While Burr's case is depending before the court, I will trouble you from
time to time with what occurs to me. I observe that the case of Marbury
v. Madison has been cited, and I think it material to stop at the
threshold the citing that case as authority, and to have it denied to be
law. 1. Because the judges, in the outset, disclaimed all cognizance of
the case; although they then went on to say what would have been their
opinion, had they had cognizance of it. This then was confessedly an
extra-judicial opinion, and, as such, of no authority. 2. Because, had
it been judicially pronounced, it would have been against law; for to
a commission, a deed, a bond, delivery is essential to give validity.
Until, therefore, the commission is delivered out of the hands of the
executive and his agents, it is not his deed. He may withhold or cancel
it at pleasure, as he might his private deed in the same situation. The
constitution intended that the three great branches of the government
should be co-ordinate, and independent of each other. As to acts,
therefore, which are to be done by either, it has given no control to
another branch. A judge, I presume, cannot sit on a bench without a
commission, or a record of a commission: and the constitution having
given to the judiciary branch no means of compelling the executive
either to deliver a commission, or to make a record of it, shows it did
not intend to give the judiciary that control over the executive, but
that it should remain in the power of the latter to do it or not. Where
different branches have to act in their respective lines, finally
and without appeal, under any law, they may give to it different and
opposite constructions. Thus in the case of William Smith, the House of
Representatives determined he was a citizen, and in the case of William
Duane (precisely the same in every material circumstance) the judges
determined he was no citizen. In the cases of Callender and others, the
judges determined the sedition act was valid under the constitution,
and exercised their regular powers of sentencing them to fine and