LOOKING BACK, we can see that the election of 1800 was an important step forward in the growth of an American democratic state. For the first time in Anglo-American history, a government had been turned out by the people at the polls, and its leaders peacefully handed over power to the opposition. This, however, did not seem so clear at the time. Although the Jeffersonian Republicans had won control of the executive and legislative branches, the judiciary remained firmly in the hands of the defeated Federalists. The idea of a divided government was foreign to Americans at the time; in the English tradition the king chose the prime minister and appointed the judges.
Thomas Jefferson believed that he would not able to implement the democratic policies he favored so long as the Federalists controlled the judiciary, and especially with his cousin and rival, John Marshall, as the new chief justice of the Supreme Court. The battle between Jefferson and the judiciary played out in several venues during the eight years of Jefferson’s presidency, and included the abolishment of some courts, the impeachment and near-conviction of Justice Samuel Chase, and the treason trial of Aaron Burr. None of them, however, would have a greater influence on American constitutional development than William Marbury’s case. It was not the opening gun of the war between Jefferson and the Court, but it was the most decisive. Aside from political differences, much of the situation resulted from efforts by John Adams and the Federalists to retain control of the judiciary, and Jefferson’s determination not to let that happen.
In the months after the Federalists lost the election of 1800, but before Jefferson took over the White House, the Federalist-controlled Congress passed the Judiciary Act of 1801 along with the Organic Act for the District of Columbia. Along with other provisions, both laws created a number of new judicial offices, which the outgoing president, John Adams, proceeded to fill mostly with members of his own party.
At the time, the newly created District of Columbia consisted of two counties, Washington (the present-day area of Washington, D.C.) and Alexandria (which is now Alexandria, Virginia). On March 2, 1801, Adams nominated twenty-three men to be justices of the peace in Washington County and nineteen in Alexandria County. After the Senate confirmed these appointments on March 3, Adams signed the official commissions, not finishing until late into the night of his last day in office (hence the group came to be known as the “Midnight Judges”). Secretary of State John Marshall, who had just been named chief justice of the Supreme Court, affixed the great seal of the United States, and that same evening his brother, James Marshall, delivered some of the commissions to men in Alexandria, who ultimately served their term in office. But none of the twenty-three justices of the peace in Washington County received their commissions before Adams left office at noon on March 4.
When Jefferson took office he discovered the signed, sealed, but as yet undelivered commissions. He reappointed the six Republicans who had been on Adams’s list, as well as six of the Federalists, but refused to name the remaining eleven men. Most of the Federalists who did not receive their commission accepted their fate passively, but not William Marbury. Without the commission—without the actual parchment and seal—he could not serve in the office. So Marbury went to court to force the Jefferson administration to deliver the commission. The resulting case led to one of the most important decisions in American constitutional history.
William Marbury had been born in 1762 on a small tobacco plantation in Piscataway, Maryland. His career progressed slowly in the 1780s, since Maryland government and politics were in a constant turmoil. Not until the adoption of the U.S. Constitution and the establishment of a new national government did Maryland’s economic fortunes revive; when that occurred, Marbury, aligned with the leading Federalists in Maryland, stood ready to prosper. In 1796 Marbury was named agent of the state of Maryland, the most powerful unelected office in the state. Although he and his colleagues in the office apparently did not shirk from using their positions to advance their own fortunes—a practice not uncommon then or now—unlike many other Maryland officials at the time, Marbury was never tainted with even the slightest tinge of corruption. He prospered not only because of the new federal government’s successful fiscal policies, but also because of his financial acumen. In addition, he helped other important members of the Maryland elite to realize profit from the federal plan, earning their trust and gratitude.
In the bitterly contested presidential election of 1800, Marbury declared his support for John Adams, and when Congress finally chose Thomas Jefferson as the winner on February 17, 1801, a mob ran through the capital demanding that everyone put candles in their windows to indicate support for the new president. When they came to Marbury’s house, he would have none of it, and stood up to the mob’s leaders until they finally moved on, leaving him in peace. To reward Marbury for his loyalty, Adams named him one of the forty-two justices of the peace Congress had authorized for the capital. Many, like Marbury, had been staunch supporters of John Adams and his party. Although Jefferson did not revoke the commissions of all of Adams’s appointees, he believed the new city did not need so many justices of the peace. The new president believed—correctly—that Marbury had been one of the Federalist Party’s most partisan supporters, and withheld his commission. And, because John Marshall had not delivered the commission, technically Marbury had never held the office.
