1. I have treated this subject at length in Belated Feudalism: Labor, the Law, and Liberal Development in the United States (Cambridge University Press, 1991).Google Scholar

2. Humphrey's Executor v. U.S., 295 U.S. 602 (1935).

3. For example, see Breyer, Stephen G. and Stewart, Richard B., Administrative Law and Regulatory Policy (Boston: Little Brown, 1992), 120 ff. and 20–22.Google Scholar

4. The Politics of Aristotle, Barker, Ernest, ed. (Oxford University Press, 1962) 93, 116.Google Scholar

5. Bodin, Jean, Six Books of the Commonwealth, Tooley, M. J., ed. (Oxford: Basil Blackwell, n.d.), 44–45.Google Scholar

6. On the salience of the question of office in colonial America, see Wood, Gordon, Creation of the American Republic, chap. 4, esp. 143 ff.; and passim.Google Scholar

7. See for a recent discussion, Ackerman's, Bruce “Time Two,” in We The People: Foundation (Cambridge: Harvard University Press, 1991).Google Scholar

8. Sainty, J. C., “The Tenure of Offices in the Exchequer,” 116Google ScholarEnglish Historical Review (1965), 449–75.Google Scholar

9. For a description of a fairly policy-less government as late as the eve of American independence see Brooke, John, King George III (Constable & Constable, 1972).Google Scholar

10. Swart, K. W., Sale of Offices in the Seventeenth Century (Utrecht: Hess, 1980), chaps. 1 and 2.Google Scholar

11. Aylmer, G. E., The King's Servants; The Civil Service of Charles I, 1625–1642 (New York: Columbia University Press, 1961), 89.Google Scholar

12. Coke, Edward, The Fourth part of the Institutes of the Laws of England (London: E. and R. Brooke, 1797).Google Scholar

13. Holdsworth, William, History of English Law (London: Methuen, 1914) vol. X, 500.Google Scholar

14. For an excellent study of Tudor Officeholding, see Richardson, W. C., Tudor Chamber Administration, 1485–1547 (Baton Rouge: Louisiana State University, 1952).Google Scholar

15. On master and servant in the sixteenth century, see Elton, G. R., The Tudor Revolution in Government: Administrative Changes in the Reign of Henry VIII (Cambridge University Press, 1953).CrossRefGoogle Scholar

16. See Beer, George Louis, The Old Colonial System: 1660–1754 (New York: Macmillan, 1912), vol. 1, 284, 292, and passim.Google Scholar

17. DeSmith, S. A., “The Prerogative Writs,” 1 Cambridge Law Journal 40 (1951), 45–47.Google Scholar

18. Commins v. Massam, March 196 (1642). See Weintraub, Harold, “English Origins of Judicial Review By Prerogative Writ: Certiorari and Mandamus,” 9 New York Law Forum 478 (1963), 504 ff.Google Scholar

19. Jenks, Edward, “The Prerogative Writs in English Law,” 32 Yale Law Journal 524 (1927), 530.Google Scholar

20. The first recorded decision is James Bagg's Case, 11 Co. Rep. 93b (1615).

21. Cavendish's case, 1 Anderson 152 (1587).

22. Constable of Stepney, 1 Bulstrode 174 (1611).

23. R. v. Dr. Askew, 4 Burr 2186 (1768).

24. The King v. Commissioners of Land Tax for the Parish of St. Martin in the Field, 1 T.R. 146 (1786), 149. See also The King against Patrick, 2 Keeble 164 (1663).

25. See Tapping, Thomas, The Law and Practice of the High Prerogative Writ of Mandamus (Philadelphia: T. & J.W. Johnson, 1853), 226.Google Scholar

26. R. v. The Corporation of Wells, 4 Burr 1999 (1767).

27. The King against the Mayor, Alderman, and Common Council, of London, 2 T.R. 177 (1787), 182.

28. The Case of Chester Mill Upon the River of Dee, 10 Co. 137b (1610).

29. Coke, , Fourth Institute, 294, 226.Google Scholar

30. Knipe v. Edwin, 4 Mod. 281 (1695).

31. Plucknett, Theodore F.W., A Concise History of the Common Law (Boston: Little Brown, 1956), 477.Google Scholar

32. Pollock, Frederick and Maitland, Frederic William, The History of English Law Before the Time of Edward I (Cambridge University Press, 1968, vol. 2, 532.Google Scholar

33. 3 Burr 1742 (1765), 1760, 1759, 1765.

34. Lane v. Cotton, 1 Ld. Raymond 646 (1701), 648, 650, 656.

35. The majority did say that the deputy himself could have been held liable in a proper suit, not for a theft by his servant but for having received Exchequer notes into his custody when he was only authorized to receive letters. Ibid., 649.

36. The most aggressive statement of this thesis is McCloskey, Robert G., The American Supreme Court (Chicago: University of Chicago Press, 1960), 40Google Scholar, in which Marshall's tack is attributed to outright deviousness.

