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Marbury V. Madison -The Case of the “Missing” Commissions

June 2024
19min read

It was the evening of March 3, 1801, his last day in office, and President John Adams was in a black and bitter mood. Assailed by his enemies, betrayed by some of his most trusted friends, he and his Federalist party had gone down to defeat the previous November before the forces of Thomas Jefferson. His world seemed to have crumbled about his doughty shoulders.

Conservatives of Adams’ persuasion were deeply convinced that Thomas Jefferson was a dangerous radical. He would, they thought, in the name of individual liberty and states’ rights, import the worst excesses of the French Revolution, undermine the very foundations of American society, and bring the proud edifice of the national government, so laboriously erected under Washington and Adams, tumbling to the ground. Jefferson was a “visionary,” Chief Justice Oliver Ellsworth had said. With him as President, “there would be no national energy.” Ardent believers in a powerful central government like Secretary of State John Marshall feared that Jefferson would “sap the fundamental principles of government.” Others went so far as to call him a “howline atheist.”


Adams himself was not quite so disturbed as some, but he was deeply troubled. “What course is it we steer?” he had written despairingly to an old friend after the election. “To what harbor are we bound?” Now on the morrow Jefferson was to be inaugurated, and Adams was so disgruntled that he was unwilling to remain for the ceremonies, the first to be held in the new capital on the Potomac. At the moment, however, John Adams was still President of the United Slates, and not yet ready to abandon what he called “all virtuous exertion” in the pursuit of his duty. Sitting at his desk in the damp, drafty, still-unfinished sandstone mansion soon to be known as “the White House,” he was writing his name on official papers in his large, quavering hand.

The documents he was signing were mostly commissions formally appointing various staunch Federalists to positions in the national judiciary, but the President did not consider his actions routine. On the contrary: he believed he was saving the republic itself. Jefferson was to be President and his Democratic-Republicans would control the Congress, but the courts, thank goodness, would be beyond his control: as soon as the extent of Jefferson’s triumph was known, Adams had determined to make the judiciary a stronghold of Federalism. Responding enthusiastically to his request for expansion of the courts, the lame-duck Congress had established sixteen new circuit judgeships (and a host of marshals, attorneys, and clerks as well). It had also given Adams blanket authority to create as many justices of the peace for the new District of Columbia as he saw fit, and—to postpone the evil day when Jefferson would be able to put one of his sympathizers on the Supreme Courtit provided that when the next vacancy occurred, it should not be filled, thus reducing the Court from six justices to five. (The Constitution says nothing about the number of justices on the Court; its size is left to Congress. Originally six, the membership was enlarged to seven in 1807. The justices first numbered nine in 1837. Briefly during the Civil War the bench held ten; the number was set at seven again in 1866 and in 1869 returned to nine, where it has remained.)

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 Marshall made his last mistake, Chief Justice Marshall was soon to make one of the first—and in some respects the greatest—of his decisions.

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 wrote sorrowfully: “I can say with truth that one act of Mr. Adams’ life, and one only, ever gave me a moment’s personal displeasure. I did consider his last appointments to office as personally unkind.” When he discovered the justice-of-the-peace commissions in the State Department, he decided at once not to allow them to be delivered.

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 of the Court and setting the second Monday of February, 1803, for its next session. By that time, the Jeffersonians reasoned, the old system would be dead beyond resurrection.

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 sanction to the old law requiring it. Thus frustrated, Marshall was eager for any chance to attack his enemy, and when a case that was to be known as Marbury v. Madison came before the Court in December, 1801, he took it up with gusto.

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, tempers were hot when the Court finally met on February 9 to deal with the case.

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 had not given them to the Secretary. On the basis of this last statement, Marshall ruled that the embarrassing question as to what Lincoln had done with the commissions was irrelevant; he excused Lincoln from answering it.

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.

But at some point between the close of the hearings on February 14 and the announcement of his decision on the twenty-fourth, Marshall found a way out. It was an inspired solution, surely the cleverest of his long career. It provided a perfect escape from the dilemma, which probably explains why he was able to persuade the associate justices to agree to it despite the fact that it was based on the most questionable legal logic. The issue, Marshall saw, involved a conflict between the Court and the President, the problem being how to check the President without exposing the Court to his might. Marshall’s solution was to state vigorously the justice of the plaintiffs’ cause and to condemn the action of the Chief Executive, but to deny the Court’s power to provide the plaintiffs with relief.

Marbury and his associates were legally entitled to their commissions, Marshall announced. In withholding them Madison was acting “in plain violation” of the law of the land. But the Supreme Court could not issue a writ of mandamus, because the provision of the Judiciary Act of 1789 authorizing the Court to issue such writs was unconstitutional. In other words, Congress did not have the legal right to give that power to the Court.

