Cleveland State University EngagedScholarship@CSU

Law Faculty Articles and Essays Faculty Scholarship

Winter 2003

Who was William Marbury?

David F. Forte Cleveland State University, [email protected]

Follow this and additional works at: https://engagedscholarship.csuohio.edu/fac_articles

Part of the Judges Commons, Legal Biography Commons, Legal History Commons, President/ Executive Department Commons, and the Supreme Court of the United States Commons How does access to this work benefit ou?y Let us know!

Repository Citation Forte, David F., "Who was William Marbury?" (2003). Law Faculty Articles and Essays. 66. https://engagedscholarship.csuohio.edu/fac_articles/66

This Article is brought to you for free and open access by the Faculty Scholarship at EngagedScholarship@CSU. It has been accepted for inclusion in Law Faculty Articles and Essays by an authorized administrator of EngagedScholarship@CSU. For more information, please contact [email protected]. ti! F/ &,eOPo S epe

The Marbury Mystery Why Did William Marbury Sue in the Supreme Court?

In the Beginning: v. Madison was i dramatic, controversialand very sig- e~p nificant case. In one fell swoop, the Supreme Court established Who Was Marbury v. Madison that the federal judiciary can review the legality of the actions of the execu- tive and the legislative branches. It is certainly one of the most influential On the Bicentennial of the Landmark Case decisions in the history of the United States. Because of Marbury v. Madison, William Marbury? the Supreme Court was able to order President Truman to give back the steel By',": Jam"s.A. Noe mills during the Korean War and later to order President Nixon to turn over the Watergate tapes to the special proiecutor in 1974. And, of course, it is why the Court can strike down acts o 7 Congress, something it has been doing quite often recently. arly American history is filled with familiar names and deeds. Yet, Chief Justice John Marshall wrote this landmark opinion in what appeared ) f all the disappointed office seekers in American history, only William 0one important hero and his cornerstone contributions to the birth of to be a minor matter: the issue of ddivering commissions to minor officials Marbury has been so honored as to have his portrait hung in the cham- our nation are mired in forgotten history. He is John Marshall, third Chief who, this article will show, didn't r articularly care about the commissions and bers of the United States Supreme Court alongside that of James Madison. The Justice of the Supreme Court, described by one biographer as the "definer of who sued in a court that had no jurisdiction to order their delivery. This arti- two titular protagonists to the Marbury v. Madison dispute had no idea that a nation." He was the author of what Chief Justice William Rehnquist calls cle will reveal that there was anothei :,ourt with jurisdiction to order the deliv- their original contretemps would ever find its way to litigation, let alone even- "the most famous case ever decided by the United States Supreme Court": ery, that the petitioners knew of that c6 urt, and that that court would probably tual mythic significance as the foundation stone of judicial review. Marbury v. Madison (5 U.S. 137 2 L. Ed 60 (1803)). Famous or obscure, that have granted the writ. So the interesting question is why did the petitioners seminal case is the foundation of fundamental principles of our judicial sys- bypass that court and sue instead in the Supreme Court where there was no The Commission tem: judicial review, independence of the judiciary, and the rule of law. It jurisdiction. The answer is that it was only by pursuing exactly this course On Friday, February 27, 1801, John Adams signed the bill for the governance also underscores the existence of the separation of powers and the validity that the petitioners, ardent Federalists P1, could give Chief justice John of the District of Columbia, which authorized, among other offices, five-year of the third branch of government. Marshall the opportunity to use Marbo 'yyv Madison to enhance the power of appointments of justices of the peace for the District's two counties, the federal judiciary at a time when it was still very weak and was the only Alexandria County and Washington County. Adams had but five days left in The Gathering Storm branch of the federal government still I the hands of the Federalists. his administration to make the appointments. To understand the significance of the Marbury decision, one must be aware of By suing in the Supreme Court the . etitioners gave the Court the opportuni- The newly created office of Justice of the Peace of Washington and Alexandria the volatile nature of the political scene in the new nation during the last ty to announce that the petitioners wej e entitled to the commissions, that the Counties in the District of Columbia was coveted by many men. Some of the decade of the 18th century and especially during the time of transition of the judiciary had the authority to order th Secretary of State to deliver the com- nominees possessed no viable career alternatives. For others, the appointment office of president from John Adamns to Thomas Jefferson in 1801. Political missions, and that the Supreme Court iad the power to hold an Act of was granted as a commendation for past services to the country. Some others parties were emerging, and a struggle for power ensued. Intrigue, scheming, Congress unconstitutional. The case al Lowed the Court to assert all this while were appointed because of their previous experience as justices of the peace. A and character assassination were common modes of political activity. Once ingeniously insulating its decision froi defiance by concluding that it did not few were rewarded for their friendship to the president. And for still others, like united, the Founding Fathers were now divided over different visions for the have jurisdiction and therefore would )rder no one to do anything-clearly a Marbury, it was a civic office appropriate to the stage of their developing careers. future of the United States. masterpiece of indirection. Party allegiance mattered for some of the appointments, but contrary to incom- (Please see In the Beginning, page 30.) [Please see Marbury Mystery, page 34.) ing President Jefferson's assertion, party loyalty did not figure in the choice of all e;;f 40_01_

