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PREFACE

HIS booklet is in no sense a case book, but merely a collec

THIS of cases a be

tion cases (one of a series of eight booklets) to be abstracted in writing by students of Suffolk Law School.

To teach them how to analyze law at its source and deduce legal principles from judicial opinions is the sole object of these booklets. Every lawyer should be able to read a Supreme Court decision and form a reasonably correct interpretation of the law involved therein.

The following cases are to be abstracted in writing in accordance with the five point method, so called, as described in Chapter 7 of Dean Archer's booklet on Introduction to the Study of Law. All cases listed in the table of cases for a given month must be passed in on or before the last day of the month.

By a new rule of the school the term averages of a student will be withheld until he has completed his abstract work.

Suffolk Law School

January, 1922

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MARBURY v. MADISON.

1 Cranch, 137. Decided 1803.

Shortly before his term of office expired President John Adams nominated one Marbury to the office of Justice of the Peace in the District of Columbia. The nomination was confirmed by the Senate, the commission signed by the I'resident, and the Great Seal of the United States was affixed by the Secretary of State; but the document had not been delivered when Jefferson succeeded Adams as President of the United States. Marbury applied for his commission but Jefferson held that it was incomplete for lack of delivery by his predecessor, and directed Secretary Madison to withhold it, whereupon Marbury and others similarly aggrieved moved the United States Supreme Court for a rule to the Secretary to show cause why a writ of mandamus should not be issued ordering him to deliver the commission.

No cause having been shown, the Chief Justice delivered the opinion of the court: The first object of inquiry is,

1st. Has the applicant a right to the commission he demands?

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It remains to be inquired whether, 3dly. He is entitled to the remedy for which he applies. This depends on,

1st. The nature of the writ applied for; and,

2dly. The power of this court. 1st. The nature of the writ. This, then, is a plain case for a mandamus, either to deliver the commission, or a copy of it from the record; and it only remains to be inquired,

Whether it can issue from this court. The act to establish the judicial courts of the United States authorizes the supieme court "to issue writs of manda

mus, in cases warranted by the principles and usages of law, to any courts appointed, or persons holding office, under the authority of the United States." The constitution vests the whole judicial power of the United States in one supreme court, and such inferior courts as Congress shall, from time to time, ordain and establish. . . . In the distribution of this power it is declared that "the supreme court shall have original jurisdiction in all cases affecting ambassadors, other public ministers and consuls, and those in which a State shall be a party. In all other cases, the supreme court shall have appellate jurisdiction."

If it had been intended to leave it in the discretion of the legislature to apportion the judicial power between the supreme and inferior courts according tɔ the will of that body, it would certainly have been useless to have proceeded further than to have defined the judicial power, and the tribunals in which it should be vested. The subsequent part of the section is mere surplusage, is entirely without meaning, if such is to be the construction. To enable this

court, then, to issue a mandamus, it must be shown to be an exercise of appellate jurisdiction, or to be necessary to enable them to exercise appellate jurisdiction.

It is the essential criterion of appellate jurisdiction, that it revises and corrects the proceedings in a cause already instituted, and does not create that cause. Although, therefore, a mandamus raay be directed to courts, yet to issue sach a writ to an officer for the delivery of a paper, is in effect the same as to sustain an original action for that paper, and, therefore, seems not to belong to appellate, but to original jurisdiction. Neither is it necessary in such a case as this, to enable the court to exercise its appellate jurisdiction.

The authority, therefore, given to the supreme court, by the act establishing the judicial courts of the United States, to issue writs of mandamus to public officers. appears not to be warranted by the con. stitution; and it becomes necessary to inquire whether a jurisdiction so conferred can be exercised.

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