The Federalism of James A. Bayard 9780231893831

Table of contents :
Acknowledgments
Contents
Introduction
I. A Home in Delaware
II. Bayard’s Early Life
III. France and Federalists, 1797–1801
IV. Factionalism in Congress
V. The Impeachment of William Blount
VI. One Great Commercial Republic, 1797–1803
VII. Charge and Countercharge: The Election of 1800
VIII. Leader of the Minority
IX. The Great Judiciary Debate
X. Bayard’s Defeat
XI. Retirement, then Retribution
XII. Congressional Affairs, 1805–1806
XIII. Struggle Between the Independents: Adams and Bayard
XIV. War or Peace: 1806–1809
XV. A Plea for Peace
XVI. The Bipartisan Mission
Epilogue
Notes
Bibliography
Index

Citation preview

T H E FEDERALISM OF JAMES A. BAYARD

NUMBER

584

C O L U M B I A S T U D I E S IN" T H E SOCIAL S C I E N C E S EDITED BY THE

F A C U L T Y OF P O L I T I C A L OF C O L U M B I A

SCIENCE

UNIVERSITY

THE FEDERALISM OF JAMES A. BAYARD By MORTON BORDEN

COLUMBIA UNIVERSITY PRESS NEW YORK 1955

The Columbia Studies in the Social Sciences (formerly the Studies in History, Economics, and Public Law) is a series edited by the Faculty of Political Science of Columbia University and published by Columbia University Press for the purpose of making available scholarly studies produced within the Faculty.

LIBRARY OF CONGRESS CATALOG CARD N U M B E R :

COPYRIGHT 1 9 5 4

55-5557

COLUMBIA U N I V E R S I T Y PRESS, N E W

F I R S T P U B L I S H E D A S A BOOK

P U B L I S H E D I N GREAT B R I T A I N , C A N A D A , I N D I A , A N D BY GEOFFREY CUMBERLEGE, OXFORD U N I V E R S I T Y LONDON, TORONTO, BOMBAY, A N D

MANUFACTURED

YORK

1955 PAKISTAN PRESS

KARACHI

I N T H E U N I T E D STATES OF AMERICA

ACKNO WLEDGM ENTS To Professor Dumas Malone of Columbia University I am most grateful for sponsoring and directing this work and for his valuable aid and advice from its inception through its conclusion. Professor Richard B. Morris of Columbia University read the entire volume and I am indebted to him for many invaluable suggestions. Professor Harold Hyman of Earlham College and his wife Feme aided me in countless ways. Dr. James Smith of Ohio State University read specific parts, and his criticism benefited me immensely. Miss Estelle Schachter's moral support and fine typing deserve more than these few words. For the aid of other colleagues at the City College of New York and at Ohio State University, as well as for the help of the librarians at the New York Public Library, New York Historical Society, Historical Society of Delaware, Historical Society of Pennsylvania, and the Library of Congress, I am most grateful. Chapters V, VII, and X have previously appeared in the pages of Delaware History. I should like to thank the publishers for their permission to reprint this material. MORTON

Ohio State September,

University 1954

BORDEN

CONTENTS Introduction

3

i.

A Home in Delaware

9

ii.

Bayard's Early Life

IS

HI.

France and Federalists, 1797-1801

23

iv.

Factionalism in Congress

36

v.

The Impeachment of William Blount

47

vi.

One Great Commercial Republic, 1797-1803

62

vii.

Charge and Countercharge: The Election of 1800

73

viii.

Leader of the Minority

96

ix.

The Great Judiciary Debate

106

x.

Bayard's Defeat

126

xi.

Retirement, Then Retribution

137

xii.

Congressional Affairs, 1805-1806

144

xiii.

Struggle between the Independents: Adams and Bayard

157

xiv.

War or Peace: 1806-1809

169

xv.

A Plea for Peace

178

xvi.

The Bipartisan Mission

192

Epilogue

199

Notes

203

Bibliography

241

Index

251

T H E FEDERALISM OF JAMES A. BAYARD

INTRODUCTION The subject of this study was the progenitor of Delaware's most famous political family, a family which has remained active in national affairs to the present day. H e himself served in the lower and upper houses of Congress for more than a decade, was renowned for his legal and oratorical abilities, saw service as the leader of the Federalist party in Congress, and as a minister helped to fashion the Treaty of Ghent. Subsequent generations of Bayards have performed similar functions for their country. Like the Adams family of Massachusetts, but on a minor scale, the history of the Bayards of Delware provides a capsule history of the United States. This is reason enough for a study of J a m e s A. Bayard, a figure historians have sometimes confused. William E. Dodd, for example, in his biography of Nathaniel Macon, refers to Bayard as a congressman from New Jersey. 1 Katharine Anthony, in her work on Dolly Madison, misunderstands the relationship between Bayard and Margaret Bayard Smith. 2 Samuel F. Bemis, in his study of John Quincy Adams, confuses Bayard's early career with that of his cousin Samuel Bayard. 3 But there was still a further purpose of this study, to discover the nature of Bayard's Federalism. Did the fertile soil of the Delmarva peninsula produce a different character than the colder, more arid New England? Was Bayard as rabid as the Essex Junto, or can his name be equated with the Federalism of John A d a m s ? What were the Delawarean's relations with Federalist figures as diverse as Alexander Hamilton, John Marshall, and Timothy Pickering? Outside the orbit of the New York-New England center of Federalism, to what extent did Bayard concur in his party's policies? In order to understand the character of

4

INTRODUCTION

his political s t a n d a r d s and allegiances, we must analyze his actions before and a f t e r the Republican triumph of 1801. When the n o r t h e r n Federalists split into two factions before 1801, to which g r o u p did Bayard adhere? And, in the dozen years following 1801, with Republicans in control, what was Bayard's role as a Federalist congressman? H e w a s consistent, t h r o u g h o u t his life, in certain ideas and emotions which are generally associated with Federalism. His first speech in the lower house, in 1797, was directed against F r a n c e f o r her violations of the neutral rights of the U n i t e d States. F i f t e e n years later, in the upper house, in a plea to postpone the declaration of w a r against Great Britain, B a y a r d spoke on the same subject, l i i s w o r d s on the latter occasion were less vitriolic—and the g r a d a t i o n s in the tone of his a n t i - F r e n c h speeches d u r i n g this period are an excellent guide to B a y a r d ' s change f r o m political partisan to political independent—but nonetheless homologous. H i s feelings toward Great Britain d u r i n g this fifteen-year period reveal similar changes within u n i f o r m confines. H i s r e g a r d f o r E n g l a n d was compounded of fear and respect for her naval and commercial supremacy, love and kinship for h e r political and legal institutions. D u r i n g the presidency of J o h n A d a m s , Bayard minimized the violations of o u r commerce by Great Britain, gloried in the English political heritage of A m e r i c a . W h e n A d a m s sent another mission to F r a n c e following the X Y Z a f f a i r , the Delawarean objected because he dreaded a possible w a r with England. In 1812 Bayard still adm i r e d the British government, still feared her military might, and cast blame f o r the conflict on the Republican administration. T h u s he voted against the declaration of war. But even with respect to E n g l a n d his attitude had changed. N o longer, as in 1798, did the D e l a w a r e a n excuse British depradations on A m e r i can commerce. A s early as 1806, in fact, before the ChesapeakeLeopard a f f a i r , B a y a r d chastised E n g l a n d for d i s r e g a r d i n g A m e r i c a n neutrality and delivered speeches which never could have been uttered by a George Cabot or T i m o t h y Pickering. At this time, of course, the context was different, and B a y a r d ' s

INTRODUCTION

5

orthodoxy is being measured in relation to the Essex J u n t o who were representative of only one branch of Federalist thought. This attitude displays, to some extent, however, Bayard's change from party stalwart to independent thinker. Nevertheless, these changes always remained within certain confines, confines he could not breach. T o the end Bayard always maintained a partiality towards England, a mistrust towards France. In his hatred for France, for Jefferson and the political power of Virginia, in his admiration of a strong central government and defense of America's commercial interests, the Delawarean never wavered. H i s Federalism in these respects continued unabating and uncompromising throughout his life. Yet, there is a vast and important difference in the motivations behind Bayard's Federalism before and after his party fell f r o m power. In the prime of manhood, a portly but poised and impressive figure of fastidious dress (Republicans chided him with the nickname of "Chevalier," after the fifteenth-century French noble), the Delawarean first entered Congress in the stormy days of 1797. W i t h i n a few years he was recognized as one of the Federalist leaders in the lower house, helping to direct their strategy, to lead assaults upon their Republican opponents. H i s speeches gained for him a measure of fame for his oratorical powers, legal acumen, and Federalist stalwartness. In the realm of foreign affairs, on such questions as the Alien and Sedition Acts, the expulsion from Congress of Matthew Lyon, etc., Bayard's views were marked by high partisanship. The Delawarean was politically ambitious, a fact attested to by friends and enemies alike. That ambition was undoubtedly aimed at a cabinet post, a ministerial position, if not the presidency itself. W h e n the Federalist party divided over A d a m s ' s new mission to France in February, 1799, and his cabinet dismissals of May, 1800, mere partisanship was not sufficient to fulfill Bayard's ambitions. T o it he had to add political skill and discretion, to balance himself across the narrow bridge which divided the A d a m s f r o m the Hamilton factions. This he accomplished so well that Adams—while Bayard and Hamilton exchanged letters con-

6

INTRODUCTION

demning the President's actions—appointed the Delawarean as Minister to France, a post he refused. In fact, the Federalist split was really a blessing in disguise for Bayard. After the Republican triumph in 1801, the Delawarean became minority leader of the Federalists in Congress. His famous speech on the judiciary in February, 1802, gained for him the plaudits of Federalists throughout the country. If his party was ever to regain power, Bayard was the logical person upon whom they could unite. But the Federalists' feeling of elation at having triumphed over their opponents in debate (despite the successful repeal of the judiciary act) soon vanished as the Republicans triumphed at the polls. Bayard was defeated in his campaign for reelection to the H o u s e of Representatives by his friend Caesar A. Rodney in October, 1802, by a scant fifteen votes. T w o years later Bayard was victorious over this same opponent, but resigned to accept a seat in the United States Senate. By this time, however, the Federalist party was rapidly disintegrating, and only the hard but despairing core of the Essex J u n t o remained. In 1800, Bayard could w r i t e : " T h e share I take in debate occupies me in the House of Representatives, and the Committees of which I am a member leave vacant but a small part of the day." 4 As a Senator he told his friend R o d n e y : "Being only a Looker-on I amuse myself with the scene as it passes by." 5 H e began to spend more time in the courts of Delaware, less in the Congress at Washington. In a few short years the Federalists had become the party of the past, an antiquated and dying political faith. Their numbers lessened, their opposition futile, without powerful leaders or a positive program, the national structure of the Federalist party crumbled and only sectional factions remained. Truly, despite their conventions every four years to select a presidential candidate, there was no Federalist party—only Federalists. In this context, f r o m 1805 to 1813, Bayard followed no leader or faction. H e steered an independent course, guided only by his own Federalist leanings. T h u s he was respected and trusted by

INTRODUCTION

7

the Essex Junto, but never became an intimate of their group. Thus he was regarded as an opponent of the administration, but fearless enough to sometimes agree with its measures. As Timothy Pickering said in June, 1813: "Although Mr. Bayard's conduct was not, on all occasions, just what I wished, yet in the There were main it was correct, according to our views."6 many occasions on which Bayard disagreed with the New England Federalists—in 1806, for example, when he favored nonimportation against England; in 1808, when he refused to take part in the Federalist convention at New Y o r k ; in 1810, when he voted for Macon's Bill number 2. Yet, the Delawarean always considered himself, and was accepted as, a Federalist enemy of the Republicans. But because of actions such as these, the National Intelligenccr exclaimed in April, 1813: "Bayard is an honorable man; one between whom and the cause of his country the line has never been drawn. He was . . . the only public man of the federal party who dared to throw off the trammels of faction, and boldly to avow . . . that 'there was cause enough for war.' " 7 It is impossible then, to place in any niche or category a man applauded equally—two months apart—by Timothy Pickering and the National Intelligencer. The key to this enigma, I believe, is that Bayard's Federalism had always been tempered by moderation: when he, for example, refused to join other Federalists in denouncing Samuel Smith for the latter's remarks on the XYZ affair; when he—begrudgingly and belatedly—approved the new mission to France in 1799; when he attempted to ameliorate certain provisions of the Alien and Sedition Acts; when he changed his vote at a critical moment to give Jefferson the presidency, despite the opposition of all Federalists in Congress; when he refused to agree with Gouverneur Morris and Roger Griswold that the act repealing the judiciary act of 1801 should in turn be declared unconstitutional; when he rejected the Machiavellian plan of Alexander Hamilton to rebuild the Federalist party; when, in the years after 1805, he frequently disagreed with the Essex Junto; when he accepted the post of Minister Extraordinary to end the war

8

INTRODUCTION

with England, under instructions he personally felt could never bring peace—because his presence on that mission (so he felt) might allay disunion sentiment in Xew England. Bayard was a pleasure-loving man, fond of his wine and his whist. He was a family man, and the feeling of warm affection for his wife and children runs throughout his letters. H e was an excellent lawyer, and law brought him wealth and prestige. He was friendly and jovial, and the sternness of John Q. Adams repelled him, while with a stalwart Republican like Caesar A. Rodney he remained a lifelong friend. H e was ambitious, but ambition was never the sole nor primary motivation of his political career. He was independent enough to stand by his basic beliefs, moderate enough to be capable of changing his mind. Upon his decease in 1815, America lost not a man of great brilliance, the rare exception who rises above the clouds of mediocrity to touch the star of genius, but a man of tact and common sense who had served his country well.

CHAPTER

I

A HOME IN DELAWARE

J a m e s A. Bayard and his country commenced their careers together. In 1787 the young lawyer turned his back on the Quaker City and traveled south to Delaware to seek fame and fortune at his profession. Twenty years of age, a Princeton graduate, the bearer of a famous colonial name, Bayard in the year of our Constitution returned to the land of his early childhood. Many years before his father had practiced medicine in Wilmington. 1 But the child was only three when his father died, and he had been sent to live with his uncle in Philadelphia. Some still remembered D r . Bayard and were delighted to see his son. Others knew the surname through Maryland connections, or by way of his well-known foster father, Colonel John Bayard. Delaware would welcome a young man of such excellent background and education. In years to come the name of Bayard would be almost synonymous with that of Delaware. This budding lawyer was to become one of her most famous sons. W h e n Bayard arrived, the three counties of Delaware contained less than sixty thousand inhabitants. Less than three thousand people lived in the m a j o r city, Wilmington. 2 Much of the land in the lower counties was swamp and large areas were thinly populated. This was quite a change from Philadelphia. S o u t h w a r d f r o m the Quaker City the land seemed to be familiar to Bayard. Rolling hills and swift-moving streams, muchtraveled highways, a busy commerce, the inns and people—all had a cosmopolitan flavor. Wilmington itself seemed to be a miniature Philadelphia. Flour mills and paper mills, busy wharves and the sight of many sails were reminiscent of the larger metropolis. H e r e there were homes built of brick in the

10

A H O M E IN

DELAWARE

"English style," churches of many faiths, a flourishing academy, biweekly newspapers, and, Bayard hoped, a great deal of legal business. Wilmington even had, like Philadelphia, annual epidemics of yellow fever. 3 Across the Christiana River from Wilmington, however, the scene changed. The remainder of Delaware was flat and even, the towns smaller, the atmosphere provincial. Here there were farmers and marsh lands, primitive forests and isolated homes. 4 Dover, the capital, was a sleepy town compared to Philadelphia or even Wilmington. Traders from Maryland or Pennsylvania spent the night, politicians and lawyers flocked there at assembly time, giving the town a " lively appearance." But Dover was a town and not a city, Jones's creek its main waterway, the brick statehouse overlooking a neat parade ground its claim to elegance. Less than one hundred families were permanent residents of Dover when Bayard paid his first visit. 6 While Wilmington continued to grow, these lower counties remained static in population and attitudes. In years to come, northern and southern Delaware would grow further apart both economically and politically. Contrary to what one might expect, downstate farmers remained die-hard Federalists while the commercial center of Wilmington quickly evolved into a Republican stronghold. 6 Religious differences catalyzed a bitter personal animosity into violent election battles. 7 Bayard, an admirer and defender of commercial activities, was to find his main support in the lower counties. Young Bayard introduced himself to the "society" of Delaware ; 8 not to the new immigrants flooding into New Castle County, 9 but to the old and established families—the Rodneys and Ridgelys, Claytons and Bassetts, to George Read and William Hill Wells. These were the political and social leaders, the rich, the powerful, the influential. These were the men who could further his career. He took part in their amusements—the teas and balls, horseback riding, and "moonlight rambles along the Brandywine." There were evangelical "love-feasts" to witness, parades, sailing trips, and picnics. In the evening he could

A HOME

IN

DELAWARE

11

enjoy a game of whist or a chat about politics. H u n t i n g trips, a visit to the paper mill, a summer excursion, these were the pastimes of wealthy Delaware folk. 10 One Delawarean. Richard Bassett. displayed a great interest in Bayard. T h e young man accepted Bassett's advice in legal matters, visited his home in Dover, courted his daughter Ann. Bassett had been a member of the Council of Safety in 1776, had served as a Captain in the Dover Light Horse, was shortly to become Delaware's first Senator in the newly formed federal government ; later, he was to be elected Governor of Delaware. Lawyer and landowner, one of the richest men on the peninsula, Bassett was a power in the state for three decades." In later years Bayard would gain fame for possessing one of the finest legal minds of his day. Before coming to Delaware he had studied under two famous lawyers, Joseph Reed and Jared Ingersoll. In 1787 Bayard already had an excellent legal groundwork. But the superstructure was raised under the guiding hand of his future father-in-law. Bassett was an authority on English common law and its application to the new w o r l d ; Bayard was to become the leading figure in a struggle to adopt in toto the common law of the mother country. 1 2 Bassett was an expert on Delawarean laws—property, libel, inheritance; Bayard was soon recognized as a skilled technician on these subjects. 1 3 By 1795, Bayard was recognized as one of the leading lawyers in Delaware. A few months after he arrived in Wilmington, he wrote to his uncle Andrew H o d g e : " I have no reason to be dissatisfied with the place of my settlement. It has afforded me relations, friends, clients, fees, promises, and actions. But I am afraid that it is too prodigal of its favor, at first, to be able to continue them long." 14 It did continue. T h e young lawyer rode the circuit f r o m Dover to New Castle to Wilmington, pleaded in common pleas, oyer and terminer, and orphan's court, wrote opinions, investigated precedents, became a confidant and friend of native Delawareans. William H . Wells, later to be a United States Senator, hired Bayard as defense attorney and paid him a fee of £30. 1!i "I am always happy to aid you as counsel," wrote

12

A

HOME

IX

DELAWARE

Bayard to George Read, "in any case in which my services can be useful." 16 John Fisher noted that " Bayard . . . is now on his feet, and has been for four hours and a half." at "the trial of negro James." 17 In 1796 Bayard won for his client damages of £93 f r o m the "Pennsylvania farmer," then living in Wilmington, J o h n Dickinson. 18 "Be pleas'd to attend to this business," wrote William Ross to Bayard, "and out of the first money recover'd . . . you are to reserve for yourself . . . the Sum of one hundred dollars." 19 Political differences were unimportant when a legal matter was at stake. The Republican Thomas Rodney noted in his d i a r y : "I wrote to Caesar [Rodney] . . . to enquire if Bayard was e n g [ a g ] e d by the opposite parties and if he is not that I wish to employ him." 20 Fame and fortune rose as the years passed. At the turn of the century, within a period of six months, Bayard spent $5,874 for lands in New Castle County. 2 1 Three years later he purchased land in Bohemia Manor, Maryland (near the home of Bassett), for £621. 2 2 By this time, however, Bayard the lawyer had become Bayard the politician. In 1797 he had been elected Delaware's sole representative in the lower house of the United States Congress. Again, it was the influence and aid of Bassett that was of importance in Bayard's career. Bassett was an intimate of judges, sheriffs, congressmen, governors, lawyers. The political nobility of Delaware in 1790 could be counted on the fingertips; Bassett was a leading member of this aristocracy. As a well-educated person, an excellent lawyer, and son-in-law of Bassett, Bayard found the political ladder turned into an escalator. Law and politics went hand in hand in Delaware, as they did throughout the fifteen states. Budding politicians found a legal background valuable in committee and assembly; lawyers found political experience helpful in court and chamber. The closely knit political hierarchy of Delaware could make or break the young lawyer. By 1796 Bayard was an important part of their political world. 2 3 Later he would become the axis around which that world must turn. At first the young lawyer ran for local offices. His initial at-

A H O M E IX

DELAWARE

13

tempt was for a vacant seat in the state legislature. In the runoff election Bayard was defeated. 24 Almost a year later he campaigned for a position as state representative f r o m New Castle County. Out of fourteen candidates, he placed eighth—not enough. 2 5 After his marriage in 1795 he continued to be active in political circles. T w o years later, ten years after he settled in Delaware, Bayard began to represent that state in the federal Congress. 2 6 Bayard found a home in Delaware in the friendly camaraderie of the circuit traveling lawyers, the zestful activity of political companionships, the social and sporting pleasures of the peninsula. If Ann Bayard ever complained of her husband's lack of religious fervor—for her father, Richard Bassett, was the leading Methodist layman in Delaware and she was an extraordinarycombination of social aristocrat and religious enthusiast—no sign remains of this dissatisfaction. For the patient, hedonistic, rarely perturbable Bayard was an affectionate and kind husband. T h e couple resided in the bustling port of Wilmington, but Dover, New Castle, and Bohemia Manor were equally their homes. Most of their friends resided throughout this region. These friends—Nicholas Ridgely, William Hill Wells, Outerbridge Horsey, Samuel White, Gunning Bedford, Allen McLane, etc.— were all Federalists. Bayard's closest associate, however, was Caesar A. Rodney, a Jeffersonian stalwart. Bayard once told h i m : "I do not know in what the difference exists as to our opinions upon the material principles of politicks, [but] I believe you are a little more pcopleick than myself." 27 Despite political differences, these two men remained the closest of comrades throughout their lives. Nevertheless, as indicated, Rodney was an exception to the social acquaintances Bayard formed in Delaware. The state was a pond of Federalism, and for ten years Bayard swam in the majority group. By 1797 he was considered one of the big fish— the Federalist representative of the state to the lower house of the national government. But Bayard probably had Federalist tendencies long before he thought of leaving Philadelphia in

14

A

HOME

IX

DELAWARE

1787. The shapes and forms of these beliefs must have been molded in earlier life—at his aristocratic uncle's home during his childhood; as an undergraduate student at Princeton during his growth f r o m adolescence to maturity; as a law student under Joseph Reed and Jared Ingersoll. When Bayard left Philadelphia in 1787 he broke almost all personal ties, the close bonds he had formed in two decades. Yet the ideas and attitudes—for Federalism is a way of life as well as a political tenet—had been planted and nurtured during this earlier period.

