The Great Decision

As Adams looked ahead to his last days in office, one task consumed him above all else—scores of last-minute presidential appointments to federal offices, appointments that would secure positions for loyal Federalists in the new Republican administration, appointments that would include those who soon would be known as the “midnight judges.”

During February 1801, his last month in office, Adams submitted a staggering total of 217 nominations to the Senate, an average of more than 7 per day, every day of that momentous month. The appointments included 93 judicial and legal offices, 53 of which were for the District of Columbia, and 106 military and naval positions. Adams was determined to make every possible federal appointment in his final days and hours in office. The “Burden upon me in nominating Judges and Consuls and other offices . . . is and will be heavy,” Adams reported to Abigail. “My time will be taken up.”

Adams relied on one man most of all to help him with this burden—Secretary of State, and now the newly installed Chief Justice, John Marshall. Marshall was in the thick of the last-minute appointments. Job-seekers and their patrons flooded Marshall with letters as Adams’s representative. Marshall was extraordinarily busy overseeing the logistics of the nominations—writing to nominees, preparing and submitting the actual nominations, formalizing the appointments with official commissions, having the commissions delivered to the new office holders.

The first wave of Adams’s “midnight judges” was a result of the Judiciary Act of 1801. It reduced the size of the Supreme Court to five at the next vacancy, created a new system of circuit courts between the trial courts and the Supreme Court, and eliminated the controversial obligation of Supreme Court justices to ride circuit; the new circuit judges would assume this responsibility.

Most Federalists hailed the new law while Republicans overwhelmingly lambasted it. Adams only had to present his nominations for the new judgeships to the outgoing Federalist majority in the Senate and have them confirmed by March 4, the date that the new president would take office. Republicans objected that the new circuit courts not only gave the lame-duck president an opportunity to extend his influence beyond his term but also increased the role and power of the judiciary, the least democratic branch of the national government.

Reformers, principally Federalists, had sought these changes for years. President Washington’s first attorney general, Edmund Randolph, had called on Congress to convert the district judges to circuit court judges, thereby allowing the Supreme Court to meet only in the capital. The justices themselves regularly had requested the changes as well, both to shed their hated circuit-riding and to avoid sitting in review of their own decisions. Supporters of the new law justified a reduction in the number of justices from six to five as a way of ensuring that the Court had no tie votes. But the theoretical possibility of a tie had never been a problem. Republicans believed the reduction was nothing more than an obvious gambit to deny the new president a Supreme Court appointment when the next vacancy occurred.

As a congressman, John Marshall had worked for federal judiciary reform, and he supported the new Judiciary Act enthusiastically. When the bill passed Congress, he praised its “separation of the Judges of the supreme from those of the circuit courts, and the establishment of the latter on a system capable of an extension commensurate with the necessities of the nation.”

The bill created six new federal circuit courts, from Vermont to Tennessee, with sixteen circuit judgeships. The number of federal judges throughout the young country thus would soar. Adams signed the Judiciary Act into law on Friday, February 13, just a few days before the House finally selected Jefferson on the thirty-fifth ballot the following Tuesday, February 17.

Partisanship framed the new law. The bill passed over unanimous Republican opposition in both the Senate and the House of Representatives: the House by a 51-43 vote on January 27, with a few Federalists joining all Republicans in opposition, and the Senate by a 16-11 straight party-line vote on February 11. As vice president and presiding officer of the Senate, Jefferson had to sign the Act and attest to its passage by the Senate. He did so with visible displeasure.

Senator Gouverneur Morris of New York, a Federalist leader, confided that, although he thought the judiciary bill had merit, it would be an obvious vehicle for partisan goals. The bill would bring justice “near to men’s doors,” Morris proclaimed to a friend. “Depend on it that, in some parts of this Union, justice cannot readily be obtained in the State courts.” At the same time, he acknowledged that “the leaders of the federal party may use this opportunity to provide for friends and adherents,” adding that “if they were my enemies I should not condemn them for it. . . . They are about to experience a heavy gale of adverse wind. Can they be blamed for casting many anchors to hold their ship through the storm?” Federalist Senator William Bingham of Pennsylvania explained the bill’s urgency: “[T]he Federal Party wish the appointments to be made under the present administration. . . . [T]he Importance of filling these Seats with federal characters must be obvious.” Senator Dwight Foster of Massachusetts noted approvingly that, if the Act “now passes, Mr. Adams will have the nomination of the Judges to be appointed.”

