To the Senate: Interim Appointments
Jefferson wrote his son-in-law, John Wayles Eppes, on 1 Jan. 1802 that although Republicans held an 18 to 14 majority in the Senate, through absences “hitherto we have been so nearly equal there, that I have not ventured to send in my nominations, lest they should be able to dismast the administration.” Meanwhile, the president was giving thought to the arrangement of the list of more than 120 interim appointments he would place before the Senate. Upon taking office, Jefferson made it clear that he considered the numerous appointments made by Adams after 12 Dec. 1800, when the result of the election was known, as nullities. He characterized them as “midnight appointments” and did not think of them as removals, but as nominations that should never have taken place. While he could not revoke the “life appointments” of judges, Jefferson believed the other “midnight” nominees did not hold their offices “by any title meriting respect.” In the early weeks of the administration, he maintained that even Adams’s best friends did not “disapprove of this” policy. However, the outrage expressed over the president’s appointment of Samuel Bishop to the New Haven collectorship in place of Elizur Goodrich, considered a midnight appointment by Jefferson, made it clear that many Federalists did not accept the argument. Others questioned Jefferson’s interim appointments due to resignations, believing that some officeholders were pressured to resign. According to the president, the principles that governed his removals included delinquency of accounts, default, or other “malversations”; the restoration to office of those dismissed by Adams solely for political reasons; to “counterpoise the federalism of the courts” by appointing Republican marshals and district attorneys; and, lastly, to give some participation to Republicans. After perusing a list of interim appointments in chronological order, and developing his own list arranged by states, Jefferson decided to submit the interim appointments arranged according to his principles for appointments and removals. He presented the document to the Senate for approval on 6 Jan. 1802, a month after Congress convened (Malone, Jefferson description begins Dumas Malone, Jefferson and His Time, Boston, 1948–81, 6 vols. description ends , 4:73–9; Carl E. Prince, “The Passing of the Aristocracy: Jefferson’s Removal of the Federalists, 1801–1805,” Journal of American History, 57 , 563–75; Lucius Junius Brutus, An Examination of the President’s Reply to the New-Haven Remonstrance; with an Appendix, Containing the President’s Inaugural Speech, the Remonstrance and Reply; Together with a List of Removals from Office, and New Appointments, Made since the Fourth of March 1801 [New York, 1801]; Vol. 33:413–15, 427–8, 465–6, 668–74; Vol. 34:381–4, 554–7; Document V, below).
In December 1801, Jacob Wagner sent Jefferson a list of the appointments made during the recess of the Senate, for which the State Department had provided temporary commissions, which were valid until the Senate adjourned at the close of the session. The Senate had to approve the nominations before permanent commissions could be issued. The list from the State Department was arranged, for the most part, in chronological order by categories (see Document III). The longest section, consisting primarily of general government and State Department appointments, including judges, marshals, district attorneys, and extending to the appointment of Thomas Tudor Tucker as U.S. treasurer on 30 Nov., was followed by Treasury Department appointments to offices for the collection of internal and external revenues, arranged in a random order, with the final entries appearing after the section on consular appointments. The section on “Consuls & Commercial Agents” was arranged chronologically, except for the appointment of Charles Pinckney to Madrid, his secretary, and the secretary of the French legation, which appeared at the end. Jefferson carefully considered the list he received from the State Department. At most entries he indicated an abbreviated geographic designation of the state or territory, or in the case of consuls and commerical agents, the country of the port of residence. He wrote “Genl.” at the names of Albert Gallatin and Robert Smith, cabinet members, and several others, including Gideon Granger, postmaster general.
The president had thoroughly perused the State Department list by the time he wrote Gallatin an undated memorandum inquiring whether Josiah Hook, Thomas Worthington, and five others should remain on the list as inspectors, a position abolished under the Executive Order on Revenue Districts of 29 July 1801 (see Vol. 34:676–7). Jefferson received Gallatin’s reply on 26 Dec. The Treasury secretary noted that only Worthington had been appointed inspector of internal revenues. The others were collectors of external revenues at ports and their additional appointment as inspectors had nothing to do with the abolished positions. Jefferson subsequently drew a diagonal line through Worthington’s entry in Document III (see note 8) and did not enter his name in the subsequent list he drafted.
