In this same period between the election and the inauguration of the new President, Chief Justice Ellsworth, who was old and feeble, had resigned, and Adams had replaced him with Secretary of State Marshall. John Marshall was primarily a soldier and politician; he knew relatively little of the law. But he had a powerful mind, and, as Adams reflected, his “reading of the science” was “fresh in his head.” He was also but forty-five years of age, and vigorous. Clearly a long life lay ahead of him, and a more forceful opponent of Jeftersonian principles would have been hard to find.

Marshall had been confirmed by the Senate on January 27, and without resigning as Secretary of State he had begun at once to help Adams strengthen the judicial branch of the government. They had worked rapidly, for time was short. The new courts were authorized by Congress on February 13; within two weeks Adams had submitted a full slate of officials for confirmation by the Senate. The new justices of the peace for the District of Columbia were authorized on February 27; within three days Adams had submitted for confirmation the names of no less than forty-two justices for the sparsely populated region. The Federalist Senate had done its part nobly, pushing through the various confirmations with great dispatch. Now, in the lamplight of his last night in Washington, John Adams was affixing his signature to the commissions of these “midnight justices,” as the last-minute appointees were to become derisively known.

Working with his customary puritanical diligence, Adams completed his work by nine o’clock, and when he went oft to bed for the last time as President of the United States, it was presumably with a clear con- science. The papers were carried to the Stale Department, where Secretary Marshall was to affix the Great Seal of the United States to each, and see to it that the commissions were then dispatched to the new appointees. But Marshall, a Virginian with something of the southerner’s easygoing carelessness about detail, failed to complete this routine task.

All the important new circuit judgeships were taken care of, and most of the other appointments as well. But in the bustle of last-minute arrangements, the commissions of the new justices of the peace lor the District of Columbia went astray. As a result of this trivial slip-up, and entirely without anyone’s having planned it, a fundamental principle of the Constitution—affecting the lives of countless millions of future Americans—was to be established. Because Secretary of State

It is still not entirely clear what happened to the missing commissions on the night of March 3. To help with the rush of work, Adams had borrowed two State Department clerks, Jacob Wagner and Daniel Brent. Brent prepared a list of the forty-two new justices and gave it to another clerk, who filled in the blank commissions. As fast as batches of these were made ready, Brent took them to Adams’ office, where he turned them over to William Smith Shaw, the President’s private secretary. After they were signed, Brent brought them back to the State Department, where Marshall was supposed to affix the Great Seal. Evidently he did seal these documents, but he did not trouble to make sure that they were delivered to the appointees. As he later said: “I did not send out the commissions because I apprehended such … to be completed when signed fe sealed.” Actually, he admitted, he would have sent them out in any case “but for the extreme hurry of the time & the absence of Mr. Wagner who had been called on by the President to act as his private secretary.”

March 4 dawned and Jefferson, who apparently had not yet digested the significance of Adams’ partisan appointments, prepared to take the oath of office and deliver his inaugural address. His mood, as the brilliant speech indicated, was friendly and conciliatory. He even asked Chief Justice Marshall, who administered the inaugural oath, to stay on briefly as Secretary of State while the new administration was getting established. That morning it would still have been possible to deliver the commissions. As a matter of fact, a few actually were delivered, although quite by chance.

Marshall’s brother James (whom Adams had just made circuit judge for the District of Columbia) was disturbed by rumors that there was going to be a riot in Alexandria in connection with the inaugural festivities. Feeling the need of some justices of the peace in case trouble developed, he went to the State Department and personally picked up a number of the undelivered commissions. He signed a receipt for them, but “finding that he could not conveniently carry the whole,” he returned several, crossing out the names of these from the receipt. Among the ones returned were those appointing William Harper and Robert Townsend Hooe. By failing to deliver these commissions, Judge James M. Marshall unknowingly enabled Harper and Hooe, obscure men, to win for themselves a small claim to legal immortality.

The new President was eager to mollify the Federalists, but when he reali/ed the extent to which Adams had packed the judiciary with his “most ardent political enemies,” he was indignant. Adams’ behavior, he said at the time, was an “outrage on decency,” and some years later, when passions had cooled a little, he

James Madison, the new Secretary of State, was not yet in Washington. So Jefferson called in his Attorney General, a Massachusetts lawver named Levi Lincoln, whom he had designated Acting Secretary. Giving Lincoln a new list of justices of the peace, he told him to put them “into a general commission” and notify the men of their selection.

In truth, Jefferson acted with remarkable forbearance. He reduced the number of justices to thirty, fifteen for the federal District, fifteen for Alexandria County. But only seven of his appointees were his own men; the rest he chose from among the forty-two names originally submitted by Adams. Lincoln prepared two general commissions, one for each area, and notified the appointees. Then, almost certainly, he destroyed the original commissions signed by Adams.

