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William Marbury dreamed of going down in history as the man who brought an imperious president, Thomas Jefferson, to heel. But, instead, he is remembered as the loser in the most important case in constitutional law � Marbury v. Madison � the lawsuit over a job as justice of the peace that established the principle that the Supreme Court is the final arbiter of the Constitution and can invalidate acts of Congress as unconstitutional. Such are dreams. Yet contrary to the impression you might get from reading the Supreme Court opinion, Marbury wasn’t some political hack who sued just to get a low-level government job. He was a wealthy, self-made man, a stylish and well-connected Georgetowner. He was one of many who landed on the wrong side of a political fight � but he had the money to do something about it. The case name is not Marbury’s only legacy. He left land, slaves, a bank, descendants, and a portrait that has ended up in the justices’ private dining room at the Supreme Court. Thus, here is a different look at the man, the lawsuit, and the memorabilia. The sterile facts of the seminal constitutional case are these. In March 1801, outgoing President John Adams signed commissions appointing Marbury and others justices of the peace for Washington, D.C. However, the papers were not delivered before the new president, Jefferson, took office. Because Jefferson’s secretary of state, James Madison, refused to deliver some of the commissions, Marbury and others went to court. Congress had given the Supreme Court original jurisdiction in such matters, and so Marbury filed there asking for a writ of mandamus that would order Madison to deliver the commission. Chief Justice John Marshall ruled for a unanimous Court that although Marbury was legally entitled to the commission, the law giving the Court original jurisdiction was unconstitutional. In the politically charged case, Marshall’s decision was Solomonlike: Marbury was right, but he had come to the wrong court. To give perspective to the case, professor David A. Forte of the Cleveland-Marshall College of Law exhaustively researched Marbury’s early life and published the article “Marbury’s Travail: Federalist Politics and William Marbury’s Appointment as Justice of the Peace” in the Catholic University Law Review in 1996. Many of the following facts are taken from Forte’s article about this man whose lawsuit gave Chief Justice Marshall the chance to bootstrap the Supreme Court into being a coequal third branch of government. THE SELF-MADE MAN William Marbury was born in 1762 in Prince George’s County, Md. He was one of 11 children of a tobacco farmer and his wife. Although Marbury’s father had inherited a sizable parcel of land, the harsh economic sanctions imposed on the colonies by England and other factors took a heavy toll on the family’s finances. Little wonder that the Marburys were for independence, that three of William’s brothers joined the American Revolution, and that William had a burning ambition to make money. In 1781, at age 19, Marbury moved to Annapolis, Md., where he embarked on a career in finance. His first job there was as a clerk for the state auditor. Later, he worked as a tax collector in Maryland’s Charles and Anne Arundel counties. By 1796, he had returned to Annapolis in the position of agent for the state, with responsibility for Maryland’s finances. Despite his quest for riches, Marbury was considered honest. This is not to say that Marbury’s business ethics would pass muster today. He made his fortune by charging commissions on every financial transaction he handled for the state. Marbury’s date with legal history had its origins in Georgetown where some wealthy men, who also had a burning ambition for money, were thinking about how they might make more. Chief among them were Benjamin Stoddert and Uriah Forrest. Founded in 1750, the small port city of Georgetown had been growing modestly, when, in 1790, Congress voted to locate the nation’s capital nearby. President George Washington was to pick the exact spot. Stoddert and Forrest realized property values around the new capital would skyrocket. And so, in 1791, Stoddert hosted a dinner for the president and 19 landowners at Forrest’s fashionable home in Georgetown. (Washington knew both men well. Stoddert, a wounded veteran, was Washington’s friend and business associate. Forrest, who lost a leg in the war, had been Washington’s aide de camp.) Over dinner, the 19 men agreed to a formula for compensating them for the land on which the new capital would sit. The financial implications of the deal were not lost on Stoddert, Forrest, and their friends, several of whom were close to Marbury. In 1793, they incorporated the Columbia Bank of Georgetown. This gave them a pot of money from which they might borrow in order to participate in the expected land boom. But, in 1796, the bank faced a threat from the Maryland Legislature in Annapolis, and Marbury came to the rescue. His astute handling of Maryland’s finances was producing budget surpluses. Bankers in Baltimore wanted legislation to direct the state to invest $180,000 of the surplus in their bank. The Georegtowners recognized that the added capitalization of the Baltimore bank would boost its prestige over their fledging Columbia Bank. Marbury took the position that the state’s surplus should be invested prudently in federal instruments and exerted his increasingly respected political influence to defeat the measure. While he was not trying to protect the Georgetowners, his actions had that effect. Marbury would soon help the Georgetowners more purposefully. In the same year, 1796, Adams had narrowly defeated Jefferson for the right to succeed Washington as president. Adams named Stoddert to the important position of secretary of the navy. Since the early days of the Revolution, Adams had dreamed of surrounding the country with the “wooden walls” of a fleet of warships. As president, he finally had his chance to turn his dream into reality. Stoddert proved up to the task. In four years, he turned a three-ship navy into a 39-ship one. Nonetheless, the burdens of government service worsened Stoddert’s already overextended financial position. He had invested in land on which the future capital would be built; yet the government was slow to move in. As explained in the 1959 book The Development of Banking in the District of Columbia, by David Cole, the original 19 landowners had donated some of their lands to the federal government but expected to make money by selling the rest to the public:
The policies of the Bank of Columbia were dominated by men with similar feelings, and its funds were used to further speculation. Unfortunately for the landowners as well as the bank, the development within the District was slow and irregular, creating only limited demand for land. . . . The first building boom in the District of Columbia came in 1794. However, the speculative ventures crashed in June 1797, causing three of the over-extended builders, including the famous Robert Morris, to be confined to debtors’ prison.

