The Life of John Marshall Volume 3 of 4

of all constitutional questions would place us u

inary legislative acts alterable when the legislature shall please to alter it. It is emphatically the province a

ogue not in the last stages of intoxication denies it-this is an achievement of statesma

h, Jany:

eares

me to review my funds, I had the mortification to discover that I had lost 15 silver dollars out of my waist coat pocke

g several minutes in the portmanteau, staring at vacancy, & sweating most profusely he turned to me with the doleful tidings that I had no pair of breeches. You may be sure th

in town coud be prevaild on to work for me. They were all so busy that it was impossible to attend to my wants however pressing they might be, & I have the extreme mortification to pass the whole time without that important article of dress I have me

latter myself that y

my dear

ever aff

shall

nited States, thus went about his duties and bore his troubles. Making his circuit in a battered gig or sulky, which he himself usually drove, absent-minded and laugh

rshall when Secretary of State.[309] But Jefferson's Administration now did not hesitate to assert that this removal of one cause of conflict with Great Britain was the triumph

wenty-four million of dollars in which a former administration had involved it.... The mortifying reflection obtrudes itself, that the reputation of the most wise & skilful conduct depends, in this our caprici

degradation, an abandonment of national interest, a free will offering of millions to Britain for her grace & favor, by those who sough

licans, which seemed to be developing during the first few months after Jefferson's inauguration, had disappeared; "but," he adds, "the minority [Federalist Party] is only recovering its strength & firmness. It

leisurely, simple manner of thinking, been framing the constructive answer which he was at last forced to give to the grave question: Who shall say with final authority what is and wh

chair, while in House and Senate Virginia and her daughter Kentucky ruled the Republican majority. The two States that had declared the right and power of any member of the Un

udiciary alone had the power to invalidate acts of Congress.[314] But in none of these States had the Republican minority concurred. In all of them the Republicans had vigorously fough

Virginia and Kentucky, while the Federalists were able to muster but fifty votes in its favor. In

n opinion, with that much and deservedly respected statesman, Mr. Marshall, (whose abilities and integrity have been doubted by no party, and whose spirited and patriotic defence of his country's r

amous Resolutions, the Republicans were, nevertheless, so strong that the Federalist majority in t

ome as emphatically Republican as Virginia herself; New York had joined her forces to the Republican legions. The Federalists still held New England and the States of Delaware and New Jersey, but even there the incessant Republican assaults, delivered with ever

s popular opinion became ever stronger that the Judiciary could not do so, that Congress had a free hand so far as courts were concerned, and that the individual States might ignore National laws whenever those States deemed them to be infracti

other States would favor and of which they would demand the enforcement. What would this entail? At the very least it would provoke a relapse into the chaos of the Confederation and more probably civil war. Or a President might take it upon himself to pronounce null and void a law of C

the Supreme Bench were becoming old and feeble, and death, or resignation enforced by illness, was likely at any moment to break the Nationalist solidarity of the

to a democracy of a steadying force was not then so well understood as it is at present, but the Chief Justice fully appreciated it and determined at all hazards to make the National Judiciary the stabilizing power that it has since become. It sh

rve as the occasion for that tribunal's assertion of its right and power to invalidate acts of Congress and also for t

lumbia.[324] The Federalist Senate had confirmed these nominations,[325] and the commissions had been signed and sealed, but had not been delivered. When Jefferson was inaugurate

on to deliver their commissions. The other thirteen did not join in the suit, apparently considering the office of justice of the peace too insignificant to be worth the expense o

ng him to show cause at the next term of the Supreme Court why the writ of mandamus should not be awarded against him. Soon afterward, as we have seen, Congres

e critical hour when such a pronouncement was essential, the power of the Sup

d not have failed to realize the probable consequences to himself of the bold course he now determined to take. As the crawling months of 1802 wore on, no signs appeared that the Republican programme

of New Hampshire. In Pennsylvania, the recently elected Republican House had impeached Judge Alexander Addison, and his conviction by a

dison as the Republicans expected it would. They did not anticipate that Marshall would declare unconstitutional that section of th

o deliver the withheld commissions. It was upon this supposition that the Republican threats of impeachment were made. The Republicans considered Marbury's sui

