HONEST as Jefferson undoubtedly was in his wish to diminish executive
influence, the task was beyond his powers. In ability and in energy the
Executive overshadowed Congress, where the Republican party, though
strong in numbers and discipline, was so weak in leadership, especially
among the Northern democrats, that the weakness almost amounted
to helplessness. Of one hundred and five members, thirty-six were
Federalists; of the sixty-nine Republicans, some thirty were Northern
men, from whom the Administration could expect little more than votes.
Boston sent Dr. Eustis; from New York came Dr. Samuel L. Mitchill,--new
members both; but two physicians, or even two professors, were hardly
competent to take the place of leaders in the House, or to wield much
influence outside. The older Northern members were for the most part
men of that respectable mediocrity which followed where others led. The
typical Northern democrat of that day was a man disqualified for great
distinction by his want of the habits of leadership; he was obliged, in
spite of his principles, to accept the guidance of aristocrats like the
Livingstons, Clintons, and Burrs, or like Gallatin, Jefferson, John
Randolph, and the Smiths, because he had never been used to command,
and could not write or speak with perfect confidence in his spelling
and grammar, or enter a room without awkwardness. He found himself
ill at ease at the President’s dinner-table; he could talk only upon
subjects connected with his district, and he could not readily accustom
himself to the scale of national affairs. Such men were thrust aside
with more or less civility by their leaders, partly because they were
timid, but chiefly because they were unable to combine under the lead
of one among themselves. The moment true democrats produced a leader
of their own, they gave him the power inherent in leadership, and by
virtue of this power he became an aristocrat, was admitted into the
circle of Randolphs and Clintons, and soon retired to an executive
office, a custom-house or a marshalship; while the never-failing
succession of democratic Congressmen from the North continued to act
as before at the command of some aristocratic Virginian or educated
gentleman from the city of New York.
Owing to this peculiarity, the Northern democrats were and always
remained, in their organization as a party, better disciplined than
their opponents. Controlling the political power of New York, New
Jersey, and Pennsylvania, they wielded it as they were bid. Their
influence was not that of individuality, but of mass; they affected
government strongly and permanently, but not consciously; their steady
attraction served to deflect the Virginia compass several degrees from
its supposed bearings; but this attraction was commonly mechanical.
Jefferson might honestly strip himself of patronage, and abandon the
receptions of other Presidents; he might ride every day on horseback
to the Capitol in “overalls of corduroy, faded, by frequent immersions
in soapsuds, from yellow to a dull white,” and hitch his horse in the
shed,--he alone wielded power. The only counterpoise to his authority
was to be found among his Southern equals and aristocratic Northern
allies, whose vantage-ground was in the United States Senate or at the
head of State governments; but the machinery of faction was not yet
well understood. In the three former Administrations, the House had
been the most powerful part of the body politic, and the House was
ill-suited for factious purposes. The Senate was not yet a favorite
place for party leaders to fortify themselves in power; its debates
were rarely reported, and a public man who quitted the House for the
Senate was thrown into the background rather than into prominence.
In 1803 De Witt Clinton resigned a seat there in order to become
mayor of New York. In the same year Theodorus Bailey resigned the
other seat, in order to become postmaster of New York, leaving the
State unrepresented. While senators had not yet learned their power,
representatives were restrained by party discipline, which could be
defied only by men so strong as to resist unpopularity. As long as
this situation lasted, Jefferson could not escape the exercise of
executive influence even greater than that which he had blamed in his
predecessors.
The House chose for Speaker Nathaniel Macon, a typical, homespun
planter, honest and simple, erring more often in his grammar and
spelling than in his moral principles, but knowing little of the world
beyond the borders of Carolina. No man in American history left a
better name than Macon; but the name was all he left. An ideal Southern
republican, independent, unambitious, free from intrigue, true to his
convictions, a kindly and honorable man, his influence with President
Jefferson was not so great as that of some less respectable and more
busy politicians.
