马伯里诉麦迪逊案PPT英语演讲用
马布里诉麦迪逊案
马伯里诉麦迪逊案(marbury v. madison)发生于1803年，正处于联邦党与共和党激烈争权的年代。
1800年7月，联邦党众议员约翰·马歇尔(John Marshall)，在其任期届满后出任亚当斯总统的国务卿，以协助他竞选连任。
在1801年的总统大选中，共和党候选人杰弗逊当选总统。
联邦党遭到惨败，同时失去总统宝座和国会控制权，在三权分立的政治格局中，联邦党人损失两项权力，他们只好将剩余的希望完全寄托在司法部门以挽败局。
1801年1月20日，即将离任的亚当斯总统任命马歇尔出任联邦最高法院首席大法官就是联邦党人的挣扎之举。
1月27日，经参议院同意后，马歇尔于2月4日正式到职赴任。
但是马歇尔并末辞去国务卿职务，只是任职不领薪直到1801年3月3日亚当斯总统任期届满。
联邦党还乘着总统及国会任期终了前作出一连串的政治安排，以图共和党主政后得以退守法院以保存联邦党的实力。
其中一项就是，1801年3月2日，亚当斯任命了华盛顿郡23名以及亚历山大郡19名治安法官。
这些法官在3月3日午夜以前经参议院同意、总统签署、马歇尔国务卿盖印后生效，他们即是所谓的“子夜治安法官”(midnight justias of pe ace)。
这些法官中，有些人的任命状在3月3日晚上已由马歇尔的兄弟詹姆士送达，而另外一些人的任命状仓促之间末及发出。
1801年3月4日对联邦党人这些做法积怨已久的新上任总统杰弗逊得知有17份治安法官的任命状来不及送达，便立即指令国务卿麦迪逊拒绝发送任命状，并将这些任命状“如同办公室的废纸、垃圾一样处理了”。
与此同时，共和党人控制的新国会也立即引入法案并于1802年3月8日成功地废除了《巡回法院法案》，但没有撤销有关治安法官的《哥伦比亚特区组织法》。
为了防止马歇尔控制下的联邦最高法院对国会上述行为的挑战，新国会还进一步以法令形式迫使最高法院从1801年12月~1803年2月关闭了长达14个月之久。
十个美国法律案例(3篇)
第1篇美国法律体系以其独特性和复杂性而闻名，许多法律案例不仅对当时的法律实践产生了深远影响，而且对后世的法律发展也具有指导意义。
以下列举十个具有代表性的美国法律案例，旨在展现美国法律的发展脉络和司法理念。
1. 案例一：马伯里诉麦迪逊案（Marbury v. Madison, 1803）这一案例是美国司法审查制度的基石。
马伯里曾任美国国务卿，在他离任时，约翰·亚当斯总统任命他为联邦法院法官。
然而，由于国会未能及时批准这一任命，新总统托马斯·杰斐逊上任后，马伯里请求联邦最高法院发出命令状，要求新任国务卿詹姆斯·麦迪逊履行任命。
最高法院首席大法官约翰·马歇尔判决，由于国会通过的《1789年司法条例》赋予最高法院发出命令状的权力，因此马伯里有权获得这一命令状。
然而，马歇尔大法官同时指出，这一判决可能违反了宪法，因此他否决了命令状的颁发。
这一判决确立了司法审查制度，即最高法院有权宣布国会或总统的行为违宪。
2. 案例二：斯科特诉桑德福特案（Dred Scott v. Sandford, 1857）这一案例是美国历史上最具争议的法律案件之一。
斯科特是一位非洲裔奴隶，他声称自己已获得自由，但他的主人将其带回了居住在密苏里州（当时允许奴隶制）的住所。
斯科特因此起诉桑德福特，要求获得自由。
最高法院以5比4的票数判决斯科特无权起诉，因为他是奴隶，不具有法律主体资格。
此外，法院还宣布联邦政府无权禁止奴隶制在联邦领土上的存在。
这一判决加剧了南北双方的矛盾，最终导致了美国内战的爆发。
3. 案例三：布朗诉教育委员会案（Brown v. Board of Education, 1954）这一案例是美国民权运动的重要里程碑。
布朗是一位黑人学生，她因为种族歧视而无法进入当地的白人学校就读。
她向法院提起诉讼，要求消除学校种族隔离。
最高法院判决，根据“隔离即不平等”的原则，学校种族隔离违宪。
这一判决为美国民权运动注入了新的动力，推动了美国社会对种族平等的追求。
著名的Marbury v. Madison案英文版
Marbury v. Madison (1803)Just as George Washington helped shape the actual form that the executive branch would take, so the third chief justice, John Marshall, shaped the role that the courts would play.Under the administrations of Washington and his successor, John Adams, only members of the ruling Federalist Party were appointed to the bench, and under the terms of the Constitution, they held office for life during "good behavior." Thus, when the opposing Republicans won the election of 1800, the Jeffersonians found that while they controlled the presidency and Congress, the Federalists still dominated the judiciary. One of the first acts of the new administration was to repeal the Judiciary Act of 1800, which had created a number of new judgeships. Although President Adams had attempted to fill the vacancies prior to the end of his term, a number of commissions had not been delivered, and one of the appointees, William Marbury, sued Secretary of State James Madison to force him to deliver his commission as a justice of the peace.The new chief justice, John Marshall, understood that if the Court awarded Marbury a writ of mandamus (an order to force Madison to deliver the commission) the Jefferson administration would ignore it, and thus significantly weaken the authority of the courts. On the other hand, if the Court denied the writ, it might well appear that the justices had acted out of fear. Either case would be a denial of the basic principle of the supremacy of the law.Marshall's decision in this case has been hailed as a judicial tour de force. In essence, he declared that Madison should have delivered the commission to Marbury, but then held that the section of the Judiciary Act of 1789 that gave the Supreme Court the power to issue writs of mandamus exceeded the authority allotted the Court under Article III of the Constitution, and was therefore null and void. Thus he was able to chastise the Jeffersonians and yet not create a situation in which a court order would be flouted.The critical importance of Marbury is the assumption of several powers by the Supreme Court. One was the authority to declare acts of Congress, and by implication acts of the president, unconstitutional if they exceeded the powers granted by the Constitution. But even more important, the Court became the arbiter of the Constitution, the final authority on what the document meant. As such, the Supreme Court became in fact as well as in theory an equal partner in government, and it has played that role ever since.The Court would not declare another act of Congress unconstitutional until 1857, and it has used that power sparingly. But through its role as arbiter of the Constitution, it has, especially in the twentieth century, been the chief agency for the expansion of individual rights. (See Part V.)For further reading: George L. Haskins and Herbert A. Johnson, Foundations of Power: John Marshall, 1801-1815 (1981); Donald O. Dewey, Marshall v. Jefferson: The Political Background of Marbury v. Madison (1970).Marbury v. MadisonChief 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 a mandamus 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 a mandamus. 