John Marshall.
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that the ruling, although said to be extra- it there is no escape. To that rule, which judicial, has been steadily followed. I do Marshall himself afterward formulated, he not admit the soundness of the criticism. I gave a just obedience as it was his duty to do. have no apologies to make, but insist that That duty demanded that before raising the none are needed. I maintain the judicial cor constitutional question he should first deter rectness and propriety of the whole opinion mine whether, to solve the case before him, and deny that there is a single word in it I it was necessary to raise it; whether it might which is extra-judicial or unnecessary to the not be that the writ could be refused with ultimate decision. Be patient with me, I out touching the grave question of constitu pray you, while I venture to remove even tional jurisdiction at all; in which event that the faintest film of suspicion from one of the question must be left, for the time at least, ablest and fairest opinions ever traced by a unsolved. To perform that duty the Judge was compelled first to ascertain whether on judicial pen. the facts the applicant was entitled to the is 1 admit that ordinarily where the jurisdic sue of a mandamus. Only, if he was, did the tion of the Court to grant the relief sought further question arise whether the Court had is challenged that becomes the first question power to issue it. For the inquiry was not to be determined, and if the Court is of the opinion that such jurisdiction does not exist whether there was general jurisdiction over the case is ended and comment upon the pos the subject-matter of the applicant's right sible rights of the parties is immaterial, im to his commission, nobody disputing that, pertinent and binds nobody. But that rule but whether there existed the special juris on occasion comes in collision with another diction to award a particular form of remedy, rule to which it is necessarily subordinate; a and so if the applicant was not entitled to rule of great value and of extremest wisdom, that remedy, whether the Court could give never to be consciously violated. That rule it or not, that would be the sufficient and is that an act of the Legislature should never proper answer. To add another, obviously be declared unconstitutional and therefore needless, and yet involving a grave constitu void except where such declaration is abso tional question, would be extra-judicial and lutely and inevitably necessary to a deter rob the decision on that point of all au mination of the case before the Court; that thority. "Obiter dictum Г Jefferson would is to say that if the controversy can be de have shouted — a Federal harangue tacked termined on other grounds, it must be to an ended opinion! I may possibly, at the expense of some en determined on other grounds, and the con stitutional question be left to some proper, durable repetition, put the justification of the opinion as a whole in another form. There because imperative, occasion. The power to vindicate the Constitution were three methods of framing it, and only against legislation which contravenes it is three. First: the Judge might hold that the the highest and most delicate power of the appointment was not complete until the com judiciary. By the early Court it was spoken mission was delivered and so the applicant of with reverence as an "awful" power. It had no right to a mandamus. That would is no common thing, no cheap resource to end the case and the opinion, for since the be drawn on at will. It challenges the action writ was refused for me sufficient reason it of the people's representatives, of a co-ordi was not permissible to give another involv nate department of the government; it throt ing the constitutionality of a statute. Sec tles a law by them enacted; it measures the ond: he might pass over the question of the act by the fundamental law. Indeed, such a applicant's right in silence and go to the con tremendous power should never be exerted stitutional question. But in that event those without a necessity so imperative that from who believed the applicant had no right