the justices. Indeed, some were prominent and hero Uriah Forrest, who became a Republicans. A few, however, had become mentor and champion of Marbury's. notorious partisans of the Federalist cause. William Marbury had tried his hand Secretary of State John Marshall had farming, the merchant trade, and (late in primary responsibility for gathering the his career) land speculation, but finally names. Marshall turned to Secretary of found success in the world of finance. The scandal the Navy Benjamin Stoddert, also a close Ultimately, his mastery of finance in became public in friend of his and fellow Cabinet member Annapolis propelled him into promi- and Adams supporter, for nominees for nence in the nation's new capital on the late February Washington County. Marbury's name was Potomac, while his alliance with the included in this group. Georgetown and Annapolis merchants and was fully As students of history know, President against the rising power of Baltimore cast reported in the Jefferson withheld Marbury's commis- his lot with men who happened to be sion. Madison did not even arrive in John Adams's greatest support. press on the day Washington until long after the event that Marbury's took place. Marbury, meanwhile, had Federalist Ally been busy for much of his life building The first half of the decade of the 1790s name was sent an extraordinarily successful and lucra- was a period of growing political foment tive career in finance in Maryland. In in Maryland. In 1788 and 1789, the out- to the Senate Maryland tradition, an appointment as numbered Anti-Federalists constituted a for approval as justice of the peace was an essential coalition mostly along the Chesapeake. emblem of a man's membership in the The core of the Chesapeake coalition lay justice of political and financial elite. Its denial by in the original cabal led by Samuel Chase the peace. Jefferson was a direct blow to 20 years of in Baltimore. Meanwhile, the Federalist work and ambition. leaders of the Potomac-later the sup- porters of John Adams against Hamilton Humble Origins and his Baltimore friends-found an William Marbury had not reached the effective ally in William Marbury and peak of his career in 1801 when he ultimately brought him into their circle. obtained his appointment as a justice of By the end of 1792, Marbury's finan- the peace from President Adams, but he cial skills were recognized in the highest was a long way toward it. He was 38 places, and he had become especially years old at the time, having been born adept at handling state and federal secu- on November 7, 1762, most likely on a rities enriching the state treasury. In rude tobacco plantation near the town of 1796, Marbury became Agent of the State Piscataway in Prince George's County, of Maryland and rapidly rose to be the Maryland, though he spent much of his most powerful unelected official in the Forte is a professor younger years in Fairfax County, state. As Agent, Marbury engaged in of law at Cleveland State Virginia; in Charles County, Maryland; complex financial dealings, collecting University. He served as chief counsel to the and in the Maryland state capital of back taxes, selling estates, exchanging United States delegation Annapolis. He passed most of his child- debt certificates for federal stock, and to the United Nations hood following his father (also named brokering on his own. His expertise and during the Reagan William) in his fruitless quest for finan- reputation grew apace. administration. cial security in tobacco farming. Maryland had never seen any agent In 1781, at age 19, William Marbury pursue his duties with such vigor. As far began his career as a lowly clerk in away as Philadelphia, Marbury gained the Annapolis to the state's auditor general, reputation as the state's most authoritative and for the remainder of the decade as a financial representative. Marbury pursued deputy tax collector. During this period, his duties with unrelenting thoroughness. the young Marbury saw a rising cabal led During 1796, out of a total amount of by Samuel Chase, later Supreme Court £40,785.10.11 in cash and bonds turned Justice, who sought to gain lucrative land into the Maryland's treasury, Marbury deals at the expense of the state. They personally accounted for £35,310.0.3. WINTER 2003/EXPERIENCE