The oldest members of much authority were William B. Giles of Virginia,
and Samuel Smith of Maryland. In the characters of both these men was
something which, in spite of long service and fair abilities, kept them
subordinate. Whether on account of indolence or temper, restlessness
or intrigue, they seldom commanded the full weight to which their
service entitled them. Speaker Macon, in appointing his standing
committees, passed over both in order to bring forward a young favorite
of his own,--a Virginian barely twenty-eight years old, whose natural
quickness of mind and faculty for ready speaking gave him prominence in
a body of men so little marked by ability as was the Seventh Congress.
During several years the Federalist newspapers never wearied of gibing
at the long lean figure, the shrill voice and beardless face of the
boyish Republican leader, among whose peculiarities of mind and person
common shrewishness seemed often to get the better of intense masculine
pride. Besides his natural abilities and his superior education, the
young man had the advantage of belonging to the most widely-connected
of all Virginia families; and this social distinction counted for
everything in a party which, although reviled as democratic, would
be led by no man without birth and training. Incomprehensible to New
England Federalists, who looked on him as a freak of Nature; obnoxious
to Northern democrats, who groaned in secret under his insane spur
and curb; especially exasperating to those Southern Republicans whose
political morality or whose manners did not suit him,--Randolph,
by his independence, courage, wit, sarcasm, and extreme political
orthodoxy, commanded strong influence among the best Virginians of the
State-rights school. More than half the Virginia delegation belonged to
the same social and political caste; but none of them could express so
well as Randolph the mixture of contradictory theories, the breadth and
narrowness, the aspirations and ignorance, the genius and prejudices of
Virginia.
The experiment of placing Randolph at the head of the Ways and Means
Committee was hazardous; and to support him the Speaker put as second
member their friend Joseph Nicholson of Maryland, while General Smith
retained his old place at the head of the Committee on Commerce, and
Giles was quite neglected. The Federalists even in their reduced
condition, numbering barely one third of the House, still overmatched
the majority in debate. Randolph, Nicholson, Samuel Smith, and Giles
were hardly equal to Bayard, Griswold, Dana, John Cotton Smith, and
John Rutledge.
No member of the House wielded serious influence over the President, or
represented with authority the intentions of the party; and although in
the Senate the Republicans were stronger in ability, they were weaker
in numbers, and therefore more inclined to timidity. The ablest of
the Republican senators was a new man, John Breckinridge of Kentucky,
another Virginia aristocrat, chiefly known as the putative father of
the Kentucky Resolutions of 1798. Breckinridge was bold enough to
support any policy that the Administration would consent to impose;
but he was new to the Senate, and, like Randolph, had yet to win the
authority of a leader against a strong Federalist opposition.
The business of the first session of the Seventh Congress quickly
took shape in two party struggles on the lines marked out by the
Message; and the same caution which made the Message disappointing as a
declaration of principles, affected the debates and laws. Although the
Federalists offered challenge after challenge, charging the majority
with revolutionary schemes which no honest democrat needed to deny, the
Republicans, abiding carefully for the most part within the defences
selected by the President, seemed unwilling to avow the legitimate
objects of their acts. The two measures over which the struggle took
place were not so important as to touch the foundations of government,
unless they were parts of more sweeping changes to come. They required
the overthrow of two Federalist creations, but not expressly of any
Federalist principle. They abolished the internal taxes and the circuit
courts, but touched no vital power of government.
