Washington June 2. 07.
While Burr’s case is depending before the court, I 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 & to have it denied to be law. 1. Because the judges in the outset disclaimed all cognisance of the case; altho’ they then went on to say what would have been their opinion had they had cognisance of it. this then was confessedly an extrajudicial 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 & his agents, it is not his deed. he may withold 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, & independant of each other. as to acts therefore which are to be done by either, it has given no controul 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, shews it did not intend to give the judiciary that controul 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 & without appeal, under any law, they may give to it different & opposite constructions. thus in the case of William Smith, the H. of R. determined he was a citizen, and in the case of Wm. Duane (precisely the same in every material circumstance) the judges determined he was no citizen. in the cases of Callender & some others the judges determined the Sedition act was valid under the constitution, and exercised their regular powers of sentencing them to fine & imprisonments. but the Executive determined that the Sedition act was a nullity under the constitution, and exercised his regular power of prohibiting the execution of the sentence, or rather of executing the real law which protected the acts of the defendants. from these different constructions of the same act by different branches, less mischief arises than from giving to any one of them a controul over the others. the Executive & Senate act on the construction that until delivery from the Executive department a commission is in their possession & within their rightful power; and in case of commissions not revocable at will, where (after the Senate’s approbation & the President’s signing & sealing, new information of the unfitness of the person has come to hand before the delivery of the commission) new nominations have been made, & approved and new commissions have issued. on this construction I have hitherto acted, on this I shall ever act, and maintain it with the powers of the government against any controul which may be attempted by the judges in subversion of the independance of the Executive & Senate within their peculiar department. I presume therefore that in a case where our decision is by the constitution the supreme one, & that which can be carried into effect, it is the constitutionally authoritative one, and that that by the judges was coram non judice, & unauthoritative, because it cannot be carried into effect. I have long wished for a proper occasion to have the gratuitous opinion in Marbury v. Madison brought before the public & denounced as not law: & I think the present a fortunate one because it occupies such a place in the public attention. I should be glad therefore if, in noticing that case you could take occasion to express the determination of the Executive that the doctrines of that case were given extrajudicially & against law, & that their reverse will be the rule of action with the Executive. if this opinion should not be your own, I would wish it to be expressed merely as that of the Executive. if it is your own also, you would of course give to the arguments such a developement as a case incidental only might render proper. I salute you with friendship and respect.
DLC: Papers of Thomas Jefferson.