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. . . .In the order in which the court has viewed this subject, the following questions have been considered and decided:1st. Has the applicant a right to the commission he demands?2d. If he has a right, and that right has been violated, do the laws of his country afford him a remedy?3d. If they do afford him a remedy, is it a mandamus issuing from this court?The first object of inquiry is -- 1st. Has the applicant a right to the commission he demands? . . .It [is] 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 has been affixed to it by the secretary of state. . . .To withhold his commission, therefore, is an act deemed by the court not warranted by law, but violative of a vested legal right.This brings us to the second inquiry; which is 2dly. 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 he receives an injury. One of the first duties of government is to afford that protection. [The] government of the United States has been emphatically termed a government of laws, and not of men. It will certainly cease to deserve this high appellation, if the laws furnish no remedy for the violation of a vested legal right. . . .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 manner in which 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. . . .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.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, or rather 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 rightto resort to the laws of his country for a remedy. . . .It is, then, the opinion of the Court [that Marbury has a] 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.It remains to be enquired whether,3dly. He is entitled to the remedy for which he applies. This depends on -- 1st. The nature of the writ applied for, and,2dly. The power of this court.1st. The nature of the writ. . . .This, then, is a plain case for a mandamus, either to deliver the commission, or a copy of it from the record; and it only remains to be enquired,Whether it can issue from this court.The act to establish the judicial courts of the United States authorizes 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."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 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 "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."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. If congress 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 form 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 must be given 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 a 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, divides 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 inoperative, that is an additional reason for rejecting such other construction, and for adhering to their 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 cause. 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 a 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 writs of mandamus to public officers, appears not to be warranted by the constitution; and it becomes necessary to enquire 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 proportioned 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 govern-ment, 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; nor can it, nor ought it, to be frequently repeated. The 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 and 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 powers of the legislature are defined andlimited; 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 these 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, and if acts prohibited and acts allowed, are of equal obligation. It is a proposition too 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, and, 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, conse-quently, 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, does it, notwithstanding its invalidity, bind the courts, and oblige them to give it effect? 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 theory; and would seem, at first view, an absurdity too gross to be insisted on. 