But Marbury wanted it, both for its prestige and political influence, which could translate into wealth. But although the commission had been signed and sealed, it had not been delivered, and without the document itself, Marbury could neither exercise the powers of the office nor collect the fees for his services. He needed the actual commission, and decided to go to court to get it. Under the provisions of the Judiciary Act of 1789, Congress had given the Supreme Court the power to issue writs of mandamus, which in effect direct a public official to carry out an act or duty. Marbury sought such a writ against Secretary of State James Madison to force him to hand over the commission that Adams had signed. The whole situation resulted from efforts by Adams and the Federalists to retain control of the judiciary, and Jefferson’s determination not to let that happen. The politics involved in the effort to control the judiciary explains much of what followed.
The Judiciary Act of 1801 created sixteen new circuit court judges, an expansion of the court system that the growing nation needed. But those benefits have been obscured by charges that the Federalists, ousted from authority by the people, sought to cling to power by packing the courts with their allies. In Jefferson’s words, the Federalists “retired into the judiciary as a stronghold.” Had these appointments been available to the Republicans, their complaints might not have been so loud, for many in that party also recognized the need to correct the deficiencies in the system. On the other hand, had the goal of Adams and his party been only judicial reform, the retiring president might have been wise enough to leave a few of the new judicial seats vacant, allowing Jefferson the opportunity to make some selections. But Adams appointed men to all the vacancies—and with great haste—filling the judiciary with dozens of Federalists, many of whom would have tenure for life.
In 1801 not a single Republican sat on a federal court, and nothing but death or resignation—both unpredictable factors—would allow Jefferson to rectify that situation. Adams’s appointment of John Marshall as chief justice did not please the new president at all, for there had long been ill will between them, and Marshall’s federalism—centered on a strong national government with extensive constitutional powers—stood solidly opposed to Jefferson’s belief in a limited national government with the majority of power lodged in the states. Something had to be done, Jefferson believed, to prevent the Federalist bench from hindering democracy. As Republican representative William Giles asserted, “[T]he revolution is incomplete, so long as that strong fortress is in possession of the enemy.” Giles advocated that Jefferson remove “all of [the judges] . . . indiscriminately.”
Any proposed solution raised constitutional questions. Since judges served for life, no one knew if Congress could simply abolish judgeships in order to get rid of particular judges. Certainly if this were possible, then the whole idea of life tenure for judges would be in doubt. Nothing would prevent Jefferson and his allies from abolishing all existing courts, including the Supreme Court, and then re-creating them a short time later, so that the new president could appoint his allies to the bench. The process might well be repeated whenever a new administration took office. Such political tinkering with the courts strikes modern ears as unfathomable, but since the Republicans proceeded to do just that, it is clear that they worried very little about the constitutionality of an act that fired judges.
Jefferson, who often claimed to be a strict constructionist when it came to reading the Constitution, nevertheless saw no constitutional problems with the idea. His plan was to abolish the new courts and, in the process, eliminate the judges. Shortly after his inauguration, Jefferson told a friend that “the judge of course stands till the law is repealed, which we trust will be at the next Congress.” On January 6, 1802, John Breckinridge of Kentucky, a strong supporter of Jefferson, introduced a bill in the Senate to repeal the Judiciary Act of 1801. After intense debate, the Repeal Act narrowly passed the upper chamber, 16–15, on February 3; the House, where the Republicans enjoyed a large majority, enacted the Senate bill without amendment on March 8, 1802.
Congress then passed the Judiciary Act of 1802, increasing the number of circuits from three to six, with each Supreme Court justice assigned to only one, where he would hold court with the local district judges on circuit twice a year. In addition, the new law provided for only one term of the Supreme Court each year instead of the two terms that had been in effect since 1789, thus further reducing the physical strain on the justices by eliminating an arduous trip to the capital. The new term would begin on the first Monday of every February. This provision, which certainly made sense in light of the Court’s caseload, nonetheless provoked much criticism. Because this act was passed in April 1802, the Supreme Court would not meet again until February 1803. Since the last meeting had been in December 1801, this meant that the Supreme Court would not meet for fourteen months, and tensions simmered in the interim.
