With an Epicurean so strongly bent on hiding his life, not much can be done. During the campaign of 1804, Mr. Jefferson remained as usual inactive in his own behalf, and silent under worse partisan defamation, if any could be worse, than was visited on him in 1800. He also kept an unsleeping eye on the political neutrality of his officeholders. Writing to Gallatin a month before the election, he mentions his fear that “the officers of the. Federal Government are meddling too much with the public elections. Will it be best to admonish them privately or by proclamation?” No activity was needed, however, on any one’s part; Mr. Jefferson carried every State but two. The inexorable State of Connecticut went solidly against him with nine electoral votes, and Delaware with three. Two of Maryland’s eleven votes were against him, and the total vote was one hundred and sixtytwo to fourteen.
Undeniably he had a popular mandate; yet hardly had he begun to look about him in his second term before he saw signs of disaffection. He had for a year been anticipating something of the kind. In 1803 he wrote Gallatin that he suspected trouble in Pennsylvania “between the moderates and highflyers,” and he predicted that “the same will take place in Congress whenever a proper head for the latter shall start up.” Sure enough, John Randolph, after a period of restlessness, broke with him, and drew some other Republican leaders together into a small faction which, from its position as a political tertium quid, became known as the Quid faction. Mr. Jefferson’s former Vice-President, Aaron Burr, was also a prolific trouble-breeder. Burr was one of the few towards whom it was temperamentally difficult for Mr. Jefferson to be strictly just. His sharp practice in securing a charter for a company in New York, nominally to provide the city with water but really to start a bank, was exactly the kind of thing that would stick in Mr. Jefferson’s mind. Again, Burr’s attitude towards public office during the preceding Administrations, his way of showing “that he was always at market” when a high military or diplomatic appointment was pending, made a most unplesant impression on Mr. Jefferson. Yet this distrust never degenerated into anything like personal enmity. Mr. Jefferson respected Burr’s ability, and if Burr had not unexpectedly landed in the Vice-Presidency, would have given him a high appointment out of regard “for the favour he had obtained with the Republican party by his extraordinary exertions and successes in the New York election in 1800.” But with the impressions that he had of Burr, “there never had been any intimacy between us and but little association.” Characteristically, he treated Burr with distinguished civility, wished to be just to him, and avoided him as much as he could.
He was slow to believe that Burr’s expedition was directed against the integrity of the Union, but when convinced, he behaved towards Burr with unjustifiable severity. His preceptors, Wythe and Small, might have shaken their heads gravely at their “man of science” prejudging Burr’s guilt while the matter was still at issue before the court. It now seems improbable that Burr was guilty as charged. Quite possibly his advertised purpose of setting up a colonizing project on an old land-grant issued to a Baron Bastrop was his real purpose, or at most, he may have contemplated ultimately some such land-grabbing enterprise as was carried out in 1836 by Houston. It is at all events certain that Mr. Jefferson’s confidence in General Wilkinson, his principal informant, was misplaced. Probably therefore, Burr’s trial resulted accidentally in substantial justice, notwithstanding its character of sheer travesty. The spirit of Mercutio may indeed have given an unconscious import to the action of a mob in Baltimore, which at the close of this discreditable performance burned in effigy both Burr and the presiding judge, John Marshall.1
Foreign relations involved Mr. Jefferson in further factional difficulties. England and France were again at war, each trying to draw in the United States against the other; England, moreover, according to her invariable policy, trying at the same time to cripple the rising commercial power of a potential rival. Both nations vigorously exercised piracy against American trade, leaving Mr. Jefferson’s margin of choice a narrow one. War with both Powers was out of the question; war with either was highly inadvisable at the time, as it meant not only a great debt, but an impracticable interruption of the policy of domestic development. “If we go to war now,” Mr. Jefferson wrote Monroe, “I fear we may renounce forever the hope of seeing an end of our national debt. If we can keep at peace eight years longer, our income, liberated from debt, will be adequate to any war, without new taxes or loans, and our position and increasing strength put us hors d’insulte from any nation.” Any increase in the national debt, or any slowing-up of its discharge, meant just so much strengthening of exploiting power directed against the producer. After the battle of Trafalgar, he saw that war with England was coming, but he was for holding off for a fair prospect that “by war we should take something and lose less than at present.” Perhaps, too, if the United States persisted in passive neutrality, self-interest might induce the belligerents to stop their depredations on American trade; they might see that by sweeping American trade off the ocean, they hurt themselves more than they hurt the United States. Meanwhile, one of two things might be done. The Administration might give formal notice of the state of war in Europe, and proclaim that every American ship that left its native waters did so at its own risk. Instead of this, Mr. Jefferson proposed a measure wholly subversive of the principle of liberty, and fraught with far more serious economic consequences and with political consequences at least as serious. In fact, the most arbitrary, inquisitorial and confiscatory measure formulated in American legislation up to the period of the Civil War was the Embargo Act.
