Chapter XXIX: Appendix: C

CASES OF WHICH CHIEF JUSTICE MARSHALL MAY HAVE HEARD BEFORE HE DELIVERED HIS OPINION IN MARBURY _vs._ MADISON.[1514] ALSO RECENT BOOKS AND ARTICLES ON THE DOCTRINE OF JUDICIAL REVIEW OF LEGISLATION

Holmes _vs._ Walton (November, 1779, New Jersey), before Chief Justice David Brearly. (See Austin Scott in American _Historical Review_, IV, 456 _et seq._) If Marshall ever heard of this case, it was only because Paterson, who was Associate Justice with Marshall when the Supreme Court decided Marbury _vs._ Madison, was attorney-general in New Jersey at the time Holmes _vs._ Walton was decided. Both Brearly and William Paterson were members of the Constitutional Convention of 1787. (See Corwin, footnote to 41-42.)

Commonwealth _vs._ Caton (November, 1782, 4 Call, 5-21), a noted Virginia case. (See Tyler, I, 174-75.) The language of the court in this case is merely _obiter dicta_; but George Wythe and John Blair were on the Bench, and both of them were afterwards members of the Constitutional Convention. Blair was appointed by President Washington as one of the Associate Justices of the Supreme Court.

As to the much-talked-of Rhode Island case of Trevett _vs._ Weeden (September, 1786; see Arnold: _History of Rhode Island_, II, 525-27, Varnum's pamphlet, _Case of Trevett vs. Weeden_, and Chandler's _Criminal Trials_, II, 269-350), it is improbable that Marshall had any knowledge whatever of it. It arose in 1786 when the country was in chaos; no account of it appeared in the few newspapers that reached Virginia, and Varnum's description of the incident--for it can hardly be called a case--could scarcely have had any circulation outside of New England. It was referred to in the Constitutional Convention at Philadelphia in 1787, but the journals of that convention were kept secret until many years after Marbury _vs._ Madison was decided.

It is unlikely that the recently discussed case of Bayard _vs._ Singleton (North Carolina, November, 1787, 1 Martin, 48-51), ever reached Marshall's attention except by hearsay.

The second Hayburn case (August, 1792, 2 Dallas, 409; and see _Annals_, 2d Cong. 2d Sess. 1319-22). For a full discussion of this important case see particularly Professor Max Farrand's analysis in the _American Historical Review_ (XIII, 283-84), which is the only satisfactory treatment of it. See also Thayer: _Cases on Constitutional Law_ (1, footnote to 105).

Kamper _vs._ Hawkins (November, 1793, 1 Va. Ca. 20 _et seq._), a case which came directly under Marshall's observation.

Van Horne's Lessee _vs._ Dorrance (April, 1795, 2 Dallas, 304), in which Justice Paterson of the Supreme Court said all that Marshall repeated in Marbury _vs._ Madison upon the power of the Judiciary to declare legislation void.

Calder _vs._ Bull (August, 1798, 3 Dallas, 386-401), in which, however, the Court questioned its power to annul legislation. Cooper _vs._ Telfair (February, 1800, 4 Dallas, 14). These last two cases and the Hayburn Case had been decided by justices of the Supreme Court.

Whittington _vs._ Polk (Maryland, April, 1802, 1 Harris and Johnson, 236-52). Marshall surely was informed of this case by Chase who, as Chief Justice of Maryland, decided it. The report, however, was not published until 1821. (See McLaughlin: _The Courts, the Constitution, and Parties_, 20-23.) In his opinion in this case Justice Chase employed precisely the same reasoning used by Marshall in Marbury _vs._ Madison to show the power of courts to declare invalid legislative acts that violate the Constitution.

The old Court of Appeals, under the Articles of Confederation, denounced as unconstitutional the law that assigned circuit duties to the judges of that appellate tribunal; and this was cited by Thomas Morris of New York and by John Stanley of South Carolina in the judiciary debate of 1802.[1515]

As to the statement of Chief Justice, later Governor Thomas Hutchinson of Massachusetts, in 1765, and the ancient British precedents, cited by Robert Ludlow Fowler in the _American Law Review_ (XXIX, 711-25), it is positive that Marshall never had an intimation that any such pronouncements ever had been made.

Neither, in all likelihood, had Marshall known of the highly advertised case of Rutgers _vs._ Waddington, decided by a New York justice of the peace in 1784 (see _American Law Review_, XIX, 180), and the case of Bowman _vs._ Middleton (South Carolina, May, 1792, 1 Bay, 252-55) which was not printed until 1809. (See McLaughlin, 25-26.) The same may be said of the North Carolina controversy, State _vs._ ----, decided in April, 1794 (1 Haywood, 28-40), and of Lindsay _et al vs._ Commissioners (South Carolina, October, 1796, 2 Bay, 38-62), the report of which was not printed until 1811.

For a scholarly treatment of the matter from an historical and legally professional point of view, see _Doctrine of Judicial Review_ by Professor Edward S. Corwin of the Department of History and Politics, Princeton University; also _The Courts, the Constitution, and Parties_, by Professor Andrew C. McLaughlin of the Department of History, University of Chicago. The discussion by these scholars is thorough. All cases are critically examined, and they omit only the political exigency that forced Marshall's opinion in Marbury _vs._ Madison.

The student should also consult the paper of William M. Meigs, "The Relation of the Judiciary to the Constitution," in the _American Law Review_ (XIX, 175-203), and that of Frank E. Melvin, "The Judicial Bulwark of the Constitution," in the _American Political Science Review_ (VIII, 167-203).

Professor Charles A. Beard's _The Supreme Court and the Constitution_ contains trustworthy information not readily accessible elsewhere, as well as sound comment upon the whole subject.

_Judicial Power and Unconstitutional Legislation_, by Brinton Coxe, although published in 1893, is still highly valuable. And _Power of Federal Judiciary over Legislation_, by J. Hampden Dougherty, will be profitable to the student.

Marbury _vs._ Madison is attacked ably, if petulantly, by Dean Trickett, "Judicial Nullification of Acts of Congress," in the _North American Review_ (CLXXXV, 848 _et seq._), and also by James B. McDonough, "The Alleged Usurpation of Power by the Federal Courts," in the _American Law Review_ (XLVI, 45-59). An ingenious and comparatively recent dissent from the theory of judicial supervision of legislation is the argument of Chief Justice Walter Clark of the Supreme Court of North Carolina, "Government by Judges." (See Senate Document No. 610, 63d Congress, 2d Session.)

With regard to the possible effect on American law of foreign assertions of the supremacy of the Judiciary, particularly that of France, the Address of James M. Beck of the New York Bar, before the Pennsylvania Bar Association on June 29, 1915, and reported in the Twenty-first Annual Report of that Association (222-51), is a careful and exhaustive study.

FOOTNOTES:

[1514] See 118-19 of this volume.

[1515] See footnote 5 to p. 74 of this volume.