Inquiry Into the Origin and Course of Political Parties in the United States

by Martin Van Buren

This transaction furnished the desired occasion to apply the opening wedge for the enlargement of the judicial power of the Federal Government, and it was promptly and fully embraced through the proceedings that were had in the celebrated case of Marbury and Madison. The judges of the Supreme Court were to a man Federalists, and at the head of them stood, as chief justice, President Jefferson's persevering and consistent old political antagonist—John Marshall.

The Chief Justice may not have been the severest student or the most learned lawyer, but he was certainly, all things considered, the ablest judge that had ever occupied a seat upon the bench of the Supreme Court of the United States. No man was ever more rigidly just or strictly impartial in all cases of meum and tuum that were brought before him for adjudication. Under a disposition the most genial, and a childlike simplicity and frankness of manner he cherished during his whole life, as all his race have done, Federal principles and Federal prejudices of the most ultra character. These, though ordinarily kept in due check by a commendable and exemplary self-command,—a virtue he shared with, if he had not in some degree imbibed it from, his friend and neighbor, General Washington,—had nevertheless been warmed by the circumstances of the moment to a high temperature. The inducements by which he was almost forced into public life by the General, shortly before the death of the latter, have been narrated in the account I have given of my conversation with his nephew, Judge Washington, at Mount Vernon.[32] Unhappily impressed with the idea that his own as well as the interests of the country depended upon the support of Mr. Adams' administration, General Washington for once, and fortunately only for a brief season, lent himself to partisan movements and used his controlling influence to induce Mr. Marshall to offer for Congress, and in no other case has the high estimate he formed of a man's capacity been more signally verified by the result. Marshall became at once, through the influence of a single speech of extraordinary power, a leader in the House of Representatives during the most stormy period of the administration of John Adams, was subsequently appointed Secretary of War and Secretary of State by Mr. Adams, and held the latter office until his party, and the administration with it, were overthrown by the Republicans under the lead of Mr. Jefferson. He was then transferred by Mr. Adams to the place of Chief Justice. Other circumstances lent their influence to infuse ill-will into the personal relations of Jefferson and Marshall. They were natives of the same State, and although they had stood as Whigs side by side in the Revolution, the political principles maintained by Mr. Jefferson, after the establishment of our Independence, were so much more in harmony with those of Virginia as to place Marshall's views ever after under the ban of her opinion, notwithstanding the qualified sanction they received front General Washington. On the part of Mr. Jefferson, the unfriendly feelings which he believed were entertained toward him by the Chief Justice were, for him, quite earnestly reciprocated. This is shown by the following pointed extract from his letter to myself, in which, speaking of the alterations and other uses that had been made of his letter to Mazzei, he adds, "and even Judge Marshall makes history descend from its dignity and the ermine from its sanctity to exaggerate, to record, and to sanction this forgery."[33]

Mr. Jefferson, apprised that steps were being taken to bring his acts in respect to the commissions under the supervision of the Supreme Court, at once penetrated the design that lay behind the particular measure, and, with that moral courage that never deserted him, prepared to defend the department committed to his charge. The head of the State Department was advised, and the clerks instructed, to make themselves parties to no act which would justly be regarded as recognizing the authority of the court to meddle in the affair, and his views were, of course, faithfully carried out by Mr. Madison, as well as by the subordinates in the department. A motion was made at the December term of the court in 1801, for a rule requiring James Madison to show cause why a mandamus should not issue commanding him to deliver those commissions to the nominees. Notice of motion was served upon Mr. Madison, but he declined to appear. He was asked by the relator whether the commissions were signed and sealed, but declined to respond to such inquiries, as did also the officers of the department. Application was also made to the Secretary of the Senate for a certificate that the nominations had been confirmed, which was also refused. A resolution was offered in the Senate directing the Secretary of the Senate to give the certificate. It was laid upon the table and no further acted upon. Upon affidavits stating these facts, except the last, a rule was obtained requiring the Secretary to show cause why the mandamus should not be issued on a day certain, of which he took no notice. The court, notwithstanding, proceeded to an ex parte hearing. "Two clerks were summoned from the department as witnesses, who objected to be sworn because they were not bound to disclose any facts relating to the business or transactions of the office. The court ordered the witnesses to be sworn, and their testimony taken in writing; but informed them that, when the questions were asked, they might state their objections to answering each particular question, if they had any. Mr. Lincoln, who had been Acting Secretary of State when the circumstances stated in the affidavits occurred, was called upon to give testimony. He objected to answering. The questions were put in writing. The Court said there was nothing confidential required to be disclosed. If there had been, he was not obliged to answer that, nor was he obliged to state any thing which would criminate himself."[34]

