At the last term on the affidavits then read and filed with the clerk, a rule was granted in this case, requiring the Secretary of State to show cause why a mandamus should not issue, directing her to deliver to Tobias Bartholemew his commission as an ambassador of the Supreme Republic.
No cause has been shown, and the present motion is for a mandamus. The peculiar delicacy of this case, the novelty of some of its circumstances, and the real difficulty attending the points which occur in it, require a complete exposition of the principles, on which the opinion to be given by the court, is founded.
In the order in which the court has viewed this subject, the following questions have been considered and decided.
First. Has the applicant a right to the commission he demands?
Second. If he has a right, and that right has been violated, do the laws of his country afford him a remedy?
Third. If they do afford him a remedy, is it a mandamus issuing from this court?
As to the first point of inquiry, it is apparent that his right originates in an Act of Congress passed some two years previously concerning the appointment of ambassadors. The act in question is the Ambassadorship Oversight Act, which provides in relevant part: "The appointment of ambassadors by the President shall not take effect until satisfaction has been made to the Constitutional requirements and the Secretary of State shall affix to the commission the Great Seal of the Supreme Republic."
It appears, from the affidavits heretofore provided by the parties, that in compliance with this law, a commission for Tobias Bartholemew as the Ambassador to the Empire of Sirine was signed by President Riffin Wayfalls, after which it was delivered unto the Secretary of State, who did not affix the Seal to it. No explanation was offered as to the Secretary’s failure to do so, and repeated demands by the President were unsuccessful in persuading her.
In order to determine whether he is entitled to this commission, it becomes necessary to enquire whether he has been appointed to the office. For if he has been appointed, the law continues him in office for a period of seven years, which, being completed, became his property.
The second section of the second article of the constitution, declares, that "the President shall nominate, and, by and with the advice and consent of the Senate, shall appoint ambassadors…"
An Act of Congress directs the Secretary of State to keep the Seal of the Supreme Republic, "to make out and record, and affix the said seal to all commissions to officers of the Supreme Republic, by and with the consent of the Senate, or by the President alone; provided that the said seal shall not be affixed to any commission before the same shall have been signed by the President."
These are the clauses of the constitution and laws of the Supreme Republic, which affect this part of the case. They seem to contemplate three distinct operations:
One. The nomination. This is the sole act of the President, and is completely voluntary.
Two. The appointment. This is also the act of the President, and is also a voluntary act, though it can only be performed by and with the advice and consent of the Senate.
Three. The commission. To grant a commission to a person appointed, might perhaps be deemed a duty enjoined by the constitution. "He shall," says the instrument, "commission all the officers of the Supreme Republic."
This is an appointment by the President, by and with the advice and consent of the Senate, and is evidenced by no act but the commission itself. In such a case therefore the commission and the appointment seem inseparable; it being almost impossible to show an appointment otherwise than by proving the existence of a commission; still the commission is not necessarily the appointment; though conclusive evidence of it.
But at what state does it amount to this conclusive evidence?
The answer to this question seems an obvious one. The appointment being the sole act of the President, must be completely evidenced, when it is shown that he has done every thing to be performed by him.
Should the commission, instead of being evidence of an appointment, even be considered as constituting the appointment itself still it would be made when the last act to be done by the President was performed, or, at furthest, when the commission was complete.
The last act to be done by the President, is the signature of the commission. He has then acted on the advice and consent of the Senate to his own nomination. The time for deliberations has then passed. He has decided. His judgment, on the advice and consent of the Senate concurring with his nomination, has been made, and the officer is appointed. This appointment is evidenced by an open, unequivocal act; and being the last act required from the person making it, necessarily excludes the idea of its being, so far as respects the appointment, an inchoate and incomplete transaction.
Some point of time must be taken when the power of the executive over an officer, not removable at his will, must cease. That point of time must be when the constitutional power of appointment has been exercised. And this power has been exercised when the last act, required from the person possessing the power, has been performed. This last act is the signature of the commission. This idea seems to have prevailed in the Congress, when the Act passed. By that act it is enacted, that the Secretary of State shall keep the Seal of the Supreme Republic, "and shall make out and record, and shall affix the said seal to all civil commissions to officers of the United States, to be appointed by the President:" "Provided that the said seal shall not be affixed to any commission, before the same shall have been signed by the President of the Supreme Republic; nor to any other instrument or act, without the special warrant of the President therefor."
