Madison's Music (24 page)

Most important for the case, Marshall also failed to deliver many of the District of Columbia patronage commissions. Because the office seekers did not even have offices to seek until passage of the D.C. Organic Act on February 27, 1801; hadn't been nominated by the president until March 2; and weren't confirmed by the Senate until March 3; it would have taken a Herculean effort in those pre-word-processing days to prepare, sign, seal (with wax), and deliver the numerous commissions of office before the expiration of Adams's term on March 4. Preparing and delivering the commissions was made even more difficult because Marshall had graciously lent Jacob Wagner, the chief clerk of the State Department, to Jefferson as a temporary secretary on February 17, as soon as Jefferson was named president-elect. When Jefferson became president on March 4, he discovered dozens of undelivered commissions on Marshall's desk at the State Department. Furious over the Federalists' patronage shenanigans, Jefferson instructed his acting secretary of state, Levi Lincoln, to withhold William Marbury's commission, along with the numerous others found undelivered in Marshall's office. Analogizing the commissions to deeds that
don't pass title to real property until physical delivery, Jefferson argued that failure to deliver the commissions left the Adams patronage appointments incomplete and subject to revocation by a new president.

The Federalists accepted the argument for executive patronage appointments. For example, Adams's appointment of James Lingan as a federal marshal for the District of Columbia failed because the commission had not been delivered in time. Ironically, before learning that his appointment had failed, Lingan served as a marshal at Jefferson's inauguration, escorting him to the ceremony. But the Federalist legal brain trust (consisting largely of Charles Lee and John Marshall) rejected the analogy as applied to judicial appointments, insisting that even a low-level local judicial appointment like Marbury's, involving presidential nomination and Senate confirmation, became final after Senate confirmation, delivery of the commission being merely a formality.
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After being sworn in by Chief Justice Marshall on March 4, 1801, President Jefferson asked acting secretary of state John Marshall to serve for one more day until Levi Lincoln, Jefferson's choice for attorney general, could stand in for James Madison, delayed in Virginia on family business, as the new acting secretary of state. Marshall served the additional day but apparently made no effort to deliver the patronage commissions during the one-day reprieve.
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The same cannot be said for his younger brother, James, newly appointed a lifetime D.C. Circuit judge. In a bizarre episode, James Marshall appeared at the State Department on March 4 and scooped up twelve undelivered JP commissions for Alexandria, Virginia, claiming that it was important to deliver them to ensure that a sufficient number of justices of the peace would be in office to maintain order in the face of anticipated rioting over Jefferson's inauguration. James Marshall does not appear to have signed a receipt for the commissions and seems to have returned most, if not all, undelivered by the end of the day. There was no rioting in connection with the inauguration.
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William Marbury, a Georgetown Federalist and protégé of Navy
Secretary Benjamin Stoddert, had snagged one of the forty-two justice-of-the-peace appointments.
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He was a Jeffersonian nightmare.
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The youngest son of a youngest son, Marbury was landless. He made his fortune, such as it was, as a banker, financial speculator, and Maryland government bureaucrat. He had served as Agent for the State of Maryland (the state's highest unelected office), where he functioned as a tax collector and dabbled in government procurement, most dramatically on behalf of Navy Secretary Stoddert. A hint of scandal dogged his work in connection with a Maryland shipbuilding contract. Marbury had also been active in Maryland Federalist politics, seeking unsuccessfully to alter the Maryland Electoral College voting scheme to prevent Jefferson from receiving any Maryland electoral votes in the 1800 election.

