Madison and Jefferson

by Nancy Isenberg;Andrew Burstein

  When the repeal bill moved to the House, James Bayard of Delaware (one of the Federalists who had tried to put Burr in the presidential chair) accused Jefferson of demagoguery. Bayard called his Republican colleagues puppets of the president, presuming them subject to the same vindictive spirit. In time, he predicted, as the executive succeeded in stripping the courts of competent judges, the real power would be lodged in “one man.” Only the judicial branch was capable of “rising above the storm” of partisanship, he said; only the judiciary could keep the “fierce passions of a victorious faction” at bay.

  Republicans shot back. Could anyone forget the sordid legacy of the Alien and Sedition Acts? John Randolph of Roanoke bitingly remarked that the judiciary did nothing when the people’s liberties were at stake. And now, touch but “one cent of their salaries, abolish one sinecure,” and they suddenly become great champions of the Constitution. Surely Madison’s summons to appear in the Marbury case was in Randolph’s mind when he accused the Federalists of trying to establish an “inquisitorial authority over the Cabinet of the Executive.”40

  The Republicans overturned the Judiciary Act by the slimmest of margins, 16 to 15, in the Senate; but they had a healthy margin of 59 to 32 when the House voted. After Jefferson signed the bill, sixteen district court judges (fifteen of them Federalists) were shorn of their lifetime appointments. Republicans then passed their own Judiciary Act, reestablishing the circuit court design that existed prior to 1801. Supreme Court justices, not only district judges, would suffer the indignity of having to ride the circuit, which meant traveling on horseback long distances to preside over district court sessions. On the Senate floor, sharp-witted Gouverneur Morris of New York derided the change, noting that judges required “less the learning of judge than the ability of the post-boy”—the youths who delivered their newspapers. Meanwhile, in eliminating the June 1802 session of the Supreme Court, Republicans in Congress found a way to postpone the Marbury hearing. On February 10, 1803, when the Court finally met, it was clear that long delays had done nothing to cool partisan animosity. Two weeks later, Marshall issued his decision.41

  Madison and Jefferson must have expected Marshall to rule in favor of Marbury, in order to dictate the limits of executive authority. Instead, the chief justice ruled in favor of Madison. But there was a twist—or perhaps more than one. Asserting that the judicial branch of government was entrusted to explain the meaning of the law, Marshall overturned a portion of one section of the 1789 Judiciary Act, a piece of legislation that had authorized the Supreme Court to deliver a writ of mandamus (an order to hand over a document) to a federal officeholder. According to Marshall, the Supreme Court lacked authority to issue the writ; Congress had assigned jurisdiction to the Supreme Court when the federal Constitution stipulated otherwise. Marbury would have to seek redress from a court other than the Supreme Court.

  Marshall could have limited himself to this ruling. But his real intent, as both a politician and a jurist, evidently was to lecture the current president and secretary of state. And so he elaborated. They were wrong to maintain that an appointment was not official until delivery of the commission, he said. The appointment could not be annulled. It was official, because it had President Adams’s signature on it and the seal of the government, which Marshall himself had affixed as secretary of state, in early 1801. The next president had no right to “sport away the vested rights of another.” So as he chided Jefferson, he also took Madison to task for his passivity in confusing his political obligation to the president with the performance of the separate and distinct legal duties of his office. Twenty of the twenty-seven pages of Marshall’s opinion were devoted to showing how Jefferson had violated the law. Madison, in this construction, was a mere pawn.

  In response to Jefferson’s offensive against the Federalist-controlled judiciary, Marshall had turned the bench into his bully pulpit. Unafraid of his Republican critics in Congress, he passionately defended judicial scrutiny of the executive. In his ruling, though he wrote on behalf of the entire Court, Marshall gave conspicuous evidence of his personal sense of outrage. He called Republicans’ accusations of partisanship “absurd and excessive”—allegations that the Court refused to entertain, even for a moment. But of course, that was precisely what Marshall was doing when he decided to introduce the subject into his official opinion.

