The District of Columbia bill passed the Senate on February 5 and was sent to the House. Republicans once again attempted to stall passage by adding amendments, this time successfully. With the days of Federalist government ticking away, the amended bill was returned to the Senate on February 24, after passing the House by 57–36, all of the nays coming from Republicans. The Senate passed the amended bill on Friday, February 27, and sent it on to the president. Adams wasted no time, signing the bill, now “An act concerning the District of Columbia,” the same day.16
February 27, 1801, was also the day James Madison’s father died. Madison, who was to become the secretary of state, replacing Marshall, wrote to Jefferson that the “melancholy occurrence” would force him to remain in Virginia indefinitely to help settle the estate. Even then, however, politics was never far from Madison’s thoughts. Precursing the constitutional crisis to come, he added in the same letter, “The conduct of Mr. A. is not such as was to have been wished or perhaps, expected. Instead of smoothing the path for his successor, he plays into the hands of those who are endeavoring to strew it with as many difficulties as possible; and with this view does not manifest a very squeamish regard to the Constn. Will not his appts. to offices, not vacant actually at the time, even if afterwards vacated by acceptances of the translations, be null?”17
Saturday, February 28, and the following Monday, March 2, his penultimate day in office, President Adams persisted in the conduct of which Madison had been so critical and sent a stack of nominations to the Senate to fill the new vacancies in the District of Columbia. These smacked even more of patronage than the nominations under the Judiciary Act. For associate judges of the new District of Columbia circuit court, Adams tapped James Marshall, the younger brother of the chief justice and his partner in land speculations, and William Cranch, his wife’s nephew, who had recently gone broke in a land speculation of his own.* Filling out the appointments, Adams nominated two men to be judges of Orphans Court (one for Alexandria County and one for Washington County), another two as registrars of wills, and a third pair as notaries public. Then President Adams nominated an incredible forty-two men to be justices of the peace, twenty-three for Washington County and nineteen for Alexandria.18 One of the Washington nominees was one “William Marberry.”19 Another was John Laird, and a third was the sitting secretary of the navy, Benjamin Stoddert.20 While party affiliation played the most important role in who was nominated, not all the nominees were ardent Federalists. There were even some Republicans among the nominees.21
Judicial appointees accounted for only 93 of the 216 nominations that Adams sent to the Senate in the final month of his presidency. There were also nominations for military and diplomatic posts. In as pure a demonstration as possible that Adams was pleased that Jefferson had prevailed over Burr, he nominated James Bayard, congressman from Delaware, as ambassador to France, but Bayard declined.
On March 3, the last day of the Sixth Congress, the Senate approved the appointments of almost one hundred of Adams’s last-minute nominations— among them, but not specifically mentioned in the Senate Executive Journal, William Marbury. The commissions were then sent by messenger to the President’s House, where John Adams was spending his final hours in office.
* John Rutledge Jr. of South Carolina, son of the former chief justice.
* Cushing was another Federalist with unusual resilience. He lived another nine years, all of them spent on the Court.
* Ingersoll and Lee declined the appointments.
* Adams blundered in his choice for circuit court chief justice, however. Thomas Johnson declined the appointment—to John Marshall’s horror—by which time Jefferson was already in office and could fill the post with a Republican—which he promptly did.
SIXTEEN
SUNSET AT MIDNIGHT
WHAT OCCURRED AT THE PRESIDENT’S HOUSE once the approved commissions were delivered from the Senate was a source of conjecture, rumor, hyperbole, and, in the months following, more than a little vitriol. Few of the details can be discerned with certainty, but, even from the fragmentary evidence that is available, a reasonable picture can be drawn.
On the night of March 3, Adams signed and Marshall countersigned the commissions that the Senate had rammed through earlier in the day, as well as some earlier commissions that had not yet been processed. Marshall also affixed the Great Seal to each. Included was the commission for James Marshall for circuit court in the District of Columbia. (John Marshall had earlier helped process commissions for three current or future brothers-in-law.1 ) Most evidence indicates that all of the commissions were processed, but subsequent testimony, not altogether reliable, indicated that some were not. While it is also widely assumed that John Marshall was with Adams at the President’s House—James Marshall may have been present for part of the time as well—similar testimony maintained that Adams was alone and Marshall never left his office at the Department of State.2
Wherever the signing and countersigning actually took place, Republicans later branded the whole crew, including those who had been confirmed the previous week, “Midnight Judges.” A story quickly circulated in Republican circles that Adams and Marshall sat in the President’s House, signing and affixing seals until the very moment, midnight, that Adams’s term officially ended. Jefferson’s granddaughter even told of Levi Lincoln, the incoming attorney general, surprising the pair a few moments after that and, pointing to Jefferson’s watch, which for some reason he was carrying, demanding that they desist, as Adams was no longer president.3 This story acquired the authority of the printed word when some credulous Jefferson biographers latched on to it. As for Jefferson himself, he felt that his predecessor had stayed within the law, and he also seems to have held on to his watch. In a letter about a month later, referring to the western district of Virginia, Jefferson wrote, “Mr. Adams, who continued filling all the offices till 9 o’clock of the night, at 12 of which he was to go out of office himself, took care to appoint for this district also.”4
There is also some question as to Adams’s and Marshall’s states of mind. Some have portrayed the outgoing president spending his last hours in the President’s House relieved at the lifting of what had become a grating burden, thrilled and expectant at the prospect of returning to Massachusetts to become “Plain John of Stony Field.” Marshall, although harried by the flurry of activity—he would, at Jefferson’s request, be conducting the swearing-in the following day—is said to have proceeded with his duties as he always did: responsibly, with good humor, and, most of all, in a lawful manner.
