We live in an era where the confirmation process has become toxically partisan. There are some who allege that Justice Kavanaugh committed perjury. So, not surprisingly, there are some who yearn for the ‘good old days.’ Were there really good old days? Professor Anthony Gaugan posted this recently on the Faculty Lounge.
On CSPAN’s Q & A program Sunday evening, Brian Lamb interviewed Joel Richard Paul about his new book, Without Precedent: Chief Justice John Marshall and His Times. The whole interview is quite good but one part of it especially caught my attention. While researching his book, Professor Paul found a letter that suggests Chief Justice John Marshall may have suborned perjury in the landmark case of Marbury v. Madison.
The basic facts of Marbury are well-known. On March 3, 1801—the last day of the Adams Administration—the lame duck Federalist Senate confirmed 42 Federalist nominees for justices of the peace. The confirmations were part of the “Midnight Appointments” whereby the Federalists attempted to stack the federal judiciary before the Jeffersonian Republicans took power following the election of 1800.
During the final hours of the Adams presidency, John Marshall simultaneously served as chief justice and secretary of state. In the latter capacity, he signed with an official seal each of the commissions for the new justices of the peace. But amid the chaotic rush to get the commissions out, some inadvertently remained behind on a desk in the State Department. The new Secretary of State, James Madison, refused to deliver the commissions when he took office the next day. Nine months later, four of the would-be justices of the peace—including a wealthy Federalist named William Marbury—filed a writ of mandamus asking the Supreme Court to order Madison to deliver the commissions.
The case of Marbury v. Madison reached the Supreme Court in February 1803, which is where Professor Paul’s discovery comes in.
The key witness in the Marbury case was James Marshall, brother of the chief justice. In an affidavit submitted to the Court, James explained that he agreed to deliver the commissions on behalf of the State Department, but the package containing the commissions was too large to carry. James decided to leave behind some of the commissions, apparently assuming someone else would deliver them, but no one did.
James Marshall’s affidavit was absolutely crucial to William Marbury’s case because without it Marbury would have lacked evidence of his undelivered commission. In a display of partisan defiance, the Jefferson Administration and the Republican Congress refused to provide any evidence regarding the Adams commissions. John Marshall, of course, had personal knowledge of the commissions, but he obviously could not serve as a witness in a case he presided over as judge. The upshot was Marbury’s whole case rested on James Marshall’s memory of events.
But according to Professor Paul, James Marshall’s testimony “was most likely a complete fabrication. Historians have long accepted James’s story, but it made no sense.” Paul’s revisionist account rests on a letter he discovered in the Marshall papers. In mid-March 1801, two weeks after Jefferson’s inauguration, John Marshall wrote a letter to his brother in which the chief justice expressed his “infinite chagrin” that the Jefferson Administration had refused to deliver the remaining commissions. The chief justice explained that he expected James Madison to deliver them since they had already been signed and sealed. In the letter, John Marshall then went on to take personal responsibility for the undelivered commissions:
“I should however have sent out the commissions which had been signed & sealed 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.”
The crucial point is that John Marshall blamed himself, not his brother, for the non-delivery of the commissions. The letter could thus be read as an indication that James did not have any role in delivering the commissions. As Professor Paul explains, “If James was responsible for delivering the commissions, then Marshall’s explanation to James would have been superfluous. ”
But when Marbury later brought suit against Madison, James Marshall signed an affidavit asserting that it was his responsibility to deliver the commissions, and that he personally saw the undelivered commissions (thus establishing their existence). In the words of Professor Paul, “It is apparent that James Marshall perjured himself in the Supreme Court and that the chief justice not only knew this but probably asked him to lie.” Paul argues that John Marshall persuaded James to take responsibility for the undelivered commissions in order to maintain the viability of Marbury’s case.
Ironically, Marshall ultimately ruled against Marbury. In one of the shrewdest opinions of his career, the chief justice (writing for a unanimous Court) held that Article III of the Constitution did not grant the Supreme Court original jurisdiction to issue writs of mandamus, and thus Section 13 of the Judiciary Act of 1789—which purported to grant the Court such jurisdiction—violated the Constitution.
