physical means to compel the execution of its order. Jefferson would have denounced the illegality of such a decision and laughed at the court's predicament. In short, had been issued, the court would have been powerless to enforce obedience to its own mandate.

If, on the contrary, the court dismissed the case, the Republican doctrines that the National courts could not direct executives to obey the laws, and that the Judiciary could not invalidate acts of Congress, would by acquiescence have been admitted.

No matter which horn of the dilemma Marshall selected, it was hard to see how his views could escape impalement. He chose neither. Instead of allowing his cherished purpose of establishing the principle of supervisory power of the Judiciary over legislation to be thus wounded and perhaps fatally injured, he made the decision of this insignificant case - about which the applicants themselves nolonger cared the occasion for asserting that principle. And he did assert that principle asserted it so impressively that for more than a century his conclusion has easily withstood repeated assaults upon it, which still continue.

Marshall accomplished his purpose by convincing the Associate Justices of the unconstitutionality of that section of the Ellsworth Judiciary Act of 1789 1

1 Section 13 provided, among other things, that "the Supreme Court.. shall have power to issue writs of prohibition to the district courts.. and writs of mandamus, in cases warranted by the principles and usages of law, to any courts appointed, or persons holding office, under the authority of the United States." (U.S. Statutes at Large, 1, 73; Annals, 1st Cong. 2d Sess. 2245.)

which expressly conferred upon the Supreme Court the power to issue writs of mandamus and prohibition, and in persuading them to allow him to announce that conclusion as the opinion of the court. When we consider that, while all the Justices agreed with Marshall that the provision of the Ellsworth Judiciary Law requiring them to sit as circuit judges was unconstitutional, and yet refused to act upon that belief as Marshall wanted them to act, we can realize the measure of his triumph in inducing the same men to hold unconstitutional another provision of the same act-a provision, too, even less open to objection than the one they had sustained.

The theory of the Chief Justice that Section 13 of the old Judiciary Law was unconstitutional was absolutely new, and it was as daring as it was novel. It was the only original idea that Marshall contributed to the entire controversy. Nobody ever had questioned the validity of that section of the statute which Marshall now challenged. Ellsworth, who preceded Marshall as Chief Justice, had drawn the act when he was Senator in the First Congress; 1 he was one of the greatest lawyers of his time and an influential member of the Constitutional Convention.

One of Marshall's associates on the Supreme Bench at that very moment, William Paterson, had also been, with Ellsworth, a member of the Senate Committee that reported the Judiciary Act of 1789, and he, too, had been a member of the Constitutional Convention. Senators Gouverneur Morris of

1 See supra, 53-54.

New York, William S. Johnson of Connecticut, Robert Morris of Pennsylvania, William Few of Georgia, George Read and Richard Bassett of Delaware, and Caleb Strong of Massachusetts supported the Ellsworth Law when the Senate passed it; and in the House James Madison and George Wythe of Virginia, Abraham Baldwin of Georgia, and Roger Sherman of Connecticut heartily favored and voted for the act. Most of these men were thorough lawyers, and every one of them had also helped to draft the National Constitution. Here were twelve men, many of them highly learned in the law, makers of the Constitution, draftsmen or advocates and supporters of the Ellsworth Judiciary Act of 1789, not one of whom had ever dreamed that an important section of that law was unconstitutional.1

Furthermore, from the organization of the Supreme Court to that moment, the bench and bar had accepted it, and the Justices of the Supreme Court, sitting with National district judges, had recognized its authority when called upon to take action in a particular controversy brought directly under it." The Supreme Court itself had held that it had jurisdiction, under Section 13, to issue a mandamus in a {^ proper case, and had granted a writ of prohibition by authority of the same section. In two other cases this section had come before the Supreme

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1 See Dougherty: Power of the Federal Judiciary over Legislation, 82. Professor Corwin says that not many years later Marshall concurred in an opinion of the Supreme Court which, by analogy, recognized the validity of it. (Corwin, 8-9.)

2 U.S. vs. Ravara, 2 Dallas, 297.
3 U.S. vs. Lawrence, 3 Dallas, 42.

4 U.S. vs. Peters, ib. 121.

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