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

by Martin Van Buren

Under these circumstances what was the course pursued by the Chief Justice, who gave the opinion of the court, and who alone of its members appears, in the report, to have taken part in the case? He reversed the order in which the relator's counsel had presented their client's case and substituted the following:—

1st. Has the applicant a right to the commission he demanded?

2d. If he has a right and that right has been violated, do the laws of his country afford him a remedy?

3d. If they do afford him a remedy, is it a mandamus from this court?

That the question of jurisdiction is always the first in order is a proposition too plain and too well-established to be discussed. It is not only a rule in our judicial system and in that from which ours has been derived, but must of necessity be a feature in every enlightened system of jurisprudence.

This order was observed by the counsel for the relator, but was so changed in the opinion of the court as to make the consideration of the merits precede the question of jurisdiction—an arrangement for which no good reason could be given, and for which therefore none was attempted to be given. The motive lay on the face of the transaction. It was the only way in which the court could avoid the necessity of saying that they had no jurisdiction over the subject before proceeding to discuss and decide upon its merits. It was to avoid, though in appearance only, this judicial deformity that the Chief Justice reversed the order of the questions, and then in an opinion, which occupies some twenty-six pages in Cranch's Reports,[35] he attempted to prove that the withholding of the commissions was an act not warranted by law, but a violation of a vested legal right which the court pronounced it to be; yet wound up with an admission that the court had no jurisdiction of the subject, and of course no right to act upon it.

If this statement is not in all respects true, then I do injustice to the Chief Justice and his associates, and the inferences I draw from it are to be turned not only from them but against myself. But if the matter, as described by the Chief Justice himself, stood in every respect as I have here narrated, then I insist—and I cannot, I am very sure, deceive myself in believing that every ingenuous mind, whatever may be its political bias, will concur with me in the position—that the course pursued by the Chief Justice and sanctioned by his associates was exceptionable in the highest degree. With the Constitution before them, it was entirely clear at the first introduction of the matter that they had no original jurisdiction of the subject, and could not, under any state of facts, comply with the application of the relator. The course should therefore have been, and doubtless under ordinary circumstances would have been, to direct the relator's counsel to confine their argument to that preliminary point and at its close, with the want of jurisdiction as apparent to the court as it proved to be, to have discharged the rule. But if the court had for any reason thought it desirable to hear the whole case, the same course should have been pursued when it came to their decision, and the merits of the case should have been left unacted upon. No end could be answered by an unauthorized decision on the merits, other than to show to the inferior tribunals what the Supreme Court would do if the case was brought before it on appeal; and that was the design attributed to the Chief Justice by Mr. Jefferson and severely reprobated. Such is not the way in which it is admissible for superior tribunals to treat such subjects; but if it could in any case be deemed excusable, it could never be so on an ex parte hearing. For myself I cannot, with equal and great respect for the principal actors, help regarding the proceedings, from the granting of the rule to show cause to the final decision, as exhibiting a culpable want of courtesy on the part of one of the three great departments of the Federal Government toward a coördinate member, at least equal in dignity and power, greatly aggravated by the political relations in which the President and the Chief Justice stood toward each other, and by the temper of the times in which they occurred.

I apply the remark to them individually, because Chief Justice Marshall was the principal, and seemingly the sole actor, in the proceedings on the part of the court, and because the retention of the commissions—the grievance those proceedings were designed to redress—was not merely an executive act, but one committed in pursuance of the specific direction of President Jefferson. This was always avowed by the latter, and the guarded manner in which the replies of Mr. Madison are stated in the report of the case is, to my mind at least, sufficient proof that the President was throughout considered and treated by the Chief Justice as the actual offender in the matter.

In respect to the soundness of the volunteer opinion of the court it would be superfluous, considering the fate that awaited it, to do more than to restate the question. This may certainly be done with more brevity and perhaps with equal distinctness.

It will not be denied that President Jefferson had the same power over the subject on the 4th March that Mr. Adams would have possessed if his term of office had not expired on the 3d. The President under our system, like the king in a monarchy, never dies. Let us then suppose that Mr. Adams, after he had signed the commission and caused the seal to be affixed to it, but before it had been recorded or delivered, had discovered that the appointee was a felon, or for any reason an obviously improper person to be made a conservator of the public peace, was he not authorized to withhold it? The appointment is made by the Constitution to consist of three acts—the nomination, the approval by the Senate, and the commissioning. The first and last devolve on the President. The signatures to them must necessarily be his own act; but Congress supplies him with a Secretary of State subject to his own directions, to do whatever else is necessary, viz.: to affix the seal to the commission; to record it; and to cause it to be delivered or transmitted to the appointee. The President is apprised of the impropriety of the appointment,—an act which the Constitution had devolved on him alone,—the commission is yet in his possession, for the office of Secretary of State is, for all such purposes, his office, and the question would not have been changed if the seal had been affixed at the President's House; can it be for a moment supposed that the Constitution intended that his power over the commission ceased the moment he attached his signature, or the Secretary the public seal, and that after that he had no right to arrest further proceedings, however strong his reasons for so doing? Can it be presumed that its framers intended to invest the President in the discharge of his responsible duty to "commission all the officers of the United States" with an authority so precise and technical? It is on all sides conceded that he is not bound to commission after the Senate has approved, but has still a right to withhold the commission at his pleasure; and it would be strange, indeed, if it was not intended to give him the power also to arrest its being put on record and delivered after he had signed it, if he saw good cause to do so. But it is not now important to weigh accurately the reasoning of the Chief Justice, which certainly partakes largely of the art and precision of special pleading; as the case was abandoned then, and no similar case has arisen for more than half a century. That the claim of Mr. Marbury and his associates, with ample facilities for its prosecution in the inferior tribunals within their reach, (Judge Cranch, the reporter of the case of Marbury v. Madison, a full believer in the judicial as well as the political infallibility of the Chief Justice, being the Federal judge in the District) should have been given up, after the determination with which it had been asserted, and the care and favor with which it had been considered and elaborated by the Chief Justice, would at the first blush seem not a little unaccountable. The fact of abandonment, in the absence of other explanation, would justify the inference that it was the result of a subsequent conviction that the proceedings were erroneous. But changes of opinion or disposition under such circumstances seldom arise, and the solution of their subsequent course is, I think, to be found in other considerations. The course pursued by the President afforded unmistakable evidence of his determination to resist at the threshold, and to the bitter end, the supervisory power of the judiciary over the other great departments of the Government, which was then for the first time sought to be introduced through the ex parte proceedings in the case of Marbury v. Madison.