in the Constitution had not been deemed to infer a correlative negative. Thus, were the rule laid down in Marbury v. Madison to be followed, Congress would have power to enact penalties against only the crimes of counterfeiting, treason, and piracy and offences against the Law of Nations, whereas in fact it had, even as early as 1790, enacted penalties against many other acts, by virtue of its general authority under the "necessary and proper" clause.10

Yet it must be admitted that the rule of exclusiveness does often apply to cases of affirmative enumeration, so that the only question is whether Article III, § 2, par. 2, furnished such a case. Speaking to this point, the Chief Justice said: "A negative or exclusive sense must be given them [the words of the paragraph in question] or they have no operation at all." But this is simply not so. For though given only their affirmative value, these words still place the cases enumerated by them beyond the reach of Congress, surely no negligible matter. Nor does the Chief Justice's attempt to draw support from the further words of the same paragraph fare better upon investigation. "In all other cases," he quotes, the Supreme Court is given appellate jurisdiction, that is, as he would have it, merely appellate jurisdiction. Unfortunately for this argument the words thus pointed to are followed by the words-which the Chief Justice fails to quote-"with such exceptions ... as the Congress shall make." Why, then, should not the exceptions thus allowed to the appellate juris1 Stat. L. 112 ffg. (Apr. 30, 1790).

10

diction of the Supreme Court have been intended to take the form, if Congress so willed, of giving the court original jurisdiction of the cases covered by them?

Moreover, the time was to come when Marshall himself was to abandon the reasoning underlying the rule laid down in Marbury v. Madison. This rule, to repeat, was that the Supreme Court's original jurisdiction is confined by the Constitution to the cases specifically enumerated in Article III, § 2, par. 2, and though this was only dictum-that the court's appellate jurisdiction is confined "to all other cases.' But now it must be noted that jurisdiction is always either original or appellate,-that there is, in other words, no third sort. The rule laid down in Marbury v. Madison becomes therefore the logical equivalent of the proposition that the Supreme Court had only original jurisdiction of the cases enumerated in Article III, § 2, par. 2. In Cohens v. Virginia12 nevertheless the court took jurisdiction on appeal of a case which had arisen "under this Constitution," but was also a case to which a State was party, on the basis of the rule, as stated by the Chief Justice, that "Where the words admit of appellate jurisdiction the power to take cognizance of the suit originally does not necessarily negative the power to decide upon it on an appeal, if it may originate in a different court."13 And in further illustration of this rule, the Chief Justice instanced the right of the Supreme Court to take jurisdiction on appeal of certain cases which foreign 126 Wheat. 264 (1821).

13 Ib. 395-402.

consuls were allowed to institute in the lower federal courts. 14 He also insisted, and quite warrantably, upon the necessity of the rule in question to major purposes of the Constitution. Yet obviously if the rule is to be harmonized with that laid down in Marbury v. Madison, it must be by eliminating the word "all" from the opening clause of Article III, § 2, par. 2, and by inserting qualifying words in front of the word "those" of the same clause. Otherwise the line of reasoning taken in Marbury v. Madison is abandoned and the precise decision there left hanging in mid-air. 15

Suppose however, we concede Marshall his construction of Article III, is his decision absolved of error thereby? By no means. This decision rests upon the assumption that it was the intention and necessary operation of § 13 of the Act of 1789 to enlarge the original jurisdiction of the Supreme Court, and this cannot be allowed. To begin with, in Common Law practice, in the light of which § 13 was framed, the writ of mandamus was not, ordinarily at least, an instrument of obtaining jurisdiction by a court, even upon appeal, but like the writs of habeas corpus and injunction, was a remedy available from a

"The validity of such appeals was considered by C. J. Taney in Gittings v. Crawford, Federal Cases, 5,465. Referring to the precise clause, under discussion in Marbury v. Madison, Taney said: "In the clause in question there is nothing but mere affirmative words of grant, and none that import a design to exclude the subordinate jurisdiction of other courts of the United States on the same subject-matter." See also C. J. Waite's language in Ames v. Kansas, 111 U. S. 449.

15 The precise precedent in Marbury v. Madison has been applied several times. See 5 How. 176, 1 Wall. 243, 8 Wall. 85.

court in the exercise of its standing jurisdiction. This being the case, however, why may it not have been the intention of Congress in enacting § 13, not to enlarge the Supreme Court's jurisdiction, but simply to enable the court to issue the writ of mandamus to civil officers of the United States as auxiliary to the original jurisdiction which the Constitution conferred upon it? It is certain that the court has more than once entertained motions by original suitors for injunctions to such officers,16 and it is apparent that, so far as the question here discussed is concerned, an application for a writ of mandamus must rest on the same footing.1

17

Furthermore, the proposition that the writ of mandamus is not to be regarded ordinarily as a means of obtaining jurisdiction, but only of exercising it, was recognized and applied by the Supreme Court itself a few years later, in a case the exact parallel of Marbury v. Madison. By § 14 of the Act of 1789 the circuit courts of the United States were given the power, in words substantially the same as those employed in § 13, to issue certain writs "in cases authorized by the principles and usages of law." Yet in McIntire v. Wood, 18 where the issue was the validity of a writ of mandamus to a person holding office

16 Miss. v. Johnson, 4 Wall. 475; Ga. v. Stanton, 6 Wall. 50. The grounds on which these cases were dismissed do not affect the view urged in the text.

17

Suppose Congress should transfer the business of interstate extradition to federal commissioners, as it would be within its power to do, there would be plenty of occasions when the Supreme Court would be asked for writs of mandamus to civil officers of the United States. See Ky. v. Dennison, 24 How. 65. 187 Cr. 504 (1813).

19

under the authority of the United States the Supreme Court ruled that before a circuit court could utilize the power given it in § 14 in a case, it must have jurisdiction of the case on independent grounds, and the same rule was later reiterated in McClung v. Silliman. But clearly, had the court followed this line of reasoning in Marbury v. Madison, it could not have questioned the validity of § 13. Indeed, had it but followed the, today at any rate, well-known maxim of Constitutional Law that of two possible interpretations of a statute, the one harmonious with the Constitution, the other at variance with it, the former must be preferred,20 it could not have challenged the legislation in question. By its view of Article III, § 2, par. 2, it must still doubtless have declined jurisdiction of the case, but the ground of its action would have been, not the error of Congress, but the error of plaintiff.

In short there was no valid occasion in Marbury v. Madison for any inquiry by the court into its prerogative in relation to acts of Congress. Why then, it will be asked, did the court make such an inquiry? In part the answer to this question will appear later, but in part it may be answered now. To speak quite frankly, this decision bears many of the earmarks of a deliberate partisan coup. The court was bent on reading the President a lecture on his legal and moral duty to recent Federalist appointees to judicial office, whose commissions the last Administration had not

196 Wheat. 598 (1821).

20 For a rather far-fetched application of this rule see the "Commodities Clause" Case, 213 U. S. 366 (1908).