Marshall’s The Life of George Washington was the first of many presidential biographies to flop. His five glutinous volumes totaled nearly one thousand pages. Sold in advance by subscription, the first volume appeared two years late, by which time hundreds of angry subscribers had demanded refunds. It opened with an interminable and wholly tangential history of pre-Columbian America through the French and Indian Wars. Washington was hardly mentioned. With little early biographical detail, Washington sprang full-grown in volume two and plunged immediately into the Revolutionary War.
Marshall’s flat descriptions of the war left readers disappointed. Even his account of the cruel winter at Valley Forge lacked grit: “The winter had set in with great severity, and the sufferings of the army were extreme. In a few days, however, these sufferings were considerably diminished by the erection of logged huts, filled up with mortar, which, after being dried, formed comfortable habitations, and gave content to men long unused to the conveniences of life.”14
The whole biography revealed more about Marshall than it did about Washington. Marshall implicitly contrasted Washington, who avoided partisanship, with Republicans who were threatening to dismantle the national government. Marshall praised Washington for pursuing the “real interests” of the Republic and resisting the “gusts of passion.” Washington, Marshall said, stood firm in pursuit of the nation’s true interests “in opposition to a torrent.” Washington was a “real republican.” For Washington, “[r]eal liberty” depended on “preserving the authority of the laws, and maintaining the energy of government.” He attributed to Washington the thought that a demagogue was the opposite of a patriot, but whether Washington actually said that, it seems likely that Marshall was referring to the Republican president.15
When the first two volumes were published in the summer of 1803, the reviewers were not kind. Marshall admitted he was “mortified beyond measure to find that it [had] been so carelessly written.”16 Even before it was published, he begged his publisher to remove his name from the volumes, but the publisher refused.17 Marshall had assumed that as chief justice he would not have to ride circuit, but after the Repeal Act, he had far less time to write. And he was not a biographer by temperament. Marshall was an extrovert; he had no patience for self-reflection, let alone the quiet observation of another’s life. If Marshall had hoped to write a hagiographic triumph that would resuscitate the Federalist Party, he was sadly disappointed. It was too late to pull together the dispirited Federalists into a unified political organization, and Marshall’s judicial responsibilities made that impractical as well as ill advised. The Life of George Washington was the single public failure of Marshall’s career.
Even before the book’s appearance, Jefferson had launched a preemptive attack. Republicans were warned that Marshall’s book would be a thinly veiled assault on the Republican Party. When Marshall’s publisher wrote to twelve hundred local postmasters asking them to advertise the book, Jefferson ordered the postmasters to refuse. Marshall hoped to sell as many as thirty thousand five-volume sets at the price of three dollars for each volume. By 1806, the publisher had sold only seven thousand sets. While the book was a failure, Marshall’s royalties netted nearly $20,000 (slightly more than $400,000 today), which was just enough for Marshall to purchase the Fairfax property.18
Jefferson feared that the biography would seize control of the narrative of the American Revolution from the Republicans. Jefferson criticized Marshall’s “cold indifference” to the struggle for liberty. Jefferson wrote that “[n]o act of heroism ever kindles in the mind of this writer a single aspiration in favor of the holy cause which inspired the bosom, & nerved the arm of the patriot warrior.” Jefferson felt that Marshall had misused Washington’s papers “for the suicide of the cause, for which he had lived.”19 For Jefferson, who had shirked military service, to question Marshall’s patriotism revealed more about Jefferson than it did about Marshall.
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WHILE CONGRESS KEPT the Supreme Court shut down in 1802, Marshall rode circuit in Virginia and North Carolina. This was the busiest circuit in the nation. One of the most significant suits filed before the circuit court involved a case brought by Marylander John Laird against Virginia resident Hugh Stuart. Laird sued on behalf of a firm of Scottish merchants, Laird and Robertson of Glasgow, to collect a debt owed by Stuart. In 1801, the newly established Fourth Circuit in the eastern district of Virginia issued a verdict for Laird. When Stuart failed to pay, Laird went back to the circuit court to enforce the debt. By now, the Repeal Act had dissolved the Fourth Circuit, so Laird came before Marshall on the Virginia circuit to request an order executing the prior judgment of the now defunct circuit court.
Stuart happened to be represented by the same attorney as Marbury, Charles Lee. Lee argued that the Repeal Act was unconstitutional and that the chief justice had no authority to hear cases on circuit.20 Lee’s argument mirrored Marshall’s own view, but Marshall nevertheless ordered Stuart to pay. Marshall preferred to reserve the question of the law’s constitutionality for the Supreme Court to decide. At this point, no federal court had ever struck down an act of Congress as unconstitutional. Stuart appealed to the Supreme Court, which scheduled arguments the following February.
