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Hamilton, written when the election for the presidency in 1800 had been thrown into the House of Representatives. Hamilton had written to Marshall to say that Burr was a man without principles, to whom he thought Jefferson should be preferred. Marshall responded by saying:

"To Mr. Jefferson, whose political character is better known than that of Burr, I have felt almost insuperable objections. His foreign prejudices seem to me totally to unfit him for the chief magistracy of a nation which cannot indulge those prejudices without sustaining deep and permanent injury. In addition to this solid and immovable objection Mr. Jefferson appears to be a man who will embody himself with the House of Representatives, and by weakening the office of President he will increase his personal power. He will diminish his personal responsibility, sap the fundamental principles of the government, and become the leader of that party which is about to constitute the majority of the legislature."

The writer concluded by saying that, being no longer in Congress, he would not take any part in the contest. His fears were not realized. Jefferson, through the influence of his old enemy Hamilton, strange to say, became President; but he did not "sap the fundamental principles of government." He made a conservative and a safe President, did not turn out the Federalist office holders, as was apprehended; he looked after the best interests of the country with fidelity, made good appointments, enforced the laws with firmness, and disappointed nobody except his enemies. Towards the close of the administration of John Adams, Congress having created a number of new offices, the President hastened to fill them, and to get them confirmed by the Senate. Marshall was appointed Chief Justice of the Supreme Court on the 31st day of January, 1801, and took his seat on the bench on the 4th day of the next month; though he did not deliver any opinions until the following August term. At the time of this appointment Marshall was Secretary of State; and he continued to act as such until the close of the presidential term of Adams on the 4th day of March. Such a cumulation of offices in the same person would

raise a great outcry at the present time; but we were then so near to the English precedents that the circumstance called forth no criticism. The confirmation of the last appointments by Adams were made so late that it was not possible to get the commissions all signed, sealed and sent out before the close of his term, though every effort was made to do so. The Democrats, then called Republicans, afterwards told a story that Levi Lincoln, the new Secretary of State of Jefferson, walking into his office at midnight on the 3rd of March, found his predecessor Marshall hastily attesting commissions for the lately appointed officers; to which proceeding he put a stop by announcing that it was midnight by the new President's watch which he held in his hand, upon which Marshall retired, taking with him nothing but his hat. The story has too many dramatic elements to be true. Jefferson repeatedly said that Marshall was sealing commissions until nine o'clock at night, though hostile politicians afterwards long referred to them as the "Midnight Commissions." If such a thing should happen now it would probably excite but little or no comment. As long as Adams was President he had a right to perform all of the functions of his office, even down to his last hour. Jefferson did not take this view of the matter, but was deeply incensed. He and Adams had been friends in youth, but they now became estranged from each other, and so remained for many years.

It was out of this incident of the belated commissions that a controversy arose leading up to the vital question whether the Supreme Court could pronounce an act of Congress void as being in violation of the Federal Constitution; a question involving the most fundamental principles of our government. The problem when thus presented in the Supreme Court was not altogether new, for the same question, as arising upon the State Constitutions, had been previously decided in the affirmative in New Jersey, followed by Virginia, South Carolina and Rhode Island. †

Patrick Henry, the life-long friend of Jefferson, in his great speech in opposition to the adoption of the Federal Constitution

*Id., Vol. VIII., pp. 32, 37, 44. 46.

Dillon. Law and Jurisprudence of England and America, p. 200,

delivered in the Virginia convention, expressed a fear that the Supreme Court of the United States would not have the courage to curb the usurpations of the other branches of the government. He said:


"Yes, sir; our judges opposed the act of the legislature. We have this landmark to guide us. They had the fortitude to decree that they were the judiciary, and they oppose unconstitutional Are you sure that your Federal judiciary will act thus? Is that judiciary so well constituted and so independent of other branches as our State judiciary? Where are your landmarks in this government? I will be bold to say that you cannot find any. I take it as the highest encomium on this country that the acts of the legislature, if unconstitutional, are liable to be opposed by the judiciary."