The agrarians bore its hardships with fair patience, and the other producing interests displayed a good measure of fortitude, but the capitalist, industrial and trading interests went into paroxysms of indignation. In the long-run, the Act worked out far better for these latter than for the producing interests, but their view of its incidence was as short as Mr. Jefferson’s own. The difficulty of enforcement was immense. “The Embargo law is certainly the most embarrassing one we have ever had to execute.” Mr. Jefferson wrote naively to Gallatin, “I did not expect a crop of so sudden and rank growth of fraud and open opposition by force could have grown up in the United States.” Its political consequences were easily predicable. “Our Embargo has worked hard,” Mr. Jefferson wrote to Short. “It has in fact Federalized three of the New England States.” It did worse than that; it brought a threat of secession, under which Congress repealed the measure, the repeal to become effective on the day that its author retired from the Presidency. “I yielded, with others,” Mr. Jefferson said, “to avoid a greater evil.” But he never lost faith in the policy of the Embargo, and seems never to have had an inkling of its economic unsoundness. He was aware in 1808 that “should neither peace nor a revocation of the decrees and orders in Europe take place, the day can not be distant when the Embargo will cease to be preferable to open hostility.” He was also aware that since the Embargo had been running fifteen months, the loss in exports came to more than the cost of war, “besides what might be got by reprisal.” This consideration helped somewhat in reconciling him to the repeal. Nevertheless he persisted in believing that a continuance of the Embargo for two months longer would have effected its purpose, and would have averted the War of 1812.
IV
Mr. Jefferson’s imperfect sense of the economic causes that lie behind political development did not permit him to foresee the shift of his adversaries to their permanent stronghold in the Judiciary. Yet this shift was natural and inevitable. All that could be done through the legislative and executive branches had been done. The thing now necessary was to develop a central instrument of political power which should be permanent, independent of the elective principle and able to overrule it when, as happened in 1800, a popular majority should vote itself into control of these branches and administer them into inimical courses. The power of the Federal Judiciary was available as an instrument of absolutism, and to it accordingly the monopolist and exploiting interests of the country i
mmediately took recourse.
Even after the fact, Mr. Jefferson was slow to get the bearings of this shift, and their economic rationale, indeed, he never got. Even in the last year of his life, he wrote about the subject with a simplicity almost naïve; his view of the process was so clear, and yet his understanding of its purpose remained so limited. “At the establishment of our Constitutions the judiciary bodies were supposed to be the most helpless and harmless members of the Government. Experience, however, soon showed us in what way they were to become the most dangerous; that the insufficiency of the means provided for their removal gave them a freehold and irresponsibility in office; that their decisions, seeming to concern individual suitors only, pass silent and unheeded by the public at large; that these decisions, nevertheless, become law by precedent, sapping little by little the foundations of the Constitution and working its change by construction, before any one has perceived that the invisible and helpless worm has been busily employed in consuming its substance.”
Nothing could be clearer than this view of the dangers of centralization in government, and that of the Judiciary as a centralizing agency. If this process went on, he saw plainly that the condition of Americans would be “as in Europe, where every man must be either pike or gudgeon, hammer or anvil. Our functionaries and theirs are wares from the same workshop, made of the same materials and by the same hands. In 1800 he wrote Granger of his belief that “a single consolidated government would become the most corrupt government on earth”; and twenty-one years later he remarked to Macon that “our Government is now taking so steady a course as to show by what road it will pass to destruction, to wit: by consolidation first, and then corruption, its necessary consequence. The engine of consolidation will be the Federal Judiciary; the other two branches the corrupting and corrupted instruments.” He also wrote William Johnson in 1823 that there was no danger he apprehended so much as “the consolidation of our Government by the noiseless and therefore unalarming instrumentality of the Supreme Court. This is the form in which Federalism now arrays itself, and consolidation is the present principle of distinction between Republicans and the pseudo-Republicans, but real Federalists.”
But why? What was the substantial motive of this surreptitious movement towards centralization? Mr. Jefferson was almost in full view of it when he observed to Granger in 1800, “What an augmentation of the field for jobbing, speculating, plundering, office-building and office-hunting would be produced by an assumption of all the State powers into the hands of the General Government!” Twenty-five years later, with almost his last breath, he speaks to Giles of those who “now look to a single and splendid Government of an aristocracy founded on banking institutions and moneyed corporations, under the guise and cloak of their favoured branches of manufactures, commerce and navigation, riding and ruling over the plundered ploughman and beggared yeomanry.” Here he comes plump upon the essential fact of a government fashioned for the distribution of wealth by political means rather than by economic means—for the economic exploitation of one class by another. But he did not recognize this fact when he saw it, for in his next sentence he reverts to his old bugbear—“This will be to them a next best blessing to the monarchy of their first aim, and perhaps the surest stepping-stone to it!” Yet the only conceivable practical gain by monarchy is absolutism, and if absolutism can be effected quite as well by the native mechanism of a Federal Judiciary, why trouble to import the foreign mechanism of monarchy?