were opposed by revolutionary general Marbury turned his considerable influ- ence toward championing the financial That same Saturday, before Stoddert's interests of the Annapolis and Potomac letter arrived from the Navy Department Federalists against the growing influence with the new directions for Marbury, of Baltimore. There was a short and Hughes showed up from Alexandria at direct route into the inner circle of the Marbury's Georgetown office ready to Georgetown Federalists. He was elevated sign a contract. Marbury later informed to the board of directors of the Bank of him of his new instructions from Columbia in early 1798, and the follow- Stoddert containing a strict requirement ing year was appointed agent to the of security for the contract. Hughes Washington Navy Yard, whereupon he protested the new demand, and moved his family and his future from Marbury left the office to consult with Annapolis to Georgetown. Stoddert. Despite Marbury's protests The man who appointed him as naval that he had given his word to Hughes, agent, brought him to Georgetown, and Stoddert insisted on the surety. Later, almost certainly championed his name as when Marbury informed Stoddert that a justice of the peace was Benjamin Hughes had agreed to the stated price, Stoddert, secretary of the navy and close Stoddert nonetheless ordered him to intimate to President John Adams. accept a new bid from Templeman. Stoddert had primary responsibility for When Hughes returned to Marbury's the successful defense of American ship- office with surety in hand, he discovered ping interests in the naval war with that the contract had been let to Along with France. Central to Stoddert's strategy had Templeman. He blamed Marbury for mis- others, William been the establishment of a naval yard in leading him. The scandal became public Washington at Anacostia, and in 1799 he in late February and was fully reported Marbury called upon William Marbury to become in the press on March 2, the day that naval agent for the yet unbuilt facility. Marbury's name was sent to the Senate had publicly for approval as justice of the peace, and intervened on Shipyard Scandals two days before Jefferson's inauguration. If Marbury had earlier found Annapolis In the end, Jefferson cancelled con- behalf of John filled with intrigue and rough dealing, struction of all of the 74-gun ships of the Adams in a move Washington was many times more hard- line, and the timber, so expensively and hearted. Immediately after his appoint- laboriously acquired, rotted in the yards. that might have ment as naval agent, Marbury advertised Undoubtedly in Jefferson's mind, for the necessary timber and soon found a Marbury had forever become associated cost Thomas ready supplier in John Templeman, weal- with the ambitious Stoddert and the Jefferson thy Georgetown merchant and fellow costly overruns that had been incurred. member with Marbury and Stoddert of A few months later, Jefferson's Secretary the election. the Bank of Columbia's board of directors. of War, Henry Dearborn, unceremonious- Marbury, however, was not happy with ly fired Marbury as naval agent. Templeman's performance and searched The Templeman affair had been scandal for another supplier. In late summer enough, and it followed on the heels of a 1800, he found a prospect in John bitter public dispute between Marbury Hughes of Alexandria and refused to and Lewis Deblois, fellow Federalist and entertain Templeman's bid. foreman of the navy yard. Marbury dis- In early December, the dock was ready, covered that Deblois was skimming but on Friday, December 12, 1800, word money for himself from labor contracts, arrived from South Carolina that and had obtained kickbacks from contrac- Jefferson had unexpectedly taken that tors. Marbury fired Deblois in the summer state's electoral votes and the presiden- of 1800 and let those in Georgetown know tial election. Stoddert hurriedly wrote to why. Unemployable, Deblois took his case Marbury the next day insisting on "good to the Republican press. Marbury's power- personal or real security not only for the ful responses bested Deblois in the war of money advanced, but for the perfor- letters in the press, but both protagonists mance of the contract." had been tainted in the fracas. WINTER 2003/EXPERIENCE e l !?_-

