CHAPTER XIV

THE ADVENT OF DEMOCRACY

The presidential election of 1800 was epoch-making in several meanings

of the term. It was a reaction against the bold and defiant attitude

of the party in power. It was a revolution of the people. Yet it was

neither a dissolution of all government, as it appeared to the defeated,

nor a permanent conversion of the people to democracy, as the victorious

element was inclined to consider it. Sixty years later, the people

would rise against the victorious party, grown to be a slave-truckling

organisation, overscrupulous of the individual when the world was

turning to aggregation, and would take the sceptre from them for a

quarter of a century at least. The masses punish arrogance in a party

as in an individual. Unlimited success is always fatal. No sooner has

the party passed the safety-line in one direction than the tide of

popular favour turns in the opposite way and leaves it stranded. Owing

to such reaction, the National Government has never approximated anarchy

on the individualistic side of Jeffersonianism, nor has it been in

danger of monarchy under Hamiltonian centralising principles at the

other extremity. To-day it is as far from the ideals of the one as the

other. Controlled constantly by centrifugal and centripetal forces,

the fixed orbit of the Union has been maintained.

The election of 1800 marked the first transfer of the national control

from one party to another. So accustomed has time made us to these

changes, that it is difficult to appreciate the anxiety with which the

people of that day awaited the transition. Well-known party issues,

announced in party platforms, now give a fair assurance of the policies

to be pursued. Yet no serious suggestion emanated from the Federalists

that they would not yield to the ballot. Fitness for self-government

was again demonstrated, especially when contrasted with some other

American nations, by the peaceful eviction of one party, yielding to

no more warlike weapon in the hands of its opponents than the suffrage

of citizens.

The anxiety of the hour was increased because the national machinery

had suddenly come to a standstill. The defect predicted by its enemies

and feared by its friends had suddenly appeared in the method of

electing a President. According to the Constitution, each elector wrote

two names upon his ballot. The man receiving the highest number, if

a majority, was declared President, and the next highest, Vice-President.

Every Republican elector chosen in 1800 had written upon his ballot the

names of Jefferson and Burr. Consequently neither was elected, because

neither had a majority. The superiority of Hamilton over Jefferson as a

party manager is manifest by the fact that Hamilton had feared a

Federalist tie in the election of 1789 and had taken steps to prevent it.

The Republicans were now in a quandary. John Adams had received only

sixty-five votes, cut off with one term, a vicarious sacrifice, as he

thought himself; yet neither Jefferson nor Burr was elected, each having

seventy-three votes. Various rumours disturbed the peace. It was said that

Congress would appoint a President for the interim; that Adams would hold

over; or that Hamilton, disappointed in not being made President, would

turn dictator. Governor Monroe promised Jefferson that he would

immediately re-convene the Virginia Assembly "should any plan of

usurpation be attempted at the federal town." Monroe's remedy was an

amendment which would correct the Constitution in this particular. The

fathers had not foreseen this precise accident, but, in their wisdom, had

provided a remedy for a defective election by casting a decision in the

House of Representatives, the most popular body next to the electors.

Jefferson had undoubtedly been the choice of the people, and his selection

had been the intention of the Republican electors. This was ultimately

accomplished in the House. An amendment to the Constitution was adopted

before the next election to prevent the recurrence of such an accident,

and the Union had by good fortune passed a crisis in a presidential

election second only to that of 1876.

The discomfited Federalists sought an explanation for their defeat in

everything save their own actions. After only twelve years, and twelve

years passed in creating an efficient from a deficient government, the

people had turned against them. "No party ever existed knew itself so

little," said John Adams, "or so vainly overrated its own influence

and popularity as ours. None ever understood so ill the causes of its

own power or so wantonly destroyed them." State debt assumption, the

bank, the excise, the increased debt, the war expenditures, the direct

taxes, and the Alien and Sedition laws would seem to furnish a

sufficient list of reasons for the downfall of a party, which came

into the Administration by only three votes. Yet, by common consent,

the blame for the defeat was placed on the aliens and their presses.

"A group of foreign liars," was the forceful way in which the defeated

President explained it, "encouraged by a few ambitious native gentlemen,

have discomfited the education, the talents, the virtues, and the

property of our country." Chagrined that Washington should have two

terms and he cut off with one, smarting under the treacherous letter

of Hamilton, to which he speedily framed a reply, the ex-President

"trotted the bogs" back to Massachusetts, as he termed it, without

paying his successor the courtesy of waiting to see him inaugurated.