Critics of the 1802 act claimed that the Republicans feared that the Supreme Court at the anticipated June term would have found the Repeal Act unconstitutional. Jefferson’s friend James Monroe, now governor of Virginia, warned that if the public viewed the postponement as “an unconstitutional oppression of the judiciary by the legislature,” then it might also see the Repeal Act as unconstitutional. He urged the president to veto the bill, but Jefferson believed that the delay would work in the party’s favor; by the time the Court met in 1803, the president predicted, the furor would have died down.
Chief Justice John Marshall privately “doubted the constitutionality of the repeal.” But Marshall was shrewd enough as a politician to know when he could not win. He told Justice William Paterson that he would “be bound by the opinion of the majority of the Judges,” knowing that in fact within the Court only Justice Samuel Chase publicly argued against the constitutionality of the repeal. When a specific challenge did reach the Court in Stuart v. Laird (1803), the Court, in an opinion by Paterson, affirmed the constitutionality of the repeal. What had seemed so grave a question at the time passed quickly into obscurity. One reason for Marshall’s acquiescence may have been his desire to avoid a direct confrontation with President Jefferson in a manner that would allow Jefferson to obstruct the Court’s opinion. Instead, Marshall found a better way to challenge Jefferson, in an opinion delivered six days before the decision in Stuart v. Laird. In Marbury v. Madison, Marshall confronted Jefferson—and beat him on a major constitutional point—in such a manner that Jefferson could not respond.
Jefferson claimed that delivery was essential for a commission to be valid, just as for a deed or bond, and that by withholding the document, the entire nomination had been voided. Marbury and his lawyer, former attorney general Charles Lee, argued that signing and sealing the commission completed the transaction, and that delivery constituted a mere formality. But formality or not, without the actual piece of parchment, Marbury could not enter into the duties of office. The Court, aware of Jefferson’s hostility, might well have dismissed the suit immediately for lack of jurisdiction, but instead it aroused Republican resentment by agreeing to hear the case at its next term. When Marshall convened the Court in February 1803, Marbury v. Madison stood on the docket.
Some scholars have questioned whether Marshall should have removed himself from this case because of his prior involvement as Adams’s secretary of state. Certainly, later judicial standards would have called for recusement, but at the time only financial connections to a case led judges to step aside, as Marshall did in suits regarding Virginia lands in which he had an interest. The Jeffersonians, always quick to criticize Marshall, did not even raise the issue of his sitting in the Marbury case.
The merits of the case, by any reasonable interpretation, can only be described as minor. By the time the Court heard it, the wisdom of Jefferson’s reducing the number of justices of the peace had been confirmed; Marbury’s original term was almost half over; and most people, Federalists and Republicans alike, considered the issue moot. But Marshall, despite the political difficulties involved, recognized that he had a perfect case with which to expound a basic principle, and by his persistence, he utilized it to lay the foundation for the Court to assume the primary role in constitutional interpretation.
It is questionable if Marshall had planned any grand strategy when he and the Court agreed to hear the case. By the time the justices heard arguments, however, the chief justice recognized the hostility of the Jeffersonian Republicans and the dilemma it posed to the Court. If it issued the mandamus, the Court had no power to enforce it, and Jefferson would certainly ignore it. If, on the other hand, the Court refused to issue the writ, it would appear that the judiciary had backed down before the executive, and this Marshall would not allow. The solution he chose has properly been termed a tour de force. In one stroke, Marshall managed to establish the power of the Court as the ultimate arbiter of the Constitution, to chastise the Jefferson administration for its failure to obey the law, and yet to avoid having the Court’s authority challenged by the administration.
Marshall, adopting a style that would mark all his major opinions, reduced the case to a few basic issues. He asked three questions: Did Marbury have the right to the commission? If he did, and his right had been violated, did the law provide him with a remedy? If so, did mandamus from the Supreme Court constitute the proper remedy? The last question, the crucial one, dealt with the jurisdiction of the Court in a particular case, and should normally have been answered first, since a negative response would have obviated the need to decide the other issues. But that would have denied Marshall the opportunity to criticize Jefferson for what the chief justice saw as flouting the laws.