As Paul explains, “Marshall invented a conflict between the Constitution and the Judiciary Act in order to create the opportunity to assert the power of judicial review,” all while avoiding a direct political confrontation with the Jefferson Administration. “Most likely,” Paul conjectures, “John and James Marshall sat down with their friend Charles Lee [Marbury’s attorney]—perhaps over a glass of Marshall’s favorite Madeira—and constructed this case from start to finish.”
It is a very interesting argument. The relevant portions of the book are on pages 243-60 (especially 252-4) and the CSPAN interview with Joel Richard Paul is available here.
Paul’s only apparent evidence for his perjury charge is the letter John wrote to James in March, 1801, right after Jefferson took office:
“I did not send out the commissions because I apprehended such as were for a fixd time to be completed when signd & seald & such as depended on the will of the President might at any time be revokd. To withhold the commission of the Marshal is equal to displacing him which the President I presume has the power to do, but to withhold the commission of the Justices is an act of which I entertaind no suspicion. I shoud however have sent out the commissions which had been signd & seald but for the extreme hurry of the time & the absence of Mr. Wagner who had been calld on by the President to act as his private Secretary.”
Paul interprets this letter as saying that Marshall blamed himself for not delivering the commissions; yet if James’ affidavit were true, John would not have blamed himself, he would have blamed James. Ergo, James must have fabricated the affidavit describing James’ attempt to deliver the commissions.
I don’t find any aspect of Paul’s allegation persuasive, starting with the idea that James’ affidavit was essential because without it no one but John Marshall could have testified that the commissions existed. The reporter’s notes of the Supreme Court proceedings summarize several witnesses who testified that the commissions were signed and sealed. One said that he “had seen commissions of justices of the peace of the district of Columbia, signed by Mr. Adams, and sealed with the seal of the United States.” Another (Wagner) said he hadn’t seen Marbury’s commission, but had been told it was there. Another witness (Brent) said that he “was almost certain, that Mr. Marbury’s and Col. Hooe’s commissions were made out.” It seems clear to me that this would have been enough evidence for court to conclude that the commissions were there. James Marshall’s affidavit was just icing on the cake.
The letter from John to James, which Paul thinks is the clearest evidence of the Marshall conspiracy, says nothing to me. Marshall acknowledges that it was his responsibility to deliver the commissions, he neglected it, but thought it was unnecessary. All true: delivery was part of his responsibility, he failed to do it, and, as the Marbury opinion says, delivery was unnecessary — the appointments were complete once signed and sealed. How is this inconsistent with James trying to deliver them? Would John have blamed James for failing to sweep up John’s mess, especially when actual delivery was not required in order for the appointments to be effective?
Paul doesn’t attack anything in James’ affidavit. He doesn’t argue that there was no “riotous” behavior in Alexandria, or that James did not go to the State Department to get the commissions, or that he didn’t sign a receipt for them. All of these things could have been contradicted. People living in Alexandria could contradict the idea of riotous behavior. Presumably, State Department employees were there when James picked up the commissions. If there were no signed receipt, Madison could say so. Thomas Jefferson and John Marshall were antagonists, it is hard to imagine Jefferson passing up an opportunity to expose a Marshall lie. Yet, Jefferson’s new Attorney General, who provided evidence in the case, didn’t dispute any of these facts.
If James’ affidavit really were fabricated, would James have loaded it up with facts that so many people could contradict? Why add a false story about riots in Alexandria? Why tell a tale of taking the affidavits and then returning some? Why say you signed a receipt? All of these things could be verified or disproved. Paul is suggesting, in effect, that James and John Marshall knew these things were lies and put them in an affidavit anyway. In order to conclude that the affidavit was false, you have to believe that the Marshalls were not only dishonest, they were stupid.
Virtually all of John Marshall’s biographers, Paul aside, agree on Marshall’s honesty; it is hard to think of anyone with a higher reputation for personal integrity. I may be over-sensitive to Paul’s allegation due to my family connection (James was my great-great-great grandfather). But I keep coming back to the fact that it is no small thing to call anyone a liar. I think Paul either owes the Marshalls an apology, or his readers a far more persuasive argument.