C H A P T E R II

BAYARD'S EARLY LIFE

"I think this summer you had better pay a visit to Bohemia," James A. Bayard once wrote to his cousin Andrew. "The country is pleasant in itself, and it gave birth to your ancestors. You may even recall some scenes of early life, which often gives us more pleasure in recollection than was derived in the first enjoyment. I feel an attachment to that country which I can scarcely account for. It was not till after I was twenty years of age that I recollect ever being there. It certainly boasts of no desirable society. Its amusements are not very numerous or interesting, and yet I go there with a pleasure that I scarcely go any where else. I should like much to spend a week there with you in the summer where we could occasionally amuse ourselves in fishing and crabbing." 1 The first "ancestor" to come to Bohemia Manor, in Cecil County, Maryland, was Samuel Bayard. In 1698 he brought his wife Susannah from New York to the "wilds" of the Chesapeake River. 2 Before that a religious group, the Labadists, had attempted a communal settlement in this area. Before the Labadists, an immigrant from Prague, Augustine Herman, had received this land as a grant from Lord Baltimore. 3 But Herman's desire to rule as the lord of a domain of twenty thousand acres, and the Labadists' attempt to establish heaven on earth, both disintegrated. Now the lands were claimed and purchased by many different people. Bassetts and Claytons, indentured servants and independent farmers, began to move into Bohemia. Throughout the eighteenth century the names of many Bayards and Bassetts appear on Bohemian records. Here is a Peter Bayard, "one of the Attorneys for Jaccob Rodgors," signing an

16

BAYARD'S EARLY

indenture certificate dated March 3,

LIFE

1723;4

a James

Bayard

paying rents for lands, " S e t t l e d Michalmass,

1739";5

a letter

from Bohemia in 1 7 4 9 to Rev. George Whitefield, asking him to visit the B a y a r d s : " W e hope to see you and your dear Spous once m o r e " ;

6

a Michael Bassett, who, in 1 7 7 8 , swore " t h a t I do

not hould myself bound to yeald any allegiance to the king of Grate B r i t a i n . "

7

In 1 7 3 8 twin boys were born on Bohemia M a n o r t o Asheton Bayard. 8 Bayard

T h e elder son was named J o h n

( h e rarely used his middle n a m e ) ; the other,

Asheton Bayard.

Mary

Bubenheim James

T h e twins—close friends as well as b r o t h e r s —

were sent to Nottingham Institution in Maryland, a school conducted by R e v . Samuel Finney (later to become President of the College

of

New

Jersey).

After

Bohemia by Rev. George Duffield.

that

they

were

tutored

at

W h e n it was time to select

a profession the twins went separate ways.

J o h n entered the

mercantile house of J o h n R h e a in Philadelphia to learn the commercial trade.

J a m e s decided to be a doctor and studied under

Dr. T h o m a s Cadwalader of Philadelphia. 9

T h e twins married

sisters—merchant J o h n of Philadelphia took M a r g a r e t

Hodge

as his wife; doctor J a m e s of Wilmington married A g n e s Hodge a few years later.

T h e n , within a period of four years following

the birth of J a m e s A. B a y a r d ( J u l y 2 8 , 1 7 6 7 ) , D r . B a y a r d and his wife passed away, and the three children were immediately brought to their uncle's home in Philadelphia. 1 0 home, for their Uncle J o h n

It was a wealthy

was now the sole owner of the

Bohemia lands; his own mercantile house was becoming larger and more prosperous.

In 1 7 7 0 there was some unrest in the

country, but the dark clouds of revolution were not yet formed. B y the time J a m e s was ten years old the storm clouds had broken.

H e may have heard of his eldest cousin, of the same

name, being captured by the British on his way home f r o m Princeton.

H e could have seen his Aunt M a r g a r e t writing to

her husband, to friends, to W a s h i n g t o n , pleading for the release of her son, begging them to convince the British that he was a schoolboy and not a spy. 1 '

Uncle J o h n wore the uniform of a

BAYARD'S EARLY

LIFE

17

colonel and came home infrequently. Once he was up at a place called Trenton fighting the British. Then he was at Lancaster in civilian clothing, a member of the State Board of W a r , and Philadelphia later, Speaker of the Pennsylvania Assembly. 1 2 offered a thousand attractions to the adolescent boy. Now the British were there in redcoats, drilling smartly, standing sentry, marching through the narrow streets. Then there came the Sons of Liberty, rough, ragged, talkative fellows. People spoke of Tories and Whigs, Loyalists and Rebels, of George Washington and George I I I , of battles at New York and Jersey, of German mercenaries and French aid of money and men. Sometimes unruly mobs floated through the city shouting for their just rights. Many times there were collections of clothing and money for the starving shoeless soldiers. R u m o r s and secrets, speeches, meetings—this was Philadelphia in the eighth decade of the eighteenth century—the revolutionary decade. By 1781, when the "World Turned Upside D o w n " for the British, James (and his cousin Samuel) were ready for college. 13 College, to the Bayard family, meant Princeton. In 1768 Col. Peter Bayard of Maryland had left "a legacy of twenty pounds" to the college. 14 Colonel John and his close friend Joseph Reed were trustees; Witherspoon an intimate of both. 15 The two older sons of Colonel John had attended and received their degrees from Princeton in 1777 and 1779. 18 Now that it was time for J o h n Bayard's son and nephew to receive their higher education, Princeton was the logical and inevitable choice. The school, in 1783, was a small one—two professors, two tutors, one building, and about fifty students. The entrance fee was "one guinea," tuition charges were £5 per year. T o this were added such expenses as chamber fees, meals, books, and incidentals ( " F u r n i t u r e wood, candles, cloaths, pens, paper and ink, etc."). In all, the average cost of a school year for each student was £34. 1 7 Col. John Bayard, therefore, paid approximately double this amount annually for the education of his son and nephew. Aside from the repetitive procedure of classroom work, the students at Princeton found many entertaining extra-

18

BAYARD'S

EARLY

LIFE

curricular activities. They put on their own plays, for example, producing in 1783 a "farce called the Mock Doctor." 18 There was a French fencing master in town f r o m whom many students took lessons. 19 "Almost every evening there is some learn'd debate . . . going on . . . they are now upon divinity, and if sound argument consists in a great strain of the voice, Nassau's sons are some of them very able disputants." 2 0 In these evening arguments, in belonging to one of the debating clubs (Bayard was a member of the W h i g rather than the Cliosophic Society), 2 1 in having to prepare and deliver "our own compositions" for Professor Samuel Smith, the average Princetonian developed into an able debater and orator. 2 2 If these activities were not sufficient to entertain any student, he could attend (if time perm i t t e d ) the Congressional debates, and perhaps be lucky enough to chat briefly with George Washington, for in 1783 the Continental Congress sat at Princeton. 2 3 T h e entering student, after being examined, was placed in either the freshman, sophomore, junior, or senior class. Thus, Ashbel Green, later to become President of Princeton, entered the school in May, 1782, in the senior class, graduated in September, 1783, and became a tutor of the school in the same year. Most students, however, stayed an average of two to three years to qualify for the Bachelor's degree. 24 Bayard, w h o had "prepared" with "Rev. Mr. Smith of Picqua, Lancaster County, Pennsylvania," and then with a private tutor in Philadelphia, probably entered the sophomore or junior class. 25 Students entering the freshman class studied nothing but the classics—Virgil, Ovid, Cicero, Horace, Xenophon, and a book called Kennet's Roman Antiquities. This was standard procedure in almost every academy and college—the classics were basic. Bayard, if he entered as a sophomore, found less emphasis placed on the classics, and time found for geography, Duncan's logic, Holme's Rhetoric, Lowth's English grammar, and "Arithmetic vulgar and decimel." If, however, he began as a junior, his studies were overwhelmingly in mathematics: geometry, algebra, "Trigonometrie plain and spherical," mensuration, naviga-

BAYARD'S

EARLY

LIFE

19

tion, astronomy, and practical surveying. Also fitted into the curriculum of the junior class, was a study of "history and chronologie." Seniors read Locke and Montesquieu, took "courses" in "Eloquence and Criticism," and "Moral Philosophy" (in three parts: ethics, politics, and jurisprudence). 2 8 In September, 1784, Bayard, his cousin, and twenty-two other students who had successfully hurdled these readings were rewarded with the Bachelor of Arts degree. James opened the graduation ceremony with the "salutatory oration" on "The advantage of fixing good principles by early education." Cousin Samuel closed the exercises by giving the "English valedictory oration." In between them Peter Livingston spoke on "The evils of commerce to a young country" (Princeton bred Republicans as well as Federalists), and Alexander Edwards "On the follies of love." The highlight of the afternoon, however, was " T w o orations of emulation by Mr. J. A. Bayard and Mr. [Joseph] Clay, deputed for that purpose by two literary societies in the college, the first on the independence of spirit; the second on the necessity of virtue as the principle of free states." Then the final prayer, the farewells to college life, the cheerful toasts to friendship and the future, and the return to Philadelphia. 27 James and Samuel both decided upon the law as a career. Princeton had given them a classical training strongly spiced with religion and philosophy. Blackstone, however, was not to be learned in the classroom, but as an apprentice to an established lawyer. It was important, furthermore, that the legal trainee enter the office of a prominent jurist. The son and nephew of Colonel John Bayard had no trouble on this score. Samuel began his studies under William Bradford, afterwards Attorney General of the United States. James, on returning from a threemonth visit with his brother John in Maryland, began his legal education under the supervision of Joseph Reed. 28 This was in December of 1784. Reed had recently returned from Europe, a trip he had taken for his health and to collect funds for Princeton College. He had failed in both objectives. 29 In March, 1785,

20

BAYARD'S

the famous lawyer passed away.

EARLY

LIFE

A t his bedside 011 that day was

" h i s favorite student, J a m e s A . B a y a r d . "

30

R e e d ' s closest associate. J a r e d Ingersoll, another

well-known

Philadelphia lawyer of his day, now assumed resi>onsibility for the young man's tutelage. 3 1

A s his cousin Samuel and hundreds

of other embryonic lawyers were doing, J a m e s spent his time getting a practical education in law.

H e might help to answer

correspondence, search out precedents, prepare briefs, and perhaps visit the courthouse to watch J a r e d Ingersoll argue before judge or jury.

H e was a student—learning, memorizing,

absorbing

the lawyer's life. In

the following

few

years

the

Bayard

dangerously on the rocks of death and debts.

family

floundered

Colonel J o h n

(a

member of the Continental C o n g r e s s ) wrote to his son Samuel f r o m New Y o r k : " T h e last [ y e a r ] has been attended with sore affliction and bereavement to me and my f a m i l y — W e see the uncertainty of all earthly E n j o y m e n t s . "

32

H i s eldest son was in

charge of the B a y a r d ' s mercantile house, and that business was suffering enormous demanding payments.

losses. 3 3

Debts

were piling up,

creditors

" I have not been unmindfull of my debt,"

wrote the Colonel to J o h n Nicholson in F e b r u a r y , 1 7 8 6 , " I have been steadily attempting to fall on some plan to discharge it."

34

O n e month later, he wrote another touching letter to the same creditor, explaining the reasons for his inability to pay these obligations: My confidence in my country—and my zeal to promote her best interests has led me to put the greatest part of my estate in Her funds at a time when such Loans were absolutely necessary. I have by this conduct, incapacitated myself from fulfilling my Engagements with that punctuality I could wish, and also been prevented from assisting my children who have grown up and have a just claim on me. But my consolation is, I did it with a single Eye to the good of my country. 3 5 After 1 7 8 8 , when merchant J a m e s died while on a commercial trip to S o u t h Carolina, the Colonel left the mercantile trade, sold his B o h e m i a lands, and moved to N e w B r u n s w i c k . 3 6

BAYARD'S

KARLY

LIFE

21

W h e n James A. Bayard completed his legal training and settled in Delaware in 1787, he cut almost all family ties. T o Colonel J o h n , who had adopted and supported him and paid for his college education and legal training, Bayard wrote not a single letter in the next twenty years. 3 7 W i t h Samuel, with whom he grew up and attended Princeton, Bayard maintained a sporadic correspondence. Margaret, who married Samuel H . Smith and absorbed his Republican philosophy, was cool to her Federalist cousin. Only with Andrew, his elder cousin, did Bayard remain extremely friendly. "I have no relation for whom I have equal affection," he wrote to Andrew in 1800, "an affection which has never changed." 38 Letter after letter repeated these assurances. W h y Bayard severed so suddenly and completely the family ties of his early life is unknown. Something occurred shortly before Bayard left for Delaware; something that caused ill feelings. W e catch a glimpse of this in the words Bayard wrote f r o m Delaware to another uncle, Andrew H o d g e : "I would indulge myself in the pleasing expectation of seeing you at Christmas and the rest of my friends, if I thought they would approve and allow it. T h e only objection which I have to it myself is, that I wish it too much. Such a visit would but revive the feelings, which have given me much pain already." Bayard, in some way, alienated himself from most of his family, but the heritage of Federalist beliefs—for there were Federalists before there was a Federalist party—remained. Colonel John, "a firm federalist, with strong, aristocratic predilections," was the main shaping force in these early years. 40 J a r e d Ingersoll, Bayard's law teacher, "was a man of moderate beliefs, conservative," and after 1801, "rarely found on the side of the m a j o r i t y . " 41 All of the other people with whom Bayard was associated before he settled in Delaware—Joseph Reed, Ashbel Green, Samuel Smith, A n d r e w Hodge, etc.—were Federalists. F o r the first twenty years of his life, then, Bayard was surrounded by Federalist companions and advisors. Until 1787, when he left for Delaware, his family and friends, his teachers at college or in law were believers and practitioners of ideas which

22

BAYARD'S

EARLY

LIFE

foreshadowed the Federalism of the 1790's. In Delaware, naturally, Bayard veered towards the Bassett clique, a group with similar ideas and attitudes. And with this group he was intimately connected for ten years as lawyer and politician. From 1787 to 1797 Bayard's prominence rose in legal and political circles—both areas controlled and commanded by a Federalist majority. In Delaware, as in Philadelphia, his family and friends, with the exception of Caesar A. Rodney, were Federalist. Now, in 1797, he was back in the Quaker City, elected by the citizens of Delaware to represent them in the national Congress. Bayard had been defeated twice—and badly defeated—in bids for political office before 1796. But in that year he won the position of sole representative—for Delaware was yet too small in jjopulation to warrant two representatives—to Congress. 42 It was a period of violent political animosities, one in which calmness and moderation, common-sense and objectivity were hindrances rather than aids to political advancement. The very pressure of the times forced the Delawarean to adopt a position of high partisanship. T o achieve the political fame of an Alexander Hamilton or even a Fisher Ames one must not be timid, temperate, and understanding, but forceful, belligerent, and uncompromising.

CHAPTER

III

FRANCE AND FEDERALISTS 1797-1801

"The President is fortunate to get off just as the bubble is bursting," Jefferson wrote to Madison shortly before the Adams administration came into office.1 During the following four years a succession of bubbles burst, releasing noxious fumes of discontent, hatred, and factionalism. The Blount impeachment, the X Y Z affair, the undeclared naval war with France, the Alien and Sedition Acts, and a host of satellite events aroused and divided the nation. John Jay's advice, "that we steadily repel all foreign influence and interference," went unheeded.2 "Party rage," complained Mrs. Ann Ridgely, a Federalist lady of Delaware, "makes our little State a disagreeable place." 3 "Party rage," echoed the Republican Samuel H. Smith, "appears to be boundless." 4 When a French tune was played at a Philadelphia theatre an uproar of protest ensued.8 Republican Joseph Nicholson was cautioned by a relative to pay no further visits to the British Minister, although he could "some-times" call on President 6 Adams. These indicate the unhealthy atmosphere which prevailed during the closing years of the eighteenth century. The focus of political partisanships was sharp and distinct; little room was allowed for the penumbral areas of moderation. The Federalists despised France as they admired England. France, to them, meant the French Revolution—the riots and the guillotine, the loss of property, the subjection of religion, the abandonment of republican forms, the breeder of wars and dictators. This was a far cry from parliamentary and gentlemanly England, the England of law abiding merchants, the England of

24

FRANCE

M a g n a Carta and the common law. reverse.

AND

FEDERALISTS

Republicans saw things in

England was a symbol of monarchy, the oppressive

and corrupt monarchy from which they had rebelled in

1776;

England meant impressment of sailors, the hoary common law, an exasperating attitude of superiority.

F r a n c e and the French

Revolution, on the other hand, spelled out progress and freedom and equality; they were brothers in arms against the world of the past, the world of special privilege and aristocracy, marching onward to the golden age. promise on this question.

brothers

T h e r e could be no com-

If it were merely a sectional difference,

an issue debated between the agricultural and mercantile classes, one might hope—with M a d i s o n — t h a t the national government could contain these factions.

But this problem of foreign affairs

transcended ordinary factionalism, and was intimately involved with antithetical views regarding man and government.

Both

parties, it must be remembered, were national; each highly unified on this i s s u e — a rare and early exception in our political history. George W a s h i n g t o n

was certainly

fortunate

to

"get

off"—it

looked as if the bubble would burst. B a y a r d knew, as he travelled north to Philadelphia in M a y , 1797, that the nation must come to some decision as regards France.

He

"did

not

know what they c o u [ l ] d

do,"

decision one way or the other had to be reached. 7

but

a

F o u r years

before, after war had broken out between England and F r a n c e , relations between the revolutionaries and America quickly deteriorated.

Washington

had issued a proclamation of

neutrality

which seemed to dismiss certain obligations the United owed to F r a n c e by the treaty of 1778.

States

" C i t i z e n " Genet's rash

activities in America forced W a s h i n g t o n to request his recall by France.

And France, more than annoyed by the

Gouverneur M o r r i s , demanded his recall.

aristocratic

T h e treaty J o h n J a y

negotiated with England in 1 7 9 4 seemed to the French to offer evidence of a hostile alliance, of a definite pro-British policy on the part of the United States.