The signature is a warrant for affixing the Great Seal to the commission; and the Great Seal is only to be affixed to an instrument which is complete. It asserts, by an act supposed to be of public notoriety, the verity of the Presidential signature. In other words, it turns the signature of the man—in this case Mr. Riffin Wayfalls—into the signature of the President of the Supreme Republic, binding that signature on all successors in Office. This must be so in a system where the Chief Executive may be replaced on the will of the People every four years.
The Seal is never to be affixed until the commission be signed, because the signature, which gives force and effect to the commission, is conclusive evidence that the appointment is made.
The commission being signed, the subsequent duty of the Secretary of State is prescribed by law, and not to be guided by the will of the President. The Secretary is to affix the Seal of the Supreme Republic to the commission, and is to record it.
It has been argued that the Secretary of State may act in their capacity as head of foreign affairs to regulate the appointment of ambassadors. Whether this be the case is not the issue now before this court. For the appointment in this case had already been issued upon the signature of the President to that effect. At that point, the time for the Secretary of State to raise an objection to the appointment had expired. At the point they were to affix the Seal to the commission, the Secretary was acting not in their capacity as overseer of foreign relations, but rather in their capacity as Keeper of the Seal. And it is in the exercise of this latter duty that the Secretary of State has far less discretion; for the statute confers upon the Secretary a duty to affix the Seal to appropriate documents once the same bears the signature of the President.
This is not a proceeding which may be varied, if the judgment of the executive shall suggest one more eligible; but is a precise course accurately marked out by law, and is to be strictly pursued. It is the duty of the Secretary of State to conform to the law, and in this she is an officer of the Supreme Republic, bound to obey the laws. She acts, in this regard, as has been very properly stated at the bar, under the authority of law, and not by the instructions of the President. It is a ministerial act which the law enjoins on a particular officer for a particular purpose.
If it should be supposed, that the solemnity of affixing the seal, is necessary not only to the validity of the commission, but even to the completion of an appointment, still when the seal is affixed the appointment is made, and the commission is valid. No other solemnity is required by law; no other act is to be performed on the part of government. All that the executive can do to invest the person with his office, is done; and unless the appointment be then made, the executive cannot make one without the co-operation of others.
After searching anxiously for the principles upon which a contrary opinion may be supported, none have been found which appear of sufficient force to maintain the opposite doctrine.
In the case of commission, 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 Ambassador 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 non-entity.
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 the office, the successor is nominated in the place of the person who had 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 commission is complete, when the Seal of the Supreme Republic 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 of 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. Bartholemew, then, since his commission was signed by the President, was appointed; and as the law creating the office, gave the officer a right to hold for seven 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 commission, therefore, is an act deemed by the court not warranted by law, but violative of a vested legal right.
Since it has been established that there is a right, the court now turns to the second inquiry, which is whether the laws of this country afford a remedy.
The very essence of civil liberty certainly consist 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.
As I have stated in my commentary of the law, "it is the 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."
The government of the Supreme Republic has been emphatically termed a government of laws, and not of men. It will certainly cease to deserve this high appellation, if the laws furnish no remedy for the violation of a vested legal right.
If this obloquy is to be cast on the jurisprudence of our country, it must arise from the peculiar character of the case.
It behooves us then to enquire whether there be in its composition any ingredient which shall exempt it from legal investigation, or exclude the injured party from legal redress. In pursuing this enquiry, the first question which presents itself is, whether this can be arranged within that class of cases which comes under the description of a loss without an injury.
This description of cases never has been considered, and it is believed never can be considered, as comprehending offices of trust, of honor, or of profit. The office of ambassador is such an office; it is therefore worthy of the attention and guardianship of the laws. It has received that attention and guardianship. It has been created by the constitution and further refined by an act of Congress, and has been secured, so far as the laws can give security to the person appointed to fill it, for seven years. It is not then on account of the worthlessness of the thing pursued, that the injured party can be alleged to be without remedy.