Electoral Tension to withdraw. Reintzell then publicly For all his problems as naval agent, broke with the Federalists, and took his Marbury had nonetheless easily moved case to the press, naming those who had into the highest circles of the Federalist importuned him, including William elite in Georgetown, where he became rich Marbury. In the election, the Republicans and influential. He became Uriah Forrest's took over the legislature. There would be broker, and he and his family made their no "legislative choice." Along with oth- abode in Forrest's home, the very place ers, William Marbury had publicly inter- where President Washington and the land- vened on behalf of John Adams in a ed proprietors had made the terms that move that might have cost Thomas secured Washington as the nation's capital. Jefferson the election. The Marbury family was soon active in In the end, Maryland's voters, choosing Georgetown society. Marbury was elected their electors by district, divided the a manager of the dancing assemblies for state's ten electoral votes evenly between the social elite. Marbury was also a mem- Adams and Jefferson. When the electoral ber of the board of directors of the Bank votes were finally tallied nationwide, of Columbia, had lucrative investments, Jefferson had bested Adams 73 to 65. Had Jefferson and was beginning to make prudent pur- the Federalists been able to hold on to the chases of land. In addition, to be a mem- Maryland legislature, all of Maryland's reduced the ber of Uriah Forrest's Federalist clique not votes would have flowed to Adams. John number of only brought one into the inner circle of Adams would have been re-elected to a Adams's favorites, but it also made one an second presidential term, and the name of justices of the object of the Republican Party's enmity. William Marbury would never have peace, carefully In a few months, the entire govern- appeared in the history books. ment moved to cramped and unfinished culling those quarters in the still wilderness capital of Cancelled Appointment Washington. With the government now In the rush of appointments before he he regarded in Washington, Uriah Forrest called upon left office, President Adams included as enemies. Marbury to do his bit to secure Adams's Marbury among the 23 names he sent to re-election. The issue was how the Senate as justices of the peace for Maryland's electoral vote for president Washington County. Of that number, ten would be decided for the 1800 election. were prominent Federalist partisans Maryland, thought to be majority including Marbury. Four other appoint- Federalist, had always permitted its vot- ees were from old and respected Fed- ers to select its electors by individual eralist families in the area. Adams also district. But the Federalist candidates for appointed five men, including Daniel the Maryland state legislature were run- Reintzell, three or four of whom were ning on the platform of "a legislative Republican, because they were sitting choice." If they succeeded, the state leg- justices of the peace under Maryland islature would vote Maryland's electoral law. William Thornton, celebrated archi- votes, and all ten would be Adams's. tect of the Capitol, was also appointed, Four representatives would be elected though he too was a Republican. Finally, from Montgomery County, and Forrest Adams's friend Tristam Dalton and his sought to make sure that they were all son-in-law, Lewis Deblois, were appoint- pledged to change Maryland's method of ed as personal favors to Adams. Marbury selecting presidential electors. The therefore had among his companions the Federalists were surprised when Daniel man he fired for corruption and the man Reintzell, prominent politician and jus- he sought to defeat for the assembly. tice of the peace, announced that he Jefferson had declared that all executive would stand for the post and was against appointments made by Adams since "a legislative choice." December 1800, when it was clear that A small delegation of the most promi- Jefferson had won the election, were "nul- nent Federalists, including Forrest and lities." By the time he took the oath of WINTER 2003/EXPERIENCE Marbury, met with Reintzell to ask him office, Jefferson realized he could not ' / CoY-.e o 0 3

