to Marshall's love of power, and enabled him to keep watch and ward over Jefferson.

The appointment at first gave great dissatisfaction. The Republicans complained that Adams, because of his own personal hostility, had put the strongest opponent of their chief in Virginia as a check over him. The dominant factions of the Federal party treated the nomination of Jay as a farce, and complained that Adams had disregarded the claims of Paterson in order to reward "the favorite," who held views in relation to party policy and the construction of the constitution more liberal than their own.

Wolcott, in his letter to Fisher Ames, states with precision what they thought of Marshall and his views: "He is, doubtless, a man of virtue and distinguished talents, but he will think much of the state of Virginia, and is too much disposed to govern the world according to the rules of logic. He will read and expound the constitution as if it were a penal statute, and will sometimes be embarrassed with doubts, of which his friends will not perceive the importance."

With occasional fluctuations like that from Gibbons v. Ogden, in which, contrary to his prior convictions, he absorbed and afterwards reiterated the argument of Webster, to Wilson v. Blackbird Creek Company, in which the reasoning and conclusion were his own, he gradually changed his meridian toward that of Jay.

The extent of the business of the Supreme Court during the time Marshall presided over it has been much exaggerated. Less than thirteen hundred cases were decided by it, and, in those, Marshall delivered about five hundred and fifty opinions, or, on an average, about fifteen a year. During the first two years after he came to the bench but five causes were decided, in four of which he delivered the opinion. His first term lasted five days. The average number of causes decided per year was about forty. But a few years ago the Supreme Court of Pennsylvania, under Chief Justice Agnew, held a term of seven weeks, and in that time disposed of four hundred and twenty-five out of the four hundred and fifty cases on his docket. The contrast is apparent.

It is true that some of the decisions of the federal Su

preme Court were of transcendent importance, but the mass. of them were of no greater consequence than those which came before the supreme courts of the several states.

In December, 1801, the famous case of Marbury v. Madison came legitimately before the court. The facts were few and simple.

The last part of the last session under Adams was spent by him and his cabinet in making appointments which should properly have gone over to the incoming administration. The reason assigned by Adams for this step was that he regarded the power lodged in his hands as a great trust, which it was his duty to exercise for the good of the Union; that his faith had been shaken in the principles of Jefferson, and particularly those relating to the judiciary; that if he did not fill the positions, and thus defeat the purposes of Jefferson, the latter would obtain control over the courts by filling them from the ranks of his political friends who shared his views, and thus endanger the government. As Jefferson phrased it: "The last day of his [Adams'] political power,. the last hours, and even beyond the midnight, were employed in filling all offices, and especially permanent ones, with the bitterest Federalists, and providing for me the alternative, either to execute the government by my enemies, whose study it would be to thwart and defeat all my measures, or to incur the odium of such numerous removals from office as might bear me down." Commissions were sent to fill vacancies where no vacancies could exist, unless created by the appointee vacating one office by accepting another; others were sent through the mail to marshals, etc.; Adams had signed the commissions of William Marbury, Dennis Ramsay, Robert T. Hooe, and William Harper, as justices of the peace for the District of Columbia; the secretary of state had affixed to them the seal of the United States in due form, but they had never been delivered, Adams having left before the morning light of the day on which his successor was inaugurated; they were found by Jefferson upon the table of the secretary, and he forbade their delivery. Madison did not assume the office of secretary of state

for several weeks. In the meantime the attorney-general, Levi Lincoln, whose judicial sandals were afterwards taken by Story, was the acting secretary of state, and was cognizant of the facts. Lee, the attorney-general under Adams, moved in the Supreme Court, in each case, for a rule on Madison to show cause why a mandamus should not issue, commanding him to deliver the respective commissions. Lincoln and other witnesses were examined in the presence of the court upon written interrogatories. He stated that he was acting secretary of state when the transaction happened; that he did not know that the commissions ever came to the possession of Mr. Madison, or that they were in the office when Madison took possession of it; he refused to state what had become of them, the court saying if they never came to the possession of Mr. Madison it was immaterial to the present cause what had been done with them by others. The rule issued; the secretary of state was silent, but the cause was elaborately argued in behalf of the petitioners upon the motion for a peremptory writ. At the February term, 1803, Judge Marshall delivered an opinion covering nearly twenty-seven pages in the printed volume. This was the first of that line of remarkable constitutional opinions upon which the reputation of Marshall, as a jurist, must mainly rest. The issue, in a legal sense, was exceedingly narrow. The vital and decisive question which confronted the petitioners at the very threshold of their case was, whether the court had jurisdiction; and this depended upon another, whether Congress could annul the constitution, or authorize or compel the court to disregard its provisions. This decision has often been treated as though Marshall had discovered some new principle, as Newton did the law of gravitation. The question was neither new nor difficult, nor did Marshall so regard it. There was nothing new in his reasoning upon that point. He simply reiterated what had been previously said by Hamilton, Wilson, and by many other eminent statesmen and jurists. In his opinion he says: "The question, whether an act repugnant to the constitution can become the law of the land, is a question

