Non-judicial duties cannot be imposed on the courts. Illustration.

directing the Secretary at War to place on the pensionlist such disabled officers and soldiers as should be reported to him by the Circuit Courts, which act, so far as the duty was imposed on the courts, was deemed unconstitutional; but some of the judges, thinking that the law might be executed by them in the character of commissioners, proceeded to act and to report in that char

acter.

This law being deemed unconstitutional at the circuits was repealed and a different system was established; but the question whether those persons who had been reported by the judges, as commissioners, were entitled, in consequence of that report, to be placed on the pensionlist was a legal question properly determinable in the courts, although the act of placing such persons on the list was to be performed by the head of a department.

That this question might be properly settled, Congress passed an act, in February, 1793, making it the duty of the Secretary of War, in conjunction with the AttorneyGeneral, to take such measures as might be necessary to obtain an adjudication of the Supreme Court of the United States on the validity of any such rights claimed under the act aforesaid.

After the passage of this act a mandamus was moved for, to be directed to the Secretary at War, commanding him to place on the pension-list a person stating himself to be on the report of the judges.1

There is, therefore, much reason to believe that this mode of trying the legal right of the complainant was deemed by the head of a department, and by the highest

I See note at end of this case.

law officer of the United States, the most proper which could be selected for the purpose.

When the subject was brought before the court the decision was not that a mandamus would not lie to the head of a department directing him to perform an act enjoined by law, in the performance of which an individual had a vested interest, but that a mandamus ought not to issue in that case; the decision necessarily to be made if the report of the commissioners did not confer on the applicant a legal right.

The judgment in that case is understood to have decided the merits of all claims of that description, and the persons on the report of the commissioners found it necessary to pursue the mode prescribed by the law subsequent to that which had been deemed unconstitutional, in order to place themselves on the pension-list.

The doctrine, therefore, now ad

vanced is by no means a novel one.

The doctrine now advanced not a novel one.

It is true that the mandamus now moved for is not for the performance of an act expressly enjoined by statute. It is to deliver a commission, on which subject the acts of Congress are silent. This difference is not considered as affecting the case. It has already been stated that the applicant has to that commission a vested legal right of which the executive cannot deprive him. He has been appointed to an office from which he is not removable at the will of the executive, and being so appointed he has a right to the commission which the Secretary has received from the President for his use. The act of Congress does not indeed order the Secretary of State to send it to him, but it is placed in his hands for the person entitled to it, and cannot be more lawfully. withheld by him than by any other person.

It was at first doubted whether the action of detinue was not a specific legal remedy for the commission which has been withheld from Mr. Marbury; 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.

Plain case for a mandamus.

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 inquired,

Whether it can issue from this court.

Power of Supreme Court to issue a mandamus in this case.

The act to establish the judicial courts of the United States authorizes the Supreme Court "to issue writs of mandamus, in cases warranted by the principles and usages of law to any courts appointed, or persons holding office, under the authority of the United States."

The Secretary of State being a person holding an office under the authority of the United States 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 and assigning the duties which its words purport to confer and assign.

Judicial power vested in one Supreme Court by the Constitution.

The Constitution vests the whole ju

dicial power of the United States 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 United States; and consequently, in some form, may be exercised over the present case; because the right claimed is given by a law of the United States.

Point made that the Supreme Court has no jurisdiction in this matter.

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." It has been insisted at the bar, that, as the original grant of jurisdiction to the Supreme Court and inferior courts is general, and the clause assigning original jurisdiction to the Supreme Court contains no negative 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 of the United States.

The reasons why under the Constitution this court has jurisdiction.

If it had been intended to leave it in 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 power, and the tribunals in which it should be vested. The subsequent part 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 than those 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.

If the solicitude of the convention respecting our peace with foreign powers induced a provision that the Supreme Court should take original jurisdiction in cases which might be supposed to affect them, yet the clause would have proceeded no further than to provide for such cases, if no further restriction on the powers of Congress had been intended. That they should have appellate jurisdiction in all other cases, with such exceptions as Congress might make, is no restriction, unless the words be deemed exclusive of original jurisdiction.

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.