For some time thereafter Jefferson did very little about the way Adams had packed the judiciary. Indeed, despite his much-critici/.ed remark that office holders seldom die and never resign, he dismissed relatively few persons from the government service. For example, the State Department clerks, Wagner and Brent, were permitted to keep their jobs. The new President learned quickly how hard it was to institute basic changes in a going organization. “The great machine of society” could not easily be moved, he admitted, adding that it was impossible “to advance the notions of a whole people suddenly to ideal right.” Soon some of his more impatient supporters, like John Randolph of Roanoke, were grumbling about the President’s moderation.

But Jefferson was merely billing his time. Within a month of the inauguration he conferred with Madison at Monticello and made the basic decision to try to abolish the new system of circuit courts. Aside from removing the newly appointed marshals and attorneys, who served at the pleasure of the Chief Executive, little could be done until the new Congress met in December. Then, however, he struck. In his first annual message he urged the “contemplation” by Congress of the Judiciary Act of 1801. To direct the lawmakers’ thinking, he submitted a statistical report showing how few cases the federal courts had been called upon to deal with since 1789. In January, 1802, a repeal bill was introduced; after long debate it passed early in March, thus abolishing the jobs of the new circuit judges.

Some of those deposed petitioned Congress for “relief,” but their plea was coldly rejected. Since these men had been appointed for life, the Federalists claimed that the repeal act was unconstitutional, but to prevent the Supreme Court from quickly so declaring, Congress passed another bill abolishing the June term

This powerful assault on the courts thoroughly alarmed the conservative Federalists; to them the foundations of stable government seemed threatened if the “independence” of the judiciary could be thus destroyed. No one was more disturbed than the new Chief Justice, John Marshall, nor was anyone better equipped by temperament and intellect to resist it. Headstrong but shrewd, contemptuous of detail and of abstractions but a powerful logician, he detested Jefferson (to whom he was distantly related), and the President fully returned his dislike.

In the developing conflict Marshall operated at a disadvantage that in modern times a Chief Justice would not have to face. The Supreme Court had none of the prestige and little of the accepted authority it now possesses. Few cases had come before it, and few of these were of any great importance. Before appointing Marshall, Adams had offered the Chief Justiceship to John Jay, the first man to hold the post, as an appointee of President Washington. Jay had resigned from the Court in 1795 to become governor of New York. He refused the reappointment, saying that the Court lacked “energy, weight, and dignity.” A prominent newspaper of the day referred to the Chief Justiceship, with considerable truth, as a “sinecure.” One of the reasons Marshall had accepted the post was his belief that it would afford him ample leisure for writing the biography of his hero, George Washington. Indeed, in the grandiose plans for the new capital, no thought had been given to housing the Supreme Court, so that when Marshall took office in 1801 the justices had to meet in the office of the clerk of the Senate, a small room on the first floor of what is now the north wing of the Capitol.

Nevertheless, Marshall struck out at every opportunity against the power and authority of the new President; but the opportunities were pitifully few. In one case, he refused to allow a presidential message to be read into the record on the ground that this would bring the President into the Court, in violation of the principle of separation of powers. In another, he ruled that Jefferson’s decision in a prize case involving an American privateer was illegal. But these were matters of small importance.

When he tried to move more boldly, his colleagues would not sustain him. He was ready to declare the judicial repeal act unconstitutional, but none of the deposed circuit court judges would bring a case to court. Marshall also tried to persuade his associates that it was unconstitutional for Supreme Court justices to ride the circuit, as they were forced again to do by the abolishment of the lower courts. But although they agreed with his legal reasoning, they refused to go along—because, they said, years of acquiescence in the practice lent

William Marbury, a forty-one-year-old Washingtonian, was one of the justices of the peace for the District of Columbia whose commissions Jefferson had held up. Originally from Annapolis, he had moved to Washington to work as an aide to the first Secretary of the Navy, Benjamin Stoddert. It was probably his service to this staunch Federalist that earned him the appointment by Adams. Together with one Dennis Ramsay and Messrs. Harper and Hooe, whose commissions James Marshall had almost delivered, Marbury was asking the Court to issue an order (a writ of mandamus) requiring Secretary of State Madison to hand over their “missing” commissions. Marshall willingly assumed jurisdiction and issued an order calling upon Madison to show cause at the next term of the Supreme Court why such a writ should not be issued. Here clearly was an opportunity to get at the President through one of his chief agents, to assert the authority of the Court over the executive branch of the government.

This small controversy quickly became a matter of great moment both to the administration and to Marshall. The decision to do away with the June term of the Court was made in part to give Madison more time before having to deal with Marshall’s order. The abolition of the circuit courts and the postponement of the next Supreme Court session to February, 1803, made Marshall even more determined to use the Marbury case to attack Jefferson. Of course Marshall was personally and embarrassingly involved in this case, since his carelessness was the cause of its very existence. He ought to have disqualified himself, but his fighting spirit was aroused, and he was in no mood to back out.

