 Section 1 of a collection of Supreme Court opinions by the United States Supreme Court. This is a LibriVox recording. All LibriVox recordings are in the public domain. For more information or to volunteer, please visit LibriVox.org. Marbury v. Madison, 5 U.S. 137. Decided February 24, 1803, Part 1. Please note, this is reading of the opinion of the court only. This reading does not include the syllabus or any concurring or dissenting opinions. For ease of listening, this reading omits legal citations found within the text of the court's opinion. Mr. Chief Justice Marshall delivered the opinion of the court. 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 M. Myndamus should not issue directing him to 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 M. Myndamus. 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. 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 and 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. One, has the applicant a right to the commission he demands? Two, if he has a right, and that right has been violated, does the laws of his country afford him a remedy? Three, if they do afford him a remedy, is it a M. Myndamus issuing from this court? The first object of inquiry is, one, has the applicant a right to the commission he demands? His right originates in an act of Congress, passed in February 1801, after dividing the district into two counties, the eleventh section of this law enacts, that there shall be appointed in and for each of the said counties such number of discrete persons to be justices of the peace, as the President of the United States shall, from time to time, thank expedient to continue in office for five years. End of quote. It appears from the affidavits that, in compliance with this law, a commission for William Marbury as a justice of peace for the County of Washington was signed by John Adams, then President of the United States, after which the seal of the United States was affixed to it, but the commission has never reached the person for whom it was made out. In order to determine whether he is entitled to this commission, it becomes necessary to inquire whether he has been appointed to the office. For if he has been appointed, the law continues him in office for five years, and he is entitled to the possession of those evidences of office, which, being completed, became his property. The second section of the second article of the Constitution declares, quote, the President shall nominate and, by and with the advice and consent of the Senate, shall appoint ambassadors, other public ministers and consuls, and all other officers of the United States, whose appointments are not otherwise provided for. End of quote. The third section declares that, quote, he shall commission all the officers of the United States. End of quote. An act of Congress directs the Secretary of State to keep the seal of the United States, quote, to make out and record and affix the said seal to all civil commissions to officers of the United States to be appointed by the President, 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 of the United States. These are the clauses of the Constitution and laws of the United States, 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 duty and joined by the Constitution. Quote, he shall, end of quote, says that instrument, quote, commission all the officers of the United States, end of quote. The acts of appointing to office and commissioning the person appointed can scarcely be considered as one and the same, since the power to perform them is given in two separate and distinct sections of the Constitution. The distinction between the appointment and the commission will be rendered more apparent by adverting to that provision in the second section of the second article of the Constitution, which authorizes Congress, quote, to vest by law the appointment of such inferior officers as they think proper in the President alone, in the courts of law, or in the heads of departments, end of quote. Thus contemplating cases where the law may direct the President to commission an officer appointed by the courts or by the heads of departments. In such a case, to issue a commission would be apparently a duty distinct from the appointment, the performance of which perhaps could not legally be refused. Although that clause of the Constitution, which requires the President to commission all the officers of the United States, may never have been applied to officers appointed otherwise than by himself, yet it would be difficult to deny the legislative power to apply it to such cases. Of consequence, the constitutional distinction between the appointment to an office and the commission of an officer, who has been appointed, remains the same as if in practice the President had commissioned officers appointed by an authority other than his own. It follows too from the existence of this distinction that if an appointment was to be evidenced by any public act other than the commission, the performance of such public act would create the officer, and if he was not removable at the will of the President, would either give him a right to his commission or enable him to perform the duties without it. These observations are premised solely for the purpose of rendering more intelligible those which apply more directly to the particular case under consideration. This is an appointment made 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 stage 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 everything 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 is then acted on the advice and consent of the Senate to his own nomination. The time for deliberation 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. The 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 it respects the appointment, and in show it an 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 with the legislature when the act passed converting the Department of Foreign Affairs into the Department of State. By that act, it is enacted that the Secretary of State shall keep the seal of the United States. Quote, 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 United States, nor to any other instrument or act without the special warrant of the President therefore. End of quote. 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 attests by an act supposed to be of public notoriety, the verity of the presidential signature. It is never to be affixed till the commission is 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. He is to affix the seal of the United States to the commission, and is to record it. 