Madison and Jefferson (75 page)

It was Jefferson, and Jefferson alone, who had decided to withhold Marbury’s commission. Madison had still been in Virginia at the time and had not yet taken up the duties of his new office. The third president considered the second’s last-minute appointments “nullities” and felt no qualms, as he told Madison, in dismissing those persons “indecently appointed and not yet warm in their seat of office.” “Indecency” made an impression on Jefferson.

Though duly summoned in December 1801, Madison never appeared in court; Attorney General Levi Lincoln made his excuses. One must wonder whether, in urging his secretary of state to boycott the proceedings, Jefferson was afraid that Madison might take a moderate line and find some common constitutional ground with Marshall. Or perhaps he was simply so outraged by Marshall’s forward and presumptuous action in summoning Madison that he wanted to snub the Court. Either way, in this case Madison allowed himself to be muzzled by Jefferson.
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Soon enough the Republican press went on the attack, haranguing Marshall for his “ludicrous” attempt to “stigmatize” the executive. With two of three branches of government in Republican hands, Jefferson complained that the Federalists had “retired to the Judiciary as a strong hold,” from which “battery” the good works of a Republican administration were to be “beaten down & erased.” The president’s recurrence to a metaphor of warfare was no accident; he planned to subject the High Court to a long siege. It seemed Americans were not “all Republicans, all Federalists” after all.
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Jefferson’s initial gambit was the repeal of the Judiciary Act of 1801, for which he relied on his allies in Congress. The Judiciary Act, passed during the lame duck session at the end of the Adams administration, increased the number of federal district court judges. At the same time the District of Columbia was formed, creating forty-two new judgeships, among which was the position that went to William Marbury. In Jefferson’s mind, these so-called midnight appointments constituted a flagrant form of court packing. It placed a “phalanx” of disruptive Federalists—again, his sense of political warfare—at the hub of his administration. In early 1802 Breckinridge of Kentucky took the lead in dismantling the bloated judiciary. Federalists became defensive. Accusations flew that Jefferson was threatening the independence of the courts.
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When the repeal bill moved to the House, James Bayard of Delaware (one of the Federalists who had tried to put Burr in the presidential chair) accused Jefferson of demagoguery. Bayard called his Republican colleagues puppets of the president, presuming them subject to the same vindictive spirit. In time, he predicted, as the executive succeeded in stripping the courts of competent judges, the real power would be lodged in “one man.” Only the judicial branch was capable of “rising above the storm” of partisanship, he said; only the judiciary could keep the “fierce passions of a victorious faction” at bay.

Republicans shot back. Could anyone forget the sordid legacy of the Alien and Sedition Acts? John Randolph of Roanoke bitingly remarked
that the judiciary did nothing when the people’s liberties were at stake. And now, touch but “one cent of their salaries, abolish one sinecure,” and they suddenly become great champions of the Constitution. Surely Madison’s summons to appear in the Marbury case was in Randolph’s mind when he accused the Federalists of trying to establish an “inquisitorial authority over the Cabinet of the Executive.”
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The Republicans overturned the Judiciary Act by the slimmest of margins, 16 to 15, in the Senate; but they had a healthy margin of 59 to 32 when the House voted. After Jefferson signed the bill, sixteen district court judges (fifteen of them Federalists) were shorn of their lifetime appointments. Republicans then passed their own Judiciary Act, reestablishing the circuit court design that existed prior to 1801. Supreme Court justices, not only district judges, would suffer the indignity of having to ride the circuit, which meant traveling on horseback long distances to preside over district court sessions. On the Senate floor, sharp-witted Gouverneur Morris of New York derided the change, noting that judges required “less the learning of judge than the ability of the post-boy”—the youths who delivered their newspapers. Meanwhile, in eliminating the June 1802 session of the Supreme Court, Republicans in Congress found a way to postpone the Marbury hearing. On February 10, 1803, when the Court finally met, it was clear that long delays had done nothing to cool partisan animosity. Two weeks later, Marshall issued his decision.
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Madison and Jefferson must have expected Marshall to rule in favor of Marbury, in order to dictate the limits of executive authority. Instead, the chief justice ruled in favor of Madison. But there was a twist—or perhaps more than one. Asserting that the judicial branch of government was entrusted to explain the meaning of the law, Marshall overturned a portion of one section of the 1789 Judiciary Act, a piece of legislation that had authorized the Supreme Court to deliver a writ of mandamus (an order to hand over a document) to a federal officeholder. According to Marshall, the Supreme Court lacked authority to issue the writ; Congress had assigned jurisdiction to the Supreme Court when the federal Constitution stipulated otherwise. Marbury would have to seek redress from a court other than the Supreme Court.