Republicans, meanwhile, were outraged. Virginia Congressman John Randolph mocked Adams for making the judiciary a “hospital for decayed politicians.” The Aurora, the leading Republican newspaper, criticized the new legislation as “one of the most expensive and extravagant, the most insidious and unnecessary schemes that has been conceived by the Federal party.” Virginia Senator Stevens Thomson Mason complained that the Judiciary Act had been “crammed down our throats without a word or letter being suffered to be altered.” Jefferson had confided to Madison that the Judiciary Act worried him greatly because of the permanence of the appointments. “I dread this above all the measures meditated,” wrote the president-elect, “because appointments in the nature of freehold render it difficult to undo what is done.”

Adams began filling the new federal judgeships on February 18, the day after Jefferson’s selection by the House, and continued filling them for the next week, through February 24. Despite his rifts with his own party, Adams reached out to well-known Federalist colleagues and prominent figures. Adams even nominated his former secretary of the Treasury, Oliver Wolcott of Connecticut, with whom he had feuded and who had been forced to resign in December amid allegations of financial improprieties, for an appellate post on the new Second Circuit. John Marshall played a central role in this peace-making between the former allies. “I will allow myself to hope,” he wrote Wolcott, “that this high & public evidence given by the President of his respect for your services & character will efface every unpleasant sensation respecting the past & smooth the way to a perfect reconciliation.” Wolcott gratefully accepted.

Adams similarly sought to nominate his loyal and reliable attorney general, Charles Lee, to be chief judge of the new Fourth Circuit. Lee declined, eager to return full-time to his legal practice and perhaps leery of the fight that loomed over the new judgeships.

The most controversial judicial nomination, and the one to generate the most significant recorded opposition in the Senate, was that of Philip Barton Key, a prominent Maryland Federalist whose nephew Francis Scott Key would pen the national anthem thirteen years later. Key’s nomination revived the accusations that Adams was an Anglophile determined to force a quasi-monarchical authority on the states. Key had been a Loyalist during the Revolution and actually had fought for the crown against the Revolutionaries as a captain in the Maryland Loyalists Batallion. He and his battalion were captured by the Spanish in Florida. He was imprisoned in Havana, Cuba, for a month before being paroled. Key had decamped to England after the Revolution, eventually returning to Maryland and redeeming himself as a prosperous landowner and active Federalist. He recently had lost his bid to be reelected to the state legislature, but Adams found him a place on the Fourth Circuit. Republicans in the Senate were outraged and sought to block his appointment. Even though nine Republican senators voted against him, Key was confirmed.

Adams’s other appointments to the new federal judgeships were men of substance and significant professional standing. Political considerations, however, were never far from his mind. One letter of entreaty to Adams stated that he should appoint “Men of legal Abilities, Friends to Govt. & good Order & of unstained moral Character, & Enemies to the fatal Philosophy of the Day” [emphasis added]. Still brooding over his defeat, Adams readily agreed, with a pointed political reference: “The character of an enemy to ‘the fatal philosophy of the day’ has great weight with me, although it appears to have none with our nation.”

Adams elevated six district court judges to circuit posts, which then created additional openings at the district court level. Adams filled the six vacancies at the district court level with three Federalist senators and one Federalist member of the House of Representatives, but he was constitutionally barred from appointing congressmen to the new circuit judgeships—a fact that had given Jefferson a modicum of solace.

At the same time, for the most part, Adams eschewed the extreme wing of the Federalist Party, which had given him so much trouble as president and had vexed him as a candidate. Not surprisingly, his Federalist appointees tended to be those with whom he had been on better terms than the extremists in his party.

Adams’s Republican opponents objected to what they saw as the clear political hue of his appointments. After the president had completed his busy first week of judgeship nominations, the National Intelligencer, Washington’s leading Republican newspaper, observed on February 25 that “in all these instances [Adams] named men opposed in political opinion to the national will, as unequivocally declared by his removal and the appointment of a successor of different sentiments.” The Philadelphia Aurora claimed that Federalist Congressman Robert Goodloe Harper had boasted that the Judiciary Act “is as good to the party as an election,” and that Federalist Harry Lee had said that the Act was “the only resource [for] which the government would have to secure strength since the standing army could not be retained.”