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 he is an officer of the United States, bound to obey the laws. He acts, in this respect, 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 is then made, the executive cannot make one without the cooperation of others. After searching anxiously for the principles on which a contrary opinion may be supported, none has been found which appear a sufficient force to maintain the opposite doctrine. Such as the imagination of the Court could suggest have been very deliberately examined, or allowing them all the weight which it appears possible to give them. They do not shake the opinion which has been formed. In considering this question, it has been conjectured that the commission may have been assimilated to a deed to the validity of which delivery is essential. This idea is founded on the supposition that the commission is not merely evidence of an appointment, but is itself the actual appointment. A supposition by no means unquestionable. In considering this objection fairly, let it be conceded that the principle claimed for its support is established. The appointment being under the constitution to be made by the President personally, the delivery of the deed of appointment, if necessary to its completion, must be made by the President also. It is not necessary that the livery should be made personally to the grantee of the office. It never is so made. The law would seem to contemplate that it should be made to the Secretary since it directs the Secretary to affix the sealed to the commission after it shall have been signed by the President. If then the act of livery be necessary to give validity to the commission, it has been delivered when executed and given to the Secretary for the purpose of being sealed, recorded and transmitted to the party. But in all cases of letters patent, certain solemnities are required by law, which solemnities are the evidences of the validity of the instrument. A formal delivery to the person is not among them. In cases of commissions, the signed manual of the President and the seal of the United States are those solemnities. This objection therefore does not touch the case. It has also occurred, as possible and barely possible, that the transmission of the commission and the acceptance thereof might be deemed necessary to complete the right of the plaintiff. The transmission of the commission is a practice directed by convenience, but not by law. It cannot therefore be necessary to constitute the appointment, which must precede it and which is the mere act of the President. If the executive required that every person appointed to an office should himself take means to procure his commission, the appointment would not be the less valid on that account. The appointment is the sole act of the President. The transmission of the commission is the sole act of the officer to whom that duty is assigned and may be accelerated or retarded by circumstances which have no influence on the appointment. A commission is transmitted to a person already appointed, not to a person to be appointed or not, as the letter enclosing the commission should happen to get into the post office and reach him in safety or to miscarry. It may have some tendency to elucidate this point. To inquire whether the possession of the original commission be indispensably necessary to authorize a person appointed to any office to perform the duties of that office. If it was necessary then a loss of the commission would lose the office. Not only negligence, but accident or fraud, fire or theft might deprive an individual of his office. In such a case I presume it could not be doubted but that a copy from the record of the office of the Secretary of State would be to every intent and purpose equal to the original. The act of Congress has expressly made it so. To give that copy validity it would not be necessary to prove that the original had been transmitted and afterwards lost. The copy would be complete evidence that the original had existed and that the appointment had been made but not that the original had been transmitted. If indeed it should appear that the original had been mislaid in the office of state. That circumstance would not affect the operation of the copy. When all the requisites had been performed which authorizes a recording officer to record any instrument whatever and the order for that purpose has been given the instrument is in law considered as recorded. Although the manual labor of inserting it in a book kept for that purpose may not have been performed. 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 there from 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 his 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 that office the successor is nominated in the place of the person who 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 is signed 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 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 whereby 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 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 by the executive 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? The very essence of civil liberty certainly consists in the right of every individual to claim the protection of the laws whenever one of the first duties of government is to afford that protection. In Great Britain the king himself is sued in this 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 quote in all other cases he says quote 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 end of quote and afterwards page 109 of the same volume he says quote I am next to consider such injuries as are cognizable by the courts and herein I shall for the present only remark that all possible injuries whatsoever that did not fall within the exclusive cognizance of either the ecclesiastical military or maritime tribunals are for that very reason within the cognizance of the common law courts of justice for it is a settled and invariable principle in the laws of England that every right when withheld must have a remedy and every country its proper redress end of quote the government of the United States has been emphatically termed a government of laws and not of men they will certainly cease to deserve this high appellation if the laws furnish no remedy for the violation of a vested legal right if this obliquy is to be cast on the jurisprudence of our country it must arise from peculiar character of the case it behooves us then to inquire whether there be in its composition any ingredient which shall exempt from legal investigation or exclude the injured party from legal redress in pursuing this inquiry the first question which presents itself is whether this can be arranged with that class of cases which come under the description of damnum obscy injuria 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 justice of peace in the district of columbia is such an office it is therefore worthy of the attention and guardianship of the laws it has received that attention and guardianship is stated by special act of congress and has been secured so far as the laws can give security to the person appointed to fill it for five 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 government 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 individual 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 passed in June 1794 the secretary at war was ordered to place on the pension list all persons whose names are contained in a report previously made by him to congress if he should refuse to do so would the wounded veteran be without remedy is it to be contented that where the law in precise terms directs the performance of an act in which an individual is interested the law is incapable of securing obedience to its mandate is it on account of the character of the person against whom the complaint is made is it to be contented that the heads of departments are not amenable to the laws of their country 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 the personal injury from the king to a subject is presumed to be impossible Blackstone volume 3 page 255 says quote but 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 the errors and misconduct of those agents the king has been deceived and induced to do a temporary