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 in 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 conformably 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 the 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, notwithstanding the express prohibition, is in reality effectual. It would be giving 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 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 furnish additional arguments in favour 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 can open it at all, what part of it are they forbidden to read or to oey?There are many other parts of the constitution which serve to illustrate this subject.It is declared that "no tax or duty shall be laid on articles exported from any state." Suppose a duty on the export of cotton, of tobacco, or of flour; 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 "no bill of attainder or ex post facto law shall be passed." 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?"No person," says the constitution, "shall be convicted of treason unless on the testimony of two witnesses to the same overt act, or on confession in open court."Here the language of the constitution is addressed especially to the courts. It prescribes, directly for them, a rule of evidence not 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 an especial manner, to their conduct in their official character. How immoral to impose 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: "I do solemnly swear that I will administer justice without respect to persons, and do equal right to the poor and to the rich; and that I will faithfully and impartially discharge all the duties incumbent on me as _____, according to the best of my abilities and understanding, agreeably to the constitution, and laws of the United States." Why does a Judge swear to discharge his duties agreeably the constitution of the United States, if that constitution forms no rule for his government? 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, theconstitution 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.Source: 1 Cranch 137 (1803).。
马伯里诉麦迪逊案ppt课件
但马歇尔指出，《司法法》第十三款是与宪法相冲
突的，它实际上是非法地扩大了最高法院的权限。因此， 马歇尔正式宣布，1789年《司法法》第十三款因违宪而 被取消。这是最高法院历史上第一次宣布联邦法律违宪。
3、马歇尔并不把事做绝。他事实上驳回了马伯里关 于发布执行令的请求，给予总统国务卿一个技术上的小 胜，一个台阶。从而避免了他必败无疑的宪法危机。
4、对国会方面，马歇尔废除的是一个无关大局的法 令条款。而且是以放弃最高法院自身初审权的高姿态出 现，让国会的政敌抓不住把柄。
二百年后的今天，在美国最高法院的院史博物馆 中，唯有马歇尔大法官一人享有全身铜像的特殊 待遇。
从表面上看，联邦党人马伯里没当成法官，麦迪逊
也没送出扣押的十七份法官委任令，马歇尔似乎输了这 个官司。但实际上，马歇尔是此案真正的大赢家。
马歇尔的判决——项庄舞剑，意在佩公
1、通过谴责国务卿违法，从理念上伸张了正义，而 实质上确立了最高法院监督行政分支的宪政地位。
2、通过判决国会通过的1789司法法13条违宪作废， 确立了最高法院对国会立法的的违宪审查权。
杰弗逊
马歇尔
人物
1800年6月6日至1801年3月4日出 任美国国务卿，1801年至1835 年担任美国最高法院第4任首 席大法官，在任期内曾做出著 名的马伯里诉麦迪逊案的判决， 创立了许多司法惯例。联邦党 人。
党派斗主地位 主张加强联邦政府的权
马歇尔的判决——自相矛盾的判决
1、马歇尔断案的法律根据，是最高 法院对此案没有初审权。既然如此，他 根本就不应做出任何判决，而是应当依 法把案子打回到有管辖权的联邦地方法 院。
如何阅读英文案例HowtoReadEnglishCasesandCitations演讲范文-演讲致辞模板
如何阅读英文案例HowtoReadEnglishCasesandCitations演讲范文（大连外国语学院应用英语学院屈文生)第一部分案例通常由下列几个部分组成。
一、案例名称（case name）；例如：marbury v. madison （马伯里诉麦迪逊）, v is short for versus.是“诉”的意思。
二、判决法院（court rendering the opinion）；例如：new jersey supreme court (新泽西最高法院)。
三、卷宗号；案号（citation）；例如：93 , 461 a. 2d 138 (1983)，这说明该案出自《新西汇编》第93卷，第324页，以及《大西洋汇编》第二辑第138页，该案判决于1983年。
此处，a 是atlantic reporter的缩写。
像这种指明两个或两个以上出处的卷宗号叫作：“平行卷宗号”，其英语表达为“parallel citation”，意思是“an additional reference to a case that has been reported in more than more reporter.”广义上卷宗号包括上述一、案例名称；二、判决法院。
四、主审法官姓名（justice wrote the opinion）。
五、判决书（opinion: stating the issue raised, describing the parties and facts, discussing the relevant law, and rendering judgment.）判决书是整个案例的主体部分，其中包括法律争议（issue）、双方当事人情况、事实经过、判决采用的相关法律以及判决结果。
判决书的阅读过程之中，要注意以下几点：1. 时态主审法官的意见用现在时态；前审法院的意见用过去时态。
2. 主审法官的意见是法院意见。
美国法律倒背如流的案例(3篇)
托马斯·杰斐逊，美国第三任总统，也是一位杰出的政治家、外交家、作家和律师。
在杰斐逊的一生中，他曾经面临过许多法律诉讼，其中最著名的当属他在1776年作为弗吉尼亚议会议员时，为一名被控叛国的男子进行辩护的案例。
这个案例不仅展示了杰斐逊的法律才能，更体现了他对美国法律的深刻理解和尊重。
背景：1776年，弗吉尼亚州发生了一起叛国案。
一名名叫约翰·巴特勒的男子被控在英军占领期间，为英军提供情报，背叛了美国。
巴特勒被控叛国罪，面临严重的刑罚。
杰斐逊作为弗吉尼亚议会议员，被任命为巴特勒的辩护律师。
辩护过程：在辩护过程中，杰斐逊运用了自己对美国法律的深刻理解，为巴特勒进行了有力的辩护。
以下是杰斐逊辩护词的几个关键点：1. 法律适用问题杰斐逊首先指出，当时的弗吉尼亚州并没有明确的法律规定叛国罪。
他认为，由于缺乏明确的法律依据，对巴特勒的指控是不成立的。
他引用了英国法律中的“无法律则无罪”原则，强调只有在有明确法律依据的情况下，才能对被告人进行审判。
2. 宪法原则杰斐逊进一步指出，美国宪法赋予了公民言论自由和出版自由的权利。
他认为，巴特勒的行为虽然可能被视为不道德，但并未违反宪法规定的自由权利。
因此，不能仅仅因为他的言论而将其定为叛国罪。
3. 实证问题杰斐逊还指出，对巴特勒的指控缺乏确凿的证据。
他认为，在缺乏证据的情况下，不能对被告人进行定罪。
他要求法庭对指控进行严格审查，确保证据的真实性和充分性。
4. 法律倒背如流在辩护过程中，杰斐逊展现出了对美国法律的深刻理解和熟练运用。
他不仅引用了当时的法律条文，还引用了英国法律和欧洲大陆的法律。
他的辩护词充满了法律术语和案例，使法庭上的法官和陪审团都对他的法律知识感到惊叹。
最终，杰斐逊的辩护取得了成功。
法庭采纳了他的观点，认为对巴特勒的指控缺乏法律依据和确凿证据，因此宣布巴特勒无罪。
案例分析：这个案例展示了杰斐逊作为一名律师的出色表现。
他不仅对美国法律有深刻的理解，还能将其灵活运用到具体的案件中。
【案例一】违宪审查的一般原理：马伯里诉麦迪逊案
【案例一】违宪审查：马伯里诉麦迪逊案(Marbury v.Madison, 5 U.S.[1 Cranch]137[1803]) 【1】事件概要在1800年的美国总统大选中，联邦党人遭到惨败，但即将卸任的联邦党人总统约翰·亚当斯利用仍然在职的机会任命了42名联邦党人担任哥伦比亚特区的治安法官。