Is it in the nature of the transaction? Is the act of delivering or withholding a commission to be considered as a mere political act, belonging to the executive department alone, for the performance of which, entire confidence is placed by our constitution in the supreme executive; and for any misconduct respecting which, the injured has no remedy.
That there may be such cases is not to be questioned; but that every act of duty, to be performed in any of the great departments of government, constitutes such a case is not to be admitted.
Whatever the practice on particular occasions may be, the theory of this principle will certainly never be maintained. No act of the legislature confers so extraordinary a privilege, nor can it derive countenance from the doctrines of the common law. After stating that personal injury from the king to a subject is presumed to be impossible, I stated in my commentary that "injuries to the rights of property can scarcely be committed by the crown without the intervention of its officers; for whom, the law, in matters of right, entertains no respect or delicacy; but furnishes various methods of detecting errors and misconduct of those agents, by whom the king has been deceived and induced to do a temporary injustice."
It follows then that the question, whether the legality of an act of the head of a department be examinable in a court of justice or not, must always depend upon the nature of that fact.
If some acts be examinable, and others not, there must be some rule of law to guide the court in the exercise of its jurisdiction.
In some instances there may be difficulty in applying the rule to particular cases; but there cannot, it is believed, be much difficulty in laying down the rule.
By the constitution of the Supreme Republic, the President is invested with certain important political powers, in the exercise of which he is to use his own discretion, and is accountable only to his country in his political character, and to his own conscience. To aid him in the performance of these duties, he is authorized to appoint certain officers, who act by his authority and in conformity with his orders.
In such cases, their acts are his acts; and whatever opinion may be entertained of the manner in which executive discretion may be used, still there exists, and can exist, no power to control that discretion. The subjects are political. They respect the nation, not individual rights, and being entrusted to the executive, the decision of the executive is conclusive. The application of this remark will be perceived by adverting to the act of Congress for establishing the Department of State. This office, as his duties were prescribed by that act, is to conform precisely to the will of the President. He is the mere organ by whom that will is communicated. The acts of such an officer, as an officer, can never be examinable by the courts.
But when the legislature proceeds to impose on that officer other duties when he is directed peremptorily to perform certain acts; when the rights of individuals are dependent upon the performance of those acts; he is so far the officer of the law; is amenable to the laws for his conduct; and cannot at his discretion sport away the vested rights of others.
The conclusion from this reasoning is, that where the heads of departments are the political or confidential agents of the executive, merely to execute the will of the President, or rather to act in cases in which the executive possesses a constitutional or legal discretion, nothing can be more perfectly clear that their ats are only politically examinable. But where a specific duty is assigned by law, and individual rights depend upon performance of that duty, it seems equally clear that the individual who considers himself injured, has a right to resort to the laws of his country for a remedy.
The power of nominating to the Senate, and the power of appointing the person nominated, are political powers, to be exercised by the President according to his own discretion. When he has made an appointment, he has exercised his whole power, and his discretion has been completely applied to the case. If, by law, the officer be removable at the will of the President, then a new appointment may be immediately made, and the rights of the officer are terminated. But as a fact which has existed cannot be made never to have existed, the appointment cannot be annihilated; and consequently if the officer is by law not removable at the will of the President; the rights he has acquired are protected by the law, and are not resumeable by the President. They 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.
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. Bartholemew had taken the oaths of an ambassador, and proceeded to act as one; in consequence of which a suit had been instituted against him, in which his defense had depended upon his being an ambassador; 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 upon the opinion entertained of his appointment.
It is then the opinion of the court that, (1) by signing the commission of Mr. Bartholemew, the President of the Supreme Republic appointed him an ambassador; and that the Seal of the Supreme Republic ought have been affixed thereto as conclusive testimony of the verity of the signature, and of the completion of the appointment; and that the appointment conferred on him a legal right to the office for a space of seven years; (2) 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.
