FOOTNOTES:
[1512] See footnote to 58 of this volume.
[1513] Breckenridge MSS. Lib. Cong.
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.