Turner v. Fendall. 1 C.

direction would have been unnecessary if the sheriff had possessed a previous right to make the appropriation.

It is stated in Barnes's Notes, 214, to have been adjudged in Trinity term, 32d and 33d of George II., in the case of Staple v. Bird, where a sheriff had levied an execution on money in his hands, that he should, notwithstanding this execution, pay the money to the person entitled to the benefit of the first judgment. It is true that in that case the person in whose name the judgment was rendered, was not entitled to the money received under it, but the case is not stated to have been decided on that principle; and *the [*136 ] very frequency of such a state of things furnishes an argument of no inconsiderable weight against the right to levy an execution on money so circumstanced. The equitable right of persons, whose names do not appear in the execution, ought to be preserved; and considerable injustice might result from imposing on the sheriff the duty of deciding at his peril on such rights.

Considering the case, then, either on principle or authority, it appears to the court that the creditor has not such a legal property in the specific pieces of money levied for him, and in the hands of the sheriff, as to authorize that officer to take those pieces in execution as the goods and chattels of such creditor.

But the money becomes liable to such execution the instant it shall be paid into the hands of the creditor; and it then becomes the duty of the officer to seize it. It appears unreasonable that the law should direct a payment under such circumstances. If the money shall be seized the instant of its being received by the creditor, then the payment to him seems a vain and useless ceremony which might well be dispensed with; and if the money should, by being so paid, be withdrawn from the power of the officer, then his own act would put beyond his reach, property rendered by law liable to his execution, and which, of consequence, the law made it his duty to seize.

The absurdity involved in such a construction led the court to a further consideration of the subject.

The mandate of a writ of fieri facias, as originally formed, is, that the officer have the money in court on the return day, there to be paid to the creditor. Forms of writs furnish strong evidence of what was law when they were devised, and of the duty of the officer to whom they are directed. Originally it was regularly the duty of the officer to have the money in court, and it has been held, that not even payment to the creditor himself could 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

Marbury v. Madison. 1 C.

legislature of Virginia, yet is, that the money shall be in court on the return day, and there appears no excuse for omitting [*137] this duty, unless it shall have been paid to the creditor. The sheriff may certainly 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 returned; 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 and 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.

Judgment affirmed.

FEBRUARY TERM, 1803.

WILLIAM MARBURY V. JAMES MADISON, Secretary of State of the United States.

1 C. 137.

An act of Congress repugnant to the constitution is not law.

When the constitution and an act of congress are in conflict, the constitution must govern the case to which both apply.

Congress cannot confer on this court any original jurisdiction.

To issue a writ of mandamus, requiring a secretary of state to deliver a paper, would be an exercise of original jurisdiction not conferable by congress, and not conferred by the constitution on this court.

The 13th section of the Judiciary Act, (1 Stats. at Large, 81,) is inoperative, so far as it attempts to grant to this court power to issue writs of mandamus, in classes of cases of original jurisdiction, not conferred by the constitution on this court.

Marbury v. Madison. 1 C.

AT the last term, namely, 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,*severally moved the court for a rule [* 138 ] to 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 information 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 rule was laid to show cause on the fourth day of this term. This rule having been duly served,

*Mr. Lee read the affidavit of Dennis Ramsay, and the [*139] 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.

* The court ordered the witnesses to be sworn, and their [* 142 ] 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.

[* 143 ]

Marbury v. Madison. 1 C.

Mr. Lincoln, attorney-general, having been summoned, and now called, objected to answering. He requested that the questions might be put in writing, and that he might afterwards have time to determine whether he would answer. On the one hand he respected the jurisdiction of this court, and on the other he felt himself bound to maintain the rights of the executive. He was acting as secretary of state at the time when this transaction happened. He was of opinion, and his opinion was supported by that of others whom he highly respected, that he was not bound, and ought not to answer, as to any facts which came officially to his knowledge while acting as secretary of state.

The questions being written, were then read and handed to him. He repeated the ideas he had before suggested, and said his objections were of two kinds.

[144] 1st. He did not think himself bound to disclose his official transactions while acting as secretary of state; and, 2d. He ought not to be compelled to answer any thing which might tend to criminate himself.

Mr. Lincoln thought it was going a great way to say that every secretary of state should at all times be liable to be called upon to appear as a witness in a court of justice, and testify to facts which came to his knowledge officially. He felt himself delicately situated between his duty to this court, and the duty he conceived he owed to an executive department; and hoped the court would give him time to consider of the subject.

The court said that if Mr. Lincoln wished time to consider what answers he should make, they would give him time; but they had no doubt he ought to answer. There was nothing confidential required to be disclosed. If there had been he was not obliged to answer it; and if he thought that any thing was communicated to him in confidence he was not bound to disclose it; nor was he obliged to state any thing which would criminate himself; but that the fact whether such commissions had been in the office or not, could not [*145 ] be a confidential fact; it is a fact which all the world have a right to know. If he thought any of the questions improper, he might state his objections.

Mr. Lincoln then prayed time till the next day to consider of his answers under this opinion of the court.

The court granted it, and postponed further consideration of the cause till the next day.

At the opening of the court on the next morning, Mr. Lincoln said he had no objection to answering the questions proposed, excepting the last, which he did not think himself obliged to answer fully. The

Marbury v. Madison. 1 C.

question was, what had been done with the commissions? He had no hesitation in saying that he did not know that they ever came to the possession of Mr. Madison, nor did he know that they were in the office when Mr. Madison took possession of it. He prayed the opinion of the court whether he was obliged to disclose what had been done with the commissions.

The court were of opinion that he was not bound to say what had become of them; if they never came to the possession of Mr. Madison it was immaterial to the present cause what had been done with them by others.

Afterwards, on the 24th February, the following opinion [* 153 ] of the court was delivered by the CHIEF JUSTICE. 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 him to [*154] deliver to William Marbury his commission as a justice of the peace for the county of Washington, in the District of Columbia. No cause has been shown, and the present motion is for a mandaThe 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.

mus.

These principles have been, on the side of the applicant, very ably argued at the bar. In rendering the opinion of the court, there will be some departure in form, though not in substance, from the points stated in that argument.

In the order in which the court has viewed this subject, the following questions have been considered and decided.

1st. Has the applicant a right to the commission he demands? 2dly. If he has a right, and that right has been violated, do the laws of his country afford him a remedy?

3dly. If they do afford him a remedy, is it a mandamus issuing from this court?!

The first object of inquiry is,

1st. Has the applicant a right to the commission he demands? His right originates in an act of congress passed in February, 1801, concerning the District of Columbia.

After dividing the district into two counties, the 11th section of this law enacts, "that there shall be appointed in and for each of the said counties, such number of discreet persons to be justices of the peace as the President of the United States shall, from time to time think expedient, to continue in office for five years.