Gilbert Chinard

The battle over, Jefferson's first and only desire seems to have been to bring about a reunion of the former political opponents. He had hardly been elected when he declared that he was not the choice of one party, but that the analysis of the last ballot showed clearly that "the former federalists have found themselves aggregated with us and that they are in a state of mind to be aggregated with us."[415]

And this, much to the surprise and disappointment of the militants who had fought the hard battle with him and for him, was the keynote of his inaugural speech. Throwing overboard his former defense of the French Revolution, he did not hesitate to attribute the political storm which the ship had just weathered to the baneful influence of European disturbances:

During the throes and convulsions of the ancient world, during the agonizing spasms of infuriated man, seeking through blood and slaughter his long-lost liberty, it was not wonderful that the agitation of the billows would reach even this distant and peaceful shore; that this should divide opinions as to measures of safety. But every difference of opinion is not a difference of principle. We have called by different names brethren of the same principles.

Then came the final and definitive formula: "We are all republicans—we are all federalists."

In more than one sense this was the most characteristic and the most masterly of Jefferson's political utterances. The battle of Capitol Hill was ended, the last streamers of smoke had floated away and America had found herself: "a rising nation, spread over a wide and fruitful land, traversing all the seas with the rich productions of her industry, engaged in commerce with nations who feel power and forget right, advancing rapidly to destinies beyond the reach of mortal eyes."

This was not written simply for effect and for the public eye. To Monroe, Jefferson had declared that the policy of the new administration would not be a policy of reprisals. The victory had been won partly through the repentance of former Federalists who had seen their error, and during the awful suspense of the week of the eleventh to the seventeenth of February, had feared that the country would become a prey to anarchy. These he welcomed back into the fold; the leaders, of course, were irreconcilable, but the majority were to be forgiven, and few removals from office were to be made on the ground of political divergences of opinion. "Some, I know, must be made. They must be as few as possible, done gradually, and bottomed on some malversation or inherent disqualification."[416]

Of the thousands of Federal officers in the United States, the President estimated that not twenty would have to be removed, while in two or three instances, officers removed by Mr. Adams for refusing to sign addresses were to be restored. Jefferson realized that by so acting and "stopping thus short in the career of removal" he would give offense to many of his friends, and he added with some melancholy: "That torrent has been pressing me heavily, and will require all my force to bear up against; but my maxim is "fiat justitia, ruat cÆlum."[417]

All this sounds perfectly sincere and true. Even the most superficial consideration of Jefferson's life would convince any one that he was not a man of vindictive character. By nature a pacifier and a harmonizer, nothing would have been farther from his program than to revive the old fires and to prolong party strifes. But if it takes only one to declare war, it takes two to make peace, and the defeated party was in no peaceful mood. Hamilton was removed from the scene, and the form of government was apparently definitively settled by the election of Jefferson, but the Federalists had not given up every hope; they were still strongly intrenched and the battle went on during all of Jefferson's administration. It was not so spectacular as the fight with Hamilton, for the chief protagonist, John Marshall, lacked the dramatic qualities of the former leader of the Federalists; but it was no less momentous and no less important for the destinies of the United States.

When it came to actual removals, however, difficulties arose immediately. Whether in all cases Jefferson was rightly advised or inspired is open to question. The wisdom of appointing Samuel Bishop, a man of "sound understanding, pure integrity and unstained character", as collector of New Haven may be doubted, and there was something undeniably worth considering in the protest of New Haven merchants, that a man seventy-seven years old was unfit for such an office. The incident in itself was paltry, but the letter written by the President in answer to the protest put once again into light that curious mixture of theoretical idealism and practical political sense so remarkable in Jefferson. After all, the Federalists had begun with filling every office with their partisans and it was necessary to reËstablish a just balance, even if some individuals had to suffer. If the rights of the minority could not be ignored, the majority had its rights also and could not submit to the monopoly claimed by the Federalists: "Total exclusions," concluded the President, "call for prompt corrections. I shall correct the procedure; but that done, return with joy to that state of things, when only questions concerning a candidate shall be, is he honest? Is he capable? Is he faithful to the Constitution?"[418] In other words, Jefferson was not ready to proclaim the principle so frankly avowed later "to the victor belong the spoils." His principle was and remained absolutely different. But he considered that he was confronted by a situation which had to be remedied without any delay, and in his behavior he reminds one in some way of the French publicist who, although theoretically opposed to the death penalty, declared, "Que messieurs les assassins commencent!" Certainly this is not the pure and exalted morality of the political philosopher, but neither is it the cynical attitude of the political "boss", and one may wonder how many men who have occupied high offices would stand better than Jefferson in this respect if documents were available and could be subjected to the same scrutiny.

