[23] What Pinckney said in 1799 was this: “Upon no subject am I more convinced than that it is an unsafe and dangerous doctrine in a republic ever to suppose that a judge ought to possess the right of questioning or deciding upon the constitutionality of treaties, laws, or any act of the legislature. It is placing the opinion of an individual, or of two or three, above that of both branches of Congress, a doctrine which is not warranted by the Constitution, and will not, I hope, long have many advocates in this country.” Wharton, _State Trials_, 412. [24] 4 Amer. Jurist, 293; Story, Const. § 1579, n. [25] Stuart _v._ Laird, 1 Cranch, 299. [26] 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. [27] This construction, that the statute purported to authorize their acting in that capacity was afterwards, in 1794, held by the Supreme Court to be wrong. Yale Todd’s Case, 13 Howard, 52. [28] Hayburn’s Case, 2 Dallas, 409. [29] Volume v., p. 444 (Philadelphia edition, 1807). [30] 1 Cranch, 137. [31] In like manner, Jay, commissioned Chief Justice on September 26, 1789, continued, at Washington’s request, to act also as foreign secretary until Jefferson’s return from Europe. Jefferson did not reach New York until March 21, 1790. [32] And so the careful headnote of Judge Curtis in 1 Curtis’s _Decisions of the Supreme Court_, 368. [33] See Ford’s _Jefferson_, ix. 62; draft of a letter to District Attorney Hay. [34] Hare, Am. Const. Law, i. 607. [35] See, however, Chancellor Kent in 2 N. Y. Rev. 372. [36] Mississippi _v._ Johnson, 4 Wallace, 475, 492 (1866). [37] 12 Serg. & Rawle, 330; s. c. 1 Thayer’s Const. Cases, 133. [38] As to this general subject see “Origin and Scope of the American Doctrine of Constitutional Law,” 7 _Harvard Law Review_, 129. Compare the remark of Lord John Russell: “Every political constitution, in which different bodies share the supreme power, is only enabled to exist by the forbearance of those among whom this power is distributed.” I quote this from the motto of Woodrow Wilson’s fifth chapter in his _Congressional Government_.