injustice end of quote by the act passed in 1796 authorizing the sale of the lands above the mouth of Kentucky river the purchaser on paying his purchase money becomes completely entitled to the property purchased and on producing to the secretary of state the receipt of the treasurer upon certificate required by the law the president of the United States is advised to grant him a patent it is further enacted that all patents shall be counter signed by the secretary of state and recorded in his office if the secretary of state should choose to withhold this patent or the patent being lost should refuse a copy of it can it be imagined that the law furnishes to the injured person no remedy it is not believed that any person whatever would attempt to maintain such a proposition it follows then that the question of whether the legality of an act of the head of a department be examinable in a court of justice or not must always depend on the nature of that act 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 to be much difficulty in laying down the rule by the constitution of the united states 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 matter in which the 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 foreign affairs this officer 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 preemptorily to perform certain acts when the rights of individuals are dependent on 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 whether to act in cases in which the executive possesses a constitutional or legal discretion nothing can be more perfectly clear than that their acts are only politically examinable but where a specific duty is assigned by law and individual rights depend upon the performance of that duty it seems equally clear that the individual who considers himself injured has a right to resort to the laws for remedy if this be the rule let us inquire how it applies to the case under the consideration of the court 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 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 resumable 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. Marbury had taken the oaths of a magistrate and proceeded to act as one in consequence of which a suit had been instituted against him in which his defense had depended on his being a magistrate 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 on the opinion entertained of his appointment that question has been discussed and the opinion is that the latest point of time which can be taken as that at which the appointment was complete and evidenced was when after the signature of the president the seal of the United States was affixed to the commission it is then the opinion of the court one after the commission of Mr. Marbury the president of the United States appointed him a justice of peace for the county of Washington in the District of Columbia and that the seal of the United States affixed there too by the secretary of state his conclusive testimony of the verity of the signature and the completion of the appointment and that the appointment conferred on him a legal right to the office for the space of five years two that having this legal title to the office he has a consequent right to the commission a refusal to the livery which is a plain violation of that right for which the laws of his country afford him a remedy it remains to be inquired whether three he is entitled to the remedy for which he applies this depends on one the nature of the writ applied for the power of this court one the nature of the writ Blackstone in the third volume of his commentaries page 110 defines a mandamus to be quote end of quote Lord Mansfield in three boroughs 1266 in the case of the King V Baker at all states with much precision and explicitness the cases in which this writ may be used quote whenever end of quote says that very able judge quote there is a right to execute an office perform a service or exercise a franchise or especially if it be in a matter of public concern or attended with profit and a person is kept out of possession or dispossessed of such right and has no other specific legal remedy this court ought to assist by mandamus upon reasons of justice as the writ expresses and upon reasons of public policy to preserve peace order and good government end of quote in the same case he says quote this writ ought to be used upon all occasions where the law has established no specific remedy and wherein justice and good government there ought to be one end of quote in addition to the authorities now particularly cited many others were relied on at the bar which show how far the practice has conformed to the general doctrines that have been just quoted this writ if awarded would be directed to an officer of government and its mandate to him would be to use the words of Blackstone quote to do a particular thing therein specified which apportains to his office and duty and which the court has previously determined or at least supposes to be consonant to rights and justice end of quote or in the words of Lord Mansfield the applicant in this case has a right to execute an office of public concern and is kept out of possession of that right the circumstances certainly concur in this case end of section one section two of a collection of Supreme Court opinions by the United States Supreme Court this is a LibriVox recording all LibriVox recordings are in the public domain for more information or to volunteer please visit LibriVox.org recording by Michael Fasio Marbury v. Madison 5 US 137 decided February 24th 1803 part 2 please note this is a reading of the opinion of the court only this reading does not include the syllabus or any concurring or dissenting opinions for ease of listening this reading omits legal citations found within the text of the court's opinion still to render the mandamus a proper remedy the officer to whom it is to be 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 one with respect to the officer to whom it would be directed the intimate political relation subsisting between the president of the United States and the 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 the 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 the 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 it is scarcely necessary for the court to disclaim all pretensions to such a jurisdiction an extravagance so absurd and excessive could not have been entertained for a moment the province of the court is solely to decide the rights of individuals not to inquire how the executive or executive officers perform duties in which they have a 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 on the payment of 10 cents 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 borrow 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 pending on executive discretion but on particular acts of congress and the general principles of law if one of the heads of departments commits any illegal act under color of his office by which an individual sustains an injury it cannot be pretended that his office alone exempts him from being sued in the ordinary mode of proceeding and being compelled to obey the judgment of the law how then can his office exempt him from this particular mode of deciding on the legality of his conduct if the case be such a case as would were any other individual the party complained of authorized the process 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 the executive