Gadsden, the old Revolutionary leader of South Carolina, now relegated

to the line of spectators, lamented the short-sightedness of early

days in not sufficiently guarding American citizenship from the

admission of foreign meddlers. "Our old-standers and independent men

of long, well-tried patriotism, sound understanding, and good property,"

said he, "have now in general very little influence in our public

matters." He wished the advice of John Rutledge had been taken. He

would have admitted only the sons of aliens to citizenship.

The new President was to the manor born, but he held theories

dangerously akin to those put forth by the foreign faction, against

which the Alien and Sedition laws had been aimed. Speculative

philosophy, however philanthropic in its intent, was heresy to the

practical Federalists. Hamilton, in the midst of the uncertain election,

was reported to have given in a toast his preference for "a dreamer

rather than a Catiline," as between Jefferson and Burr. During the

campaign, pamphlets appeared describing Jefferson as a wild philosopher,

one who believed the savage more independent and happy than the

civilised man; who preferred newspapers to government; who believed

that a little rebellion now and then was a good thing; who esteemed

property and obligations of so little value as to declare that the

actions of one generation were not binding on the next; who justified

the excesses of the French Revolution by saying that if only an Adam

and an Eve were left in every country and left free, it would be better

than it had been before. Memories of Tory confiscations and penalties

were sufficiently fresh to give credence to a rumour that the

President-elect contemplated such retributive measures toward his

political opponents. Memories of the disunion sentiments contained in

the Virginia and Kentucky Resolutions were still fresher, although

Jefferson's close connection with the latter was not yet generally

known.

Thomas Jefferson was an exponent of the democracy of his day, and with

him democracy came into the National Administration. The "well-born"

were discomfited. Yet it was not the democracy of Andrew Jackson's

time. It was a democracy reflected from Europe like everything else

in America at the time. It was the democracy of Montesquieu and the

encyclopædists. It was a democracy which could be led by a college

graduate and lawyer, who was also a gentleman farmer and a large

landholder, bound to his party by a country residence, by being a

borrower, and by speculative theories. Only such aristocratic democracy

was possible on the Atlantic coast-plain. Pure American democracy would

be born only after advancing civilisation found a majority in the

mid-valley of the continent, with the barrier of the Alleghenies at

its back. It reached a crude form in Andrew Jackson, the Indian fighter,

and a slightly higher type in Abraham Lincoln, the prairie lawyer.

Jefferson's democracy in the abstract was a kind of political

millennium, in which the people collectively exhibited traits quite

different from their individual components. The people, to Jefferson's

mind, were unselfish, by nature good, and needing no restraining bonds.

They were their own censors. His democracy in the concrete took the

shape of a great uprising of the people in 1800, temporarily led astray

from the true principles of self-government by the undue influence of

Alexander Hamilton acting through the moneyed interests, but returning

joyously and regenerate to the path of constitutional rectitude. The

election of 1800 he pronounced as real a revolution in the principles

of government as was that of 1776 in its form; the material difference

being that one was effected by the sword and the other by the rational

and peaceable method of suffrage. Jefferson had no more conception of

a modern political party than had Washington,--the latter because he

saw in them only factions; the former because his party embraced the

entire people.

For several years, it is true, Jefferson had been directing the pens

of his lieutenants in the various States, circulating sound Republican

literature, patronising Republican newspapers, and tabulating Federalist

defeats as skilfully as a modern political manager. He encouraged the

people to mass-meetings or county conventions of delegates. This was

probably the beginning of the county political machinery. He lamented

that the South had no towns, such as New England had, which would make

smaller units for popular gatherings. The Federalists scorned this

political machinery as too trivial and feared it as too popular. It

would have a tendency to make the people less amenable to the control

of their leaders. They preferred to continue the Revolutionary custom

of committees of correspondence to manage party affairs.

All this herculean effort was felt by Jefferson to be necessary to win

popular attention and support from the centralisation of Hamilton,

which, to his myopic vision, was monarchism. Years after, he testified

that nothing on earth was more certain than that if he, placed by his

office of Vice-President at the head of the anti-monarchists, had given

way and had withdrawn from his post, the people would have given up

in despair and the cause of liberty have been lost. By his efforts,

and the aid of the Virginia and Kentucky Resolutions, the Constitution

and the Union had been saved when "at its last gasp."

