Marbury V. Madison -The Case of the “Missing” Commissions


Working with his customary puritanical diligence, Adams completed his work by nine o’clock, and when he went off to bed for the last time as President of the United States, it was presumably with a clear conscience. The papers were carried to the State Department, where Secretary Marshall was to affix the Great Seal of the United States to each, and see to it that the commissions were then dispatched to the new appointees. But Marshall, a Virginian with something of the southerner’s easygoing carelessness about detail, failed to complete this routine task.

All the important new circuit judgeships were taken care of, and most of the other appointments as well. But in the bustle of last-minute arrangements, the commissions of the new justices of the peace for the District of Columbia went astray. As a result of this trivial slip-up, and entirely without anyone’s having planned it, a fundamental principle of the Constitution—affecting the lives of countless millions of future Americans—was to be established. Because Secretary of State Marshall made his last mistake, Chief Justice Marshall was soon to make one of the first—and in some respects the greatest—of his decisions.

It is still not entirely clear what happened to the missing commissions on the night of March 3. To help with the rush of work, Adams had borrowed two State Department clerks, Jacob Wagner and Daniel Brent. Brent prepared a list of the forty-two new justices and gave it to another clerk, who filled in the blank commissions. As fast as batches of these were made ready, Brent took them to Adams’ office, where he turned them over to William Smith Shaw, the President’s private secretary. After they were signed, Brent brought them back to the State Department, where Marshall was supposed to affix the Great Seal. Evidently he did seal these documents, but he did not trouble to make sure that they were delivered to the appointees. As he later said: “I did not send out the commissions because I apprehended such … to be completed when signed fe sealed.” Actually, he admitted, he would have sent them out in any case “but for the extreme hurry of the time & the absence of Mr. Wagner who had been called on by the President to act as his private secretary.”

March 4 dawned and Jefferson, who apparently had not yet digested the significance of Adams’ partisan appointments, prepared to take the oath of office and deliver his inaugural address. His mood, as the brilliant speech indicated, was friendly and conciliatory. He even asked Chief Justice Marshall, who administered the inaugural oath, to stay on briefly as Secretary of State while the new administration was getting established. That morning it would still have been possible to deliver the commissions. As a matter of fact, a few actually were delivered, although quite by chance.

Marshall’s brother James (whom Adams had just made circuit judge for the District of Columbia) was disturbed by rumors that there was going to be a riot in Alexandria in connection with the inaugural festivities. Feeling the need of some justices of the peace in case trouble developed, he went to the State Department and personally picked up a number of the undelivered commissions. He signed a receipt for them, but “finding that he could not conveniently carry the whole,” he returned several, crossing out the names of these from the receipt. Among the ones returned were those appointing William Harper and Robert Townsend Hooe. By failing to deliver these commissions, Judge James M. Marshall unknowingly enabled Harper and Hooe, obscure men, to win for themselves a small claim to legal immortality.

The new President was eager to mollify the Federalists, but when he reali/ed the extent to which Adams had packed the judiciary with his “most ardent political enemies,” he was indignant. Adams’ behavior, he said at the time, was an “outrage on decency,” and some years later, when passions had cooled a little, he wrote sorrowfully: “I can say with truth that one act of Mr. Adams’ life, and one only, ever gave me a moment’s personal displeasure. I did consider his last appointments to office as personally unkind.” When he discovered the justice-of-the-peace commissions in the State Department, he decided at once not to allow them to be delivered.

James Madison, the new Secretary of State, was not yet in Washington. So Jefferson called in his Attorney General, a Massachusetts lawver named Levi Lincoln, whom he had designated Acting Secretary. Giving Lincoln a new list of justices of the peace, he told him to put them “into a general commission” and notify the men of their selection.


In truth, Jefferson acted with remarkable forbearance. He reduced the number of justices to thirty, fifteen for the federal District, fifteen for Alexandria County. But only seven of his appointees were his own men; the rest he chose from among the forty-two names originally submitted by Adams. Lincoln prepared two general commissions, one for each area, and notified the appointees. Then, almost certainly, he destroyed the original commissions signed by Adams.