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232 MARBURY v. MADISON.

What was decided in Marbury г1. Madison, and all that was decided, was that the Court had no jurisdiction, and that a statute pur porting to confer on them jurisdiction to issue a writ of mandamus in the exercise of original jurisdiction was unconstitutional. It is the decision upon this point that makes the case famous, and undoubtedly it was reached in the legitimate exercise of the Court's power. But, unfortunately, instead of proceeding as courts usually do, the opinion began by passing upon all the points which the denial of its own jurisdiction took from it the right to treat. It was thus elaborately laid down, in about twenty pages, out of the total twentyseven which comprise the opinion, that Mad ison had no right to detain the commissions which Marshall had left in his office, and that mandamus would be the proper remedy in any court which had jurisdiction to grant it. And so, as the Court, by its decision in this case, was reminding the Legislature of its limitations, by its dicta and in this irregular method, it intimated to the President also that his department was not exempt from judicial control. And thus two birds were reached with the same stone. Marshall made a very noticeable re mark in his opinion, seeming to point to the Chief Executive himself, and not merely to his secretary, when he said, "It is not the office of the person to whom the writ is directed, but the nature of the thing to be done, by which the propriety or impropriety of issuing the mandamus is to be deter mined"—a hint that on an appropriate occa sion the judiciary might issue its orders per sonally to him. This remark gets illustration by what happened a few years later, in 1807, when the Chief Justice, at the trial of Aaron Burr in Richmond, ordered a subpoena to the same President, Thomas Jefferson, di recting him to bring thither certain docu ments. It was a strange conception of the relations of the different departments of the government to each other, to imagine that

an order, with a penalty, was a legitimate judicial mode of addressing the Chief Ex ecutive. . . . In outline, the argument [in Marbury v. Madison] is as follows: The question is whether a Court can give effect to an un constitutional act of the Legislature. This is answered, as having little difficulty, by re ferring to a few "principles long and well established." i. The people, in establishingawritten Con stitution and limiting the powers of the Leg islature, intend to control it; else the Legisla ture could change the Constitution by an ordinary act. 2. If a superior law is not thus changeable, then an unconstitutional act is not law. This theory, it is added, is essen tially attached to a written Constitution. 3. If the act is void, it cannot bind the Court. The Court has to say what the law is, and in saying this must judge between the Consti tution and the act. Otherwise, a void act would be obligatory; and this would be say ing that constitutional limits upon legislation may be transgressed by the Legislature at pleasure, and thus these limits would be re duced to nothing. 4. The language of the instrument gives judicial power in "cases arising under the Constitution." Judges are thus in terms referred to the Consti tution; they are sworn to support it and cannot violate it. And so, it is said in con clusion, the peculiar phraseology of the in strument confirms what is supposed to be essential to all written constitutions, that a law repugnant to it is void, and that the courts, as well as other departments, are bound by it. This reasoning is mainly that of Hamilton in his short essay of a few years before in the Federalist. It answered the purpose of the case in hand, but the short and dry treat ment of the subject, as being one of no real difficulty, is in sharp contrast with the pro tracted reasoning of McCulloch r. Maryland. Cohens v. Virginia, and other great cases: and it is much to be regretted. Absolutely settled as the general doctrine is today, and