As the time of Jefferson's inauguration approached, rumours of

revolutionary action grew into a general alarm lest all the union-making

of twelve years should be annihilated and the Federation days be brought

back again. Jefferson's well-known antipathy to taxation and a national

debt caused a rumour that he planned repudiation of the national

obligation, perhaps an agrarian law, and even the distribution of all

property. The vested interests were as much alarmed as ever they were

in subsequent elections. "We have seen," cried one holder of national

certificates and a subscriber to the bank, "the French clergy stripped

in a night. One vote of Congress would put our federal debt into the

family tomb with the paper money of Revolutionary days." Among the

measures supposed to be contemplated by the victorious "mobocrats,"

as the Federalists called them, were the abolition of the United States

Senate, destruction of foreign commerce and public schools, the

abolition of internal taxes, the annihilation of the bank, and the

Europeanising of the country by French immigrants. "God is punishing

the manifold sins of this nation by delivering it over to projectors

and philosophists," said a New England clergyman. Governor Strong, of

Massachusetts, appointed a day of fasting and prayer, that the first

magistrate and other rulers of the nation might rise superior to private

interests and the prejudice of party. The lower branch of Congress had

gone over to the Jeffersonians, and the upper House would be lost after

the next session. No check was possible upon the reformers.

Although neither partisans nor people were in such dangers as imagined

by the Federalists, the National Government might have been seriously

impaired by Jefferson and his followers, if necessity had not been

most fortunately on the other side. The contest was very unequal, as

well for Jefferson as for his successors who struggled conscientiously

but vainly against natural laws. Jefferson was misjudged by those who

pronounced him opposed to all union. He was always in favour of a

limited union--an impossible union as it proved--with the unexpressed

powers retained by the States. "The states," said he, "can best govern

our home concerns and the general government our foreign ones." In

later years he could remember but one instance of control vested in

the Federal over the State authorities in a matter purely domestic,

and that was the metallic tenders. Nor could he be said to be opposed

to the Federalists as a whole, since he never recognised the party,

but simply a few of its leaders. The latter were for the moment

misleading the people. He expected in time to win all back except "the

Coryphæi," or leaders, whom he pronounced incurables. One of the first

unpleasant revelations to Jefferson as President was the fact that a

sufficient number of the people to constitute a party would persist

in remaining under the influence of Hamilton and his fellows in several

of the States.

The man who depends thus upon the people and appeals to them as his

monitor must risk the charge of demagogism. Every action differing

from custom will be considered a bid for popular applause. "Jeffersonian

simplicity" has been ridiculed as a masquerade for a purpose. Yet it

was a protest against Old World imitation. Never was a salutation made

or an address presented to Washington or Adams at an opening of Congress

that Jefferson did not see in it a warning of imminent monarchy. He

applauded the democratic firmness, called "stubbornness" by the

Federalists, of Matthew Lyon, the only member of the House of

Representatives who steadfastly refused to march in procession to the

residence of President Adams in order to present to him the accustomed

complimentary address and to partake of his refreshments. Clearly it

was the duty of a President of the people to abolish these borrowed

forms of royalty. When elected Vice-President, Jefferson requested

that he might be notified by mail instead of by a messenger. No

notification of his election to the Presidency was necessary since he

was presiding over the Senate when elected by the House.

The embryonic city of Washington, surrounded by dense woods, was the

scene of Jefferson's inauguration, and it afforded little for the

ceremonies except democratic simplicity. It was announced in advance

that no "white wands" would be carried, in the British style, at this

inauguration. Republican papers had predicted that

"Philosoph's reign the world will bless,

Join'd with religion's simpler dress.

Truth in homely garb shall shine,

On every state, in every clime."

The inauguration plans provided only a salute from the company of

Alexandria riflemen who paraded before the lodgings of the

President-elect, an escort of citizens and members of Congress to the

Senate wing of the unfinished Capitol, and an inconsiderable

illumination at night. At a later time, in an effort to magnify

Jeffersonian simplicity, the story was invented that the President-elect

rode unattended to Capitol hill and tied his horse to a tree near the

spring.