Using the marginalia he had entered on the list from the State Department, Jefferson probably drafted his first list of nominations (Document IV), shortly after he received the information from Gallatin. Jefferson brought all of those he had designated as “Genl.” to the top of the list. He then arranged the appointments according to states, beginning with New Hampshire and extending down the coast to Georgia, followed by Kentucky, the territories, the District of Columbia, and the commissioners to treat with the Indians. He closed the list with “Consul appointments uncommissioned,” arranged by the country of residence or by the country controlling the port. As Jefferson entered the nominations using his geographical arrangement, he drew a line, in ink, through his abbreviations in the margin of the State Department list and placed a check mark, in pencil, by the entry. After transferring the nominations from the State Department list to his own draft, Jefferson added information, which appears in a darker ink, at the end of the entries, giving the reason for the appointment. At first Jefferson used the information provided by the State Department that indicated whether the position had been filled because of resignation, vacancy, or promotion. He probably relied on that list when he added “promoted” at the appointment of John S. Sherburne of New Hampshire in place of Jeremiah Smith. In subsequent manuscripts, Jefferson noted that Sherburne was appointed in place of Edward St. Loe Livermore, an 18 Feb. nominee of Adams (see Document VI). But Jefferson soon began to provide new information in his short emendations. With the word “dead,” he pointed out that Samuel Jasper and Richard Wylly had died in office. The State Department never used “removed” to explain a change; Jefferson used that specific designation 24 times. An entry and cancellation by Jefferson under Northwest Territory indicates that he was consulting his personal list of appointments and removals, which he kept from the beginning to the end of his presidency (see Vol. 33:674–9). The president entered the names of William Goforth and John Reily as commissioners for the John Cleves Symmes land contracts on his personal list at 3 Oct. He interlined the entry on his list of nominations at Northwest Territory and then canceled it when he realized the entry was not included on the State Department list and did not require Senate confirmation. The president may have obtained the information that James Powell was “removed for delinquency” and Samuel McDowell was “removed for misconduct” by consulting his personal list. At several nominations, the State Department noted the position was “vacant” and did not include the name of the person who had been replaced. Jefferson added, in pencil, at 15 entries, the names of people chosen late in the Adams administration who were not recognized by the new administration. Eight of these were consular appointments. In Jefferson’s personal list they were designated as midnight appointments. Jefferson emended other State Department entries pertaining to consuls. The State Department noted that William Buchanan was appointed instead of Jacob Lewis, and Jefferson emended the entry to indicate that Buchanan replaced George Stacey and that Lewis was appointed to Calcutta (see Document IV, note 9). Jefferson subsequently placed Stacey with midnight appointments and dropped the reference to Lewis from the entry (see Document VI).
Building on his emendations to Document IV, Jefferson prepared a draft of the nominations as he would present them to the Senate on 6 Jan. (Document VI). The president organized the list according to his rationale for removals and appointments and provided keys to his new arrangement, explaining the categories by which the appointments were organized (see Document V). In preparing the manuscript he gave to the Senate, Jefferson moved only four names from the arrangement in his final draft, three marshals and one district attorney near the close of the document (see Document VI, note 11). He transferred them from the category of those removed for default to those removed to give some participation to Republicans, who had been systematically excluded, especially in the courts.
Jefferson completed his list of interim nominations as presented to the Senate with the 30 justices of the peace appointed for the District of Columbia. They were not included in the keys Jefferson prepared to explain the arrangement of the nominees. He considered the justices late-term appointments, but he did not arrange them with the other midnight appointments on the list. The appointment of the justices had become controversial, and Jefferson may have recognized that the Senate was likely to consider them apart from the other nominations, which is indeed what occurred.