Marshall could have limited himself to this ruling. But his real intent, as both a politician and a jurist, evidently was to lecture the current president and secretary of state. And so he elaborated. They were wrong to maintain that an appointment was not official until delivery of the commission, he said. The appointment could not be annulled. It was official, because it had
President Adams’s signature on it and the seal of the government, which Marshall himself had affixed as secretary of state, in early 1801. The next president had no right to “sport away the vested rights of another.” So as he chided Jefferson, he also took Madison to task for his passivity in confusing his political obligation to the president with the performance of the separate and distinct legal duties of his office. Twenty of the twenty-seven pages of Marshall’s opinion were devoted to showing how Jefferson had violated the law. Madison, in this construction, was a mere pawn.

In response to Jefferson’s offensive against the Federalist-controlled judiciary, Marshall had turned the bench into his bully pulpit. Unafraid of his Republican critics in Congress, he passionately defended judicial scrutiny of the executive. In his ruling, though he wrote on behalf of the entire Court, Marshall gave conspicuous evidence of his personal sense of outrage. He called Republicans’ accusations of partisanship “absurd and excessive”—allegations that the Court refused to entertain, even for a moment. But of course, that was precisely what Marshall was doing when he decided to introduce the subject into his official opinion.

He was not quite finished with Congress either. The Court had every right to reject laws “repugnant to the Constitution,” he explained, saying that to ignore his responsibility would be to subject the government to “legislative omnipotence.” He took particular umbrage at the remarks of John Randolph, saying that by weakening the courts the Republicans were no less responsible for curtailing the rights of others than those who enacted the Sedition Acts were.
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What Marshall did not say in
Marbury v. Madison
, though modern interpreters have claimed he did, was that the Court’s decisions were binding on the two other branches of government. He was far more concerned with protecting the boundaries of the judiciary from legislative and executive encroachments than he was in elevating the Supreme Court above the other federal departments. Marshall even conceded important ground to the Republicans: Supreme Court justices agreed to ride the circuit without complaint. And in another decision,
Stuart v. Laird
, the Court agreed that the legislative branch, in certain instances, could restructure the judiciary. As the legal historian Kent Newmeyer has concluded, “Survival was the order of the day … not supremacy.”
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The case of
Marbury v. Madison
was decided in the administration’s favor, but the lecture Chief Justice Marshall gave was more than a contingency. It symbolized his wish to shed a critical light on the Jefferson administration and intimate that it needed to remain under close scrutiny.
The Republican press saw the decision as an example of judicial overreach. Jefferson saw it as an affront, and it stuck in his craw until the end of his days.

Jefferson might well have preferred for Chief Justice Marshall to have compelled Madison to hand over the commission. As president, he would then have persisted in withholding it, rejecting the court’s authority to question his discretion. Or perhaps, he would have agreed to hand over the commission but issued a statement of his own against judicial interference, using his own lawyerly erudition to pick apart the logic Marshall applied in his ruling.
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In any event, the official whose name was associated with the Marbury case, James Madison, was barely harmed by it. And even the snappish Joseph Dennie, who was not beyond diagnosing hard-working diplomat James Monroe’s “mental imbecility,” noted in his
Port Folio:
“It is a justice due to the present secretary of state, Mr. Madison, to observe that the disgrace [of
Marbury v. Madison
] is not entirely imputable to him.”
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James T. Callender presented a much different problem. Back in May 1801, Jefferson had shrugged off Callender’s crass assertion that he could embarrass the president if his demands for office were not met. “He knows nothing of me which I am not willing to declare to the world,” Jefferson confidently told Monroe. Callender made good on his threat in September and October 1802, when he published a series of articles in the Federalist
Richmond Recorder
, ridiculing Jefferson for keeping an “African Venus” as his concubine at Monticello.