discretion is to be exercised if 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 this opinion seems not now for the first time to be taken up in this country it must be well recollected that in 1792 an act passed directing the secretary at war to place on the pension list 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 and the character of commissioners to be placed on the pension list was a legal question properly determinable on the courts although the act of placing such persons on the list was to be performed by the head of the department that this question might be properly settled 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 pension list was a legal question properly determinable on the courts 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 attorney general 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 foresaid after the passage of this act a mandamus was moved for to be directed to the secretary of war commanding him to place on the pension list a person stating himself to be on the report of the judges 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 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 the department directing him to perform an act 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 advanced is by no means 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 subjects the acts of congress are silent the difference is not considered as effecting 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 and entitled to it and cannot be more lawfully withheld by him than by another person it was at first doubted whether the action of detenue 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 detenue is for the thing itself or its value the value of a public office not to be sold is incapable of being as retained and the applicant has a right to the office itself or to nothing he will obtain the office by obtaining the commission or copy of it from the record this then is a plain case of 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 the act to establish the judicial courts of the United States is 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 end of quote 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 the constitution vests the whole judicial 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 in the distribution of this power it is declared that quote 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 end of quote it has 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 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 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 the clause 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 formed 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 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 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 defines 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 in operative that is an additional reason for rejecting such other construction and for adhering to the 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 has been stated at the bar that the appellate jurisdiction may be exercised in a variety of forms and that if it be 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 case 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 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 united states to issue rits of mandamus to the public officers appears not to be warranted by the constitution and it appears necessary to inquire 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 united states but happily not of an intricacy proportion 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 american fabric has been erected the exercise of this original right is a very great exertion or can it or ought it to be frequently repeated 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 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 united states is of the latter description 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 those 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 or are permitted and acts allowed are of equal obligation it is a proposition to 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 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 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 the theory and would seem at first view an absurdity to gross to be insisted on it shall however receive a more attentive consideration it shall however receive a more attentive consideration 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 an 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 conformally 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 very 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 a paramount law are reduced to the necessity of maintaining that courts must close their eyes on the constitution and see only the 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 not withstanding the express prohibition is in reality effectual it would be given 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 passed at pleasure that it thus reduces to nothing what we have deemed to the greatest improvement on political institutions a written constitution would of itself be sufficient in America where written constitutions have been viewed with so much reverence for rejecting the construction but the peculiar expressions of the constitution of the United States are traditional arguments in favor of its rejection the judicial power of the United States 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 open it at all what part of it are they forbidden to read or to obey there are many other parts of the constitution which serve to illustrate the subject it is declared that quote no tax or duty shall be laid on articles exported from any state end of quote suppose a duty on the export of cotton of tobacco or a flower and a suit instituted to recover it ought judgment to be rendered in such a case ought the judges to close their eyes on the constitution and only see the law the constitution declares that quote no bill of attainder or expost facto law shall be passed end of quote if however such a bill should be passed and a person should be prosecuted under it must the court condemn to death those victims whom the constitution endeavors to preserve quote no person quote says the constitution quote shall be convicted of treason unless on the testimony of two witnesses to the same overt act or on confession in open court end of quote here the language of the constitution is addressed especially to the courts it prescribes directly for them a rule of evidence to be departed from if the legislature should change that rule and declare one witness or a confession out of court sufficient for conviction must the constitutional principle yield to the legislative act from these and many other selections which might be made it is apparent 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 a special manner to their conduct in their official character how immoral to oppose it on them if they were to be used as the instruments and the knowing instruments for violating what they swear to support the oath of office too imposed by the legislature is completely demonstrative of the legislative opinion on this subject it is in these words quote why does a judge swear to discharge his duties agreeably to the constitution of the united states if that constitution forms nor rule for his government if it is closed upon him if it is not if it is not