deeply interesting to the United States, but, happily, not of an intricacy proportioned to its interest. It seems only necessary to recognize certain principles, supposed to have been long and well established, to decide it." And, in Cohens v. Virginia, he said: "In the case of Marbury v. Madison the single question before the court, so far as that case can be applied to this, was, whether the legislature could give this court original jurisdiction in a case in which the constitution had clearly not given it, and in which no doubt respecting the construction of the article could possibly be raised."

In the dark days which preceded the Revolution the people of the colonies had been thoroughly indoctrinated with the idea that the acts of Parliament of which they complained were unconstitutional, and therefore void, and that, in consequence, they were justified in resisting their enforcement. Judge Wilson, in a famous pamphlet, had urged with great ingenuity and force that it was the right and the duty of the courts to set aside such acts. This view was supported by many of the most eminent politicians, statesmen, and jurists of that day. This doctrine had sunk deep into the popular mind.

Before the adoption of the federal constitution, Judge Wilson and Gouverneur Morris had argued the great case of the Bank of North America before the legislature of Pennsylvania. Morris said: Morris said: "They [the representatives] knew that the boasted omnipotence of legislative authority is but a jingle of words. In the literal meaning it is impious. And whatever interpretation lawyers may give, freemen must feel it to be absurd and unconstitutional. Absurd because laws cannot alter the nature of things; unconstitutional because the constitution is no more if it can be changed by the legislature." The judges in Rhode Island had set aside an act of the legislature as unconstitutional. In 1788 and 1793 the court of appeals in Virginia had done the same thing. The power of the highest court to set aside such acts was recognized in New Hampshire soon after the adoption of the written constitution of 1784. From 1790 to 1799 they were repeatedly declared void by the highest court, and sometimes

by inferior tribunals. Jeremiah Mason began practice in New Hampshire in 1791. With characteristic humor he thus describes the manner in which two statutes of the state were set aside, one by a justice of the peace and the other "by the inferior court of common pleas."

In his autobiography, Mason says: "At this time the legislature was in the practice of frequently interfering with the business of the courts by granting new trials and prescribing special rules for the trial of a particular action. A ludicrous instance of the exercise of this sovereign power occurred early in my practice at Westmoreland. A poor man was accused of having stolen two small pigs of a neighbor, who applied at my office for a prosecution for larceny. Doubting whether the taking of the pigs under the circumstances amounted to stealing, one of my students, to whom in my absence the application was made, advised to an action of trover; this was commenced, in which the two pigs were alleged to be of the value of one dollar. The deputy sheriff, in serving the writ, finding nobody at the defendant's cottage, left the summons safely placed between the door and sill, which the plaintiff, living near, saw done. As soon as the sheriff was out of sight the plaintiff went and stole away the summons. Unluckily for him, this was seen by a person at a distance. The action was, of course, defaulted, and the first news the defendant had of it was an execution. He made a great outcry, and soon ascertained that the summons had been stolen. He came to me with his complaint, and I offered him to have the judgment and execution cancelled, and to let him have a trial for the pigs. This he rejected with contempt, and forthwith applied to the legislature, then in session, for a remedy for his grievance. The legislature, without notice to the opposite party, immediately passed an act directing the magistrate to cite the plaintiff before him, set aside the default and try the action, and to allow to either party an appeal. The plaintiff was cited, and I appeared for him, and denied the power of the legislature to pass the act, and went into an argument on the constitutional restraints of the legislative power. This was