The Activist

by Lawrence Goldstone

  The Senate let the motion lie over the weekend and took it up Monday morning. Howard opened the debate by asserting that “the request was so reasonable, that he concluded it should pass without objection,” to which James Jackson of Georgia replied that “an attempt was made at the last session to effect the same thing . . . then by counsel . . . now from the men themselves.” Whatever the source, Jackson continued, it was “an attack on the Executive department . . . and as such [he] would oppose it . . . in whatever shape it might present itself.”9 The debate over Marbury’s petition played out according to what was now a familiar script and after a full day of pro forma partisan rhetoric, Marbury’s petition was denied by 15–13 in a strict party vote.10 Three days later, on February 3, the Senate took up the judges’ petition and again spent a day in venomous debate before rejecting it by the same 15–13 vote.11

  Noteworthy, however, in the debates on the Marbury petition was the focus, which was almost exclusively, as Senator Jackson had noted, on the implied rather than strictly defined right of the executive branch to conduct business free from interference from either Congress or the courts. That the entire question should have been moot—after all, Marbury and his fellows hardly needed to prove to the Supreme Court that the commissions had been granted when the man who had signed them was by then the sitting chief justice—did not prevent the senators from staking out the political rather than the legal boundaries of the case.

  Because of what had transpired on the floor of Congress, therefore, although Lee and his fellow Federalists had abjectly failed to receive any relief there or in circuit court, they had succeeded in sharpening the focus of the debate and leaving no doubt in the nation at large that the two key cases on the docket for the first Supreme Court term in more than a year—Marbury v. Madison and Stuart v. Laird—were every bit as much a political test of the Court’s role as a legal one.

  A political confrontation was precisely what Marshall had been trying to avoid. Nor did he have much time in the wake of Congress’s actions to prepare for the showdown. Court was scheduled to convene only three days after the Senate turned down the judges. If Charles Lee’s intent was to squeeze his old friend Marshall, he could not have done a much better job.

  Remarkable and not a little ironic is that some of the most crucial events in the nation’s history have so little source documentation attached to them. The Philadelphia Convention of 1787, in which the Constitution was drafted, was held in secret and, if not for James Madison and, in the first weeks, Robert Yates, Americans would have virtually no idea what transpired behind those closed doors. Records of the proceedings of Marbury v. Madison are almost as scant. The official record, the notes of midnight judge William Cranch, seems to be little more than a verbatim rendering of reports in the National Intelligencer, a Republican newspaper published in Washington City. A more complete account, particularly of proceedings of the trial itself, appeared in another Republican newspaper, Philadelphia’s Aurora, on February 15, 1803. Despite the partisanship of each of these periodicals, their records of the trial and Marshall’s subsequent decision have been accepted by historians as being accurate.12

  Lack of primary records, however, in no way implied lack of interest. When the Court convened the following Monday, February 7, the tiny committee room in the Capitol was packed, although conspicuous by his absence was the defendant. James Madison, secretary of state, ignored the proceedings entirely, refusing to acknowledge that the toothless Court was even worth a perfunctory appearance. In fact, the “trial” was actually an inquest, since “Madison” was not represented at all. The secretary of state had not bothered to retain a personal attorney, and although Attorney General Lincoln was in attendance, he was quite pointedly there as a private citizen and not an advocate.13 Also absent were two of the justices: Cushing was ill, and Paterson missed the first day of testimony.14

  Front page of the Philadelphia Aurora recounting the trial of Marbury v. Madison

  Marshall, whose shambling, rumpled mien of private life was replaced with imperial solemnity on the bench, did not lack for a sense of the dramatic. Although Marbury and Stuart were the reason that local lawyers, newspapermen, and members of the public had squeezed in, Marshall insisted on following protocol and proceeding in the order that cases had been placed on the docket. Marbury was to be heard before Stuart, but even so, spectators had to sit through a drone of unimportant motions and legal housecleaning since the mandamus case did not come up until two days later.*

  On Wednesday, February 9, 1803, the drama that had been building for almost two years finally reached center stage. With it, one of the most surreal episodes in American legal history began. For Lee, the first requirement was to establish that his clients had actually been appointed to their posts and that their commissions had dutifully been signed and sealed. The task should have been quite simple: call as a witness a man present at the signing, who had himself applied the seal of office. Even better, that man—who had made no secret of his role in the affair, nor his negligence in creating the problem in the first place—was already in the courtroom.

  Lee at that point could have requested that Chief Justice Marshall recuse himself from hearing the case and, once Marshall had acknowledged the blatant conflict of interest and done so, he could then be called as a witness to recount the facts. This, however, Lee was loath to do. The very point of the exercise was to squeeze Marshall into either ruling against Jefferson and demonstrating the Federalists would not just roll over and play dead, or ruling for Jefferson and demonstrating his own moral cowardice. That Marshall would ultimately rule both for and against Jefferson had not crossed anyone’s mind, nor had the even more remote possibility that he would do so by evoking a great constitutional principle.

