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Marbury V. Madison -The Case of the “Missing” Commissions
June 1963 | Volume 14, Issue 4
This small controversy quickly became a matter of great moment both to the administration and to Marshall. The decision to do away with the June term of the Court was made in part to give Madison more time before having to deal with Marshall’s order. The abolition of the circuit courts and the postponement of the next Supreme Court session to February, 1803, made Marshall even more determined to use the Marbury case to attack Jefferson. Of course Marshall was personally and embarrassingly involved in this case, since his carelessness was the cause of its very existence. He ought to have disqualified himself, but his fighting spirit was aroused, and he was in no mood to back out.
On the other hand, the Jeffersonians used every conceivable means to obstruct judicial investigation of executive affairs. Madison ignored Marshall’s order. When Marbury and Ramsay called on the Secretary to inquire whether their commissions had been duly signed (Hooe and Harper could count on the testimony of James Marshall to prove that theirs had been attended to), Madison gave them no satisfactory answer. When they asked to see the documents, Madison referred them to the clerk, Jacob Wagner. He, in turn, would only say that the commissions were not then in the State Department files.
Unless the plaintiffs could prove that Adams had appointed them, their case would collapse. Frustrated at the State Department, they turned to the Senate for help. A friendly senator introduced a motion calling upon the Secretary of the Senate to produce the record of the’action in executive session on their nominations. But the motion was defeated, after an angry debate, on January 31, 1803. Thus, tempers were hot when the Court finally met on February 9 to deal with the case.
In addition to Marshall, only Justices Bushrod Washington (a nephew of the first President) and Samuel Chase were on the bench, and the Chief Justice dominated the proceedings. The almost childishly obstructive tactics of administration witnesses were no match for his fair but forthright management of the hearing. The plaintiffs’ lawyer was Charles Lee, an able advocate and brother of “Light-Horse Harry” Lee; he had served as Attorney General under both Washington and Adams. He was a close friend of Marshall, and his dislike of Jefferson had been magnified by the repeal of the Judiciary Act of 1801, for he was another of the circuit court judges whose “midnight” appointments repeal had cancelled.
Lee’s task was to prove that the commissions had been completed by Adams and Marshall, and to demonstrate that the Court had authority to compel Madison to issue them. He summoned Wagner and Brent, and when they objected to being sworn because “they were clerks in the Department of State, and not bound to disclose any facts relating to the business or transactions in the office,” Lee argued that in addition to their “confidential” duties as agents of the President, the Secretary and his deputies had duties “of a public nature” delegated to them by Congress. They must testify about these public matters just as, in a suit’ involving property, a clerk in the land office could be compelled to state whether or not a particular land patent was on file.
Marshall agreed, and ordered the clerks to testify. They then disclosed many of the details of what had gone on in the presidential mansion and in the State Department on the evening of March 3, 1801, but they claimed to be unsure of what had become of the plaintiffs’ commissions.
Next Lee called Attorney General Levi Lincoln. He too objected strenuously to testifying. He demanded that Lee submit his questions in writing so that he might consider carefully his obligations both to the Court and to the President before making up his mind. He also suggested that it might be necessary for him to exercise his constitutional right (under the Fifth Amendment) to refuse to give evidence that might, as he put it, “criminate” him. Lee then wrote out four questions. After studying them, Lincoln asked to be excused from answering, but the justices ruled against him. Still hesitant, the Attorney General asked for time to consider his position further, and Marshall agreed to an overnight adjournment.
The next day, the tenth of February, Lincoln offered to answer all Lee’s questions but the last: What had he done with the commissions? He had seen “a considerable number of commissions” signed and sealed, but could not remember—he claimed—whether the plaintiffs’ were among them. He did not know if Madison had ever seen these documents, but was certain that he had not given them to the Secretary. On the basis of this last statement, Marshall ruled that the embarrassing question as to what Lincoln had done with the commissions was irrelevant; he excused Lincoln from answering it.