History of the United States During the Administrations of Thomas Jefferson/First/I:10

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Chapter 10: Legislation[edit]

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, sore 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, leaving the State unrepresented. While senators had not yet learned their power, representatives were restrained by party discipline, which could be defied only 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 States-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 States-rights. The Judiciary Act of 1789, even more that 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,[1] "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, Breckinridge 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 behaviour, 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. Governeur 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 behaviour 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,[2] "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.


  1. Hamilton to Bayard, Jan. 15, 1801; Hamilton's Works, vi. 419.
  2. Bayard to Hamilton, April 12, 1802; Hamilton's Works, vi. 539.