On the other hand, the Jeffersonians used every conceivable means to obstruct judicial investigation of executive affairs. Madison ignored Marshall’s order. When Marbury and Ramsay called on the Secretary to inquire whether their commissions had been duly signed (Hooe and Harper could count on the testimony of James Marshall to prove that theirs had been attended to), Madison gave them no satisfactory answer. When they asked to see the documents, Madison referred them to the clerk, Jacob Wagner. He, in turn, would only say that the commissions were not then in the State Department files.

Unless the plaintiffs could prove that Adams had appointed them, their case would collapse. Frustrated at the State Department, they turned to the Senate for help. A friendly senator introduced a motion calling upon the Secretary of the Senate to produce the record of the’action in executive session on their nominations. But the motion was defeated, after an angry debate, on January 31, 1803. Thus,

In addition to Marshall, only Justices Bushrod Washington (a nephew of the first President) and Samuel Chase were on the bench, and the Chief Justice dominated the proceedings. The almost childishly obstructive tactics of administration witnesses were no match for his fair but forthright management of the hearing. The plaintiffs’ lawyer was Charles Lee, an able advocate and brother of “Light-Horse Harry” Lee; he had served as Attorney General under both Washington and Adams. He was a close friend of Marshall, and his dislike of Jefferson had been magnified by the repeal of the Judiciary Act of 1801, for he was another of the circuit court judges whose “midnight” appointments repeal had cancelled.

Lee’s task was to prove that the commissions had been completed by Adams and Marshall, and to demonstrate that the Court had authority to compel Madison to issue them. He summoned Wagner and Brent, and when they objected to being sworn because “they were clerks in the Department of State, and not bound to disclose any facts relating to the business or transactions in the office,” Lee argued that in addition to their “confidential” duties as agents of the President, the Secretary and his deputies had duties “of a public nature” delegated to them by Congress. They must testify about these public matters just as, in a suit’ involving property, a clerk in the land office could be compelled to state whether or not a particular land patent was on file.

Marshall agreed, and ordered the clerks to testify. They then disclosed many of the details of what had gone on in the presidential mansion and in the State Department on the evening of March 3, 1801, but they claimed to be unsure of what had become of the plaintiffs’ commissions.

Next Lee called Attorney General Levi Lincoln. He too objected strenuously to testifying. He demanded that Lee submit his questions in writing so that he might consider carefully his obligations both to the Court and to the President before making up his mind. He also suggested that it might be necessary for him to exercise his constitutional right (under the Fifth Amendment) to refuse to give evidence that might, as he put it, “criminate” him. Lee then wrote out four questions. After studying them, Lincoln asked to be excused from answering, but the justices ruled against him. Still hesitant, the Attorney General asked for time to consider his position further, and Marshall agreed to an overnight adjournment.

The next day, the tenth of February, Lincoln offered to answer all Lee’s questions but the last: What had he done with the commissions? He had seen “a considerable number of commissions” signed and sealed, but could not remember—he claimed—whether the plaintiffs’ were among them. He did not know if Madison had ever seen these documents, but was certain that he

Despite these reluctant witnesses, Lee was able to show conclusively through affidavits submitted by another clerk and by James Marshall that the commissions had been signed and sealed. In his closing argument he stressed the significance of the case as a test of the principle of judicial independence. “The emoluments or the dignity of the office,” he said, “are no objects with the applicants.” This was undoubtedly true; the positions were unimportant, and two years of the five-year terms had already expired. As Jefferson later pointed out, the controversy itself had become “a moot case” by 1803. But Marshall saw it as a lastditch fight against an administration campaign to make lackeys of all federal judges, while Jefferson looked at it as an attempt by the Federalist-dominated judiciary to usurp the power of the executive.

In this controversy over principle, Marshall and the Federalists were of necessity the aggressors. The administration boycotted the hearings. After Lee’s summation, no government spokesman came forward to argue the other side, Attorney General Lincoln coldly announcing that he “had received no instructions to appear.” With his control over Congress, Jefferson was content to wait for Marshall to act. If he overreached himself, the Chief Justice could be impeached. If he backed down, the already trifling prestige of his Court would be further reduced.

Marshall had acted throughout with characteristic boldness; quite possibly it was he who had persuaded the four aggrieved justices of the peace to press their suit in the first place. But now his combative temperament seemed to have driven him too far. As he considered the Marbury case after the close of the hearings, he must have realized this himself, for he was indeed in a fearful predicament. However sound his logic and just his cause, he was on very dangerous ground. Both political partisanship and his sense of justice prompted him to issue the writ sought by Marbury and his fellows, but what effect would the mandamus produce? Madison almost certainly would ignore it, and Jefferson would back him up. No power but public opinion could make the executive department obey an order of the Court. Since Jefferson was riding the crest of a wave of popularity, to issue the writ would be a futile act of defiance; it might even trigger impeachment proceedings against Marshall that, if successful, would destroy him and reduce the Court to servility.

Yet what was the alternative? To find against the petitioners would be to abandon all principle and surrender abjectly to Jefferson. This a man of Marshall’s character could simply not consider. Either horn of the dilemma threatened utter disaster; that it was disaster essentially of his own making could only make the Chief Justice’s discomfiture the more complete.