Since Jefferson had been deprived of his wife by death many years

before, the social problem was greatly simplified. Hospitable to

extravagance in his home, as President he must reduce his entertainment

to the simplicity becoming a republic. He soon formulated as part of

his social program: "Levees are done away with. The first communication

to the next Congress will be, like all subsequent ones, by message,

to which no answer will be expected." In thus trimming away the useless

ceremonials which had so far attended the beginning of each session

of Congress, obviously copied, as previously said, from the opening

of a session of Parliament, Jefferson was contributing to American

individuality and common sense.

The task of restoring the Union to the form the fathers had meant for

it and revoking the prerogatives unconstitutionally given to it was

uppermost in Jefferson's mind. The bank had been chartered for twenty

years and was beyond reach at present. The Sedition law and the Alien

Friends act had expired by limitation before Jefferson came in. The

Alien Enemies act was harmless because it rested entirely with the

President for execution and was valid only during a foreign war; since

it might be useful later it was allowed to remain on the statute book.

But the odious excise, the stamp taxes, and carriage licenses could

be repealed, the probationary period for naturalisation could be reduced

to the former limit, work on the great war-ships could be stopped,

the provisional army allowed to disband, and Hamilton and other generals

cut off from the public treasury. The vast appropriations for the army

and navy and the coast defences could be reduced, and the expense of

the ornamental consular service cut down. As rapidly as possible,

Congress carried out these reform suggestions of the new President.

The Federalists deplored his penny-wise economy, especially when fifteen

ships, which had cost the Government nearly a million dollars, were

sold for one-fourth that amount.

The work of reform did not stop here. Two branches of the National

Government had been brought back to democratic principles by the will

of the people. But the third branch, the Judiciary, remained in the

control of the "monarchists." Jefferson first did justice, as he

conceived it, to Lyon, the only prisoner remaining convicted under the

Sedition law. No doubt some of the Federal judges had been overzealous

in securing the conviction of offenders under this law. Holding life

tenure under the Constitution, they could be reached only by

impeachment. This remedy was attempted in order to punish Judge Chase,

an Associate Justice of the Supreme Court, who had shown partiality,

it was claimed, in the trial of Fries and Callender five years before.

The requisite two-thirds of the Senate did not vote him guilty, and

this method of curbing the Judiciary failed. "Impeachment is not even

a scarecrow," admitted the disappointed President. The enemy had retired

into the stronghold of the Judiciary, as he said, to be fed from the

treasury, and from thence to beat down Republicanism. "By a fraudulent

use of the Constitution," he explained, "which has made judges

irremovable, they have multiplied useless judges merely to strengthen

their phalanx."

In this indictment, Jefferson referred to the act of the closing days

of the Federalists, whereby the number of Federal courts had been

increased to twenty-seven. It had been done by creating six circuit

courts, with judges, marshals, and attorneys, instead of requiring the

district judges and Supreme Court justices to make up these courts as

had been done under the Judiciary Act of 1789. The excuse for the

creation of these medium courts was that too much labour had been

imposed upon the judges and justices by the old method. But the

Republicans believed it had been done to make places for a large number

of irremovable Federalist office-holders. By another act, a circuit

court, with three judges, was created for the District of Columbia,

with an elaborate system of justices' courts and justices of the peace.

To fill the large number of places thus created, the pen of John Adams

had been kept busy up to the last hour of his administration. Hence

the "midnight appointments," as they were commonly known. Some of the

district judges were advanced to the new circuit judgeships, and their

places filled by the district attorneys. These were "nominated for

promotion," as the message to the Senate termed it.

Not only would this presumably hostile force be in Jefferson's camp,

but their salaries would seriously interfere with his plans for

retrenchment. The Constitution distinctly provided that "judges both

of the supreme and inferior courts shall hold offices during good

behavior." But before the first session of Congress under his

administration was ended, Jefferson wrote that they had "lopped off

a parasite limb, planted by our predecessors on the judiciary body for

party purposes." How had it been done? By passing a new judiciary act,

which abolished the whole system of circuit courts, with their judges

and minor officials, and substituted the old practice of requiring the

Supreme and district judges to perform the labours of the circuit

courts. No life tenure would hold for an office which did not exist.

The anathemas of the "promoted" officials, thus fallen between stools,

added to the pleasure of the Jeffersonians. The names of twenty-two

unfortunates, whom the Senate failed to find time to ratify in the

closing hours, were recalled by Jefferson, under the caption, "Nominated

but not appointed."

