Columbia for five
years; his nomination had been ratified by the Senate; his commission
had been signed and sealed; but it had not yet been delivered when
Jefferson took office. The new President ordered Madison, his Secretary
of State, not to deliver the commission. Marbury then applied to the
Supreme Court for a writ of mandamus to the Secretary of State under
the supposed authorization of the thirteenth section of the Act of 1789,
which empowered the Court to issue the writ "in cases warranted by
the principles and usages of law to... persons holding office under the
authority of the United States." The Court at first took jurisdiction
of the case and issued a rule to the Secretary of State ordering him
to show cause, but it ultimately dismissed the suit for want
of jurisdiction on the ground that the thirteenth section was
unconstitutional.

* 1 Cranch, 137. The following account of the case is drawn
largely upon my "Doctrine of Judicial Review" (Princeton, 1914).

Such are the lawyer's facts of the case; it is the historian's facts
about it which are today the interesting and instructive ones.
Marshall, reversing the usual order of procedure, left the question
of jurisdiction till the very last, and so created for himself an
opportunity to lecture the President on his duty to obey the law and to
deliver the commission. Marshall based his homily on the questionable
assumption that the President had not the power to remove Marbury from
office, for if he had this power the nondelivery of the document was of
course immaterial. Marshall's position was equally questionable when he
contended that the thirteenth section violated that clause of Article
III of the Constitution which gives the Supreme Court original
jurisdiction "in all cases affecting ambassadors, other public
ministers, and consuls, and those in which a State shall be party."
These words, urged the Chief Justice, must be given an exclusive sense
"or they have no operation at all." This position is quite untenable,
for even when given only their affirmative value these words still place
the cases enumerated beyond the reach of Congress, and this may have
been their only purpose. However, granting the Chief Justice his view of
Article III, still we are not forced to challenge the validity of what
Congress had done. For the view taken a little later by the Court was
that it was not the intention of Congress by this language to confer any
jurisdiction at