Note 327 — ARTICLE II (continued 2)

In this connection the following colloquy between Attorney General Lincoln and the Court in course of the proceedings in Marbury v. Madison is of first importance: "Mr. Lincoln, attorney-general, having been summoned, and now called, objected to answering. * * * On the one hand he respected the jurisdiction of this court, and on the other he felt himself bound to maintain the rights of the executive. He was acting as secretary of state at the time when this transaction happened. He was of opinion, and his opinion was supported by that of others whom he highly respected, that he was not bound, and ought not to answer, as to any facts which came officially to his knowledge while acting as secretary of state. He did not think himself bound to disclose his official transactions while acting as secretary of state; * * * The court said, that if Mr. Lincoln wished time to consider what answers he should make, they would give him time; but they had no doubt he ought to answer. There was nothing confidential required to be disclosed. If there had been he was not obliged to answer it; and if he thought that any thing was communicated to him in confidence he was not bound to disclose it; * * *" 1 Cr. 137, 143-145 (1803).