不过时任亚当斯总统国务卿的约翰·马歇尔却没有把委任状全部发出。
当新总统托马斯·杰弗逊继任总统以后，他命令其国务卿詹姆士·麦迪逊不向其中的17人颁发委任状，其中包括威廉·马伯里的委任状。
马伯里决定提起诉讼。
他所依据的理由是1789年《司法法》第13条的规定，即，“最高法院……有权在法律制度和习惯授予的权限的范围之内……向在合众国任职的人员……发布法院的命令状”（命令状是法院签发的一种要求具有法律责任的官员履行职责的命令）。
马伯里通过他的律师向最高法院提出申诉，要求最高法院向国务卿麦迪逊发布一道命令状，命令他发放委任状。
但最高法院的发言人约翰·马歇尔（当时已经成为最高法院首席大法官）则认为，1789年《司法法》第13条与联邦宪法第3条第1款相抵触，因为宪法本身把最高法院的初审权限制在“涉及到大使、公使、领事以及以州为当事人的案件”。
由于马伯里不属于以上的任何一类，最高法院不愿意受理此案，尽管《司法法》第13条与宪法相抵触。
【判决内容】美国联邦最高法院在此案中主张：尽管马伯里的权利受到了侵害并应当得到法律救济，但是，联邦最高法院对这一属于政治性的问题却没有管辖权，并且最高法院认为，马伯里所依据的1789年的《司法法》的有关规定违宪无效，不能适用于本案。
据此，最高法院驳回了马伯里的诉讼请求。
联邦最高法院首席大法官马歇尔（J.Marshall）在马伯里诉麦迪逊一案中，首创联邦最高法院有违宪司法审查解释的权力。
马歇尔在判决中详细地阐述了联邦最高法院享有违宪司法审查解释权的理由一、马歇尔认为，美国国会的立法权是有限的，限于宪法列举为国会有立法权（美国宪法第1条第8款），而又未曾禁止国会行使立法权（第1条第9款）的事项。
Marbury v. Madison马伯里诉麦迪逊案
The political and legal background of Marbury v. MadisonAmerica‟s second president is John Adams, know n as the US Founding Fathers and federalist who strongly supports to strengthen the rights of the federal government. However, Thomas Jefferson (a Democratic Republican who held the opinion that it is the state and local government, rather than the federal government should have more authorities) defeated President Adams in the following presidential election.Worse still, Federalist Party also lost in the Congressional Election completely. That is to say, not only did the Federalist Party lose the President's throne but also lose the control of Congress. In this situation, American‟s Constitutional system faced a severe trial the first time and the only way is to try every sorts of ways to control the federal Justice Department which is not directly affected by the election. Only in this way can the Federalist Party constrainedly maintain the status and impact in the American political life.So, on his last day in office, President John Adams named forty-two justices of the peace under the Organic Act. The commissions of those justices had been signed by President Adams and sealed by acting Secretary of State John Marshall(who later became Chief Justice of the Supreme Court ). Unfortunately, 16 federalists‟ commissions were not delivered by the end of Adams‟s term,so does the Marbury‟s. Democratic - Republican Party was very angry with those series of action done by Federalist Party so once Thomas Jefferson took office they beat back at once. The first thing they did was refusing to deliver those commissions and claimed that they were invalid because they had not been delivered by the end of Adams‟s term.William Marbury (Plaintiff) therefore applied directly to the Supreme Court of the U.S. For a writ of mandamus to compel Jefferson‟s Secretary of State James Madison(Defendant), to deliver the commissions according to The Judiciary Act of 1789 which had granted the Supreme Court original jurisdiction to issue writs of mandamus “...to any courts appointed , or persons holding office, under the authority of the United States.”However ,the Supreme Court actually the weakest branch of the national government for the reason that it had no military power 、financial power andcould not take active action at that time. The U.S. Constitution had never gave it the power to compel the other two to do anything ,not to say let the U.S. President and Secretary submit to the Supreme Cou rt‟s decision.Chief Justice Marshall was in a dilemma .Madison could totally ignore his order for his powerful prop if he issued writs of mandamus to force Madison to deliver those commissions, which will weaken the Supreme Court …s juridical power further . But if Marshall refused William Marbury‟s reasonable request, it‟s equal to forwardly admitted that the Supreme Court could not challenge the executive branch‟s extreme misconduct for lack of power. The second plan would not only put the Federalist Party into a unfavorable position but also dose harm to the Supreme Court . To be or not to be, this is a question.Finally Marshall made a extremely clever decision to solve the case perfectly. His legal reasoning are listed as follows.Firstly, the applicant has a right to the commission because the the appointment procedure is legal and has been completed. So he has a consequent right to the commission.Secondly, the applicant is entitled to get the remedy. Marshall stated: "The Government of the United States has been emphatically termed a government of laws, and not of men. It will certainly cease to deserve this high appellation if the laws furnish no remedy for the violation of a vested legal right."Thirdly, The Supreme Court does not have orig inal jurisdiction to issue writs of mandamus. The Judiciary Act of 1789 which granted the Supreme Court