Page:The Supreme Court in United States History vol 1.djvu/272

244 statute and to a declaration of the power to make such detemunation, it is probable that, in view of the final result of the decision adverse to the petitioning justices of the peace, there would have been little excitement or antagonism aroused. But Marshall had not been content with so confining the scope of his opinion. He had discussed at great length and expressed the views of the Court, as to the right of the applicants to their commissions and as to the propriety of granting a mandamus in such a case against a Cabinet officer. Such discussion was undoubtedly mere dicta; and it was this asp)ect of the case which at once aroused severe criticism and attack by President Jefferson and his adherents. With much justice and reason, they bitterly resented the action of Marshall and the Court in this respect. Jefferson felt that they had intentionally gone out of their way to rule on points unnecessarily for the decision, and he regarded it as a deliberate assumption of a right to interfere with his Executive functions, "an attempt in subversion of the independence of the Executive and Senate within their peculiar departments." "I found the commissions on the table of the Department of State, on my entrance into office, and I forbade their delivery," he said. "Whatever is in the Executive offices 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"; and his indignation over Marshall's opinion continued hot up to the day of his death. Writing four years later, at the time of the Burr trial, he stated that he had "long wished for a proper occasion to have the gratuitous opinion in Marbury v. Madison brought before the public and denounced as not law", and as late as 1823, he wrote to Judge William Johnson that "the practice of