In contrast to Marshall and Chase, forty-five-year-old Alfred Moore of North Carolina stood only four feet, five inches tall and weighed eighty-five pounds. A founder of the University of North Carolina, Moore made up for his diminutive stature with lightning-fast wit and caustic sarcasm. Thirty-eight-year-old Bushrod Washington was the youngest member of the court—seven years younger than Marshall—but already a close friend when Marshall became Chief Justice. Bushrod and Marshall had studied law together with George Wythe at College of William and Mary and later served together both at the Virginia ratification convention and in the Virginia House of Delegates. He and Marshall were still collaborating on their massive biography of Bushrod’s uncle, George Washington.
Eager to establish warm relationships with his new colleagues, Marshall invited them to dine, and before they had finished their first meal together, his winning ways had conquered them all. As they sipped their last glasses of Madeira before adjourning, he reminded his colleagues of the resentment many Americans harbored against England. He convinced them to do away with opulent English-style judicial wear in favor of black robes like his, as symbols that they carried no colors in making judicial decisions.
Marshall’s warmth, humor, and intelligent conversation produced instant collegiality and bonhomie among the justices that none had ever experienced in the bleak capital city. The absence of their wives and families and the reticence of congressmen to draw too close to men who might one day judge them had made the capital a dull, lonely place for the justices. They eagerly embraced Marshall’s invitation to lodge in the same boarding house and share meals together.
“Our intercourse is perfectly familiar and unrestrained,” Associate Justice Joseph Story effused to his wife after he joined the Court, “and our social hours when undisturbed with labors of law, are passed in gay and frank conversation, which at once enlivens and instructs. . . . We live with perfect harmony.”3
The harmony of the justices contrasted sharply with the angry dissonance in the Senate when Vice President Jefferson announced the Electoral College votes of the 1,800 presidential election: John Jay, 1; Charles Cotesworth Pinckney, 64; President John Adams, 65; Aaron Burr Jr., 73; Thomas Jefferson, 73.
Ironically, Jefferson had not won the election as much as Alexander Hamilton had lost it. By dividing Federalist votes in the Electoral College, Hamilton had cost John Adams the presidency. In fact, Federalist unity would easily have given Adams both a popular and Electoral College majority. Hamilton’s machinations had not only toppled a popular President; they had produced a tie that sent the nation into a constitutional crisis that had some congressmen threatening secession—even civil war.
Although the Twelfth Amendment would later require separate votes for President and vice president, all votes in the Electoral College in 1800 were cast for individual candidates. The candidate with the most votes became President and the one with the second-most votes vice president. Each elector had two votes to cast. If a tie resulted, the Constitution required the House of Representatives to break the deadlock. Burr seemed to have precluded that eventuality months earlier, however, by stating, “It is highly improbable that I shall have an equal number of votes with Mr. Jefferson, but if such be the result, every man who knows me ought to know that I would utterly disclaim all competition.”4
Shortly thereafter, however, Burr’s close friend, New York’s politically powerful Republican Governor George Clinton, apparently roused Burr’s dormant ambitions: “If you, Mr. Burr, was the candidate for the presidential chair,” the governor announced, “I would act with pleasure and with vigor.”5
With Clinton’s words ringing in his ears, Burr listened carefully as Jefferson announced the Electoral College tally. He then shocked Jefferson, the Republican Party, Congress, and the nation by renouncing his earlier intention to serve as Jefferson’s vice president and challenged the Virginian for the presidency.
“I never thought him an honest, frank-dealing man,” Vice President Jefferson growled at Burr, “but considered him a crooked gun, or other perverted machine, whose aim or stroke you could never be sure of.”6
Jefferson’s angry attack on Burr, however, spurred many Federalists to support the New Yorker. Burr’s religious roots as grandson of Jonathan Edwards and his gallant service to the nation as a colonel in the Revolutionary War contrasted sharply with Jefferson’s evident cowardice during the Revolution, his open scorn for organized religion, and his letter to Mazzei insulting the “father of our country.” By supporting Burr, some Federalists hoped he might react to Jefferson’s assaults on his character by switching to the Federalist party.
