History of the United States During Thomas Jefferson's Administrations (Complete 4 Volumes). Henry Adams
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