  He was not quite finished with Congress either. The Court had every right to reject laws “repugnant to the Constitution,” he explained, saying that to ignore his responsibility would be to subject the government to “legislative omnipotence.” He took particular umbrage at the remarks of John Randolph, saying that by weakening the courts the Republicans were no less responsible for curtailing the rights of others than those who enacted the Sedition Acts were.42

  What Marshall did not say in Marbury v. Madison, though modern interpreters have claimed he did, was that the Court’s decisions were binding on the two other branches of government. He was far more concerned with protecting the boundaries of the judiciary from legislative and executive encroachments than he was in elevating the Supreme Court above the other federal departments. Marshall even conceded important ground to the Republicans: Supreme Court justices agreed to ride the circuit without complaint. And in another decision, Stuart v. Laird, the Court agreed that the legislative branch, in certain instances, could restructure the judiciary. As the legal historian Kent Newmeyer has concluded, “Survival was the order of the day … not supremacy.”43

  The case of Marbury v. Madison was decided in the administration’s favor, but the lecture Chief Justice Marshall gave was more than a contingency. It symbolized his wish to shed a critical light on the Jefferson administration and intimate that it needed to remain under close scrutiny. The Republican press saw the decision as an example of judicial overreach. Jefferson saw it as an affront, and it stuck in his craw until the end of his days.

  Jefferson might well have preferred for Chief Justice Marshall to have compelled Madison to hand over the commission. As president, he would then have persisted in withholding it, rejecting the court’s authority to question his discretion. Or perhaps, he would have agreed to hand over the commission but issued a statement of his own against judicial interference, using his own lawyerly erudition to pick apart the logic Marshall applied in his ruling.44 In any event, the official whose name was associated with the Marbury case, James Madison, was barely harmed by it. And even the snappish Joseph Dennie, who was not beyond diagnosing hard-working diplomat James Monroe’s “mental imbecility,” noted in his Port Folio: “It is a justice due to the present secretary of state, Mr. Madison, to observe that the disgrace [of Marbury v. Madison] is not entirely imputable to him.”45

  “Surely a Philosopher May Kiss His Wench”

  James T. Callender presented a much different problem. Back in May 1801, Jefferson had shrugged off Callender’s crass assertion that he could embarrass the president if his demands for office were not met. “He knows nothing of me which I am not willing to declare to the world,” Jefferson confidently told Monroe. Callender made good on his threat in September and October 1802, when he published a series of articles in the Federalist Richmond Recorder, ridiculing Jefferson for keeping an “African Venus” as his concubine at Monticello.

  Even the friendly travel author John Davis, in the book he dedicated to Jefferson, sexualized female slaves. He described the “liberty” they enjoyed on the Sabbath, and how they dressed up in “garments of gladness, their bracelets, and chains and ear-rings, and deck[ed] themselves bravely to allure the eyes of the white men.” Nor, he went on, did they fail to please, “for as the arrow of a strong archer cannot be turned aside, so the glance of a lively negro girl cannot be resisted.”46

  Callender had never seen Sally Hemings; he identified her based on the accounts of unidentified citizens of Albemarle County. As Federalist newspapers lapped up each report, the Republican press reacted: “From four to eight columns of newspaper which ought to be devote
d to useful information are filled with low and venomous slander against Mr. Jefferson.” As to the “abandoned libelers,” the Republican Star vented: “False, base, wicked, and malicious, indeed they are.” Republicans claimed that they scarcely took the time to think about invented stories aimed at the president’s “private feelings” because they were undoubtedly designed for a gullible Federalist press by the crass Callender, “whose infamy is proverbial.” That did not stop the Federalists from having their fun. One paper went so far as to record the president’s purported monologue on learning what Callender had done: “He broke into a violent passion, and so far forgot the dignity of office as to call him a damn’d rascal, a damn’d eternal miscreant, and other such polite christian phrases.”47

  Joseph Dennie printed “original poetry” on the subject, all of it laden with an undisguised repugnance toward dark skin. Even before the scandal broke, he told sexually charged anecdotes. One concerned a “celebrated surgeon” whose apprentice had run off with his wife: “The lady complained that her husband’s practice was on the decline.” In one of his many efforts to satirize Jefferson, Dennie mocked the Jeffersonian truth that all were created equal—in black-speak. One stanza credited the generic slave “Quashee” with the logic that his natural equality should permit him to cross the color line in choosing a mate:

  And why should one hab de white wife,

  And me hab only Quangeroo?

