Sent: 3/29/2013 7:11:43 P.M. Eastern Daylight Time
Subj: Marbury v. Madison, the US Supreme Court ruled that any law that violates the Constitution is automatically void.
MARBURY v. MADISON, 5 U.S. 137 (1803) 5 U.S. 137 (Cranch)
In the case of commissions, the law orders the Secretary of State to record them. When, therefore, they are signed and sealed, the order for their being recorded is given, and, whether inserted in the book or not, they are in law recorded.
A copy of this record is declared equal to the original, and the fees to be paid by a person requiring a copy are ascertained by law. Can a keeper of a public record erase therefrom, a commission which has been recorded? Or can he refuse a copy thereof, to a person demanding it on the terms prescribed by law?
Such a copy would, equally with the original, authorize the justice of peace to proceed in the performance of his duty, because it would, equally with the original, attest his appointment.
If the transmission of a commission be not considered as necessary to give validity to an appointment, still less is its acceptance. The appointment is the sole act of the President; the acceptance is the sole act of the officer, and is, in plain common sense, posterior to the appointment. As he may resign, so may he refuse to accept; but neither the one, nor the other, is capable of rendering the appointment a nonentity.
That this is the understanding of the government is apparent from the whole tenor of its conduct.
A commission bears date, and the salary of the officer commences from his appointment, not from the transmission or acceptance of his commission. When a person appointed to any office refuses to accept that office, the successor is nominated in the place of the person who [p162] has declined to accept, and not in the place of the person who had been previously in office and had created the original vacancy.
It is, therefore, decidedly the opinion of the Court that, when a commission has been signed by the President, the appointment is made, and that the commission is complete, when the seal of the United States has been affixed to it by the Secretary of State.
Where an officer is removable at the will of the Executive, the circumstance which completes his appointment is of no concern, because the act is at any time revocable, and the commission may be arrested, if still in the office. But when the officer is not removable at the will of the Executive, the appointment is not revocable, and cannot be annulled. It has conferred legal rights which cannot be resumed.
The discretion of the Executive is to be exercised until the appointment has been made. But having once made the appointment, his power over the office is terminated in all cases, where by law the officer is not removable by him. The right to the office is then in the person appointed, and he has the absolute, unconditional power of accepting, or rejecting, it.
Mr. Marbury, then, since his commission was signed by the President and sealed by the Secretary of State, was appointed, and as the law creating the office gave the officer a right to hold [it] for five years, independent of the Executive, the appointment was not revocable, but vested in the officer legal rights which are protected by the laws of his country.
To withhold the commission, therefore, is an act deemed, by the Court, not warranted by law, but violative of a vested legal right.
This brings us to the second inquiry, which is:
2. If he has a right, and that right has been violated, do the laws of his country afford him a remedy? [p163]
The very essence of civil liberty certainly consists in the right of every individual to claim the protection of the laws, whenever he receives an injury. One of the first duties of government is to afford that protection. In Great Britain, the King himself is sued in the respectful form of a petition, and he never fails to comply with the judgment of his court.
In the third volume of his Commentaries, page 23, Blackstone states two cases in which a remedy is afforded by mere operation of law.
"In all other cases", he says, "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."