37. For example, Bradley, James, Cases on Constitutional Law, part I (Cambridge: Charles W. Sever, 1894), 107–114Google Scholar; Stone, Geoffrey R., Seidman, Louis M., Sunnstein, Cass R., and Tushnet, Mark V., Constitutional Law (Boston: Little Brown, 1991), 21–29Google Scholar; Mason, Alpheus Thomas and Stephenson, Donald Grier Jr., American Constitutional Law, 10th ed. (Englewood Cliffs: Prentice Hall, 1993), 55–58.Google Scholar

38. Haskins, George Lee, Foundations of Power: John Marshall, 1801–15, part one (New York, Macmillan, 1981), 204.Google Scholar

39. O'Fallon, James M., “Marbury,” 44 Stanford Law Review 219 (1992), 252 ff.Google Scholar

40. O'Fallon, 256 ff. and passim. Professor Jack Garraty precedes his valuable little study of Marbury with the following paragraph: “Paradoxically, the first of our controversies and in some respects the most important arose from by far the least significant of causes and the meanest of motives. It is a tale of narrow partisanship, clashing ambitions, and a man seeking the humble office of justice of the peace for the District of Columbia.” Garraty, Jack A., ed., Quarrels That Have Shaped the Constitution (New York: Harper & Row, 1962)Google Scholar, I. An exception closer in spirit to our concerns, in an article that sees Marbury as a precedent against judicial deference to administrative decisionmaking, is Monaghan, Henry P., “Marbury and the Administrative State,” 83, Columbia Law Review, 1 (1983).Google Scholar

41. 5 U.S. 137 (1803), 152.

42. O'Fallon estimates that in the factional politics and struggles over nationhood in which Marshall would make his greatest contributions, Marbury was an “irrelevancy.” “Marbury,” 260.

43. 5 U.S. 137, 155. Later in the opinion, Marshall will notice the office is “not to be sold,” as a reason why it must be restored to do justice to Marbury, and not compensated for through a payment in a action of detinue (p. 173).

44. Ibid., 162.

45. Ibid., 166.

46. Ibid., 167. Marshall, at 171–2, underscores the question of jurisdiction when he distinguishes this case from an earlier decision where mandamus had been sought and denied. A 1792 act, providing for circuit-court judges to report the names of soldiers to be placed on a pensioners list by the secretary of war, was declared unconstitutional, at which point Congress provided that the secretary of war and the attorney general should settle any claims under the earlier process in the Supreme Court. When a claimant previously certified by the judges sought mandamus to order the secretary of war to place a name on the list, it was held that the claimant had no vested interest to be protected (in effect, that the report of the commissioners had not been issued by an authentic jurisdiction).

47. Ibid., 173.

48. 3 Burr 1268 (1762).

49. 5 U.S. 137, 177. David E. Engdahl, in the context of a different argument, has stressed the distinction Marshall is careful to make throughout the opinion between “case” and “question.” “John Marshall's ‘Jeffersonian’ Concept of Judicial Review,” 42 Duke Law Review (1992): 279, 325–328.Google Scholar

50. For example, Lord Mansfield opens his brief final opinion in Rex v. Barker with “Here is a function with emoluments; and no specific legal remedy. The right depends upon election.”

51. Following these “preliminaries,” the defendant was ordered to show cause in detail why the writ should not be issued. See Weintraub, , “English Origins of Judicial Review,” 490–91.Google Scholar Professor Jaffe writes that he found no mandamus case before 1807 where standing was mooted. Judicial Control of Administrative Action (Boston: Little Brown, 1965), 463.Google Scholar

52. 5 U.S. 137, 176. Marshall speaks of “legal investigation” at 163.

53. For the argument that modern commentators have exaggerated the extent to which the British parliament was in fact sovereign in the eighteenth century, see Orren, Karen, “Labor Regulation and Constitutional Theory,” 22 Political Theory 98 (1994).Google Scholar

54. 5 U.S. 137, 178, 179.

55. Van Alstyne, William W., “A Critical Guide to Marbury v. Madison,” 1969 Duke Law Journal 1, 23Google Scholar [emphasis in original]. See also Monaghan, , “Marbury and the Administrative State,” 13.Google Scholar

56. Snowiss, Sylvia, Judicial Review and the Law of the Constitution (Yale University Press, 1990).Google Scholar

57. For a recent study showing this continuity, see Calhoun, Frederick S., The Lawmen; United States Marshals and their Deputies, 1789–1989 (Washington: Smithsonian Institution, 1990).Google Scholar

58. The constitutional reverberations of old forms of Officeholding in the era following Reconstruction are the subject of Karen Orren, “Suits Against Officeholders, Sovereign Immunity, and the Modernization of Government in the United States,” paper presented at the Conference on the Experiences of American Modernization, American History Research Association of China, 1993.

59. Gilchrist v. Collector of Charleston, 10 Fed. Cas. 355 (1808).

60. Ibid., 363.

61. Ibid., 359.

62. Ibid.

63. Ibid., 365.

64. On the public reaction, see Warren, Charles, History of the Supreme Court, vol. 1, chap. 7.Google Scholar

65. Much to-ing and fro-ing on the question remained. Justice Johnson wrote two Supreme Court opinions in which the power of circuit courts to issue mandamus was denied. Mclntire v. Wood, 7 Cranch 504 (1813) and McClung v. Silliman 6 Wheat. 598 (1821). Mandamus jurisdiction in the circuit court of the District of Columbia was upheld in Kendall v. U.S., 12 Peters 524 (1838). In 1839, a bill to repeal this power passed the U.S. Senate. All circuit courts were finally granted general mandamus powers by statute in 1962.