Judge Marshall in travelling out of his case to prescribe
what the law would be in a moot case not before the
Court" was "very irregular and very censurable", and
that in the Marbury Case "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 the law? Yet this case of Marbury v. Madison is continually cited by Bench and Bar as if it were settled law, without any animadversion on its being merely an obiter dissertation of the Chief Justice."[1]
It was this phase of the case, the alleged trespass of the Judges on the Presidential field of power, which elicited the most attention from the newspapers at the time the decision was rendered, and it received wide-spread comment. The brief résumé of the opinion which appeared in the National Intelligencer was widely republished, and many papers printed the opinion in full.[2] The Federalist papers regarded it as a just rebuke
- ↑ Jefferson, X, XII, letters of Jefferson to George Hay, June 2, 1807, to William Johnson, June 12, 1828, to William Jarvis, Sept. 28, 1820.
- ↑ See National Intelligencer, Feb. 23, 1808; Independent Chronicle (Boston), March 4, 1808; New York Daily Advertiser, March 7, 1803; American Daily Advertiser (Phil.), March 4, 1803; New York Spectator, March 5, 1808; Massachusetts Spy, March 16, 1808; National Aegis, March 16, 1808. Many newspapers contained a very erroneous account of the point decided; thus the Alexandria Advertiser (Va.), said: "We understand the Judges of the Supreme Court have given it as their opinion in the case of the mandamus that the Justices are entitled to
their commissions but that they have not the power to issue a mandamus in the
District of Columbia, it not being a State; if, however, the occurrence had taken
place in one of the States, they should have had no hesitation in granting it."
Quoted in Georgia Republican, March 7, 1808, and Boston Gazette, March 10, 1808.
Beveridge says that the opinion "received scant notice at the time of its delivery. The newspapers had little to say about it. Even the bench and the bar of the coun-