have original jurisdiction to issue writs of mandamus has expanded the scope of the Su preme Court‟s authority which is specified in the Article III of the Constitution, which defines the Supreme Court's original and appellate jurisdictions . Congress does not have the power to modify the Supreme Court's original jurisdiction. Consequently, the Constitution and the Judiciary Act conflict.This conflict raised the important question of what happens when an Act of Congress conflicts with the Constitution. Marshall answered that Acts of Congress that conflict with the Constitution are not law and the Courts are bound instead to follow the Constitution, affirming the principle of judicialreview. In support of this position Marshall looked to the nature of the written Constitution—there would be no point of having a written Constitution if the courts could just ignore it. Besides, Marshall argued that the very nature of the judicial function requires courts to make this determination. Since it is a court's duty to decide cases, courts have to be able to decide what law applies to each case. Therefore, if two laws conflict with each other, a court must decide which law applies.Finally, Marshall, representative of the Federalist Party, won the case absolutely. On one hand, Marshall enhanced the Supreme Court‟ state against the other national governments. On the other hand, his decision made the Supreme Court the final interpreter of American‟s constitution and the system of judicial review established following from that.。
1803年马伯里诉麦迪逊案
1803年马伯里诉麦迪逊案（marbury v.madison）（一）案情介绍在1800年的美国大选中，当任总统、联邦党人约翰•亚当斯落选，共和党候选人托马斯•杰弗逊当选为新总统，但要到1801年3月4日才能正式就职。
1801年1月，亚当斯任命他的国务卿约翰•马歇尔为联邦最高法院首席法官，又在 2月国会通过巡回法院法案时，成倍地增加联邦法官的人数，并通过了构成法（Organic Act），授权在哥伦比亚特区任命了42名治安法官，全部由联邦党人充任。
参议院在3月3日批准了对这42名法官的任命，亚当斯总统连夜签发了对这42名法官的委任状。
但由于过于匆忙，有几件委任状未能及时送出。
3月4日，新总统杰弗逊就职。
他一上任便命令他的国务卿麦迪逊扣发了这些尚未发出的委任状。
威廉•马伯里就是被扣发委任状的人之一。
为此，马伯里对新任国务卿麦迪逊提起诉讼，请求联邦最高法院向麦迪逊发出执行命令，发给委任状。
因为根据国会1789年颁布的《司法法》第13条规定，联邦最高法院有权对公职人员颁发执行命令。
（二）案例评析联邦最高法院根据马伯里的申请，命令国务卿麦迪逊说明为什么不颁发委任状。
但麦迪逊拒绝在最高法庭出庭。
这样就使得最高法院在如何处理马伯里诉麦迪逊一案上处于了两难的境地：如果驳回马伯里的请求，显然是向杰弗逊和共和党人屈服；但如果颁发了执行命令，杰弗逊和麦迪逊也不会执行，这样又有损于最高法院的权威。
为了摆脱这种两难的境地，联邦最高法院运用了司法审查的方式，来处理这一案件。
1803年，联邦最高法院首席法官马歇尔在由他起草并得到全体法官一致同意的判决书中，对此案作了阐述。
判决首先肯定马伯里被任命为法官是合法的，是有权得到委托状的，而总统和国务卿不予颁发委任状是没有理由的，马伯里的正当权利因此受到了侵害，有权要求并得到补偿；但是，最高法院不能颁发这样的执行命令，因为宪法第3条关于最高法院司法管辖权的规定并不包括对职务执行命令的初审管辖权。
1803年马伯里诉麦迪逊案
1803年马伯里诉麦迪逊案（marbury v.madison）（一）案情介绍在1800年的美国大选中，当任总统、联邦党人约翰•亚当斯落选，共和党候选人托马斯•杰弗逊当选为新总统，但要到1801年3月4日才能正式就职。
1801年1月，亚当斯任命他的国务卿约翰•马歇尔为联邦最高法院首席法官，又在 2月国会通过巡回法院法案时，成倍地增加联邦法官的人数，并通过了构成法（Organic Act），授权在哥伦比亚特区任命了42名治安法官，全部由联邦党人充任。
参议院在3月3日批准了对这42名法官的任命，亚当斯总统连夜签发了对这42名法官的委任状。
但由于过于匆忙，有几件委任状未能及时送出。
3月4日，新总统杰弗逊就职。
他一上任便命令他的国务卿麦迪逊扣发了这些尚未发出的委任状。
威廉•马伯里就是被扣发委任状的人之一。
为此，马伯里对新任国务卿麦迪逊提起诉讼，请求联邦最高法院向麦迪逊发出执行命令，发给委任状。
因为根据国会1789年颁布的《司法法》第13条规定，联邦最高法院有权对公职人员颁发执行命令。
（二）案例评析联邦最高法院根据马伯里的申请，命令国务卿麦迪逊说明为什么不颁发委任状。
但麦迪逊拒绝在最高法庭出庭。
这样就使得最高法院在如何处理马伯里诉麦迪逊一案上处于了两难的境地：如果驳回马伯里的请求，显然是向杰弗逊和共和党人屈服；但如果颁发了执行命令，杰弗逊和麦迪逊也不会执行，这样又有损于最高法院的权威。
为了摆脱这种两难的境地，联邦最高法院运用了司法审查的方式，来处理这一案件。
1803年，联邦最高法院首席法官马歇尔在由他起草并得到全体法官一致同意的判决书中，对此案作了阐述。
判决首先肯定马伯里被任命为法官是合法的，是有权得到委托状的，而总统和国务卿不予颁发委任状是没有理由的，马伯里的正当权利因此受到了侵害，有权要求并得到补偿；但是，最高法院不能颁发这样的执行命令，因为宪法第3条关于最高法院司法管辖权的规定并不包括对职务执行命令的初审管辖权。
马伯里诉麦迪逊Marburyv.Madison
马伯里诉麦迪逊（Marbury v. Madison）情形发生在整整两百年前，也确实是美国第二任总统约翰·亚当斯（John Adams）竞选连任受挫，辞别白宫前夕（1801年）。
这时亚当斯真正是有权不用，过时作废。
他行使总统的司法提名权，将尽可能多的联邦党（即后来的民主党）人套上法官的大黑袍子。
就在新总统上任的三礼拜前，联邦党操纵的参议院通过法案，新增42个法官职位。
威廉·马伯里是其中之一。
他已经通过全数法定录用程序，亚当斯总统也在他的委任状上签字盖章。
只要国务卿把那张纸颁发到他手里，这为期五年的法官薪水就得手了。
这即将随总统离任的国务卿不是他人，正是故事的核心人物，即将上任的最高法院首席大法官约翰·马歇尔（John Marshall）。
马卿可能临行慌忙，把马伯里的委任状忘在国务卿办公室，尽管到最高法院上班去也。
可想而知，候任总统上任前眼睁睁地看着政敌一个劲地往末班车上塞同党，自然是火冒三丈。
这新总统也不是等闲人物，他确实是不朽的《独立宣言》起草人托玛斯·杰佛逊（Thomas Jefferson）。
他接管政府时发觉这些委任状，气不打一处出，一把火烧了个干干净净。
这马伯里目击煮熟的鸭子飞走，这口气也是咽不下。
他老兄也不是省油的灯。
于是状告新任国务卿，美国宪法之父杰姆斯·麦迪逊（James Madison）。
要求最高法院发布执行令（writ of mandamus），强迫国务卿颁送达委任状。
这在咱们中国人看来这简直是吃了豹子胆，官司打到建国元勋头上。
若是情形发生在今天，马伯里的皇粮是吃定了。
可200年前的美国，法制建设还在低级时期。
最高法院远不象今天如此威风八面。
马歇尔被提名首席大法官的当天就被告知，京城房地产紧张，他得自己去找屋子作衙门。
马歇尔无奈，只好借参院一间地下室办案。
法院系统没钱没兵，又没有选民做后盾。
一直总统和国会的排斥轻视的对象。
这时马大法官接到的状子，实在是一个烫手的山芋。
马伯里诉麦迪逊案PPT英语演讲用
The Progress
• While a majority of the commissions were delivered, it proved impossible for all of them to be delivered before Adams's term as president expired. • On March 4, 1801, Thomas Jefferson was sworn in as President. As soon as he was able, he ordered James Madison ,Secretary of the United States, not to deliver the remaining appointments. Without the commissions, the appointees were unable to assume the offices and duties to which they had been appointed. So, the undelivered commissions were void(无 效的).