Of the many ironies of the 1800 election, the most puzzling was the constitutional obligation of House Federalists to choose their nation’s next President from the two Republicans their nominal leader Alexander Hamilton most detested. If they failed, they would leave the nation without a chief executive to head the government when the incumbent President, vice president, and Congress left office on March 4.
Adding still more drama to the Burr-Jefferson impasse, an article signed Horatius in the Washington Federalist asserted falsely that in the event of a deadlock on March 4, Congress could appoint a President until another election was held. Alarmed by the article and convinced the author was John Marshall (it was not), James Monroe wrote to warn Jefferson of “intrigues” by Jefferson’s political enemies.
“There has been much alarm at the intimation of such a projected usurpation,” Monroe told Jefferson, “and a spirit fully manifested not to submit to it.”7
Monroe’s son-in-law, the prominent attorney George Hay, assailed Horatius, demanding that he “come forward,” identify himself, and defend his opinion. Writing under the pseudonym Hortensius, Hay asserted that Horatius had created “anxiety and alarm . . . throughout America.” Hay warned that if Congress elected “a stranger to rule over us . . . the usurpation will be instantly and firmly repelled. The government will be at an end.”8
Jefferson seconded Hay: “We thought best to declare openly and firmly,” Jefferson proclaimed, “that the day such an act passed, the Middle States would arm and that no such usurpation, even for a single day, should be admitted to.”9 Jefferson pledged resistance “by arms” and said he would act to set aside the Constitution and call “a convention to reorganize and amend the government.”10
To prevent Jefferson from acting, House members resolved to remain in session until they elected a new President.
They began voting at one o’clock that afternoon. Sixteen states made up the Union, with Vermont, Kentucky, and Tennessee having joined the original thirteen. Eight state delegations in the House had Republican majorities, and six had Federalist majorities, with two delegations evenly divided. Each state had one vote, and the next President would need to win nine states.
Tensions grew as each state called out its preference:
“Connecticut! . . . Delaware! . . . Massachusetts! . . . New Hampshire! . . . Rhode Island! . . . South Carolina!”
“Burr!” each shouted in reply as the clerk called the roll of the states.
“Georgia . . . Kentucky . . . New Jersey . . . New York . . . North Carolina . . . Pennsylvania . . . Tennessee . . . Virginia . . .
“Jefferson!”
“. . . Vermont . . .”
“Vermont!” the clerk’s voice rang out a second time.
Still, only silence. Vermont delegates had clustered together, whispering to each other, caucusing. Angry shouts rang out in the hall, demanding their reply.
“Vermont!”
In the end Vermonters were evenly divided and agreed to abstain from voting. Maryland abstained for the same reason.
Delegates stood, stretched, then clustered—grumbling, arguing, and gesturing until the Speaker called for order and a second ballot. The results were the same: six states for Burr, eight for Jefferson—and a collective moan from all.
A third ballot followed, with no change . . . three more with similar resu
lts. With the completion of each ballot, the chorus of moans turned into a crescendo of frustrated shouts and outrage. When calm returned, members agreed to adjourn for an hour before resuming their balloting.
The House reconvened and voted eight more times that afternoon and evening—past nine. Members sent away for food, pillows, and blankets, preparing to spend the night if they had to. All knew that unless they succeeded in electing a President, the nation would be without a chief executive or vice president three weeks later and be unable to function. Clerks awakened members for another vote at 1 a.m., but the count stayed the same . . . again, at 2 a.m. . . . at 2:30 . . .
The twenty-seventh ballot came at dawn, just as someone revived rumors of Hamilton leading the army to Washington. The rumors spawned more rumors: Virginia Governor Monroe, according to one report, had responded to Hamilton’s insurgency by sending militiamen to secure the federal arsenal in New London, Virginia. Another rumor insisted that a citizen mob in Philadelphia had seized a federal arsenal and was marching to defend the capital against Hamilton.
