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.