The testimony that was given is not set forth in the report of the case.

The counsel for the relator argued the questions he presented for the consideration of the court in the following order, viz.:

1st. Whether the Supreme Court can award the writ of mandamus in any case.

2d. Whether it would lie to a Secretary of State in any case whatever.

3d. Whether in the present case the court may award a mandamus to James Madison, Secretary of State.

The point involving the question of jurisdiction was, according to the invariable course of legal proceeding, the first in order of consideration, upon the plain and simple principle that if the court have no right to act definitively in the matter there is neither use nor propriety in considering even, and much less in making a decision upon, the merits of the case. That belongs to the tribunal that possesses jurisdiction. No point was clearer than the want of jurisdiction on the part of the Supreme Court, and such it will be seen was the unanimous and unhesitating opinion of the court itself. The Constitution divides the jurisdiction conferred on that high tribunal into that which may be exercised as original, and that which shall only be appellate, and separates the two in terms which leave no room for misapprehension or mistake. The language of the Constitution is—"In all cases affecting ambassadors, other public ministers and consuls, and those in which a State shall be party, the Supreme Court shall have original jurisdiction. In all the other cases before mentioned the Supreme Court shall have appellate jurisdiction" both as to the law and fact, with such exceptions and under such regulations as Congress shall make. The motion before the court was clearly an original proceeding in a matter in which it confessedly had no original jurisdiction; so the court was obliged to say, and so it ultimately said.

A pretense was set up by the relator's counsel that the court might claim the desired authority under that part of the Judiciary Act providing necessary means to enforce its appellate jurisdiction, which, after specifying the cases in which such jurisdiction may be exercised, and pointing out the way in which it may be carried into effect, adds to the authority to issue writs of prohibition to the district courts in certain cases—"and writs of mandamus, in cases warranted by the principles and usages of law, to any courts appointed or persons holding office under the authority of the United States." Now the plain intention of this clause of the sentence was to extend the right of issuing a mandamus, in the exercise of its appellate jurisdiction, to any subordinate authorities upon whom Congress might confer judicial power, whether that power was given to a court, or to a single officer not constituting a court according to the ordinary interpretation of that word. The commissioners subsequently appointed under the Fugitive Slave Act are officers of that description. To think otherwise is to suppose that the men who framed the Judiciary Act of 1789 designed by the terms they employed to give to the Supreme Court original jurisdiction in cases in which it was denied to it by the Constitution—a design too absurd and too disingenuous to have found even a momentary resting-place in the minds of those great men. The court so far countenanced this interpretation as to assume, for the sake of the argument, that the words "or persons holding office," might embrace the case before it. But it immediately proceeded to disprove the assumption by saying, "It has been stated at the bar that the appellate jurisdiction may be exercised in a variety of forms, and that if it be the will of the legislature that a mandamus should be issued for that purpose that will must be obeyed. This is true; yet the jurisdiction must be appellate not original,"—and the court goes on to show that this proceeding would in no sense be regarded as an exercise of appellate jurisdiction; adding to that demonstrative refutation the declaration, that if the act would bear the interpretation given to it by the counsel, it would be directly contrary to the Constitution and therefore void. That the court had not the slightest right to do what it was asked to do, or to take original jurisdiction of the matter in any form, was a point upon which it expressed no doubt; and if it had decided the questions in the order in which they were presented by the relator's counsel, the necessity of dismissing the motion before coming to the consideration of the merits of the case would have been too imperative to be overcome.