Do you remember this reference I provided in the deleted 4,000 post thread:
"Just Because John Marshall Said it, Doesn't Make it So: Ex parte Bollman and the Illusory Prohibition on the Federal Writ of Habeas Corpus for State Prisoners in the Judiciary Act of 1789" by Eric M. Freedman
Freedman makes the case in the article that Marshall mucked things up in his Bollman habeas dicta.
I did not cite the authority of Freedman's opinions. But even a moron such as you must admit that a court decision which occupies three chapters in a book about habeas corpus, is a case about habeas corpus.
Nahhhh, you can still try to say Bollman was not about habeas corpus.
No. Freedman is not talking about dicta and he tried to make the case that Marshall made errors. Thus far Marshall's opinion has stood for nearly two centuries.
For example, Freedman offers, "There is good evidence that the framers of the Judiciary Act expected that the federal courts would exercise common-law criminal jurisdiction." And Freedman concludes his discussion of Bollman by writing, 'We can, however, say with some confidence that Marshall's assertion in Bollman that the federal courts could exercise no 'jurisdiction not given by the constitution, or by the laws of the United States' was an inaccurate description of original intent."
Marshall did not offer a description of "original intent." He did not opine on the intent of the lawgiver, but the law that was actually given.
Whether it be true or not that some framers expected the federal courts would exercise common-law criminal jurisdiction, Marshall's contention that the Supreme Court is -NOT- a common law court is beyond dispute. The Supreme Court did not exist before the Constitution and was created and defined by the Constitution. There is no external metaphysical source of jurisdiction, no legal potency detectable only as a normative aura.
"There is no federal general common law." (Erie R. Co. v. Tomkins, 304 U.S. 64 (1938)