Thus, Stoddert needed help and turned to the now-wealthy Marbury. In March 1797, Marbury loaned Stoddert $9,000, secured by a mortgage on 17,345 acres of land Stoddert owned in western Maryland. (Stoddert’s finances would worsen, and Marbury would eventually take over the lands.) A year later, presumably with Stoddert’s sponsorship, Marbury was elected to the board of directors of the Columbia Bank, and, a year after that, appointed agent of the Navy Yard in Washington. Marbury moved from Annapolis to Washington in 1799. He purchased the Georgetown home of Uriah Forrest. It was the same house where the deal on the District of Columbia had been reached. Perhaps Marbury dreamed of following in Forrest’s footsteps in other ways as well. Forrest had been mayor of Georgetown and justice of the peace for Montgomery County, Md. In any event, Marbury began to climb the Georgetown social ladder, soon becoming manager of the “dance assemblies.” At the Navy Yard, Marbury continued his penchant for honesty. After discovering that a contractor was billing the Navy a dollar a day for laborers to whom he was paying 66 cents, Marbury ordered the contractor to refund the difference. He also claimed that the same contractor had iron belonging to the Navy put into his own house and had asked a blacksmith to install it for free in exchange for getting the contract to do all the blacksmithing at the Navy Yard. Marbury wasn’t especially political except for his close ties to Stoddert and Forrest and his appointment to the Navy Yard. Yet, in the bitter 1800 presidential election rematch between Adams and Jefferson, having the prominent Stoddert and Forrest as friends clearly branded Marbury an Adams man. Marbury was involved in one small political incident. Adams’ Federalist Party and Jefferson’s Republican Party were looking for ways to game the electoral vote in 1800. Among the games they played was to change the way certain states chose presidential electors. In Maryland, the law required presidential electors to be chosen by district, but the Federalists thought Adams would get all the votes if the law were changed so that the presidential electors were chosen for the state at large. To this end, Uriah Forrest threw his weight behind a slate of four Federalist candidates for the state legislature in Montgomery County who were committed to changing the law. He met with a less reliable fifth person, whom he asked to withdraw from the race. Marbury attended the meeting. Unfortunately for Marbury, the candidate told the press that Forrest and Marbury had offered him a position in the second term of an Adams administration if he withdrew. THE LITIGATION Jefferson’s victory in the presidential election of 1800 dashed whatever national political ambitions Marbury, Stoddert, and Forrest had. It also set the stage for Marbury’s showdown with Madison � really Jefferson � in the Supreme Court. Jefferson’s Republican Party had gained control of Congress in the same election. Yet before it adjourned, the lame-duck Federalist Congress passed laws creating additional federal judgeships and justice of the peace positions in the newly created Washington and Alexandria counties of the District of Columbia. Adams wanted to fill these jobs before his term was over and directed Secretary of State John Marshall to find nominees. For Washington County, there were 23 justice of the peace positions for which Marshall consulted Secretary of the Navy Stoddert. The result was a list names that included Stoddert, Marbury, Uriah Forrest, Forrest’s nephew Richard, and three others from the board of the Columbia Bank of Georgetown. Under the new law, the justices of the peace would be in many respects the government of Washington County. They would have civil and criminal powers. As a group, they were also to have the power to tax and spend. Thus, Stoddert, Forrest, Marbury, and their cronies would hold at least seven of the 23 positions and could expect significant influence in governing the new capital city � and could perhaps protect their real estate schemes. Plus, there was the prestige of the jobs. What happened to the commissions after they were signed by the secretary of