Yet though his mind never correctly interpreted it, his instinct somehow felt this essential fact as the one that justified his opposition to a strong centralized government. It is mere idleness to think of the author of the Embargo Act as a doctrinaire enemy of strength in government. It is quite as idle to think of one who wrote as Mr. Jefferson did repeatedly in 1787 about the coercion of the States under the Articles of Confederation, as a doctrinaire enemy of centralization. If the Articles were not specific enough, he was for construing them quite as loosely as John Marshall himself might have done. “The coercive powers supposed to be wanting in the Federal head, I am of opinion they possess by the law of nature which authorizes one party to an agreement to compel the other to performance.” His instinctive objection was not to strength, but to irresponsibility; not to centralization in itself, but as an engine of exploitation. He never failed in respect to his old doctrine that “the people who constitute a society or nation [are] the source of all authority in that nation”; that they properly exercise that authority on the elective principle, as far as it will go, and then on the principle of revolution; and that “the people are the only censors of their governors.” In purchasing Louisiana, and in the matter of the Embargo, he had acted as an elected agent, answerable for the exercise of discretion in extraordinary circumstances. If the people did not like what he had done, they were “free to transact their common concerns by any agents they think proper; to change these agents individually, or the organization of them in form and function, whenever they please.” His exercise of power in laying down the Embargo Act, and in the unexampled severities of its enforcement, was the act of a strong central authority, but a responsible authority. With the eye of instinct he saw a great difference between this and a progressive insidious refashioning of government with intent to nullify the elective principle and abrogate official responsibility—and all for the final purpose of putting the legality of economic exploitation forever beyond the reach of both.
His second term was a steady fight against this process. He saw the Judiciary, led by “a crafty chief judge who sophisticates the law to his mind by the turn of his own reasoning,” made up of non-elective officers installed for life and answerable to none—for impeachment, as he found in the case of Justice Chase, was “not even a scarecrow”—he saw these functionaries “construing our Constitution from a co-ordination of a general and special government to a general and supreme one alone. This will lay all things at their feet.” When the case of Marbury vs. Madison was cited in the Burr trial, he took the ground that the material point in the Supreme Court’s decision—the point that Constitutional interpretation was a fixed function of the Court—was a “gratuitous opinion” on a hypothetical matter not properly within the contemplation of the Court, and was therefore not law. “The judges in the outset disclaimed all cognizance of the case, although they then went on to say what would have been their opinion had they had cognizance of it. This, then, was confessedly an extra-judicial opinion, and as such, of no authority.” He moreover gave notice that if need be, he would meet the Court’s encroachments with his old weapon of nullification by the Executive. “I should be glad therefore,” he wrote the Federal prosecutor in charge of the proceedings against Burr, “if in noticing that case you could take occasion to express the determination of the Executive that the doctrines of the case were given extra-judicially and against law, and that their reverse will be the rule of action with the Executive.”
But he always lost. The Chief Justice’s “twistifications in the case of Marbury, in that of Burr and the Yazoo case, show how dexterously he can reconcile law to his personal biasses.” They showed more than that; they showed how completely the Chief Justice was in the economic tradition of the Fathers. His decisions in these cases, with his subsequent decisions in the cases of McCulloch, Dartmouth College and Cohens, made the economic system of the United States, which was contemplated by the Constitution, formulated by Hamilton, put in operation by the Administrations of Washington and Adams, forever impregnable.
V
“The present principle of distinction between Republicans and the pseudo-Republicans, but real Federalists.” One may pause upon these words. In his reflections on the schisms and defections that took place in his second term, discovering himself so much alone in his resistance to the surreptitious structural refashioning of the government, Mr. Jefferson, like Hamilton, failed to reckon with one most important effect of the cohesive power of public plunder. With America opening as the land of unpreced
ented monopolist opportunity, men would of course be impelled to get out of the producing class and into the exploiting class as quickly as possible. It was not hard to foresee a time when, for instance, the greatest producing industry of the country, agriculture, would be exploited to the point of bankruptcy as an industry, leaving the rise in land-values as the only source of profit to the agriculturists. Nor, considering the tendency just mentioned, would it be hard to predict that the political will of the landowning agriculturalists themselves would be chiefly responsible for this breakdown. Mr. Jefferson never seemed aware that the prospect of getting an unearned dollar is as attractive to an agrarian as it is to a banker; to a man who owns timber or mineral deposits as it is to one who owns governmental securities or who profits by a tariff. For this reason he could not understand why Republicanism almost at once became a mere name. Nothing could be more natural, however, than for Republicans who saw any chance of participation in monopoly to retain the name and at the same time resist any tendency within the party to impair the system that held out this prospect. The certain course of political development, therefore, was towards bipartisanship; nothing could stop it. Party designation would become, like ecclesiastical designation, a merely nominal matter, determined by family tradition, local or sectional habit, or other causes as insignificant as these. The stated issues between parties would become progressively trivial, and would more and more openly tend to be kept up merely to cover from scrutiny the essential identity of the parties. The effect of this upon the practical conduct of politics would precisely correspond to that which Mr. Jefferson remarked in England. “The nest of office being too small for all of them to cuddle into at once, the contest is eternal which shall crowd the other out. For this purpose they are divided into two parties, the Ins and the Outs.”
Jefferson Page 21