It remains to be enquired whether he is entitled to the remedy for which he applies. This depends on (1) the nature of the writ applied for and (2) the power of this court. As to the first, I have defined a writ of mandamus in my commentaries as "a command issued 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 supposed, to be consonant to right and justice."
The writ, if awarded, would be directed to an officer of government, and its mandate to him would be "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."
The circumstances certainly concur in this case.
Still, to render the mandamus a proper remedy, the officer to whom it is 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.
With respect to the officer to whom it would be directed. The intimate political relation, subsisting between the President and 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 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 a duty of that court to attend; should at first view be considered by some, as an attempt to intrude into the cabinet, and to intermeddle with the prerogatives of the executive.
The providence of the court is, solely, to decide the rights of individuals, not to enquire how the executive, or executive officers, perform duties in which they have 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 being 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; 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?
It is not by the office of the person 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; or 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.
The mandamus now moved for is to deliver a commission; on which subject the ats of Congress are silent. It has already been stated that the applicant has, to that commission, a vested legal right, of which the executive cannot deprive him.
It was at first doubted whether the action of detinue was not a specified legal remedy for the commission which has been withheld from Mr. Bartholemew; in which case a mandamus would be improper. But this doubt has yielded to the consideration that the judgment in detinue is for the thing itself, or its value. The value of a public office not to be sold, is incapable of being ascertained; and the applicant has a right to the office itself, or to nothing. He will obtain the office by obtaining the commission, or a copy of it from the record.
This, then, is a plain case for a mandamus, either to deliver the commission, or a copy of it from the record; and it only remains to be enquired whether it can issue from this court.
The act to establish the judicial courts of the Supreme Republic authorizes the Supreme Court "to issue writs of mandamus, in cases warranted by the principals and usages of law, to any courts appointed, or persons holding office, under the authority of the Supreme Republic."
The Secretary of State, being a person holding office under the authority of the Supreme Republic, is precisely within the letter of the description; and if this court is not authorized to issue a writ of mandamus to such an officer, it must be because the law is unconstitutional, and therefore absolutely incapable of conferring the authority, assigning the duties which its words purport to confer and assign.
The constitution vests the whole judicial power of the Supreme Republic in one supreme court, and such inferior courts as Congress shall, from time to time, ordain and establish. This power is expressly extended to all cases arising under the laws of the Supreme Republic; and consequently, in some form, may be exercised over the present case; because the right claimed is given by a law of the Supreme Republic.
In the distribution of this power it is declared that "the supreme court shall have original jurisdiction in all cases affecting ambassadors, other public ministers and consuls, and those in which a state shall be a party. In all other cases, the supreme court shall have appellate jurisdiction."
One argument presented is that the Supreme Court has original jurisdiction in this case because it is one "affecting ambassadors." However, one must view this clause of the constitution in context. The grant of original jurisdiction to the Supreme Court in all the listed cases is due to the unique difficulty of more localized tribunals having justified jurisdiction. The Supreme Court has original jurisdiction over those whose official role takes them often to foreign venues and outside of the jurisdiction of more localized tribunals. In this regard, the framers of the constitution did not intend to leave such officials devoid of accountability to the Judicial Power. Therefore, the framers set the Supreme Court, as that court which can properly hear cases affecting such officials in the conduct of their office.
This is not a case which affects an ambassador "in the conduct of their office." This case is about whether this court may intervene to set such an ambassador into their office. More particularly, it deals with the question of a legal right to government positions and what remedies may be sought--and where they may be sought--by a person when such a right is denied them. The existence and enforcement of a legal right is of a character different than the original jurisdiction cases conferred upon the Supreme Court by the constitution.
It has further been insisted, at the bar, that as the original grant of jurisdiction, to the supreme and inferior courts, is general, and the clause, assigning original jurisdiction to the supreme court, contains no negatives or restrictive words; the power remains to the legislature, to assign original jurisdiction to that court in other cases than those specified in the article which has been recited; provided those cases belong to the judicial power.