The fact remains, however, that during the battle from which he had come out victorious, Jefferson had to employ and sometimes associate with men whose character was not absolutely spotless. The presence of Aaron Burr in the government was already a thorn in his side. It was also particularly unfortunate that he had given aid and assistance to Callender, whose scurrilous attacks against Adams went far beyond a legitimate discussion of public utterances and actions of a man at the head of the government. Callender had been sentenced under the Sedition Act to a term in jail and liberated by Jefferson with all the other victims of the act when he took office. It was even more unfortunate that the pamphlet of Callender, "The Prospect Before Us", was reprinted under a modified title as the "History of the Administration of John Adams" more than a year after the new administration had taken hold of things. It was also regrettable that the son of John Adams should have been removed from office after the election. Soon after the death of Jefferson's younger daughter, Mrs. Adams, who had befriended the little girl when she arrived in London all alone in 1787, wrote to the bereaved father to express her sympathy. Jefferson took the opportunity to reassert his personal friendship for John Adams. He could not help mentioning, however, that one act of Adams' administration he had to consider as personally unkind, his last appointment to office of Jefferson's most ardent political enemies.[419] This letter called for an answer, and Mrs. Adams was not a woman to miss an opportunity to express her husband's views and her own on the removal of Federal judges and particularly of John Quincy. Thus Jefferson was led to write a final letter in which he expressed more clearly than he had done anywhere else his opinion on the judiciary and on the place it should occupy in the general scheme of government. To understand this letter fully it is necessary to go back to the beginnings of Jefferson's administration.

The original draft of Jefferson's message to Congress, December 8, 1801, contained a paragraph which, after more mature reflection, the President decided to omit "as capable of being chicaned, and furnishing something to the opposition to make a handle of."[420] In it Jefferson held the theory that the three powers existing in any government had been distributed among three equal authorities, constituting each a check on one or both the others. The President asserted that each of these three branches of the government had a right "to decide on the validity of an act according to its own judgment and uncontrouled by the opinions of any other department." According to this theory, even if opposition developed among different departments, no permanent ill could ensue, since at the next election the people were at liberty to refuse to reËlect those whose interpretation seemed erroneous.

Jefferson's disapproval of the Sedition Act had been known for a long time; he had a right to assume that his election meant that the people approved of his position and to make this declaration:

On mature deliberation, in the presence of the nation, and under the tie of the solemn oath which binds me to them and to my duty, I do declare that I hold that act in palpable and unqualified contradiction to the constitution, considering it then as a nullity, I have relieved from oppression under it those of my fellow citizens who were within the reach of the functions confided to me.

In its final form the message was far less provocative. It simply contained the statement that "the judiciary system ... and especially that portion of it recently enacted, will, of course, present itself to the contemplation of Congress." But the Federalists and particularly Marshall were not placated by this apparent moderation; they knew that the assault against the judiciary was about to begin. The debate between Federalists and Republicans had already been transferred to another ground.