For the most part, following the arguments of Marbury’s counsel on the first two questions, Marshall held that the validity of a commission existed once a president signed it and transmitted it to the secretary of state to affix the seal. Presidential discretion ended there, for the political decision had been made, and the secretary of state had only a ministerial task to perform—delivering the commission. In this, the law bound him, like anyone else, to obey. Marshall drew a careful and lengthy distinction between the political acts of the president and the secretary, in which the courts had no business interfering, and the simple administrative execution that, governed by law, the judiciary could review. “The province of the court,” he wrote, “is, solely, to decide on the rights of individuals, not to inquire how the executive, or executive officers, perform duties in which they have a discretion. Questions in their nature political, or which are, by the constitution and laws, submitted to the executive, can never be made in this Court.”
Having decided that Marbury had the right to the commission, Marshall next turned to the question of remedy, and once again, it appeared that the Court would find for the plaintiff. Mandamus would require Secretary Madison either to provide the original commission or secure a copy from the record. So far, those sitting in the courtroom listening to the chief justice read the opinion in his hard, dry voice must have assumed that Marbury had won his case. But then, having lectured Jefferson and Madison for their sins in “sport[ing] away the vested rights of others,” Marshall turned to the crucial third question. Now at last, he declared that Congress, in granting the Supreme Court the power of mandamus in original jurisdiction in Section 13 of the Judiciary Act of 1789, had violated the Constitution. That document defined the original jurisdiction of the Court—that is, cases the Court could hear directly rather than on appeal from a lower court. The Constitution did not grant the Court the power of mandamus, and therefore Congress could not do so either. In effect, he told Marbury: “Plaintiff, your rights have been violated by Jefferson and mandamus is your proper remedy, but we are sorry; this Court cannot help you.” Marshall thus had his cake and ate it too; he castigated the administration, but avoided a confrontation with Jefferson that the Court could not win.
The politics of Marbury v. Madison have been widely hailed. In view of the attacks the Jeffersonians launched against the judiciary, Marshall had to make a strong statement to maintain the status of the Court as a coequal branch of government. By asserting the power to declare acts of Congress unconstitutional, a power that the Court would not exercise again for more than a half-century, Marshall claimed for the Court the paramount position within the government in constitutional interpretation. Marbury set the abiding precedent for the Court’s power in this area, and even today the case is cited as authority whenever a law comes before the Court for constitutional review.
The judicial logic of Marshall’s argument, however, has been questioned over the years, especially at times when Court decisions have been unpopular. The proper initial question for any court to ask is whether it has jurisdiction over a particular case; if the answer is no, it need not—and should not—decide the merits. In Marbury, the Court decided it had no jurisdiction to decide the two questions it had already decided. Marshall stood the normal procedure on its head in order to make his political points.
There is also some support for the idea that Marshall wrongly interpreted the Constitution. Article III, Section 2, of the Constitution gives the Supreme Court original jurisdiction in a limited number of cases, and then gives the Court “appellate Jurisdiction” in “other cases” but “with such Exceptions, and under such Regulations as the Congress shall make.” Many modern scholars argue that “such Exceptions” can be interpreted to allow Congress to expand, but not contract, the original jurisdiction of the Court. If this were so, then Congress did have the constitutional authority to give the Court the right to issue a writ of mandamus. Had Marshall been arguing from a position of strength, perhaps with a supportive president in office, he might have made such an interpretation. But, given the political realities of the case, he could not do so.
Beyond the immediate issue, Marshall also claimed for the Court two far-ranging powers. The first of these, judicial review of legislation, was not that revolutionary, despite the absence of a specific delegation of this authority in the Constitution. Marshall carefully justified the Court’s power through a commonsense reading of Articles III and VI. Article III provided that “the judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as Congress may from time to time establish.” This grant of judicial power provided a broad mandate, intended to include all functions normally performed by courts, and therefore had to be read in light of customary usage and other provisions of the Constitution. Article VI, the supremacy clause, established a hierarchy of law, with the Constitution at the apex, superior to acts of Congress. Whenever the two conflicted, the lesser (legislation) had to give way to the greater (the Constitution). The power of courts to nullify legislative acts, while admittedly not exercised frequently, existed in English and American legal traditions, and sufficient examples, many fresh in memory, supported the power. Finally, the Constitution, although the fundamental law of the land, remained a law; as such, it had to be interpreted, and courts had always been the accepted interpreters of the law.