  Me no see reason for me life!

  No! Quashee hab de white wife too.

  Once Callender’s reports began circulating, Dennie was amused that the president would lie with a slave after having written in Notes on Virginia that blacks emitted “a strong and disagreeable odor” (the italics are Dennie’s). Prefacing verse imported from the Boston Gazette, he remarked: “If, according to the elegant proverbs of Dr. Franklin, ‘a man may kiss his cow,’ surely a Philosopher may kiss his wench.”

  Dear Thomas, deem it no disgrace

  With slaves to mend thy breed,

  Nor let the wench’s smutty face

  Deter thee from the deed.

  Showing the famously philosophical Jefferson stepping out of character gave the defeated party means of gratification.48

  As the much-publicized scandal relates to the partnership of Madison and Jefferson, we have no evidence of how the two treated the matter in their private moments; but it seems unlikely that they would have been uncomfortable discussing it. As a man habituated to the ways of Virginia plantation life who did not marry until he was in his forties; and as one who was on familiar terms with the house servants at Monticello, James Madison obviously knew Sally Hemings and knew the truth. Having been just as deeply involved with Callender as Jefferson, Madison would have confirmed for Jefferson that the best way to deal with the writer was to publicly ignore the charges.

  Callender’s intelligence coup went beyond what took place on Jefferson’s property. As good as the tale of “copper colored Sally” was, moralizing editors found in Jefferson’s “more criminal and flagitious” behavior—the attempted seduction of his neighbor John Walker’s wife Betsy, in 1769—even better fodder. The picture of “a certain moral man being forced out of a gentleman’s house with an insulted husband’s foot at his crupper” (a horseman’s slang for rump) was irresistible.49

  Dennie continued to needle the president into 1803, compiling a host of barbs he had used over the years, in another, intentionally mediocre, ode:

  Of wit and folly, genius void of sense,

  Malicious deeds, and mildness in pretense,

  And pious Atheism, profligate and grave,

  Serenely pure, and wenching with a slave.50

  As the months passed, Republican newspapers were still smarting from Callender’s handiwork. One of these was New York’s American Citizen, which indulged in sexual smears itself, shamelessly calling Aaron Burr debauched—even homosexual. In July 1803 its aggressive editor, James Cheetham, saw fit to remind readers of the “foul slander about Sally,” as he compared Callender to one Richard Croucher, a convicted rapist and murderer whose name was known to all Manhattanites. “The whole federal party have looked up to Callender as the wretch deputed by Hell to overturn the present administration,” Cheetham wrote scornfully.51

  On July 17, 1803, Callender drowned in the James River. According to the Virginia Gazette, “The water being shallow where it happened, ’tis supposed he was affected either by the cramp or a fit. He went into the water for the purpose of bathing, which was his regular practice.” The sensation-driven writer was, the paper assured, “decently interred” on the day that he died. A letter from Richmond, published in New England, had something else to add to initial reports: Callender was seen on the morning of his death “much intoxicated.” While the coroner’s report declared the death “accidental,” the deceased had been embroiled in a very public argument over money at the time of his demise. This was all anyone knew. Apparently, whether or not his drowning was an accident, there were people other than supporters of the president who wished to see harm come to James Callender.52

  Even afterward Jefferson haters posted occasional reminders of Callender’s work. The Trenton Federalist argued, in a religious tone, that what those who lived near Monticello said about Jefferson carried the weight of truth: “In the immediate neighborhood of the President, the same allegations against him, which are impudently contradicted at a distance, are still recapitulated in the most circumstantial manner. Does not this manifest the warmest confidence in their truth?” The New Jersey editor compared Jefferson’s neighbors to the apostles: they were as incapable of misrepresenting “Lord Jefferson” as the latter were of misrepresenting the character of Jesus.53