No better account of it can be found than the chapters written on the subject by Albert J. Beveridge in his "Life of Marshall." It must be remembered, however, that Beveridge's account was necessarily colored by his own political views, as were the views of most historians of the subject.[421] One of the first episodes of the battle was the repeal of the Judiciary Act passed in 1801 by the Federalists, in order to reorganize the Supreme Court and to increase the number of Federal judges. This was immediately followed by the impeachment of Judge Pickering, the deposition of Judge Addison by the Senate of Pennsylvania, and the famous decision given by Marshall on "Marbury versus Madison." These incidents were of unequal importance and significance. It was recognized by Pickering's friends and family that the judge was half-demented and for several years had been unable to fulfill his duties. But since the Act of 1801 had been repealed, no one seemed to have authority at the time to remove the judge from office. The Pickering case simply provided the Republicans with an opportunity to test out their favorite contention, that impeachment was unrestricted and could be enforced against any officer of the government deemed undesirable by two thirds of the Senate.

Of far greater importance was the decision of Marshall in "Marbury versus Madison." The senior member of the Supreme Court formulated on this occasion a doctrine on the powers of the Court which, although never written in the Constitution, was to obtain final recognition and which to this day had remained one of the many unwritten laws of the land. Another most curious situation this, so disconcerting to historians and observers trained in the principles of Roman law, but often recurring in American politics and administrative life. The case itself was of no importance. Marbury was one of the "midnight judges" whose commission, signed by Adams, had been withheld by Madison, on the theory that the powers of the former President to make appointments had really expired, not on the third of March, 1801, at midnight, but on the day his successor was elected. It was maintained by the administration that the commission not having been delivered Marbury had no right to take office and to sit on the bench. Marbury had appealed to the Supreme Court, but the sessions of the Court being suspended for fourteen months by Congress, Marshall had at first no opportunity to declare himself publicly on the matter.

When he finally passed on the case, the Chief Justice saw at once that his hour had come, and gave his definition of the powers of the Court in its relation to the executive and the legislative. Curiously enough, as Beveridge remarked, the matter had never before come up and would have remained undecided for a long time, if this particular juncture had not made it a question of paramount importance for the destinies of the country. Briefly summed up, the theory of Marshall, shorn of its legal phraseology, was this: The happiness of the American people rested on certain principles embodied in the Constitution. These principles could not be altered by legislation; if, however, the legislative passed a law evidently contrary to the Constitution, there must be for the individual some recourse, some means of asserting his rights. In cases where Congress adopts laws contrary to the Constitution, these laws must be void. On this principle Jefferson and Marshall were in complete agreement. But from that point on they differed widely. The next question was to determine where does the power rest to declare a law unconstitutional? With the Executive and even with the States, Jefferson had first declared in his draft of 1801. With the Supreme Court, answered Marshall; for this is essentially a judicial function. Under this construction, the Constitution remains the supreme law of the land, but it is within the powers attributed by the Constitution to the judiciary, for the Supreme Court to decide on the constitutionality of an act passed by the legislature. Thus the Court is not placed above the Constitution, but its judges stand as the keepers and interpreters of the superior law of the country.

Jefferson did not engage directly in a controversy with Marshall and held his peace. But, as he was wont, he seized another opportunity to express his views on the subject, and he did it in his letter written to Mrs. Adams on September 11, 1804. In this, he maintained that "nothing in the Constitution has given the judges a right to decide for the Executive, more than to the Executive to decide for them. Both magistrates are equally independent in the sphere of action assigned to them." Judges believing a law to be constitutional have a right to pass sentences. But "the Executive believing the law to be unconstitutional were bound to remit the execution of it; because that power has been confided to them by the Constitution." What he did not say on this occasion, but repeated on many others, was that, the ultimate source of authority resting in the people, it was for the people to decide at the next election in case a conflict of interpretation should arise between any of the three branches of the government. In case of a conflict between the judiciary and the legislative, however, impeachment proceedings could be initiated and judges removed in a regular and, according to him, perfectly constitutional way.

It must be recognized here that the position taken by Jefferson was perfectly logical, far more logical than the interpretation given out by Marshall. Whether Jefferson's theory would have worked out satisfactorily is quite another matter. It is only too evident that perfectly logical constructions do not always fit the complexity and contradictions of human affairs. The system of democracy which was Jefferson's ideal at that time might have worked in the case of a New England town meeting; it would have been more difficult to apply to the government of a State. In the case of a large and growing federation of States, it would have injected into presidential and congressional elections constant elements of discord and bitterness. Thus the cost of liberty would not have been eternal vigilance, but eternal strife and political dissensions.