Roane of Virginia to be Chief Justice of the United States. It was well known that Jefferson had intended to appoint Roane upon the death of Chief Justice Ellsworth.[331] But Ell

y, the Supreme Court would become an engine for the destruction of every theory of government which Marshall held dear; for a bolder, abler, and more persistent antagonist of those principles than Spencer

orderly government would be assured, the National Judiciary lifted to its high and true place, and one element of National disinteg

preme Court members of a Council of Revision with power to negative acts of Congress. No direct resolution was ever offered to the effect that the Judiciary should be given power to declare acts of Congress unconstitutional. In the discussion

udicial supremacy over legislation as much a part of our fundamental law as if the Constitution contained these specific words: th

tions had startled the land, and had been freshly stated in the Judiciary debate in the preceding Congress. Members of the Federalist majority in most of the State Legislatures had expressed, in highly colored partisan rhet

hough with much caution and some mistiness, set forth his views.[337] Chief Justice Jay and his associates had complained that the Judiciary Act of 1789 was unconstitutional, but they had not had the courage to announce that opinion from the Bench.[338] Justices Iredell and Pate

tional Judiciary had the exclusive power to declare acts of Congress unconstitutional.[340] Jefferson himself had written Meusnier, the year before the National Constitution was framed, that the Virginia Legislature had pa

te that which had previously been declared by hundreds of men. Thomas Jefferson and John Marshall as private citizens in Charlottesville and Richmond might have written Declarations and Opinions all their lives, and to-day none but the curious student would know that such men ha

oes not cite one of them in the course of this opinion, although no case ever was decided in which a judge needed so much the support of judicial precedents. Neither did he know anything whatever of what was said on the subject in the Constitutional Convention, unless by hearsay, for its sessions were secret[345] and the Journ

l probably was present in the Senate and the House when the most notable arguments were made.[348] More important, however, than written decisions or printed debates in influencing Marshall's mind was

amental law. It therefore belongs to them to ascertain its meaning, as well as the meaning of any particular act proceeding from the legislative body. If there should happen t

e important framers of the Constitution. Beyond question, Marshall considered tha

e authority of last resort to interpret the Constitution and determine the validity of laws by the test of that instrument, Marshall

, or force.[350] The second obstacle was technical and immediate. Just how should Marshall declare the Supreme Court to be the ultimate arbiter of conflicts between statutes and the Constitution? What occa

requiring them to sit in inferior courts was unconstitutional. The other members of the Supreme Court, however, had not the courage to adopt the heroic course Marshall recommended. They agreed that his views were sound, but insisted that, because the Ellsworth Judiciary Act had been acquiesced in since the adoption of the Constitution, the validity of that act must now b

to declare invalid the act by which the Republicans had overturned the new Federalist Judiciary system. Just this, as we have seen, the Republicans had expected him to d

but their energies flagged, their hearts failed, and their only action was a futile and foolish protest to the very Congress that had wrested

he Republican repeal and was holding court under the Act of 1789.[355] This case, then, alone remained as the onl

rshall who had failed to deliver the commissions to the appointees. Instead, he had, with his customary negligence of details, left them on his desk. Scarcely had he arrived at Richmond, after

oned in yours of the 12th,"-sarcastically referring to the Administration's conduct toward the

ssion of the Marshal is equal to displacing him which the President, I presume, has the power to do, but to withhold the commissions of the Justices is an act of which I entertaind no suspicion. I should however have sent ou

term had almost half expired for which Marbury and his associates had been appointed. The other justices of the peace to whom Madison had delivered commissions were then transacting all the business that required the attention of such officials. It was certain

ce whatever to any one. It presented only theoretical questions, and, on the face of the record, even these were as simple as they were u

s Attorney-General, Levi Lincoln, was excused from testifying as to what finally became of them. Madison refused to show cause and denied, by u

hat a mandamus was the proper remedy, made so not only by the nature of the relation of the Supreme Court to inferior courts and ministerial officers, bu

tive Department and dismiss the application, or it could assert this power in cases like the one before it and comman

o direct conflict, with every practical advantage in the hands of the Administration. The court had no physical means to compel the execution of its order. Jefferson would have denounced the

e National courts could not direct executives to obey the laws, and that the Judici

pervisory power of the Judiciary over legislation to be thus wounded and perhaps fatally injured, he made the decision of this insignificant case-about which the applicants themselves no longer cared-the occa

ersuading them to allow him to announce that conclusion as the opinion of the court. When we consider that, while all the Justices agreed with Marshall that the provision of the Ellsworth Judiciary Law requiring them to sit as circuit judges was unconstitutional, and y

