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and researches so laborious。 And it is the less necessary in this
case； as having been already done by others with a logic and learning
to which I could add nothing。 On the decision of the case of Cohens
_vs_。 The State of Virginia； in the Supreme Court of the United
States； in March； 1821； Judge Roane； under the signature of Algernon
Sidney； wrote for the Enquirer a series of papers on the law of that
case。 I considered these papers maturely as they came out； and
confess that they appeared to me to pulverize every word which had
been delivered by Judge Marshall； of the extra…judicial part of his
opinion； and all was extra…judicial； except the decision that the act
of Congress had not purported to give to the corporation of
Washington the authority claimed by their lottery law； of controlling
the laws of the States within the States themselves。 But unable to
claim that case； he could not let it go entirely； but went on
gratuitously to prove； that notwithstanding the eleventh amendment of
the constitution； a State _could_ be brought as a defendant； to the
bar of his court； and again； that Congress might authorize a
corporation of its territory to exercise legislation within a State；
and paramount to the laws of that State。 I cite the sum and result
only of his doctrines； according to the impression made on my mind at
the time； and still remaining。 If not strictly accurate in
circumstance； it is so in substance。 This doctrine was so completely
refuted by Roane； that if he can be answered； I surrender human
reason as a vain and useless faculty； given to bewilder； and not to
guide us。 And I mention this particular case as one only of several；
because it gave occasion to that thorough examination of the
constitutional limits between the General and State jurisdictions；
which you have asked for。 There were two other writers in the same
paper； under the signatures of Fletcher of Saltoun； and Somers； who；
in a few essays； presented some very luminous and striking views of
the question。 And there was a particular paper which recapitulated
all the cases in which it was thought the federal court had usurped
on the State jurisdictions。 These essays will be found in the
Enquirers of 1821； from May the 10th to July the 13th。 It is not in
my present power to send them to you； but if Ritchie can furnish
them； I will procure and forward them。 If they had been read in the
other States； as they were here； I think they would have left； there
as here； no dissentients from their doctrine。 The subject was taken
up by our legislature of 1821 … '22； and two draughts of
remonstrances were prepared and discussed。 As well as I remember；
there was no difference of opinion as to the matter of right； but
there was as to the expediency of a remonstrance at that time； the
general mind of the States being then under extraordinary excitement
by the Missouri question； and it was dropped on that consideration。
But this case is not dead； it only sleepeth。 The Indian Chief said
he did not go to war for every petty 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。 I 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 I 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 therefore 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
anything 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 the 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。 1st。 The capital and leading
object of the constitution was to leave with the States all
authorities which respected their own citizens only； and to transfer
to the United States those which respected citizens of foreign or
other States： to make us several as to ourselves； but one as to all
others。 In the latter case； then； constructions should lean to the
general jurisdiction； if the words will bear it； and in favor of the
States in the former； if possible to be so construed。 And indeed；
between citizens and citizens of the same State； and under their own
laws； I know but a single case in which a jurisdiction is given to
the General Government。 That is； where anything but gold or silver
is made a lawful tender； or the obligation of contracts is any
otherwise impaired。 The separate legislatures had so often abused
that power； that the citizens themselves chose to trust it to the
general； rather than to their own special authorities。 2d。 On every
question of construction； carry ourselves back to the time when the
constitution was adopted； recollect the spirit manifested in the
debates； and instead of trying what meaning may be squeezed out of
the text； or invented against it； conform to the probable one in
which it was passed。 Let us try Cohen's case by these canons only；
referring always； however； for full argument； to the essays before
cited。
1。 It was between a citizen and his own State； and under