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JUST ONE WEEK before the court heard Marbury’s case, Republicans sent a warning shot across the bow of the federal judiciary: Jefferson called on the House to impeach New Hampshire District Judge John Pickering. Pickering was a leading Federalist in New England. He had served in the New Hampshire state government in numerous roles, including as chief justice of the state supreme court. He was one of the principal advocates for ratification of the federal Constitution at the New Hampshire ratification convention and was nominated by Washington as the second federal district court judge in New Hampshire. Pickering had served the public with distinction and had generously offered pro bono legal services to the indigent, but he was an easy target for Republicans. He had struggled with hypochondria, depression, and alcoholism throughout his life. He once admitted from the bench that he was too intoxicated to hear the case. Republicans also accused him of favoring Federalists. That was enough for Jefferson and his party to make an example of Pickering. With flimsy evidence, Republicans accused him of smuggling, corruption, drunkenness, and insanity. The House impeached him by a party-line vote on March 2, and the Senate, without hearing any testimony from him, convicted him one year later by another vote along party lines.21
No one doubted that the Republicans’ real intention was to intimidate the Supreme Court as it began deliberations in Marbury and Stuart. New Hampshire Federalist Senator William Plumer warned his colleagues that Republicans were planning to rid both the federal and state courts of Federalist judges: “The removal of the Judges, & the destruction of the independence of the judicial department, has been an object on which Mr. Jefferson has been long resolved.”22 Even before Pickering’s impeachment, Pennsylvania Republicans had impeached and convicted a state judge, Alexander Addison. Judge Addison was a partisan Federalist who made no effort to moderate his views after the national Republican victory. But so far as Republicans were concerned, Addison and Pickering were just target practice for their real enemy: the Marshall Court.
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AS THE JUDICIAL CRISIS DEEPENED, the Supreme Court convened on Thursday morning, February 10, 1803, to hear Charles Lee present Marbury’s argument. The Potomac had frozen the previous night, and the courtroom’s single fireplace was not enough to warm the chamber.23 Committee room number two was unusually packed, but the defendant, Secretary of State James Madison, refused to appear and did not even bother to retain a lawyer to represent him. Madison disdained the Court’s proceedings. The trial, which lasted four days, was one of the very few trials ever held before the Supreme Court, which usually hears only appeals from lower courts.
The trial posed a challenging
evidentiary hurdle for Lee. Everyone in the courtroom—indeed, nearly everyone in the country—knew that the Senate had confirmed Marbury as one of the forty-two justices of the peace but that his commission had not been delivered. Nevertheless, every fact in a trial must be proved unless both sides stipulate to the facts. Lee had asked Madison to provide the commissions to the court or at least to confirm their existence, but Madison would not even acknowledge the Supreme Court’s jurisdiction over him. Lee asked the Senate to provide a written record that Marbury and his co-plaintiffs had been confirmed. The Republican-controlled Senate refused. Then Lee called the State Department’s chief clerk, Jacob Wagner, and an assistant, Daniel Brent, to testify. Marshall knew that both clerks had personally handled the commissions, but under oath, they had a convenient lapse of memory. Lee even called Attorney General Levi Lincoln to testify. Lincoln had served as the acting secretary of state for the first few weeks of the Jefferson administration before Madison arrived in Washington. But Lincoln refused to respond to any questions. Rather than claim executive privilege, Lincoln asserted the Fifth Amendment privilege against self-incrimination, which implied that he thought his failure to deliver the commissions was illegal. The next day Lincoln reluctantly agreed to respond to a few questions in writing. He admitted seeing a stack of commissions sitting on his desk on March 4, 1801, but he could not recall whether Marbury’s commission was in the stack, and he refused to say what might have happened to the commissions, which presumably President Jefferson had ordered him to destroy.24
The one person who was uniquely situated to testify that the plaintiffs were confirmed as justices of the peace and that the commissions were properly signed and sealed was John Marshall. But as he was the sitting chief justice, that was impossible. Instead, Lee read an affidavit signed by James Marshall, the chief justice’s brother and business partner, who was himself one of the midnight judges appointed to the D.C. Circuit Court and now out of a job. James averred that on March 4 he was called to the State Department and asked to deliver the commissions of the justices of the peace in Alexandria. He believed that there were twelve such commissions, which he picked up and gave a receipt for. “[F]inding that he could not conveniently carry the whole, he returned several of them, and struck a pen through the names of those, in the receipt, which he returned.” He recalled leaving commissions for Robert Townsend Hooe and William Harper, two of the co-plaintiffs.25 James’s testimony was the only evidence that the commissions were issued—and it was most likely a complete fabrication.
Historians have long accepted James’s story, but it made no sense.26 Just a fortnight after Jefferson was sworn in as president, long before Marbury’s suit was filed, the chief justice heard from James that Jefferson had refused to deliver the commissions to some of the justices of the peace. He replied to James “with infinite chagrin” that he assumed that since the commissions had been signed and sealed, Madison would deliver them. Now he blamed himself: “I shoud however have sent out the commissions which had been signd & seald but for the extreme hurry of the time & the absence of Mr. Wagner who had been calld on by the President to act as his private Secretary.”27 If James was responsible for delivering the commissions, then Marshall’s explanation to James would have been superfluous. It is apparent that James Marshall perjured himself in the Supreme Court and that the chief justice not only knew this but probably asked him to lie.
