What did Marbury do next?

[Marty Lederman]

Actually, the Court holds that the signing and the dealing of the commission, which had already occurred, created the legal right for Marbury to hold the office and exercise its powers, irrespective of delivery of the commission:
  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. . . .  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.. . . .  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 this country. . . .  It is then the opinion of the court, . . . That by signing 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 thereto by the secretary of state, is conclusive testimony of the verity of the signature, and of the completion of the appointment; and that the appointment conferred on him a legal right to the office for the space of five years.
OK, so if transmittal of the commission is of no legal moment, why does Marbury have a "right" to its delivery?  ("having this legal title to the office, he has a consequent right to the commission; a refusal to deliver which, is a plain violation of that right, for which the laws of his country afford him a remedy . . . . 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.").

Marshall never really explains this, except to say at an earlier point in the opinion "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."

In other words, the commission is basically of little use other than as a form of personal "property" -- sort of like my college diploma (which, uh, I'm not sure I did ever actually collect, now that I think about it . . . ).  Of course, it is, as Marshall says, an "evidence" of office -- if anyone were to challenge Marbury's bona fides as a Justice of the Peace, he could waive around his commission, or point to it hanging up on the wall.  So it's not completely valueless.  But ironically enough, after the decision in Marbury, it becomes virtually worthless in Marbury's own case, even for evidentiary purposes, since Marbury can simply point to 1 Cranch 137 as proof of his appointment!

  ----- Original Message ----- 
  From: Cohen,David 
  To: guayiya ; Edward A Hartnett 
  Cc: Kurt.Lash at lls.edu ; conlawprof at lists.ucla.edu ; conlawprof-bounces at lists.ucla.edu 
  Sent: Saturday, March 10, 2007 3:06 PM
  Subject: RE: What did Marbury do next?


  Not exactly - the Court held that he had a legal right to the commission, but didn't say anything about the judgeship.  Presumably, even though delivery wasn't required to have a right to the commission, the commission was still required to have a right to the judgeship.

   

  David S. Cohen

  Associate Professor of Law

  Drexel University College of Law

  (215) 571-4714


------------------------------------------------------------------------------

  From: conlawprof-bounces at lists.ucla.edu [mailto:conlawprof-bounces at lists.ucla.edu] On Behalf Of guayiya
  Sent: Saturday, March 10, 2007 1:09 PM
  To: Edward A Hartnett
  Cc: Kurt.Lash at lls.edu; conlawprof-bounces at lists.ucla.edu; conlawprof at lists.ucla.edu
  Subject: Re: What did Marbury do next?

   

  But the Court held that the commission had been signed and sealed, and that delivery was not a prerequisite to its effectiveness.  It would follow that Marbury need not have the paper in hand.

  Daniel Hoffman


-------------- next part --------------
An HTML attachment was scrubbed...
URL: http://lists.ucla.edu/pipermail/conlawprof/attachments/20070310/bda66958/attachment.htm