Had not the new Minister, J a m e s

Monroe, promised that the treaty would contain nothing jurious to F r a n c e ?

in-

If Gouverneur M o r r i s had proved indiscreet

FRANCE AND

FEDERALISTS

25

and too pro-British, Monroe proved to be indiscreet and too proFrench. He was recalled, and Washington sent Charles C. Pinckney to Paris. Federalists felt that Monroe had been justifiably replaced by Pinckney. But now the French, "the most intriguing people in the world," had insulted the United States by refusing to treat with the able South Carolinian. 8 Their depredations on our commerce continued; their political defenders in America grew stronger. Should we break relations ? Should we send another mission ? Should we go to war ? 9 This was the situation when Bayard first entered Congress. Oliver Wolcott, a milder Federalist, believed that "we must keep a minister as near the Directory as shall be suffered." 10 Fishe: Ames reluctantly agreed to renewed negotiations, but only i: it was "not servile or mean, if the right men are appointed, and the objects of negotiation" correct. 11 George Cabot, however, 'conceived that the government has attempted negotiation already." A new attempt, feared Cabot, would merely strengthen the F*ench party in the United States. 12 Bayard was confused. A y o u i g Federalist in politics, he looked to his elders for advice. T h e i r disagreements he tried to reconcile to himself. H e "did not like so much talk of peace." H e "thought it injurious." H e "did rot know what they c o u [ l ] d do." 13 J o i n Adams, the new President, knew what to do. He had for the past few months been planning a new mission of a bipartisan nature, "which by its dignity should satisfy France." 14 Federilist John Marshall and Republican Elbridge Gerry were selected to join Charles C. Pinckney as the American delegation. W h e n made public, the news caused no furor in the Federalist party. F o r all the bickering, the great m a j o r i t y well knew that anothtr mission was a necessity—it was not yet time for war. A s A b e r t Gallatin noted, "there are but few of that party who do no feel and acknowledge in conversation the propriety of treating with France." 15 I n Congress, however, if not in conversation, party feeling reachel new heights, boiling over into "personal abuse, and rather blackg[u]ard t r e a t m [ e n t ] of each other." 16 Bayard

26

FRANCE A N D

FEDERALISTS

attacked Albert Gallatin in his first brief speech, accusing the Pennsylvanian of favoring French over American citizens." The few terse words he flung at Gallatin were quickly relayed to Delaware. Caesar A. Rodney told his father of meeting "a number of Whigs" near Wilmington. They were "abusing Bayard for his speach [JIC] in Congress." He had said, according to them, that "we owed the French no gratitude and if we did we could pay them in powder and ball." 18 Thomas Rodney noted in his diary that the Debates in Congress [are] very warm and personally abusive. The papers not less so—Mr. Bayard, representative of Delaware [is] very flaming indeed ag[ai]n[st] the French—this young orator has burst forth a hero of the first rate in the Kn[ight] Errantry of words—He represents the French as Insolent, Infamous, Cruel, bloody, Murderers, and denies any debt of gratitude—That it was their good Sovereign who[m] they murdered that assisted us, and not the infamous Carnot, Baras, Brissot, or Robertspere [JUT]. 1 9 These debates—acrimonious, malevolent, abusive—continued into the next two sessions of the Fifth Congress. President Adams requested that Congress enact measures of military preparedness; Congress complied with appropriate legislation. Throughout, Bayard was a staunch defender of presidential powers and policies. "Gentlemen," said Bayard on one occasion, "have talked much about checks. He believed they were sincere when they wished the executive to be checked; he believed they would check and counter check him, until they stopped the wheels of Government." 20 Associated with Bayard in the vanguard of the Federalist attack were Robert Goodloe Harper of South Carolina, Harrison Gray Otis of Massachusetts, Roger Griswold and Samuel Dana of Connecticut, and Samuel Sitgreaves of Pennsylvania. These men made the important speeches in the lower house, acted in concert on important measures of Federalist policy, provided a leadership for other Federalist members. Opposed to them was a bloc of talented Republicans: Albert Gallatin of Pennsylvania (the most important), Samuel Smith of Maryland, Nathaniel

FRANCE AND

FEDERALISTS

27

Macon of North Carolina, Matthew Lyon of Vermont, Edward Livingston of New York, and John Nicholas and William Branch Giles of Virginia. There were the luminaries of the minority in the House of Representatives, a powerful minority, defiant and intransigent. A mere half dozen votes weighted the partisan scales in favor of the Federalists. 21 Both parties were waiting for news from France—watchful, hesitant, expectant. As Bayard said: "The mind of Congress as well as the rest of the world seems suspended as to the measures our nation should adopt in relation to France, upon the expectation of intelligence to be received from our Commissioners." 22 The dispatches would determine whether the Federalists would increase or lose their majority; whether the Republicans would sink to oblivion or rise to control; whether America would remain at peace or go to war. The debates were fuel for a fire that needed stoking until the dispatches arrived. 23 Bayard relayed the latest news from Philadelphia to his fatherin-law in Dover. In November, 1797: "Boston papers by last mail bring an account that by a late arrival it is confirmed that our Committee have been very civilly and favorably received at Paris. If the fact be so and the Directory are sincere (which I much doubt) we shall have probably a quiet time of it this winter." 24 One month later: "There is little hope remaining of an accommodation with France. There is undoubted information that our Commissioners had been twelve days at Paris, had sent a copy of their credentials . . . to . . . . [Talleyrand] and he had not either officially or personally taken any notice of them." 28 The year 1797 became 1798 and Bayard reported to his political companion William Hill Wells: "There is no foreign intelligence . . . no dispatches have yet been received by our Government." 28 Another month passed: "Commissioners are appointed by the French Government to treat with our commissioners." 2T During this period of watchful waiting George Washington doubted, George Cabot lamented, and Albert Gallatin remained "in suspense" regarding "the success of our negotiation with France." M Now, shortly, the news would come.

28

FRANCE AND

FEDERALISTS

In March, 1798, it arrived, striking America with the force of a tidal wave. The look of despondency in the eyes of men like Cabot and Ames was washed away; the followers of Jefferson, for the moment, were engulfed; whirlpools of nationalism formed around a universal theme of hatred for the Gallican. The dispatches told of a complex secretive attempt at international blackmail. 29 Marshall, Pinckney and Gerry had been asked to pay a douceur by French officials later labelled as XYZ before the meetings could proceed. When the American mission answered "no; no; not a sixpence," negotiations collapsed.30 The nation geared itself for war. The first session of the Fifth Congress had apportioned 80,000 militia among the states; appropriated $115,000 for fortifications of harbors; prohibited exportation and encouraged importation of arms and ammunition; authorized the equipment of three frigates; increased the number of revenue cutters to defend our coastline; passed tax and tariff legislation to finance these undertakings. 31 Attempts to transform these sparrows of defense to eagles of war had been unsuccessful. Congress had waited to hear the results of the bipartisan mission to France. Now they had heard; now they acted. In June, 1798, all commercial intercourse with France was suspended. In July, authorization was granted for the capture of armed vessels sailing under the French flag. In that same month all treaties with France were declared void and inoperative. The army was strengthened, the militia increased, the navy enlarged, taxes raised. In all but name, America was at war. 32 The Federalists were pleased. "It is gratifying to behold," wrote Bayard, "the military Spirit which prevails. When such a spirit exists our country cannot be in danger . . . . While we are united and true to each other no nation on earth can make an impression on us." 3:1 Until that unity was divided and diminished by the effect of the Alien and Sedition Acts, the Federalists basked in the sun of popular approval. "Millions for defense but not one cent for Tribute." Anyone who dared deny this sentiment met the full force of public obloquy. Samuel Smith of Maryland, for example, while seated at President Adams's dinner

FRANCE AND

FEDERALISTS

29

table, suggested that the douceur be paid. Adams railed at him. "Sir," said Adams, "if that be your serious opinion you cannot be an American, a republican or a virtuous Man." 34 Smith soon found himself engaged in a political squabble with John E. Howard, a fellow Marylander, in reference to this dinner table conversation. Both men collected evidence of what had occurred at the President's home. Uriah Tracy, James McHenry, and Robert Goodloe Harper came to Howard's defense, maintaining that Smith had spoken earnestly and positively. 35 But Bayard refused to corroborate the opinions of his fellow Federalists, and insisted that Smith had passed the remark "in a gay manner and not unequivocally serious." 36 If Bayard, for whatever motive, defended Smith by excusing his thoughtless jocularity, he displayed no such leniency on the floor of Congress. There Bayard, in a series of lengthy partisan speeches, excoriated his opponents. 37 When Nathaniel Macon proposed an amendment to extend a congressional war measure to England, Bayard objected. He "could see no reason . . . why this bill should be made to operate against any other nation than France." If Great Britain had captured any American ships, she did so rightfully and legally. Can any man say that our merchant ships have not carried "articles of contraband"? No proof exists, Bayard insisted, "of any seizure having been made by . . . [Great Britain] contrary to the law of nations." Look at the difference when we consider the actions of France. She plunders our ships "contrary to treaty," seizes American property illegally, "and, when applied to for satisfaction," thundered Bayard, "refuses to receive our Ministers." 3 8 The amendment was defeated. 39 Eight months later the Delawarean rose to outline the principles and effects of the French Revolution. 40 His words were like scissors, stabbing and cutting Republicans who dared draw any comparison between the American and the French Revolutions. The latter had annihilated all religion, forcing the clergy to renounce their creed and bow down to a military despotism worse than that of the Roman Emperors. They had abolished

30

FRANCE AND

FEDERALISTS

liberty of the press (compare the mild and democratic jury trial provided for by our Sedition Act, said Bayard, with the "summary process" of a file of soldiers), engaged in foreign conquest, plunder and oppression, using the specious mottos of liberty and equality as "magic sounds" of attraction and popularity. Property had been stolen, friends of America deported if not murdered, peaceful nations subdued and suppressed. They have even changed the very calendar! These are the French, said Bayard —despots, revolutionists, murderers—upon whom many misguided Americans look with admiration and hope. These are the French—atheists, imperialists, anarchists—who plunder our commerce, insult our government, and threaten our republic. 41 America had not, as yet, declared open war on France at the time of this speech. There had been a constant clamor for war ever since news of the X Y Z affair became public in April, 1798. "Resolutions, addresses, public meetings, reams of patriotic poetry, songs, and banquets contributed to the crescendo of patriotic fervor." 42 Even some Quakers demanded war. Fisher Ames reminded Pickering: "We must make haste to wage war, or we [Federalists] shall be lost." 43 Stephen Higginson told Wolcott: "An open and active naval war" is an absolute necessity to "depress . . . the French." 44 When the second session of the Fifth Congress adjourned in July, 1798, without passing the demanded declaration, the New England war-hawks were severely disappointed. 45 Now, in the early months of 1799, the third and last session of the stormy Fifth Congress faced the dilemma of a nation at war —without war being declared. President Adams did not want a declaration of open war. He had specifically announced that a new mission to France would be sent, if the Directory indicated a willingness to receive them. So the months passed, a period of crisis and indecision. As Bayard understated the problem: " W e are not in a state of hostility, and no one could say we are in a state of perfect peace." 46 Congress continued to enact antiFrench military legislation. The lower house appropriated

FRANCE AND

FEDERALISTS

31

$1,000,000 for six ships of the line and six sloops of war; $200,000 for additional timber; $50,000 for new dock-yards. Non-intercourse with France was continued another year, the Logan Act passed, and the Senate appropriated $2,000,000 for the further recruiting of 40,000 regulars and 78,000 volunteers. When Secretary of State Pickering informed Congress of a new French decree ordering that neatrals found serving on enemy vessels by punished as pirates (even though impressed), the American legislature ordered retaliation in kind against French prisoners in our hands. 47 Into the midst of this swirl of military ardor and activity President Adams courageously dropped a bomb of cataleptic effect. In mid-February, 1799, having received assurances that American representatives would be received by France, he selected a new mission (William Vans Murray, W. R. Davie, and Oliver Ellsworth) and sent their names to the Senate for approval.'48 "This had evidently been kept a secret from the Federalists of both houses," Jefferson wrote to Madison, "as appeared by their dismay . . . they are gravelled and divided; some are for opposing, others do not know what to do." 4 t Few Federalists had expected that another delegation would be sent to France. Their unity had been disintegrating; it was now destroyed. Years later John Adams recalled a "sombre dinner" he had given shortly after deciding upon the new mission, "a measure which produced a real anarchy in the government and infinite vexation to me." A dozen gentlemen, among whom were Bayard, Harrison Gray Otis, and Theodore Sedgwick, sat about the table. Bayard was gloomy. He was a close friend and defender of Adams; he thought the new mission a severe mistake. As Adams remembered the conversation, Bayard, in "a Jeremiad tone," began a sad "whining . . . harangue" against the new mission: Bayard: Ah! It is an unfortunate measure. We know not the consequences of it. . . . England . . . [will] certainly be offended at it, they . . . [can] not fail to take umbrage and they might declare war upon us.

32

F R A N C E AND

FEDERALISTS

A d a m s rebuked B a y a r d for this cowardly attitude: Adams: Mr. Bayard, I am surprised to hear you express yourself in this manner; would you prefer a war with France to a war with England, in the present state of the world; would you wish for an alliance with Great Britain, and a war with France? If you would, your opinions are totally different from mine. But Bayard, pessimistic:

according

to Adams,

remained

fearful

and

Bayard: Great Britain is very powerful, her navy is very terrible. A d a m s then lost his temper ( a s he had done with Samuel Smith the year before), and "broke o u t " : Adams: I know the power of Great Britain. I have measured its omnipotence without treasure, without arms, without ammunition, and without soldiers or ships; I have braved and set at defiance all her power. In the negotiation with France we have done no more than we had a perfect right to do; . . . [England] has no right, or color of right, to take offense at it, and if she did I would not regard it as a farthing. For in a just and righteous cause I shall hold all her policy and power in total contempt. 60 Apparently Adams's outburst had some effect, especially when B a y a r d found his father-in-law in perfect agreement with the President. Thomas Rodney noted in his d i a r y : "Bassett made a speech . . . in which he asserted that he would fight any Nation that made war with America whether French or English, Turk or Russian—that he meant to defend his country let who would attack it—I observed if he did so he would have to fall out with some of his f r i e n d s . " 5 1 When, in January, 1800, Governor Bassett sent a message to the Delaware Legislature lauding the character of A d a m s — " A man eminently distinguished, tried and beloved: Virtuous from principle, great in council, and firm in execution," Bayard wrote to his father-in-law: "I must show the President what you say of him. The old man loves to be tickled now and then." 52 By April, 1800, we find Bayard expressing the identical sentiments which A d a m s had employed to rebuke him over a year earlier. In writing to his brother, John Hodge

FRANCE

AND

33

FEDERALISTS

Bayard, he said: " I hope . . . [this] nation . . . [will] be found as ready to resist the aggressions of England as of France. For myself, I can say that the dread of no war would induce me to submit to any acts of a foreign government which tended to degrade the character of the nation. I love peace, but I love still more the honor of my country." 5 8 During this period Bayard continued unabated his lengthy and very partisan speeches in Congress. As before, he linked Republicans with the French, accusing his political opponents of being in the pay of " a foreign Government," damning them for "actually . . . [serving] a foreign Government." 5 4 As before, he defended executive policy. " N o one," claimed Bayard, "doubts the discretion of the President." 6 5 T h e Delawarean had united with the Adams wing of the Federalist party, pleading for preparedness but opposing the demand for war by the Hamilton group. In Congress he reviewed French-American relations of the past two years. In 1798, said Bayard, "the olive branch . . . [had been] disdainfully trampled under foot . . . the alternative was war or tribute . . . the national pulse beat high . . . . He trusted this was not the ephemeral spirit of a moment." The situation was similar today—look at Egypt, Holland, and Switzerland for examples of unpreparedness. " M u s t this country swell the catalogue of national folly and human misery?" There were too many in America still clinging to the fallacious belief that France and liberty were interchangeable words: Let the French come with their cap of liberty mounted on their standards, singing ca^ira, planting liberty poles, and denouncing the Government as an aristocratical and British faction, and I fear you would see some patriots forgetting their country, and, under the ardent impression of their political fanaticism, ready to imbue their hands in their brothers' blood. Let us keep our defense, said Bayard, while we wait for the results of the new mission.

T o count on peace as a foregone

conclusion, an inevitability, and to discard the military protection which

has

specious. 56

served

us

so

well

is

short-sighted,

stupid,

and

34

FRANCE AND FEDERALISTS

Until this time, Bayard, as we have seen, defended the actions of John Adams. Bayard was one of those "southern Federalists" who had "been induced to vindicate the [new] mission as a sincere, honest and politic measure." 57 And, while a South Carolinian such as Charles C. Pinckney might think that "the only injury we can . . . receive from the French is by their making a treaty with us," this type of thought was generally confined to the New England region. 88 Adams had, by the new mission, cracked the hull of the Federalist ark. The waters of discontent seeped in; the officers were mutinous; the dangerous seas of election time approached. Then, in May, 1800, Adams cleared the bridge of the disaffected—James McHenry was forced to resign, Timothy Pickering dismissed. Now the breach was irreparable. 69 Bayard was amazed. This action opened the gates to the most dire of all consequences—a Republican triumph at the polls. No longer could he trust John Adams. To John Rutledge of South Carolina he expressed his "surprise . . . at the late conduct of our President." Rumors were circulating of an "understanding" between Adams and Jefferson concerning the presidential election. Though Bayard thought these "tales not worthy our notice," he would prefer to support Charles C. Pinckney for the presidency. "Mr. A [ d a m s ] , " said Bayard, "has contrived to forfeit the affection of most federal men whom I meet with. If events should justify it, there will be no difficulty in keeping him out of the tickets of this State." 60 Rutledge, on a trip through New York and New England, showed this letter to the Federalist "Father confessor in politics," Alexander Hamilton. Bayard and Hamilton, despite the latter's immense influence over Federalist policies and tactics, had never met nor corresponded. Now they exchanged letters, and Bayard penitentially asked: What is the charm which attaches the East so much to Mr A ? It can be nothing personal. The escape we have had under his administration is miraculous. He is liable to gusts of passion little short of frenzy, which drive him beyond the control of any rational reflection.

F R A N C E AND

FEDERALISTS

35

I speak of what I have seen. At such moments the interest of those who support him, or the interest of the nation would be outweighed by a single impulse of rage. This is enough, but not all. We may thank the guardian Genius of the count rv, which has watched over its destinies for the last 4 years. I do not hold this language to the multitude tho' I should have no objection to hold it to Mr. A himself. We must vote for him I suppose and therefore can not safely say to every one what we think of him. But he has palsied the sinews of the party and if I relied on forebodings as ominous, I should believe that before another Presidential cycle had completed itself, he would give it its death wound.61 In the election, for whatever reason, Bayard and Delaware supported Adams. Nor did Bayard ever intimate to Adams the least dissatisfaction with the President's actions in dismissing James McHenry and Timothy Pickering. The above letter indicates that Bayard went over to the Hamilton group. But the Delawarean never raised his voice beyond a whisper in this change of political allegiance. Throughout, he displayed a masterful political skill, a skill which earned him no enemies during this period of division. In fact, on February 17, 1801, Adams rewarded Bayard by nominating him as Minister Plenipotentiary —to France. 62 The question of immediate war or further negotiation with France divided the Federalist party. And that division was an important cause of their loss of power to the Jeffersonians. But another equally important cause for their decline was the Alien and Sedition Acts. From the heights of popularity in 1798, when the XYZ affair united the nation in rampant nationalism, the Federalists in the next few years fell to a secondary position in political power. Within a period of one month, in June-July, 1798, the Federalists enacted four laws—the Alien and Sedition Acts—which dimmed the flame of their popularity. It was a deadly political mistake.

C H A P T E R

IV

FACTIONALISM IN CONGRESS

T h e issues of importance which confronted Congress during the closing years of the eighteenth century were debated and decided along well-marked party divisions. T h e strength of the Federalists was concentrated in the New Y o r k - N e w England region, but their party was f a r f r o m sectional. Virginia and North Carolina were Republican states, but each returned a Federalist to Cong r e s s ; South Carolina, Maryland and Delaware, Pennsylvania and N e w Jersey were either Federalist or balanced between the two parties. T h e Jeffersonians, likewise, were a national party— and would be even more so after 1801—despite Virginian leadership and the southern bias of their support. Vermont and Massachusetts each sent a Republican member to Congress; Pennsylvania's Albert Gallatin and New York's E d w a r d Livingston were leaders of the minority in the lower house. Party divisions, then, were not sectional divisions, and cardinal questions such as foreign relations, military expenditures, the Alien and Sedition Acts, etc., found opponents and proponents in Congress f r o m every area of the United States. In November, 1797, Congress experienced a minor but strenuous debate on whether a Quaker petition should be accepted or rejected by the lower house. The petition complained of a North Carolina law, alleged by the Quakers to be ex post jacto, since it effected the reenslavement of one hundred and thirty-four freed Negroes. 1 P a r t y lines were nonexistent on this question, but sectional divisions were easily discernible. H a r p e r and Rutledge, both f r o m South Carolina, were loudest in their condemnation of

FACTIONALISM

IN

CONGRESS

37

the Quakers. They were joined bv two North Carolinians, Nathaniel Macon and Willie Blount (the brother of William Blount of Tennessee), and Josiah Parker of Virginia. George Thatcher of Massachusetts, Matthew Lyon of Vermont, Edward Livingston of New York, Albert Gallatin, and Bayard defended the Quakers and the right of accepting the petition. Bayard applauded the Quakers. " H e believed there was no body of men more respectable; they were obedient, and contributed cheerfully to the support of the Government." The House, said Bayard, knew little of human nature if it thought it could "silence these petitioners by contemptuous treatment." T h e most interesting part of the debate, however, concerned Congress's ability to take cognizance of an allegedly unconstitutional state law. Bayard argued in the affirmative. Does the House of Representatives have, asked Bayard "jurisdiction over this matter? . . . [I a m ] warranted by the Constitution in saying they have, because that instrument says that no State shall make ex post jacto laws. It belongs to this House, therefore, to see that the Constitution is respected." 3 A fellow Federalist, William Gordon of New Hampshire, disagreed with Bayard. If a state law violated the Constitution, said Gordon, "there was a clear remedy in the law which organized the Judicial department of the United States." 4 The Supreme Court, not Congress, was the proper body for this case. Bayard was the more persuasive, and the petition was referred to a committee for consideration. The report of that committee, however, confirmed Gordon's argument, for it maintained that the question was of a judicial nature, one with which Congress had no right to interfere. 5 The same Congress is renowned for its passage of the Alien and Sedition Acts, measures which called forth once again the acrimonious and bitter spirit of party rather than section. These measures were debated and enacted within a period of less than three months, May-July, 1798, but their validity was questioned for more than three years, their effect important and instrumental in causing the defeat of the Federalists in 1801. This was the Federalist answer to the influence of the French