While these arguments supported Marshall’s claim for the Court to decide the merits of a particular case, he assumed a second and even larger power. Not only did judges take an oath to support the Constitution, but the legislative and executive officers did so as well. Why did they not have an equal authority to decide on the constitutionality of a measure? Would not a major consideration of Congress in drafting a bill, and the president in signing it into law, be the validity of the statute in light of constitutional provisions? Marshall conceded that in certain areas the Court would defer to the other branches, but some agency had to decide which of the arms of government should pass on a specific measure. The question of “Who decides who decides?” is thus the most important of all, and Marshall assumed for the Court the power to determine when it would determine the merits and when it would make the judgment that Congress or the president had the responsibility.
Although Marbury v. Madison has remained the key precedent for judicial review, the debate, even if diminished in volume, has continued for nearly two centuries. The Republicans condemned the decision, and Jefferson, until the end of his life, derided the opinion. In 1823 he told Justice William Johnson that the decision was “merely an obiter dissertation of the Chief Justice.” In 1825 Justice John Bannister Gibson of the Pennsylvania Supreme Court, dissenting in Eakin v. Raub, argued against Marshall’s logic, claiming that courts lacked the power of judicial review unless it was specifically granted in a constitution.
It is likely that the debate will never be fully resolved, and the literature about judicial review will continue to grow. But the fact remains that the Court has claimed and exercised the power through most of our country’s history—and, as Judge Learned Hand noted over a century later, the country is used to it by now. Moreover, it does fit into a government of checks and balances, as Hamilton had explained in Federalist No. 78. Finally, one can hardly argue with Marshall’s statement of principle near the end of his opinion, “that a law repugnant to the constitution is void, and that courts, as well as other departments, are bound by that instrument.”
The Republican attacks on the judiciary did not result from Marbury, or even begin with the case, although Marshall’s tongue-lashing of the administration exacerbated the tensions. While the Repeal Act and a few new appointments whittled down Federalist strength in the judiciary, Federalists still controlled a major branch of government. Jefferson would ultimately make three appointments to the Supreme Court, but no vacancy occurred until 1804, the last year of his first term. Republicans resented this situation, and beyond their hunger for office, feared that Federalist judges would undermine Republican programs. In fact, the only excuse for this otherwise indefensible assault on judicial independence is that in fact some Federalist judges did abuse their positions.
At about the same time the Republican Congress was passing the Repeal Act, Republicans began an assault on Alexander Addison, a Federalist judge in Pennsylvania’s western district. Addison infuriated the Republican majority in the state legislature with his frequent political harangues from the bench attacking Jefferson and the Republicans, while denying a Republican colleague the right to address a grand jury. Although judges in Pennsylvania could be removed by a simple majority vote of both houses, that was not enough for the Republicans, who decided that Addison’s behavior deserved impeachment, a process that resembled a criminal trial. The state Republicans hired Alexander J. Dallas, whom Jefferson had appointed as federal district attorney, to manage the prosecution, and in January 1803, Dallas secured Addison’s removal from office.
Shortly afterward, Jefferson sent a letter to the House of Representatives about complaints he had received concerning District Judge John Pickering of New Hampshire. Since the matter did not lie “within Executive cognizance”—that is, there was nothing he could do about it—the president forwarded the materials to Congress for whatever action it deemed appropriate. There is no question that Pickering played politics from the bench. The case that triggered the complaint involved a Republican-appointed customs collector’s seizure of the ship Eliza, owned by a Federalist merchant, for allegedly carrying illegal goods. At the trial, an obviously drunken Pickering ruled for the ship owner and then verbally abused the Republican district attorney when he sought to appeal the decision. The elderly judge, who had served the state for many years and had been an active patriot during the Revolution, appeared to be mentally deranged as well as chronically inebriated. Pickering should have been removed from the bench, but instead this sad case became enmeshed in partisan strife.
Unfortunately, the Constitution made no provision for the removal of judges, or any official, in such a situation, and not until the Twenty-fifth Amendment (1967) did the nation address this problem for the presidency. The Constitution noted that judges “shall hold their Offices during good Behaviour” but did not define this phrase. Elsewhere, the document provided for the impeachment of the president and “all civil Officers of the United States” for “Treason, Bribery, or other high Crimes and Misdemeanors.” But no one seriously suggested that Pickering’s conduct fell into this category. The president considered impeachment “a bungling way” to remove judges, and suggested a constitutional amendment to permit the chief executive, upon petition of Congress, to remove federal judges. Pickering’s case might have offered the opportunity to amend the Constitution to provide for such cases, but the intense partisan bitterness over the judiciary at this time made any change impossible. At Jefferson’s request, the judge’s friends tried to persuade him to resign, but Pickering refused, in part because he was no longer mentally competent to make such a decision.