Jefferson contended, however, that each department was the sole judge as to whether its acts infringed upon the Constitution or not; and that the claim of the Supreme Court that it had jurisdiction to declare any act of Congress or of the executive department void as being in violation of the Constitution was unwarrantable usurpation. He said: "My construction of the Constitution is, that each department is truly independent of the others, and has an equal right to decide for itself what is the meaning of the Constitution in the cases submitted to its action ;" an opinion which he repeated many times.*

Among the undelivered commissions signed and sealed by President Adams was one purporting to show the appointment of William Marbury as a justice of the peace of the District of Columbia. Marbury, having demanded the delivery of his commis sion, and having been met with a refusal, filed his petition in the Supreme Court of the United States at its December term, 1801, asking for a rule on Madison, as Secretary of State, commanding him to show cause why a writ of mandamus should not issue to compel a delivery of the commission; his motion being based on the 13th section of the Judiciary Act of 1789 authorizing the Su

* Ford, Vol. X., pp. 141, 185, 199, 190; Vol. IX., p. 53.

preme Court to issue "writs of mandamus in cases warranted by the principles and usages of law to any courts appointed by, or persons holding office under, the authority of the United States." This proceeding was exceedingly embarrassing to the administration. The clause of the statute on which it was based was of doubtful validity; and, as it enlarged the jurisdiction of the Supreme Court, Mr. Jefferson would have been glad to see it erased from the statute book. But on the other hand, if he should suggest that the act was unconstitutional he would thereby place himself in the attitude of saying that the Federal courts had the power to annul an act of Congress on the ground that it was an infringement of the Constitution. Placed between these two fires, the administration resolved to do nothing, and to let the case take its course.

Counsel for petitioner, Mr. Charles Lee, formerly Attorney General of the United States, summoned Mr. Levi Lincoln, the then present incumbent of that office, as a witness, and asked him. various questions as to matters set up in the petition. Mr. Lincoln begged for time to consider whether he would answer the questions thus propounded, saying that on the one hand he respected the jurisdiction of the court, and, on the other, he felt himself bound to maintain the rights of the executive. He was acting, he said, as Secretary of State when this transaction happened. He was of opinion—and his opinion was supported by that of others whom he highly respected (meaning of course Mr. Madison and Mr. Jefferson)—that he was not bound, and ought not to answer as to any facts which came officially to his knowledge while acting in that capacity.

Time was accordingly given to the witness until the next day, when he answered all of the questions except one which demanded of him to say what had been done with Marbury's commission; the objection to this being sustained on the ground that for the purposes of the pending inquiry it did not matter what had been done with it.

On the 24th day of February, 1803, Chief Justice Marshall delivered the unanimous opinion of the court, holding that as the

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appointment of Marbury had been approved by the Senate, and the officer appointed was one that could not be removed by the President, the appointment was complete when the presidential signature was affixed to the commission; and that as the law made it the duty of the Secretary of State to annex his seal to the instrument, and to record it in his office, and as its delivery was purely a ministerial act, it might be enforced in accordance with the statute giving the court power to issue writs of mandamus, provided the statute was constitutional. The court then proceeded to examine that question, and to hold that it was the duty of the Federal courts to disregard any act of Congress which should be found to be in excess of its constitutional powers; and that as the act in question purported to extend the jurisdiction of the Supreme Court beyond the limits prescribed by the Constitution, it was null and void. The rule for the mandamus was therefore discharged.*

To Mr. Jefferson this opinion was exasperating in the last degree, and he often referred to it with extreme reprehension. On one occasion he wrote: "The practice of Judge Marshall in traveling out of his case to prescribe what the law would be in a moot case not before the court is very irregular, and very censurable." Then, referring to the case of Marbury vs. Madison, he added: "The court determined at once that, being an original process, they had no cognizance of it; and therefore the question before them was ended; but the chief justice went on to lay down. what the law would be had they jurisdiction of the case, to-wit: that they should command the delivery. The object was clearly to instruct any other court having the jurisdiction what they should do if Marbury should apply to them. Yet this case is continually cited by bench and bar as if it were settled law, without animadversion on its being an obiter dissertation of the Chief Justice."

* * *

If it is true that this part of the opinion in Marbury vs. Madison is a mere dictum, then the case now under consideration must

*Marbury vs. Madison, 1 Cranch, 137.

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