Marshall contributed to the entire controversy. Nobody ever had questioned the validity of that section of the statute which Marshall now challenged. Ellsworth, who preceded Marshall as

sylvania, William Few of Georgia, George Read and Richard Bassett of Delaware, and Caleb Strong of Massachusetts supported the Ellsworth Law when the Senate passed it; and in the House James Madison and George Wythe of Virginia, Abraham Baldwin of Georgia, and Roger Sherman of Connecticut heartily favored and voted for the act. Most of these men were th

ty when called upon to take action in a particular controversy brought directly under it.[364] The Supreme Court itself had held that it had jurisdiction, under Section 13, to issue a mandamus in a proper case,[

ision of the Ellsworth Judiciary Law requiring justices of the Supreme Court to sit as circuit judges. This was the case of Stuart vs. Laird. Marshall held merely that the plea which raised these questions was insufficient, and the case

that practice and acquiescence under it [the Judiciary Act of 1789] for a period of several years, commencing with the organization of the judicial system ... has fixed the construction. It is a contempora

could ever be made. As it turned out, but for Marbury vs. Madison, the power of the Supreme Court to annul acts of Congress probably would not have been insisted upon thereafter. For, during the thirty-two years that Marshall remained on the Supreme Bench after the decision of that case, and for twenty years after his death, no case came before the court where an act of Congress was overthrown; and none had been invalid

the Judiciary rested the exclusive power[371] to declare any statute unconstitutional, and to announce that the Supreme Court was the ultimate arbiter as to what is and what is not law under the Constitution, Marshall d

rnment must observe. This was indispensable, he correctly thought, if the departments were to be harmonious branches of a single and Nati

ed for rendering that opinion-a pretext which, it cannot be too often recalled, had been unheard of and unsuspected hitherto. Nothing but the emergency compelling the

which they had been made.[374] Did the applicants have a right to the commissions? This depended, he said, on whether Marbury had been appointed to office. If so, he was entitled to the commission which was merely the formal evidence of the appointment.

rwise "negligence, ... fraud, fire or theft, might deprive an individual of his office." But the truth was that "a copy from the record ... would be, to every intent and purpose, equal to the original."[

er he receives an injury. One of the first duties of government is to afford that protection." Ours has been "emphatically termed a government of laws, a

e of which is directed by statute. Congress had ordered the Secretary of War to place the names of certain persons on the pension rolls; suppose that he should refus

rtain political powers and could appoint agents to aid him in the exercise of them. The courts had no authority to interfere in this sphere of Executive action. For example, the conduct of foreign aff

e vested rights of others." If he attempts to do so he is answerable to the courts. "The question whether a right has vested or not, is, in its nature, judicial, and must be tried by the judicial authority." The

d to intermeddle with the prerogatives of the executive." Far be it from John Marshall to do such a thing. He need hardly "disclaim all pretensions to such jurisdiction." Not "for a moment" would he entertain "an extravagance so absurd and excessive.... Questions in their nature political, ... can never be made in this court." But i

ot authorized to issue a writ of mandamus" to Madison, "it must be because the law is unconstitutional, and therefore absolutely incapable of conferring the authority."[384] I

but "appellate jurisdiction." But he omitted the words that immediately follow in the same sentence-"with such exceptions ... as the Congress shall make." Yet this language had, for fourteen years, apparently been considered by the whole bench and bar as m

n original jurisdiction to that court in other cases than those specified."[385] But, reasons Marshall, in answer to this contention, if Congress could thus enlarge the original jurisdiction of the Supreme Court, "the subsequent part of the section[386] is mere

risdiction thus affirmatively granted. And yet, let it be repeated, by giving original jurisdiction in cases specifically named, the Constitution put it beyond the power of Congress to inte

er this unconstitutional section? As the Chief Justice stated the question, could "an act, repugnant to the constitution ... become the law of the land"? After writing nearly n

establish such principles for "their future government, as ... shall most conduce to their own happiness." This was "the basis on which the whole American fabric had been erected." These "permanent" and "fundamental" principles, in the instance of the American Governme

say that "acts prohibited and acts allowed are of equal obligation" is to deny the very purpose for which our fundamental law was adopted. "The constitution controls any legislative act repug

f Congress. If the Constitution is supreme, then an act of Congress violative of it is not law; if the Constitution is not supreme, then "written constitutions are absurd attempts, on the part of the people, to limit a power in

l would, nevertheless, patiently examine it.[391] This he did by reasoning so simple and so logical that the dullest citizen could not fail to understand