38

FACTIONALISM

IN

CONGRESS

Revolution; their purpose, to eradicate the political opposition of those who defended the ideas of that revolution, f o r those ideas represented a threat to religion, property, government, and even family. The motive may have been laudable; the results were not. Honest criticism was labeled "foreign," free thought was jailed, conformity was praised as American. Not a single Federalist—not John Adams, not even George Washington, certainly not Alexander Hamilton—opposed their passage. Only John Marshall criticized these acts after their enactment. Nevertheless, there are important distinctions which should be drawn among the Federalists. All must be held responsible for the Alien and Sedition Acts. All agreed that the Jeffersonians were dangerous revolutionaries, closer to French anarchy than American republicanism, liable to destroy the entire structure of society. Thus, all agreed that Republican organs of propaganda must be silenced, their political power curtailed. But there was disagreement among them as to the extent, rigor, and harshness of this legislation. Some Federalists were zealous, near fanatical, in this program of repression. If men like John J a y , Gouverneur Morris, James Lloyd, Fisher Ames, Samuel Sewall, or William Craik had their way, the Alien and Sedition Acts would have been unbelievably severe, a complete abrogation of both the letter and spirit of the Constitution. Others, however, were legalistic, demanding exactness, requiring that procedural forms be maintained. Bayard, Harper, and Otis belonged to the latter group. Because of their insistence on legal protections, the Alien and Sedition Acts, as passed by Congress, contained various statutory safeguards to free expression. If in operation these protective clauses turned to water, offering no barrier whatsoever to the abridgment of civil liberties, the fault was with the judiciary. T h e first of these acts, a naturalization law, extended the period of residence for citizenship from five to fourteen years. John Jay, while this act was being debated, advised Timothy Pickering to amend the law by adding a provision specifically depriving any foreigner from being elected or appointed to any office under the United States, or under any individual state. 4

FACTIONALISM

IN

CONGRESS

39

William Craik of Maryland declared, on the floor of the House, "that no foreigner coming into this country after this time, should ever become a citizen." 7 Robert Goodloe Harper and Harrison Gray Otis contended that birth alone should entitle a person to citizenship. Samuel Sitgreaves, to avoid constitutional objections, proposed establishing a term of residence of such length that no alien ever could become a citizen. 8 Bayard never was guilty of such rash statements. Though he maintained that "aliens cannot be considered as members of the society of the United States"; that "whatever is granted to aliens is a mere matter of favor"; that if these rights are taken away, "they have no right to complain"—yet he explained that through the dual citizenship of our federal system, foreigners could, under the laws of many states, vote in elections for filling posts in the federal and state governments. Aliens might even, according to state laws, hold offices under the individual states. "The only privilege which they are denied," said Bayard, "is the capacity of becoming members of the Federal Government." 9 And it was this privilege that was the all important one to the Delawarean. For it would extend the influence of the hated aliens even further; it would give to the Republicans even greater power. During this period of close and sharp struggle between the parties, it was vital that alien influence be severely (but legally) restricted. The naturalization bill, before amendment, extended the fourteen-year residence requirement to all aliens already in the United States, as well as to newcomers, i.e., the five-year period required by the naturalization act of 1795 would be useless to them. Gallatin objected to this retroactive provision, and offered an amendment exempting aliens who qualified under the act of 1795. Supported by his fellow Republicans and several dissident Federalists, the amendment was adopted. 10 It was at this point that Bayard offered an amazing motion—the suspension of further debate on the naturalization bill; the suspension, along with it, of the naturalization act of 1795. The Delawarean "thought the present time was not a proper period for making permanent regu-

40

FACTIONALISM

IN

CONGRESS

lations on the subject." There was a danger, said Bayard, that "under our present feelings, . . . the restrictions against aliens might be carried too far." 11 These words wore a coat of liberalism; beneath lurked an ugly partisan motivation. For the purpose of the resolution was to reverse Gallatin's successful amendments. The bill to extend the period of naturalization to fourteen years would be suspended; but by suspending, at the same time, the naturalization act of 1795. Bayard would succeed in keeping all aliens from full political rights. In other words, by this action, there would be no national statute dealing with naturalization, and the aliens would remain at the pleasure of the Federalists. But Bayard was ruled out of order. He did not speak on the naturalization bill again. When it was voted on, he sided with the majority. 1 2 When the Alien Enemies Act (a war measure giving the President authority to seize and remove from the country aliens of an enemy nation) was debated, Bayard attempted to modify certain of its provisions. One part of that law declared it a crime to harbor or conceal an enemy alien when the nation was at war. The bill, before amendment, stated that the crime was punishable "as by law is or shall be declared." 13 But what, specifically, was the crime? And, what was the punishment? It seemed insane, against every maxim of law, to provide for punishment after the crime was committed. Moreover, the crime was not really defined. Bayard was in favor of the bill; but he objected to the fact that the bill made explicit neither the crime nor the punishment. In answer to this objection, Samuel Sewall of Massachusetts maintained that the crime was treason. Bayard then said that "he did not understand the bill, because the crime of treason is defined by the Constitution, and could not be varied by any law of Congress." 14 Through his efforts the crime was labeled a misdemeanor and exact punishments established. In the debate on the Alien Act (giving the President the power to expel any non-citizen by executive decree) Bayard called upon the Republicans to offer evidence that the bill was either unconstitutional or unnecessary for the safety of the country. (Otis

FACTIONALISM

IN

CONGRESS

41

did not want to waste time in discussing necessity, demanding its immediate passage.) 1 5 Gallatin took up Bayard's challenge and delivered a lengthy speech, charging that the bill was unnecessary as well as unconstitutional. The Delawarean attempted to answer these objections. First, Bayard defended the constitutional right of Congress to pass the act by citing the "general welfare" and "necessary and proper" clauses of the Constitution. Later he maintained that the privilege of the writ of habeas corpus was not suspended by this act, and denied that state laws regulating importation and migration of persons were impaired by the law. The Pennsylvanian, said Bayard, would certainly agree that aliens described as "felons" or "fugitives from justice on charges of treason or sedition" should be exported. "It cannot be expected," said Bayard, "that these exotics will support this Government, when they have notoriously opposed that of the country which they have deserted." The last description of exportable aliens—"those whose continuance in the United States the President shall deem injurious to the public peace and safety"—might create, admitted Bayard, a difference in opinion amongst gentlemen. Bayard, however, "had no hesitation in saying that he had so much confidence in the President as to believe the power would not be abused. 18 The last of these acts to be passed, and the most famous, was the "Act for the Punishment of Certain Crimes"—the Sedition Act. As it came from the Senate, penned by General James Lloyd of Maryland, the act was very harsh. Lloyd, in fact, wanted to inflict the death penalty on any American citizen convicted of giving aid to the French. As such, it was a virtual declaration of war. The Senate struck this section from the bill but retained the other parts. 17 The most important section declared that any printing, writing, or speaking against the President or Congress, with intent to defame or weaken the Government, was a misdemeanor punishable by a fine and imprisonment. In the House of Representatives, Bayard defended the bill, but attempted, with the aid of Harrison Gray Otis and Robert Goodloe Harper, to modify this harshness. The Delawarean in-

42

FACT] O X A I. ISM JN

COXGKKSS

troduced an amendment allowing the libellee an opportunity to offer evidence of the truth of an alleged libel.18 If there was any question of whether English common law had yet incorporated this alteration—and there is little doubt that under the common law of England in 1798, truth could not be offered as evidence in justification in a criminal libel suit—the amendment would solve this difficulty. 19 As Oliver Ellsworth said: "The Sedition Act. . . . by permitting the truth of a libel to be given in justification, causes that, in some cases not to be an offence which was one before." 20 In other words, Bayard's amendment exempted true criticism from prosecution, an exemption which tightened the test of alleged libels. William C. Claiborne of Tennessee then offered a motion to allow juries in cases arising out of this act to decide questions of law as well as fact. Bayard strenuously objected to this amendment. "It is utterly impossible," said Bayard, "that unlettered men can be competent to decide justly as to questions of law. He knew of no criminal case in which the jury exercised this power." 21 As a result of this tirade, Gallatin suggested a change—"that the jury should have a right to determine t h e law a n d the fact, under the direction

cases."

of the court, as in o t h e r

It was carried by a huge majority. 2 2

The Alien and Sedition Acts, John Dawson wrote to Madison, "exceed anything which has disgraced . . . the history of any country pretending to be free." 23 The reactions of a free people, aided by Republican strategy which emphasized the tyrannical nature of these laws, were not slow in emerging. John Breckenridge told Monroe, in 1798, that the people of Kentucky "are assembling in various parts of the State and strongly reprobating the Alien and Sedition Bills." 24 In February, 1799, the Republicans of Delaware conducted a meeting at the Red Lion Tavern, called for the purpose of expressing their opposition to these acts. 28 Bayard presented their petition to Congress. 26 The Republicans continued to grow in strength despite (and perhaps because of) these laws; many more Jeffersonian newspapers existed in 1800 than in 1798.27 Thomas Jefferson, writing in 1800 to John W. Eppes about the Sedition Act, told him that the

FACTIONALISM IN CONGRESS

43

Republicans would fight fire with fire. "Our campaign [in the coming Presidential election] will be as hot as that of Europe," said Jefferson, "but happily we deal in ink only; they in blood." 28 During these years Bayard continually defended the Alien and Sedition Acts on the floor of Congress against the constant hammering of the Republican opposition. In February, 1799, he delivered a lengthy speech decrying Republican attempts to "inflame popular discontents " against these acts. Accused by Claiborne, McDowell, and Gallatin of the most "illiberal reflections," Bayard's words became even more caustic and cutting. If anything, he concluded, these laws ought to be extended and invigorated. 29 It was quite a change from his comparative moderation at the time of their enactment. One year later, in January, 1800, another attack on the Sedition law was ventured in Congress. Again Bayard made several speeches against repeal, asking that the law be allowed to lapse by its own limitation. 80 Nathaniel Macon of North Carolina offered a resolution to repeal the second section of the Sedition Act. Bayard amended this resolution by adding that offences described in the bill should remain punishable at common law, provided that the defendant could offer in evidence "the truth of the matter charged as a libel." 31 If agreed to, this resolution would by implication give statutory sanction to the argument that the common law of England had been adopted by the United States government. The motion was divided and the House, by a vote of 50 to 48, approved Macon's resolution of repeal. Immediately after this, however, they approved Bayard's amendment by a vote of 51 to 47. Then the "question was taken on the whole [resolution] and negatived, 87 to II." 32 As Stevens T. Mason explained to Monroe: "Almost the whole House united in voting out the resolution as amended. One party from their attachment to the sedition law, the other from the dangerous consequences apprehended from the admission of the common law as applicable to the Government of the United States." 33 Bayard had had a chance to expound on his favorite topic—the application of the common law in the United States. At the same time (knowing

44

FACTIONALISM

IN

CONGRESS

that such a doctrine would never be accepted in Congress) he succeeded in keeping the Sedition Act f r o m being repealed. T h e Republican party, Bayard wrote to his father-in-law, "would have had a complete triumph had it not been for the amendment. Their defeat was attended with much vexation and resentment." 34 A s a legalist, Bayard must be praised for his amendments to the Alien and Sedition Acts at the time these laws were passed— his amendment to the Alien Enemies Act specifying the crime and punishment; his important amendment to the Sedition Act to permit the truth of an alleged libel to be given in justification. Yet, as a Federalist, the Delawarean was instrumental in the passage of these acts, and his subsequent behavior is that of a partisan defender of their validity. This partisanship was displayed even more clearly in two incidents which occurred after the passage of the Alien and Sedition Acts. Bayard, on these occasions, played an important part as critic of two leading Republicans, Matthew Lyon of Vermont and J o h n Randolph, J r . of Virginia. In the midst of the confusion and excitement caused by Adams's nomination of Vans M u r ray as Minister to France in February, 1799, Lyon, recently reelected as representative f r o m Vermont, reappeared in Congress. He already had gained a measure of fame on two counts: his fight with Roger Griswold, Federalist f r o m Connecticut, and his imprisonment for four months under the terms of the Sedition Act. Bayard immediately offered a strongly worded resolution calling for Lyon's expulsion. It noted that Lyon had "been convicted of being a notorious and seditious person . . . of depraved mind . . . [and] diabolical disposition." These words, said Bayard, "are copied f r o m the trial itself." 33 John Nicholas and Albert Gallatin sprang to the defense of Lyon. Nicholas noted that his conviction and imprisonment were insufficient grounds for banishing a popularly and constitutionally elected representative. Gallatin spoke at length, at times caustically, at times angrily, directing his remarks to Bayard. The gentleman f r o m Delaware, said Gallatin, "says that all opinions are liable to be

FACTIONALISM

IN

CONGRESS

45

prosecuted, provided that they can be proved false, scandalous, and malicious." But who can determine if an opinion is correct or incorrect? If Bayard disagreed with an expressed opinion, said Gallatin, "it is . . . to be deemed false, and liable to prosecution." 34 A majority of only four, 49 to 45, voted for expulsion; Lyon remained seated. 37 The John Randolph affair, which occurred almost a year later, involved an insult to the Virginia congressman at a Philadelphia theatre. In his maiden speech to the House of Representatives, Randolph referred to "the army and navy [as] a handful of ragamuffins." 38 While at the playhouse several "very inferior officers of the navy " (as Thomas Jefferson termed them) began orally to berate and physically annoy Randolph. 39 He wrote to President Adams, explaining the occurrence and demanding proper disciplinary action. Adams, feeling that the matter was within the proper sphere of the legislature, sent the letter to the lower house. Against Randolph's wishes, it was referred to a select committee. 40 This committee severely criticized Randolph's attempt to transfer a legislative question to the executive department, and (after interviewing many witnesses concerned in the affair) decided to take no action because of the contradictory nature of the testimony. The Republicans made a strenuous effort to have this report recommitted. Bayard, at this point, delivered a lengthy and partisan speech in favor of the committee's findings. The heart of the matter, said Bayard, "was whether there had existed a premeditated design to insult [Randolph]. It manifestly appeared that whatever happened was the fruit of the occasion and of no design." 41 The Federalists triumphed. The report was upheld. In all such matters of a partisan nature, the Federalists were successful. Though their majority in the lower house rarely numbered more than a half dozen votes, they were well-organized and compact enough to stand firm against Republican assaults. Not a single Federalist deviated from his party in the Lyon and Randolph affairs. Political allegiance and political animosity dictated their votes. But an event occurred in the midst of 1797

46

FACTIONALISM

IN

CONGRESS

which confounded and confused these party distinctions. At that time news reached Congress of a conspiracy between a Republican Senator and the British Minister. This event did not abate factionalism; in fact, after the initial shock the news caused, Federalists and Republicans alike attempted to fit it into their patterns of political thought and behavior. But there was confusion, a confusion which remained long after the affair itself fell from the public interest—for not even the wildest dreamer ever thought a Republican Senator and the British Minister could be linked .in a conspiracy.

C H A P T E R

V

T H E IMPEACHMENT OF WILLIAM BLOUNT "I sh[oul]d have been much more distress'd if . . . [William Blount] had been a . . . F e d e r a l i s t ] , " wrote one of Bayard's Federalist friends in Delaware. 1 She echoed the universal relief of her party. "This is a spark . . . which will bring to light some of the British influence and Corruption," retorted a Delaware Republican, Thomas Rodney. 2 His statement represented the universal belief of the Jeffersonians. Less than two months after Bayard entered Congress in the summer of 1797, President Adams released an intercepted letter that contained dark and foreboding intimations of an international conspiracy. The letter, dated April 21, 1797, had been written by a Republican Senator from Tennessee, William Blount, to an Indian interpreter, James Carey: I believe . . . that the plan . . . talked of will be attempted this fall . . . if the Indians act their part, I have no doubt but it will succeed. . . . I shall myself . . . be at the head of the business on the part of the British. . . . it is not yet quite certain that the plan will be attempted. . . . you must take care in whatever you say . . . not to let the plan be discovered by . . . any . . . person in the interest of the United States or Spain. . . . When you have read this letter three times, then burn it.3 Robert Liston, the British Minister, quickly corroborated the intimations contained in this letter. 4 He had been approached some months previously with a plan to conquer Spanish territory in the south and west. Then it was true. Rumors and accusations multiplied as the Blount affair spread across the young na-

48

I M P E A C H M E N T OF

BLOUNT

tion. In the faction-ridden Federalist period it was political dynamite. Eventually the Blount affair fizzled instead of exploding, but in the middle of 1797 it was the predominant issue. 5 It was confusing. It did not fit into the neat little categories, the popular assumption (of the Federalists) that all Republicans were Frenchmen in disguise, or (of the Jeffersonians) that all Federalists were secret worshippers of the British crown. Now, had it been a Federalist Senator who was discovered in this business, the whole thing could be understood. Or, if Blount had been involved with the French instead of the British, the entire affair might make sense. The Jeffersonians labeled it "Liston's conspiracy," and attributed Blount's aberration to "the British party who seduced him." ® The Federalists called it "a French plot," and cited Blount's voting record as an indication of his perfidious nature. 7 Each party condemned the affair, each was sure that a full investigation would depict its opponent as the true villain. On the same day, July 8, 1797, that the Senate voted for Blount's expulsion, the lower house formed a committee to examine the entire affair with a view to possible impeachment. 8 For the next three months the committee, consisting of three Federalists—Bayard, Samuel Sitgreaves (chairman), and Robert Goodloe Harper—and two Republicans—John Dawson and Abraham Baldwin—worked through the summer heat of Philadelphia, attempting to complete the picture of the conspiracy. Agents were dispatched to take depositions, collect papers, bring back key figures. Captain William Eaton, deputized to arrest Nicholas Romayne of New York City, allegedly implicated in the conspiracy, told of arriving at his house after midnight, of finding Romayne in the process of burning letters, and of searching, finding, and sequestering the remaining documents. 9 By "relay horses" Major Thomas Lewis sped to Tellico block-house in Tennessee with orders to arrest James Carey, "Interpreter at Tellico," and John Rogers, "Resident in the Cherokee Nation." 10 A Philadelphia tavern keeper, a merchant, a medical doctor, a man "late of the Territory of the . . . Northwest," and the "son

I M P E A C H M E N T OF

BLOUNT

49

of a very respectable Professor of Divinity"—all gave testimony before the committee. 11 Bayard's letter at this time contained no references to the committee's investigation, perhaps because no definite or startling results were forthcoming. The mass of evidence contained mainly innuendo—"the general sketch," "secrecy and discretion," "the business you allude to," "our plans," "utmost caution," "your secret and mine." 12 John Dawson told Madison of his "wellgrounded reasons" that the committee "shall bring in some large fish." 13 But the hoped-for big catch was a sardine: one John Chisholm, a rough, hard-drinking, frontiersman friend of Blount. Chisholm's part, according to the plan, was to lead the invasion of Spanish Florida. Robert Liston, the English Minister to the United States, had paid Chisholm's fare to England, feeling that the subject warranted the attention of the British Government. 14 But that government refused to finance a project involving "the impropriety of organizing within the United States any hostile expedition against a nation with which they are at peace." 15 In the end, all of the committee's angling resulted in nothing more than mere documentation of what was obvious from the very beginning. The plot was half-baked and hopeless, sensational but sterile. The original letter that President Adams had sent to Congress contained the heart of the matter—it all depended upon England. These great schemes and plans, the blueprints of an empire, were based on a hope of English participation. 18 When that aid was not forthcoming, the dream disappeared. By the end of 1797 the committee reported its findings to Congress. For two days chairman Sitgreaves read the evidence— the letters, documents, depositions, and interrogations—which the committee had gathered during the congressional recess. They did nothing more. No bill was proposed, no action advised, no resolution voted. 17 Thomas Jefferson, Vice-President of the United States, told Madison that: "It is most evident that the antirep[ublican]s wish to get rid of Blount's impeachment. Many metaphysical niceties are handing about in conversation to

50

IMPEACHMENT

OF

BLOUNT

show that it cannot be sustained. To shew the contrary it is evident must be the task of the Republicans or of nobody." 18 Republican representative Joseph McDowell of North Carolina echoed Jefferson's words on the floor of Congress, rising to demand an explanation of the committee's procrastination in the prosecution of William Blount. Federalist Robert Goodloe Harper and Republican John Dawson both tried to explain that the absence of Sitgreaves and Bayard was the sole cause of the delay. 19 Another week passed and McDowell again took the floor to demand action in the Blount case. This time Bayard was present to offer an explanation. Blount, said the Delawarean: was held at bail by the Senate under the penal sum of $2,000; and it was well understood that when the articles of impeachment should be exhibited against him in the Senate, he would not appear; and, except he did appear, at that time, it would be impossible for the House to proceed with the impeachment. This view of the subject had created a lukewarmness in the committee. Had they been impressed with the idea that the business could have been prosecuted with success, he believed the articles of impeachment would have been produced at an earlier period of the session; but, as they considered the further proceedings in the business a mere matter of form, they had been the less anxious about it.20 But McDowell said that he would "not agree to any further delay." John Dawson added his opinion that Blount could be impeached even if absent from the proceedings. Finally, on January 25, 1798, the chairman presented the articles of impeachment. In five parts, they charged Blount with the intention of carrying into effect a hostile expedition, with English aid, against Spanish territory in Louisiana and Florida; of employing the Creek and Cherokee Indians in this expedition; of "alienating" the affections of the Indians from United States agents; of "seducing" James Carey to assist him in this plot; of attempting to undermine Indian confidence in relation to certain established boundary lines. The articles were accepted without debate and the managers were selected to prosecute the impeachment. 21

IMPEACHMENT

OF

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Another full year passed before the proceedings began. The delay, this time, was in the upper house. The Senate had lost no time in voting for the expulsion of Blount. It took less than a week from the time Adams sent Blount's letter to Congress for the Senate to oust Blount. But the Constitution was very concise and explicit on the simple matter of expulsion. Section 5 of Article I said that "each house may . . . with the concurrence of two thirds, expel a member." Impeachment was a different matter. There were forms to be established, proceedings to be settled, as well as "metaphysical niceties" to be ironed out. As Thomas Jefferson noted: Many knotty preliminary questions will arise, must not a formal law settle the oath of the Senators, forms of pleadings, process against persons & goods etc. May he not appear by attorney? Must he not be tried by jury? Is a Senator impeachable? Is an ex-Senator impeachable? You will readily conceive that these questions to be settled by 29 lawyers are not likely to come to speedy issue.22 By this time a change had occurred in party attitudes regarding the impeachment. Jefferson now defended Blount's right to a jury trial and decried the impeachment. "I see nothing in the mode of proceeding by impeachment," he wrote to Madison, "but the most formidable weapon for the purposes of a dominant faction that ever was contrived. It would be the most effectual one for getting rid of any man whom they consider as dangerous to their views . . . . I know of no solid purpose of punishment which the courts of law are not equal to, and history shows that in England, Impeachment has been an engine more of passion than justice." 2 3 H e referred Madison to Tazewell's speech on "the introduction of the j u r y into the trial by impeachment." 24 But Madison remained unconvinced. "My impression," answered Madison, "had always been that impeachments were sui generis . . . . It would seem that the reservation of an ordinary trial by a jury must strongly imply that an impeachment was not to be a trial by jury." 25 T h e Federalists, meanwhile, meant to prosecute the impeachment with vigor. This could be seen, claimed Madison, in their choice of managers—almost all Federalists.