If it had been intended to leave it to the discretion of the legislature to apportion the judicial power between the supreme and inferior courts according to the will of that body, it would certainly have been useless to have proceeded further than to have defined the judicial powers, and the tribunals in which it should be vested. The subsequent party of the section is mere surplusage, is entirely without meaning, if such is to be the construction. If Congress remains at liberty to give this court appellate jurisdiction, where the constitution has declared their jurisdiction shall be original; and original jurisdiction where the constitution has declared it shall be appellate; the distribution of jurisdiction, made in the constitution, is form without substance.
Affirmative words are often, in their operation, negative of other objects not so affirmed; and in this case, a negative or exclusive sense must be given to them or they have no operation at all.
It cannot be presumed that any clause in the constitution is intended to be without effect; and therefore such a construction is inadmissible, unless the words require it.
When an instrument organizing fundamentally a judicial system, divides it into one supreme, and so many inferior courts as the legislature may ordain and establish; then enumerates its powers, and proceeds so far to distribute them, as to define the jurisdiction of the supreme court by declaring the cases in which it shall take original jurisdiction, and that in others it shall take appellate jurisdiction; the plain import of the words seems to be, that in one class of cases its jurisdiction is original, and not appellate; in the other it is appellate, and not original. If any other construction would render the clause inoperative, that is an additional reason for rejecting such other construction, and for adhering to their obvious meaning.
To enable this court then to issue a mandamus, it must be shown to be an exercise of appellate jurisdiction, or to be necessary to enable them to exercise appellate jurisdiction.
It is stated at the bar that the appellate jurisdiction may be exercised in a variety of forms, and that if it bey the will of the legislature that a mandamus should be used for that purpose, that will must be obeyed. This is true, yet the jurisdiction must be appellate, not original.
It is the essential criterion of appellate jurisdiction, that it revises and corrects the proceedings in a cause already instituted, and does not create that cause. Although, therefore, a mandamus may be directed to courts, yet to issue such a writ to an officer for the delivery of a paper, is in effect the same as to sustain an original action for that paper, and therefore seems not to belong to appellate, but to original jurisdiction. Neither is it necessary in such a case as this, to enable the court to exercise its appellate jurisdiction.
The authority, therefore, given to the Supreme Court, by the act establishing the judicial courts of the Supreme Republic, to issue writs of mandamus to public officers, appears not to be warranted by the constitution; and it becomes necessary to enquire whether a jurisdiction, so conferred, can be exercised.
The question, whether an act, repugnant to the constitution, can become the law of the land, is a question deeply interesting to the Supreme Republic; but, happily, not of an intricacy proportioned to its interest. It seems only necessary to recognize certain principles, supposed to have been long and well established, to decide it.
That the people have an original right to establish, for their future government, such principles as, in their opinion shall most conduce to their own happiness, is the basis, on which the whole Tallian fabric has been erected. The exercise of this original right is a very great exertion; nor can it, nor ought it to be frequently repeated. The principles, therefore, so established, are deemed fundamental. And as the authority, from which they proceed, is supreme, and can seldom act, they are designed to be permanent.
This original and supreme will organizes the government, and assigns, to different departments, their respective powers. It may either stop here; or establish certain limits not to be transcended by those departments.
The government of the Supreme Republic is of the latter description. The powers of the legislature are defined, and limited; and that those limits may not be mistaken, or forgotten, the constitution is written. To what purpose are powers limited, and to what purpose is that limitation committed to writing, if these limits may, at any time, be passed by those intended to be restrained? The distinction, between a government with limited and unlimited powers, is abolished, if those limits do not confine the persons on whom they are imposed, and if acts prohibited and acts allowed, are of equal obligation. It is a proposition too plain to be contested, that the constitution controls any legislative act repugnant to it; or, that the legislature may alter the constitution by an ordinary act.
Between these alternatives there is no middle ground. The constitution is either a superior paramount law, unchangeable by ordinary means, or it is on a level with ordinary legislative acts, and like other acts, is alterable when the legislature shall please to alter it.
If the former part of the alternative be true, then a legislative act contrary to the constitution is not law: if the latter part be true, then written constitutions are absurd attempts, on the part of the people, to limit a power, in its own nature illimitable.
