The Case of the Missing Commissions
BY JOHN A. GARRATY
(Marbury v. Madison, 1 Cranch 137)
Paradoxically, the first of our controversies and in some respects the most important rose from by far the least significant of causes and the meanest of motives. It is a tale of narrow partisanship, clashing ambitions, and a man seeking the humble office of justice of the peace for the District of Columbia.
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's persuasion were 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." Secretary of State John Marshall, an ardent believer in a powerful central government, feared that Jefferson would "sap the fundamental principles of government." Others went so far as to call Jefferson a "howling atheist."
Adams himself was not quite so disturbed as some, but he was deeply troubled. "What course is it we steer?" he had written 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 States, and not about 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 "palace" 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 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 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, the lame-duck Congress had established sixteen new circuit judgeships (and a host of marshals, attorneys, and clerks as well). It had also given the President 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 Court--it provided that when the next vacancy occurred it should not be filled, thus reducing the Court from six justices to five.
In this same period between the election and Jefferson's inauguration, 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. A more forceful opponent of Jeffersonian 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. Perforce 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 that sparsely populated region. The Federalist Senate had done its part nobly too, pushing through the necessary confirmations with dispatch. Now, in the lamplight of his last night in Washington, John Adams was affixing his signature to the commissions appointing these "midnight justices" to office.
Working with his customary diligence, Adams completed hiswork by nine o'clock, and went off to bed for the last time as Presi-dent of the United States, presumably with a clear conscience. Thepapers were carried to the State Department, where Secretary Mar-shall was to affix to each the Great Seal of the United States and seeto it that the documents were then dispatched to the new appoin-tees. But Marshall, a Virginian with something of the easygoingcarelessness about detail that is said to be characteristic of South-erners, failed to complete this routine task. All the important newcircuit judgeships were taken care of, and most of the other appoint-ments as well. But in the bustle of last-minute arrangements, thecommissions of the new District of Columbia justices of the peacewent astray. As a result of this slipup, and entirely without anyone'shaving planned it, a fundamental principle of the Constitution--affecting the lives of countless millions of future Americans--was tobe forever established. Because Secretary of State Marshall made hislast mistake, Chief Justice Marshall was soon to make the first--andin some respects the greatest--of his decisions.
