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be decided against Marshall at once. If he went outside of the record in order to place the President in a bad light, his conduct, inexcusable in any case, is only aggravated by the fact that the President was his personal enemy. A judge who will avail himself of his position on the bench to vent his ill-will on persons not before the court simply because he is not on friendly terms with them, merits the severest censure. But I venture to think that that part of the opinion in the Marbury case which Mr. Jefferson regarded, no doubt sincerely, as obiter, was not such in point of fact; and that according to all judicial precedents the court was constrained to pass on the question as to the sufficiency of the facts presented to make out a case under the statute, though the statute was held to be unconstitutional.

In the absence of a demurrer the court was compelled to examine the facts as alleged and proved in order to see whether they brought the case within the meaning of the statute; for the courts cannot pronounce a statute unconstitutional where the facts, either as admitted or proved, fail to show that the question of its validity is directly and necessarily involved in the case presented. In the Marbury case if the petition and the evidence had not shown that, according to the terms of the statute, the petitioner was entitled to the relief sought, it would have been the duty of the court to deny the relief on that ground alone. Mr. Cooley says:

"In any case where a constitutional question is raised, though it may be legitimately presented by the record, yet if the record also presents some other and clear ground upon which the court may rest its judgment, and thereby render the constitutional question immaterial to the case, that course will be adopted, and the question of constitutional power will be left for consideration until a case arises which cannot be disposed of without considering it, and when consequently a decision upon such question will be unavoidable." *

With this statement of the law, which will hardly be questioned, it cannot with any propriety be asserted that that part of

* Const. Lim., p. 296, Liverpool Co. vs. Commissioners, 113 U. S. 33.

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the opinion of Marshall which is based on the facts of the case is made up of mere dicta; by which is meant, as Bouvier tells us, "opinions expressed by the judges on points that do not necessarily arise."



But this was not the only objection made by Jefferson to the opinion of Marshall. He also said: "* If there is a principle of law never yet contradicted it is that delivery is one of the essentials to the validity of a deed. Although signed and sealed, yet as long as it remains in the hands of the party himself it is in fieri only; it is not a deed, and can be made so only by its delivery. In the hands of a third person it may be made an escrow. But whatever is in the hands of the executive officers is certainly deemed to be in the hands of the President."

This reasoning is entirely fallacious. There is no real analogy between an appointment to an office and a deed. The law is well settled that a delivery of a commission is not necessary to complete the appointment.* Neither is delivery necessary to the validity of letters patent or of patents for lands. An escrow is a conditional delivery of a deed to a stranger until certain conditions shall be performed, when it is to be delivered to the grantee. President Adams had not delivered the commission of Marbury to the Secretary of State upon any condition. Nor was it correct to say that any document in the hands of the Secretary of State is in the hands of the President. The office of Secretary of State is as distinct as that of Postmaster-General, and the duties of the Secretary are defined by law.

As Mr. Jefferson treated the ruling in Marbury vs. Madison as not binding on account of the want of jurisdiction in the court that rendered it, Mr. Marbury, though he attained to immortality by having his name connected with one of the most important decisions ever rendered by any court, never got his commission as justice of the peace. Jefferson thought that in passing on the right of the petitioner to the commission signed by President Adams the intention of Marshall was to instruct some other court

*Mechem, Public Offices, Sec. 114.

19 Enc. Law, p. 350; U. S. vs. Schurz, 102 U. S. 378.

having jurisdiction how to proceed in finally settling the controversy; but as at that time no one perceived that any other court possessed the jurisdiction that Congress had vainly attempted to confer on the Supreme Court, nothing further was done. There was a way in which the commission could have been obtained, but it was so obscure that it took thirty-five years to find it out.

