Note 40 — Chapter V · THE FEDERAL TRIBUNAL.

Marbury vs. Madison, 1 Cranch, 137. Mr. Madison disregarded the obiter opinion of the court, and Mr. Jefferson treated it with contempt. “The federal judges,” he said, “declared that commissions signed and sealed by the President were valid, though not delivered. I deemed delivery essential to complete a deed, which as long as it remains in the hands of the party is as yet no deed. It is in posse only but not in esse, and I withheld delivery of the commissions.” (Letter to Judge Roane, September 6, 1819. Works, vol. vii. p. 135.)