What did Marbury do next?

Fri Mar 9 10:50:39 PST 2007

why would not the state or fed courts have mandamus jurisdction; surely
Marshall's opinion implied he should go to the District Court for DC and
apply for the writ.  The cases you cite are of coursre well after
Marbury; so are we certain this was the law in 1803?

Paul Finkelman
President William McKinley Distinguished Professor of Law
     and Public Policy
Albany Law School
80 New Scotland Avenue
Albany, New York   12208-3494

518-445-3386 
pfink at albanylaw.edu
>>> Edward A Hartnett <hartneed at shu.edu> 03/09/07 1:14 PM >>>
The short answer is that there was no court with jurisdiction to which 
Marbury could turn.  No court had mandamus jurisdiction over a federal 
officer.

Not the state courts: McClung v. Silliman, 19 US 598 (1821).

Not the lower federal courts.  McIntire v. Wood. 11 US 504 (1813).

In 1838, the Supreme Court eventually held that the territorial courts
for 
DC had such mandamus jurisdiction. Kendall v. Stokes, 37 US 524 (1838), 
but not only is Kendall itself far from persuasive, it is also highly 
unlikely that the same result would have been reached in 1803 -- and
there 
is little reason to think that a Congress that had just thrown
supposedly 
life-tenured circuit judges out of their jobs would have hesitated to 
remove  mandamus from territorial courts in DC if Marbury had imagined 
that such jurisdiction existed and attempted to invoke it. 

We discuss this topic every year or two, so the archives should have 
fuller elaboration.

One of the great ironies of Marbury is that its result is precisely 
contrary to its celebrated dictum that for every right there must be a 
remedy: Marbury had no remedy.

Edward A. Hartnett
Richard J. Hughes Professor
     for Constitutional and Public Law and Service
Seton Hall University School of Law
One Newark Center
Newark, NJ 07102-5210
973-642-8842
hartneed at shu.edu
SSRN author page: http://ssrn.com/author=253335

Kurt Lash <Kurt.Lash at lls.edu> 
Sent by: conlawprof-bounces at lists.ucla.edu
03/09/2007 12:47 PM

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Re: What did Marbury do next?

I love to challenge my students every year with the question "What
happened to William Marbury?"  Thanks to their intrepid efforts over
the years, I believe we know this much:

Apparently Marbury went into financing, and his house in Georgetown,
whhere he apparently lived in until his death, is now the Ukranian
embassy.  Similar to Adams and Jefferson (both of whom died July 4,
1826), Marbury and Marshall died in the same year (1835).  I do not
think that anybody knows why he never pursued his case in a lower
court.

Kurt Lash
Loyola Law School, Los Angeles
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Hi all,

=20

A student asked me a question after class the other day that I, with the
meager historical resources I have in my office, couldn't find the
answer to, so I figured someone here might know.  After the decision in
Marbury v. Madison, did William Marbury take any action to try to get
his commission from a court that actually had jurisdiction (if one
existed)?  He had a Supreme Court decision saying he had a right to his
commission, albeit a President who didn't want to actually give it to
him.  Did he do anything to follow-up?  Or did he just give up knowing
Jefferson wouldn't let him have the position?

=20

Thanks,

=20

David S. Cohen

Associate Professor of Law

Drexel University College of Law

(215) 571-4714

=20

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<p class=3DMsoNormal><font size=3D2 face=3DArial><span =
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font-family:Arial'>Hi all,<o:p></o:p></span></font></p>

<p class=3DMsoNormal><font size=3D2 face=3DArial><span =
style=3D'font-size:10.0pt;
font-family:Arial'><o:p> </o:p></span></font></p>

A student asked me a question after class the other =
day that
I, with the meager historical resources I have in my office, =
couldn't
find the answer to, so I figured someone here might know. After =
the
decision in Marbury v. Madison, did William Marbury take any action to =
try to
get his commission from a court that actually had jurisdiction (if one
existed)? He had a Supreme Court decision saying he had a right to =
his
commission, albeit a President who didn't want to actually give it =
to
him. Did he do anything to follow-up? Or did he just give up
knowing Jefferson wouldn't let him have the =
position?<o:p></o:p>

<p class=3DMsoNormal><font size=3D2 face=3DArial><span =
style=3D'font-size:10.0pt;
font-family:Arial'><o:p> </o:p></span></font></p>

<p class=3DMsoNormal><font size=3D2 face=3DArial><span =
style=3D'font-size:10.0pt;
font-family:Arial'>Thanks,<o:p></o:p></span></font></p>

<p class=3DMsoNormal><font size=3D2 face=3DArial><span =
style=3D'font-size:10.0pt;
font-family:Arial'><o:p> </o:p></span></font></p>

<p class=3DMsoNormal><font size=3D2 face=3DArial><span =
style=3D'font-size:10.0pt;
font-family:Arial'>David S. Cohen</span></font><o:p></o:p></p>

<p class=3DMsoNormal><font size=3D2 face=3DArial><span =
style=3D'font-size:10.0pt;
font-family:Arial'>Associate Professor of =
Law</span></font><o:p></o:p></p>

<p class=3DMsoNormal><font size=3D2 face=3DArial><span =
style=3D'font-size:10.0pt;
font-family:Arial'>Drexel University College of =
Law</span></font><o:p></o:p></p>

<p class=3DMsoNormal><font size=3D2 face=3DArial><span =
style=3D'font-size:10.0pt;
font-family:Arial'>(215) 571-4714</span></font><o:p></o:p></p>

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style=3D'font-size:
12.0pt'><o:p> </o:p></span></font></p>

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