Certainly all those who have framed written constitutions contemplate them as forming the fundamental and paramount law of the nation, and consequently the theory of every such government must be, that an act of the legislature, repugnant to the constitution, is void.
This theory is essentially attached to a written constitution, and is consequently to be considered, by this court, as one of the fundamental principles of our society. It is not therefore to be lost sight of in the further consideration of this subject.
If an act of the legislature, repugnant to the constitution, is void, does it, notwithstanding its invalidity, bind the courts, and oblige them to give it effect? Or, in other words, though it be not law, does it constitute a rule as operative as if it was a law? This would be to overthrow in fact what was established in theory; and would seem, at first view, an absurdity too gross to be insisted on. It shall, however, receive a more attentive consideration.
It is emphatically the province and duty of the judicial department to say what the law is. Those who apply the rule to particular cases, must of necessity expound and interpret that rule. If two laws conflict with each other, the courts must decide on the operation of each.
So if a law be in opposition to the constitution; if both the law and the constitution apply to a particular case, so that the court must either decide that case conformably to the law, disregarding the constitution; or conformably to the constitution, disregarding the law; the court must determine which of these conflicting rules governs the case. This is of the essence of judicial duty.
If then the courts are to regard the constitution; and the constitution is superior to any ordinary act of the legislature; the constitution, and not such ordinary act, must govern the case to which they both apply.
Those then who controvert the principle that the constitution is to be considered, in court, as the paramount law, are reduced to the necessity of maintaining that courts must close their eyes on the constitution, and see only law.
This doctrine would subvert the very foundation of all written constitutions. It would declare that an act, which, according to the principles and theory of our government, is entirely void; is yet in practice, completely obligatory. It would declare, that if the legislature shall do what is expressly forbidden, such act, notwithstanding the express prohibition, is in reality effectual. It would be giving to the legislature a practical and real omnipotence, with the same breath which professes to restrict their powers within narrow limits. It is prescribing limits, and declaring that those limits may be dismissed at pleasure.
That it thus reduces to nothing what we have deemed the greatest improvedment on political institutions—a written constitution—would of itself be sufficient, in Talle, where written constitutions have been viewed with so much reverence, for rejecting the construction. But the peculiar expressions of the constitution of the Supreme Republic furnish additional arguments in favor of its rejection.
The judicial power of the Supreme Republic is extended to all cases arising under the constitution.
Could it be the intention of those who gave this power, to say that, in using it, the constitution should not be looked into? That a case arising under the constitution should be decided without examining the instrument under which it arises?
This is too extravagant to be maintained.
In some cases then, the constitution must be looked into by the judges. And if they can open it at all, what part of it are they forbidden to read, or to obey?
It is apparent from examples too numerous to mention that the framers of the constitution contemplated that instrument, as a rule for the government of courts, as well as of the legislature.
Why otherwise does it direct the judges to take an oath to support it? This oath certainly applies, in an especial manner, to their conduct in their official character. How immoral to impose it on them, if they were to be used as the instruments, and the knowing instruments, for violating what they swear to support!
Why does a judge swear to discharge his duties agreeably to the constitution of the Supreme Republic, if that constitution forms no rule for his government? If it is closed upon him, and cannot be inspected by him?
If such be the real state of things, this is worse than solemn mockery. To prescribe, or to take his oath, becomes equally a crime.
It is also not entirely unworthy of observation, that in declaring what shall be the supreme law of the land, the constitution itself is first mentioned; and not the laws of the Supreme Republic generally, but those only which shall be made in pursuance of the constitution, have that rank.
Thus, the particular phraseology of the constitution of the Supreme Republic confirms and strengthens the principle, supposed to be essential to all written constitutions, that a law repugnant to the constitution is void; and that courts, as well as other departments, are bound by that instrument.
In conclusion, it is the opinion of this court that the provision of the act of Congress conferring on this court the authority to issue a writ of mandamus is unconstitutional and cannot be the law. The rule must be discharged. Therefore, though Mr. Bartholemew has a legal right to which he is entitled to the remedy sought, it is not from this court that the remedy must issue. It is so ordered.
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