Although Jefferson granted recess appointments to twenty-five of Adams's forty-two nominees, leaving only five of his own choosing, Jefferson drew the line at Marbury and several other Federalist stalwarts. Nine months into Jefferson's first term, Marbury and three other disappointed nominees, Dennis Ramsay, Robert Townsend Hooe, and William Harper,
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demanded their JP commissions from Madison, who shunted them off to his chief clerk, Jacob Wagner. Wagner claimed to know nothing about the matter and sent them to Levi Lincoln, who had been acting secretary of state from March 5 to May 7, when Madison finally took over. Lincoln was unhelpful. Rebuffed by Madison, Wagner, and Lincoln, the four office seekers, represented pro bono by Charles Lee (who had been the nation's third attorney general from 1795 to 1801 in both the Washington and Adams administrations), complained directly to the Supreme Court, seeking an order directing Madison, as secretary of state, to deliver the four commissions. The date
Marbury
was filed—December 16, 1801— is suspiciously close to Jefferson's first address to Congress on December 8, 1801, in which he had called for the repeal of the Midnight Judges Act. Filing
Marbury
was probably the Federalists' response to Jefferson's speech—a threat to challenge the constitutionality of any such repeal.

Lee sued directly in the Supreme Court, invoking its so-called
original (as opposed to appellate) jurisdiction. Lee relied on a provision of the Judiciary Act of 1789 authorizing the Supreme Court to issue affirmative directions to federal officials, called writs of mandamus, to compel the officials to perform their duties. Marbury's petition claimed that he had been nominated by the president and confirmed by the Senate, that his commission had been duly signed by President Adams, and that the seal of the United States had been duly affixed by none other than John Marshall as acting secretary of state. Lee asked Marshall for an order directing Madison to carry out his clear legal duty to deliver the four duly signed and sealed justice-of-the-peace commissions.

Congress, the president, and the Supreme Court then staged a legal farce in three acts worthy of Monty Python.

Act I: The Disappearing Supreme Court Term

Act I begins with Jefferson's refusal even to acknowledge Marbury's petition. Although Jefferson's attorney general, Levi Lincoln, was physically present in the Supreme Court chamber on December 17, 1801, when the petition was presented to the Court, Jefferson directed him to ignore it. When Madison failed to respond, Marshall scheduled a hearing on the merits for the fourth day of the upcoming Supreme Court term scheduled to begin in February 1802. In an obvious effort to prevent Marbury's petition from being heard, Jefferson persuaded the newly elected Jeffersonian-controlled Congress to cancel the 1802 term of the Supreme Court, delaying the Court's next sitting for fourteen months. Instead of an 1802 appellate term, the six Supreme Court justices were bundled into stagecoaches and sent jolting all over the country as emergency trial judges.

In canceling the Supreme Court's 1802 term, Jefferson was probably more concerned over a potential challenge to Congress's decision to abolish the sixteen lifetime circuit judgeships created under the Midnight Judges Act and throw those new “permanent” judges out of work. Since no problem existed with their commissions, no deposed circuit judge brought a proceeding in the Supreme Court
analogous to Marbury's, although twelve, led by Oliver Wolcott, unsuccessfully petitioned Congress for relief. Instead, Charles Lee, seeking a test case, questioned whether judgments issued by the deposed midnight judges while in office could be enforced by Supreme Court justices riding circuit as trial judges.
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Lee argued that the repeal act of 1802 was invalid on two grounds—lack of power to throw the Article III circuit judges out of office and lack of power to make Supreme Court justices function as trial judges. Marshall could have accepted either of Lee's arguments and precipitated a showdown with Jefferson and Congress. In fact, Lee's second argument is the basis for Marshall's opinion in
Marbury.
Marshall appears to have tried to organize resistance to the repeal inside the Court by a series of letters to the justices but failed to obtain majority support. In the end, the Court blinked. Marshall, riding circuit as a trial judge, upheld his power to enforce a judgment issued by a deposed midnight circuit judge.
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He then disqualified himself on appeal to the full Court. One week after the decision in
Marbury
, Justice William Patterson, writing for the remaining four members of the Court who were in Washington, affirmed. But that left the petition in
Marbury
to be decided.

Act II: How Not to Find Facts

Act II of
Marbury
opens in early February 1803, after the justices had limped back home in various stages of disrepair after a year of riding circuit. The Court was not able to scrape together a quorum until February 10. Justice William Cushing was so banged up that he never did make it to Washington for the 1803 term. Justice Alfred Moore's ailments delayed him in North Carolina until mid-February and caused him to miss the evidentiary hearing and oral argument. Justice Samuel Chase was so ill that the Supreme Court deliberations had to be adjourned from the Court's cramped and drafty chamber in the Capitol to the comparative comfort of the justices' residence at Stelle's Hotel.

