Th:  Jefferson.

LETTER XLIV.—­TO GEORGE HAY, June 2, 1807

TO GEORGE HAY.

Washington, June 2, 1807.

Dear Sir,

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 imprisonment.  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 control over the others.  The executive and Senate act on the construction, that until delivery from the executive department, a commission is in their possession, and within their rightful power; and in cases of commissions not revocable at will, where, after the Senate’s approbation and the President’s signing and sealing, new information of the unfitness of the person has come to hand before the delivery of the commission, new nominations have been made and approved, and new commissions have issued.