The Activist

by Lawrence Goldstone

  With so much riding on whether or not electors would adhere to their parties’ orders, both Federalists and Republicans were determined to do everything possible to ferret out the outcome. Within days, results began to trickle out, and they suggested a stunning outcome. Two weeks later, Jefferson wrote to Madison:

  The election in S. Carolina has in some measure decided the great contest. Tho’ as yet we do not know the actual votes of Tennessee, Kentucky, & Vermont, yet we believe the votes to be on the whole, J. 73, B. 73, A. 65. Rhode isld withdrew one from P. There is a possibility that Tennessee may withdraw one from B., and Burr writes that there may be one vote in Vermont for J. But I hold the latter impossible, and the former not probable; and that there will be an absolute parity between the two republican candidates. This has produced great dismay and gloom on the republican gentlemen here, and equal exultation on the federalists, who openly declare they will prevent an election, and will name a President of the Senate, pro tem. by what they say would only be a stretch of the constitution.20

  Only days after Jefferson posted his letter, a full, state-by-state tally was published in a number of American newspapers, and the numbers matched Jefferson’s. Not only had the South Carolina electors failed to vote for Pinckney, but only one of the 276 electoral votes had been cast against strict party discipline, the Federalist elector in Rhode Island who had cast a vote for John Jay instead of Pinckney.

  The nation now knew—John Adams had lost.

  But, as Jefferson had noted in his letter, just because Adams had lost did not necessarily mean that he had won. The Republicans had blundered. The Tennessee elector had evidently not withheld his vote for Burr. Each of the seventy-three Republican electors had dutifully cast votes for Jefferson and Burr. Sixty-four of the sixty-five Federalist electors cast their votes for Adams and Pinckney, while one voted for Adams and Jay. If even one Republican elector had avoided voting for Burr—and it had been widely speculated that the Georgia electors had intended do just that—the result would have reflected the clear intention of the voters to put Jefferson in the presidency. As things stood, however, the tie between Jefferson and Burr meant that the election would be decided between them in the House of Representatives instead of by the electors.*

  The Federalist defeat had extended farther than just the presidency. The party had lost both houses of Congress as well, and by wide margins. On March 4, 1801, Republicans would control the House 69–36 and the Senate 18–14, and Jefferson’s Republicans would be the beneficiaries of the first genuine transfer of power in the nation’s brief history.21 As the results became public and accepted, at least as far as the parties were concerned, Federalists’ resentment at the magnitude of their defeat was exacerbated by the knowledge that Jefferson’s victory in the presidential race had been enabled by the three fifths of the slaves that had been counted for apportionment in the Southern states. If slave electors had been eliminated, Adams would have been reelected 63–61.22

  Yet despite the debacle, Federalists, as Jefferson had also noted, would remain in power for three more months. On February 11, when the House would choose the president and vice president, the old Federalist Sixth Congress, not the new Republican Seventh Congress, would be in power. Federalists therefore had the power to produce all sorts of mischief, including blocking an election altogether and appointing a president pro tem to run the country from Congress. Leading Federalists denied that they intended what amounted to a coup, but Republicans suspected that some trickery was in the works, particularly because of the odd distribution of seats in the House.

  The Sixth Congress was an incongruity. Although Federalists held a 64–42 majority in seats, because of the extreme concentration of Federalist seats in New England and the all-Federalist delegation from South Carolina, Republicans actually controlled more state delegations, eight to seven, with Vermont’s two-man delegation consisting of one from each party. To complicate matters further, although Federalists controlled five of Maryland’s eight seats, one of the five quickly announced his intention to vote for Jefferson, thus creating a potential 4–4 deadlock. With sixteen states in the Union, nine delegations would be required to elect the president. Jefferson was one state short, but Federalists did not control enough state delegations to force a deal.

