cannot be extinguished by executive authority; and he has the privilege of asserting them in like manner as if they had been derived from any other source.

Whether a right has vested or not is in its nature a judicial question.

The question, whether a right has vested or not, is in its nature judicial, and must be tried by the judicial authority. If, for example, Mr. Marbury had taken the oaths of a magistrate, and proceeded to act as one, in consequence of which a suit had been instituted against him, in which his defense had depended on his being a magistrate, the validity of his appointment must have been determined by judicial authority.

So, if he conceives that, by virtue of his appointment, he has a legal right either to the commission which has been made out for him, or to a copy of that commission, it is equally a question examinable in a court, and the decision of the court upon it must depend on the opinion entertained of his appointment.

That question has been discussed, and the opinion is that the latest point of time which can be taken as that at which the appointment was complete, and evidenced, was when, after the signature of the President, the seal of the United States was affixed to the commission.

It is, then, the opinion of the court: 1st. That, by signing the commission of Mr. Marbury, the President of the United States appointed him a justice

Marbury's right to of fice and the violation of that right in this case.

of peace for the county of Washington, in the District of Columbia; and that the seal of the United States, affixed thereto by the Secretary of State, is conclusive testimony of the verity of the signature, and of the completion of the appointment; and that the appoint

ment conferred on him a legal right to the office for a space of five years.

2d. That, having this legal title to the office, he has a consequent right to the commission; a refusal to deliver which is a plain violation of that right for which the laws of his country afford him a remedy.

Is Marbury entitled to the remedy for which he applies?

It remains to be inquired whether: 3d. He is entitled to the remedy for which he applies. This depends on,—

1st. The nature of the writ applied for; and,2d. The power of this court.

1st. The nature of the writ.

Blackstone's definition of mandamus.

Blackstone, in the third volume of his Commentaries, page 110, defines a mandamus to be "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 the 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.

Lord Mansfield, in the case of The King v. Baker et al. (3 Burrow's Reports, 1266), states, with much precision and explicitness, the cases in which this writ may be used. "Whenever," says that very able judge, "there is a right to execute an office, perform a service, or exercise 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

Mansfield states cases where this writ may be used.

writ expresses, and upon reasons of public policy, to preserve peace, order, and good government." In the same case he says, "This writ ought to be used upon all occasions where the law has established no specific remedy, and where in justice and good government there ought to be one."

In addition to the authorities now particularly cited, many others were relied on at the bar, which show how far the practice has conformed to the general doctrines that have been just quoted.

This writ, if awarded, would be directed to an officer of government, and its mandate to him would be, to use the words of Blackstone, "to do a particular thing therein specified which appertains to his office and duty, and which the court has previously determined, or at least supposes, to be consonant to right and justice." Or, in the words of Lord Mansfield, the applicant in this case has a right to execute an office of public concern, and is kept out of possession of that right.

These circumstances certainly concur in this case.

Still to render the mandamus a proper remedy, the officer to whom it is to be directed must be one to whom on legal principles such writ may be directed; and the person applying for it must be without any other specific and legal remedy.

1st. With respect to the officer to whom it would be directed. The intimate political relation subsisting between the President of the United States and the heads of departments necessarily renders any legal investigation of the acts of one of those high officers peculiarly irksome as well as delicate, and excites some hesitation with respect to the propriety of entering into such investigation. Impressions are often received without

much reflection or examination, and it is not wonderful that in such a case as this the assertion by an individual of his legal claims in a court of justice, to which claims it is the duty of that court to attend, should at first view be considered by some as an attempt to intrude into the Cabinet and to inter

The court disclaims all idea of attempts at intrusion into the Cabinet or meddling with prerogatives of the executive.

meddle with the prerogatives of the executive.

It is scarcely necessary for the court to disclaim all pretensions to such a jurisdiction. An extravagance so absurd and excessive could not have been entertained for a moment. The province of the court is solely to decide on the rights of individuals, not to inquire how the executive or executive officers perform duties in which they have a discretion. Questions in their nature political, or which are by the Constitution and laws submitted to the executive, can never be made in this court. But if this be not such a question; if, so far from be Reasons given why it is ing an intrusion into the secrets of the Cabinet, it respects a paper which according to law is upon record, and to a copy of which the law gives a right on the payment of ten cents; if it be no intermeddling with a subject over which the executive can be considered as having exercised any control; what is there in the exalted station of the officer which shall bar a citizen from asserting in a court of justice his legal rights, or shall forbid a court to listen to the claim, or to issue a mandamus directing the performance of a duty not depending on executive discretion, but on particular acts of Congress and the general principles of law?

not an intrusion.

If one of the heads of departments commits any illegal act, under color of his office, by which an individual sustains an injury, it cannot be pretended that his office

alone exempts him from being sued in the ordinary mode of proceeding, and being compelled to obey the judgment of the law. How, then, can his office exempt him from this particular mode of deciding on the legality of his conduct, if the case be such a case as would, were any other individual the party complained of, authorize the process?

mandamus is determined by the nature of the thing to be done, not by the office of the person to whom writ is directed.

It is not by the office of the person Propriety of issuing to whom the writ is directed, but the nature of the thing to be done, that the propriety or impropriety of issuing a mandamus is to be determined. Where the head of a department acts in a case in which executive discretion is to be exercised, in which he is the mere organ of executive will, it is again repeated, that any application to a court to control, in any respect, his conduct, would be rejected without hesitation.

But where he is directed by law to do a certain act affecting the absolute rights of individuals, in the performance of which he is not placed under the particular direction of the President, and the performance of which the President cannot lawfully forbid, and therefore is never presumed to have forbidden - as, for example, to record a commission, or a patent for land, which has received all the legal solemnities; to give a copy of such record, in such cases it is not perceived on what ground the courts of the country are further excused from the duty of giving judgment that right be done to an injured individual, than if the same services were to be performed by a person not the head of a department.

This opinion seems not now for the first time to be taken up in this country.

It must be well recollected that in 1792 an act passed