In the end, Pickering was removed from office without much partisanship. Of the thirty-six Federalists in the House, only eight voted against his impeachment. Of the nine Federalists in the Senate, only one voted to acquit him. However, instead of voting him guilty of “high crimes and misdemeanors,” the senators voted that he was only “guilty as charged.” Even the most partisan Republicans could not declare the obviously insane Pickering guilty of a “high crime.”
The Pickering case proved but a rehearsal for the next act of the drama, the impeachment of Supreme Court Justice Samuel Chase. A patriot and signer of the Declaration of Independence, Chase had enjoyed a long and distinguished career that was blemished, however, by more than one untoward incident. He had not been averse to rioting during the anti-British agitation, and during the war he had engaged in some questionable financial operations, leading Alexander Hamilton to condemn him as “universally despised.” Chase had originally opposed the Constitution, and later became a staunch Federalist. His combative nature was well-known. As a state judge he narrowly escaped removal from the Maryland bench when the legislature failed to muster the two-thirds vote necessary for his impeachment. Despite these liabilities, George Washington had appointed him to the Supreme Court in 1796.
Of all Federalist officials, none had earned greater dislike from the Republicans than Chase, who had presided over the highly political trials of Republican journalists Thomas Cooper and James Callender, who were found guilty of sedition and later pardoned by Jefferson. Lawyers feared Chase’s frequent browbeating, and he often used jury charges to vent his spleen on political opponents. In fact, the impeachment stemmed directly from his charge to a grand jury in Baltimore in May 1803, in which he intemperately condemned the Repeal Act, as well as recent proposals to broaden the suffrage in Maryland, which he claimed would only lead to “mobocracy” and the destruction of peace, order, freedom, and property.
Jefferson originally tried to ignore Chase, and some of the party leaders, aware that some Republican judges also used state benches for political purposes as well, hesitated to take action. But the groundswell of opposition, fueled by an aggressive Republican press, finally led Virginia representative John Randolph of Roanoke in January 1804 to call for an investigation of Chase’s conduct. At the request of Pennsylvania Republicans, the committee also looked into the activities of Richard Peters, a district judge in that state. No one expected Peters to be impeached, and the House committee rapidly cleared him, but Republicans hoped that the threat of impeachment would teach him and other Federalist judges some caution. The committee did, however, recommend impeachment proceedings against Chase, and on March 11, by a vote of 73–32, the House approved the committee’s recommendations.
On March 12, 1804, the same day that the Senate voted to remove Judge Pickering, the House impeached Justice Chase. It appeared the Republicans were going to dismantle the federal judiciary, one judge at a time. Chase’s trial began in the Senate on February 4, 1805, presided over by Vice President Aaron Burr. Although the Republicans had been almost unanimous in their pursuit of Chase in the House, their ranks broke in the upper chamber. Sen. William Giles of Virginia made his feelings clear: “A removal by impeachment [is] nothing more than a declaration by Congress to this effect: You hold dangerous opinions, and if you are suffered to carry them into effect you will work the destruction of the nation. We want your offices, for the purposes of giving them to men who will fill them better.” Some Republicans, however, no matter how they despised Chase, feared such a bald attack on the independence of the judiciary, and Giles evidently hinted that once they removed Chase, they would go after Marshall and the rest. Events in Pennsylvania at this time, where Republicans were attempting to impeach all but one of the judges on the state’s highest court, underscored the seriousness of the threat. The effort there failed, but only by a narrow margin.
These fears led enough moderate Republicans to defect, so that after a bitter and sensational trial, the Senate failed to muster the two-thirds majority necessary to convict Chase. Unlike Pickering, who was too incompetent to mount a defense, Chase defended himself before the Senate with great vigor, arguing that “no judge can be impeached and removed from office for any act or offense for which he could not be indicted.” Despite their overwhelming control of the Senate, the Republicans got only a tiny majority—nothing close to the required two-thirds vote—to vote for two of the eight charges of impeachment. On one count, only four Republicans voted to convict, and on another the Senate was unanimous in voting for acquittal. Chase had no doubt abused his office—he even admitted that his conduct on the bench had, on occasion, been “improper and dangerous,” but he had not acted criminally, and that, in essence, became the standard for removal of federal judges. But Chase was superb in his own defense, and in the process shaped the law of impeachment for the next two centuries.