  During the course of the following weeks, rumors flew, plots were hatched, conspiracies initiated. One idea was for Congress to claim voting irregularities in the South and invalidate enough of Jefferson’s electors to keep Adams in office. Another had members procedurally damming up the process in such a way as to perpetuate rule by the current Congress past March 4. A rumor circulated among Republicans that certain arch-Federalists were plotting to have Jefferson assassinated and another that recent fires in the new buildings housing the Treasury Department and War Department had been intentionally set by Federalists eager to destroy documents that incriminated the Adams administration in unspecified malfeasance.

  In the end, however, few Federalists were willing to risk the nation’s future or even civil war by trying to overturn the election and retain power.23 The only real issue was which poison the Federalists would ultimately swallow—Jefferson or Burr—and on this, the party was deeply divided. Burr was widely considered unscrupulous and untrustworthy, but without real ideology and with a greater mercantile sensitivity than the agrarian Jefferson. And he was a Northerner. Jefferson, on the other hand, was seen as essentially honest, but an ideologue and tool of French radicals, a man who would destroy the nation’s business and turn the country over to the rabble.

  Most High Federalists preferred Burr, with whom it was widely assumed a deal could be struck. Some thought Burr could even be converted to Federalism out of gratitude, if the party satisfied his immense ambition to gain the presidency. Alexander Hamilton favored Jefferson, whom he detested, over Burr, whom he both detested and mistrusted. Adams also favored Jefferson, with whom, despite their current estrangement, he had a history of mutual struggle and triumph not easily forgotten. Also, to Adams’s credit, he knew that Jefferson had been the choice of the voters and felt it would be far better for the nation if that choice was acknowledged.

  In early January, Burr justified Hamilton’s mistrust. After assuring Jefferson that he would accept the vice presidency and refuse any entreaty to the higher office, Burr began circulating feelers, letting it be known that he would gladly be president if offered the job. When there were no repercussions, Burr took the logical next step and told acquaintances that he intended to actively seek the position. That was all High Federalists like Oliver Wolcott needed to hear, and they decided to back Burr.

  Yet even if they could persuade the divided states to go their way, Federalists knew they still could do no better than a tie. Assured of remaining in power only until March 3, Adams and his party, now somewhat reconciled by adversity, were determined not to waste what could be their last weeks in office. A torrent of legislation was introduced in the House and Senate. While a number of favored bills regarding lighthouses, post roads, and other pet projects were eventually voted into law, by far the most attention was paid to the judiciary.

  The judiciary was the only branch of government not susceptible to shifts in the electoral wind, now blowing a gale to Jefferson, and the only way to retain a semblance of nationalism in what was sure to be a wave of Republican decentralization was to create a stronger federal court system.

  On December 11, virtually at the moment this reality was sinking in with Adams and his fellow Federalists, William Davie arrived in New York from France, bearing two documents from Chief Justice Ellsworth. Davie made immediately for Washington City, where both documents were delivered to the president.24

  The first was the long-sought-after agreement with France. Called the Convention of 1800, it had been signed with great pomp at Joseph Bonaparte’s estate at Môrtefontaine on October 3. Although he would later be roundly criticized for giving away too much to get too little—precisely how Jay’s Treaty was characterized
—Ellsworth had, in fact, brought about an end to the Quasi-War with both American honor and the American navy intact. The agreement required Senate ratification, but the mere fact of its existence was an enormous boost to Adams’s flagging spirits.

  The second document brought less-welcome news. In a letter dated September 30, Oliver Ellsworth informed Adams that he was resigning as chief justice of the Supreme Court for reasons of health. Ellsworth would not even return to the United States to make himself available for persuasion, choosing instead to winter in England.