It may even be doubted whether Jefferson would ever have entertained such an extreme theory if at that time he had not been moved by immediate considerations. He had come to see in the judiciary, as it was constituted after the appointments made by Adams, an institution endangering the very life of the Republic. As for Marshall, who had hurled a challenge at the executive and the legislative branches of the government, it had to be ascertained whether some means could not be found to remove him from office.

That such was the ultimate intent of the Republican leaders was understood generally when proceedings were started to impeach Judge Chase of the Supreme Court. As in the case of Pickering, the Republicans had carefully selected the card they intended to play. Was he not the very man who had sentenced Fries to the gallows and Callender to jail, who had been relentless in his application of the Sedition Act and in the prosecution of Republicans? He had finally, and this was the immediate ground for his impeachment, bitterly criticized from the bench the repeal of the Federal judiciary act, and predicted that the country would be enslaved by mob tyranny and that soon "they would all establish the worst kind of government known to man."

The impeachment proceedings took place in the Senate room elaborately decorated for the occasion with a display of crimson, green, and blue cloth draping the rows of benches and the sections reserved for the heads of departments, foreign ministers, members of the House, and the general public. The Senate convened to hear the case on February 4, 1805, and for almost a month all other business was practically suspended. But it was far more than the fate of a single judge which was going to be decided. On the decision of the Senate hung not only the future of the Constitution but probably the fate of the Union. For New England had already on several occasions threatened secession; the North resented what was already termed "Virginia tyranny", and it was to be feared that these feelings of disaffection might be strengthened. It was also the most exciting ceremony the new capital had yet witnessed, and the formalities of the proceedings, the effort to clothe them with dignity and solemnity, presented a strange contrast with the uncouth appearance of the city itself, with its ramshackle boarding houses, its muddy streets, and surrounding wilderness.

The debates provided a rare occasion for an extraordinary display of American eloquence. This is not one of the least surprises to a student of American civilization, to discover the taste of the people as a whole for oratory and the remarkable gift of American orators for long speeches, even in the early days. Scarcely less surprising was the capacity of American audiences to listen patiently for long hours and with apparent interest to discussions and debates. It seems as if the gift attributed by CÆsar to the Gauls of old had been transferred to the new continent and to a people racially much different. Oratory was to a certain extent a new art, for few occasions were offered in the colonial times for long political speeches; but even in the early days of the Revolution, born orators appeared and since that time have filled the legislative halls with an inexhaustible flow of eloquence. This is said without the least irony and merely as another illustration of the danger of generalizing when discussing national characteristics. To the point these speeches were, perhaps, but they were not short by any means. A careful study of the development of the American school of oratory would certainly repay a specialist in the history of public speaking.

During the session, the oratorical stars were Luther Martin of Maryland, who spoke for Chase, and John Randolph, who summed up the case for the administration. It appeared, however, when the final vote was taken, that Jefferson had not been able to keep his party in hand. There were thirty-four senators, of whom nine were Federalists and twenty-five Republicans. Twenty-two votes were necessary to convict, but the administration was able to muster only sixteen for impeachment, and on one count Chase was proved unanimously "not guilty." For the time being John Marshall was safe, and the acquittal of Chase was undoubtedly a personal defeat for the President.

This wound to his amour-propre was compensated by the success of the last election. Jefferson had been reËlected without opposition; the strength of the Federalists as a separate party had dwindled to the vanishing point, and only three days separated him from the beginning of his second term. But everybody understood that the matter at issue had not been settled and that another test would have to be made. The very day Chase was acquitted, John Randolph introduced a resolution proposing an amendment to the Constitution, to the effect that "The judges of the Supreme Court, and of all other courts of the United States, shall be removed by the President on the joint addresses of both Houses of Congress requesting the same, anything in the Constitution of the United States notwithstanding." This was referred to a committee and, as Congress had only three more days to sit, it was decided by sixty-eight votes against thirty-three that the motion would be made the order of the day for the first Monday in December.

