The American case which is usually cited as establishing once for all this rule is Marbury v. Madison.34 That case, however, was a contribution to the law of the subject, not as determining the principle itself, but as declaring its applicability to the heads of the great departments of the Federal Government.35 In this case the court had been asked to issue a mandamus directing the Secret tary of State to deliver a certain commission to office which had been approved by the Senate and signed by the President.
In his opinion, Marshall, after repudiating any claim on the part of the court to interfere with the President or other executive agents in the exercise of their political functions, or those discretionary in character, said: "But when the legislature proceeds to impose on that officer other duties; when he is directed peremptorily 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. . . . 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 of his country for a remedy. . . . The question whether a right has vested or not, is, in its nature judicial, and must be tried by the judicial authority."The chief justice then goes on to consider whether the head of one of the great departments of government is so intimately connected with the President as to place him outside of the reach of the court's order, and says: "If one of the heads of departments commits any illegal act, under color of 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 [mandamus] 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, authorize 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 executive discretion is to be exercised, in which 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 grounds the courts of the country are further excused from 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."
34 l Cr. 137; 2 L. ed. 60.
35 Even as to this point it has been argued that the opinion is obiter inasmuch as the court finally declared that it was without jurisdiction to entertain the suit as an original suit, in which form it had been brought. Mandamus will not lie to compel the Secretary of the Treasury to pay an official salary. United States v. Guthrie, 17 How. 284; 15 L. ed. 102.