Following Chase’s acquittal and the failure to impeach the Pennsylvania judges, the Republicans’ assault on the judiciary ebbed to some extent. The question of how to remove judges who were no longer capable of fulfilling their duties, or who abused the position but fell short of criminal behavior, remained unanswered. Shortly after Chase’s trial, John Randolph proposed a constitutional amendment allowing the president to remove a federal judge on joint address of both houses of Congress. Although a majority of the Senate indicated its willingness to consider the motion, the idea never caught on. Jefferson, who did not take an active role in the proceedings, continued to worry about an irresponsible judiciary. Having found impeachment an empty threat, he wrote in 1820 that judges “consider themselves secure for life; they skulk from responsibility to public opinion. . . . A judiciary independent of a king or executive alone, is a good thing; but independence of the will of the nation is a solecism, at least in a republican government.”
While losing the battle over Chase, Jefferson nevertheless made an important contribution to the development of American courts and constitutional law. Following the trial, federal judges began to avoid flagrantly partisan acts. If nothing else, the attack on the judiciary helped create a federal bench that concentrated on the law and left overt politics to the elected representatives of the people.
But it would be impossible for the bench to avoid the political fallout from all controversies. When such a situation arose, the judges had to exercise their political skills, as well as display their legal knowledge. Chief Justice Marshall would soon face such a challenge during the treason trial of Vice President Aaron Burr.
Burr had once been a close ally of Jefferson and served as his first vice president, but in 1804 he ended what little chance he had for any future political career by killing Alexander Hamilton in a duel. His fortunes in ruin, Burr embarked upon an ill-conceived scheme to capture and settle territory in Spanish-held western lands. His exact plans are shrouded in confusion, since he kept a number of options open. But whatever his plans may have been, the whole scheme fell apart when his chief confederate, General James Wilkinson, the governor of Louisiana (and secretly in the pay of Spain), denounced Burr to Jefferson, suggesting that Burr’s actions could provoke a war with Spain. The army seized Burr as he floated downstream on a flatboat to New Orleans, and then brought him to Richmond to stand trial for treason in the U.S. Circuit Court.
Convicting Burr became an obsession for Jefferson, and by extension, for the entire Republican Party. The president publicly denounced Burr in a letter to Congress, kept in close touch with the proceedings throughout the case, and personally directed the government prosecutor. His disdain for the guarantees of a fair trial, his suggestion that habeas corpus be suspended, and his veiled threats that if Burr went free the entire Supreme Court should be impeached all reveal what one historian has termed “the darker side” of a man venerated in history as the great apostle of individual liberty.
Since Burr was captured in a territory where there was no federal court, he was brought to the nearest site of a federal court that could hear the trial, namely Richmond, and Jefferson’s fury at Burr quickly encompassed John Marshall, who presided over the trial as circuit judge for Virginia. (At that time, circuit courts had original jurisdiction to try treason cases; the Supreme Court has never had that power. Marshall presided because of his dual role—as a member both of the Supreme Court and of one of the circuits.)
Painfully aware of the political ramifications of the trial, Marshall also recognized the serious legal issues involved. Historians have in general given him high marks for his handling of the case, as well as for the law he propounded during its proceedings. The chief justice, however, does not completely escape criticism. Several times during the trial he took the occasion to chastise the government for its apparent vendetta against Burr and its disregard for the essential safeguards of a fair trial. Rather indiscreetly, he even attended a dinner given by Burr’s counsel in honor of the defendant! Little wonder, then, that Jefferson saw Marshall as attempting to coddle traitors and embarrass his administration.
Above all, the chief justice wanted to depoliticize the case, an effort doomed to failure from the beginning. On April 1, Marshall dismissed the charge of treason against Burr. The Constitution (Article III, Section 3) defines treason as “only in levying War against [the United States], or in adhering to their enemies, giving them Aid and Comfort.” To support the charge of treason, therefore, war actually had to take place. Conspiracy to make war, while certainly a crime, did not meet the definition of treason. This definition of treason as only related to war remains valid to this day.