... governs [it]. This is of the very essence of judicial duty.... If, then, ... the constitution is superior to any ordinary act of the legislature," t

t Congress may do "what is expressly forbidden." This would give to the legislature "a practical and real omnipotence, with the same breath which professes to restrict their powers within

ecide such a case "without examining the instrument under which it arises?" If the courts must look into the Cons

otton, tobacco, flour, and that the Government should bring suit to recover the tax. "Ought judgment to be rendered in such a case?" Or if a bill of at

n confession in open court." The Judiciary particularly are addressed-"it prescribes, directly for them, a rule of evidence not to be departed from." Suppose that Congress should enact a law provi

port it"? That solemn obligation "applies in an especial manner to their conduct in their official character." How "immoral" to direct them to take this oath "if they were to be used as the instruments, a

e constitution is void," and that the judicial as well as other departments are bound by

he future could take bearings from it, so enduring that all the shocks the Nation was to endure could not overturn it. Such a decision was a great event in American history. State courts,

ditions related in this chapter, was the deed of a great man. One of narrower vision and smaller courage never would have done what Marshall did. In hi

adical followers a new and concrete reason for ousting from the National Bench, and especially from the Supreme Court, all judges who would t

what Henry Adams calls "an infamous and certainly an illegal conviction"; and then Marshall's associate on the Supreme Bench, Justice Samuel Chase, was quickly impeached for high crimes and

in the discharge of their legal duties, Jefferson himself said nothing at the time. But the opinion of the Chief Justice was another

r the Executive, more than to the Executive to decide for them," he wrote. "The opinion which gives to the judges the right to decide what laws are constitutional, and wha

th corroding words to the subject regarding which, at the moment it arose, he concealed, so far as written words were concerned, his virulent resentment. For instance, seventee

. It could do no good for him, personally, to make an outcry now; and it might do harm. The doctrine which Marshall announced had, J

could win none to the Republican cause not already fighting for it, and might keep recruits from joining the Republican colors. Jefferson wa

wrote to his Secretary of the Treasury three months after Marshall's bold assertion of the dignity and power of the National courts. "It is," he contin

radical West was becoming clamorous for a forward and even a militant policy concerning the control of the Mississippi River, and especially of New Orleans, which commanded the mouth of that commercial waterway;

ther New Orleans nor any part of Louisiana had actually been surrendered by the Spanish authorities. Great Britain informed the Americ

t of foreign affairs as he was dexterous in the management of political parties, thought to escape the predi

opinion, Napoleon, yielding to "the empire of circumstances," as Talleyrand phrased it,[402] offered, and Livingston and Monroe accepted, the whole of Louisiana for less than fifteen million dollars. Of course

immorality of the acquisition affected him not at all; but the inconvenience did. He did not know what to do with Louisiana. Worse still, the treaty of

nstitutional and destructive of liberty.[406] The President doubted whether, under the Constitution, we could acquire, and was sure that we could not govern, Louisiana, and he actually prepared amendments authorizing the incorporation into the Republic

"the consent of the governed," upon which he had so carefully erected the structure of his popularity, and to drive

n peoples could not be added to it without the consent of all the partners. The Federalists now took their stand upon this indef

leaders, "should be done with as little debate as possible."[411] A month earlier he wrote: "The Constitution has made no provision for our holdin

sub-silentio."[413] The great radical favored publicity in affairs of state only when such a course was helpful to his political plans. On other occasions no aut

ly observed George Cabot, when the news was published in Boston.[416] Fisher Ames, of course, thought that "the acquiring of territory by money is mean and despicable," especially

Plumer thought that the Eastern States should form a new nation: "Adopt this western world into the Union," he said, "and you destroy at once the weight and importance of the Eastern States, and compel them to establish a separate and independent empire."[419] A few days' reflection brought Ames to the con

for disunion, the Northern Federalists speedily harked back to Jefferson's purpose of subverting the National courts. The Republicans were ruling the Nation, Virginia was ruling the Republicans, Jefferson was ruling all. Louisiana would permanently turn the balance again

e principles of our Revolution point to the remedy," declared the soured and flint-hearted Pickering. "The independence of the judges is now directl

acy."[423] The Reverend Jedediah Morse of New Hampshire wrote Senator Plumer that "our empire ... must ... break in pieces. Some think the sooner the

bot, while sympathizing with his ancient party friends, frankly opposed their mad project. Holding that secession was impracticable, h

pportunity to occupy these new, strange lands which accident, or Providence, or Jefferson had opened to them. Knowledge of this was indeed one cause of the anger of some Federalist managers who owned immense tracts in New Englan

to rail at Marshall or to attack that "subtle corps of sappers and miners" who were then beginning "to undermine ... our confederated fabric," as Jeff

efiant Marshall would at least be humbled, perhaps-probably-removed from office. But all in good time! For the present Jefferson had other work to do.