if it is not if it is not if it is not if it is not if it is not if it is not if it is not 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 this 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 united states 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 united states 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 the rule must be discharged end of section 2 section 3 of a collection of supreme court opinions by the united states supreme court this is a LibriVox recording all LibriVox recordings are in the public domain for more information or to volunteer please visit LibriVox.org recording by Colleen McMahon Laidlaw v. Oregon 15 U.S. 2 178 178 15 March 1817 please note this is a reading of the opinion of the court only this reading does not include the syllabus or any concurring or dissenting opinions for ease of listening this reading omits legal citations found within the text of the court's opinion Mr. Chief Justice Marshall delivered the opinion of the court the question in this case is whether the intelligence of extrinsic circumstances which might influence the price of the commodity and which was exclusively within the knowledge of the Vendee ought to have been communicated by him to the vendor the court is of opinion that he was not bound to communicate it it would be difficult to circumscribe the contrary doctrine within proper limits where the means of intelligence are equally accessible to both parties but at the same time each party must take care not to say or do anything tending to impose upon the other the court thinks that the absolute direction of the judge was erroneous and that the question whether any imposition was practiced by the Vendee upon the vendor ought to have been submitted to the jury for these reasons the judgment must be reversed and the cause remanded to the district court of Louisiana with directions to award a Venere Facius De Novo Venere De Novo awarded End of section 3 Recording by Colleen McMahon Section 4 of A Collection of Supreme Court Opinions by the United States Supreme Court This is the LibriVox Recording All LibriVox recordings are in the public domain for more information or to volunteer please visit LibriVox.org Recording by Florence Short The Antelope 23 U.S. 10 United March 15 1825 Please note This is a reading of the opinion of the court only This reading does not include the syllabus of any concurring or dissenting opinions For ease of listening this reading omits legal citations found within the text of the court's opinion Mr. Chief Justice Marshall delivered the opinion of the court and after stating the case proceeded as follows In prosecuting this appeal the United States assert no property in themselves They appear in the character of guardians or next friends of these Africans who are brought without any act of their own into the bosom of our country insist on their right to freedom and submit their claim to the laws of the land into the tribunals of the nation the consuls of Spain and Portugal demand these Africans slaves who have in the regular course a legitimate commerce been acquired as property by the subjects of their respective sovereigns and claim their restitution under the laws of the United States In examining claims of this momentous importance claims in which the sacred rights of liberty and of property come in conflict with each other which have drawn from the bar a degree of talent and of eloquence worthy of the questions that have been discussed this court must not yield to feelings which might seduce it from the path of duty and must obey the mandate of the law that the course of opinion on the slave trade should be unsettled or to excite no surprise the Christian and civilized nations of the world with whom we have most intercourse have all been engaged in it However abhorrent this traffic may be to a mind whose original feelings are not blunted by familiarity with the practice it has been sanctioned in modern times by the laws of all nations who possess distant colonies each of whom has engaged in it as a common commercial business which no other could rightfully interrupt it has claimed all the sanction which could be derived from long usage and general acquiescence that trade could not be considered as contrary to the law of nations which was authorized and protected by the laws of all commercial nations the right to carry on which was claimed by each and allowed by each the course of unexamined opinion which was founded on this inveterate usage received its first check in America and as soon as these states acquired the right of self-government the traffic was forbidden by most of them in the beginning of this century several humane and enlightened individuals of Great Britain devoted themselves to the cause of the Africans and by frequent appeals to the nation in which the enormity of this commerce was unveiled and exposed to the public eye the general sentiment was at length roused against it and the feelings of justice and humanity regaining their long lost ascendancy prevailed so far in the British Parliament as to obtain an act for this abolition the utmost efforts of the British Government as well as of that of the United States have since been assiduously employed in its suppression it has been denounced by both in terms of great severity and those concerned in it are subjected to the heaviest penalties which law can inflict in addition to these measures operating on their own people they have used all their influence to bring other nations into the same system and to interdict this trade by the consent of all public sentiment has in both countries kept pace with the measures of government and the opinion is extensively if not universally entertained that this unnatural traffic ought to be suppressed while its illegality is asserted by some governments but not admitted by all while the detestation in which it is held is growing and even those nations who tolerate it in fact almost disavow their own conduct and rather connive at then legalize the acts of their subjects it is not wonderful that public feelings should march somewhat in advance of strict law and that opposite opinions should be entertained on the precise cases in which our own laws may control and limit the practice of others indeed we ought not to be surprised if on this novel series of cases even courts of justice should in some instances have carried the principle of suppression farther than a more deliberate consideration of the subject would justify the amidi which was an American vessel employed in the African trade was captured by a British cruiser and condemned in the vice admiralty court of Tortola an appeal was prayed and Sir William Grant in delivering the opinion of the court said that the trade being then declared unjust and unlawful by Great Britain quote a claimant could have no right upon principles of universal law to claim restitution in a prize court of human beings carried as his slaves he must show some right that has been violated by the capture some property of which he has been dispossessed and to which he ought to be restored in this case the laws of the claimants country allow of no right of property such as he claims there can therefore be no right of restitution the consequence is that the judgment must be affirmed end of quote the fortune was condemned on the authority of Amity and the same principle was again affirmed the Diana was a Swedish vessel captured with a cargo of slaves by a