As the moving parties, Marbury and his co-petitioners, who had alleged back in December 1801 that their commissions had been
duly signed by President Adams and duly sealed by Secretary of State Marshall, had the burden of proving the truth of their allegations. The justice-of-the-peace nominations had not been made until March 2, 1801, and had not been confirmed by the Senate until March 3. Because Adams's term expired on March 4 (he left the White House for Boston at 4:00 a.m. on March 4 to avoid attending Jefferson's inauguration), and because Marshall was busy on the morning of March 4 swearing in the new president, there wasn't much time to prepare, sign, and seal the forty-two JP commissions and the numerous other commissions needed for the newly appointed notaries public, registers of wills, judges of the orphan's court, marshals, surveyors, military officers, and a D.C. attorney. Getting through all the paperwork was particularly difficult because Adams was working out of the unfinished White House, while Marshall was working out of rented rooms housing the Department of State about a quarter mile away, necessitating the shuttling of more than a hundred documents from the White House, where they were signed by the president, to the Department of State, where they were sealed by the secretary of state for delivery to the appointees. Although the weather on the night of March 3 appears to have been clear, the roads were unlit and unpaved. The operation appears to have run out of time, almost certainly leaving at least one or more of the justice-of-the-peace commissions in
Marbury
uncompleted when time ran out at midnight of March 3.
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As petitioner, it was Marbury's obligation to demonstrate that his commission had in fact been duly signed and sealed before time ran out. Otherwise there was no basis for claiming that Madison was avoiding his clear legal duty to deliver the completed commission. Because Jefferson was boycotting the proceedings, neither Marbury nor the justices ever got their hands on the disputed commissions, which had probably been destroyed long before Madison arrived in town on May 1, 1801.
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Not only did Jefferson decline to produce the commissions, he also arranged for a friendly Senate to refuse to provide any information about whether Marbury
and his co-petitioners had actually been confirmed. In order to allow Marbury's lawyer, Charles Lee, to prove the allegations in Marbury's petition, Chief Justice Marshall held a mini-trial in the Supreme Court chamber on February 10–11, 1803, before the four justices who were in town.
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The hearing opened with compelled testimony from two State Department clerks. Jacob Wagner, the chief clerk, denied personal knowledge of the events because he had been temporarily assigned to president-elect Jefferson. Wagner stated that he believed that two commissions had been signed but that at least one remained unsigned. Daniel Brent, the ranking assistant clerk, testified that Marbury's commission had been on the list to be signed and that, while he lacked personal knowledge of the signing, he was “almost certain” it had been signed. Charles Lee then turned to Attorney General Levi Lincoln (who had been Jefferson's acting secretary of state from March 5 to May 7, 1801) and called him as a surprise witness. Lincoln declined to testify, claiming that he had no instructions from the president. Astonishingly, Lincoln also invoked the self-incrimination protections of the Fifth Amendment, perhaps because he had destroyed the commissions while acting as secretary of state. The commission has never been found. Lincoln also claimed a rudimentary form of executive privilege concerning facts learned by a cabinet officer in the course of his duties. It could've been a scene from the Nixon tapes case.
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Levi Lincoln finally agreed to consider written questions. The next day, he answered three of the four written questions propounded by Lee. Lincoln recalled seeing a large number of completed but undelivered commissions on the morning of March 4 but could not recall if Marbury's was among them. Lincoln then swore that he had not turned a commission for Marbury over to James Madison when Madison finally took office as secretary of state in early May 1801. Significantly, despite Lee's prodding, Marshall did not insist on learning what, if anything, Lincoln had actually done with Marbury's completed commission, assuming it ever existed. Either Marshall wanted to spare Lincoln from having to take the Fifth again, or he knew that Marbury's commission had
never been completed because, as acting secretary of state, he was the person who would have completed it. Somehow, I doubt that Marshall was worried about Lincoln being forced to take the Fifth again.