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They were "ready to go as far as the controul of their constituents will permit." 26 On January 3, 1799, after an eighteenth-month delay, the formal arguments of the prosecuting and defending attorneys began. For the House of Representatives, James A. Bayard and Robert G. Harper were the Managers of the Impeachment. 27 Both were leading members of the lower house, political stars of their respective states, important non-New England Federalists of the day. Counsel for ex-United States Senator William Blount consisted of Jared Ingersoll and Alexander J. Dallas. Philadelphia lawyers, they were accomplished and famous, well known to the legal world and political circles. For the first time in American history the Senate was acting in its judicial capacity as judge in an impeachment case. The presiding chairman was the Vice-President of the United States, Thomas Jefferson. Before it Bayard was to face his old law teacher, Jared Ingersoll. Ingersoll and Dallas filed a plea on December 24, 1798, asking the Senate to dismiss any further cognizance of the suit. The bases of their contention were four-fold : ( 1 ) Since it is a criminal case, the accused is entitled to a jury trial in "the State and district wherein the crime shall have been committed." (2) A Senator of the United States is not a "civil officer," and therefore not liable to impeachment. ( 3 ) William Blount "is not now a Senator." ( 4 ) The articles of impeachment do not charge him with having "committed any crime or misdemeanor, in the execution of any civil office held under the United States", i.e., he is not guilty of an impeachable offense. 28 To this plea, Bayard, as "Chairman of the Managers," filed a rejoinder denying the assertions of Ingersoll and Dallas. The Senate would now hear the arguments on these points. If they accepted any of them, the suit would be dismissed. Bayard began by jury. If this authority of the admitted. The Representatives

by answering the claim of Blount's right to trial was admitted, he said, a great deal of the judicial Senate would be abolished. But it could not be Constitution expressly gives to the House of the power to impeach; expressly gives to the

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Senate the power to try the impeachment. That "all this should be done away by a doubtful inference as to the intention of an amendment" 29 would be imbecilic. It would be, furthermore, illogical. After all, criminal trials of a military nature would then be by jury rather than courts martial. Said Bayard: "It is, therefore, plain, that though it was the intention to establish it as the general rule, that, on criminal prosecutions, the trial should be by jury, yet . . . exceptions to the rule were designed to be allowed in the cases of impeachment and courts martial." In order to answer the defendant's second point—that Blount was not a civil officer, and that only the "President, Vice President, and civil officers" are impeachable—Bayard offered the sweeping claim of the impeachability of every citizen. "Were we to rely solely," said Bayard, "on the details of the . . . [Constitution] itself, we should be incapable of understanding and executing the greater part of its regulations." Therefore, he reasoned, we must look to the common law of England for an explanation of its obscure terms. The common law of England is applicable to the United States, he argued, limited only by the fundamental law of the Constitution and by the statutory laws of our federal and state governments. "Where the Constitution has given us terms which it does not explain . . . we must have recourse to the common law." This was the case as regards impeachment. The Constitution "has not defined the persons who shall be the objects of impeachment." According to English common law (which the makers of our Constitution assumed as common knowledge), every citizen was impeachable. Not only was this view logically correct, but imperiously necessary. If a private citizen, "possessed of extensive influence," was by "illegal artifice" to attempt a rebellious conspiracy, impeachment was the perfect mode of stifling this possibility. Conviction would result in "absolute and perpetual disqualification from any office of trust, honor, or profit, under the Government." As such, it was a valuable corollary to congressional expulsion, since by the latter the excluded member might regain his seat. If the Senate, however, would not accept Bayard's arguments

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concerning the applicability of the English common law to American impeachment practices—that every citizen is impeachable— he would limit his comments to a rebuttal of the defendant's plea that a Senator was not a civil officer. This was an incredible pretension on the part of Blount's counsel. After all, we see a Senator "acting as a Legislator, an Executive Magistrate, and a Judge, and yet we are told that he is not an officer. May I ask, what an office is?" The Northwest Ordinance of 1787 used the words office and officer in relation to the legislative branch. Blount himself "was a member of the Congress which passed" this ordinance. Its time of passage was "contemporary" with the adoption of our Constitution. Would it be strained reasoning to assume that the authors of our Constitution employed these terms in a similar vein? Yet, Bayard knew, to argue from illustration and analogy did not "touch the point of the argument." We must consider this question "within the contemplation of the Constitution." Defense would probably contend, said Bayard, that all officers of the United States are commissioned by the President. Since a Senator, clearly, is not so commissioned, it follows that he is not an officer. This reasoning is specious, claimed Bayard. The President is an officer himself, yet he holds no commission. There are "a variety of subordinate officers, appointed by Heads of Departments and Courts of Justice, whom the President does not commission." The President commissions only those whom he appoints. There are many other officers, however, recognized as such by the Constitution and by statutory law, who do not hold commissions by the President. No, defense counsel's argument on this point, if used, would be patently untrue. The same fallaciousness might be employed if defense counsel cited the sixth section of Article I : "That no person holding an office under the United States shall be a member of either house during his continuance in office." "It will therefore be said," claimed Bayard, "if the place of a Senator is an office," this clause is "repugnant and absurd." The absurdity, however, was in the reasoning. For, so Bayard explained, a distinction must be drawn

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between officers under the United States and officers of the United States. This would solve any apparent contradiction or cloudiness. Senators were not officers under the Government. " T h e y who constitute the Government cannot be said to be under it." Instead, they were, like the President and Vice-President, civil officers of the United States, all of whom were impeachable. Bayard excused himself for these picayune semantical points, these "nice distinctions" and "verbal criticisms." They were unnecessary if the Senate would adopt the "true rule of construction" of the Constitution; if the Senate would interpret our fundamental law so " a s to give the fullest effect to all its parts." As Bayard warned: " I f there be apparent contradiction, we must attempt to reconcile; and if there be absolute repugnancy, we must reject that part which can be rejected with the least violence to the general intention." B y adopting a broad and loose interpretation of the Constitution, no doubt remained of Blount being a civil officer. Look to the effect of a strict and narrow interpretation. The gates of Congress would remain open to unscrupulous offenders of the public trust. It would be a "solecism in politics, an absurdity in reason," which he hoped "this honorable Court will not willingly, by their act, attach to an instrument so highly revered as the Constitution of our Government." Bayard rapidly dismissed the last two points claimed by Dallas and Ingersoll in their plea: that Blount was not now a Senator; that he has not been charged with any "crime or misdemeanor" committed while performing his Senatorial functions. It was enough, said Bayard, that Blount was then a Senator. If the Senate approved such reasoning, resignation "might secure" the "impunity" of any party. " T h i s is against one of the sagest maxims of the law, which does not allow a man to derive a benefit from his own wrong." In reference to the question of whether Blount's actions constituted an impeachable offence, Bayard maintained that an affirmative answer was the only one possible. " F o r , " he stated, " I conceive that a plain violation of the trust reposed in the party may be discovered in the matter alleged in the articles [of impeachment]." And if there still remained a

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question of whether Blount's actions were those of a public or private citizen, Bayard dismissed this distinction since "there is not a syllable in the Constitution which confines impeachment to official acts." Clearly, concisely, impressively, the Delawarean had answered each point raised by the defense in their plea for dismissal. 30 The following morning, at eleven o'clock, Alexander J. Dallas rose to answer Bayard. Dallas, after a brief introduction, launched an attack on Bayard's assertion that all citizens were liable to impeachment. If the Senate so ruled, it would give credence and authority to the belief that this country had adopted the common law of England. This was impossible. A federal judge had recently ruled, said Dallas, that the "Federal Government had no common law in relation to crimes and punishments." 31 Where are the "express words of adoption" of the common law in the Constitution of the United States? And if we were to use the common law, which one should it be? "Is it to be the common law of individual States, and of which States ? Or, is it to be the common law of England and at what period ? Are we to take it from the dark and barbarous pages of the common law, with all the Feudal rigor and appendages?" No, Dallas contended, Bayard's doctrine was a willowy reed unable to budge the rock of reason and rightfulness. Even if this country has adopted English common law, Bayard was still wrong. Quoting from IVoodeson's Lectures, Dallas pointed out that "all subjects are impeachable, because all subjects may be magistrates and public officers." It was not true in theory nor in practice that any citizen would be impeached in England. Finally, completely to destroy Bayard's tenet of universal impeachability. Dallas simply cited section four of Article II of the Constitution: "The President, Vice President, and all civil officers of the United States . . . " may be impeached. No other part of the Constitution lists any other groups omitted or included as impeachable. The quoted words are succinct and simple. Only

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a tortuous logic could maintain that every citizen was liable to impeachment. There remained, then, the question of determining whether a Senator was a civil officer. After citing numerous examples to display the ambiguous nature of our Constitution in reference to the term civil office (and, incidentally, selecting these examples as pointed renunciations of Bayard's argument that a distinction could be made between officers of and officers under the United States), Dallas stressed the sixth section of Article I : "No Senator or Representative shall, during the time for which he was elected, be appointed to any civil office under the authority of the United States . . . . and no person holding any office under the United States shall be a member of either House during his continuance in office." "Nothing could more strongly mark," said Dallas, "the discrimination between a legislator and an officer than the language which is here used." Dallas then reemphasized his definition of a civil officer: someone appointed and commissioned by the President of the United States. Bayard had affirmed the necessity of linking impeachment to expulsion as a shoring device. Dallas separated them. "Impeachment," he observed, "is with respect to Executive and Judicial officers, what expulsion is with respect to members of the Legislature." In cursory fashion, Dallas concluded with three rapid thrusts at Bayard. The Manager of the Impeachment had completely misunderstood their appeal for a jury trial. Defense counsel, said Dallas, joined this plea with their view that Blount was not a civil officer. Dallas would certainly deny a jury trial if the case was "properly impeachable." As for Bayard's short dismissal of the defendant's assertion that he was not now a Senator, Dallas reminded the manager that Blount had not resigned his seat to escape prosecution; he had been expelled involuntarily. Finally, once again, Dallas reaffirmed that Blount's actions were not committed in the execution of his Senatorial duties, but were part of his private affairs. 32 Dallas was effective.

The verbal barbs flung at Bayard's

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thesis struck. It depended upon Bayard's colleague, Robert Goodloe Harper, to pluck them out, seal the wounds, and hurl them back. The concluding arguments were heard on Saturday, January 5. Jared Ingersoll spoke long and pedantically, corroborating each point of his fellow counsel Dallas. The adoption of the common law of England, in reference to impeachments, Ingersoll observed, would result in very queer conditions. A state officer, for example, would be liable to impeachment before the United States Senate. 33 It would "occasion a Babel, a confusion of Constitutions, a monster of jurisprudence." In a federal system, it was palpably impossible. Quoting copiously, citing extensively, Ingersoll followed the definitions of office and officer from Hale to Hume to Blackstone to Woodeson. " T o be an officer of the Government," he concluded, "you must receive a commission from the Executive of that Government." Ingersoll said nothing new. But it was lengthy, learned, and legalistic—replete with Latin quotations, classical references, and historical analogies. 34 On the same day, in the late afternoon, Robert Goodloe Harper took the floor to offer the closing argument. Thomas Jefferson must have listened carefully as Harper recalled a similar incident, in 1793, when French Minister Genêt "denied the authority of Grotius, Puffendorf, and Vattel," and (as Harper paraphrased the expression) called their works "worm-eaten volumes," in his correspondence with Secretary of State Jefferson. Now, Blount's counsel, cornered by Bayard, refers to the authorities as "dark and barbarous volumes." Defense counsel, said Harper, had not destroyed Bayard's arguments. They could not, for they did not answer them. Instead, they erected and destroyed a "phantom" of their own creation. Bayard never brought forth an argument of total adoption of the common law of England. He said, instead, that we must refer to the English authorities for clarification and comprehension of the legal terminologies employed in our laws and courts. Would not a question in chemistry rely "on the approved book of chemistry; on the writings of . . . Lavoisier and Priestley . . . [ ? ] " If it were a military problem,

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would not "the writings of Marshal Saxe or Frederick the T h i r d " carry any weight? On a question of law, we must look to the English masters, to Blackstone, Coke, the common law. Surely, said Harper, if our Constitution was explicit on the point of impeachment, we must recur to it alone. But it is unclear ; it assumes a meaning of terms for which the common law of England can provide the only true interpretation. English common law corroborated universal impeachability, Harper insisted, and it is not inconsistent with American federalism. E x ample after example was cited by Harper to buttress these contentions. Then, at greater length than any of the three previous speakers, Harper attacked the foremost question—definition of a civil officer. He illustrated the prosecution's contention, that office and officer have often been allied with the legislative branch, by references to the constitutions of eight states. He referred to the authority "which I am persuaded will carry great weight," who prepared the "Draught of a fundamental Constitution for the Commonwealth of Virginia." He reasoned from the Constitution, appealed to the Senate's logic, to popular interpretation, and to history—that a Senator was a civil officer. He left the Senate with a warning. Bayard had said that impeachment must brace and sustain expulsion. Defense had distinguished between the two, maintaining that impeachment was to be used only for the Executive and Judicial branches of the government. Did not the Senate see the consequences if the arguments of Blount's counsel were adopted? Plots of a "dark and complicated nature . . . cannot be brought to light, and fully substantiated, without a laborious, long-continued, and systematic inquiry." Impeachment was necessary for this. 3 3 T h e preliminary hearings were over. The Senate had witnessed a display of legal knowledge and oratorical flourishes by four talented lawyers. F o r the next three days the Senate debated the question of accepting or rejecting the defense counsel's plea for dismissal. If they accepted it, the impeachment ended; if they rejected it, the impeachment would continue.

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On January 10, 1799, the Senate, acting in its judicial capacity in an impeachment trial, voted on a motion declaring Blount to be a civil officer and overruling the plea of Blount's counsel. Eleven members, all Federalists, all except one representing states north of the Mason-Dixon line, voted to accept the motion and to proceed with the impeachment. Fourteen members, of both parties, and from all sections, voted against the motion. 38 At twelve noon on Monday, January 14, 1799, Thomas Jefferson read the formal ruling of the court: "The Court is of opinion that the matter alleged in the plea of defendant is sufficient in law to show that this Court ought not to hold jurisdiction of the said impeachment, and that the said impeachment is dismissed." 37 The Senate had divested itself of the power of impeaching its own members. Thenceforth a member of the legislature was not to be considered a civil officer. 38 He could be expelled but not impeached. 39 Bayard had lost. The teacher had won. In his zeal to adopt the English common law practices, the Delawarean made a serious mistake in widening the argument to include the question of the impeachability of every citizen. The Constitution clearly prohibits any such interpretation. Yet, this author feels that the Senate made an erroneous decision. A careful reading of the debates of the Constitutional Convention provides no clearcut answer, but implies that congressmen were to be considered impeachable. Like the question of whether judicial review was or was not meant to be included in the Constitution, no answer can be definitive. And, like judicial review, the issue is an academic one, for the question has been settled by precedent and practice. From its very inception to the final vote of the Senate, the Blount case had been a continual embarrassment to both political parties. Their initial attempts to classify it according to predetermined associations could not work. The combination of a Republican Senator and the British Government was an impossibility that happened to be true. Therefore the vacillations in party attitudes to be seen in Jefferson's change of heart; in the Federalists' lukewarmness and zeal; in the Senatorial vote to dismiss the impeachment. Two years later, in 1801, a newspaper

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fight developed between the Washington Federalist and the Philadelphia Aurora concerning the Blount affair. This brief squabble typifies the confusion over the entire event. Each paper (one Federalist, one Republican) accused its rival of basic responsibility for the wrong-doing; each accused the other of trying to gloss over the entire affair. The Washington Federalist, for example, pointed out that "on the final question concerning . . . [Blount] in the Senate . . . every Democrat . . . voted against his being impeachable." 40 The Republican paper retorted, among other things, that "the only fact of importance is that Blount was corrupted by Britain," and that seven members of the Senate, who "will not be charged of Democracy," voted against the motion to continue the impeachment. 41 But the political importance of the Blount affair had disintegrated long before 1801, and the election of that year overshadowed all other events in interest and excitement. However, before the story of that election is unfolded, we must consider one other issue of importance with which Bayard was concerned during the Adams administration—bankruptcy.

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"I believe as the United States are one great commercial Republic, it behooves us to have one universal rule co-extensive with the Union, that the merchant in New Hampshire may know the laws of Georgia." 1 These were the words of Bayard, spoken in the House of Representatives in defense of a national bankruptcy law. The Delawarean debated many questions in Congress from 1797 to 1801. On one issue, however, the bill to create a uniform system of bankruptcy for the United States, his predominance was undisputed. Clearly, the national government had the power to legislate on bankruptcy. That power was granted to Congress in the Constitution. 2 No opposition to this law, therefore, was ever raised on the grounds of strict construction. That it might be unfair, unnecessary, and unsuited to this country, as well as ex post facto, were points of opposition used in debate. Yet, what does the word bankruptcy entail? Did the Framers mean it to cover all classes of people and all types of insolvency, as provided in many state laws of this period? Or, as is more likely, did they adopt the contemporary English meaning of bankruptcy—a compulsory proceeding limited to merchants and traders ? 3 These questions, for many years, provided fodder for judicial and congressional munching. When Bayard's bankruptcy bill of 1800, based on English law, was debated in Congress, its opponents paradoxi-

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cally decried the measure and yet asked for its extension to all groups. T h e state insolvency laws of this period, generally, (since some de facto state bankruptcy acts were disguised under the name of insolvency laws) were applicable to all groups. They were primarily for the benefit of the debtor since he voluntarily instituted the petition for relief. Such insolvency legislation released the applicant f r o m prison after a surrender of his property. It did not, however, release him from debt, all of his future acquisitions being liable to his creditors. English bankruptcy practice, contrariwise, was limited in application to traders, merchants, bankers, etc. It was primarily for the benefit of the creditor, since he petitioned for payment of the debt. As was the case under the insolvency laws, the debtor was released f r o m prison. After the estate was liquidated and proportionately distributed amongst the creditors, however, it cancelled all future obligations of this debt. 4 Pennsylvania, f o r a few years, had a bankruptcy act (as well as various insolvency laws) in force which followed English practice—the only state to clearly distinguish between bankruptcy and insolvency. New . York, for example, had a so-called insolvency act which discharged debts, i.e., in reality, a bankruptcy act. Most of the other states had simple insolvency acts, of different types, on their statute books. 5 In Virginia, f u r t h e r more, the insolvency act was palliated by a law absolving freehold land f r o m the creditor's grasp. 6 Generally speaking, the advocates of national bankruptcy legislation were the defenders of American commercial interests; the advocates of state insolvency laws were the defenders of American agricultural primacy. There was never complete support by the Federalists in Congress for a national bankruptcy act. Some preferred to retain state insolvency laws favorable to farmers. John Marshall forced amendments which other Federalists accepted reluctantly. It required years of constant effort to have the bill passed, years in which the Federalists enjoyed a majority. Nevertheless, Bayard and the great majority of the Federalist

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party spoke out time and time again in behalf of commercial supremacy. There are several reasons to explain the long delay in having the bill passed—the felt need for such legislation was lacking until the close of the century; the Federalists' m a j o r i t y in the lower house numbered no more than six during this period, not enough to offset defections—for there was no unity on this question—in their ranks; the fact that many, of both parties, had serious doubts and criticisms concerning the necessity or practicability of such legislation. Like the tariff fights of the next century, the bankruptcy act caused a sectional split, tenuous but distinct enough to anticipate the ominous line of division. Perpetual liability, to one group, was an anachronism in a capitalistic economy whose very foundation rested on the concept of credit. The merchants of America's growing cities, the bankers and brokers, traders of every description—these were the makers of our nation. W i t h a society such as this, said Bayard, "debts of great magnitude must be contracted; and the most honest and prudent man may, by accidents and misfortunes . . . be deprived of the means of making good his engagements." T o keep these men in prison, to hold them responsible for life for a huge debt acquired through some economic misfortune would be a severe mistake. It would stifle our growth, restrict our activities, keep us a weak country. A man who is thus imprisoned, said Bayard, "is lost to his family, his friends, and the community." H e should be given a chance "to begin the world anew." Without this chance, "his hopes are blasted, and he has no motive for industry or frugality." America was destined to become a great commercial nation. The bankruptcy act would help America achieve that destiny. Basically, however, as Bayard explained, this bill was a creditors' measure. If it helped the honest merchant escape jail and perpetual liability, it forced the unscrupulous and dishonest trader to pay his debts. In Bayard's words: W e have seen . . . men going on in speculative schemes, by means of fictitious credit, imposing upon the community, and amassing property by contracting debts to an immense amount, without an inten-

