strictly legal, and the "Midnight Judges" were fully and clearly entitled to their offices; these might be abolished by the new Con gress, but, while they existed, they had been legally filled. Unhappily, by a deplorable law of human nature, partisan excesses on one side breed the like or worse excesses on the other; President Jefferson refused to rec ognize the appointments and forbade Mr. Madison to deliver the commissions. Madi son obeyed, and the Justices applied to the Supreme Court for a mandamus to enforce their delivery. John Marshall had been nominated by the same President, confirmed by the same Sen ate, barely a month before their commissions were signed; he was known as a strong Fed eralist, although his moderation and sagacity had led him to oppose the extreme faction of his party; moreover, Thomas Jefferson was the only public man, and probably the only individual, in Virginia with whom his personal relations were notoriously cold to the verge of hostility. He fully recognized the duty of a Judge, not only to merit, but, so far as prudence might avail, to gain and retain public confidence, to seem impartial no less than to be impartial. Had he been an ordinary man he might well have been embarrassed when called to pass on the mer its of this cause; had he been an ordinary Judge he must have gladly taken any be coming way to escape the responsibility of such decision. And a becoming way was open to him: the Court were unanimously of opinion that so much of the thirteenth section of the Judiciary Act as authorized the Supreme Court "to issue writs of man damus, in cases warranted by the principles and usages of law, to any . . . persons hold ing office under the authority of the United States" was void in that it attempted to con fer on the Court an original jurisdiction not authorized by the Constitution; he had but to announce this determination, in itself one of extreme moment, and any further discus sion of the petitioners' rights or remedies became needless and might be deemed irrele vant.
Such might, such probably would, have been the course of the average man and of the average Judge; such emphatically was not the course of Marshall. He always sought to determine a controversy, never to avoid its determination; his aim was ever to decide a cause, not to be rid of it without decision. And with him, this was not a matter of temperament or policy, it was a matter of conscience and honor. He said in his charge to the jury, which reluctantly acquitted Burr of treason: "That this Court dares not usurp power, is most true. That this Court dares not shrink from its duty, is not less true. No man is desirous of becoming the peculiar subject of calumny. No man, might he let the bitter cup pass from him without selfreproach, would drain it to the bottom. But if he have no choice in the case, if there be no alternative presented to him but a dere liction of duty or the opprobrium of those who are denominated the world, he merits the contempt as well as the indignation of his country, who can hesitate which to em brace. Acting on this principle before he had thus announced it, he did not hesitate to point out in a masterly opinion that Mr. Marbury's appointment to office was in all respects complete, that his commission be longed to him as a muniment of title, that the various excuses alleged for withholding it were mere sophistry, that the Secretary of State was strictly bound by law to give it to him and that, if he failed to discharge this ministerial legal duty, an appropriate tri bunal of first instance ought to compel its performance by mandamus.'1 In the centennial history of the Court, published with its approval, the opinion (Marbury v. Madison) is said to be "in some respects obiter dictum," and the same thing is apparently conceded by the Court itself as late as 1880 in the case of United States v. Schurz (102 U. S. 395), though it is added 1 Honorable Charles J. Bonaparte, of Baltimore.