state was not established at trial. Years later, Jefferson wrote that when he assumed the presidency on March 4, 1801, he learned the commissions were undelivered and ordered them withheld. One witness, James Marshall, testified that he went to the secretary of state’s office and picked up commissions for Alexandria County only. He was worried that the citizens of Alexandria might turn riotous without justices of the peace. He said he delivered some commissions and returned others without delivering them. Jefferson was probably irritated more by the Federalists’ attempt to pack the federal courts than he was about the justices of the peace. Still, he worried about the political fallout from his actions and proffered the excuse that Adams had made too many appointments and was trying to reward Federalists with lucrative government jobs. Of course, as James Marshall’s concern about riotous conditions in Alexandria suggests, peace in the capital couldn’t be maintained for long without justices of the peace. So, Jefferson hurriedly came up with his own list of 15 names each for Washington and Alexandria counties. Twelve of the 15 for Washington County had been on Adams’ list. Thus, Jefferson’s gambit proved a petty affair. He only blocked a handful of Federalists from gaining office. Jefferson made recess appointments of the new justices of the peace on March 16, 1801. Marbury waited though until December to file his request for mandamus with the Supreme Court. He didn’t need the salary, but the Federalists were still mad about losing the election. Marbury’s motives seemed to be power, politics, principle, pelf, and, perhaps, personal pique. The legal and judicial ethics of those involved in the case raise as many eyebrows today as the old business ethics do. Marbury was represented by Charles Lee. He had been attorney general under Adams. John Marshall was the chief justice, but he had been the secretary of state who signed Marbury’s commission. Marshall himself had been sworn in as chief justice on Feb. 4, with less than a month left in Adams’ term, and he continued to serve as secretary of state until Jefferson took office. James Marshall, the witness who testified about picking up the commissions for Alexandria, was the chief justice’s brother. As the drama over the various appointments unfolded, the chief justice, who probably should have testified himself, wrote to his brother: “I fear some blame may be imputed to me.” Presaging his later ruling in the case, Marshall continued: “I did not send out the commissions because I apprehended such as were for a fixed time [e.g., Marbury's] to be completed when signd & seald.” And then there was Samuel Chase. He was an associate justice on the Court that heard the case. He had been a signer of the Declaration of Independence and was later part of the Baltimore banking cabal. Chase had a less-than-sterling reputation, and Marbury had battled him over a number of matters, including the legislation to invest the state’s money in a Baltimore bank. In any event, in 1803 Marshall seized the opportunity to announce what he had long believed to be a fundamental, but unstated, principle of the Constitution: that the Supreme Court was supreme on constitutional questions.

Seeing Marbury
Although the Marbury and Madison portraits at the Supreme Court are not on public display, other parts of the Marbury story are. Gilbert Stuart’s portrait of James Madison is included in an exhibit of the painter’s work at the National Gallery of Art, March 27 to July 31, 2005. Charles Willson Peale’s “The Stoddert Children,” with the Forrest-Marbury lot and the 1788 Georgetown waterfront in the background, is owned by the National Society of Colonial Dames and on display at Dumbarton House at 2715 Q St., N.W., in Georgetown. The Forrest-Marbury House is at 3350 M St., N.W., in Georgetown. The ballroom is used by the Embassy of Ukraine for official functions, but not otherwise open to the public. Marbury’s farm, Blue Plains, is now owned by the D.C. Water and Sewer Authority and may be visited via virtual tour at www.dcwasa.com/about/ tour_flash.cfm. Good Hope Road in Anacostia owes its name to Marbury’s Good Hope Farm.