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tion to pay, and ultimately failing, to the ruin of thousands of individuals. These debtors, with means to pay in their possession, have, notwithstanding, held their creditors at arm's length, and bid them defiance. Every process known to the laws of this country have proved ineffectual. . . . thousands of fortunes and families have been prostrated and ruined; whereas, if a law of this kind had been in force, it would have been in the power of creditors to have arrested the career of such persons, and to have obliged them to make a just distribution of their property. 7 The purpose of the bill, said Bayard, was to stop such frauds while aiding the honest debtor. T o its opponents the bill was partial and inexpedient. W h y should the speculative merchant be allowed to go scot-free in comparison to the farmer and artisan, who must pay off each penny of a debt? No, said they, if we adopt this system, it must be made universal. But why adopt it at all ? This was not a commercial country like England, but an agricultural nation, a nation of farmers. America's future lay in the soil, America's prosperity in its crops. State insolvency laws were sufficient. 8 National bankruptcy bills had been introduced many times before Bayard became a congressman in 1797.® These attempts, however, had never aroused a sustained or complete debate on the subject. The crises of economic failure were absent during these years; consequently, the sentiment for such a bill remained dormant. By 1797-1798, however, the tremendous speculations in western lands resulted in spectacular business failures. Robert Morris, the renowned financier, languished in Prune Street Prison in Philadelphia, jailed for debt. Beside him, destined to die in prison, was Morris's partner, John Nicholson. A famous federal judge, James Wilson, fled to North Carolina to escape the debtor's jail. These men had risked all for the pot of gold, and had found only pyrites. A host of dissatisfied creditors trailed in the wake of the wreckage. Perhaps a bankruptcy law could satisfy both groups. 1 0 In 1797 and 1798 committees in the lower house were formed, recommendations offered, resolutions passed, bankruptcy bills reported. But no action was taken. Not

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until January, 1799, was the bill resurrected and finally placed before Congress. 11 If the Constitution explicitly gave Congress the power to enact a bankruptcy law, it also stated that Congress could not pass ex post jacto legislation. The bill, therefore, contained a clause which prevented it from affecting debts "contracted prior to the date of this act." 12 When debated before Congress, however, an amendment was proposed to cancel this clause, to extend the bill to contracts in existence at the time of passage. Was this not, then, ex post jacto? No, said Bayard, for "when a man gives credit to another, he does it not only subject to the existing laws, but to all others which may be passed." 13 William Craik of Maryland added that "no system of bankruptcy could be formed without affecting in some degree the contracts in existence at the time." 14 The amendment was carried by a comfortable majority. In answer to objections raised by Albert Gallatin, Bayard summarized and reiterated the benefits to be derived from the bankruptcy bill. He spoke of its constitutionality and of its necessity. He compared its effects on creditor and debtor. He admitted that imperfections were bound to arise; that experimentation alone could solve these evils. Then, in detail, Bayard attempted to rebut the arguments of the Pennsylvanian. 15 Gallatin contended that the differences between professions were not sufficiently marked in this country to allow a law of this sort. Planters, for example, often acted as merchants. Would they come under the bankruptcy act? Society was economically too complex for the fine distinctions contained in this act. Bayard, in answer, admitted the difficulty of differentiating between a trader and nontrader. In these instances, the commissioners of bankruptcy would decide. But the professions in America were no more mixed or involved than in any other country. Gallatin's objections were really based, Bayard suspected, on English experience. There the "description of a bankrupt . . . [is] indefinite and vague," and has led to the inclusion of "tailors, shoemakers, and graziers" as traders. For that reason the proposed bill is explicit, and details only six

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categories of traders: "any merchant or other person, actually using the trade of merchandise, by buying and selling in gross or by retail, or dealing in exchange, or as a banker, broker, factor, underwriter, or insurer." A person temporarily engaged in one of these enumerated occupations could not benefit by this bill. For, said Bayard, "It is not a single act which is to make the character of a man, but his permanent occupation." 16 Gallatin had a second and more serious objection to the bill. Under it, if a man could not pay a debt immediately, his creditors could have him declared a bankrupt. Bayard, in answer, explained that mere inability to pay could never be valid grounds for bankruptcy proceedings under this act. To invoke this law, the petitioning creditor must furnish proof of fraudulent intent on the part of the debtor in failing to meet his obligations. "If a man," said Bayard, "go[es] on in the straight path of integrity, he is at all times out of the power of his creditor under this law; and if he diverges from that path, the sooner his property is distributed among his creditors." lT But Bayard neglected to state that "fraud" is a loose and vague term, its definition capable of much disagreement. (The bankruptcy act, as actually practiced from 1800 to 1803, allowed a judge or jury to decide whether the debtor had acted fraudulently in nonpayment of his debts.) The supreme criticism of the bill, mainly by Southern congressmen, was its inclusion of land as property liable to seizure by creditors under bankruptcy proceedings. Under the insolvency acts of several states freehold land remained untouched even if the owner became bankrupt. The reason for this law, Gallatin explained, was the impracticability of converting land into money. Bayard, mincing no words, squarely answered this criticism. "Commerce," said Bayard, "and a [state insolvency] law like this, cannot live and flourish on the same soil." Imagine, said Bayard, "if I advance a man a thousand dollars, he shall be at liberty to invest it in land, and then bid me defiance." 18 An honest man could never espouse such a doctrine. As for the origin of such a law, it has its roots in feudal times. In fact, it

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was an ancient aristocratic practice, like primogeniture, that Gallatin defended. 19 Bayard spoke for another hour, continuing to answer the critics of the bill. In closing, the Delawarean revealed what he believed was the true reason for Gallatin's opposition. The bankruptcy law, said Bayard, will "cement together the different parts of the Union and connect more closely the nation with the Federal Government." Its basic effect was political. Opposed to the bill, therefore, was the party espousing decentralization, the followers of Thomas Jefferson. 2 0 Bayard was not entirely correct in ascribing contradictory political views as the sole reason for the lengthy and heated debates on this subject. Some New England Federalists, for example, were satisfied with their insolvency laws "which from habit and education have more favor than their merit entitles them to." 2 1 William Gordon, a New Hampshire Federalist, in answering Bayard's defense of the bankruptcy bill, expressed a desire to see state insolvency laws become general rather than have a national bankruptcy act. 2 2 Abraham Baldwin, a Republican from Georgia, admitted that many state insolvency laws were faulty, but insisted that the present bill would aggravate rather than alleviate the problem. The bill was defeated by a scant three votes, 47 to 44. 2 3 Once again, if a bankruptcy law was desired, the entire process would have to be repeated. And it was more and more desired by many classes as the effects of the undeclared naval war with France made themselves felt. The commercial losses caused by the seizures of American vessels by the French, added to the disastrous consequences of over-speculation in western lands, mandated another attempt for a national bankruptcy act. 24 In December, 1799, Bayard again headed a newly formed committee to frame an act; in January, 1800, a bill almost identical with the previously defeated one, was reported to Congress. 2 5 F o r the next two months the issues were again debated on the floor of Congress. Theodore Sedgwick of Massachusetts, strongly desiring the

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bill, expressed his doubts to Rufus King concerning the possibility of its passage. "The measure," he said, I believe to be important, in a commercial as well as in a political vein. Respecting the latter, it will lessen opposition to the government by the most active and clamorous description of persons— debtors finding an interest in its support; while the whole of our commercial men will have additional reasons for their activity in their favorable regard to it. It will, too, more than any measure the government can adopt, render an extension of the judiciary necessary. These benefits . . . are clearly discerned by the opposition, and consequently every member of it, except Livingston, . . . will vote against the bill.26 Bayard told his father-in-law of the difficulties he was encountering in steering this bill through Congress. "The Antis," said Bayard, "have discovered that it will add strength to the federal compact, and they make every exertion to defeat it." The bill had almost been lost on the question of engrossing, but John Nicholas, Republican from Virginia, voted for it "thro' civility," and "will never forgive himself for the blunder." 27 Both Bayard and Sedgwick were displeased with several amendments insisted upon by John Marshall. "Accommodation," said Bayard, "is the worst instrument we have made use of. But we are determined to have it [the bankruptcy act] upon any Terms." 28 The amendments provided for jury decisions on two important questions: whether the person petitioned against was a bankrupt or not, and the amount of the bankrupt's debt. "The friends of the bill," said Sedgwick, "were obliged to submit [to these amendments], or to render its rejection certain." 29 Even with these amendments, the division was bound to be close. John Randolph, Jr., a leading opponent of the bill, reminded Joseph Nicholson to be in Philadelphia for the balloting on this subject—"the great . . . important day, big with the fate of Mr Bayard's bill." 30 On February 21, 1800, after more than three years of sporadic exertions to have a bankruptcy act passed, the bill came to a final vote. That vote ended in a tie, 48 to 48, which Theodore Sedgwick, Speaker of the House, broke with a

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vote of approval. 31 Two months later the Senate, by a vote of 16 to 12, concurred. 32 At last the bankruptcy bill was law. In operation the administration of the law was quite simple. Creditors, to begin the proceeding, filed a petition with the federal district judge claiming a debtor's bankruptcy. At the discretion of the debtor a jury or the judge decided whether the petition was correct, i.e., whether the debtor came within the description of a bankrupt according to the law. If the petition was verified, the district judge appointed one to three commissioners of bankruptcy to evaluate and distribute the bankrupt's estate. Provisions were made to punish debtors who attempted to hide property, and to reward any person who discovered and reported such fraud. If the creditors received less than 50 per cent of the value of their claim, the bankrupt received, at the discretion of the commissioners, not more than 3 per cent (nor over $300) of the estate's value. If the creditors obtained a greater percentage, the bankrupt also received a proportionate increase. The commissioners kept the accounts, conducted examinations, distributed the property, and certified to the bankrupt's discharge. For this job the commissioners were paid at the rate of $6.00 per day; bankrupts at $3.00 per day for help in liquidating the estate. 33 The law endured but three years. When the Jeffersonians came into power they relieved the district court judges of the authority of appointing commissioners of bankruptcy, and vested that right in the executive. The son of the defeated President, John Quincy Adams, lost his position of commissioner as a result of this change in jurisdiction. 34 Thus, the law lost a great deal of its political significance. More important than this, however, were the growing complaints—inequality to the agricultural community, collusive suits depriving unwary creditors of just debts, alleged ex post jacto effects on contracts commenced before the act, the high pay of the commissioners, the difficulty of travel to federal courts, the very small dividends paid to creditors (many debtors being in jail and truly impoverished), the sum of money given bankrupts to start anew in comparison to the perpetual lia-

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bility of artisans and farmers, the fact that land was liable as payment for debts. 38 Bayard had realized that complaints would arise. Indeed, he considered them inevitable. We should not expect this law, he said, "to be a perfect system . . . because it is a human system." 34 Great advantages and some evils, he had predicted, would arise from it. He agreed with Thomas Cooper that "At the expiration of the present act . . . when we have experienced the effect of it, the whole law will undergo a revisal." 37 But the five year trial period was never fulfilled. John Randolph, Jr., in the House of Representatives, brought the country's complaints to a head in a series of brilliant speeches against the bankruptcy act. He was aided by Seth Hastings and John Bacon of Massachusetts, and a fellow Virginian, Thomas Newton. 38 In the second session of the Seventh Congress, a vociferous debate occurred on Roger Griswold's motion to postpone consideration of repealing or amending the bankruptcy act. Bayard fought a skillful rear guard movement in favor of postponement. He was sarcastic, humorous, clever, and displayed a genius for invalidating his opponent's contentions. There has been, said Bayard, "a great deal of declamation against this law, from some gentlemen well acquainted with its provisions, and from others who had scarcely read the title of the act." He repeated his belief in the necessity of this act if America was ever to be a great commercial nation. He cited cases of its beneficial effect on creditor and debtor alike, pled for a postponement until the next session of Congress when the law could be more fully debated. "Repeal it now," said Bayard to the Republican majority, "and you will soon be called upon again to pass it in a crude state, whereas, if, as the defects of the law appear, you apply the knife or caustic, . . . in a few years you will so amend it as to make it universally acceptable." But those opposed to the law would not accept this plea and began to catalogue the grievances suffered under the act. These reasons, exclaimed Bayard, "are so opposite and contradictory that they destroy each other.

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Some gentlemen complain of its rigor, while others condemn it for its laxity." 39 One critic complained of the law's harshness in prosecuting unfortunate debtors. "Gentlemen might as well say," remarked Bayard, "that owing to the frailty of the . . . unfortunate man who ravished his neighbor's daughter, he ought not to be punished." Only deliberate fraud, repeated Bayard, is punished. 40 Another critic complained of the anti-republican nature of the act, since its operation benefited one class of citizens to the detriment of others. " If this circumstance makes it anti-republican," answered Bayard, "then there is not a law in existence that is not anti-republican; there is not a law which we have passed, or can pass, that does not at one time operate more upon one class than another." 41 By a vote of 50 to 39 the motion to postpone was carried. It was a minor but impressive victory for Bayard. He had persuaded a hostile and Republican Congress to delay repealing or amendatory actions until the next session of Congress. Nine months later, in November, 1803, the law was repealed by a nonpartisan vote of 99 to 12 in the House of Representatives, and 17 to 12 in the Senate. But by this time Bayard no longer sat in Congress; his place had been taken by Caesar A. Rodney. There is little doubt—had Bayard been in Congress in November, 1803 —that the bankruptcy act nevertheless would have been repealed. •It was no longer an issue between Federalist and Republican, between merchant and farmer. For three years growing opposition to the law by all classes mandated its repeal. Bayard, of course, would have defended it, for in his zeal to maintain national bankruptcy legislation he overlooked the serious defects of the law. But, as Manasseh Cutler explained the repeal: "Those who are friendly to a uniform system of bankruptcy were convinced that the existing law was so radically deficient as not to admit of amendments." 42

C H A P T E R

VII

CHARGE A N D COUNTERCHARGE: T H E ELECTION OF 1800 In the early months of 1801 all eyes were on Washington and more particularly upon Bayard. The United States had recently experienced a monumental presidential election which had ended in a tie between the two Republican candidates, Thomas Jefferson and Aaron Burr. The House of Representatives, as prescribed by the Constitution, 1 had the task of selecting between these two men. Bayard, as the sole representative of Delaware in the lower house, was a key figure in this election. It had been a strenuous campaign. In the decade preceding 1800, popular opinion had oscillated between two quickly emerging political parties. Jay's Treaty had aroused a storm of resentment against the Federalists. The XYZ affair had caused an uproar of protest against the "French faction." The lines were being drawn more closely, the focus sharpened and heightened, as it was realized that the battle for power would take place in 1800: simplicity against ostentation, economy and retrenchment against expenditure and debt, civil liberties guaranteed by the states against Alien and Sedition laws enforced by the federal government. 2 Would this infant nation break apart if the rich, the wise, and the well-born were defeated? What crazy theoretical notions would Jefferson try to impose? How were the Federalists to retain—constitutionally or otherwise—national power ? All revolved around the important election of 1800. Had Jefferson's victory over Adams not been complicated by his equality

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with A a r o n Burr, the event would have been m o n u m e n t a l — i n deed, revolutionary—enough. Those w h o look back on these decades f r o m the vantage point of the twentieth century, w h o know of J e f f e r s o n ' s policies d u r i n g his eight years in office, can see n o t h i n g " r e v o l u t i o n a r y " about this election. T h a t the Republican leader adopted many Federalist policies and tactics is true e n o u g h ; that the natural law philosopher had to become a utilitarian politician no one denies. But in 1800-1801, people could not see things with the same clarity of the modern historian, and they regarded it as a revolution. Federalists were not e n g a g i n g in idle chatter, n o r were they speaking for effect, when they predicted m a n y dire consequences if Jefferson were elected. T h i s was Jefferson the atheist, Jefferson of the V i r g i n i a and Kentucky Resolutions. Jefferson the lover of France, J e f f e r s o n the representative of V i r g i n i a ' s power and influence, J e f f e r s o n the demagogue, against w h o m they were fighting. A n d Republicans fought back with equal venom, watching carefully f o r tricks and subterfuge, threatening to march on W a s h i n g t o n if the F e d eralists attempted somehow to stop Jefferson f r o m taking his oath of office. But B u r r and J e f f e r s o n did have an equal number of electoral votes, and this complicated the picture, raising political passions to new heights. S o intricate and involved are the charges and countercharges of intrigue and bribery concerning this election, that all t h r o u g h the nineteenth century men argued their occurrence—the schemes, the plots, the deals that did or did not take place. It is the purpose of this chapter to carefully detail the roles played by Bayard, Samuel Smith, A a r o n Burr, and J e f f e r son in this election. N o Republican congressional caucus ever met to select T h o m a s Jefferson as their presidential candidate in 1800. It was unnecessary. Jefferson w a s the logical and inevitable choice of the party opposed to the administration. T h e Republicans waited, however, until the all-important N e w Y o r k City election for the state legislature was completed before they decided o n a vicepresidential candidate. T h e Federalists, likewise, waited for the

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results before selecting their candidates. The entire national election, according to Jefferson, depended on it: "If the city election of N [ e w ] York is in favor of the republican ticket, the issue will be republican; if the federal ticket for the city of N [ e w ] York prevails, the probabilities will be in favor of a federal issue." 8 Aaron Burr displayed his political acumen in this election, guiding his smoothly oiled ward machine to victory over the Federalists. At midnight on May 1, 1800, Matthew Davis, the young and loyal aide to Burr, joyously wrote to Albert Gallatin: " R E P U B L I C A N S T R I U M P H A N T , " and then added, " T o Colonel Burr we are indebted for every thing." * The news then spread through Philadelphia and throughout the country. John Dawson wrote Monroe: " T o his [Burr's] exertions we owe much—he attended the place of voting within the city for 24 hours, without sleeping or eating." 5 The Federalists were gloomy. Alexander Hamilton wrote to John Jay, the Governor of New York, asking him to void the election or suffer the consequences of an atheist President. 6 For most Federalists would agree with Gouverneur Morris's diary notation: "It is from thence concluded that Jefferson will be the president." T On Saturday night, May 3, 1800, shortly after the results of the New York City elections were heard, the Federalists in Congress at Philadelphia held a caucus to select their candidates for the executive posts in the coming national elections. They decided upon some "hocus-pocus maneuvers" (as Thomas Jefferson termed it) by choosing John Adams and Charles C. Pinckney as running mates. 8 The slate was undoubtedly designed to attract both northern and southern votes. Adams, although he had antagonized the Federalist chieftains by his mission to France, still had the main body of New York voters solidly behind him. 9 It was not till Monday morning, May 5, moreover, that James McHenry, the Secretary of War, resigned, after being soundly berated by Adams; not until May 12 that Secretary of State Pickering was dismissed. 10 One wonders whether the congressional caucus would have selected Adams had this schism occurred be-

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fore their meeting. Pinckney was selected because his name would surely (so the Federalists thought) carry South Carolina —and, perhaps, attract some other southern votes. The Republicans were yet to meet in order to decide upon a vice-presidential candidate. Matthew Davis wrote to Gallatin before their meeting: "I believe it is pretty generally understood that Mr. Jefferson is contemplated for President. But who is to fill the Vice-President's c h a i r ? " 1 1 Davis suggested Burr. He had been the candidate for that position in 1796, when Jefferson narrowly lost the presidential seat to Adams. He had worked hard to defeat the Federalists in New York City. On Sunday evening, May 12, the Republican members of Congress held "a very large meeting," Gallatin wrote, "in which it was unanimously agreed to support Burr for Vice-President." 12 No formal distinction, however, was made between President and VicePresident. 13 As it progressed, the contest became more and more virulent. 14 The newspapers screamed their abuse to a politically alert America. How did Thomas Jefferson feel about George Washington? about Christianity? about the Army and Navy? about France ? The opposing faction responded: Will you vote for lovers of monarchy? of England? of aristocracy? of wealth? of national power? A typical rumor had John Adams uniting "his house to that of his majesty of Britain" through intermarriage, and "the bridegroom was to be king of America." 15 The Republicans, meanwhile, were jubilant over the break-up of the President's cabinet. Stevens T. Mason jocularly reported to Monroe: "The Adams cabinet is splitting and falling to pieces in all its parts. . . . Pickaroon (as Chisholm calls him) . . . was of necessity dismissed." 16 Six months later, across the Atlantic seaboard, the people were buzzing about a remarkable pamphlet which described the incompetency of the Federalist presidential candidate, John Adams. 17 The author of this pamphlet was Alexander Hamilton, the brilliant New York Federalist leader. How could the Federalist party, then, succeed? Republican stalwarts would nod knowingly and quote the maxim: "When thieves fall out, honest men come by their own."

