of evidence; he would suppose the case to assume
its most serious form, if in the course of his official duty
these commissions should have come into his hands,
and that he might either by error or by intention have
done wrong, it would not be expected that he should
give evidence to criminate himself. This was an extreme case, and he used it only to impress upon the
Court the nature of the principle in the strongest terms.
Four questions were presented by Mr. Charles Lee,
counsel for Marbury, etc., and being submitted to
Mr. Lincoln, he solicited of the Court, their decision.
Judge Washington gave his opinion first (as youngest
Judge) in favor of the questions and their pertinence.
Judge Chase gave his opinion in the same way, and
Chief Justice Marshall concurred (Judges Paterson
and Cushing were not present). Mr. Lincoln asked
till the next morning to determine as he was compelled to attend the present day on the committee
on the Georgia claims."[1] When Lincoln went on
the stand, the next day, he stated in answer to the
questions that he had seen some commissions signed
and sealed, but did not recollect whether they were
those of Marbury and of the other petitioners. As to
the disposition which had been made of the commissions,
the Court relieved him from testifying (and it is a
singular fact that to this day no one knows what be-
came of them).[2] The reluctance of the Attorney-
- ↑ This report of the case in the Aurora, Feb. 15, 1802, is much fuller than that which appears in Cranch's Reports, though the latter is taken verbatim from the report as published in the Anti-Federalist newspaper, the National Intelligencer, March 18, 21, 25, 1808. The National Aegis, published in Worcester, Mass., an Administration organ, said, March 2, 1808: "The Attorney General has appeared in the Supreme Court and consented to be examined as a witness in the business of the mandamus. He has declined appearing in behalf of the Secretary of State, having no instructions for that purpose."
- ↑ A letter from a Republican Congressman in the Aurora, Dec. 30, 1801, stated: “There they lay on the table when the present Administration commenced; and nothing more has been heard of them. It is supposed they were disposed of with the other waste paper and rubbish of the office."
