John Marshall

by James Bradley Thayer

Marbury v. Madison was a remarkable case. It was connected intimately with certain executive action for which Marshall as Secretary of State was partly responsible. For various reasons the case must have excited peculiar interest in his mind. Within three weeks before the end of Adams’s administration, on February 13, 1801, while Marshall was both Chief Justice and Secretary of State,[31] an act of Congress had abolished the old system of circuit and district courts, and established a new one. This gave to the President, Adams, the appointment of many new judges, and kept him and his secretary busy, during the last hours of the administration, in choosing and commissioning the new officials.

And another thing. The Supreme Court had consisted heretofore of six judges. This same act provided that after the next vacancy there should be five judges only. Such arrangements as these, made by a party just going out of power, were not ill calculated to create, in the mind of the party coming in, the impression of an intention to keep control of the judiciary as long as possible.

There were, to be sure, other reasons for some of this action. Several judges of the Supreme Court, as we have seen, had signified to Washington, in 1790, the opinion that the judiciary act of the previous year was unconstitutional in making the judges of that court judges also of the circuit court. The new statute corrected this fault. Yet, in regard to the time chosen for this very proper action, it was observable that ten years and more had been allowed to pass before the mischief so promptly pointed out by the early judges was corrected.

Again, in approaching the case of Marbury v. Madison, it is to be observed that another matter relating to the Supreme Court had been dealt with. This act of February 13, 1801, provided that the two terms of the court, instead of being held, as hitherto, in February and August, should thereafter be held in June and December. Accordingly, the court sat in December, 1801. It adjourned, as it imagined, to June, 1802. But, on March 8 of that year, Congress, under the new administration, repealed the law of 1801, unseated all the new judges, and reinstated the old system, with its August and February terms. And then, a little later in the year, the August term of the court was abolished, leaving only one term a year, to begin on the first Monday in February. Thus, since the June term was abolished, and February had then passed, and there was no longer an August or a December term, the court found itself in effect adjourned by Congress from December, 1801, to February, 1803; and so it had no session during the whole of the year 1802.

If the legislation of 1801 was calculated to show the importance attached by an outgoing political party to control over the judiciary, that of 1802 might indicate how entirely the incoming party agreed with them, and how well inclined they were to profit by their own opportunities.

How was it, meantime, with the judiciary itself? Unfortunately, the Supreme Court had already been drawn into the quarrel. For, at the single December term, in 1801, held under the statute of that year, an application had been made to the court by four persons in the District of Columbia for a rule upon James Madison, Secretary of State, to show cause why a writ of mandamus should not issue requiring him to issue to these persons certain commissions as justice of the peace, which had been left in Marshall’s office undelivered at the time when he ceased to add to his present functions those of Secretary of State. They had been made out, sealed, and signed, and were supposed to have been found by Madison when he came into office, and to be now withheld by him. This motion was pending when the court adjourned, in December, 1801. Of course, a motion for a mandamus to the head of the cabinet, upon a matter of burning interest, must have attracted no little attention on the part of the new administration. Abolishing the August term served to postpone any opportunity for early action by the court, and to remind the judiciary of the limits of its power.

At last the court came together, in February, 1803, and found the mandamus case awaiting its action. It is the first one reported at that term. Since Marshall had taken his seat, there had as yet been only five reported cases. All the opinions had been given by him, unless a few lines “by the court” may be an exception; and according to the new usage by which the Chief Justice became, wherever it was possible, the sole organ of the court, Marshall now gave the opinion in Marbury v. Madison. It may reasonably be wondered that the Chief Justice should have been willing to give the opinion in such a case, and especially that he should have handled the case as he did. But he was sometimes curiously regardless of conventions.

If it be asked what was decided in Marbury v. Madison, the answer is that this, and only this, was decided, namely, that the court had no jurisdiction to do what they were asked to do in that case (i. e. to grant a writ of mandamus, in the exercise of their original jurisdiction), because the Constitution allowed to the court no such power; and, although an act of Congress had undertaken to confer this jurisdiction on them, Congress had no power to do it, and therefore the act was void, and must be disregarded by the court.[32] It is the decision upon this point that makes the case famous; and undoubtedly it was reached in the legitimate exercise of the court’s power. To this important part of the case attention will be called in the next chapter.

Unfortunately, instead of proceeding as courts usually do, the opinion began by passing upon all the points which the denial of its own jurisdiction took from it the right to treat. It was elaborately laid down, in about twenty pages, out of the total twenty-seven which comprise the opinion, that Madison had no right to detain the commissions; and that mandamus would be the proper remedy in any court which had jurisdiction to grant it.

And thus, as the court, by its decision in this case, was sharply reminding the legislature of its limitations, so by its dicta, and in this irregular method, it intimated to the President, also, that his department was not exempt from judicial control. In this way two birds were neatly reached with the same stone.