None of the rumors had any basis in fact.
On Friday, February 13, the House reconvened for two more useless ballots before adjourning until the following morning.
A new rumor emerged that House Federalists would name Chief Justice Marshall acting President. After Jefferson repeated his pledge of civil war if Congress attempted to seat a Federalist as President, rumors reached the Capitol that 500 armed Marylanders were on their way to back Jefferson’s threat.
“Nothing new today,” wrote Pennsylvania’s Republican Senator Albert Gallatin after the House reconvened on Saturday, February 14. “Three more ballots, making in all 33; result the same.”11
When the House reconvened on Monday morning, February 16, a thirty-fifth ballot failed to break the impasse, and Delaware’s lone delegate, the exhausted Federalist James Bayard, stunned his colleagues by grumbling he might shift his vote from Burr to Jefferson on the next ballot.
Like other Federalists, he had received one of the dozens of letters Alexander Hamilton had rained on the House to influence votes. In one letter Hamilton admitted he had often vilified Jefferson as “a contemptible hypocrite, tinctured with fanaticism . . . crafty and persevering in his objects . . . not scrupulous about his means of success nor even mindful of the truth.”12 But, Hamilton added, Burr was worse—“a man without principles”—and Hamilton said he preferred “a man with misguided principles [Jefferson] as President to one with no principles at all [Burr].”13
Marshall, who had served with Hamilton and Burr at Monmouth, responded curtly: “To Mr. Jefferson, I have felt almost insuperable objections.”
His foreign prejudices seem totally to unfit him for the chief magistracy of a nation which cannot indulge those prejudices without sustaining deep and permanent injury. . . . The morals of the author of the letter to Mazzei cannot be pure. . . . I cannot bring myself to aid Mr. Jefferson.
In the end Marshall decided to remain neutral, saying, “I can take no part in this business.”14
On Tuesday, at noon, February 17, the House voted a thirty-fifth time, and Bayard succumbed to “the current of public sentiment, which I thought it neither safe nor politic to counteract.” He announced he would switch his vote from Burr and deliver Delaware to Jefferson.15
“Deserter!” shouted a Federalist House member.
“Coward!” others echoed, waving their fists.
Some charged Jefferson had bought Bayard’s vote with promises of patronage; others turned and stomped out the door, shouting they would “go without a constitution and take the risk of civil war” before accepting “such a wretch as Jefferson.”
“The clamor was prodigious,” Bayard recalled, “the reproaches vehement,” but he said he feared further prolongation of the House stalemate would come “at the expense of the Constitution.”16
As the shouting abated and a handful of more thoughtful House leaders gathered about Bayard, they admitted they had but two choices: “Risk the Constitution and a civil war or take Mr. Jefferson.”17 Before casting their votes, however, they huddled for long minutes in a corner of the chamber, whispering, gesturing curiously, and finally disbanding—some even wearing grim smiles. They had found a way to clear Jefferson’s way to the presidency without voting for him—even sparing Bayard the epithet of turncoat.
Bayard withdrew his vote, along with Federalist delegates from Maryland, Vermont, and South Carolina, all of whom abstained from voting, thus leaving only Jeffersonian Republicans to vote in those states. In the final ballot Republicans carried ten states, allowing Thomas Jefferson to claim victory as third President of the United States.
A collective explosion of joy shook the nation’s cities, towns, and villages—not because Jefferson had won but because the nation had avoided civil war. Sixteen cannon blasts (one for each of the states) resounded in Baltimore and other large cities, and church bells pealed in Richmond, Philadelphia, New York. “Three hundred Philadelphia Republicans are now drunk beyond the hope of recovery,” proclaimed the Gazette of the United States. “Gin and whisky prices are said to have risen in price 50 per cent.”18
“The voice of the people has prevailed,” the National Intelligencer reported more calmly, “and Thomas Jefferson is declared by the Representatives of the People to be duly elected President of the United States.”19
Jefferson rejoiced in a letter to Lafayette: “The storm we have passed through proves our vessel indestructible.”20
Jefferson’s victory astonished the British and Europeans as much as it did Americans. For the first time in modern history an incumbent political party had ceded control of government to an opposition party without violence. The bitter House balloting had tarnished the transition somewhat, but no shots had been fired, there had been no assassinations, no coup d’état, no military intervention. At the very least the results suggested that a self-governing republic might well survive in a world ruled largely by absolute monarchs.
