Midnight of the 3rd of March had caught forty-one of the proposed Federal justices of the peace for the District of Columbia without their appointment having been fully made. Jefferson arbitrarily cut down their number to twenty-five, "having been thought too many," as he said. Among those dropped were four whose commissions had been made out and sealed by the acting Secretary of State, but had not been delivered. Madison, who became Secretary of State under Jefferson, refused to deliver the commissions, and the men, headed by one William Marbury, made a motion in the Federal court to obtain them. They had no recourse in the State courts. From this trivial circumstance, involving the least national judiciary office, came the case of Marbury vs. Madison, involving the right of the judiciary branch of the Federal Government to give an order to the executive.
One phase of the relation of these two branches had been established nearly ten years before, when President Washington attempted to get an interpretation from the Supreme Court upon the binding clauses of the vexatious treaty with France. He was told that the court was not an advisory body, but a tribunal established to adjudge specific cases brought before it. For this advisory service, the Executive must depend upon his Attorney-General. About the same time, the United States circuit courts protested against an act of Congress which made them recipients of pension applications subject to the final decision of the War Department. Evidently the Judiciary intended to remain independent of both the other branches of the National Government.
One feature of the relationship between the Federal courts and the Congress had been presumed to exist by Hamilton and other commentators on the Constitution, viz., the power to adjudge of the rights of individuals under an act of Congress. This principle of passing on the constitutionality of a legislative act by the courts had been established in at least five States before the adoption of the Constitution. It had been exercised in several cases by the Federal courts before the case of Marbury vs. Madison arose. A new contention was involved by asking whether the request made to the Supreme Court to issue a mandamus would hold against the provisions of the Constitution, which did not include mandamus in the powers specifically given to the court.
It chanced that the case came before John Marshall, who had recently assumed the station of Chief Justice, to which John Adams appointed him in the closing months of his administration. The previous history of the court, with the exception of two or three cases, had been insignificant. Its decisions during the first ten years do not fill as many pages as do those for a single year at the present time. Jay had resigned its headship to undertake the mission to England, impressed with the belief, as he afterward said, that the court could never obtain the energy, weight, and dignity essential to affording due support to the National Government. He refused to return to the bench, and Marshall was appointed, with whom the second era of the court begins. Marshall was a Virginian, a school-fellow of Monroe, and co-worker with Madison in the Virginia Constitutional Convention. But the war acquaintance which he formed with Washington and Hamilton, added to his personal views, turned him toward Federalism. As a Virginian, he was cultivated by members of that party, office after office being placed at his option. Accepting the Chief-Justiceship under a life tenure, he was "saddled" on the Republicans, as they said.
The decision in the case of Marbury vs. Madison was one of many which emanated from Marshall, silently shoring up the fabric of the Union as it was erected by the hand of necessity. "The theory that an act of legislature repugnant to the Constitution is void," said the Chief Justice, in granting Marbury and others the withheld commissions, through the district court, "is essential to a written constitution, and is consequently to be considered by this court as one of the fundamental principles of our society." We speak so easily now of declaring a law unconstitutional, thereby rendering it null and void, and we acquiesce so readily in these decisions that it is difficult to imagine the small beginnings of this great power exercised by one branch of the Federal Government over another. By holding that the mandamus must issue from the District and not the Supreme Court, the case might have been dismissed briefly. The Republicans thought the long disquisition on the powers of the court and its relation to the executive branch a kind of defiance and entirely unwarranted. It was the beginning of a long list of similar offences by Marshall.
Meanwhile the new Administration had continued its reform activities, "to restore the government to its principles, amend its defects, reform abuses, and introduce order and economy in the administration," as Monroe outlined it to President Jefferson. The latter summed up the reform work of the Republicans at the end of the first session:
"They have reduced the army and navy to what is barely necessary. They are disarming executive patronage and preponderances by putting down one-half the offices of the United States which are no longer necessary. These economies have enabled them to suppress all the internal taxes and still to make such provision for the payment of their public debt as to discharge that in eighteen years. They are opening the doors of hospitality to fugitives from the oppressions of other countries; and we have suppressed all those public forms and ceremonies which tended to familiarize the public eye to the harbingers of another form of government."
Thus had democracy, in Jefferson's opinion, at last come into its own.