The first section changes the name of the department and of the secretary, calling the one the department, and the other the secretary, of state. The second section assigns new duties to the secretary, in the performance of which, it is evident, from their nature, he cannot be lawfully controlled by the president, and for the nonperformance of which, he is not more responsible to the president than to any other citizen of the United States. It provides, that he shall receive from the president all bills, orders, resolutions and votes of the senate and house of representatives, which shall have been approved and signed by him; and shall cause them to be published, and printed copies to be delivered to the senators and representatives, and to the executives of the several states; and makes it his duty carefully to preserve the originals; and to cause them to be recorded in books to be provided for that purpose. The third section provides a seal of the United States. The fourth makes it his duty to keep the said seal, and to make out and record, and to affix the seal of the United States to all civil commissions, after they *shall have [*141 been signed by the president. The fifth section provides for a seal of office, and that all copies of records and papers in his office, authenticated under that seal, shall be as good evidence as the originals. The sixth section establishes fees for copies, &c. The seventh and last section gives him the custody of the papers of the office of the secretary of the old congress. Most of the duties assigned by this act are of a public nature, and the secretary is bound to perform them, without the control of any person. The president has no right to prevent him from receiving the bills, orders, resolutions and votes of the legislature, or from publishing and distributing them, or from preserving or recording them. While the secretary remains in office, the president cannot take from his custody the seal of the United States, nor prevent him from recording and affixing the seal to civil commissions of such officers as hold not their offices at the will of the president, after he has signed them and delivered them to the secretary for that purpose. By other laws, he is to make out and record in his office, patents for useful discoveries, and patents of lands granted under the authority of the United States. In the performance of all these duties, he is a public ministerial officer of the United States. And the duties being enjoined upon him by law, he is, in executing them, uncontrollable by the president; and if he neglects or refuses to perform them, he may be compelled by mandamus, in the same manner as other persons holding offices under the authority of the United States. Marbury v. Madison. The president is no party to this case. The secretary is called upon to perform a duty over which the president has no control, and in regard to which he has no dispensing power, and for the neglect of which he is in no manner responsible. The secretary alone is the person to whom they are entrusted, and he alone is answerable for their due performance. The secretary of state, therefore, being in the same situation, as to these duties, as every other ministerial officer of the United States, and equally liable to be compelled to perform them, is also bound by the same rules of evidence. These duties are not of a confidential nature, but are of a public kind, and his clerks can have no exclusive privileges. There are, undoubtedly, facts, which may come to their knowledge by means of their connection with the *142] secretary of state, respecting which they cannot be bound to answer. Such are the facts concerning foreign correspondences, and confidential communications between the head of the department and the president. This, however, can be no objection to their being sworn, but may be a ground of objection to any particular question. Suppose, I claim title to land under a patent from the United States: I demand a copy of it from the secretary of state he refuses. Surely, he may be compelled by mandamus to give it. But in order to obtain a mandamus, I must show that the patent is recorded in his office; my case would be hard indeed, if I could not call upon the clerks in the office to give evidence of that fact. Again, suppose a private act of congress had passed for my benefit: it becomes necessary for me to have the use of that act in a court of law: I apply for a copy: I am refused. Shall I not be permitted, on a motion for a mandamus, to call upon the clerks in the office to prove that such an act is among the rolls of the office, or that it is duly recorded? Surely, it cannot be contended, that although the laws are to be recorded, yet no access is to be had to the records, and no benefit to result therefrom. THE COURT ordered the witnesses to be sworn, and their answers taken in writing, but informed them, that when the questions were asked, they might state their objections to answering each particular question, if they had any. Mr. Wagner being examined upon interrogatories, testified, that at this distance of time he could not recollect whether he had seen any commission in the office, constituting the applicants, or either of them, justices of the peace. That Mr. Marbury and Mr. Ramsay called on the secretary of state respecting their commissions. That the secretary referred them to him; he took them into another room, and mentioned to them, that two of the commissions had been signed, but the other had not That he did not know that fact of his own knowledge, but by the information of others. Mr. Wagner declined answering the question, "who gave him that information;" and the court decided, that he was not bound to answer it, because it was not pertinent to this cause. He further testified, that some of the commissions of the justices, but he believed not all, were recorded. He did not know whether the commissions of the applicants were *recorded, as he had not had recourse to the book, for more than twelve months *143] past. Mr. Daniel Brent testified, that he did not remember certainly the names of any of the persons in the commissions of justices of the peace, signed by |