Resistance to the abolition of taxes was impossible after the promise
which the President’s Message held out. The Federalists themselves had
made peace with France, and hostilities between France and England
had ceased. For the first time in ten years no danger of foreign war
was apparent, and if the Administration offered to effect economies
in the public service, Congress could hardly deny that economies were
possible. The opposition preferred not to question the estimates, but
to rival the Government in zeal for reduction of taxes; and on this
point they argued with some force that although the _ad valorem_ duties
were low,--averaging about thirteen per cent,--the specific duties on
necessaries of life like salt and sugar, tea and coffee, amounted to
fifty and a hundred per cent; and reduction of these would surely give
more relief than would be afforded by repealing the tax on whiskey,--a
proper object of taxation,--or the stamp-duty, which was one of the
best and cheapest taxes on the list. The majority replied that to
abolish the internal revenue system was to diminish by one half
the Executive patronage. Forcible as this reasoning was, it did not
convince the Federalist leaders in the House, who insisted upon moving
amendments. The majority became irritated; a Kentucky member advised
that the Federalists should be left unanswered, and their motions voted
down. A Republican caucus decided to adopt for a time this course; and
the next day, Jan. 25, 1802, when a New York Federalist called for
returns in regard to the stamp-tax, the House by a vote of fifty-four
to thirty-four bluntly refused the information. Such motions were
usually adopted by courtesy, and the Federalists, in their twelve years
of rule, were rarely accused of a course so high-handed as that of the
new majority. James A. Bayard, of Delaware, who led the Federalists,
instantly called up another motion of the same class. After he had
spoken in its favor, John Randolph rose and ordered the clerk to read
an extract from Gallatin’s report. No other reply was offered. One
Federalist member after another remonstrated against this tyranny of
silence; but not a member of the majority spoke, and the returns were
refused by a vote of fifty-seven to thirty-seven. Immediately John
Rutledge called up a third resolution of the same nature, and Samuel
Dana of Connecticut made a sensation long remembered, by quoting to the
majority the remark, then quite new, of Bonaparte to Sieyès: “That dumb
legislature will immortalize your name.”
Neither in the Senate nor in the House did Gallatin’s financial schemes
meet with serious question; they were accepted without change, and
embodied in legislation evidently the work of the secretary’s own hand.
So cautious was Gallatin, that notwithstanding the assertions of the
President’s Message, he would not make himself responsible for the
repeal of internal taxes, but left his colleagues of the War and Navy
to pledge themselves to John Randolph for economies to the amount of
$600,000, which the event proved to be not wholly practicable. Dearborn
and Robert Smith in good faith gave to Randolph the required pledges,
and Congress gladly acted upon them. The internal taxes were swept
away, and with them one half the government patronage; while a sinking
fund was organized, by means of which the public debt, amounting to a
nominal capital of about $80,000,000, was to be paid off in sixteen
years.
This financial legislation was the sum of what was accomplished by
Congress toward positive reform. The whole of Jefferson’s theory of
internal politics, so far as it was embodied in law, rested in the
Act making an annual appropriation of $7,300,000 for paying interest
and capital of the public debt; and in the Act for repealing the
internal taxes. In these two measures must be sought the foundation
for his system of politics abroad and at home, as this system has been
described; for his policy flowed in a necessary channel as soon as
these measures were adopted.
Great as the change was which under the guise of economy Congress
thus quietly effected,--a change which in Jefferson’s intention was
to substitute commercial restrictions in the place of armaments, for
purposes of national defence,--so skilfully was it done that the
Federalists could muster only twenty-four votes against it. Jefferson
succeeded in carrying his preliminary measures through Congress without
meeting, or even raising, the question of their ultimate objects and
practical scope; but this manner of dealing with a free people had
disadvantages, for it caused them to adopt a system which they did
not wholly understand, and were not fully prepared to carry out. A
few Virginians knew what Jefferson meant; a clique of members in the
House and Senate might have foretold every step in the movement of
Government: but the Northern and Western democrats thought only of
economy, and accepted the President’s partial reasoning as sufficient;
while the Federalists, although they saw the truth more clearly,
could not oblige the Administration to enter into a full and candid
discussion, which, without affecting the result, would have educated
the public and saved much misunderstanding in the future.
The Federalists, left to an issue involving mere details of taxation,
wasted their strength on a subordinate point. Perhaps their exertions
were not wholly wasted, for their outcries may have had some effect
in persuading the majority that the new reforms were extreme; but in
reality the opposition resisted feebly the vital financial scheme,
and exerted all its energies against the second and less serious
Administration measure,--the repeal of the Judiciary Act of 1801.