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The Republicans, however, could not be too sanguine about the results. These Federalists were desperate men—what might they not do to retain power? So the letters flowed in an ever increasing number; every other topic became secondary. South Carolina: "Will Major Butler take part in the election? . . . What are the prospects in [New] Jersey?" 18 Tennessee: "Politics at present occupy much of [our] attention." 19 Delaware: "Our political horizon wears rather an unfavorable aspect in this State." 20 "111 news from Virginia," reported John Marshall. " T o succeed me has been elected by an immense majority one of the most decided democrats [John Clopton] in the union." 2 1 Philadelphia: "The intelligence from Rhode Island keeps the issue of the election there in doubt. . . . if we lose . . . [there] I am afraid we have lost the Republican candidate." 22 Pittsburgh: "Our Fed[eralist]s here . . . will be nearly as much mortified at Adams's election as at J[efferson]s. Adams has sinned before heaven." 23 Albany: "If North Carolina gives a majority and Maryland is entire and Pennsylvania withholds her votes . . . Jefferson cannot succeed." 24 Baltimore: "There remains no doubt in my mind of Mr. Jefferson's election." 25 "Never has any question occurred," wrote Jonathan Roberts of Pennsylvania, "which has involved more serious consequences than the present." 26 In Delaware, as everyone expected, Bayard had a relatively easy time in his campaign for reelection. By this time he was a major figure in national political circles. 27 The Republicans looked about for a figure to contend with the renowned Bayard. They offered the nomination to Thomas Rodney who declined. "I told . . . [them]," Rodney noted, "they would not be able to carry any heavy man ag[ains]t Bayard." 28 The Republicans then attempted to persuade the venerable John Dickinson to run, but he also declined. 29 They finally settled on Major John Patten, who "was brought from political retirement . . . in the hope that his Revolutionary W a r record would garner . . . votes for his party." 30 Bayard was attacked for supporting the Alien and Sedition Acts, the war on France, and federal military expendi-

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tures. The Republicans also circulated a rumor of an alleged Bayard statement "that the people of Delaware were not half taxed." This story, wrote Bayard's friend Outerbridge Horsey, "I understand is the most formidable weapon against us." 31 T h e Federalist friends of Bayard conducted a vigorous campaign in his behalf, but Bayard (as far as is known) made no speeches and engaged in no electioneering. The southernmost county of Delaware, Sussex, a consistently Federalist area, gave Bayard a huge majority over Patten. The middle county, Kent, also agricultural and usually Federalist, voted rather evenly, Bayard obtaining a m a j o r i t y of only ninety-one votes. " I am very sorry to inform you," John Fisher of Kent wrote Caesar A. Rodney, that after every fair exertion on the part of the Republicans in this county, we have, as usual, been completely beaten. We have not been so entirely distanced as formerly, but have lost every man in our ticket. Our chance for success was good, but there is most indubitably, a Majority here against us and when a change will take place we cannot divine. . . . I am not for opposition at any future period unless a great change takes place in the public mind. . . . [but] we calculate on succeeding in our Representative] to Congress, relying upon the republicanism of your county [New Castle]. Bayard's majority of 91 we hope even when added to his majority in Sussex will not exceed your majority for Patten. 32 New Castle County, the commercial region and most heavily populated area of Delaware, usually voted Republican and Bayard was beaten there. 3 3 But the Republican triumph in that county was not large enough to offset the downstate majorities for Bayard. The National Intelligencer, a Republican newspaper, commented: " T h e results of the Delaware election is federal. But the tenor by which federalism is held in that State must be viewed as precarious when it is observed that Mr. Bayard's m a j o r i t y was only 364, and when it is recollected that both its neighbors, Pennsylvania and Maryland, are decidedly Republican." 34 But neither Pennsylvania nor Maryland was decidedly Republican ; nor did the national scene warrant an attitude of easy

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victory on the part of the Republicans. As the letters of the day indicate, this was to be a close election. Added to the anxiety and doubt expressed in these letters was the touchy problem of Aaron Burr. The Jeffersonians had to be sure that Burr would not receive an equal amount to, or a majority over, Jefferson. This was complex. If they withheld a vote or two in some southern states, Burr might accuse them of bad faith. In fact, intimations that this had occurred in 1796 were broadcast by Burr's agents. Besides, the election would be very close. Burr might even lose the vice-presidency, if the Republicans did not give him every single vote. Yet, at an early date, Republican party leaders were worried about the eventual issue. James Madison, an exception, was optimistic: " I can not apprehend any danger of a surprise that w[oul]d throw Mr. J[efferson] out of the primary station . . . . The worst . . . that could possibly happen would be a tie that w[oul]d appeal to the H[ouse] of Representatives] where the candidates would certainly I think be arranged properly, even on the recommendation of the secondary one." 35 Others, however, were not so confident: " Y o u know it has sometimes happened that a proposed secondary has become chief." 3 6 Haphazard plans, informal and sudden, were made in several Republican states to detract one vote from Burr. Peter Freneau wrote from South Carolina: " T h e vote tomorrow I understand will be Jefferson 8, Burr 7, Geo. Clinton 1. You will easily discover why the one vote was varied." 37 Stevens T . Mason reported that in Kentucky and Tennessee "in each . . . a vote will be diverted from Mr. Burr." 3 8 These plans were not carried out, and by late December, 1800, it was apparent that Jefferson and Burr would have an equality of electoral votes. The Federalists were jubilant. "Our Tories begin to give themselves airs already in expectation of a tie," reported John Randolph, J r . " I fear that, in this event, they will give us some trouble." 39 And Jefferson wrote to his friend Breckenridge: " T h e federalists in congress mean to take advantage of this, and either to prevent an election altogether, or reverse what has been

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understood to have been the wishes of the people as to their President and Vice President, wishes which the constitution did not permit them specially to designate. The latter alternative still gives us a republican administration; the former a suspension of the federal government for want of a head." 4 0 The Republicans were nervous and worried, angry and dogmatic. Anxiously they surveyed the membership of the House of Representatives, for that body would now choose between Jefferson and Burr. At this stage the political movements become more intricate. Therefore, for the purpose of clarity and despite some duplication, it is best to continue our story by outlining three questions, which have long been matters of historical contention, and their answers. The first of these is:

Did Aaron Burr actively plot to become President electoral tie with Thomas Jefferson? 41

after the

Aaron Burr, residing in Albany, was always well informed of political trends across the nation. He well knew, at an early date, that the vote would be equal. On December 16, 1800, he addressed a carefully written note to Samuel S m i t h : It is highly probable that I shall have an equal number of votes with Mr. Jefferson; but, if such should be the result, every man who knows me ought to know that I would utterly disdain all competition. Be assured that the federal party can entertain no wish for such an exchange. As to my friends, they would dishonor my views and insult my feelings by a suspicion that I would submit to be instrumental in counteracting the wishes and expectations of the United States. And I now constitute you my proxy to declare these sentiments if the occasion should require. 42 The day before the above letter was written, on December 15, 1800, Jefferson wrote to Burr.

He explained, cautiously and

diplomatically, the possibility of a Tennessee or Georgia electoral vote being diverted from Burr.

Jefferson admitted that "it was

badly managed not to have arranged with certainty what seems to have been left to hazard."

He went on to outline the hopes of

their enemies: " I t was the more material because I understand several of the highflying federalists have expressed their hope

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that the two republican tickets may be equal, and their determination in that case to prevent a choice by the H[ouse] of R e p r e sentatives] (which they are strong enough to do), and let the government devolve on a President of the Senate." 43 In answer to this, Burr responded: "I do not . . . apprehend any embarrassment even in case the voter comes out alike for us —my personal friends are perfectly informed of my wishes on the subject and can never think of diverting a single vote from you—on the contrary, they will be found among your most zealous adherents. I see no reason to doubt of you having at least nine States if the business should come before the H[ouse] of Representatives]." 44 Thus the two Republican candidates kept up an amicable and frank correspondence. Had not Burr specifically designated Samuel Smith, one of Jefferson's closest friends, his official spokesman to decline any competition? Republicans, generally, accepted Burr's disclaimer. Stevens T. Mason commented that "I have no doubt [Burr] will cordially cooperate with us." 45 Caesar A. Rodney wrote to his Maryland friend Nicholson: "I think Col. Burr deserves immortal honor, for the noble part he has acted on this occasion." 46 The Federalists, on the other hand, believed Burr's official letter to Smith to be mere window-dressing. "Burr is a cunning man," wrote Uriah Tracy. "If he cannot outwit all the Jeffersonians I do not know the man." 47 One Federalist, Robert Goodloe Harper, believed that Burr was a Federalist at heart. On December 24, 1800, he wrote to Burr: The votes of Tennessee are come in and decide the tie. The language of the Democrats is, that you will yield your pretensions to their favorite; and it is whispered that overtures to this end are to be, or are made to you. I advise you to take no step whatever, by which the choice of the House of Representatives can be impeded or embarrassed. Keep the game perfectly in your own hands, but do not answer this letter, or any other that may be written to you by a Federal man, nor write to any of that party.48 By this time it had become apparent (as shown by Harper's letter) that the Federalists would seriously support Burr, despite

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his letters renouncing all competition. H a d he written to them secretly? Would their attempt succeed? On J a n u a r y 5, 1801, Benjamin Hichborn, a Republican from Philadelphia, penned a hastily written note to J e f f e r s o n : "Col. Burr is in the house with me and Gen. Smith from Baltimore has been here. I am convinced that some of our friends . . . are willing to join the other party, in case they should unite in favor of Col. Burr." 49 Hichborn need not have been alarmed. The meeting was anything but secret. T h e Philadelphia Aurora, in fact, contained rumors about it. 50 Samuel Smith had gone to meet with Burr with the knowledge of his Republican superiors. T h e purpose of his trip was serious. It was Smith's job to obtain a second positive declination from Burr—that he had absolutely no aspirations towards the presidency; that he would not serve if elected. Smith returned to Washington a sadly disappointed man. W h a t had occurred at the Philadelphia meeting is told in a letter written two years later by Gabriel Christie ( w h o had been a member of the House of Representatives f r o m Maryland in 1801) : You [Smith] informed us [Gabriel Christie and George Dent] that you went to Philafdelphia] on the day appointed and was much disappointed that Col. Burr did not come to Town at the time of day agreed on, however he arrived in the evening and you had a long conversation with him on the subject of the election . . . but you could not imagine what Col. Burr meant for some time as he . . . [did] not make any observations but what might as well have been made by letter, at length you inquired of Col. Burr what was to be done if the Federal members would not give up. . . . Col. Burr (greatly as you said to your surprize) told you that at all events the House could and ought to make a decision, meaning if they could not get Mr. Jefferson they could take him. you told Col. Burr that that could not be done for the republicans would not give up on any terms. . . . you told us you came away much mortified as when you went up to Philadelphia you expected that Col. Burr would give you full authority to say that he would not serve if Elected. . . . but instead of that [he] gave you to believe that it would be best not to rise without making a choice even if that choice should be him. Thus

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far I have stated to the best of my recollections what passed between Mr. Dent and you and myself.61 The testimony of this letter is corroborated by Jefferson's diary of 1804. He therein describes a conversation with Col. Hichborn which almost parallels Christie's account: He [Hichborn] was in company at Philadelphia with Col. Burr and General Smith (when the latter took his trip there to meet Burr . . .) that in the course of the conversation on the elections, Col. Burr said "we must have a President & a const [it] u[tion]al one in some way." "how is it to be done," says Hitchburn, "Mr Jefferson's friends will not quit him, & his enemies are not strong enough to carry another." "Why," said Burr, "our friends must join the federalists, and give the president." The next morning at breakfast Col Burr repeated nearly the same, saying "we cannot be without a president, our friends must join the federal vote." "but," says Hitchburn, "we shall then be without a vice president: who is to be our vice president?" Col Burr answered "Mr Jefferson." 82 O n e week after this meeting with Burr, Smith penned a long letter to him. It concerned a man named Ogden, who, claiming "that he had your confidence," had "addressed the [New York] members on your account directly and boldly, representing how much New York would be benefited by having you for the President." Selecting his words carefully, Smith assured Burr that neither Jefferson nor any other Republican believed that Ogden was an agent for Burr: "Mr Ogden's conduct was considered as one of many attempts practiced by his party to disunite [us] and treated accordingly." 53 But Ogden was only one of many. A few years later, it was reported by Matthew Lyon that "John Brown of Rhode Island, urging him to vote for Col. Burr, used these words: 'What is it you want Col Lyon, is it office, is it money? only say what you want & you shall have it.' " 54 The evidence looks very damaging to Burr. He had refused to discourage any movement in his behalf; "lobbyists" were approaching key political figures of [supposedly] doubtful natures, all in behalf (so they said) of Burr. 53 It is apparent that Burr's first letter to Samuel Smith had been written when he believed it impossible to best Jefferson in a con-

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test. When reports, however, arrived of a solid Federalist phalanx behind him, Burr refused to reiterate his disinterestedness. In late January, Bayard had informed his cousin Andrew that "it is . . . certainly within the compass of possibility that Burr may ultimately obtain nine states." 5 6 Nine states meant the presidency. We come now to the crucial point. Burr had decided upon a policy of watchful waiting. More significant, however, is the question of whether Burr went to any further lengths to secure the chief executive's position. On February 12, 1801, while the House of Representatives was in a deadlock between Jefferson and Burr, the former noted in his diary that Bayard had been approaching various Republicans in the name of Burr.*1 Two days later, on February 14, Jefferson again confided to his diary: "General Armstrong tells me that Gouverneur Morris, in conversation with him today on the scene which is passing, expressed himself thus: 'How comes it,' he says, 'that Burr, who is 400 miles off (Albany), has agents here at work with great activity, while Mr Jefferson, who is on the spot, does nothing?' " 5 8 What, then, is the truth? Did Burr actually send agents to Washington? Did he actively scheme and plot with the Federalists for the presidency? The evidence overwhelmingly indicates that he did not. The following paragraphs will attempt to substantiate that conclusion. Both from the letters of the day and from evidence which arises out of subsequent litigation, the picture becomes very clear. Bayard wrote to his father-in-law, that "Burr has acted a miserable paultry part. The election was in his power, but he was determined to come in as a Democrat, and in that event would have been the most dangerous man in the community. We have been counteracted in the whole business by letters he has written to this place." 5 9 T o his wife, Bayard repeated that "Burr had refused the offers of the Federalists." 6 0 To Alexander Hamilton, Bayard wrote the identical thing: "I was enabled soon to discover that he [Burr] was determined not to shackle himself with federal principles."

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Two years later, because of political charges that Burr had tried, in 1801, to capture the presidency by fair or foul means, Edward Livingston wrote a letter in defense of Burr: "In consequence of certain insinuations lately circulated, I think it proper to declare, that you [Burr] did not, in any written or verbal communication to me, during the late presidential election, express any sentiments inconsistent with those contained in your letter to General Smith." 92 Other interested parties wrote similar letters in praise of Burr's actions. Burr himself wrote to Governor Bloomfield of New Jersey: You are at liberty to declare for me, that all those charges and insinuations which aver or intimate that I advised or countenanced the opposition made to Mr Jefferson pending the late election & balloting for president, that I proposed or agreed to any terms with the federal party; that I assented to be held up in opposition to him, or attempted to withdraw from him the vote or support of any man, whether in or out of congress; that all such assertions or intimations are false & groundless.63 Still one year later, in 1803, political enemies of Samuel Smith charged him with conspiring with Burr—and pointed to his hurried trip to Philadelphia as evidence! Once again many letters of rebuttal were called for and received, clearing Smith of this charge. Finally, in 1806, a series of trumped-up trials in New York City {Burr v. Cheetham, Gillespie v. Smith, etc.), calling for depositions concerning the election of 1801, evoked this reply from Bayard: "I cannot tell whether Mr. Burr was acquainted with what passed at our [Federalist] meetings. But I never knew or heard of any letter written to him on the subject. . . . It was . . . determined by the party, without consulting Mr. Burr, to make the experiment." 64 The experiment, then, was made without Burr's knowledge. As this evidence indicates—although Burr refused to formally renunciate any competition with Jefferson when the Federalists decided to support him—the charges against him seem to be unwarranted. With these charges against Burr considered, it is now possible to investigate another facet of this complex and im-

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portant election, and so we reach the second question of our outline : Did Thomas Jefferso-n accept Bayard's achieve the presidency?

"terms"

in order to

Mr. Jefferson is our President. Our opposition was continued until it was demonstrated that Burr could not be brought in, and even if he could he meant to come in as a Democrat. In such case to evidence his sincerity he must have swept every officer in the United States. I have direct information that Mr Jefferson will not pursue this plan. The New England gentlemen came out and declared they meant to go without a constitution and take the risk of a Civil War. They agreed that those who could not agree to incur such an extremity ought to recede without loss of time. We pressed them to go with us and preserve unity in our measures. After great agitation and much heat, they all agreed but one. But in compliance of his standing out, the others refused to abandon their old ground. . . . I have taken good care of you, and think if prudent, you are safe.*6 This letter by Bayard to his friend, Col. Allen McLane, Collector of the Port of Wilmington, contains allegations which, if true, mar the reputation of Thomas Jefferson. When the election was thrown into the House of Representatives, the validity of the motto "politics make strange bedfellows" was clearly exhibited. Alexander Hamilton had to choose between two evils. He wrote letters to all important Federalists— vote for Jefferson! To Bayard, for example, he said: "I admit that his politics are tinctured with fanaticism; that he is too much in earnest in his democracy; that he has been a mischievous enemy to the principal measures of our past administration; that he is crafty and persevering in his objects; that he is not scrupulous about the means of success, nor very mindful of truth, and that he is a contemptible hypocrite." 66 But, if Jefferson was all this, Burr was twice as bad! The adjectives used to describe him included: extreme, irregular, selfish, profligate, and artful. Purr was, in short, "a complete Cataline." 67 John Adams, about to retire to the quiet of Quincy, thought that the House should comply "with the will of the people." 48 At a later date he asked:

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" W h a t pretensions had Aaron Burr to be President or [even] Vice President?" 6 9 Against these views were those who were "determined to oppose the election of Jefferson at all hazards." It looked "like desperate works." 70 These men, explained George W . E r v i n g to Monroe, were " H a r p e r , Otis, Rutledge, etc. . . . [who] flatter themselves that they can bring their federal troops to act as heretofore in an united Phalanx." 71 These die-hards made a courageous attempt to rally the moderate and the timid to their banner. A t this point in the early months of 1801, Bayard, whose recent triumph at the polls had reassured him a seat in Congress, took the national spotlight. As the sole representative of Delaware, with the election at a deadlock, he could, if he desired, keep Jefferson out of office. Before Bayard left Wilmington to take his seat at Washington, he had already expressed his intention of voting for Jefferson. Caesar A. Rodney, Bayard's best friend and political enemy, wrote to J e f f e r s o n : I do not know what intrigues under various shapes may be going on at headquarters [Washington] or what influence . . . the Federal Partizans, may have on the mind of my friend Bayard ( I call him my friend, widely as we differ in our political course, with great truth and justice for in private life I have never met with a better) when he arrives, but I have lately heard him say repeatedly and in company, that in case of an equality of votes between yourself and Col. Burr he should not hesitate to vote for you and he has spoken frequently of the dignified impartiality observed by you in your conduct as President of the Senate with much approbation.^ Bayard had received many letter from Hamilton asking him to follow this path. Once in Washington, however, Bayard felt the pressure of the Federalist supporters of B u r r : " T h e federal gentlemen have generally declared in favor of Burr, and if Delaware be added to those who have declared—Jefferson cannot be elected." 73 " Y o u r friend Jefferson cannot be elected against the will of the federal party; and tho' the course which will be taken is not absolutely decided upon, yet the inclination is much in favor of Burr." 74 Gradually, from the many letters Bayard

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wrote, we can see him giving way to Federalist pressure: " A t present I am by no means decided as to the object of preference. If the federal party should take up Mr. Burr, I ought certainly to be impressed with the most undoubting conviction before I separated myself from them." 75 " T h e federal party certainly incline in favor of M r . Burr, but no determination has yet been made as to the course they will pursue." 7 6 By the time the first ballot was cast, Bayard has decided to go along with his New England colleagues. Delaware voted for Burr. John Vaughan's advice to Jefferson that "our political destiny is suspended by a slender thread, while dependent on the integrity of Mr. Bayard," seemed to be correct. 77 It was Bayard who now controlled any chance Burr had for the presidency. There were eight states for Jefferson, six for Burr, and two tied. T h e votes of nine states were needed for the presidency. Conjectures of all sorts were m a d e : "Be assured that the election depends on one of three persons: Bayard from Delaware; and Craik and Baer f r o m Maryland—the former there are reasonable hopes f r o m — t h e 2d full as good—Mr. Craik's lady . . . will renounce her husband if he does not vote for Mr. Jefferson." 78 And Jefferson himself said: "There are three . . . states, Maryland, Delaware, and Vermont, from either of which if a single individual comes over, it settles the matter." 79 But these key figures, the four members f r o m Maryland ( T h o m a s , Craik, Dennis, and Baer) and Morris of Vermont, had agreed to act in concert with Bayard. As Bayard later explained to his cousin Samuel : "By the arrangements I had made I became encircled of all the doubtful votes and made myself responsible for the issue." 80 The Federalists now looked over the Republican ranks for "doubtful votes." New Jersey's ten members were split, six being for Jefferson. If one of the Republicans, James Linn, changed his vote, New Jersey would at least be neutralized, if not Federalist. The Republicans were worried: " M r . Linn of [ N e w ] Jersey is . . . at present with us, which gives the vote of that State—but might be thrown off." 8 ' The New York Re-

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publicans followed the lead of Edward Livingston. said to have approached him. 82