The assault against the judiciary constitutes one of the most striking episodes of Jefferson's first administration and has received its due share at the hands of American historians. It must not be forgotten, however, that even in other respects the President had no easy sailing. The friend of Priestley, Thomas Cooper, Volney, and Thomas Paine continued to be represented in the press and in the public as the champion of infidelity. The President could not engage in any controversy in order to justify himself but, according to his favorite methods, he encouraged his friends to hit back, and he became more and more convinced that the intrusion of the churches into politics was one of the worst evils that could befall any country. He soon came to the conclusion that many members of the clergy were unworthy to speak in the name of the great teacher; that the Christian doctrine had degenerated in their hands, and that no true religion could long exist when it was intrusted to the priests. Hence the many expressions of his preference for the Quakers so often found in his correspondence.

The indignation of the Federalists and the clergy reached a paroxysm when it was discovered that the President had not only invited Paine to come to America but had even promised him passage on a public vessel. For Paine was no longer remembered as the eloquent political writer who in prophetic accents had celebrated the uniqueness of America's position in the world. He was the detestable atheist who had participated in the bloody excesses of the French Revolution—a wretch unworthy of being thus honored by a Christian nation. Once more religion was injected into politics. The President was bitterly reproved by the New England clergy for having refused to proclaim days of fasting and thanksgivings as his predecessors had done, and Jefferson, who would have preferred to let sleeping dogs lie, had to come out and explain his position on an alliance between "Church and State, under the authority of the Constitution."[423]

That Jefferson, who was so restive under public criticism, suffered even more than he dared admit appears in many passages of his letters. "Every word of mine," he wrote to Mazzei, "which they can get hold of, however innocent, however orthodox, is twisted, tormented, perverted, and like the words of holy writ, are made to mean everything but what they were intended to mean."[424] The whole subject is not an easy one to treat and cannot be discussed here; but it would be very difficult to reach a fair estimate of internal politics during Jefferson's first administration if that element of hostility were entirely left out. We can only express the hope that some day it will receive due attention. An investigation of the New England papers and Church publications of the time would undoubtedly bring to light many hidden currents of hostility.

But, in spite of these difficulties, the new administration went ahead with a program of political reforms of great moment. No tradition for the respective duties of the Cabinet members and their relation to the President had yet been established. Under Washington's administration letters sent to the President were referred by him to the departments concerned to be acted upon, and letters sent to the department heads were submitted to the President with a proposed answer. Generally they were sent back with his approbation; sometimes an alteration was suggested, and when the subject was particularly important it was reserved for a conference. In this manner Washington always was in accurate possession of all facts and proceedings in all parts of the Union. This procedure had been impossible to follow during Adams' administration, owing to the long and habitual absences of the President from the seat of government, and little by little the department heads had assumed more and more responsibility, with the result that the government had four different heads "drawing sometimes in different directions." This usurpation of powers and this maladministration Jefferson meant to end. In a very courteous, but very firm manner, he reminded the members of the Cabinet that the President had been intrusted with a certain set of duties incumbent upon him and for which he was responsible before the public, and that he considered it necessary to return to the procedure followed by Washington. What had been an informal custom was to become a regular and official routine; it entailed an enormous expenditure of time on the part of the President, a great flexibility of mind, and a necessity of adapting himself to many different problems in the course of one day. To a large extent, Jefferson is responsible for placing on the shoulders of the chief executive the enormous load under which several Presidents have broken down.