  So Lee continued the charade and puttered along as if the man behind the bench was not related to the man who had been party to the affair. Not only did Lee refuse to ask Marshall to step down, he did not seem to ever have made reference at all to the actual process of preparing the commissions for delivery.15 Instead, he referred to ratification in the Senate—an event for which he had no proof since the Republicans were now trying to thwart the law by refusing to turn over the appropriate records—and then to existence of the signed and sealed commissions at the Department of State—an event for which he had no proof since the two clerks present at the time had, at the insistence of the Republican attorney general, refused to discuss the matter.* It was as if Adams’s secretary of state had not existed.

  Lee’s wraithlike view of the office did not extend to Jefferson’s secretary of state, however. Lee made a point of emphasizing that Jefferson’s secretary of state had refused to respond to an inquiry as to whether the commissions had, in fact, been signed and sealed. Lee did not bother to mention that, unlike Marshall, Madison had not even been in Washington when these events transpired and was not to return for another two months, when, in all likelihood, the commissions themselves had already been destroyed.

  In his opening remarks, Lee laid out the question before the Court. “It was important to know on what ground a justice of the peace in the District of Columbia holds his office and what procedures are necessary to constitute an appointment to an office not held at the will of the President.”

  Lee then called as witnesses the chief clerk at the State Department, Jacob Wagner, and his assistant, Daniel Brent. Both were Federalists but neither politically active, and they had been held over by the new administration. Each had refused to provide an affidavit, and they now declined to answer Lee’s questions on the grounds that they could not discuss the goings-on of an executive department.

  Lee countered, speaking for the remainder of the day, spending hours expounding on the dual nature of the office of secretary of state “as a public ministerial officer of the United States and as agent of the president.” In the latter capacity, no cabinet officer could be required to divulge private intercourse with another member of the executive branch, while in the forme
r capacity he would owe allegiance to the people. This argument cut not only to the question of whether or not Madison should be required to produce records to demonstrate whether or not Marbury had ever been appointed, but also to the question of his right to withhold any ratified commission, even at the president’s specific instruction. Although this narrow definition of executive privilege was Lee’s, with no one providing a countervailing view, Federalists might reasonably assume that it would be accepted by the Court.

  “The President is no party to this case,” Lee asserted. “The secretary is called upon to perform a duty over which the President has no control, and in regard to which he has no dispensing power, and for the neglect of which he is in no manner responsible.” Thus, Lee continued, “the Secretary of State, therefore, being in the same situation, as to these duties, as every other ministerial officer of the United States, and equally liable to be compelled to perform them, is also bound by the same rules of evidence. These duties are not of a confidential nature, but are of a public kind, and his clerks can have no executive privileges.”

  To those in the courtroom, whether or not Marshall would side with his old friend and fellow Federalist and compel the two clerks to testify seemed to be a barometer for the rest of the case. Marshall considered the matter after Lee had taken his seat and then announced that Wagner and Brent must indeed testify, but that they might object to any particular question that they thought violated their responsibility to their office. In that case, the chief justice himself would decide whether or not the question was pertinent. With that, court was adjourned for the day.

  Unlike Madison, two clerks were not about to openly flaunt the Supreme Court, and they took the witness stand the next morning.* Wagner’s recollections were hazy. He testified that he had heard about the commissions but could not recall whether or not he had seen them. He did recall that Marbury and Dennis Ramsay had succeeded in meeting with Madison, but that the secretary had referred them to him. Wagner had told the two claimants he had heard that some of the commissions had been signed and some had not, and some had been recorded but some had not, and that he could not remember which ones had received which treatment.

  Brent was slightly more forthcoming, but the information he provided seemed divergent from what was previously known of the affair and he sometimes contradicted himself. He testified “that he did not remember certainly the names of any of the persons in the commissions of justices of the peace signed by Mr. Adams,” but then added, “he believed and was almost certain, that Mr. Marbury’s and Col. Hooe’s commissions were made out, and that Mr. Ramsay’s was not; that he made out the list of names by which the clerk who filled up the commissions was guided.”

  Brent also testified that “After the commissions for justices of the peace were made out, he carried them to Mr. Adams for his signature. After being signed, he carried them back to the secretary’s office, where the seal of the United States was affixed to them.” This statement would indicate that Marshall and Adams were not together on the night of March 3, 1801, although Marshall had previously given the impression that he had been at the President’s House for at least part of that evening. Whatever was the accurate version of that night’s events, the chief justice at no point corrected Brent. Brent then added: “He believed none of those commissions of justices were ever sent out, or delivered to the persons for whom they were intended,” a statement obviously inaccurate since James Marshall, the chief justice’s brother, had spent much of the early part of March 4 frantically seeking out appointees to whom he could deliver the commissions.