For most of us today, it is unthinkable that a chief justice would suborn perjury in his own court or that he would sit in judgment on a case in which he was the principal witness. But the time and circumstances were extraordinary. Facing a constitutional crisis—Republicans were threatening the independence of the judiciary—Marshall thought that the ends justified the means. Jefferson and the Republicans had left Marshall no choice by refusing to respect the court’s orders to provide proof that the commissions were signed and sealed. The lie bridged an evidentiary gap by establishing in court the existence of the commissions, which the whole world knew was true.
In court Lee argued convincingly that Marbury’s right to receive his commission had vested and that the executive was bound to deliver the commission by the legislative act that created the justices of the peace. Lee’s oration went on for four days. No one representing Madison was present to cross-examine witnesses or defend Madison. At the end of the trial, Chief Justice Marshall looked around the courtroom and asked if there was anyone present who wished to speak on behalf of Madison. He was greeted with silence. Jefferson made it unmistakably clear that if the court held for Marbury he would refuse to comply. Marshall faced the unappealing prospect of either acceding to the president’s will or defending principle and proving the court ineffectual. In either case, the court’s legitimacy would suffer, and it would lose any semblance of authority as a coequal branch of government. The court appeared trapped.
As Justice Chase was ill and confined to his room at Stelle’s Hotel, the whole court met there to discuss the case. The decision was announced in the crowded lobby of the hotel on February 24. Washington had warmed a bit by then, and the frozen Potomac had cracked open and began to flow again.28 The room fell silent as the chief justice read the Court’s unanimous decision. The decision, which ran more than forty pages, or eleven thousand words, took four hours to read. It would be remembered as the single most significant constitutional decision issued by any court in American history.
First, Marshall posed the question of whether Marbury had a right to receive the commission. The Court found that once the commission was signed, the president had no right to deny a judge his commission or remove him from office. This was an unmistakable reference to the repeal of the circuit courts as much as it referred to the justices of the peace. The Great Seal affixed to the commission attested to the fact that the right to the commission had vested. In effect, Marshall was saying that Madison’s failure to deliver the commission was unlawful.29
Second, Marshall asked if Marbury had a right to a remedy. What he meant was whether a court could examine the official actions of an executive officer, such as the secretary of state. “The government of the United States has been emphatically termed a government of laws, and not of men,” Marshall wrote. “It will certainly cease to deserve this high appellation, if the laws furnish no remedy for the violation of a vested legal right.” The real issue here was of monumental importance, perhaps more than any other aspect of the opinion. Marshall conceded that some acts were assigned by the Constitution to the president’s discretion—and by extension to the secretary of state—and courts should not question the exercise of discretionary power. But this action was examinable by the Court since Congress had approved the appointment and the secretary of state had a legal obligation to deliver the commission that Marbury was entitled to receive.30 In so holding, Marshall affirmed the ancient principle of Anglo-American law that even the king is not above the law. Thus Marshall established that private citizens have the right to sue federal officials for denying them benefits to which they are entitled.
Finally, Marshall addressed the issue of whether the Court could provide the remedy Marbury was seeking. Marbury’s attorney petitioned the Court to issue a writ of mandamus commanding the secretary of state to deliver his commission. Marshall broke down this issue into two independent questions: First, did the court have authority over the secretary of state? And second, did the court have authority to grant this writ of mandamus?
As to the former question, Marshall, a former secretary of state and close adviser to President Adams, acknowledged that “[t]he intimate political relation” between the president and his cabinet officers renders any judicial order addressed to “one of those high officers peculiarly irksome, as well as delicate,” and a court should proceed cautiously. Marshall acknowledged that courts cannot judge political questions. But in this case the president was not exercising any discretionary power. The secretary of state was “directed by law to do a certain act affecting the absol
ute rights of individuals,” and therefore Madison was not immune from the Court’s jurisdiction.31
At this point, after almost three hours of listening to the chief justice read in his soft, deliberate drawl, the tension in the hotel lobby must have felt combustible. Marshall was poised to order the secretary of state to do something that everyone understood Jefferson would not allow. Was the Court willing to bet its authority against the president’s? Marshall at last came to the final question: Did the Supreme Court have the power to issue a writ of mandamus? The room held its breath in anticipation.
The Judiciary Act of 1789, which established the federal courts, was one of the landmark bills adopted by the first Congress. Section 13 expressly gave the Supreme Court the power to issue writs of mandamus. That would seem to settle the question, but Marshall now took a surprising turn. Article III of the Constitution gave the Supreme Court jurisdiction to hear trials—or what the Constitution calls “original jurisdiction”—in certain specific types of cases involving ambassadors, public ministers, and states. Since Article III did not expressly grant the Supreme Court original jurisdiction over writs of mandamus, Marshall held that Congress could not expand the Court’s original jurisdiction to include a writ of mandamus.32
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