expired on the 3d of March, and which was controlled by the Federalists, a law was passed establishing new Federal courts, embracing within the jurisdiction assigned them all the States of the Union and the District of Columbia, providing three judges for each court, making in all twenty-one judges holding their offices for life, besides clerks, marshals, etc., thus anticipating the incoming administration and strengthening the judicial department of government, the power of which was to be enlarged by usurping powers never conferred; thus endeavoring, by hiding behind the gowns of the judiciary and pleading the sanctity of judicial proceedings and determinations, to render powerless and ineffective the verdict of the people at the ballot box. Among the officers created by the law were forty-two magistrates for the District of Columbia. The nominations for the various offices created by the law were sent to the Senate on the 2d of March, and confirmed during the night of March 3d. John Marshall was Secretary of State under John Adams, and although he had been appointed and confirmed as Chief Justice of the Supreme Court of the United States, he was still acting as Secretary of State. Truth is a most terrible iconoclast, and the fame of John Marshall cannot but be sullied by the following statement of an affair, which occurred in the office of the Secretary of State, as told in "The Domestic Life of Thomas Jefferson," page 307: "Just at the close of Adams' administration a law was hurried through Congress by the Federalists, increasing the number of United States courts throughout the States. At that time, twelve o'clock on the night of the 3d of March was the magical hour when one administration passed out and the other came in. The law was passed at such a late hour that, though the appointments for the new judgeships created by it, had been previously selected, yet the commissions had not been issued from the Department of State. Chief Justice Marshall, who was then acting as Secretary of State, was busily engaged filling out those commissions, that the offices might be filled with Federal appointees, while the outgoing administration was still in power. The whole proceeding was known to Jefferson. He considered the law unconstitutional and acted in the premises with his usual

boldness and decision. Having chosen Levi Lincoln as his Attorney-General, he gave him his watch and ordered him to go at midnight and take possession of the State Department, and not allow a single paper to be removed from it after that hour. Mr. Lincoln accordingly entered Judge Marshall's office at the appointed hour. I have been ordered by Mr. Jefferson,' he said to the Judge, to take possession of this office and its papers.' Why, Mr. Jefferson has not yet qualified,' exclaimed the astonished Chief Justice. Mr. Jefferson considers himself in the light of an executor bound to take charge of the papers of the government until he is duly qualified,' was the reply. But it is not yet twelve o'clock,' said Judge Marshall, taking out his watch. Mr. Lincoln, pulling out his watch and showing it to him, said, 'This is the President's watch and rules the hour.' Judge Marshall could make no appeal from this and was forced to retire, casting a farewell look upon the commissions laying on the table before him. He had, however, one or two of the commissions in his pocket, and the gentlemen who received them were called thereafter John Adams' midnight Judges.'

Among the appointments made by Adams, confirmed by the Senate, and to which the seal of the Secretary of State had been attached, but which were left on the table by the sudden and ignominious flight of John Marshall, was one appointing William Marbury as Justice of the Peace for the District of Columbia for the term of five years, thus placing it beyond the power of the incoming President to remove him during his term of office. His commission had never been delivered to him. A motion was made at the December term of the Supreme Court in 1801 for a rule requiring James Madison, Secretary of State, to show cause why a mandamus should not issue commanding him to deliver that commission to the nominee. President Jefferson, advised of the steps to be taken to bring his action respecting those commissions under the supervision of the Supreme Court, advised Mr. Madison and instructed the clerks not to make themselves parties to any act which could be regarded as recognizing the authority of the court to meddle in the affair. Mr. Madison declined to appear after the service of the motion upon

him, and when he was asked by the relator whether the commission was signed and sealed, he declined to answer, as did all the other officers of the department. An application was made to the Secretary of the Senate for a certificate that the nominations had been confirmed, which also was refused. A rule was then obtained, upon affidavits showing these facts, except the last, requiring Secretary Madison to show cause why mandamus should not be issued on a certain day, of which he took no notice. The court therefore proceeded to an ex parte hearing. Certain testimony was given by clerks under the former administration, and Attorney-General Lincoln, who on the morning of the 4th of March was acting as Mr. Jefferson's Secretary of State, answered the questions propounded him, except the last one, as to what had been done in regard to the commissions.