  New England Federalists savored the poetic justice. Jefferson had previously attempted to deny or downplay his prior connection to Callender, when Callender was conveniently targeting President Adams. Jefferson the “virtuous philanthropist” had posed for citizens as something he was not—detached and disinterested. That is how the most eager of the Federalist editors viewed him. So from the pen of the once-trusted Callender, the two-faced politician had gotten his comeuppance.

  People believed what they wanted. Many years later, when Jefferson was past eighty, an apologetic colleague of Callender’s bemoaned the “paroxysms of inebriety” that had elicited the mercenary writer’s most noxious stories. By then Jefferson undoubtedly believed that his private life would never again be the subject of lurid speculation. We, of course, know otherwise. Callender’s columns outlived not just their author but everyone else who was alive at the time of their publication, remaining so much a part of the nation’s tortured conversation about race relations that science finally turned to DNA to establish the paternity of Sally Hemings’s children.54

  “Yazoo Man”

  In 1789, the year George Washington became president, the Yazoo Company of Virginia, led by Patrick Henry, petitioned Georgia for land grants to settle its western parts. Similar companies formed in South Carolina and Tennessee. Ignoring Washington’s displeasure with the plan, Georgia consented in 1794 to put millions of acres in private hands.

  Three years later Congress reversed the sale and redefined the Mississippi Territory to encompass a considerable chunk of the Yazoo lands. By this time many would-be settlers had already paid the original speculators for their land, and no one could say who held valid title. The worst part of the business was what had happened in Georgia’s state legislature in 1794: the Yazoo land syndicate bought the votes of most of the representatives, so that investors could obtain land grants at an exceedingly low price. Georgians smelled a rat right away.

  The Jefferson administration inherited this knotty problem. A fraud had taken place; no one was trying to deny it. When national attention turned to the Louisiana Purchase, relations with Spanish-held lands, and the future of the Deep South and Southwest, the cabinet took up the Yazoo matter. Madison, Gallatin, and Attorney General Levi Lincoln put their heads together and worked toward a reso
lution. In 1802 Georgia was compensated for its cession to the federal government of the millions of acres in question, in what is now Alabama and Mississippi. The three cabinet officers revisited the claims of private individuals and came up with a compromise that apportioned land and money, though no party was entirely happy with the result.

  At this moment John Randolph of Roanoke, a Virginia planter with a rich genealogy, made himself heard. Tall, awkwardly formed, and boyish in appearance owing to a genetic condition, he was noticed even before he opened his mouth—which he did often and for hours at a stretch. He happened to be in Georgia at the time the scandal broke, and the display of corruption forever marked him. Randolph’s standard of republican purity was impossibly high; he could not consent to any administration that compromised on such an issue. For some years friendly toward Gallatin, and as yet unready to see Jefferson as a betrayer, the theatrical young congressman with the high-pitched voice directed his criticism toward the generally unassailable Madison, whom he knew less well.

  Randolph was one of the most temperamental persons ever to serve in Congress. He was trained for Virginia politics from early on, because the field was open to any Randolph, certainly one of such ambition. In 1790 he studied law with then–Attorney General Edmund Randolph in Philadelphia. His forensic talent was legend: he knew instinctively how to apply his splendid memory when he felt inspired to cite classical verse or unleash spontaneous invective. He treated hyperbole as an obligatory first step in any argument. Randolph also had the tendency, once he formed an objection to someone, to allow the feeling to fester and grow; there was no turning back for him. In identifying Secretary of State Madison as a “Yazoo man,” Randolph refused to let go of the image in his mind. It would color his actions for years to come, as his power as a provocateur increased and placed him front and center in the sensationalizing columns of the American press. In Randolph’s lexicon, once you were a “Yazoo man,” you could not be a real republican anymore.55