Even the friendly travel author John Davis, in the book he dedicated to Jefferson, sexualized female slaves. He described the “liberty” they enjoyed on the Sabbath, and how they dressed up in “garments of gladness, their bracelets, and chains and ear-rings, and deck[ed] themselves bravely to allure the eyes of the white men.” Nor, he went on, did they fail to please, “for as the arrow of a strong archer cannot be turned aside, so the glance of a lively negro girl cannot be resisted.”
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Callender had never seen Sally Hemings; he identified her based on the accounts of unidentified citizens of Albemarle County. As Federalist newspapers lapped up each report, the Republican press reacted: “From four to eight columns of newspaper which ought to be devoted to useful information are filled with low and venomous slander against
Mr. Jefferson.
” As to
the “abandoned libelers,” the
Republican Star
vented: “False, base, wicked, and malicious, indeed they are.” Republicans claimed that they scarcely took the time to think about invented stories aimed at the president’s “private feelings” because they were undoubtedly designed for a gullible Federalist press by the crass Callender, “whose infamy is proverbial.” That did not stop the Federalists from having their fun. One paper went so far as to record the president’s purported monologue on learning what Callender had done: “He broke into a violent passion, and so far forgot the dignity of office as to call him a damn’d rascal, a damn’d eternal miscreant, and other such polite christian phrases.”
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Joseph Dennie printed “original poetry” on the subject, all of it laden with an undisguised repugnance toward dark skin. Even before the scandal broke, he told sexually charged anecdotes. One concerned a “celebrated surgeon” whose apprentice had run off with his wife: “The lady complained that her husband’s
practice
was on the
decline
.” In one of his many efforts to satirize Jefferson, Dennie mocked the Jeffersonian truth that all were created equal—in black-speak. One stanza credited the generic slave “Quashee” with the logic that his natural equality should permit him to cross the color line in choosing a mate:

Once Callender’s reports began circulating, Dennie was amused that the president would lie with a slave after having written in
Notes on Virginia
that blacks emitted “a
strong and disagreeable odor
” (the italics are Dennie’s). Prefacing verse imported from the
Boston Gazette
, he remarked: “If, according to the elegant proverbs of Dr. Franklin, ‘a man may
kiss his cow,
’ surely a
Philosopher
may
kiss his wench
.”

Showing the famously philosophical Jefferson stepping out of character gave the defeated party means of gratification.
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As the much-publicized scandal relates to the partnership of Madison and Jefferson, we have no evidence of how the two treated the matter in their private moments; but it seems unlikely that they would have been uncomfortable discussing it. As a man habituated to the ways of Virginia plantation life who did not marry until he was in his forties; and as one who was on familiar terms with the house servants at Monticello, James Madison obviously knew Sally Hemings and knew the truth. Having been just as deeply involved with Callender as Jefferson, Madison would have confirmed for Jefferson that the best way to deal with the writer was to publicly ignore the charges.

Callender’s intelligence coup went beyond what took place on Jefferson’s property. As good as the tale of “copper colored Sally” was, moralizing editors found in Jefferson’s “more criminal and flagitious” behavior—the attempted seduction of his neighbor John Walker’s wife Betsy, in 1769—even better fodder. The picture of “a certain moral man being forced out of a gentleman’s house with an insulted husband’s foot at his crupper” (a horseman’s slang for rump) was irresistible.
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