The previous history of the Judiciary Act belonged to the
administration of Jefferson’s predecessor and to the records of the
Federalist party. Before 1801 the Supreme Court consisted of six
justices, who held two terms a year at Washington, and twice a year
rode their circuits, each justice then sitting in association with a
district judge. The system pleased no one. The justices, men of age and
dignity, complained that they were forced twice a year, in the most
trying seasons and through the roughest country, to ride hundreds of
miles on horseback “with the agility of post-boys;” the lawyers found
fault because the errors of the inferior court were corrected by the
judges who had made them; the suitors were annoyed by the delays and
accidents inevitable to such journeys and such judges. In the last year
of Federalist power a new arrangement was made, and the Judiciary Act
of 1801 reduced the Supreme Court to five judges, who were fixed at
Washington, while their circuit duties were transferred to a new class
of circuit judges, eighteen in number. Twenty-three districts were
divided into six circuits, and the circuit judges sat independently of
the district judges, as well as of the Supreme Bench. This separation
of the machinery of the District, Circuit, and Supreme Courts caused a
multiplication of judicial offices and an increased annual expense of
some thirty thousand dollars.
No sooner did this Bill become law, Feb. 13, 1801, than the Federalists
used their last moments of power to establish themselves in the posts
it created. In Jefferson’s words, they retreated into the Judiciary as
a stronghold. They filled the new courts as well as the vacancies on
the old bench with safe men, at whose head, as Chief-Justice of the
Supreme Court, was placed the Secretary of State, John Marshall. That
Jefferson should have been angry at this manœuvre was natural; but,
apart from greed for patronage, the Federalists felt bound to exclude
Republicans from the bench, to prevent the overthrow of those legal
principles in which, as they believed, national safety dwelt. Jefferson
understood the challenge, and was obliged to accept or decline it.
On one ground alone could the President and his party fully meet
the issue thus offered. They had sought and won popularity on the
principle of State-rights. The Judiciary Act of 1789, even more than
its supplement of 1801, was notoriously intended to work against the
object they had most at heart. The effect of both these Acts was,
in their belief, to weaken the State judiciaries and to elevate the
national judiciary at their expense, until the national courts should
draw to themselves all litigation of importance, leaving the State
courts without character or credit. From their point of view, the whole
judiciary system should be remodelled, with the purpose of reversing
this centralizing movement; and that such a reform must begin with the
Supreme Court was too evident for discussion. The true question for
Congress to consider was not so much the repeal of the Judiciary Act
of 1801, as the revision of that which had set in motion the whole
centripetal machine in 1789.
Jefferson’s Message, as has been shown, offered to Congress an issue
quite different, at least in appearance.
“The judiciary system of the United States,”--so his words ran,--“and
especially that portion of it recently erected, will of course present
itself to the contemplation of Congress; and that they may be able to
judge of the proportion which the institution bears to the business it
has to perform, I have caused to be procured from the several States,
and now lay before Congress, an exact statement of all the causes
decided since the first establishment of the courts, and of those
which were depending when additional courts and judges were brought in
to their aid.”
From the true Virginia standpoint, the fewer the causes the less
danger. What the Virginians feared most was the flow of business to the
national courts; and Jefferson’s statistics tended only to show that
as yet the new courts had done no harm, inasmuch as they had little
to do. Their abolition on the ground of economy would still leave the
Judiciary establishment of 1789 untouched, merely in order to lop off
an excrescence which might be restored whenever increase of business
should require it,--and which Jefferson’s argument in a manner pledged
him in such an event to re-establish.