British cruiser and condemned in the court of vice admiralty at Sierra Leone this sentence was reversed on appeal and Sir William Scott in pronouncing the sentence of reversal said quote the condemnation also took place on a principle which this court cannot in any way recognize in as much as the sentence affirms that the slave trade from motives of humanity have been abolished by most civilized nations and is not at the present time legally authorized by any end of quote this appears to me to be an assertion by no means sustainable the ship and cargo were restored on the principle that the trade was decreed the principle common to these cases is that the legality of the capture of a vessel engaged in the slave trade depends on the law of the country to which the vessel belongs if that law gives its sanction to the trade restitution will be decreed if that law prohibits it the vessel and cargo will be condemned as good prize this old subject came on afterwards to be considered in the Louie opinion of Sir William Scott in that case demonstrates the attention he had bestowed upon it and gives full assurance that it may be considered as settling the law in the British courts of admiralty as far as it goes the Louie was a French vessel captured on a slaving voyage before she had purchased any slaves brought into Sierra Leone and condemned by the vice admiralty court at that place on an appeal to the court of admiralty in England the sentence was reversed in the very full and elaborate opinion given on this case Sir William Scott in explicit terms lays down the broad principle that the right of search is confined to a state of war it is a right strictly belligerent in its character which can never be exercised by a nation at peace except against professed pirates the enemies of the human race the act of trading in slaves however detestable was not he said quote the act of free booters enemies of the human race renouncing every country and ravishing every country in its coasts and vessels indiscriminately and a quote it was not piracy he also said that this trade could not be pronounced contrary to the law of nations a court in the administration of law cannot attribute criminality to an act where the law imputes none it was looked at the legal standard of morality and upon a question of this nature that standard must be found in the law of nations as fixed and evidenced by general and ancient and admitted practice by treaties and by the general tenor of the laws and ordinances in the formal transactions of civilized states and looking to those authorities he found a difficulty in maintaining that the transaction was legally criminal end of quote the right of visitation and search being strictly a belligerent right and the slave trade being neither piratical nor contrary to the law of nations the principle is asserted and maintained with great strength of reasoning that it cannot be exercised by the rules of a foreign power unless permitted by treaty France had refused to assent to the insertion of such an article in their treaty with Great Britain and consequently the right could not be exercised on the high seas by a British cruiser on a French vessel quote it is pressed as a difficulty says the judge what is to be done if a French ship laden with slaves is brought in hesitation restore the possession which has been unlawfully divested rescind the illegal act done by your own subject and leave the foreigner to the justice of his own country end of quote this reasoning goes far in support of the proposition that in the British courts of admiralty the vessel even of a nation which had forbidden the slave trade but had not conceded the right must, if wrongfully brought in be restored to the original owner but the judge goes farther and shows that no evidence existed to prove that France had by law forbidden that trade consequently for this reason as well as for that previously assigned the sentence of condemnation was reversed and restitution awarded in the United States different opinions have been entertained different circuits and districts and the subject is now for the first time before this court the question whether the slave trade is prohibited by the law of nations has been seriously propounded and both the affirmative and negative of the proposition have been maintained with equal earnestness that it is contrary to the law of nature will scarcely be denied that every man has a natural right to the fruits of his own labor is generally admitted and that no other person can rightfully deprive him of those fruits and appropriate them against his will seems to be the necessary result of this admission but from the earliest times war has existed and war confers rights in which all have acquiesced among the most enlightened nations of antiquity one of these was that the victor might enslave the vanquished this which was the usage of all could not be pronounced repugnant to the law of nations which is certainly to be tried by the test of neural usage that which has received the assent of all must be the law of all slavery then has its origin in force but as the world has agreed that it is a legitimate result of force the state of things which is thus produced by general consent cannot be pronounced unlawful throughout Christendom this harsh rule has been exploded and war is no longer considered as giving a right to enslave captives but this triumph of humanity has not been universal the parties to the modern law of nations do not propagate their principles by force and Africa has not yet adopted them throughout the whole extent of that immense continent so far as we know its history it is still the law of nations that prisoners are slaves can those who have themselves renounced this law be permitted to participate in its effects by purchasing the beings who are its victims whatever might be the answer of a moralist to this question a jurist must search for its legal solution in those principles of action which are sanctioned by the usages the national acts and the general assent of that portion of the world of which he considers himself as a part and to whose law the appeal is made if we resort to this standard as the test of international law the question as has already been observed is decided in favor of the legality of the trade both Europe and America embarked in it and for nearly two centuries it was carried on without opposition and without censure a jurist could not say that a practice thus supported was illegal and that those engaged in it might be punished either personally or by deprivation of property in this commerce the sanctioned by universal assent every nation had an equal right to engage how is this right to be lost each may renounce it for its own people but can this renunciation no principle of general law is more universally acknowledged than the perfect equality of nations Russia and Geneva have equal rights it results from this equality that no one can rightfully impose a rule on another each legislates for itself but its legislation can operate on itself alone a right then which is vested in all by the consent of all can be divested only by consent and this trade in which all have participated must remain lawful to those who cannot be induced to relinquish it as no nation can prescribe a rule for others none can make a law of nations and this traffic remains lawful to those whose governments have not forbidden it if it is consistent with a law of nations it cannot in itself