This was not the most conspicuous reform introduced by Jefferson in the plan of government, yet it was one of the most important. Of no less consequence was the reform of the financial system of the United States. The privilege of the bank had still several years to run, but many other modifications could be introduced at once. Hamilton had multiplied the number of internal taxes and at the same time the number of Federal office-holders in order to strengthen his hold on the government. These had to be done away with, as well as the abominable excise taxes which had created so many difficulties under the preceding administrations. They were at best a temporary expedient, to be resorted to only in case of war, and the Federal Government had to make an effort to return to the more orthodox system of bringing its expenditures within the limits of revenue raised by taxes on importations. This was perfectly consistent with Jefferson's theory of the State rights and the general functions of the Federal Government. To substitute economy for taxation, to reduce the debt as rapidly as possible, to keep down the expenses for the navy and the army,—such was the policy of the new administration, and in his second annual message on December 15, 1802, Jefferson could point out with pleasure that "in the department of finance the receipts of external duties for the last twelve months have exceeded those of any former year." To care for the Louisiana Purchase, Gallatin recommended a loan of $11,250,000, running for fifteen years and carrying a six per cent. interest. But in his fourth message the President declared that "the state of our finances continues to fulfill our expectations. Eleven million and a half dollars received in the course of the year ending on the thirtieth of September last, have enabled us, after meeting all the ordinary expenses of the year, to pay upward of $3,600,000 of the public debt, exclusive of interest." Thus it was amply demonstrated that the financial structure of the Federal Government had not been endangered by a departure from Hamilton's policies. It is worth noting also that Jefferson's party, at that time, stood for a strong tariff, while the last Federalists advocated internal taxes. In that respect, at least, it is hardly possible to say that the present-day Democrats continue the Jeffersonian policies.

This system, however, presented many advantages in the eyes of Jefferson. In his first message he had made one of those many declarations, so often found in official documents of the sort, by which men in public life are wont to define their policies in almost sibylline terms, so as to express their own aspirations and satisfy the members of their party without arousing undue antagonism in an influential minority. "Agriculture," he had written, "manufactures, commerce, and navigation, the four pillars of our prosperity, are the most thriving when left most free to individual enterprise." But at once he had added: "Protection from casual embarrassments, however, may sometimes be reasonably interposed. If in the course of your observations or inquiries they should appear to need any aid within the limits of our constitutional powers, your sense of their importance is a sufficient assurance they will occupy your attention." This second statement could only mean one thing, that the President was not ready to depart entirely and radically from Hamilton's policy of giving encouragement to manufactures. But there is no doubt that in his opinion America was to remain essentially an agricultural nation. He still had before him the vision of a large country in which every citizen would live on his own land and from this land derive most of his subsistence instead of congregating in large cities. It was a Vergilian vision magnified a million times; it was based also to a large extent on his own experience at Monticello where he had proved that it was possible to manufacture tools, to bake bricks, to make furniture, and to maintain a comparatively large family on the products of the soil. He was not ready to antagonize openly those who dreamed of another future for America, and he did not believe that he had a right to do so, since his duty was to carry out the wishes of the people.

Jefferson was not the man to take the lead in these matters, but he was not the man either to oppose any measure to encourage manufactures and commerce that Congress would deem proper to adopt. On this point he had not varied since the letter he had written from Paris to Hogendorp. His preference for "an agricultural condition" remained largely theoretical, sentimental, and personal. He may be considered as the leader of an agrarian party, he may have felt in sympathy with the French Physiocrats, but when it came to practice he acted very much like Du Pont de Nemours himself who, in spite of his theories, spent all he had to establish a tannery and a powder mill near Wilmington, and at the end of his days proposed to the American Government a "Plan for the Encouragement of Manufactures in America." If it is true that during Jefferson's administration industrial and agricultural interests clashed for the first time in America, I fail to see that the President made any effort to favor agriculture at the expense of industry.

When the end of his first term approached, Jefferson did not need any coercion to remain in the saddle for another period of four years. It had already been decided that Aaron Burr would not and could not again be a candidate, and George Clinton was chosen as running mate of Jefferson. Never in the history of the United States was an election so little contested: Jefferson obtained one hundred sixty-two electoral votes while his opponent could only muster fourteen. The Republican Party had really become the National party and the President had been able to achieve political unity.

CHAPTER II