Despite a reference to the “hand of malignity,” which must not be permitted to “grasp any individual against whom its hate may be directed, or whom it may capriciously seize, charge him with some secret crime, and put him on the proof of his innocence,” Marshall’s opinion displayed prudence and legal exactitude. A careful review of the evidence failed to prove treason, for actual war had not been levied against the United States. The government would, however, be allowed to try Burr for assembling a military expedition against a country with whom the United States was then at peace, and if it could gather any evidence that Burr had intended to wage war against the United States, it could then seek a grand jury indictment for treason.
A furious Jefferson wrote to Senator Giles that the day could not be distant when the Constitution would be amended so as to remove “the error . . . which makes any branch independent of the nation.” With more passion for vengeance than sensitivity to legal rights, the president personally took direction of the prosecution. Witnesses would be produced, he assured Giles, as well as evidence to “satisfy the world, if not the judges,” of Burr’s treason. He immediately sent out a call for anyone who could testify to the former vice president’s guilt, promising pardons to anyone connected with the affair if they would cooperate. Jefferson even instructed George Hay, the government attorney, to introduce Marshall’s opinion in Marbury and then denounce it “as not law.” Hay wisely declined to do so, and ultimately, after much maneuvering on both sides, the jury found Burr not guilty.
Although the Burr trial took place in circuit court, the ruling is properly viewed as part of John Marshall’s tenure on the Supreme Court, for, as much as any case he participated in, it helped to develop the power of the judiciary and strengthen the rule of law. Despite Marshall’s occasional slaps at Jefferson, he remained for the most part highly sensitive to the overcharged political atmosphere in which the trial took place. He worded his rulings carefully and displayed meticulous attention to legal principles; despite the confusion that still exists regarding Burr’s intentions, there is little doubt that treason, as defined by the Constitution, had not occurred. The Jeffersonians, as expected, reacted strongly to the acquittal. The president sent several hundred pages of supporting materials to Congress, urging it to consider the appropriate steps that should be taken—hoping that one would be the removal of John Marshall from the bench. But increased tensions with Great Britain and France soon diverted the administration’s attention to other matters, and the Burr issue was dropped.
Marbury received much less attention in 1803 than it did in succeeding years, in part because the result of the case—that Marbury never got his commission—was uncontroversial. Jefferson, who had no intention of granting the commission, was off the hook, and the Federalists were pleased enough with Marshall’s deft handling of the case not to be too sorry about the result.
Following the case, William Marbury faded from public view, his political fortunes declining alongside those of the Federalist Party. He remained a well-to-do banker, and although he did not recognize it at the time, his name would live on, as his case is studied by succeeding generations of students and cited by federal courts. He is the only disappointed office-seeker whose portrait hangs in the Supreme Court building. Chief Justice Warren Burger designated the justices’ private dining room as the “John Marshall Room,” and in it, side by side, are portraits of William Marbury and James Madison. Marbury’s portrait was painted by Rembrandt Peale, a cousin of his wife’s, and it depicts a prosperous banker, well satisfied with his world. The disappointment of not getting his commission does not appear on his face.
Eakin v. Raub, 12 S. & R. (Pa. 1825)
Marbury v. Madison, 5 U.S. (1 Cr.) 137 (1803)
Stuart v. Laird, 5 U.S. (1 Cr.) 299 (1803)
Certainly the best book on the subject is William E. Nelson, Marbury v. Madison: The Origins and Legacy of Judicial Review (2000), although the older Robert L. Clinton, Marbury v. Madison and Judicial Review (1989), is still useful. Information about the plaintiff is drawn primarily from David F. Forte, “Marbury’s Travail: Federalist Politics and William Marbury’s Appointment as Justice of the Peace,” 45 Catholic Law Review 349 (1996). For John Marshall, see R. Kent Newmyer, John Marshall and the Heroic Age of the Supreme Court (2001), and Charles F. Hobson, The Great Chief Justice: John Marshall and the Rule of Law (1996). For Jefferson’s conflict with the judiciary, see Richard E. Ellis, The Jeffersonian Crisis: Courts and Politics in the Young Republic (1971). The story, with more of an emphasis on the political and philosophical differences, is also told in James F. Simon, What Kind of Nation: Thomas Jefferson, John Marshall, and the Epic Struggle to Create a United States (2002). For the Burr trial as well as the Chase impeachment, see also Joseph Wheelan, Jefferson’s Vendetta (2005).