5049. MARBURY vs. MADISON, Case of.—
I observe that the case of Marbury vs.
Madison has been cited [in the trial of Aaron
Burr], and I think it material to stop at the
threshold the citing that case as authority and
to have it denied to be law. 1. Because the
judges in the outset, disclaimed all cognizance
of the case, although they then went on to say
what would have been their opinion, had they
had cognizance of it. This, then, was confessedly
an extra-judicial opinion, and, as such of
no authority. 2. Because, had it been judicially
pronounced, it would have been against
law; for to a commission, a deed, a bond,
delivery is essential to give validity. Until,
therefore, the commission is delivered out of
the hands of the Executive and his agents,
it is not his deed. He may withhold or cancel
it at pleasure, as he might his private
deed in the same situation. The Constitution
intended that the three great branches of the
government should be coordinate, and independent
of each other. As to acts, therefore,
which are to be done by either, it has
given no control to another branch. A
judge, I presume, cannot sit on a bench without
a commission, or a record of a commission;
and the Constitution having given to the
Judiciary branch no means of compelling the
Executive either to deliver a commission, or
to make a record of it, shows that it did not
intend to give the Judiciary that control over
the Executive, but that it should remain in
the power of the latter to do it or not. Where
different branches have to act in their respective
lines, finally and without appeal, under
any law, they may give to it different and
opposite constructions. Thus, in the case of
William Smith, the House of Representatives
determined he was a citizen; and in the case
of William Duane (precisely the same in
every material circumstance), the judges determined
he was no citizen. In the cases of
Callender and some others, the judges determined
the Sedition Act was valid under the
Constitution, and exercised their regular powers
of sentencing them to fine and imprisonment.
But the Executive determined that the
Sedition Act was a nullity under the Constitution,
and exercised his regular power of
prohibiting the execution of the sentence, or
rather of executing the real law, which protected
the acts of the defendants. From these
different constructions of the same act by
different branches, less mischief arises than
from giving to any one of them a control over
the others. The Executive and Senate act on
the construction, that until delivery from the
Executive department, a commission is in
their possession, and within their rightful
power; and in cases of commissions not revocable
at will, where, after the Senate's approbation
and the President's signing and
sealing, new information of the unfitness of
the person has come to hand before the delivery
of the commission, new nominations
have been made and approved, and new commissions
have issued. On this construction
I have hitherto acted; on this I shall ever
act, and maintain it with the powers of the
government, against any control which May
be attempted by the judges, in subversion of
the independence of the Executive and Senate
within their peculiar department. I presume,
therefore, that in a case where our decision
is by the Constitution the supreme one,
and that which can be carried into effect, it is
the constitutionally authoritative one, and that
that by the judges was
coram non judice, and
unauthoritative, because it cannot be carried
into effect. I have long wished for a proper
occasion to have the gratuitous opinion in
Marbury vs. Madison brought before the public,
and denounced as not law; and I think the
present a fortunate one, because it occupies
such a place in the public attention. I should
be glad, therefore, if, in noticing that case,
you could take occasion to express the determination
of the Executive, that the doctrines
of that case were given extra-judicially
and against law, and that their reverse will be
the rule of action with the Executive.—
To George Hay. Washington ed. v, 84.
Ford ed., ix, 53.
(W.
June. 1807)