Whatever the merits of the new judges, Federalists unquestionably viewed these appointments at least in part in political terms. One senator wrote to Marshall advocating a talented young lawyer with decidedly Federalist beliefs: “If you can conceive that political opinions often have an influence in decisions upon private rights, you will readily perceive the importance of placing in the Circuit Courts a man well attached to the federal government, by way of counterpoise [to the Republicans] . . . and a friend to the government.” He got the appointment.

Jefferson and Madison were appalled by Adams’s actions. On February 18, the day after his election by the House as president, and a busy day for Adams on the appointments front, Jefferson wrote Madison that “Mr. A. embarrasses us.” Jefferson well knew the hazards of sending confidential messages through the U.S. mail carried by nosy Federalist postmasters, but he could not contain himself. As he told Madison, “Notwithstanding the suspected infidelity of the post, I must hazard this communication.” Madison likewise expressed his dismay about the last-minute appointments to Governor James Monroe of Virginia. “The conduct of Mr. A is not such as was to have been wished or perhaps expected,” sighed Madison. “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.” Madison, in turn, asked James Monroe about whether some of the appointments could be challenged as “null.”

Family connections also played a role in Adams’s midnight appointments. The new U.S. district attorney in New Hampshire was the son of New Hampshire’s Senator Samuel Livermore. Two of John Marshall’s brothers-in-law received federal circuit judgeships—William McClung on the Sixth Circuit and Keith Taylor on the Fourth Circuit. A Third Circuit judgeship was offered to the governor of Delaware, Richard Bassett, who happened to be the father-in-law of James Bayard of Delaware, the prominent Federalist congressman who resolved the electoral deadlock for president. “2,000 dollars are better than anything Delaware can give you,” Congressman Bayard exclaimed to his father-in-law, “and not an unpleasant provision for life.” Bassett quickly agreed and accepted the nomination. But other nominees were less impressed by the salary. The $2,000 salary “will not support . . . my family,” complained Theophilus Parsons of Massachusetts in declining a First Circuit appointment. The pay “would not maintain my family,” agreed Jared Ingersoll of Pennsylvania in rejecting a Third Circuit appointment.

By February 24, one week after the selection of Jefferson, Adams had made most of his appointments under the new Judiciary Act. Now, however, with very little time remaining for Adams’s presidency, Congress passed still another bill giving him a bevy of new federal appointments. The Act Concerning the District of Columbia was enacted by the Senate on February 5 and the House on February 24, and became law on Friday, February 27, 1801.

The District of Columbia Act established three new judges and a wide range of offices for the new District, which now would be separated into two counties—Washington County for the eastern side of the Potomac, including Georgetown, and Alexandria County for the western side of the Potomac, including Alexandria. Adams, and his trusted lieutenant, John Marshall, now had just a few days, until Wednesday, March 4, to nominate dozens of people for local District posts, get them confirmed by the Senate, and deliver commissions to them before the government changed hands and Jefferson was inaugurated.

Once again, Adams and Marshall readily turned to family for appointments. For one of the District of Columbia judgeships, Adams nominated William Cranch, his nephew. Cranch was born in Braintree, Massachusetts, not far from the farm of his aunt and uncle. He graduated from Harvard College where he was a classmate of his cousin, the future president, John Quincy Adams. After graduation, he moved to Washington, D.C., as the agent for a real estate investment firm that was making a large gamble on land prices in and around the new capital. The investments proved disastrous. Cranch lost money, but his career was rescued when his uncle, now the president, appointed him to be commissioner for public buildings for the District of Colombia—a pure patronage job.

For another District of Columbia judgeship, President Adams nominated Marshall’s brother, James Marshall. The younger Marshall had been born in Virginia and served in the First Virginia Artillery during the Revolutionary War. Afterward, he followed his family to Kentucky where he entered politics, ultimately losing a race for Congress. In 1795 he married Hester Morris, one of the richest heiresses in America, and over time he became one of the largest landholders in Virginia, acquiring over 180,000 acres.

