Note 26 — Chapter III · THE BEGINNINGS OF THE CHIEF JUSTICE’S CAREER; AMERICAN CONSTITUTIONAL LAW; MARBURY v. MADISON.

Marshall, when the act of 1802 restored the old system, stated to his associates his deliberate agreement with the opinion expressed by his predecessors above referred to, and proposed to refuse to sit in the circuit court. All his brethren agreed with his view on the constitutional point, but thought the question should be regarded as at rest, by reason of the earlier practice of the court, up to 1801. This view prevailed, and was soon afterwards, as above stated, judicially adopted by the court. This statement is made by Chancellor Kent in 3 N. Y. Review, 347 (1838).

For the knowledge of the authorship of this valuable article and of another related one in 2 ib. 372, I am indebted to the courtesy of Dr. J. S. Billings, the Director of the New York Public Library, and the investigations of Mr. V. H. Paltsits, one of the librarians in that institution.