The contradictions in Jefferson’s character have always rendered it a
fascinating study. Excepting his rival Alexander Hamilton, no American
has been the object of estimates so widely differing and so difficult
to reconcile. Almost every other American statesman might be described
in a parenthesis. A few broad strokes of the brush would paint the
portraits of all the early Presidents with this exception, and a few
more strokes would answer for any member of their many cabinets; but
Jefferson could be painted only touch by touch, with a fine pencil, and
the perfection of the likeness depended upon the shifting and uncertain
flicker of its semi-transparent shadows. Of all the politicians and
writers of that day, none could draw portraits with a sharper outline
than Hamilton, whose clear-cut characterizations never failed to fix
themselves in the memory as distinctly as his own penetrating features
were fixed in Ceracchi’s marble or on Trumbull’s canvas; and Hamilton’s
contrasted portraits of Jefferson and Burr, drawn in an often-quoted
letter written to Bayard in January, 1801, painted what he believed to
be the shifting phase of Jefferson’s nature.
“Nor is it true,” he said,[59] “that Jefferson is zealot enough to
do anything in pursuance of his principles which will contravene
his popularity or his interest. He is as likely as any man I know
to temporize, to calculate what will be likely to promote his own
reputation and advantage; and the probable result of such a temper is
the preservation of systems, though originally opposed, which, being
once established, could not be overturned without danger to the person
who did it. To my mind, a true estimate of Mr. Jefferson’s character
warrants the expectation of a temporizing rather than a violent
system.”
Never was a prophecy more quickly realized. Jefferson’s suggestion that
the new Judiciary was unnecessary because it had not enough business
to keep it fully employed, although by implication admitting that more
business would justify its creation, became at once the doctrine of
his party. Jan. 8, 1802, Breckenridge undertook the task of moving in
the Senate the repeal of the Act; and his argument closely followed
the President’s suggestion, that the new courts, being unnecessary and
therefore improper, might and should be abolished. The Federalists
took the ground that the Constitution secured to the judges their
office during good behavior, and that to destroy the office was as
distinct a violation of the compact as to remove the judge. Thus from
the beginning the debate was narrowed to a technical issue. On the one
side was seen an incessant effort to avoid the broader issues which
the Federalists tried to force; on the other side, a certain dramatic
folding of robes, a theatrical declamation over the lay-figure which
Federalists chose to declare a mangled and bleeding Constitution.
Gouverneur Morris of New York, whose oratory was apt to verge on the
domain of melodrama, exceeded himself in lamentations over the grave of
the Constitution:--
“Cast not away this only anchor of our safety. I have seen its
progress. I know the difficulties through which it was obtained. I
stand in the presence of Almighty God and of the world, and I declare
to you that if you lose this charter, never, no, never will you get
another! We are now, perhaps, arrived at the parting point. Here, even
here, we stand on the brink of fate. Pause! pause! For Heaven’s sake,
pause!”
If ever a party had paused, it was the Republicans. The progress of
what Gouverneur Morris, with characteristic rhetoric, called the
“anchor,” was thus far arrested only in appearance; and there were
already symptoms that the Virginians had reached not only the limit of
their supposed revolutionary projects, but also of their influence, and
that they were themselves anxious to go no farther. Signs of trouble
appeared among the Northern democrats, and sharp hints were given
that the Virginians might expect revolt, not so much against their
principles as against their patronage. Vice-President Burr did not
appear in Washington until six weeks of the session had passed; and
when he took the chair of the Senate, Jan. 15, 1802, the Virginians
had every reason to expect that he would show them no kindness. Under
the affected polish and quiet of his manner, he nursed as bitter a
hatred as his superficial temper could feel against the whole Virginia
oligarchy. Any suggestion that Burr held scruples of conscience
in regard to the Federalist judiciary would border on satire, for
Burr’s conscience was as elastic as his temper; but he made grave
inquiries as to the law, and hinted doubts calculated to alarm the
Virginians. Had he been content to affect statesmanship, Breckinridge
could have afforded to ignore his demonstrations; but the behavior
of General Armstrong, the democratic senator from New York, and the
accidental absence of Senator Bradley of Vermont unexpectedly threw
into Burr’s hands the power to do mischief. Armstrong failed to appear
at Washington, and his vote was lost. Breckinridge’s motion for a
committee of inquiry was carried, January 19, only by fifteen against
thirteen votes; and no sooner had his committee, with all practicable
speed, reported a Bill for the repeal of the Judiciary Act of 1801,
than it appeared that the Senate was tied, fifteen to fifteen, with
Armstrong and Bradley absent, and the Vice-President controlling the
fate of the Bill. Burr lost no time in giving a first warning to the
Virginians. Dayton of New Jersey, a Federalist, but an intimate friend
of the Vice-President, moved January 27 to recommit the Bill to a
select committee, and Burr’s casting vote carried the motion.
