nullities, unless made with the consent of the President elect, rested on the argument that the retiring President was no longer selecting his own but his successor's agents. Perhaps it involved also the favorite idea that the election of 1800 was something more than a change of Presidents,—that it was a real revolution in the principle of government. Any theory was sufficient for the Executive, but executive theories did not necessarily bind the Judiciary. Among the nominations which, like the appointment of Marshall, were obnoxious to Jefferson, was that of William Marbury as justice of the peace for five years for the District of Columbia. The nomination was sent to the Senate March 2, 1801, and was approved the next day, a few hours before Jefferson took his oath of office. The commission, regularly made out, signed by the President, countersigned by John Marshall the acting Secretary of State, and duly sealed, was left with other documents on the table in the State Department, where it came into the possession of Attorney-General Lincoln, acting as President Jefferson's Secretary of State. Jefferson, having decided that late appointments were nullities, retained Marbury's commission. Marbury, at the December term of 1801, moved the Supreme Court for a Rule to Secretary Madison to show cause why a mandamus should not issue commanding him to deliver the document. The Rule was duly served, and the case argued in December, 1801; but the Judiciary Act having suspended for fourteen months the sessions