The Supreme Court of the United States in Kendall vs. U. S., 12 Pet. 524, held that the Circuit Court of the District of Columbia had jurisdiction to issue writs of mandamus to the heads of departments by virtue of the act of Congress of February 27, 1801, extending the laws of Maryland over that part of the District of Columbia ceded by that State to the United States. The court inferred that as the courts of Maryland had jurisdiction by common law to issue writs of mandamus, the same jurisdiction was transferred by the act of Congress just mentioned to the Circuit Court of the District of Columbia. The conclusion of the court was so far from being obvious that Chief Justice Taney and two other judges filed vigorous dissenting opinions; but the principle announced by the majority has since been frequently affirmed.*

Before Marshall went on the bench there had been only one important decision on constitutional law made by the Supreme Court, and that was in the case of Chisholm vs. State of Georgia, decided in 1793, in which it was held that under the constitutional provision conferring on the Federal courts jurisdiction of suits in "cases between a State and citizens of another State" the Supreme Court had jurisdiction of a suit brought against a State by a citizen of another State. Chief Justice Marshall before he was appointed to a place on the bench was of the opinion that this doctrine was wrong, and that it was only intended by the Constitution to confer jurisdiction of suits brought by a State against a citizen of another State, and not to allow a State to be sued in the Federal courts by any private citizen. Hamilton had previously expressed the same opinion; an opinion which would now be sustained probably by a large majority of the bar. The court con

*U. S. vs. Schurz, 102 U. S. 393.

strued the words literally; but it could hardly have been intended that the States should be sued without their consent; for if so it would be possible to issue writs of mandamus or other proper writs against governors, members of the legislature and other State officers for the enforcement of any judgments that might be rendered against States. It does not seem probable that the convention that framed the Constitution meant to place the States in such a subordinate position.

The evils apprehended from this decision led to the adoption of the 11th amendment to the Constitution, declaring that the Federal jurisdiction shall not extend to suits brought against any State by citizens of another State, or by citizens or subjects of any foreign State.

This amendment gave rise to the case of Cohens vs. Virginia, 6 Wheaton, 264, decided in 1821. It was contended that as the State of Virginia was a party to the suit, a writ of error would not lie to the State court of last resort, although a Federal question was involved, because this was a suit against a State within the meaning of the 11th amendment; but the court held that it had jurisdiction under the clause extending the judicial power to all cases "arising under the Constitution, the laws of the United States and treaties made under their authority;" and that a writ of error is not a suit, but is merely the continuation of a suit already brought.

Mr. Jefferson often referred to this decision as being a usurpation, and as trenching on the reserved rights of the States; but no plausible answer has ever been made to the able opinion delivered by Marshall. Had the case been decided otherwise our system of laws would have become destitute of uniformity, and every State might have adopted distinct principles of construction of the Federal Constitution. Mr. Tucker, in his work on the Constitution of the United States (Vol. II., Sec. 367), in speaking of this case, says: "It is unnecessary to discuss the merits of this celebrated controversy; for the State courts throughout the Union, in Virginia as well as in the other States, have recognized the finality of the decision of the Supreme Court; and for nearly

eighty years this has been established in all of the courts as a settled construction."

Jefferson often reasserted that the Supreme Court had no power to disregard any act of Congress or of the executive as void because in violation of constitutional provisions.

* * *

Writing to Jarvis September 28, 1820, he says: "You seem to consider the judges as the ultimate arbiters of all constitutional questions; a very dangerous doctrine indeed, and one which would place us under the despotism of an oligarchy. * The Constitution has erected no such single tribunal, knowing that to whatever hands confided, with the corruption of time and party its members would become despots. It has more wisely made all the departments co-equal and co-sovereign with themselves." *

Jefferson was so suspicious of the Supreme Court that he wished to have the judges polled as juries are sometimes. He said: "An opinion of the court is huddled up in conclave, perhaps by a majority of one, delivered as unanimous, and with the silent acquiescence of lax or timid associates, by a crafty chief judge who sophisticates the law to his own mind by the turn of his own reasoning." He adds that the Attorney-General once introduced a bill in Congress requiring the judges to deliver seriatim opinions.

Again he said: "The very idea of cooking up opinions in conclave begets suspicions that something passes which fears the public ear."

Jefferson often repeated the objections that the opinions of the Supreme Court were made up in secret, and that the judges did not deliver seriatim opinions, as was often done in England. It is difficult to see how the judges could consult in public, though there was a law enacted in France during the Reign of Terror requiring the judges to do so; the real object being to keep them always in the presence of the mob, and under its control; indeed, to keep them from consulting at all. Jefferson was never on the bench; but he had been on many legislative committees, notably on

* Ford, Writings of Jefferson, Vol. X., p. 160.

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