That Breckinridge and his friends were angry at this check need not be
said; but they were forced to wait several days for Bradley’s return,
before Breckinridge could move and obtain, February 2, the discharge
of the special committee, and recover control of the Bill. Burr was
never given another opportunity to annoy his party by using his casting
vote; but meanwhile symptoms of hesitation appeared among the Northern
democrats, even more significant than the open insubordination of Burr.
On the day when Breckinridge succeeded in discharging the special
committee, Senator Ross of Pennsylvania presented a memorial from the
Philadelphia Bar, declaring their conviction that the actual Circuit
Court was a valuable institution, which could not be abolished without
great public inconvenience; and this memorial was enforced by a letter
in strong terms, signed by A. J. Dallas, Jefferson’s own district
attorney, and by the Republican Attorney-General of Pennsylvania,
Governor McKean’s son. The behavior of Senator Armstrong raised a fear
that the Livingstons were not to be depended upon; and hardly had the
Bill passed the Senate, February 3, by a vote of sixteen to fifteen,
than Armstrong resigned his post in order to let De Witt Clinton take
it. In the House, Dr. Eustis of Boston, alone among the Republicans,
opposed the repeal; but the tone of the debate and of the press showed
that few Northern democrats cared to risk the odium of a genuine
assault on the authority of the Supreme Court.
Another and still sharper hint was soon given to the Virginians.
At the moment when the Bill coming before the House roused there
an acrimonious debate, in which the Federalists assumed a tone
that exasperated and alarmed their opponents, the anniversary of
Washington’s birthday occurred. The Federalist Congressmen were
accustomed to give, February 22, what was called a banquet,--a practice
which verged so closely on monarchism that Jefferson made a secret of
his own birthday, for fear that his followers should be misled by the
example into making him a monocrat against his will. Either at Burr’s
secret instigation, or in a spirit of mischief, the Federalists this
year, on the pretence that they had voted for Burr as President only a
year before, invited him to their banquet.
“We knew,” wrote Bayard to Hamilton,[60] “the impression which
the coincidence of circumstances would make upon a certain great
personage; how readily that impression would be communicated to the
proud and aspiring lords of the Ancient Dominion; and we have not been
mistaken as to the jealousy we expected it would excite through the
party.”
In the middle of the feast the door opened, and the Vice-President,
courteous and calm as though he were taking the chair of the Senate,
entered and took a seat of honor at the table. His appearance was
expected, and roused no surprise; but to the startled amusement of the
Federalists he presently rose and pronounced a toast: “The union of all
honest men!”
This dramatic insult, thus flung in the face of the President and his
Virginia friends, was the more significant to them because they alone
understood what it meant. To the world at large the toast might seem
innocent; but the Virginians had reason to know that Burr believed
himself to have been twice betrayed by them, and that his union of
honest men was meant to gibbet them as scoundrels. They had no choice
but to resent it. Henceforward the party could not contain both him
and them. Within a few days De Witt Clinton’s newspaper, the “American
Citizen,” began the attack, and its editor Cheetham henceforward
pursued Burr with a vindictiveness which perplexed and divided the
Northern democrats, who had no great confidence in Clinton. What was
of far more consequence, Duane and the Philadelphia “Aurora,” after a
moment’s hesitation, joined in the hue-and-cry.