Among the latter were William Marbury, Dennis Ramsay, Robert Townsend Hooe, and William Harper. These four men applied to the Supreme Court for a writ of mandamus compelling Madison to deliver their commissions. The other thirteen did not join in the suit, apparently considering the office of justice of the peace too insignificant to be worth the expense of litigation. Indeed, these offices were deemed so trifling that one of Adams's appointees to whom Madison delivered a commission resigned, and five others refused to qualify.[327]
When the application of Marbury and his associates came before Marshall he assumed jurisdiction, and in December, 1801, issued the usual rule to Madison ordering him to show cause at the next term of the Supreme Court why the writ of mandamus should not be awarded against him. Soon afterward, as we have seen, Congress abolished the June session of the Supreme Court;[328] thus, when the court again convened in February, 1803, the case of Marbury vs. Madison was still pending.
Marshall resolved to make use of this unimportant litigation to assert, at the critical hour when such a pronouncement was essential, the power of the Supreme Court to declare invalid acts of Congress that violate the Constitution.
Considering the fact that Marshall was an experienced politician, was intimately familiar with the political methods of Jefferson and the Republican leaders, and was advised of their purposes, he could not have failed to realize the probable consequences to himself of the bold course he now determined to take. As the crawling months of 1802 wore on, no signs appeared that the Republican programme for overthrowing the independence of the Judiciary would be relinquished or modified. On the contrary, the coming of the new year (1803) found the second phase of the Republican assault determined upon.
At the beginning of the session of 1803 the House impeached John Pickering, Judge of the United States District Court for the District of New Hampshire. In Pennsylvania, the recently elected Republican House had impeached Judge Alexander Addison, and his conviction by a partisan vote was assured. Already the Republican determination to remove Samuel Chase from the Supreme Bench was frankly avowed.[329]
Moreover, the Republicans openly threatened to oust Marshall and his Federalist associates in case the court decided Marbury vs. Madison as the Republicans expected it would. They did not anticipate that Marshall would declare unconstitutional that section of the old Federalist Judiciary Act of 1789 under which the suit had been brought. Indeed, nobody imagined that the court would do that.
Everybody apparently, except Marshall and the Associate Justices, thought that the case would be decided in Marbury's favor and that Madison would be ordered to deliver the withheld commissions. It was upon this supposition that the Republican threats of impeachment were made. The Republicans considered Marbury's suit as a Federalist partisan maneuver and believed that the court's decision and Marshall's opinion would be inspired by motives of Federalist partisanship.[330]
There was a particular and powerful reason for Marshall to fear impeachment and removal from office; for, should he be deposed, it was certain that Jefferson would appoint Spencer Roane of Virginia to be Chief Justice of the United States. It was well known that Jefferson had intended to appoint Roane upon the death of Chief Justice Ellsworth.[331] But Ellsworth had resigned in time to permit Adams to appoint Marshall as his successor and thus thwart Jefferson's purpose. If now Marshall were removed, Roane would be given his place.
Should he be succeeded by Roane, Marshall knew that the great principles of Nationalism, to the carrying-out of which his life was devoted, would never be asserted by the National Judiciary. On the contrary, the Supreme Court would become an engine for the destruction of every theory of government which Marshall held dear; for a bolder, abler, and more persistent antagonist of those principles than Spencer Roane did not exist.[332] Had he become Chief Justice those cases in which Marshall delivered opinions that vitalized the Constitution would have been decided in direct opposition to Marshall's views.[333]
But despite the peril, Marshall resolved to act. Better to meet the issue now, come what might, than to evade it. If he succeeded, orderly government would be assured, the National Judiciary lifted to its high and true place, and one element of National disintegration suppressed, perhaps destroyed. If he failed, the country would be in no worse case than that to which it was rapidly tending.