etty
injury by itself, but put it into his pouch, and when that was full,
he then made war. Thank Heaven, we have provided a more peaceable and
rational mode of redress.

This practice of Judge Marshall, of travelling out of his case to
prescribe what the law would be in a moot case not before the court, is
very irregular and very censurable. 1 recollect another instance, and
the more particularly, perhaps, because it in some measure bore on
myself. Among the midnight appointments of Mr. Adams, were commissions
to some federal justices of the peace for Alexandria. These were signed
and sealed by him, but not delivered. I found them on the table of the
department of State, on my entrance into office, and 1 forbade their
delivery. Marbury, named in one of them, applied to the Supreme Court
for a Mandamus to the Secretary of State (Mr. Madison), to deliver the
commission intended for him. The Court determined at once, that being an
original process, they had no cognizance of it; and there the question
before them was ended. But the Chief Justice went on to lay down what
the law would be, had they jurisdiction of the case; to wit, that they
should command the delivery.

The object was clearly to instruct any other court having the
jurisdiction, what they should do, if Marbury should apply to them.
Besides the impropriety of this gratuitous interference, could any thing
exceed the perversion of law? For if there is any principle of law never
yet contradicted, it is that delivery is one of the essentials to
the validity of a deed. Although signed and sealed, yet as long as it
remains in the hands of the party himself, it is in fieri only, it is
not a deed, and can be made so only by its delivery. In the hands of a
third person it may be made an escrow. But whatever is in the executive
offices is certainly deemed to be in the hands of the President; and, in
this case, was actually in my hands, because, when I countermanded them,
there was as yet no Secretary of State. Yet this case of Marbury and
Madison is continually cited by bench and bar, as if it were
settled law, without any animadversion on its being merely an obiter
dissertation of the Chief Justice.

It may be impracticable to lay down any general formula of words which
shall decide at once, and with precision, in every case, this limit of
jurisdiction. But there are two canons which will guide us safely in
most of the cases. 1. The capital and leading object of th