“This whole chapter in the history of man is new,” Jefferson crowed to a friend two weeks after his inauguration.21
In a disingenuous show of attempted reconciliation, Jefferson invited his cousin Chief Justice John Marshall to administer the oath of office at his inauguration. On March 4, 1801, some 300 officials and guests crowded into the Senate chamber for the first presidential inauguration in the nation’s new capital.
Without ceremony the new vice president, forty-five-year-old Aaron Burr Jr. of New York, took his chair as President of the Senate. Seated beside him was Jefferson’s fellow Virginian John Marshall. When Jefferson entered, Burr ceded his chair and sat in an adjacent seat, thus sandwiching Jefferson between two of the men he disliked most in the political world—Marshall and Burr. According to custom at the time, Jefferson rose to make his inaugural speech before taking his oath of office. He seemed to reach out to political opponents as well as allies:
“Every difference of opinion is not a difference of principle,” he proclaimed. “We are all Republicans, we are all Federalists.”22
John Adams was having none of it. The former President left the capital before dawn on Inauguration Day, refusing to congratulate the new President or attend any of the ceremonies associated with his assumption of office. He slipped out of the capital like a thief in the night. He would never again exchange a word with Hamilton, and it would take more than a decade—and his wife’s cajoling—before he would begin a civil correspondence with Jefferson.
“I believe he left the city at 4 o’clock in the morning,” John Marshall wrote of Adams to Charles Cotesworth Pinckney, his old friend from XYZ days. Pinckney had retired from Congress to his South Carolina plantation. “I have administered the oath to the [new] President. You will before this reaches you see his inauguration speech. . . . It is in direct terms giving the lie to the violent party declamation which elected him.”
The Democrats* are divided into speculative theorists and absolute terrorists. With the latt
er I am not disposed to classify Mr. Jefferson. If he arranges himself with them it is not difficult to foresee that much calamity is in store for our country—if he does not, they will soon become his enemies and calumniators.23
Despite President Jefferson’s plea for reconciliation, his shaky victory exacerbated the nation’s political chaos. Burr now seethed with hatred for Hamilton and Jefferson; Jefferson seethed with hatred for Burr and Hamilton; and the American people seethed with hatred for Congress, whose Alien and Sedition Acts had temporarily stripped them of constitutional rights to free speech and a free press.
Americans also harbored deep disgust with the political system for having forced from office a President they respected as the logical successor to George Washington and who had actually more supporters than the new incumbent. By splitting the Federalist party, Hamilton destroyed it as a viable political force and created dangerous tears in the fragile national political fabric. The Federalists lost not only the presidency and vice presidency, they lost control of both houses of Congress, with Jefferson’s Republicans winning 18 of 32 Senate seats, or 56.3 percent of the votes, and 64 of 105 seats in the House of Representatives, or a 61 percent share of the votes. In effect President Jefferson and the Republicans had won a mandate to govern as they saw fit.
Annoyed at public mutterings that he had not won a majority of the popular vote and was, therefore, a minority President, Jefferson did not wait long to abandon his pledge of political reconciliation. At the end of the summer after the presidential inauguration Chief Justice Marshall issued the first decision of his tenure, and Jefferson reacted with fury, pledging to dilute the Court’s powers.
Complaining that the finality of the Court’s decisions left no opportunity for appeal, Jefferson charged that decisions by an unelected body like the Supreme Court contained “the germ of dissolution of our federal government.” He called the Court “irresponsible . . . advancing its noiseless step like a thief over the field of jurisdiction, until all shall be usurped from the states.”24
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