touch the Adams's judicial appointments his own excuse that Adams had appointed that had life tenure, but all the others an excess number, could not appoint any were vulnerable. He replaced all the fed- more until his second term. Second, many eral attorneys and marshals, and he seized of Adams's appointments were, in fact, his chance to void the five-year appoint- Republican. In addition, those offices were ments of the justices of the peace when he funded by the fees assessed for their ser- found that they had been undelivered. vices, and not the federal treasury, so By doing so, however, Jefferson had Jefferson could not credibly claim that his left the District of Columbia without a action was a cost-cutting move. government, for the justices of the peace Nonetheless, he had to follow through Despite were to constitute the county legisla- on his purported reasons for withholding tures. In addition, civil society at that the commissions. He reduced the num- the man's time simply could not operate without ber of justices of the peace, carefully experience and justices of the peace being readily avail- culling those he regarded as enemies and able. Consequently, Jefferson had to for- substituting those who supported him. position, mulate quickly his own list of nominees Despite the man's experience and posi- Marbury must and give them recess appointments. tion, Marbury must have been one of the John Adams had been transparent easiest cuts for Jefferson to make. have been about his appointments. He rewarded the Marbury's life's work in securities trad- Federalists who had supported him, ing was associated with the Hamiltonian one of the helped a couple of friends, and recognized "stock jobbers" whom Jefferson detested, easiest cuts long-standing pillars of the community. for Marbury had rejected farming for the But he did not hesitate from continuing in world of negotiable instruments. He had for Jefferson office justices of the peace who were been the subject of much newspaper to make. already sitting and serving their neighbor- notoriety in the Republican press in the hoods, even if they were Republicans, or few months preceding inauguration. He had acted overtly against his re-election. had personally weighed in to try to Thomas Jefferson, on the other hand, was swing all of Maryland's votes to Adams, both more surreptitious and more partisan which if successful, would have kept in making his selections. Jefferson from his desired Revolution of 1800. Marbury was also tied to the enor- The Trail to the Trial mous cost overruns associated with a Coming into office expressing the hope navy that Jefferson wanted cut to the that Federalists and Republicans could bare minimum. He had no connection to This article was adapted from an article that work together, Jefferson could not seem to a family or to figures to whom Jefferson originallyappeared in act in a partisan manner during his first owed any social or political favor, and 45 Cath. U.L. Rev. 349. week in office. His first cover was to claim was, in fact, intimately tied to the Reprinted by permission that Adams had appointed too many jus- Forrest-Stoddert clique whom the of the publisher. tices of the peace. His second was that Republicans in Georgetown and Adams had rewarded Federalists with an Washington most despised. unnecessary and expensive number of Kept from the status and position of offices. The excuses were flimsy. First, being justice of the peace, William throughout the rest of Jefferson's adminis- Marbury soon turned to Charles Lee, for- tration, citizens desperately wrote the mer attorney general, to seek his exoner- president and the secretary of state of their ation before the Federalist Supreme need for more justices in the outlying areas Court and John Marshall. The rest, as of the district, but Jefferson, caught with they say, is history. U Visit the SLD on the web at www.abanet.org/sriawye'rs WINTER 2003/EXPERIENCE Content downloaded/printed from HeinOnline

Wed Oct 16 18:39:07 2019

Citations:

Bluebook 20th ed. David Forte, Who Was William Marbury, 13 Experience 25 (2003).

ALWD 6th ed. David Forte, Who Was William Marbury, 13 Experience 25 (2003).

APA 6th ed. Forte, D. (2003). Who was william marbury. Experience, 13(2), 25-37.

Chicago 7th ed. David Forte, "Who Was William Marbury," Experience 13, no. 2 (2003): 25-37

McGill Guide 9th ed. David Forte, "Who Was William Marbury" (2003) 13:2 Experience 25.

MLA 8th ed. Forte, David. "Who Was William Marbury." Experience, vol. 13, no. 2, 2003, p. 25-37. HeinOnline.

OSCOLA 4th ed. David Forte, 'Who Was William Marbury' (2003) 13 Experience 25

Provided by: Cleveland-Marshall College of Law Library

-- Your use of this HeinOnline PDF indicates your acceptance of HeinOnline's Terms and Conditions of the license agreement available at https://heinonline.org/HOL/License -- The search text of this PDF is generated from uncorrected OCR text. -- To obtain permission to use this article beyond the scope of your license, please use: Copyright Information

Use QR Code reader to send PDF to your smartphone or tablet device