be piracy it can be made so only by statute and the obligation of the statute cannot transcend the legislative power of the state which may enact it if it be neither repugnant to the law of nations nor piracy it is almost superfluous to say in this court that the right of bringing in for adjudication in time of peace even where the vessel belongs to a nation which has prohibited the trade cannot exist the courts of no country execute the penal laws of another and the course of the American government on the subject of visitation and surge would decide any case in which that right had been exercised by an American cruiser on the vessel of a foreign nation not violating our municipal laws against the captors it follows that a foreign vessel engaged in the African slave trade captured on the high seas in time of peace by an American cruiser and brought in for adjudication would be restored the general question being disposed of it remains to examine the circumstances of the particular case the antelope a vessel unquestionably belonging to Spanish subjects was captured while receiving a cargo of Africans on the coast of Africa by the Araganta which was manned in Baltimore and is said to have been then under the flag of the Oriental Republic some other vessels said to be Portuguese engaged in the same traffic were previously plundered and the slaves taken from them as well as from another vessel then in the same port were put on board the antelope of which the vessel Araganta took possession landed her crew and put on board a prize master both vessels proceeded to the coast of Brazil where the Araganta was wrecked and her captain and crew either lost or made prisoners the antelope whose name was changed to the general Ramirez after an ineffectual attempt to sell the Africans on board at Suriname arrived off the coast of Florida and was hovering on that coast near that of the United States for several days supposing her to be a pirate or a vessel wishing to smuggle slaves into the United States Captain Jackson of the Revenue Cutter Dallas went in quest of her and finding her laden with slaves commanded by officers who were citizens of the United States with a crew who spoke English brought her in for adjudication she was libeled by the vice consuls of Spain and Portugal each of whom claim that portion of the slaves which were conjectured to belong to the subjects of their respective sovereigns which claims are opposed by the United States on behalf of the Africans in the argument the question on whom the onus probandi is imposed has been considered as of great importance and the testimony adused by the parties has been critically examined it is contented that the antelope having been wrongfully dispossessed of her slaves by American citizens and being now together with her cargo in the power of the United States ought to be restored without further inquiry to those out of whose possession she was thus wrongfully taken no proof of property it is said ought to be required possession is in such a case evidence of property conceding this as a general proposition the Council of the United States deny its application to this case a distinction is taken between men who are generally free in goods which are always property although with respect to the last possession may constitute the only proof of property which is demandable something more is necessary where men are claimed some proof should be exhibited that the possession was legally acquired a distinction has been also drawn between Africans unlawfully taken from the subjects of a foreign power by persons acting under the authority of the United States and Africans first captured by a belligerent privateer or a pirate and then brought rightfully into the United States under a reasonable apprehension that a violation of their laws was intended being rightfully in the possession of an American court that court it is contended must be governed by the laws of its own country and the condition of these Africans must depend on the laws of the United States not on the laws of Spain and Portugal had the arrogant have been a regularly commissioned cruiser which had committed no infraction of the neutrality of the United States her capture of the envelope must have been considered as lawful and no question could have arisen respecting the rights of the original claimants the question of prize or no prize belongs solely to the courts of the captor but having violated the neutrality of the United States and having entered our ports not voluntarily but under coercion some difficulty exists respecting the extent of the obligation to restore on the more proof of former possession which is imposed on this government if as is charged in the labels of both the consuls as well as of the United States she was a pirate hovering on the coast with intent to introduce slaves in violation of the laws of the United States our treaty requires that property rescued from pirates shall be restored to the Spanish owner on his making proof of his property whether the general Ramirez originally the antelope is to be considered as the prize of a commissioned belligerent ship of war unlawfully equipped in the United States or as a pirate it seems proper to make some inquiry into the title of the claimants in support of the Spanish claim testimony is produced showing the documents under which the antelope sailed from the Havana on the voyage on which she was captured that she was owned by a Spanish house of trade in that place that she was employed in the business of purchasing slaves and had purchased and taken on board a considerable number when she was seized as prize by the Arroganta whether on this proof Africans brought into the United States under the various circumstances belonging to this case ought to be restored or not is a question on which much difficulty has been felt is unnecessary to state the reasons in support of the affirmative or negative answer to it because the court is divided on it and consequently no principal is settled so much of the decree of the circuit court as directs restitution to the Spanish claimant of the Africans found on board the antelope when she was captured by the Arroganta is affirmed there is some difficulty in ascertaining their number the libel claims one hundred and fifty is belonging to Spanish subjects and charges that one hundred or more of these were on board the antelope Grandona and Semenis Spanish officers of the antelope before her capture both the pose positively to the number of one hundred and sixty six some deduction however is to be made from the weight of Grandona's testimony because he says in one of his depositions that he did not displays on the last day when some were brought on board and adds that he had lost his papers and spoke from memory and from the information he had received from others of the crew after his arrival in the Havana such of the crew as were examined concur with Grandona and Semenis as two numbers the depositions of the Spanish witnesses on this point are opposed by those of John Smith the captain of the general Ramirez one of the crew of the arrogant who was transferred to the antelope John Smith deposes that ninety three Africans were found on board the antelope when captured which he believes to have been Spanish property he also says that one hundred and eighty three were taken out of Portuguese vessels William Brunton deposes that more slaves were taken out of the Portuguese ship than were in