It is emphatically the province and duty of the judicial department to say what the law is
解释法律显然是司法部门的权限范围和责任
The Brief Introduction
The case resulted from a petition to the Supreme Court by William Marbury, who had been appointed by President John Adams as Justice of the Peace in the District of Columbia but whose commission was not subsequently delivered. Marbury petitioned the Supreme Court to force the new Secretary of State James Madison to deliver the documents. 庄园主马伯里由于上届政府的疏忽，而未收到“太平绅士”的 委任状，而继任政府的国务卿麦迪逊拒绝将委任状下发，于是 马伯里直接向当时并无实权的最高法院提起诉讼，要求得到自 己的委任状。
我看马伯里诉麦迪逊案演讲范文
我看马伯里诉麦迪逊案演讲范文我看马伯里诉麦迪逊案演讲范文我看马伯里诉麦迪逊案周沂林两百多年来，有无数的中外学者研究和点评过这个判例。
而我今天再次关注此案的焦点在于：司法的权威和力量不仅仅来源于制度的安排，优秀法官的杰出劳动不断地在改变司法独立的的状况，而这种劳动的最终成果体现在判决书中。
所以，我呼吁中国司法改革应该从判决书做起。
从司法角度来看，本案堪称法律史上最伟大的判例。
因为它奠定了近代司法权真正的权威，该权威来自“法治”的本质，但却由名垂青史的约翰？马歇尔大法官在一个荒诞、离奇而又复杂的政治性案件中创制的。
这一被称为“司法审查”制度的创制，看似在一个不无狡诘和诡辩嫌疑的判决书中得以确立具有偶然性，但在经历了两百多年和全世界70多个国家的效法的时空检验后，不能不说是具有伟大的意义。
美国人常说自己的国家不是打出来的，而是开会开出来的。
这是指美国历史上著名的制宪会议，即“费城会议”。
1787年5月在费城进行了近3个月的秘密讨论后通过了取代已执行了8年的《邦联条例》的美国宪法，经各州批准生效后，美国才真正成为联邦制的统一国家。
从邦联到联邦，从制宪会议到批准宪法的全部过程中，充满了激烈的辩论。
美国人自豪的地方在于：整个立国的过程是开会、辩论、智慧和“伟大的妥协”的精神，而不是诉诸武力。
这个立国和制宪传统贯彻至今、无处不有，乃至于如托克维尔所说：在美国“简直是没有一个政治事件不是求助于法官的权威的”（注1）。
本案被马歇尔大法官形容的“微妙”、“新奇”和“困难”，正是一个典型的党派政治斗争事件却必须由堂而惶之的司法程序来解决的写照。
本案发生于十八、十九世纪交替时，也是美国第二、三届总统交接时。
第二届总统是联邦党人约翰•亚当斯。
1800年大选，民主共和党的托马斯•杰斐逊击败亚当斯任第三届总统。
这期间两党斗争日趋激烈。
最初的争论是围绕财政经济政策进行的。
著名的《联邦党人文集》作者之一汉密尔顿在第一届华盛顿政府担任财政部长，他主张建立稳定的国家信贷、建立国家银行、征收进口税、集中权力于联邦政府，并要求从宽解释宪法赋予联邦政府的权力。
世界宪政第一案_马伯里诉麦迪逊案
高无上的权威。 1801年 以 亚 当 斯 为 首 的 联 邦 党 不 敌 以 杰 弗 逊 为
首的共和党 ，失去了总 统的 宝座 。 亚 当 斯总 统在 离 职 前夜任命了一批联邦党人士作为联邦法官， 这些法 官又称为“午夜法官”。 但其中17位法官 的任命状在 仓促之间未及时发出。 杰弗逊总统上任后立即指令 新的国务卿麦迪逊扣留这17份任命状。 马伯里与另 外 3名 同 样 情 形 的 新 法 官 以 《1789 年 司 法 条 例 》 第 13条的规定 （即联邦最高法院有权对合众国公职人 员发布职务执行令状） 为依据， 向联邦最高法院起 诉，要 求麦迪逊 交 出任命 状 。 此案 命名 为马 伯里诉 麦 迪逊案。
PEOPLE′S POLITICAL SCENE
工作研究法治视角法拾零世界宪政第一案 — —— 马 伯 里 诉 麦 迪 逊 案
今天，在美国最高法院的院史博物馆中，唯有约
翰·马歇尔大法官一人享有全身铜像的特殊待遇。 在
9位大法官专用餐厅的墙壁上，并列悬挂着马伯里和
麦迪逊二人的画像，仿佛是在提醒每一位大法官：若
性，代表团会议应设置代表与政府领导、政府部门领导、两院领
联邦最高法院大法官马歇尔明白，即使“既无钱
导进行对话，询问甚至质询的环节，要请政府有关部门主要负责 也无剑” 的最高法院下达强制令， 麦迪逊也未必执
同志到会听取意见、回答询问、答复问题，以增强互动性，同时也 从客观上促使政府部门负责人提高到会率。随着实践的展开与 完善，有必要引入媒体现场直播、报道，使会场内外形成监督合 力。
将考核结果向社会公布。将选民的罢免权落到实处，设立罢免的 使美国政治制度真正具有了三权分立、 相互制衡的
马伯里诉麦迪逊案(中英双文版)
The Facts
that explicit and satisfactory information has not been given in answer to that inquiry, either by the Secretary of State or any officer in the Department of State; that application has been made to the secretary of the Senate for a certificate of the nomination of the applicants, and of the advice and consent of the Senate, who has declined giving such a certificate 对于以上质询， 对于以上质询，没 有任何政府官员给 予明确且令人满意 的回复。 的回复。申请还被 送交给了参议院秘 书来证明马伯里等 人已经因参议院的 同意和批准而得到 任命。 任命。但参议院秘 书拒绝给予证明。
亚当斯总统正式签署 了委任他们为地方执 法官的委任状并由国 务卿正式地在委任状 上加盖了美国国印。 上加盖了美国国印。 马伯里等人要求没有 按规定发放委任状的 麦迪逊国务卿送出他 们所述的委任状。 们所述的委任状。马 伯里等人已经向国务 卿办公室申请了说明 委任状是否被登记并 签章的信息。 签章的信息。
The Facts
Mr. Jacob Wagner and Mr. Daniel Brent, who had been summoned to attend the court, and were required to give evidence,The court ordered the witnesses to be sworn, and their answers taken in writing, but informed them that, when the questions were asked, they might state their objections to answering each particular question, if they had any. Mr. Lincoln, who had been the acting Secretary of State, was called upon to give testimony. He objected to answering. The questions were put in writing.