The problem had its origins on 27 Feb. 1801, when John Adams signed “An Act concerning the District of Columbia,” which called for the appointment of various officers, including justices of the peace. According to the legislation, the president was to appoint for a five-year term “such number of discreet persons to be justices of the peace” as he “shall from time to time think expedient.” The justices were to take an oath “for the faithful and impartial discharge of the duties of the office,” including “all matters, civil and criminal, and in whatever relates to the conservation of the peace” (U.S. Statutes at Large description begins Richard Peters, ed., The Public Statutes at Large of the United States … 1789 to March 3, 1845, Boston, 1855–56, 8 vols. description ends , 2:107). On 2 Mch., Adams submitted the nominations for 23 justices of the peace for Washington County and 19 for Alexandria County. The Senate approved the nominations the next day. During the last day of the administration, the State Department rushed to make out the commissions for these and numerous other appointments. Daniel Brent, a State Department clerk, later testified that after the commissions for the justices of the peace were prepared, he carried them to President Adams for his signature. After they were signed, he carried them back to the secretary’s office, where the seal of the United States was affixed to them. He did not believe, however, that the commissions were recorded or delivered (JEP description begins Journal of the Executive Proceedings of the Senate of the United States … to the Termination of the Nineteenth Congress, Washington, D.C., 1828, 3 vols. description ends , 1:388, 390; Cranch, Reports description begins William Cranch, Reports of Cases Argued and Adjudged in the Supreme Court of the United States, 1801–1815, Washington, D.C., 1804–17, 9 vols. description ends , 1:143).
Shortly after taking office, Jefferson ordered that the commissions for the justices remaining at the State Department should not be delivered and began compiling his own list of candidates for justices of the peace (see Documents I and II). Jefferson later explained that he believed delivery was essential to give validity to a commission, and until it was delivered the president was entitled to withhold it at his discretion (TJ to George Hay, 2 June 1807, in DLC). By 16 Mch. 1801, the new president was ready to reveal his nominees. Concluding that 15 justices for each county would be sufficient, he ordered two general commissions to be made out. The one for Washington County included 13 justices appointed by Adams and 2 by himself, including the last minute inclusion of Benjamin More instead of John Laird (see Document II). The commission for justices of the peace for Alexandria County included 11 named by Adams and 4 new candidates added by Jefferson. On 18 Mch., the names of the newly appointed justices appeared in the National Intelligencer. That same day Chief Justice John Marshall wrote his brother: “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” (Marshall, Papers description begins Herbert A. Johnson, Charles T. Cullen, Charles F. Hobson, and others, eds., The Papers of John Marshall, Chapel Hill, 1974–2006, 12 vols. description ends , 6:90). Of the 18 justices of the peace who were named by Adams but not by Jefferson, 4 later came to the office of the secretary of state requesting their commissions. When they failed to receive a satisfactory response, William Marbury, Dennis Ramsay, Robert T. Hooe, and William Harper brought their case before the December 1801 term of the Supreme Court with Charles Lee, former attorney general, acting as counsel. Madison did not appear before the court to argue why a mandamus should not be issued commanding the delivery of the commissions. Lee argued that the justices of the peace “hold their offices independent of the will of the President. The appointment of such an officer is complete when the President has nominated him to the senate, and the senate have advised and consented, and the President has signed the commission and delivered it to the secretary to be sealed. The President has then done with it; it becomes irrevocable.” On 18 Dec., Marshall ruled that at the next term of court arguments would be heard on the issuance of a writ of mandamus (Cranch, Reports description begins William Cranch, Reports of Cases Argued and Adjudged in the Supreme Court of the United States, 1801–1815, Washington, D.C., 1804–17, 9 vols. description ends , 1:151; Madison, Papers, Sec. of State Ser., 2:319–20; Marshall, Papers description begins Herbert A. Johnson, Charles T. Cullen, Charles F. Hobson, and others, eds., The Papers of John Marshall, Chapel Hill, 1974–2006, 12 vols. description ends , 6:160–5).
On 26 Jan., the Senate approved all of the interim nominations, except those of justices of the peace for the District of Columbia. After conferring with Francis Peyton, the president, on 5 Apr., sent a message to the Senate revising the list of justices, replacing those who had resigned or declined to qualify with new candidates, three for each county. The Senate approved the appointment of the justices, both those nominees of 5 Apr. and then those of 6 Jan., on 27 Apr., a week before the session ended (JEP description begins Journal of the Executive Proceedings of the Senate of the United States … to the Termination of the Nineteenth Congress, Washington, D.C., 1828, 3 vols. description ends , 1:405, 417–18, 422–3, 425; TJ to Francis Peyton, 31 Mch., and Peyton to TJ, 2 Apr. 1802).