In Marbury's Case two opposing principles came into direct conflict. The one side insists that the court could rightfully decide only the question of jurisdiction, although such decision could not be reached except by holding, and that too for the first time under the Federal Constitution, that an act of Congress contravened the Constitution and was therefore utterly void. The other side insists that the court was not justified in holding an act of Congress to be unconstitutional if any other ground of decision existed, and that it was the bounden duty of the court to see, as it did, whether any other such ground did exist. Marshall's views of judicial duty on this point were always very pronounced. In after years he thus expressed them: "No questions can be brought before a judicial tribunal of greater delicacy than those which involve the constitutionality of legislative acts." And this was the test (and it is the true test, everywhere admitted to be such) which he propounded, namely: "If they" (questions of the constitutionality of legislative acts) "become indispensably necessary to the case, the court must meet and decide them; but if the case may be determined on other grounds, a just respect for the legislature requires that the obligation of its laws should not be unnecessarily and wantonly assailed."

Jefferson's emphatic contention was that Marbury's commission was like a deed or other legal instrument, and could have no validity or effect until delivery, and hence

C

Marbury had no legal right to his undelivered commission. This was certainly a plausible, and who could say that it was not also a well founded, objection until it was examined and decided. If, therefore, Marshall had in his opinion silently ignored the point, and proceeded at once to decide the question whether the act of Congress undertaking to give the Supreme Court original power to issue a mandamus was unconstitutional, and had so decided, and had decided nothing else, the criticism would instantly have been made with great force: "Marbury's ground of complaint was plainly destitute of foundation; he had no legal right; if the court had examined this question it would have been compelled so to decide; but instead of doing so, it ignored any consideration of the fundamental basis of the plaintiff's claim and committed the serious fault of unnecessarily deciding an act of Congress to be unconstitutional."

The court was justified, therefore, in the course it pursued; viz., first, to determine whether Marbury had a legal right to his commission; if so, second, whether mandamus to the defendant was a rightful remedy. If either of these questions was determined adversely to Marbury that would end the case, and there would be no occasion to consider the far graver and more difficult question whether the act of Congress was unconstitutional, and, if so, to determine the momentous and undecided question, whether the court had the power

to declare it to be void. But since the court reached the conclusion that Marbury's legal right was perfect without a delivery of his commission, and that mandamus was the proper remedy to compel a delivery (a conclusion, by the way, adjudged by the Supreme Court eighty years afterwards in Schurz's Case to be correct), it was necessarily obliged to proceed to consider and decide whether the act of Congress which was in conflict with the Constitution was void, and, if so, whether it was the duty of the court so to declare and to refuse to give effect to it.

No hard-and-fast rule can, I think, be laid down for judges as to the grounds on which the decision of a cause should be placed. Marshall had occasion to discuss this subject in his charge to the jury in Burr's Case. The decision of the Supreme Court in the prior case of Bollman and Swartwout in respect to treason was earnestly claimed by counsel to be "contrary to law and not obligatory because it was extrajudicial and was delivered on a point not argued." Referring to this contention, Marshall says: "It is true that in that case, after forming the opinion that no treason could be committed because no treasonable assemblage had taken place, the Court might have dispensed with proceeding further in the doctrines of treason. But it is to be remembered that the judges might act separately, and perhaps at the same time, on

the various prosecutions which might be instituted, and that no appeal lay from their decisions. Opposite judg ments on the point would have presented a state of things infinitely to be deplored by all. It was not surprising, then, that they should have made some attempt to settle principles which would probably occur and which were in some degree connected with the point before them."1

Jefferson earnestly denied the soundness of every proposition involved in the decision of Marbury's Case. He denied (1) that Marbury had any legal right to his undelivered commission; but, if so, he denied (2) that the court had any power to issue a mandamus to a coordinate department of the Government; and he afterwards denied (3) that the court could interpose what he terms a "judicial veto" upon an act of another coordinate department, namely the legislative department. Marshall was therefore not only warranted on sound legal principles to deal with the case precisely as he did in his opinion, but the extraordinary and novel circumstances made it entirely proper, if not necessary, to deal with it in this manner. In any just sense, no part of the opinion is obiter, a word denoting something not easy to define with absolute precision and often difficult to apply. I forbear further observations, except to say that in these volumes will be found a more extended vindica

1 Burr's Trial (Robertson), II, 405.

tion of Marshall's course by an eminent judge1 and an eminent lawyer, in whose views and conclusions I fully

concur.

VIII.

The late Mr. Justice Stephen commences his Story of Nuncomar and the Impeachment of Sir Elijah Impey on the accusations of Warren Hastings, in these words: “In writing the History of the Criminal Law of England,' I was much struck with the way in which nearly all of the most important parts of our history connect themselves one way or another with the administration of criminal justice, and with the importance which, in writing history, attaches to a technical knowledge of the law." This observation, if not so fully true of American as of English history, is emphatically true of the cases of Aaron Burr indicted for treason and also for setting on foot an unlawful military expedition against the then Spanish province of Mexico. None of Marshall's rulings on these celebrated trials is questioned except the one awarding writs of subpoena duces tecum addressed to President Jefferson commanding him to appear at the court in Richmond and produce certain designated letters of General Wilkinson to the President, which Burr stated on oath

1 Francis M. Finch, sometime Judge of the Court of Appeals of the State of New York, Address, Vol. I, 394 et seq.

2 U. M. Rose, late President of the American Bar Association, Address, Vol. III, 115 et seq.