Midnight of the 3rd of March had caught forty-one of the proposed

Federal justices of the peace for the District of Columbia without

their appointment having been fully made. Jefferson arbitrarily cut

down their number to twenty-five, "having been thought too many," as

he said. Among those dropped were four whose commissions had been made

out and sealed by the acting Secretary of State, but had not been

delivered. Madison, who became Secretary of State under Jefferson,

refused to deliver the commissions, and the men, headed by one William

Marbury, made a motion in the Federal court to obtain them. They had

no recourse in the State courts. From this trivial circumstance,

involving the least national judiciary office, came the case of Marbury

vs. Madison, involving the right of the judiciary branch of the Federal

Government to give an order to the executive.

One phase of the relation of these two branches had been established

nearly ten years before, when President Washington attempted to get

an interpretation from the Supreme Court upon the binding clauses of

the vexatious treaty with France. He was told that the court was not

an advisory body, but a tribunal established to adjudge specific cases

brought before it. For this advisory service, the Executive must depend

upon his Attorney-General. About the same time, the United States

circuit courts protested against an act of Congress which made them

recipients of pension applications subject to the final decision of

the War Department. Evidently the Judiciary intended to remain

independent of both the other branches of the National Government.

One feature of the relationship between the Federal courts and the

Congress had been presumed to exist by Hamilton and other commentators

on the Constitution, viz., the power to adjudge of the rights of

individuals under an act of Congress. This principle of passing on the

constitutionality of a legislative act by the courts had been

established in at least five States before the adoption of the

Constitution. It had been exercised in several cases by the Federal

courts before the case of Marbury _vs._ Madison arose. A new contention

was involved by asking whether the request made to the Supreme Court

to issue a mandamus would hold against the provisions of the

Constitution, which did not include mandamus in the powers specifically

given to the court.

It chanced that the case came before John Marshall, who had recently

assumed the station of Chief Justice, to which John Adams appointed

him in the closing months of his administration. The previous history

of the court, with the exception of two or three cases, had been

insignificant. Its decisions during the first ten years do not fill

as many pages as do those for a single year at the present time. Jay

had resigned its headship to undertake the mission to England, impressed

with the belief, as he afterward said, that the court could never

obtain the energy, weight, and dignity essential to affording due

support to the National Government. He refused to return to the bench,

and Marshall was appointed, with whom the second era of the court

begins. Marshall was a Virginian, a school-fellow of Monroe, and

co-worker with Madison in the Virginia Constitutional Convention. But

the war acquaintance which he formed with Washington and Hamilton,

added to his personal views, turned him toward Federalism. As a

Virginian, he was cultivated by members of that party, office after

office being placed at his option. Accepting the Chief-Justiceship

under a life tenure, he was "saddled" on the Republicans, as they said.

The decision in the case of Marbury _vs._ Madison was one of many which

emanated from Marshall, silently shoring up the fabric of the Union

as it was erected by the hand of necessity. "The theory that an act

of legislature repugnant to the Constitution is void," said the Chief

Justice, in granting Marbury and others the withheld commissions,

through the district court, "is essential to a written constitution,

and is consequently to be considered by this court as one of the

fundamental principles of our society." We speak so easily now of

declaring a law unconstitutional, thereby rendering it null and void,

and we acquiesce so readily in these decisions that it is difficult

to imagine the small beginnings of this great power exercised by one

branch of the Federal Government over another. By holding that the

mandamus must issue from the District and not the Supreme Court, the

case might have been dismissed briefly. The Republicans thought the

long disquisition on the powers of the court and its relation to the

executive branch a kind of defiance and entirely unwarranted. It was

the beginning of a long list of similar offences by Marshall.

Meanwhile the new Administration had continued its reform activities,

"to restore the government to its principles, amend its defects, reform

abuses, and introduce order and economy in the administration," as

Monroe outlined it to President Jefferson. The latter summed up the

reform work of the Republicans at the end of the first session:

"They have reduced the army and navy to what is barely necessary. They

are disarming executive patronage and preponderances by putting down

one-half the offices of the United States which are no longer necessary.

These economies have enabled them to suppress all the internal taxes and

still to make such provision for the payment of their public debt as to

discharge that in eighteen years. They are opening the doors of

hospitality to fugitives from the oppressions of other countries; and we

have suppressed all those public forms and ceremonies which tended to

familiarize the public eye to the harbingers of another form of

government."

Thus had democracy, in Jefferson's opinion, at last come into its own.

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