马伯里诉麦迪逊案(中英双文版)
The Facts
At the December Term, 1801, William Marbury, Dennis Ramsay, Robert Townsend Hooe, and William Harper, by their counsel, severally moved the court for a rule to James Madison, Secretary of State of the United States, to show cause why a mandamus should not issue commanding him to cause to be delivered to them respectively their several commissions as justices of the peace in the District of Columbia. 1801年12月，威 年 月 马伯里、 廉·马伯里、丹 马伯里 拉姆塞、 尼·拉姆塞、罗伯 拉姆塞 汤森和威廉·哈 特·汤森和威廉 哈 汤森和威廉 伯分别通过律师对 美国国务卿詹姆 斯·麦迪逊提起诉 麦迪逊提起诉 讼，要求最高法院 裁决麦迪逊就他拒 不发放马伯里等人 就认哥伦比亚地区 地方执法官的委任 状一事说明理由。 状一事说明理由。
The Facts
that explicit and satisfactory information has not been given in answer to that inquiry, either by the Secretary of State or any officer in the Department of State; that application has been made to the secretary of the Senate for a certificate of the nomination of the applicants, and of the advice and consent of the Senate, who has declined giving such a certificate 对于以上质询， 对于以上质询，没 有任何政府官员给 予明确且令人满意 的回复。 的回复。申请还被 送交给了参议院秘 书来证明马伯里等 人已经因参议院的 同意和批准而得到 任命。 任命。但参议院秘 书拒绝给予证明。
马伯里诉麦迪逊案(英文版)
马伯里诉麦迪逊案（英文版）WILLIAM MARBURY v. JAMES MADISONSUPREME COURT OF THE UNITED STATESFEBRUARY, 1803 TermChief Justice Marshall delivered the opinion of the court.In the order in which the court has viewed this subject, thefollowing questions have been considered and decided: 1st. Has the applicant a right to the commission he demands? 2dly. If he has a right, and that right has been violated, do the laws of his country afford him a remedy? 3dly. If they do afford him a remedy, is it a mandamus issuing from this court?The first object of enquiry is: Has the applicant a right to the commission he demands?His right originates in an act of congress passed in February, 1801, concerning the district of Columbia. This law enacts, "that there shall be appointed in and for each of the said counties, such number of discreet persons to be justices of the peace as the president of the United States shall, from time to time, think expedient, to continue in office for five years."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 UnitedStates; 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 enquire whether he has been appointed to the office. For if he has been appointed, the law continues him in office for five years . . . .…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 his commission, therefore, is an act deemed by the court not warranted by law, but violative of a vested legal right.This brings us to the second enquiry; which is, 2dly. If he has a right, and that right has been violated, do the laws of his countryafford 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 he receives an injury. One of the first duties of government is to afford that protection. The government of the United States has been emphatically termed a government of laws, and not of men. It willcertainly cease to deserve this high appellation, if the laws furnish no remedy for the violation of a vested legal right.…1It is then the opinion of the court: 1st. 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; . . . 2dly. That, 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 countryafford him a remedy.It remains to be enquired whether, 3dly. He is entitled to the remedy for which he applies. This depends on, 1st. The nature of thewrit applied for, and, 2dly. The power of this court.1st. The nature of the writ.[Court determines that having determined that the commission had reached a point beyond the discretion of the president and to the point where the secretary of state had to obey the law. Therefore, the remedy of a writ of mandamus is available.]…2d. The power of this courtThis, then, is a plain case for a mandamus, either to deliver the commission, or a copy of it from the record; and it only remains to be enquired, whether it can issue from this court.The act to establish the judicial courts of the United States authorizes 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."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 "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."…When an instrument organizing fundamentally a judicial system, divides 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 take2appellate 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 inoperative, that is an additional reason for rejecting such other construction, and for adhering to their obvious meaning.To enable this court then to issue a mandamus, it must be shown tobe an exercise of appellate jurisdiction, or to be necessary to enable them to exercise appellate jurisdiction.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 cause. 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 a 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 writs of mandamus to public officers, appears not to be warranted by the constitution; and it becomes necessary to enquire whether a jurisdiction, so conferred, can be exercised.[In other words, if the authority is not found in the Constitution, the Court must decide if Congress can add to its constitutional authority.]…That the people have an original right to establish, for theirfuture 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; nor can it, nor ought it to be frequently repeated. The 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 and 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 powers of 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 thatlimitation committed to writing, if these 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, and if acts prohibited and acts allowed, are of equal obligation. It is aproposition too 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. Theconstitution is either a superior, paramount law, unchangeable by ordinary means, or it is on a level with ordinary legislative acts, and like other acts, is alterable when the legislature shall please to alter it.3If the former part of the alternative be true, then a legislativeact 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.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 in 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 conformably 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.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, notwithstanding the express prohibition, is in reality effectual. It would be giving 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.The judicial power of the United States is extended to all cases arising under the constitution. Could it be the intention of those whogave 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 can 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 this subject. It is declared that "no tax or duty shall be laid on articles exported from any state." Suppose a duty on the export of cotton, of tobacco, or of flour; 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 "no bill of attainder or ex post facto law shall be passed." 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?4It is also not entirely unworthy of observation that in declaring what shall be the supreme law ofthe 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 of the United States, havethat 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.5。
马伯里诉麦迪逊案之判决分析 ppt课件
ppt课件
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发出委任状这一行为的性质不能被 认为是纯粹的行政行为
通常情况
本案情况
• 行政首脑——总统(行政 • 行政首脑发出委任状的行
机关)的意志执行者 • 美国的三权分立体制 • 行政首脑的行为合法
为是国会(立法机关)赋予
该官员的责任
• 第三，是否由本法院发出法院强制执行令？ （换句话说，他是否有权利通过该法院得 到他申请的救济？）
ppt课件
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第一个问题：申请人是否有权利得到 他所要求的委任状？
• 本院认为，委任状一经总统签署，国务卿加盖合 众国国玺，委任状即为完成，任命即为作出。
• 马伯里先生的委任状已由总统签署，并且由国务 卿加盖了国玺
• 反联邦党（州权派） 政治主张 代表人物：杰斐逊
ppt课件
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案件发生之时的具体因缘：1801年 的美国选举
• 总统选举 亚当斯连任竞选失败 杰斐逊当选为美国的第三任总统
• 国会选举 联邦党丧失了多数党席位
ppt课件
2
案件当事人背景介绍
• 詹姆斯·麦迪逊 ：当时美国国务卿，受身为共和党
人的新总统托马斯·杰弗逊 的指示，将身为联邦党人的总 统约翰·亚当斯任命的滞留在国务院内的一些治安法官的 委任状扣发，致使这些“星夜法官”无法正式任职。
联邦最高法院在法律原则和习惯所容许的范围内有权向联邦政府现职官员下达命令命其履行其法定义44马歇尔面临该案件的政治困境马歇尔面临该案件的政治困境马伯里败诉55第一申请人是否有权利得到他所要求的委任状
案件发生的政治背景：美国建国之 处的党派之争
• 联邦党： 政治主张 代表人物：汉密尔顿 亚当斯 马歇尔
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The Summary
Throughout its history, the Supreme Court‟s unique role has been to state the law and to define the powers of the government. John Marshall „s opinion in Marbury v. Madison set three principles that formed the basis of American constitutional law.