Yet, after taking such enormous pains to load the judiciary with Federalists in the waning days of a defeated and discredited administration, Adams and Marshall could hardly have proceeded without some degree of grim satisfaction, knowing that they were thrusting one last thumb into Jefferson’s eye. This was, after all, to be Marshall’s judiciary; beginning at noon the next day, he would be the most powerful Federalist in the nation. The chief justice, too, would clearly have understood that forty-two justices of the peace for a city as small as the District—even if there was a Republican or two sprinkled in—was a patronage giveaway. The presence of not only Marshall’s brother and Abigail Adams’s nephew among the appointees, but numerous other friends and relatives, and spouses of yet other friends and relatives, only underscored the patronage being offered.
Whenever the process came to an end—and there is no way to know for sure if it was before or after midnight—at 4 A.M. on the morning of March 4, 1801, John Adams, now a private citizen, boarded a coach to begin his journey home, thus becoming one of only two outgoing presidents who refused to attend the inauguration of his successor. His son, John Quincy Adams, would be the other.5
It was left to John Marshall, Chief Justice of the Supreme Court of the United States and, at Jefferson’s request, for another twenty-four hours still secretary of state, to deliver the commissions. Once again, the process by which this was accomplished—and, in some cases, not
accomplished—is unclear. Many of the commissions did, in fact, find their way to their appropriate destinations and it seems impossible that Marshall could have achieved this feat alone. Even if he had forgone sleep, he could never have scurried about, in the few hours he had before he was due at the Capitol to swear in Jefferson, to deliver dozens of commissions. Nor is there any record of a line of eager appointees showing up at the President’s House or the Department of State in the early morning hours of March 4 to grab up their signed and sealed commissions before slinking off again into the night. Thus, while Marshall must have had help in his labors—and the legality of delegating this task is questionable—whom he employed as couriers is also unrecorded, although now–Associate Justice of the District of Columbia Circuit Court James Marshall was definitely among them.
By mid-morning of March 4, most of the key commissions had in one way or another been dispatched, but many of those for marshals and justices of the peace remained in Marshall’s possession. He had been expecting the chief clerk at the Department of State, Jacob Wagner, to help with the deliveries, but Wagner had been pressed into service by Jefferson as a temporary private secretary and was unavailable. James Marshall signed for twelve of the commissions and left to deliver them. When he was unable to complete his rounds, he later returned “several” to his brother’s office. As the hour grew late, John Marshall left the Department of State, a stack of remaining commissions still undelivered.
Afterward, Marshall was under some pressure to explain why, after the huge fuss involved in getting the commissions approved by the Senate, then signed and sealed, they were left to their fates at the State Department. He noted in a letter to James a few weeks later that he did not bother with the marshals’ commissions because he believed that under the law Jefferson could sack whomever he pleased anyway—as the new president subsequently did— leaving open, of course, the question of why he and Adams had bothered with them in the first place. As to the justices of the peace, Marshall explained to his brother that he believed that, once signed and sealed, the commissions became lawful and irrevocable, and he therefore “entertained no suspicion” that Jefferson could or would fail to uphold their validity. It was only “the extreme hurry of the time and the absence of Mr. Wagner” that caused the commissions of William Marbury and the others to be left behind.6
That would be scant consolation to the frustrated appointees. While justice of the peace might seem a relatively minor post in the scheme of things, it had ceremonial and symbolic value quite important to a striver like William Marbury.
Marbury was born in 1762, son of a failed tobacco farmer, great-grandson of a successful plantation owner who, by distributing his property through inheritance, had subdivided his heirs into subsistence. By the time Marbury’s father died, there was nothing left to inherit at all.7 The Marburys were poor and patriotic; three of Marbury’s older brothers fought in the Revolution. William Marbury, after a hardscrabble youth, eschewed military service and instead got himself a job in the Maryland state capital, Annapolis, clerking for a minor state official. He eventually held a series of low-level secretarial positions in Maryland government, acquiring a reputation for intelligence and hard work, until, in 1789, after Alexander Hamilton persuaded Congress to assume all state war debts, Marbury finally had an opportunity to make some money of his own.
Marbury’s associates, all Federalists with a penchant for speculating, not surprisingly owned a sizable quantity of Maryland debt instruments. When the value of the paper increased with the government guarantee, they therefore profited handsomely. Marbury, a de facto junior partner, was allowed to buy some small quantity of the notes at their depreciated value and then benefit from the appreciation, a transaction that today would be called “insider trading” but which in the early days of the Republic was standard speculative practice.8 Marbury’s friends eventually chartered a bank in which Marbury was allowed to invest. The bank became enormously successful, and Marbury profited along with the rest. He would eventually be named a director.