he newspapers had little to say about it. Even the bench and the bar of the country, at least in the sections remote from Washin

"usurpation," had almost nothing to say of Marshall's daring assertion of judicial supremacy which later was execrated as the very parent of Constitutional evil. An empire had been won under Jefferson; therefore Jeff

National Judiciary, rest easy on the bench which his audacity had elevated above President and Congress. The opinion of the "usurping" Chief Justice in Marbury vs. Madison should have answer at last. So on

ors as to the expediency, wisdom, and justice of the Republican plan to shackle or overthrow the National Judiciary. This hesitation was, however, unknown to the masters of the Republican organization in Congress. The Federali

career and a determinative phase of American history entered upon. His place as Chief Justice was to be made secure and the s

TNO

to his wife, Ja

. ii, 502-05,

King, May 5, 1802,

and Virginia Resolutions in 1798. (See

al of the Federalist Judiciary

Delaware, New York, Vermont, New Hampshire

cide on the constitutionality of laws made by the general government; this power being exclusively

mpetent to declare an act of the federal government unconstitutional, ... that jurisdiction ...

t the right of deciding on the constitutionality of all laws passed

ntucky and Virginia plan was "hostile to the

the Kentucky and Virginia Resolutions were "not a

preme judiciary of the nation the high authority of ultimately and conclusively decidin

n law or equity, arising under the Constitution of the United States, and the construction of all laws made in pursuance thereof, are exclusi

e the people believed the Sedition Law to be directed against free speech, the Federalist suprema

re emphatic assertions that any State might declare an act of Congress unconstitutional and

. ii, 387-89,

in the French Mission. (See vol. ii,

n, in Am. His

Ib.

te in State Legislatures, in the press, in Congressional campaigns, and in the Presidential conte

See su

he Federalist Associate Justices of the Supreme Court, resigned because of ill he

l. i, 410, o

March

Executive Proceedings

] Ib

s because, as he said, the appoi

Exec. Proc. S

ee supr

e infra,

ss. For example, just before Marshall delivered his opinion, a corresponde

rtment a political character & influence, may operate for a time to come, as it has already, to the promotion of one

litical charges, prosecutions, and similar modes of official influence, ought never to have been res

to control the Executive functions, is a new experiment. It seems to be

removal from office. But our Republican frame of Government is so firm and solid, that there is reason

will prevail, the predictions and exertions of federal monarchists and aristo

to go from Washington to Boston. Ordinary mail required a few days longer. The art

Under the law Marshall's successor mus

ious conflict between the courts of a State and the supreme tribunal of the Nation; and as a pamphleteer he assaile

rginia, that the Supreme Court could not review the judgment of a State court; in McCulloch vs. Maryland, that Congress could not exercise implied powers, but only those e

ry was to exercise the power of invalidating unconstitutional acts of Congress. (See Corwin: Doctrine of Judicial Review

ounding statutes "involved a power of deciding on their Constitutionality." (Records of the Federal Conventi

t it in the power of any Man to negative a Law passed by the Legislat

Legislature." (Ib.) Later in the debate, Madison modified his first opinion and declared that "a law violating a

nconstitutional law void.... He wished the further use to be made of

ded "legislative usurpations" and felt that "encroachments of

against any "check on the Legislativ

laws unconstitutional "did not go far enough"-the judges should also have "

bt that the Judiciary had "a negativ

t the Judges as expositors of the Constitution should have autho

h power ought to exist," but was "at a los

posed the interference of the Judges i

all that was said in the Constituti

l. i, 452, o

Virginia R

22, 1799, Journal of the House of De

President Washington, Iredell: McRee, 293-96; and see letter

supra, 40,

n: State Tri

snier, Jan. 24, 1786,

an. 24, 1786, Works: Ford, v,

e pronouncement penned by Jefferson, and Jefferson used many of the very words of the tiny colony's defiance. In her Declaratio