Charles Lee, Attorney-General under John Adams, was counsel for the relator, and the questions argued by him were presented in the following proper order :

1. Whether the Supreme Court can award the writ of mandamus in any case.

2. Whether it would lie to a Secretary of State in any case whatever.

3. Whether in the present case the court may award a mandamus to James Madison, Secretary of State.

Of course the point involving the question of the jurisdiction was the first to be considered, because if the court had no jurisdiction it could not make a decision on the merits of the case. Chief Justice Marshall, who gave the opinion of the court, and who alone, from the report, appears to have taken part, reversed the order of the relator's counsel, and substituted the following order :

1. Has the applicant a right to the commission he demanded? 2. If he has a right and that right has been violated, do the laws of his country afford him a remedy?

3. If they do afford him a remedy, is it a mandamus from this court?

In his opinion, occupying twenty pages in Cranch's Reports, and in the formulation of which he had undoubtedly availed himself of the two intervening years since the event occurred on

which the action was based, he attempted to prove that the withholding of the commission was an act unwarranted by law and a violation of a vested right, which the court declared it to be, interjecting the dogma that the court had a right under the constitution to declare an act of Congress a nullity, but conceding that it had no original jurisdiction in the case, and consequently no right to act upon it. The object of the unauthorized decision was, however, to show the inferior Federal tribunals what the court would do if the case was brought before it on appeal. Such action by the Chief Justice of the highest court of the land, especially upon an ex parte hearing, together with his conduct on the night of March 3d, 1801, constitutes a most serious detraction from his exalted fame. That the Chief Justice was a man of extraordinary ability no one can deny. That the opinion rendered in the case of Marbury v. Madison, attempting to show the power of the court to declare an act of Congress a nullity, was a most able production, no one can gainsay. The only weak point was his inability to show the warrant in the constitution for the court to interfere in a matter confided to a co-inordinate branch of the government, and over which it had exclusive jurisdiction. It would perhaps be deemed both futile and presumptuous to attempt an answer, nor is one needed. The application of that simple test, suggested by the Savior of Mankind while on earth, when he declared that "the tree is known by its fruit," is sufficient to overthrow the sophistry of the able Chief Justice; because the exercise of the nullifying power for the ostensible purpose of enforcing the constitution has really resulted in overthrowing it, changing the government created by it into a judicial oligarchy, and completely destroying the co-ordination of the three great branches of the government, by rendering the legislative subservient to the judicial. "The tree is known by its fruit," and this court doctrine must be condemned by its results.

Within sixty days after the delivery of the opinion in the case of Marbury v. Madison, Congress overturned the whole judicial fabric erected in the last days of the Adams administration, turning out to grass the twenty-one judges created by it. There no ground for question regarding the legality of the

was

appointment of those midnight judges whose commissions John Marshall had in his pocket at the time of his inglorious exit from the State Department, which commissions he had delivered; and although a great outcry was raised against the repealing act, which was denounced as an assault upon the sanctity of the judiciary and declared to be unconstitutional, yet no steps were ever taken by the midnight judges to compel the payment of their salaries, or to test the constitutionality of the repealing act. The Republican party had control of the legislative and executive branches of government, and the Chief Justice and his friends, after a careful survey of the field, undoubtedly concluded to remain quiescent, for fear that they might be deprived of the unconstitutional powers conferred upon them by the Judiciary Act of 1789, if they proceeded any further. No more was heard of Marbury's commission, and the new judges quietly retired to private life.

The control of the Supreme Court over the legislation and the jurisprudence of the State governments, conferred without constitutional warranty by the 25th Section of the Judiciary Act of 1789, could be repealed by Congress; and the members of that court had evidence enough already, of the firmness and temper of both the President and Congress, to prevent them from pushing the contest one step further.

That there is no power conferred upon the Supreme Court to nullify a law of Congress is proven not only by its inability to discover the warrant therein written, but also by the fact that if so exercised it can easily be overturned by the powers expressly given to the other departments by the plain letter of the constitution. Take, for instance, the decision of the Supreme Court nullifying the Income Tax law. That decision could have been rendered nugatory if the President, who had sworn "to preserve, protect, and defend the constitution," had ignored the unfounded dogma of the court that a law is not a law whenever it chooses to say so, and had obeyed the constitutional mandate to take care that the laws shall be faithfully executed." But he not having done so, there is one other recourse. Among the powers given to Congress is the power "to make all laws which shall be necessary and proper