1. Bundy, , A History of the Office of Justice of the Peace in the District of Columbia, 5 Records of the Columbia Historical Society 259, 266 (1902)Google Scholar. The commissions were effective until the end of the next session of the United States Senate.

2. Executive Journal of the Senate 388 (March 2, 1801); id. at 400 (March 3, 1801).

3. More frequently spelled More. See id. at 417 (April 5, 1802) (Message from President Jefferson to the Senate regarding amendments to list of nominees submitted January 6, 1802).

4. The same procedure was employed with regard to nominees for justice of the peace for the County of Alexandria. Of nineteen Adams appointees, Jefferson commissioned eleven, adding four of his own choosing. Dennis Ramsay, Robert Townsend Hooe and William Harper, the other plaintiffs in Marbury v. Madison, were among the excluded. Id. at 388 (March 2, 1801); id. at 417 (April 5, 1802).

5. As the result of the presidential election of 1800 became apparent, Federalists pushed a judicial reform measure through Congress. The act created a new set of circuit courts, staffed by their own judges. Among John Adams's last acts as president were appointments of Federalist stalwarts to fill the new judicial positions. Upon taking office, the Jeffersonians made repeal of the 1801 act an early order of business. For a general discussion of the repeal controversy, and its influence on John Marshall's opinion in Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803), see O'Fallon, Marbury, 44 Stan. L. Rev. 219 (1992).

6. 5 U.S. (1 Cranch) 137 (1803).

7. 7 U.S. (3 Cranch) 159 (1805).

8. Richard Ellis does not mention More in his excellent study of the controversy over the judiciary. Ellis, R., The Jeffersonian Crisis: Courts and Politics in the Young Republic (1971). In G. Haskins and H. Johnson, History of the Supreme Court of the United States: Foundations of Power: John Marshall 1801–15, at 620 (1981)Google Scholar, More receives only passing notice in the context of a discussion of the Supreme Court's jurisdiction over cases from the District of Columbia. David Currie's comprehensive study of the first century of constitutional law in the Supreme Court, The Constitution in the Supreme Court: The First Hundred Years: 1789–1888, at 78–79 (1985), provides a brief analysis of the case, focussing on the jurisdictional question.

9. More had been charged with the criminal act of taking unauthorized fees for his services as a justice of the peace. His demurrer was sustained by a divided District Court for the District of Columbia, and the government appealed to the Supreme Court. In the course of argument of the appeal, Chief Justice Marshall suggested a doubt as to the Court's jurisdiction in criminal appeals, and his doubt became the ground of disposition of the case.

10. See generally, O'Fallon, supra note 5.

11. R. Ellis, supra note 8.

12. Emery, , Washington Newspapers, 37–38 Records of the Columbia Historical Society 41, 45 (1937)Google Scholar; Spofford, , Washington in Literature, 6 Records of the Columbia Historical Society 43 (1903)Google Scholar; Bryan, W., 1 A History of the National Capital, 1790–1814, at 282 (1914)Google Scholar. Spofford gives the date of beginning as June 11, while Bryan gives June 15. The masthead followed the style of giving the inclusive dates of its coverage, thus the dates June 11–15 appeared on Vol. 1, No. 1. Apparently the latter date was the day of issue. A nearly complete set of the paper is in the microfilm collection of the Library of Congress.

Bryan's History says “Who Mr. More was there is nothing available upon which to base an answer.” Id. Drawing on advertisements from the Impartial Observer and the Centinel of Liberty, he speculates that More began as a merchant and returned to that calling. Id. at 282, 303 n.l. He also notes that a Benjamin More signed a notice to members as secretary of the Federal Lodge of Masons, and risks the remark that “The identity of the name with that of editor of the Washington Gazette at once suggests itself.” Id. at 339 n.3. Bryan gives no indication of having been aware of the Benjamin More who served as justice of the peace. I am proceeding on the assumption that the editor of the Gazette and the justice of the peace are one and the same—that not just their names are identical. It seems a reasonable assumption, given the smallness of Washington at the time, and the likelihood that two locally prominent men of the same name would have employed some device to distinguish themselves.

