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


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.

Despite these reluctant witnesses, Lee was able to show conclusively through affidavits submitted by another clerk and by James Marshall that the commissions had been signed and sealed. In his closing argument he stressed the significance of the case as a test of the principle of judicial independence. “The emoluments or the dignity of the office,” he said, “are no objects with the applicants.” This was undoubtedly true; the positions were unimportant, and two years of the five-year terms had already expired. As Jefferson later pointed out, the controversy itself had become “a moot case” by 1803. But Marshall saw it as a lastditch fight against an administration campaign to make lackeys of all federal judges, while Jefferson looked at it as an attempt by the Federalist-dominated judiciary to usurp the power of the executive.

In this controversy over principle, Marshall and the Federalists were of necessity the aggressors. The administration boycotted the hearings. After Lee’s summation, no government spokesman came forward to argue the other side, Attorney General Lincoln coldly announcing that he “had received no instructions to appear.” With his control over Congress, Jefferson was content to wait for Marshall to act. If he overreached himself, the Chief Justice could be impeached. If he backed down, the already trifling prestige of his Court would be further reduced.

Marshall had acted throughout with characteristic boldness; quite possibly it was he who had persuaded the four aggrieved justices of the peace to press their suit in the first place. But now his combative temperament seemed to have driven him too far. As he considered the Marbury case after the close of the hearings, he must have realized this himself, for he was indeed in a fearful predicament. However sound his logic and just his cause, he was on very dangerous ground. Both political partisanship and his sense of justice prompted him to issue the writ sought by Marbury and his fellows, but what effect would the mandamus produce? Madison almost certainly would ignore it, and Jefferson would back him up. No power but public opinion could make the executive department obey an order of the Court. Since Jefferson was riding the crest of a wave of popularity, to issue the writ would be a futile act of defiance; it might even trigger impeachment proceedings against Marshall that, if successful, would destroy him and reduce the Court to servility.

Yet what was the alternative? To find against the petitioners would be to abandon all principle and surrender abjectly to Jefferson. This a man of Marshall’s character could simply not consider. Either horn of the dilemma threatened utter disaster; that it was disaster essentially of his own making could only make the Chief Justice’s discomfiture the more complete.

But at some point between the close of the hearings on February 14 and the announcement of his decision on the twenty-fourth, Marshall found a way out. It was an inspired solution, surely the cleverest of his long career. It provided a perfect escape from the dilemma, which probably explains why he was able to persuade the associate justices to agree to it despite the fact that it was based on the most questionable legal logic. The issue, Marshall saw, involved a conflict between the Court and the President, the problem being how to check the President without exposing the Court to his might. Marshall’s solution was to state vigorously the justice of the plaintiffs’ cause and to condemn the action of the Chief Executive, but to deny the Court’s power to provide the plaintiffs with relief.

Marbury and his associates were legally entitled to their commissions, Marshall announced. In withholding them Madison was acting “in plain violation” of the law of the land. But the Supreme Court could not issue a writ of mandamus, because the provision of the Judiciary Act of 1789 authorizing the Court to issue such writs was unconstitutional. In other words, Congress did not have the legal right to give that power to the Court.