any other and that ninety odd were represented by the crew to have been on board the antelope when she was captured if to the positive testimony of these witnesses we add the inference to be drawn from the statement of the libel and the improbability that so large a number of Africans as are claimed could have been procured under the circumstances in which the antelope was placed between the thirteenth when she was liberated by the first pirate who seized her and the twenty third when she was finally captured we are rather deposed to think the weight of testimony is in favor of the smaller number but supposing perfect equality in this respect the decision ought we think to be against the claimant whatever doubts may attend the question whether the Spanish claimants are entitled to restitution of all the Africans taken out of their possession with the antelope we cannot doubt the propriety of demanding ample proof of the extent of that possession every legal principle which requires the plaintiff to prove his claim in any case applies with full force to this point and no counter bailing consideration exists the onus proboundy as to the number of Africans which were on board when the vessel was captured unquestionably lies on the Spanish libelance their proof is not satisfactory beyond ninety three the individuals who compose this number must be designated to the satisfaction of the circuit court we proceed next to consider the libel of the vice consul of Portugal it claims one hundred and thirty slaves or more all of whom as a libelant is informed and believes are the property of a subject of his most faithful majesty and although the rightful owners of such slaves be not at this time individually and certainly known to the libelant he hopes and expects soon to discover them end of quote John Smith and William Brunton whose depositions have already been noticed both state that several Africans were taken out of Portuguese vessels but neither of them state the means by which they ascertained the national character of the vessels they had plundered it does not appear that their opinions were founded on any other fact than the flag under which the vessels sailed Grandona also states the plunder of a Portuguese vessel lying in the same port and engaged in the same traffic with the antelope when she was captured but his testimony is entirely destitute of all those circumstances which would enable us to say that he had any knowledge of the real character of the vessel other than was derived from her flag the cause furnishes no testimony of any description other than these general declarations that the proprietors of the Africans now claimed by the vice consul of Portugal were the subjects of his king nor is there any allusion to the individuals to whom they belong these vessels were plundered in March 1820 and the libel was filed in August of the same year from that time to this a period of more than five years no subject of the crown of Portugal has appeared to assert his title to this property no individual has been designated as its probable owner of attention to a subject of so much real interest this total disregard of a valuable property is so contrary to the common course of human action as to justify serious suspicion that the real owner dares not avow himself that Americans and others who cannot use the flag of their own nation carry on this criminal and inhuman traffic under the flags of other countries of such general notoriety that courts of admiralty may act upon it it cannot be necessary to take particular depositions to prove a fact which is a matter of general and public history this long and otherwise unaccountable absence of any Portuguese claimant furnishes irresistible testimony that no such claimant exists and that the real owner belongs to some other nation and feels the necessity of concealment an attempt has been made to supply this defect of testimony by adusing a letter from the secretary to whose department the foreign relations of Portugal are supposed to be entrusted suggesting the means of transporting to Portugal those slaves which may be in the possession of the vice consul as the property of his fellow subjects allow to this document the effect which can be claimed for it and it can do no more than supply the want of an express power from the owners of the slaves to receive them it cannot be considered as ascertaining the owners or as proving their property the difficulty them is not diminished by this paper these Africans still remain unclaimed by the owner or by any person professing to know the owner they are rightfully taken from American citizens and placed in possession of the law no property whatever in them is shown it is said that possession in the case of this description is equivalent to property could this be conceded who had the possession from whom were they taken by the arrogant it is not alleged that they are the property of the crown but of some individual who is that individual no such person is shown to exist and his existence after such a lapse of time cannot be presumed the libel which claims them for persons entirely unknown alleges a state of things which is prima facie evidence of an intent to violate the laws of the United States by the commission of an act which according to those laws entitles these men to freedom nothing what ever can interpose to arrest the course of the law but the title of the real proprietor no such title appears and every presumption is against its existence we think then that all the Africans now in possession of the marshal for the district of Georgia and under the control of the circuit court of the United States for that district which were brought in with the antelope otherwise called the general Ramirez except those which may be designated as the property of the Spanish claimants ought to be delivered up to the United States to be disposed of according to law so much of the sentence of the circuit court as is contrary to this opinion is to be reversed and the residue affirmed decree this cause came on to be heard etc on consideration whereof this court is of opinion in so much of the sentence and decree of the said circuit court as directs the restitution to the Spanish claimant of the Africans in the proceedings mentioned in the ratio which 166 bears to the whole number of those which remained alive at the time of pronouncing the said decree and also in so much thereof as directs restitution to the Portuguese claimant and that so much of the said decree ought to be reversed and it is hereby reversed and annulled in this court preceding to give such decree as the said circuit court ought to have given doth direct and order that the restitution to be made to the Spanish claimant shall be according to the ratio which 93 instead of 166 bears to the whole number comprehending as well those originally on board the antelope as those which were put on board that vessel by the captain of the arroganta after making the apportionment according to this ratio and deducting from the number the rateable loss which must fall on the slaves to which the Spanish claimants were originally entitled the residue of the said 93 are to be delivered to the Spanish claimant on the terms in the said decree mentioned and all the remaining Africans are to be delivered to the United States to be disposed of according to law and the said decree of the said circuit court is in all things not contrary to this decree affirmed End of section 4