8227. SUPREME COURT, Marshall's opinions.—
This practice of Judge Marshall,
of travelling 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.
I recollect another instance, and the
more particularly, perhaps, because it in some
measure bore on myself. Among the midnight
appointments of Mr. Adams, were commissions
to some Federal justices of the
peace for Alexandria. These were signed
and sealed by him, but not delivered. I found
them on the table of the Department of State,
on my entrance into office, and I forbade
their delivery. Marbury, named in one of
them, applied to the Supreme Court for a
mandamus to the Secretary of State (Mr.
Madison) to deliver the commission intended
for him. 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. Besides
the impropriety of this gratuitous interference,
could anything exceed the perversion
of law? For, if there is any 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 Executive
officers is certainly deemed to be in the
hands of the President; and in this case, was
actually in my hands, because, when I countermanded
them, there was as yet no Secretary
of State. Yet this case of “Marbury
vs. Madison” is continually cited by bench
and bar, as if it were settled law, without
any animadversion on its being an obiter dissertation
of the Chief Justice. It may be impracticable
to lay down any general formula
of words which shall decide at once, and
with precision, in every case, this limit of
jurisdiction. But there are two canons which
will guide us safely in most of the cases.
First. The capital and leading object of the
Constitution was to leave with the States all
authorities which respected their own citizens
only, and to transfer to the United States
those which respected citizens of foreign or
other States; to make us several as to our
selves, but one as to all others. In the latter
case, then, constructions should lean to the
general jurisdiction, if the words will bear it;
and in favor of the States in the former, if
possible to be so construed. And indeed, between
citizens and citizens of the same State,
and under their own laws, I know but a
single case in which a jurisdiction is given
to the General Government. That is, where
anything but gold or silver is made a lawful
tender, or the obligation of contracts is any
otherwise impaired. The separate legislatures
had so often abused that power, that the
citizens themselves chose to trust it to the
General, rather than to their own special authorities.
Secondly. On every question of
construction, carry ourselves back to the time
when the Constitution was adopted, recollect
the spirit manifested in the debates, and instead
of trying what meaning may be
squeezed out of the text, or invented against
it, conform to the probable one in which it
was passed. Let us try Cohen's case by these
canons only, referring always, however, for
full argument, to the essays before cited. 1.
It was between a citizen and his own State,
and under a law of his State. It was a domestic
case, therefore, and not a foreign one.
2. Can it be believed, that under the jealousies
prevailing against the General Government,
at the adoption of the Constitution, the
States meant to surrender the authority of
preserving order, of enforcing moral duties
and restraining vice, within their own territory?
And this is the present case, that of
Cohen being under the ancient and general
law of gaming. Can any good be effected
by taking from the States the moral rule of
their citizens, and subordinating it to the
General authority, or to one of their corporations,
which may justify forcing the meaning
of words, hunting after possible constructions,
and hanging inference on inference, from
heaven to earth, like Jacob's ladder? Such
an intention was impossible, and such a
licentiousness of construction and inference,
if exercised by both governments, as may be
done with equal right, would equally authorize
both to claim all power, general and
particular, and break up the foundations of
the Union. Laws are made for men of ordinary
understanding, and should, therefore,
be construed by the ordinary rules of common
sense. Their meaning is not to be
sought for in metaphysical subtleties, which
may make anything mean anything or nothing,
at pleasure. It should be left to the
sophisms of advocates, whose trade it is, to
prove that a defendant is a plaintiff, though
dragged into court, torto collo, like Bonaparte's
volunteers, into the field in chains,
or that a power has been given, because it
ought to have been given, et alia talia. The
States supposed that by their Tenth Amendment,
they had secured themselves against constructive
powers. They were not lessened yet
by Cohen's case, nor aware of the slipperiness
of the eels of the law. I ask for no straining
of words against the General Government
nor yet against the States. I believe the
States can best govern our home concerns,
and the General Government our foreign
ones. I wish, therefore, to see maintained
that wholesome distribution of powers established
by the Constitution for the limitation
of both; and never to see all offices
transferred to Washington, where, further
withdrawn from the eyes of the people, they
may more secretly be bought and sold as at
market. But the Chief Justice says, “there
must be an ultimate arbiter somewhere”.
True, there must; but does that prove it
is either party? The ultimate arbiter is
the people of the Union, assembled by
their deputies in convention, at the call
of Congress, or of two-thirds of the States.
Let them decide to which they mean to
give an authority claimed by two of their
organs. And it has been the peculiar wisdom
and felicity of our Constitution, to have provided
this peaceable appeal, where that of
other nations is at once to force.—
To William Johnson. Washington ed. vii, 293.
[470]
Ford ed., x, 230.
(M.
1823)
See Marshall.