MARBURY MEMORABILIA William Marbury lived 32 more years after his Supreme Court loss. But Marbury v. Madison isn’t the only mark that he left behind. He left land. There is the Forrest-Marbury house in Georgetown on M Street near the Key Bridge. It is deceptively plain on the outside and yet large and stately inside with an elegant ballroom. Although the house was ill-used for almost a century after Marbury’s descendants sold it, Ukraine purchased it in 1992 for its embassy and restored the house to look as it did when Marbury lived there, even to the piano in the sitting room just off the ballroom. Marbury owned land to the southeast of the city too. Believing the District of Columbia would grow in that direction, Marbury paid $20,000 in 1802 for the land, including a parcel once spelled Bewplayne (or Beau Plain). However, Marbury wasn’t prescient. The city didn’t grow in the direction he expected. Instead, it sends its sewage to the place whose name was corrupted to Blue Plains. If you stand in the terminal of Reagan National Airport and look across the Potomac River toward Maryland, Marbury’s holdings extended almost as far as your eye can see from the Navy Yard Bridge on the left to near the Wilson Bridge on the right. Marbury owned a substantial block of stock in the Navy Yard Bridge Co., which ran a toll bridge over the Anacostia River. He also owned stock in the Washington Turnpike, a toll road from Georgetown to Rockville, Md. In addition, Marbury left slaves. Tucked away at the National Archives in a gray cardboard box filled with old probate court records is an inventory of his estate at his death in 1835. The inventory shows Marbury had six slaves at his house in Georgetown. There were 31 more at Blue Plains and other properties. All told, Marbury owned 37 slaves with an appraised value of $10,120 (equal to perhaps $2 million in today’s dollars). One slave, a man named Hamilton, was freed in Marbury’s will for reasons of faithful service, but this beneficent gesture was tempered by instructions to the executor to wait seven years. Marbury left a bank. While still a director at the troubled Columbia Bank, he organized the competing Farmers and Mechanics Bank of Georgetown in 1814. The Columbia Bank failed in the 1820s, but Farmers and Mechanics Bank continued in business until the 20th century when it merged with Riggs Bank. And Marbury left portraits. He married into the family of the famous portraitist Charles Willson Peale (another friend of George Washington and veteran of the Revolution). Marbury’s wife, Anne Odle Brewer, was the niece of Peale’s first wife. Peale visited Georgetown on several occasions, leaving both pictorial and written impressions of Marbury’s life. In 1788, on commission from Benjamin Stoddert, Peale painted “The Stoddert Children.” The painting shows the children on the lawn of Stoddert’s Pretty Prospect. In the background is the lot where the Forrest-Marbury house would be built. Thirty years later, Peale was in Georgetown again, visiting Marbury. Peale wrote in his diary about the ballroom in Marbury’s house and his lifestyle and wealth:

We went to a Tea party at Coll. Marbury where there was about 3 Dozs. Ladies and not quite so many gentlemen � they danced Cotillion and country dances by the music of a Piana, which was distinctly heard as the company danced on Carpets. The intertainment was sumptous & Ellegant. Coll. Marbury is wealthy and can make such entertainments with perhaps (with) less expence than many others, having an abundance of fruit from his farms also Eggs, and his notable wife has the cakes made at home, however with the best economy such entertainments are very expensive, and the example too often followed by those whose circumstances are not in condition to bear the cost. With weak minds, fashion has too fascinating charms.

Peale did not mention Marbury’s slaves, although Peale strongly opposed slavery. The slaves must have been there, baking the cakes and attending to the guests “with the best economy.” Peale himself didn’t paint Marbury. However, his brother James Peale did. He rendered and signed a miniature of Marbury in 1798. It is now at the Maryland Historical Society in Baltimore. A second portrait of Marbury is traditionally attributed to Charles Willson Peale’s son, Rembrandt. The unsigned and undated painting is believed to have been painted between 1820 and 1830. Marbury is noticeably older than in James Peale’s miniature. THE PAINTING The painting attributed to Rembrandt Peale is in the Collection of the Supreme Court of the United States and provides an epilog to Marbury’s story. It was donated to the Supreme Court in 1979 by Florence Marshall and her husband Richard C. Marshall III. She was a descendant of William Marbury; her husband descended from John Marshall. Then-Chief Justice Warren Burger decided the painting should hang in the justices’ private dining room, which had been renovated and named in honor of John Marshall. Burger also located a painting of Madison attributed to James Frothingham that was owned by the University of Michigan Museum of Art. (Frothingham was a pupil of Gilbert Stuart, and the painting is a copy of Stuart’s portrait of Madison.) Burger persuaded the museum to lend its painting to the Court. As a result, Marbury and Madison now hang side by side in the John Marshall dining room. Chief Justice Burger seemed to have ambivalent feelings about Marbury though. He accorded Marbury the honor of having his portrait displayed in the justice’s dining room, but in his 1995 book, It Is So Ordered, Burger was less charitable. He called Marbury a “ward-level political figure.” There is also ambivalence about whether the unsigned Marbury portrait at the Court was painted by Rembrandt Peale. When asked recently in a telephone interview if he believed the painting was by Rembrandt Peale, art historian David Meschutt, who specializes in presidential and political portraits, had reservations, saying, “It does not show as skilled a hand.” Art historian Carol Soltis, a leading expert on Rembrandt Peale, shares Meschutt’s uncertainty. In a telephone interview, she says, “The condition [of the painting] obscures the kind of details that one looks for to confirm the hand of a given artist. I would give the portrait the designation, ‘attributed to Rembrandt Peale.’ ” Perhaps it has been retouched; or perhaps it is a copy. The Supreme Court collection judiciously records the painting as “ attributed to Rembrandt Peale.” Thus today, some 200 years after they faced each other in a rare trial before the Supreme Court, William Marbury and James Madison gaze at the justices and their guests as they dine. Marbury might be pleased. However, the portraits also seem to be not-so-subtle reminders to the justices of how they got their power. D.C. lawyer James H. Johnston is a frequent contributor to Legal Times. He may be contacted at [email protected].

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