  Ellsworth’s resignation had more profound significance than simply creating a vacancy on the Court. The previous April, it will be remembered, four obscure New England Federalists had voted to defer debate on the court reorganization bill. Had they not done so, if the bill had completed debate in April, then been passed by a Federalist Congress and signed into law, President Adams would not be allowed to fill the Ellsworth vacancy—he would have been required to appoint one of the sitting justices as chief so that the Court would consist of only five members. And if that happened, as no one else resigned during Adams’s term, John Marshall could not have been nominated to the Supreme Court. Since the only way Marshall would get near the Court in a Jefferson presidency was as an attorney, those four Federalists had cast their votes not for a trivial motion on procedure, but rather, as it turned out, to enable the Marshall court. With the bill only pending at the time Ellsworth’s resignation reached the capital, Adams was free to appoint a Federalist chief justice. After the bill passed, two more resignations would be required before Jefferson was allowed to nominate his first Supreme Court justice. Freeman, Shepard, Foster, and Davenport had thus been unwittingly responsible for one of the seminal appointments in American history.

  Adams was well aware that Ellsworth had set him in a procedural trap. If a new chief justice was not approved by the Senate before Adams signed the judiciary bill—which he would have to do sufficiently before March 4 to get all those new judges, clerks, United States attorneys, and marshals appointed and confirmed—the seat would be lost when the Court was reduced to five justices.

  The president was therefore under enormous pressure to act quickly. On December 18, just days after Davie arrived in Washington City, the Senate received the following communication from the president: “Gentlemen of the Senate: I nominate John Jay, Esq. Governor of the State of New York, to be Chief Justice of the United States, in the place of Oliver Ellsworth, who has resigned that office. JOHN ADAMS.” The president dashed off a letter to Jay, then in Albany, informing him that he had been re-nominated as chief justice. “Nothing will cheer the hopes of the best men so much as your acceptance of this appointment,” Adams added.25

  Jay was an excellent choice. He was considered a moderate, yet was respected by all wings of the party, and he had served as chief justice before. Even Jefferson was relieved. “Jay was yesterday nominated Chief Justice,” he wrote to Madison. “We were afraid of something worse.”26 Unfortunately, as he had done with Marshall’s secretary-of-war nomination, Adams had not bothered to consult with Jay first and was unaware that the New Yorker, who had recently stepped down as governor, had informed friends of his intention to retire from public life.

  The next day, December 19, the Senate confirmed Jay while, in the House, “the bill to provide for the more convenient organization of the courts” was finally reintroduced. It was again given its first and second reading before being referred to the committee of the whole house for debate. Jefferson wrote to Madison one week later and first gave his younger colleague a rundown of the situation. “All the [electoral] votes are now come in except Vermont and Kentucky, and there is no doubt that the result is a perfect parity between the two republican characters.” He was less flip about the courts bill. “[The Federalists] have got their judiciary bill forward to commitment. I dread this above all the measures meditated, because appointments in the nature of freehold render it difficult to undo what is done.”27

  Jay received his signed and sealed commission in the last days of December, along with a letter from Secretary of State Marshall urging him to accept the position. Jay, by this time only fifty-five years old, might have deferred his retirement and heeded this one last call to public service except for the rigors of the position. He had made it known during his first term in the Court that he loathed riding circuit and, with the court bill yet to be passed, that was still officially part of the job. He wrote back to Adams in early January that his health was too tenuous to expose himself to “the fatigues incident to the office.”28 Unaware that Adams planned to ram through the reorganization bill, he was also unwilling to return to a Court still under the aegis of the Judiciary Act of 1789, which he had fruitlessly hoped would be revised. “Under a system so defective,” he had written, “[the judiciary] would not obtain the energy, weight, and dignity which are essential to its affording due support to the national government, nor acquire the public confidence and respect which, as the last resort for the justice of the nation, it should possess.”29 Jay returned the commission to Marshall, on the grounds of poor health.*

  Almost two weeks elapsed before Adams received Jay’s letter. Although most who knew him had assumed that Jay would decline the appointment, Adams was devastated. He summoned his secretary of state, who arrived to find the president standing disconsolately with Jay’s letter in his hand. According to Marshall, Adams “said thoughtfully, ‘Who shall I nominate now?’ I replied that I could not tell, as I supposed that his objection to Judge [Paterson] remained.30 He said in a decided tone, ‘I shall not nominate him.’ After a moment’s hesitation he said ‘I believe I must nominate you.’ ”31 Marshall’s nomination was sent to the Senate the following day, January 20, and, despite some foot-dragging by High Federalists who wanted Adams to withdraw the nomination in favor of Paterson, the nomination was approved one week later. John Marshall thus became the fourth chief justice of the Supreme Court of the United States.

