CH. XXXVII.]
EXECUTIVE—APPOINTMENTS.
407
are protected by the laws of his country. To withhold his commission, therefore, is an act deemed by the court not warranted by law, but violative of a vested legal right.[1]
- ↑ See also Rawle on the Constitution, ch. 14, p. 166; Sergeant on Constitution, ch. 29, [ch. 31.]—The reasoning of this opinion would seem to be, in a judicial view, absolutely irresistible; and, as such, received at the time a very general approbation from the profession. It was, however, totally disregarded by President Jefferson, who, on this, as on other occasions, placed his right of construing the constitution and laws, as wholly above, and independent of, judicial decision. In his correspondence, he repeatedly alluded to this subject, and endeavoured to vindicate his conduct. In one of his letters he says, "In the case of Marbury and Madison, the federal judges declared, that commissions, signed and sealed by the president, were valid, although not delivered. I deemed delivery essential to complete a deed, which, as long as it remains in the hands of the party, is, as yet, no deed; it is in passe only, but not in esse; and I withheld the delivery of the commission. They cannot issue a mandamus to the president, or legislature, or to any of their officers."[a 1] It is true, that the constitution does not authorize the Supreme Court to issue a mandamus in the exercise of original jurisdiction, as was the case in Marbury v. Madison; and it was so decided by the Supreme Court. But the Act of Congress of 1789, ch. 20, § 13, had actually conferred the very power on the Supreme Court, by providing that the Supreme Court shall have power "to issue writs of mandamus &c. to any courts appointed, or persons holding office under the authority of the United States." So, that the Supreme Court, in declining jurisdiction, in effect declared, that the act of congress was, in this respect, unconstitutional. But no lawyer could doubt, that congress might confer the power on any other court; and the Supreme Court itself might issue a mandamus in the exercise of its appellate jurisdiction. But the whole argument of President Jefferson proceeds on an assumption, which is not proved. He says, delivery is essential to a deed. But, assuming this to be correct in all cases, it does not establish, that a commission is essential to every appointment, or that a commission must, by the constitution, be by a deed; or that an appointment to office is not complete, before the commission is sealed, or delivered. The question is not, whether a deed at the common law is perfect without a delivery; but whether an appointment under the constitution is perfect without a delivery of a commission. If a delivery were necessary, when the president had signed the commission, and delivered it to the secretary to be sealed and recorded, such delivery would be
- ↑ 4 Jefferson's Corresp. 317; id. 75; id. 372, 373.
