MS (DNA: RG 59, LAR); undated; entirely in TJ’s hand; TJ wrote on verso: “Samuel Hanson of Samuel Notary public”; endorsed by TJ: “Columbia. Justices.”

Commissions Given Out: an undated memorandum that Jacob Wagner sent the president, probably shortly after TJ took office, includes the names of three justices of the peace in Washington County and six in Alexandria County whose commissions were not in the State Department office and had presumably been delivered. They were for Thornton, Peter, and Dorsey in Washington County and Alexander, Gilpin, Thompson, Herbert, Powell, and Hoffman in Alexandria, all of whom appear in the same order in the first column above. TJ included them all in his final list of justices, perhaps because of his belief that commissions became valid upon delivery. Wagner’s memorandum also included a column for “Commissions not made out,” with the names of five Adams appointees who do not appear on TJ’s lists above and were not considered for appointment. They are Richard Forrest, Lewis Deblois, Dennis Ramsay, Jonathan Swift, and Cleon Moore. Others named by Wagner in that column whom TJ did consider were Republicans Cornelius Coningham, George Taylor, and Abraham Faw. TJ added their names to the tables above and they were appointed (see Document II; Vol. 33:173n; 180, 235–6, 452n; Matthew Lyon to TJ, 5 Mch. 1807, and enclosures, in DNA: RG 59, LAR, 10:0702–6). Ramsay sought his commission from the State Department and was one of the plaintiffs in the case of Marbury vs. Madison. Daniel Brent, a State Department clerk, testified in 1803 that “he made out the list of names by which the clerk who filled up the commissions was guided” and that he believed Ramsay’s name was omitted by mistake (Cranch, Reports of Cases, 1:143).

Commissions Not Given: Wagner’s list of commissions not in the office and presumably delivered is indicative of the confusion surrounding the commissions for Adams’s appointments for the justices of the peace. Daniel Brent later testified that he believed none of them was “ever sent out, or delivered to the persons for whom they were intended; he did not know what became of them.” James M. Marshall, brother of John Marshall, recalled that on his way home on 4 Mch. he stopped in the office of the secretary of state for the commissions for Alexandria County. He thought as many as 12 commissions were delivered to him, for which he gave a receipt. Finding that “he could not conveniently carry the whole, he returned several of them, and struck a pen through the names of those, in the receipt, which he returned.” He believed he had returned those for William Harper and Robert T. Hooe. Many years later TJ recalled: “among the midnight appointments of mr Adams were commissions to some federal justices of the peace for Alexandria. these were signed and sealed by him, but not delivered. I found them on the table of the Department of State, on my entrance into office, and I forbade their delivery” (Cranch, Reports of Cases, 1:143, 146; TJ to William Johnson, 12 June 1823).

A comparison of the tables above with Wagner’s memorandum suggests that TJ created his tables by listing in the first column those who had received their commissions, that is, Thornton through Dorsey in Washington County and Alexander through Hoffman in Alexandria County. He next listed those Adams appointees for whom commissions were made out but not “given” or delivered, including all of the names in the second column, Carrol through Conway. TJ then moved some names from one column to another and added names to complete the tables as printed above. The first and third columns contain names of those people who received appointments as justices of the peace, except for John Laird and Thomas Law, who were replaced later in the process (see Document II). In the Washington County table, TJ did not cancel names as he moved them to different positions (as with John Mason, for example). In the table for Alexandria County, he struck through names that he transferred to different columns. TJ followed the numerical sequence indicated by figures before the candidates’ names for Alexandria County when he made out his final list for the general commission. He omitted the number “8,” but in his subsequent list George Taylor precedes Jonah Thompson (see Document II). Similarly, TJ may have been working out the sequence of names for the Washington County commission when he placed numbers and then letters alongside the justices he selected for that county. For considerations that influenced Adams and TJ in the selection of the justices, see David F. Forte, “Marbury’s Travail: Federalist Politics and William Marbury’s Appointment as Justice of the Peace,” in Catholic University Law Review, 45 (1995–96), 395–402.