13. On the lottery, see W. Bryan, supra note 12, at 205–8, 228.

14. Washington Gazette, August 31, 1796.

15. Id., August 13, 1796.

16. Id., August 20, 1796.

17. Id., October 15, 1796.

18. Id., January 11, 1797.

19. Id., September 16, 1797.

20. Id., September 30, 1797. See Slauson, , Curious Customs of the Past as Gleaned from Early Issues of the Newspapers in the District of Columbia, 9 Records of the Columbia Historical Society 88, 113 (1906).Google Scholar

21. Brent was one of Adams's midnight appointees, who was re(dundantly?) appointed by Jefferson.

22. Clark, , The Mayoralty Robert Brent, 33–34 Records of the Columbia Historical Society 267 (1932).Google Scholar

23. On the same day, Congress passed the bill that would be the source of More's subsequent difficulties, repealing the authorization of justices of the peace to collect fees. 11 ANNALS OF CONGRESS 1294–96, May 3, 1802.

24. Clark, supra note 22, at 268; Report of the Committee on the Early City Records, 5 Records of the Columbia Historical Society 26, 30 (1902).

25. Clark, supra note 22, at 291.

26. More participated in the argument of his case. National Intelligencer, August 5, 1803.

27. Executive Journal of the Senate, p. 243 (April 27, 1802). More's permanent appointment was attended by some confusion. Jefferson's nominating message of January 6, 1802, contained the name of John Laird, an Adams appointee who had not received an interim appointment from Jefferson, and did not include More. Id. at 404 (Jan. 6, 1802). The Senate delayed action on the appointments until April, during which time it was very much involved with Jefferson's legislative agenda, and particularly the repeal of the 1801 Judiciary Act. The fact that action was postponed on the appointments for justice of the' peace alone of all the nominations that Jefferson had made suggests that there were political considerations involved. Id. at 405 (Jan. 26, 1802). On April 5, Jefferson submitted an amendment to his nominations. The amendment nominated replacements for three from the original list who had resigned or declined to qualify (none of the replacements had been among the Adams appointees) and noted that a mistake had been made on the January list in substituting Laird for More, which error the president begged leave to correct. Id. at 417 (April 5, 1802).

28. Five members of the inquest were also justices of the peace – Daniel Carrol, Daniel Reintzell, Joseph Sprigg Belt, Thomas Corcoran, and Anthony Reintzell. Another, Thomas Beali, was an Adams appointee who did not receive Jefferson's favor. Members of the inquest are named in the Clerk's transcript of record for United States v. More, National Archives, File No. 172.

29. He published a series of five articles in the Washington Federalist, signed “A Friend of the Constitution” in which he articulated many of the positions that would be echoed by Federalist voices in the congressional debate over repeal. See Kerber, L., Federalists in Dissent: Imagery and Ideology in Jeffersonian America 142–43, (1980).Google Scholar

30. 7 U.S. (3 Cranch) 159, 160–66 n(b) (1805).

31. “The Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behaviour, and shall at stated Times, receive for their Services, a Compensation, which shall not be diminished during their Continuance in Office.” United States Constitution, Article III, Section 1.

32. More at 168. This characterization of Mason's argument is drawn from Cranch's report of the arguments in the Supreme Court, but Cranch's circuit court opinion suggests that the same argument was made there.

33. Id.

34. See O'Fallon, supra note 5.

35. Id. at 160.

36. Id. at 162.

37. Id. at 168.

38. More at 162.

39. Organic Act of the District of Columbia, February 27, 1801.

40. In argument before the Supreme Court, More's counsel cited Marbury v. Madison for the proposition that a justice of the peace does not hold his office at the will of the president. More at 166. In light of the general principle that the president has the right to remove his appointees, except for judicial appointees whose tenure is established by the Constitution, it followed that the justices enjoyed good behavior tenure. For a more detailed discussion of this issue, see O'Fallon, supra note 5, at 245–46.

Mason, for the United States, stated his understanding that Marbury “decided only that the justices held during good behaviour, for five years, under the law; and not, generally, during good behaviour, under the constitution.” More at 168.

41. Afore at 162.

42. The National Intelligencer, reporting on August 5, 1803, gave a somewhat different account. It said: “The court gave judgment in favor of the defendant. Cranch and Marshall justices were of opinion, against the opinion of Kilty chief judge—That a justice of the peace for Washington county in the district of Columbia is a judicial officer of the United States under the constitution—and that therefore the act of Congress of May 23, 1803, chap 52 so far as the same relates to the abolition of the fees of justices of the peace is unconstitutional and void.” It is possible that the reporter simply missed the qualification of the holding to justices appointed prior to the act. It is also possible that Cranch's written statement, probably prepared for inclusion in the reports, added refinements to the oral opinion delivered in court.