Marbury was not content to simply slipstream behind his associates, however. He was highly ambitious and possessed a natural acumen for finance to turn ambition into reality. In the early 1790s, he was named a “Deputy Agent for the State of Maryland,” then, in 1796, got the top post and with it, a chance to make some real money. As agent, Marbury “engaged in complex financial dealings, collecting back taxes, selling estates, exchanging debt certificates for federal stock, and brokering on his own.”9 While never quite breaking into either Maryland’s political or financial elite, Marbury amassed substantial wealth and became a well-known figure in the state. He sat for a portrait by Rembrandt Peale and even began lending funds to friends and associates.
William Marbury
The Federalist rift during the Adams presidency was as deep in Maryland as anywhere else, and Marbury found himself in the thick of the fray. The battle was as much financial as ideological with one contingent, under the leadership of Samuel Chase, vying with Adams loyalists to carve up the spoils of assumption and speculation. Marbury’s circle aligned with Adams. Deft as he was as a financial practitioner, Marbury’s expertise was invaluable and he became a key player in the Adams camp. He moved to Georgetown to be closer to the new capital and, when his close friend Benjamin Stoddert was appointed secretary of the navy, Marbury’s political fortunes seemed on the rise as well.
After Adams purged his cabinet in May 1800, Marbury’s associates gained even more sway with the president. One of them, an intimate named Uriah Forrest, asked Marbury to spearhead the effort to gain Maryland’s ten electoral votes for Adams. Had he been successful and Maryland’s ten votes all gone to Adams instead of splitting 5–5, Adams would have been reelected and Marbury would have been in line for a major government post, the culmination of a remarkable American success story.
Despite unstinting efforts, however, Marbury could not deliver Maryland, but his tireless and loyal support did not go unrewarded by the outgoing president. He was not sufficiently senior for a circuit court nomination, so, to show his appreciation, Adams named William Marbury as one of the forty-two new justices of the peace for the District of Columbia.
SEVENTEEN
THE NEW DAY
THOMAS JEFFERSON WAS INAUGURATED as the third president of the United States at noon on March 4, 1801, before a special joint session of Congress and a packed gallery in the Senate chamber. He had been conciliatory in asking the Federalist Marshall to swear him in—as had been Marshall in agreeing to administer the oath—and the new president appeared at first to be even more conciliatory in his inaugural address, in which he called on those of all parties to join him.1 “Let us then, fellow citizens, unite with one heart and one mind, let us restore to social intercourse that harmony and affection without which, liberty, and even life itself, are but dreary things. And let us reflect, that, having banished from our land that religious intolerance under which mankind so long bled and suffered, we have yet gained little, if we countenance a political intolerance, as despotic, as wicked, and capable of as bitter and bloody persecutions.” He added, “We are all republicans; we are all federalists.”2
As Jefferson continued on, however, conciliation gave way to thinly veiled threat. “I know indeed that some honest men fear that a republican government cannot be strong; that this government is not strong enough.” The “honest men” to whom Jefferson referred were, of course, Federalists. “But would the honest patriot, in the full tide of successful experiment, abandon a government which has so far kept us free and firm, on the theoretic and visionary fear that this government, the world’s best hope, may, by possibility, want energy to preserve itself? I trust not. I believe this, on the contrary, the strongest government on earth . . . Let us then, with courage and confidence, pursue our own federal and republican principles; our attachment to union and representative government.”3 It was lost on no one that, by “representative government,” Jefferson was referring not to the elitist
centralization of the Federalists, but to the populist majority rule that he favored. Rather than a call for moderation on all sides, then, the speech offered an olive branch only to those Federalists willing to set aside their own views and accept the principles of the victors, an extremely clever ploy to create an even deeper rift in the divided party and isolate and marginalize Hamilton and the High Federalists.
Thursday, March 5, was officially the first day of the Seventh Congress, but the only day that it would sit until the new session began in December.4 Jefferson nominated Madison for secretary of state (Levi Lincoln would man the post until Madison’s return), Samuel Dearborn to be secretary of war, and Lincoln to be attorney general. Dearborn and Lincoln were both from Massachusetts, meaning, with Madison’s absence, Jefferson’s entire initial cabinet was from Adams’s home state.* Robert Livingston was nominated ambassador to France, the post James Bayard had declined. The senators waived debate on the nominations and approved all four immediately, and then Congress adjourned for its eight-month recess. With the Senate confirmation of Madison, John Marshall left the executive branch forever.
Jefferson was inundated with requests for appointments from hungry Republicans, but the savvy Virginian knew all too well that a mass purge of federal (and Federalist) officials would not only throw the government into chaos, but also undermine his plan to co-opt as many moderate Federalists as possible. Nettling some of his supporters, he thus removed few Adams appointees of long standing. Even Rufus King, Adams’s ambassador to Britain, kept his job. Appointments made in the closing days of Adams’s presidency, however, would be treated quite differently.
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