So far as it concerned the Judiciary Act, modern commentators agree that Marshall’s decision was based on a very weak legal argument. Section 13 of the Act of 1789 stated that the Supreme Court could issue the writ to “persons holding office under the authority of the United States.” This law had been framed by experts thoroughly familiar with the Constitution, including William Paterson, one of Marshall’s associate justices. The Court had issued the writ in earlier cases without questioning Section 13 for a moment. But Marshall now claimed that the Court could not issue a mandamus except in cases that came to it on appeal from a lower court, since the Constitution, he said, granted original jurisdiction to the Court only in certain specified cases—those “affecting ambassadors, other public ministers and consuls, and those in which a state shall be a party.” The Marbury case had originated in the Supreme Court; since it did not involve a diplomat or a state, any law that gave the Court the right to decide it was unauthorized.

This was shaky reasoning because the Constitution does not necessarily limit the Supreme Court’s original jurisdiction to the cases it specifies. And even accepting Marshall’s narrow view of the constitutional provision, his decision had a major weakness. As the Court’s principal chronicler, Charles Warren, has written, “It seems plain, at the present time, that it would have been possible for Marshall, if he had been so inclined, to have construed the language of [Section 13 of the Act of 1789] which authorized writs of mandamus, in such a manner as to have enabled him to escape the necessity of declaring the section unconstitutional.”

Marshall was on more solid ground when he went on to argue cogently the theory that “the constitution controls any legislative act repugnant to it,” which he called “one of the fundamental principles of our society.” The Constitution is “the supreme law of the land,” he emphasized. Since it is the “duty of the judicial department to say what the law is,” the Supreme Court must overturn any law of Congress that violates the Constitution. “A law repugnant to the Constitution,” he concluded flatly, “is void.” By this reasoning, Section 13 of the Act of 1789 simply ceased to exist, and without it the Court could not issue the writ of mandamus. By thus denying himself authority, Marshall found the means to flay his enemies without exposing himself to their wrath.

Although this was the first time the Court had declared an act of Congress unconstitutional, its right to do so had not been seriously challenged by most authorities. Even Jefferson accepted the principle, claiming only that the executive as well as the judiciary could decide questions of constitutionality. Jefferson was furious over what he called the “twistifications” of Marshall’s gratuitous opinion in Marbury v. Madison , but his anger was directed at the Chief Justice’s stinging criticisms of his behavior, not at the constitutional doctrine Marshall had enunciated.

Even in 1803, the idea of judicial review, which Professor E. S. Corwin has called “the most distinctive feature of the American constitutional system,” had had a long history in America. The concept of natural law (the belief that certain principles of right and justice transcend the laws of mere men) was thoroughly established in American thinking. It is seen, for example, in Jefferson’s statement in the immortal Declaration that men “are endowed by their Creator” with “unalienable” rights. Although not a direct precedent for Marshall’s decision, the colonial practice of “disallowance,” whereby various laws had been ruled void on the ground that local legislatures had exceeded their powers in passing them, illustrates the American belief that there is a limit to legislative power and that courts may say when it has been overstepped.

More specifically, Lord Coke, England’s chief justice under James I, had declared early in the seventeenth century that “the common law will controul acts of Parliament.” One of the American Revolution’s chief statesmen and legal apologists, James Otis, had drawn upon this argument a century and a half later in his famous denunciation of the Writs of Assistance (see AMERICAN HERITAGE for February, 1962). And in the 1780*5, courts in New Jersey, New York, Rhode Island, and North Carolina had exercised judicial review over the acts of local legislatures. The debates at the Constitutional Convention and some of the Federalist Papers (especially No. 78) indicated that most of the Founding Fathers accepted the idea of judicial review as already established. The Supreme Court, in fact, had considered the constitutionality of a law of Congress before—when it upheld a federal tax law in 1796 —and it had encountered little questioning of its right to do so. All these precedents—when taken together with the fact that the section of the Act of 1789 nullified by Marshall’s decision was of minor importanceexplain why no one paid much attention to this part of the decision.

Thus the “Case of the Missing Commissions” passed into history, seemingly a fracas of but slight significance. When it was over, Marbury and his colleagues returned to the obscurity whence they had arisen.∗ In the partisan struggle for power between Marshall and Jefferson, the incident was of secondary importance. The real showdown came later—in the impeachment proceedings against Justice Chase and the treason trial of Aaron Burr. In the long run, Marshall won his fight to preserve the independence and integrity of the federal judiciary, but generally speaking, the courts have not been able to exert as much influence over the appointive and dismissal powers of the President as Marshall had hoped to win for them in Marbury v. Madison . Even the enunciation of the Supreme Court’s power to void acts of Congress wrought no immediate change in American life. Indeed, it was more than half a century before another was overturned.

∗ What happened to Marbury? According to his descendants, he became president of a Georgetown bank in 1814, reared a family, and died, uncommissioned, in 1835.

Nevertheless, this trivial squabble over a few petty political plums was of vital importance for later American history. For with the expansion of the federal government into new areas of activity in more recent times, the power of the Supreme Court to nullify acts of Congress has been repeatedly employed, with profound effects. At various times legislation concerning the income tax, child labor, wages and hours, and many other aspects of our social, economic, and political life have been thrown out by the Court, and always, in the last analysis, its right to do so has depended upon the decision John Marshall handed down to escape from a dilemma of his own making.


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