ranks of the Federalists, was the occasion of new attacks upon
the doctrine thus laid down. It was vigorously denied by Senator
Breckenridge of Kentucky, afterward Attorney-General of the
United States, in the debates preceding the repeal of the
Judiciary Act of 1801.[Footnote: Elliot's Debates, IV, 444.] A
year later (in 1803) the question came for the first time before
the Supreme Court of the United States, and the same positions
advanced by Patterson were taken in what is known as the leading
case upon this subject by Chief Justice Marshall.[Footnote:
Marbury _v._ Madison, I Cranch's Reports, 137. See
Willoughby, "The American Constitutional System," 39.] It was
unfortunate that the action was one involving a matter of
practical politics, in which the plaintiff sought the benefit of
a commission the issue of which had been directed by President
Adams at the close of his term, but which was withheld by the
Secretary of State under President Jefferson. Party feeling ran
high at this time. The views of Breckenridge were shared by
many, and the supremacy of the judicial department, which this
prerogative, if it possessed it, seemed to imply, was distasteful
to a large part of the people.

An eminent judge of a State court, Chief Justice Gibson of
Pennsylvania, as late as 1825, in a dissenting opinion, combated
at length the reasoning of Marshall as weak and inconclusive.
If, he said, the judiciary had the power claimed, it would be a
political power. Our judicial system was patterned after that of
England. Our judges had, as such, no power not given by the
common law. It was conceded that English judges could not hold
an act of Parliament void because it departed from the British
constitution. No more could American judges hold an act of a