Page:The Supreme Court in United States History vol 1.djvu/265

Rh of evidence; he would suppose the case to assume its most serious form, if in the course of his official duty these commissions should have come into his hands, and that he might either by error or by intention have done wrong, it would not be expected that he should give evidence to criminate himself. This was an ex- treme case, and he used it only to impress upon the Court the nature of the principle in the strongest terms. Four questions were presented by Mr. Charles Lee, counsel for Marbury, etc., and being submitted to Mr. Lincoln, he solicited of the Court, their decision. Judge Washington gave his opinion first (as youngest Judge) in favor of the questions and their pertinence. Judge Chase gave his opinion in the same way, and Chief Justice Marshall concurred (Judges Paterson and Cushing were not present). Mr. Lincoln asked till the next morning to determine as he was com- pelled to attend the present day on the committee on the Georgia claims." ^ When Lincoln went on the stand, the next day, he stated in answer to the questions that he had seen some commissions signed and sealed, but did not recollect whether they were those of Marbury and of the other petitioners. As to the disposition which had been made of the commissions, the Court relieved him from testifying (and it is a singular fact that to this day no one knows what be- came of them).* The reluctance of the Attorney-

^ This report of the case in the Aurora, Feb. 15, 1802, is much fuUer than that which appears in Cranch’s Reports,, though the latter is taken verbatim from the report as published in the Anti-Federalist newspaper, the National IntMigeneer, March 18, 21, 25, 1803. The National Aegis, published in Worcester, Biass., an AdministraticHi organ, said, March 2, 1803 : "The Attorney General has appeared in the Supreme Court and consented to be examined as a witness in the business of the mandamus. He has declined appearing in behalf of the Secretary of State, having no instructions for that purpose.'*

' A letter from a Republican Congressman in the Aurora, Dec. 30, 1801, stated : "There they lay on the table when the present Administration conunenoed; and nothing more has been heard of them. It is supposed they were disposed of with the other waste paper and rubbish of the office."