For the third post, the chief judge position, Adams nominated the only nonfamily member—former Supreme Court Justice Thomas Johnson, who had resigned from that post in 1793 because of health problems. But Johnson declined a few days later—a refusal that left a vacancy for Jefferson and that pained John Marshall deeply for his lapse as a counselor on nominations. A couple of weeks later, he confided to his brother James, “I am excessively mortified at the circumstances relative to the appointment of the Chief Judge of the district. There was a negligence in that business arising from a confidence that Mr. Johnston [sic] would accept, which I lament excessively.”

Job-seekers and their patrons again deluged Marshall with letters, this time about the new local District of Columbia positions. A Maryland judge implored Marshall to accept his recommendation for U.S. marshal for the District of Columbia. Virginia representatives sent Marshall their recommendations for chief judge, U.S. attorney, and register of wills. With every passing day, the letters kept coming.

With the new District of Columbia Act becoming law on Friday, February 27, Adams and Marshall had only the weekend to sift through the options, make decisions, and get nominations to the Senate on Monday for confirmation and delivery of commissions on Tuesday, before Jefferson’s inauguration on Wednesday, March 4.

Among the new positions were dozens of justice-of-the-peace posts. The bill allowed the president to appoint “such number of discreet persons to be justices of the peace, as the President of the United States shall from time to time think expedient, to continue in the office for five years.” A justice of the peace had broad authority for peace-keeping, including resolving minor violations up to twenty dollars in value. The job was far from lucrative—rather than by a salary, the justice of the peace was compensated by a percentage of the fines that he meted out. But it was viewed as a significant political launching pad, combining legislative, executive, and judicial powers, and as a prestigious perch for community leaders. Thomas Jefferson and many other prominent politicians had served as justices of the peace.

Adams appointed many prominent Federalists to be justices of the peace. The appointees in Washington County included Secretary of the Navy Benjamin Stoddert, two former mayors of Georgetown (Uriah Forrest and John Threlkheld), and a former Maryland state representative (William Hammond Dorsey); those in Alexandria County included two former mayors of Alexandria, Robert Townshend Hooe and Dennis Ramsay. The appointments also included lesser-known figures, such as political insider William Marbury (referred to as “Marberry” in the presidential nominating papers) in Washington County and William Harper in Alexandria County.

Not all of Adams’s justice-of-the-peace appointments were Federalists. In Washington County, Adams appointed Republicans to be six of the twenty-three. Five were incumbent justices of the peace, and the sixth was William Thornton, architect of the Capitol, which remained under construction. In Alexandria County, five of the nineteen were Republicans.

On Monday, March 2, after what must have been a feverish weekend for Adams and Marshall, the president submitted the nominations for forty-two justices of the peace, as well as local notaries public, registers of wills, judges of orphans courts for each county, and other positions. The Senate considered and confirmed them throughout the day on March 2 and on into the day and evening of March 3, the eve of Jefferson’s inauguration. Adams worked in the President’s House until well into the night on Tuesday, March 3, signing commissions and sending them on to the State Department and to Secretary of State Marshall for finalizing and transmitting.

The State Department, meanwhile, was in a state of chaos. Marshall had loaned one of his two clerks to Jefferson, at Jefferson’s request, to help him prepare for the presidency. Marshall was responsible for countersigning the commissions and having them delivered. He prevailed on his brother James, himself a new judicial appointee, to deliver the commissions. James signed for a batch, found that he could not carry the dozen or so documents all at once, so he returned some and crossed them off his list. John Marshall noticed that some commissions remained undelivered, but, in the frenzy of the moment, he thought little of it. As he explained to James later, “I did not send out the commissions because I apprehended such as were for a fixd time to be completed when signd & Sealed. . . . [T]o withhold the commissions of the Justices is an act of which I entertained no suspicion. I should however have sent out the commissions which had been signed & seald but for the extreme hurry of the time & the absence of Mr. Wagner [the State Department clerk] who had been called on by the President to act as his private Secretary.”

Among the commissions that went undelivered were those for William Marbury as justice of the peace in Washington County, and Robert Townsend Hooe, William Harper, and Dennis Ramsay as justices of the peace in Alexandria County. The commissions would remain on a table in the State Department for the next two days until an unlikely visitor discovered them.