  Marshall, who had intended to return to his law practice and land speculation when Adams’s term ended, was not altogether thrilled with the appointment. Until he himself joined its ranks, strong indications are that Marshall shared Hamilton’s Federalist 78 assessment of the judicial branch as “beyond comparison, the weakest of the three departments of power.” Placed in charge of the government’s transition from Philadelphia to the District of Columbia by Adams, Secretary of State Marshall thought so little of the Supreme Court that he either did not notice or did not care that planners of the new capital had made no provision for its accommodations. No chamber had been set aside for the Court to meet, nor were any plans in place for a law library, office space, housing for the six justices, or even staff. Marshall received two letters from the district commissioners, one in December 1800 and the other in January 1801, asking him to recommend remedies, but he apparently did not reply to either until he realized it was his own working space that he had been ignoring.

  On January 20, 1801, Marshall’s nomination came before the Senate and the courts bill passed the House. With the February term of the Court due to begin in just over a week, “The Speaker laid before the House a letter from the Commissioners of the city of Washington, requesting that an arrangement may be made for the lodging of the Supreme Court of the United States, in the Capitol.”32 Three days later, the House “Resolved that leave be given to the Commissioners of the city of Washington to use one of the rooms on the first floor of the Capitol for holding the present session of the Supreme Court of the United States.”33 The Senate acceded to the resolution the following day.

  Marshall may well have regretted his inattention to the Court when he saw the room that had been assigned to it, a noisy, unfinished Committee Room 2 on the Senate side of the first floor, next to the main staircase, “meanly furnished and very inconvenient.”34 The justices were to sit at desks on a raised platform instead of behind a bench, and the Court had still not been assigned a secretary or staff. The Supreme Court of the United St
ates lacked even an official reporter, since the man who had held the job in Philadelphia, Alexander Dallas, had refused to abandon his sophisticated city to pioneer in the new capital.

  Far more significant than second-rate accommodations was that the Court itself had sunk to such low repute. The one time the Court had asserted itself on a constitutional question—the Chisholm case—Congress had responded by passing the Eleventh Amendment to nullify the ruling. While in theory most legislators and members of the executive acknowledged that the Supreme Court should have some role in constitutional interpretation, after a decade, the nature of that role had not yet begun to be determined. Judicial review as it was to be established in Marbury was not remotely an accepted notion, and “both Congress and the executive could lay greater claim to constitutional finality than the Court.”35

  No one was more aware of the inconsequence of the Court than the justices themselves. For the February 1801 term, Marshall’s first, two justices, Paterson and Moore, stayed home, averse to wasting their time in swamp-ridden Washington City. Circuit-riding had been often abandoned as well, and circuit courts, which relied on the willingness of the justices to undertake a semi-annual tour, had withered.

  In accepting the position of chief justice, Marshall was taking on not only the judicial task of establishing relevance for the nation’s highest court, but the political task of creating a judiciary that could serve as the only counterbalance available to a government controlled by Republicans. Until his elevation to the highest judicial office in the nation, Marshall’s experience with the law had been solely as an advocate. Whether in the courtroom, at the ratifying convention, or on the floor of the state or national legislature, Marshall had never before been in a job one of whose requirements was, at least in theory, the suppression of his own personal politics for a higher good. Until this point, Marshall had had the luxury of maintaining that his political beliefs would inevitably lead to a higher good. Although affability often disguised it, Marshall was an intensely political man, skilled in achieving consensus but even more skilled at winning.