Kilty, dissenting, emphasized the special character of congressional authority over the district. He conceded that constitutional prohibitions concerning bills of attainder and ex post facto laws, among others, applied to Congress when legislating for the district. He insisted that the special character of the district made application of the Article III protections inappropriate, but he did not explain why.

43. Washington Gazette, vol. 2, no. 35, March 24, 1798.

44. “An Act to amend the Judicial System of the United States” enacted April 29, 1802. 11 Annals of Congress 1332–42. This had the effect of delaying the Court's hearing in Marbury v. Madison for eight months, though there is no evidence that circumstance motivated the action. Indeed, for the same reasons that it is generally supposed that John Marshall avoided an order implementing his judgment that the withholding of Marbury's commission was wrong, a Republican Congress might have welcomed an early confrontation on the issue of judicial intervention in executive affairs. It would have added fuel to the smoldering anger over the judiciary's all-too-willing execution of the sedition law.

45. Id. at 1228–29 (Bayard), 1229–30 (Griswold), 1234–36 (Bayard).

46. “Are gentlemen afraid of the judges? Are they afraid that they will pronounce the repealing law void? If gentlemen think they have no such power, they will conclude that any interposition of the judges will be rejected by the good sense of the people; and if they have such a power, are they prepared, on a mere political pretence, to deprive them of it? Sir, as far as regards myself, I have not the smallest knowledge that any such interposition will take place. It is not probable that, at present, any one judge knows the opinion of another. My own opinion is, that it is scarcely probable they will interpose. I do not see how that question can come before them. It is ten to one that they will not act upon it.” Id. at 1228–29 (Bayard).

47. Beveridge, A., 3 The Life of John Marshall 95 (1929)Google Scholar. Cf. 2 G. Haskins and H. Johnson, supra note 8, at 184 (Congress postponed the next session of the Supreme Court for over a year, apparently out of fear that the Court would declare the repealing act unconstitutional.)

The Court might have employed the precedent of the Invalid Pension Cases to “declare” the unconstitutionality of the repeal act not through a decision in a case, but by refusing to take up the circuit duties reassigned to the Justices by the repeal. There was an obvious embarrassment in the precedent, however, as any declaration that it was unconstitutional because of the assignment would carry with it an admission of the Justices” acquiescence in an unconstitutional process for the period from 1789 to 1801. That consideration appears to have figured strongly in the Justices' determination to resume their circuit duties, even though Justice Chase suggested an argument that would have avoided the embarrassment, and provided a basis for reaching the central issue of the repeal act's constitutionality. He insisted that the offices of circuit judge were full, and that by holding the circuit courts, the Justices would be involved in the wrongful deprivation of the circuit judges' constitutional rights. Id. at 169–77.

48. Justice Chase to Chief Justice Marshall, April 24, 1802. Original in the New York Historical Society, reprinted in G. Haskins and H. Johnson, supra note 8, at 174–75.

49. 1 American State Papers: Miscellaneous 340 (Jan. 28, 1803), quoted in G. Haskins and H. Johnson, supra note 8, at 179.

50. 12 Annals of Congress 30–32.

51. Id. at 51–52. See also L. Kerber, supra note 29, at 167–68.

52. See G. Haskins and H. Johnson, supra note 8, at 180.

53. It is possible that John Laird was the same person whose name appeared by mistake for Benjamin More's, in Jefferson's nominations of justices of the peace for Washington county. See note 27 supra.

54. Stuart v. Laird 1 U.S. (3 Cranch) 298 (1803).

55. See R. Ellis, supra note 8, at 60–68 (1971).

56. “I think the modern doctrine of impeachment should yield to an appellate jurisdiction in the legislature. A reversal of those legal opinions deemed unsound by the legislature would certainly better comport with the mildness of our character than a removal of the Judge who has rendered them unknowing of his fault.” J. Marshall to S. Chase, Jan. 23, 1804. See 3 A. Beveridge, supra note 47, at 176–77; G. Haskins and H. Johnson, supra note 8, at 232.

57. This does not deny the existence of extremists within the Jeffersonian camp, including John Randolph, who led the attack on Chase.

58. In this instance, the advocate for the expansive reading of the Court's jurisdiction was the Jeffersonian U.S. attorney.