  Of greater significance, however, was that neither of the clerks knew what had become of the commissions after Jefferson was sworn in.

  Lee next called Attorney General Lincoln, who had been the acting secretary of state as the Adams presidency expired. Lincoln, from the gallery, also expressed a disinclination to testify. He could, he said, not reveal any of his dealings with President Jefferson while acting secretary of state, but, as sitting attorney general, if the chief justice deemed his testimony required, agreed to evaluate any questions Lee wished to put to him if Lee would submit them in writing.

  Marshall agreed to the ground rules and instructed Lee that he could submit four questions in writing to Lincoln, and “if Mr. Lincoln wished time to consider what answers he should make, they would give him time, but [the justices] had no doubt he ought to answer.” Lincoln agreed, with the caveat that “he did not think himself bound to disclose his official transactions while acting as Secretary of State.” He then added: “If, in the course of his official duty, these commissions should have come into his hands, and that he might either by error or intention have done wrong, it would not be expected that he should give evidence to incriminate himself.” After the attorney general’s remarkable admission, Marshall agreed to both conditions, but noted “that the fact whether such commissions had been in the office or not, could not be a confidential fact; it is a fact which all the world have a right to know.”

  Lee presented his questions to the court. They were then passed to Lincoln, who examined them and informed Marshall that he would have his responses the following morning. Of the four, the most pertinent was the last, an inquiry as to what had become of the commissions, the key to the plaintiffs’ case.16

  Lincoln returned to the witness stand the following morning. In response to Lee’s first three questions, Lincoln testified that he had indeed seen a stack of commissions for justice of the peace that had been signed by Adams and affixed with the great seal, although he could not be sure that those for any of the three plaintiffs were among them. He was vague about what had happened next, but did not believe that any of the commissions that he had come across were sent to specific appointees.

  The only question Lincoln refused to answer in full was the fourth. He claimed that “he had no hesitation in saying that he did not know that they ever came to the possession of Mr. Madison, nor did he know that they were in the office when Mr. Madison took possession of it. He prayed the opinion of the court whether he was obliged to disclose what had been done with the commissions.”

  Marshall was once again faced with the choice of how hard to press. Lincoln’s response was, at best, evasive. After indicating in his final comment that he did, in fact, know what had become of the commissions, he had not elaborated on whether he was declining to answer further because the question related to his official duties or that a reply would be self-incriminating.

  The chief justice chose not to pursue the matter. “The court were of opinion that [Lincoln] was not bound to say what had become of [the commissions]; if they never came to the possession of Mr. Madison, it is immaterial to the present cause what had been done with them by others.”

  Lee’s final piece of evidence was an affidavit by James Marshall. The younger Marshall affirmed that “on the 4th of March, 1801, having been informed by some person from Alexandria that there was reason to apprehend riotous proceedings in that town on that night, he was induced to return immediately home, and to call at the office of the Secretary of State, for the commissions of the justices of the peace; that as many as 12, he believed, commissions of justices for that county were delivered to him, for which he gave a receipt, which he left in the office. That finding 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. Among the commissions he returned, according to the best of his knowledge and belief was one for Col. Hooe, and one for William Harper.”

  With that, Lee claimed that he had proved the existence of the commissions and he moved on to his argument. The case, he asserted, hinged on three questions: “1st. Whether the Supreme Court can award the writ of mandamus in any case? 2d. Whether it will lie to a Secretary of State in any case whatever? 3d. Whether, in the present case, the court may award a mandamus to James Madison, Secretary of State?”

  Lee then spoke “at some length,” making the case for an affi
rmative response to all three questions, especially the third. In support of the first, he drew heavily from Blackstone and the Federalist, but particularly from the Judiciary Act of 1789, from which he quoted Article 13. He cited other instances in which the Court had been asked to issue a mandamus.17 In support of the second, Lee once more made his distinction between the secretary of state as public minister and as executive surrogate. Lee admitted that a mandamus could not be issued to the latter but asserted, once again citing the Judiciary Act of 1789, that the prohibition did not apply to a public minister.

  At that point, Justice Paterson, a coauthor of the Judiciary Act of 1789, interrupted to ask Lee “whether he understood it to be the duty of the secretary to deliver a commission, unless ordered to do so by the president?” The question may have been innocuous, but Lee’s response was to form the backbone of Marshall’s opinion.

  “After the president has signed a commission for an office not held at his will,” Lee replied, “and it comes to the Secretary to be sealed, the president has done with it, and nothing remains, but that the secretary perform those ministerial acts which the law imposes upon him. It immediately becomes his duty to seal, record, and deliver it on demand. In such a case the appointment becomes complete by the signing and sealing; and the secretary does wrong if he withholds the commission.”