The case of Marbury v. Madison
Inscription on the wall of the Supreme Court (美国最高法 院)Building from Marbury v. Madison, in which Chief Justice John Marshall outlined the concept of judicial review.
• 在最高法院历史上，它的独特职能始终是表述法律和界定政 府的权力。首席大法官约翰•马歇尔（John Marshall）为马伯 里诉麦迪逊案（Marbury v. Madison）所写的意见书提出了 构成美国宪法基础的三项原则。
Three Principles
• First, the Constitution stood above ordinary laws, including those passed by Congress and signed by the President. • Second, the Supreme Court would define the Constitution and say “what the law is.” • Third, the court would invalidate laws that it had decided were in conflict with the Constitution. • 第一，宪法本身高于普通法律，包括国会通过并经过总统 签署的法律。 • 第二，最高法院负责解释宪法，阐明法律原意。 • 第三，最高法院有权将它认为不符合宪法的法律裁定为无 效。
John Marshall(1755-1835)
Thomas Jefferson
(1762-1835) a successful The fourth Chief Justice(首 businessman 席大法官) of the United States Democraticrepublican party （民主共和党） James Madison (1751-1836) Secretary of State of the United Defendant(被告) States 国务卿
• 在美国宪法解释实践中长期存在着被学者们所称的“麦迪 逊之两难”问题，即民主多数统治的自由与少数自由权利 之间始终处于一种似乎不可消解的张力之中。本案作为司 法审查制度的奠基案件，在美国乃至世界宪政史上都影响 深远。
That‟s all ! Thank you !!!
It is emphatically the province and duty of the judicial department to say what the law is
解释法律显然是司法部门的权限范围和责任
The Brief Introduction
The case resulted from a petition to the Supreme Court by William Marbury, who had been appointed by President John Adams as Justice of the Peace in the District of Columbia but whose commission was not subsequently delivered. Marbury petitioned the Supreme Court to force the new Secretary of State James Madison to deliver the documents. 庄园主马伯里由于上届政府的疏忽，而未收到“太平绅士”的 委任状，而继任政府的国务卿麦迪逊拒绝将委任状下发，于是 马伯里直接向当时并无实权的最高法院提起诉讼，要求得到自 己的委任状。
(1743-1826) The third president of the U.S
The Background
On March 3, just before his term was to end, Adams, in an attempt to stymie(阻挠)the incoming Democratic-Republican Congress and administration, appointed 16 Federalist circuit judges and 42 Federalist justices of the peace to offices created by the Judiciary Act of 1801. These appointees, the infamous “Midnight Judges(午夜法官)”, included William Marbury. He had been appointed to the position of justice of the peace(太平绅士) in the District of Columbia.
The Influence
• There is “Madisonian dilemma” in practice of American Constitutional interpretation ,that is,the freedom of the majority to govern and the rights of the minority remain forever in tension. • As an essential trial of judicial review doctrine,Marbury v. Madison influences deeply on American constitutional history as to worldwide.
The Progress
• While a majority of the commissions were delivered, it proved impossible for all of them to be delivered before Adams's term as president expired. • On March 4, 1801, Thomas Jefferson was sworn in as President. As soon as he was able, he ordered James Madison ,Secretary of the United States, not to deliver the remaining appointments. Without the commissions, the appointees were unable to assume the offices and duties to which they had been appointed. So, the undelivered commissions were void(无 效的).
The Results
• "In denying his request, the Court held that it lacked jurisdiction because Section 13 of the Judiciary Act passed by Congress in 1789, which authorized the Court to issue such a writ, was unconstitutional and thus invalid.“ • 马伯里在最高法院起诉是参考了如上所述的1789年《司法 法》第13条，于是马歇尔斩钉截铁地指出，《司法法》这 一条与宪法冲突，非法扩大了最高法院的权限。 • Marbury never became a Justice of the Peace in the District of Columbia.
The issue
• Does Article III of the Constitution create a "floor" for original jurisdiction, which Congress can add to, or does it create an exhaustive list that Congress can't modify at all? • 申诉人是否有权取得他所要求的委任状？ • If Article III's original jurisdiction is an exhaustive list, but Congress tries to modify it anyway, who wins that conflict, Congress or the Constitution? • 如果他有权，而这种权利已受到侵犯，他的国家的法律是 否向他提供补救办法？ • And, more importantly, who is supposed to decide who wins? • 如果法律确实向他提供补救办法，是否即为本院发出的执 行令？
The persons in the case
Plaintiff(原告)
The presiding judge(主审法官)