studies of the question of judicial su

l. i, 323, o

d. Conv.: Farrand, i

ates were not publ

e Court often came to the Senate to listen to de

doctrine. Later he opposed it, but toward the end of his life re

Chief Justice of the United States at no moment, during his occupancy of that office, felt sure of himself or of the powers of the court. (See Jay to his wife, Jay: Johnston, iii, 420.) Jay ha

e was submitted to William Cushing, an Associate Justice of the Supreme Court, and he also refused to consider it. (Wharton: State Trials, 33.) So little was a place

s prized at this period. Senator Bailey of New York actually resigned his seat in the Senate in order to accept the office of Postmaster at New York City. (Memoirs, J. Q. A.: Adams, i, 290.) Edmund Randolph, when

l that tribunal was entirely forgotten and no chamber provided for it. (See Hosea Morrill Knowlton in John Marshall-Life, Character and Judicial Services: Dill

Justice Marshall in this periodical was written by Cha

vol. iv,

Smith, May 22, 1802, M

l be attempted before we separate. It is not descrete to say more at pr

ges," American State Pape

d by Congress on the Constitution" (Cabot to Wolcott, Dec. 20, 1802, Lodge: Cabot, 328), Cabot said: "I cannot but approve the intention of your judicial corps to unite in a memorial

constitutionality of the Repeal Act was rejected

e infra,

ee supr

James M. Marshall,

ebruary

n, June 12, 1823, Works:

1 Cranch

district courts ... and writs of mandamus, in cases warranted by the principles and usages of law, to any courts appointed, or pe

ee supr

er of the Federal Judici

l concurred in an opinion of the Supreme Court which, b

s. Ravara, 2

s. Lawrence,

vs. Peter

mandamus to Hopkins as loan officer for the District of Virginia, and to the case of one John Chandler of Connecticut, also in February, 1794, in which a motion was made in behalf

andler case during the Judiciary debate in the House,

1 Cran

vs. Laird,

this case the Supreme Court held that Congress had no power to prohibit slavery in the territory purchased from France in 1803 (the Louisiana Purchase),

ground of unconstitutionally; but, by a two thirds vote

; and see especially

1 Cran

inaccurate. Compare Lee's ar

1 Cran

1 Cran

] Ib

] Ib

] Ib

] Ib

Cranch

] Ib

1 Cran

] Ib

1 Cran

t shall have appellate jurisdiction ... with s

4. (Italics

ts Professor Edward S. Corwin's careful and accurate analy

1 Cran

Ib.

1 Cran

] Ib

Cranch

l. i, 323, o

ares that, in and of itself, it is law-the supreme law of the land

e infra,

ams, Sept. 11, 1804, Works

infra, c

, Jefferson had written to a friend that "the laws of the land, administered by upright judges, would protect you from any e

he financial and commercial interests generally were determined opponents of Jefferson and Republicanism. As a sheer ma

anning: U.S.

ès, May 24, 1803, as quo

, i, 262; see also

gston and Monroe, Am. State Pap

ms: U.S.

b. ii,

ks: Ford,

l. vs. Canter, 1 Peters, 511-46, and

Large, ii, 283; and Annal

's creed and traditions, had now adopted as their own: "We cannot admit a new partner into the Union, from without the original limits of the

cholas, Sept. 7, 1803

Breckenridge, Aug

to Madison, Aug.

very mild & secretly administered." (Jefferson to Nicholas

ion of Mr. Jefferson. All nations, even pirates and savages, were to be moved by the influence of his persuasive virtue and masterly skill in diploma

rchase was first publicly announced through the press by the Indep

re, Oct. 3, 1803

, 1803, Steiner: Life and Corre

20, 1803, P

ight, Oct. 26, 1

804, N.E. Federalism: Adams, 34

ecame so estranged that they boarded in different houses an

Cabot, Jan. 29, 180

tt, March 11, 1804, N.E

lumer, Feb. 3, 1

o Morse, March

g, March 17, 1804,

Morison: O

tchie, Dec. 25, 1820,

e that of Marbury vs. Madison, did not so much as refer to Marshall's opinion, although every other case that could be found was cited. Marbury

806 (3 Cranch, 448). Robert Goodloe Harper next cited it in his argument for Bollmann (4 Cranch, 86; and see infra, chap

(5 Hughes, 1), the United States Court for that circuit, consisting of Johnson, Associate Justice of the Supreme Court, and the Judge of the District Court, granted a mandamus under the section of the

e opinion in Marbury vs. Madison. But Jefferson was then so savagely attacking Marshall's rulings in the Burr trial (see infra, chaps. vii, viii, ix) that he