89 Bayard is

Against this Federalist attempt, the Republican ranks stiffened. " W e wait with a great degree of anxiety," wrote Caesar A. Rodney to Jefferson, "confident . . . that it will meet the wishes of every . . . friend to American liberty." 83 "I think there is no fear of our friends giving way." 84 "We are resolved never to yield, and sooner hazard every thing." 85 " W e never more adjourn but to proclaim Jefferson for President." m The balloting continued far into the night of February 12. Joseph Nicholson of Maryland, sick with a high fever, had been carried into Congress on a stretcher to maintain the tied vote of his state. The tension mounted; the situation became increasingly desperate. Many of the "high flying" Federalists were willing to see the young nation collapse rather than have Jefferson as their President. Bayard decided, at this time, to divorcc himself from his former associates. On Saturday night, February 14, after the balloting had been stalemated and deadlocked, Bayard let it be known that he would change his vote to Jefferson when the next ballot was taken on Monday afternoon. On Monday, however, as Albert Gallatin explained to John Nicholson, "he . . . acted otherwise. But [it] is supposed that the cause of his delay is an attempt on his part and some others to prevail on the whole federal party to come over [to Jefferson]." 87 Another witness, however, explained Bayard's hesitancy to the arguments of other Federalists who "prevailed on [Bayard] to postpone it [his change to Jefferson] until tomorrow [Tuesday, February 17], before which letters are expected . . . from Mr. Burr . . . . [then visiting Baltimore]." 8 8 Gallatin's supposition was incorrect. John Cotton Smith, a Federalist from North Carolina, describes the caucus at which this one day delay was decided: Mr. Bayard of Delaware, requested a meeting of his Federal brethren for further consultation and it was held accordingly. He began by inquiring whether any gentlemen present had received any communication from Mr Burr touching the pending election, or could inform us why he tarried at Baltimore, when his appearance here

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would undoubtedly secure his elevation to the presidency? But not one of us could give him the information desired, as no one of us had held any intercourse with him either before or d u r i n g the session in relation to the subject. [It is impossible to determine whether H a r p e r was at this meeting.] H e then observed, that unless B u r r made his appearance here, there was no prospect of our prevailing in the present contest; that the opposite party, he was well assured, would persevere to the 4th of March before they would renounce their candidate, undismayed by whatever disasters might result from leaving the nation without a president, and, consequently, without a government, an event which, so far from exciting any fearful apprehensions on their part, would rather accord with their disorganizing principles; that he would continue to vote as he had done until some one of the gentlemen present of Burr's personal acquaintance would address a letter to him on the point at issue, and wait a reasonable time to receive an answer; but that, holding, as he did the vote of a state, he could not consent that the 4th of March should arrive without a chief magistrate. 8 9 B a y a r d recounted the story of his s t r u g g l e to end the election by g i v i n g his vote to J e f f e r s o n , t o his cousin S a m u e l : W h e n it was perfectly ascertained that Burr could not be elected I avowed that the only remaining object was to exclude Jefferson at the expense of the Constitution. According to an arrangement I had made with Maryland I came forward and avowed my intentions of putting an end to the contest. T h e clamor was prodigious. T h e reproaches vehement. I procured a meeting—explained myself and declared an inflexible intention to run no risk of the consitution. I told them that if necessary I had determined to become the victim of the measure. They might attempt to direct the vengeance of the P a r t y against me but the danger of being a sacrifice could not shake my resolution. Some were appeased: others furious, and we broke up in confusion. A second meeting was no happier in its effect: In the end however there was a general acquiesence and the whole P a r t y agreed to vote alike, except M r Esmonds of Connecticut. H i s persisting in voting for Burr induced the four New England States to do the same thing. Morris retired—Vermont in consequence voted for Jefferson—four members of Maryland voted blank,—the result of the Maryland vote was the same with Vermont. South Carolina and Delaware voted in blank. As I had given the turn to the election, it was impossible for me to accept an office [Minister to

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France] which would be held on the tenure of Mr Jefferson's pleasure. 90 There is no doubt that Bayard switched to Jefferson, as he subsequently stated in Congress, because of "imperious necessity." 81 A young nation, like a young child, cannot survive if deprived of parents. The United States, Bayard well knew, needed a constitutional President before March 4. Bayard, however, wanted some assurance that Jefferson would be a proper parent, that he would not destroy the child. Bayard therefore approached John Nicholas of Virginia, a close friend of Jefferson: I [Bayard] stated to Nicholas that if certain points of the future administration could be understood and arranged with Mr Jefferson, I was authorized to say that three states would withdraw from an opposition to his election. He asked me what these points were: I answered, First, Sir, the subject of the public credit; secondly, the maintenance of the naval system; and, lastly, that subordinate public officers employed only in the execution of details established by law shall not be removed from office on the ground of their political character, nor without complaint against their conduct.92 Nicholas, according to Bayard, believed these points to be reasonable, but refused to approach Jefferson directly. With this Bayard was not satisfied. He wanted Jefferson's word. He then approached Samuel Smith and repeated these queries, adding the names of specific office holders he would like protected: "George Latimer, collector of the port of Philadelphia, and Allen McLane, collector of Wilmington." 93 Smith answered in the same vein as Nicholas. Bayard, again, was not satisfied; he wanted Jefferson's own statement. Smith promised to speak to Jefferson: "The next day, upon our meeting, General Smith informed me that he had seen Mr. Jefferson, and stated to him the points mentioned, and was authorized by him to say that they corresponded with his views and intentions, and that we might confide in him accordingly. The opposition of Vermont, Maryland, and Delaware was immediately withdrawn." 94 It was after this assurance was received, and Bayard had given Jefferson the presidency, that Bayard wrote the tell-tale letter to

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Col. Allen M c L a n e : "I have taken good care of you." These facts are all taken f r o m Bayard's deposition in the case of Gillespie v. Smith, in the year 1806. Jefferson, aware of Bayard's allegations, noted in his d i a r y : Bayard pretends to have addressed to me, during the pending of the Presidential election in Feb. 1801 through Genl. Samuel Smith, certain conditions on which my election might be obtained, and that Genl. Smith after conversing with me gave answers for me. This is absolutely false. No proposition of any kind was ever made to me on that occasion by Genl. Smith, nor any answer authorized by me. And this fact Genl. Smith affirms at this moment. 95 T o add to the controversy, Smith's deposition corroborates Bayard's! According to Smith, Bayard, in 1801, asked: What would be Mr Jefferson's conduct as to the public officers? He said he did not mean confidential officers, but, by elucidating his question, he added, such as Mr. Latimer, of Philadelphia, and Mr. McLane of Delaware. I answered, that I never had heard Mr Jefferson say anything on that subject. He requested that I would inquire, and inform him the next day. I did so. And the next day [Saturday] told him that Mr Jefferson had said that he did not think that such officers ought to be dismissed on political grounds only, except in cases where they had made improper use of their offices under them to vote contrary to their judgment. That, as to Mr. McLane, he had already been spoken to in his behalf by Major Eccleston, and, from the character given him by that gentleman, he considered him a meretorious officer: of course, that he would not be displaced, or ought not to be displaced. I further added that Mr Bayard might rest assured (or words to that effect) that Mr Jefferson would conduct, as to these points, agreeably to the opinions I had stated as his. 96 These depositions both aver that Jefferson accepted Bayard's terms in order to end the contest in the House of Representatives. Actually, this is not the entire story. In 1830, Jefferson's papers were published; his notes in reference to the election of 1800 showed Bayard in a bad light. Bayard's two sons, Richard H . Bayard and James A. Bayard, sent letters across the country to the few people, intimately connected with the election, who were still alive. George Baer (one of the Maryland representatives in

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1800) responded that he had "no hesitation in stating that the facts stated in the deposition of your father . . . are substantially correct; and although nearly thirty years have elapsed . . . my recollection is vivid as to the principal circumstances." 97 Samuel S m i t h ' s own letter, however, gives us the key to the mystery, and shows the villain to be Smith himself: "I [Smith wrote] lodged with M r . Jefferson, and that night had a conversation with him, without his having the remotest idea of my object. Satisfied with his opinion on the third point, I communicated to your father the next day—that, from the conversation that I had had with Mr. Jefferson, I was satisfied in my own mind that his conduct on that point would be so and so." 98 Albert Gallatin, a very old man in 1848, explained succinctly and precisely what had occurred, in a letter to H e n r y Muhlenb e r g : " O n e of our friends [undoubtedly Samuel S m i t h ] , who was very erroneously and improperly afraid of a defection on the part of some of o u r members, undertook to act as an intermediary, and confounding his own opinions and wishes with those of M r Jefferson, reported the result in such a manner as gave subsequently occasion for very unfounded surmises." 99 W e now come to the last question, one which we can answer only by conjecture: Did Bayard attempt to influence, by promise of future office, several Republican members of Congress to vote for Aaron Burr pending the election in the House of Representatives? T h e basis of this charge is contained in the diary of Thomas Jefferson. T h e entry for February 12, 1801, reads: Edward Livingston tells me that Bayard applied today or last night to Genl. Samuel Smith and represented to him the expediency of his coming over to the states who vote for Burr, that there was nothing in the way of appointment which he might not command, and particularly mentioned the Secretaryship of the Navy. Smith asked him if he was authorized to make the offer. He said he was authorized. Smith told this to Livingston and to W. C. Nicholas who confirms it to me. Bayard in like manner tempted Livingston, not by offering any particular office, but by representing to him Livingston's intimacy and connection with Burr, that from him he had everything to expect if he would come over to him. 100

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Logically, there are many reasons we could list to give credence to this entry. Bayard did support Burr consistently until all opposition was futile. T h e vote of Samuel Smith meant the vote of Maryland; that of Edward Livingston would surely have given the state of New Y o r k to B u r r ; and the election would undoubtedly have gone to the "complete Cataline." T o further support Jefferson's account, there is no direct evidence in the papers of 1801 that Bayard did not approach Smith or Livingston. It is palpably false, however, when we consider it in a different light. After 1800, there were many charges against Aaron Burr and Thomas Jefferson concerning the election. But from 1801 until 1830, when Jefferson's diary was published, there was not an inkling that Bayard had approached either Samuel Smith or Edward Livingston. The publication of the diary caused an uproar. John M. Clayton, Senator from Delaware, took the floor to call for rebuttals by Smith and Livingston. Both men denied that Bayard had ever attempted any such overture. 101 Bayard's sons received letters from other figures who had lived into 1830. Judge Paine of Vermont wrote to the editor of Miles Weekly Register: Noticing, in the papers of the day, the memorandum of the late President Jefferson, of the communication of Mr Livingston. . . . I determined immediately to communicate to you my knowledge of the views and sentiments of Mr Bayard, in relation to that election. And first permit me to say, that probably I possess more knowledge on the subject, as it relates to Mr Bayard, than any person now living. Judge Paine goes on completely to exonerate Bayard.

" I have

no belief that Mr Bayard would . . . have made, what amounts to a proposition to corrupt another."

102

James Madison claimed

that Jefferson's notation ought to be considered more correct than "the probability of . . . failures of memory." that "there has been a great error somewhere."

He admitted He concluded

that if the error was to be attributed to Mr Jefferson, "it must have proceeded from misapprehensions."

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On January 31, 1855, James A. Bayard read into the Senate

C H A P T E R

V i l i

LEADER OF THE MINORITY Before the Republican triumph of 1801 the Federalists had no single leader in the House of Representatives. At times Robert G. Harper of South Carolina or Roger Griswold of Connecticut directed the Federalist forces. At other times it was Sitgreaves of Pennsylvania, Otis or Sewall of Massachusetts, who delivered the great speech or plotted parliamentary strategy for the Federalists. F o r a brief while John Marshall sat in Congress and worked in close harmony with the Federalists (though a note of distrust against the Virginian was occasionally sounded). 1 Amongst these men, the half dozen leaders of Federalism in the House of Representatives, Bayard had been an equal. After the March 4 revolution, however, the Delawarean became the minority leader. He achieved this position partly by default. Samuel Sitgreaves had resigned his seat as early as 1798, giving up to Bayard the chairmanship of the committee to prosecute William Blount. Samuel Sewall, whom Gallatin regarded as "the first man of . . . [the Federalist] party," followed the path of Sitgreaves, resigning his post in 1800. 2 J o h n Marshall was elevated to the position of Secretary of State, and then Chief Justice of the United States. Robert G. Harper refused to stand for reelection in 1801, and shortly thereafter transferred his political activities to Maryland. Otis of Massachusetts also refused to run for the lower house in 1801 and never again sat in the national Congress. Only Griswold of Connecticut returned to challenge Bayard's leadership. When young David Erskine wrote to his father in January, 1799, of "the principal men in the country," whom he encountered at his Philadelphia lodgings, Bayard was included.

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record a complete account of the election of 1800 and later published this record under the title "Vindication of Bayard." This pamphlet was again reprinted, under different auspices, in 1907. 104 Whether Bayard approached Livingston and Smith on the question of voting for Aaron Burr and offered rewards for this change in allegiance will not, it appears, be answered completely. Samuel Smith, of course, is again the central figure in these intrigues. Perhaps Jefferson confused—since he received the rumor of Bayard's alleged overture from a third-hand source— the actual details of the rumor. Perhaps Jefferson was accurate in his diary entry, the alleged overture being the concoction of Smith's imagination, a concoction designed to prove the Marylander's devotion to Jefferson. Thus the three charges—against Burr, Jefferson, and Bayard—all intimately involve Samuel Smith, all lack conclusive evidence. The first derives from Burr's shadowy character; the second from a misinterpretation of Samuel Smith's language; the third, probably, from a misunderstanding by Jefferson of the many rumors of the day. Bayard allowed Jefferson, a man whom the Delawarean hated throughout his life, to become President. Jefferson, to Bayard, w a s not only the leader of the Republican party, but the symbol of Republican thought. He saw in the Virginian a lover of revolution, a spokesman for states rights, an opponent of economic legislation he considered invaluable to the wealth and welfare of the national government. Jefferson was a Virginian, and Bayard—as a Delawarean—was wary of Virginia's power. Only the thought of disunion which would result in further support of Burr caused the Delawarean to withdraw that support. It is therefore due to his memory, said Albert Gallatin in 1848: to say that although lie was one of the principal and warmest leaders of the Federal party and had a personal dislike for Mr. Jefferson, it was he who took the lead and from pure patriotism directed all those movements of the sounder and wiser part of the Federal party which terminated in the peaceable election of Mr. Jefferson. 105

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"One of them," wrote Erskine, "is reckoned their first Orator and Statesman, a Lawyer of the name of Bayard, and a very well informed and sensible man he is." 3 Thomas Rodney noted in his diary in March, 1800, that "Bayard takes the lead now among the F e d e r a l i s t s ] . " 4 Actually, the Delawarean, while famous by 1799, was not yet recognized by his fellow Federalists as leader of their party in the lower house. It was the presidential election at the turn of the century which (while defeating his party) elevated him to that post. One could sense the importance of Bayard by the hostility of the Republicans to his appointment as Minister to France in 1801. "Of the members of the House of Representatives," said the Philadelphia Aurora, "Mr. Bayard has been one of the most prominent in his opposition to every measure that could conciliate, and in his support to every measure that could irritate the French Government." It was impossible, said the Aurora, that "this enemy to all that is France," could be "a fit peacemaker with that country." 5 O n February 8, 1801 —as the lower house was about to begin balloting for a President — A d a m s offered the position to Bayard. "I am not determined as to acceptance or refusal," wrote Bayard at that time. " T h e offer would be infinitely inviting were it not for the present state of Parties." 8 The next administration would probably recall him immediately, he felt, in order to appoint a more politically compatible minister. A week passed, and Bayard still toyed with the idea of accepting the post. "A 20 gun ship," he wrote to Bassett, "is in waiting to proceed to France immediately, so that if I go, but a few days will allowed to arrange myself." 7 On February 17 Bayard gave the election to Jefferson as he wrote to John Adams, "so . . . as not to hazard the constitution." 8 H e then decided to refuse the position of Minister to France. Nevertheless, he desired senatorial confirmation of the proffered post. It would serve a double purpose—an indication of his political stature and, by refusing it, an indication of his "honorable" nature. T w o days later the Senate approved Bayard's nomination. This approval, Stevens T. Mason told Breckenridge, was achieved "on condition (previously agreed to

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by his friends at his instance and request) that he should not accept the appointment." 9 Bayard then wrote to Adams, stating the reasons for his declination. Since he had withdrawn from those who opposed Jefferson's election, said Bayard, and had been instrumental in allowing Jefferson to become President, an acceptance of this position would arouse suspicions that his change of heart in the election struggle was dictated by "impure motives." 1 0 It would look, in other words, very much like a corrupt bargain. Furthermore, as Bayard explained to his cousin Samuel, Jefferson would probably recall him immediately, and an acceptance could therefore result only in a loss of " 1 8 , 0 0 0 dollars . . . [to] the public treasury." 11 In the last analysis, he told cousin Andrew, "there was more honor in declining than accepting the office." T h e Aurora, noticing this declination, commented that Bayard "has shown himself more prudent" than other Federalists who were immodestly accepting all types of positions. 13 The Delawarean's name now appeared more frequently in the opposition press. The Aurora, for example, published an open letter, sarcastically addressed "TO THE CHEVALIER BAYARD, Late Minister Plenipotentiary from John Adams," condemning Bayard's arguments concerning the applicability of English common law to the United States. " T h a n k God," said this letter, "that, under the present administration, your plans are held in contempt, and yourself hurled into insignificance." 14 The Jeffersonians had won. T h e common law doctrines of Bayard were now impossible of achievement. But instead of being "hurled into insignificance," he now rose to greater prominence. This growing leadership could be noted in other areas. J o h n Rutledge, J r . of South Carolina penned a long letter to Bayard in November, 1801, decrying Jeffersonian anarchy and offering certain suggestions concerning future Federalist policy. " I t is laughable for me," said Rutledge, "to advise what you ought to do—for me to say you must do this and that . . . is like Telemachus advising of Mentor." 13 He promised to look to Bayard for leadership in Congress. " A s I have heretofore done, I shall

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follow you, at a respectful distance, and do my best in playing second fiddle to yourself, M r Griswold, and other master spirits who lead our band of honest patriots." 19 Rutledge closed by advising Bayard to cultivate the friendship of the new Senator from South Carolina, John E. Colhoun. Though elected by the Republicans, "I think he may easily be detached from . . . [ t h e m ] . " 17 The following month the new Congress began its operation by voting for a Speaker of the House. Here again Bayard's minority leadership can be seen. Nathaniel Macon, the Republican candidate, received fifty-three votes. Bayard, the only Federalist supported, received twenty-six votes. This division, noted Manasseh Cutler, "give[s] . . . a tolerably correct idea of the strength of parties." 18 Caesar A. Rodney had predicted to Joseph Nicholson that "Bayard will appear as the leader [in Congress] this winter of the opposition." 19 Gouverneur Morris observed certain occurrences which seemed to corroborate Rodney's prediction. Morris noted that Bayard controlled the actions of Delaware's Senators in the upper house. "This leads [ m e ] , " wrote Morris, "to retrace some Former things and . . . [re]estimate [his] character." 20 The Aurora heard and published a rumor that Bayard had been influential in advising another Senator, Colhoun of South Carolina, concerning his first vote in Congress. 2 1 The Delawarean's only competitor for the position of minority leader was Roger Griswold. Both men made great and lengthy speeches in the first few weeks of the new Congress. In the end Bayard emerged supreme. As the Aurora stated it: "The contest, for the lead of the antirepublican party in congress, has terminated in favour of Mr Bayard—for a fortnight Mr Griswold spoke every day, he does not speak so often now." 22 William Plumer (in 1803) described Bayard as "a man of strong mental powers—his speeches are argumentative—takes high ground— speaks his mind freely of men and measures—his speeches are calculated . . . to irritate . . . [the] democrats." 23 Though he was ambitious, said Plumer, he was also "a man of integrity and

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honor." Nevertheless, Plumer felt that Bayard was not the best qualified man for his position—"leader of the Federalists in the House [of Representatives]." 2 4 It was Bayard's speeches—the fine flair for the dramatic, the close and logical reasoning, the subdued appeals to moderation bursting forth in a violent partisan attack—which carried him to a position of prominence among the Federalists. It was his consistent Federalism—his deep and lasting hatred of Virginia and Virginians (excepting John Marshall; for to Bayard they seemed a nation within a nation, with a desire for power which threatened the best interests of Delaware), his animosity to France, his defense of commercial interests, the Alien and Sedition Acts, his defense of the Constitution (the Constitution interpreted by the Federalists), and a strong national government —which won for him the post of minority leader. And, when consistency was impossible, it was his tact, his discretion, his neat political juggling, which allowed him to retain the allegiance of both wings of the Federalist party. John Adams complimented him for delivering a great speech on the judiciary.- 5 Alexander Hamilton outlined to Bayard his ideas of Federalist tactics for the future. 28 Bayard was an ambitious man. If the Federalist party was ever to regain power, he was the logical person upon whom they could unite. Never before, not even in the busy city of Philadelphia, had Bayard been so occupied with political affairs—and social and legal engagements. The Seventh Congress was to test his mettle as minority leader. Everyone awaited the Republican attack upon the Federalist citadels (especially upon the judiciary) constructed during the past three administrations. " T h e present session of Congress," remarked George Clinton, " I consider as the most important one since the establishment of the General Government." 2 7 The Delawarean was well aware of this importance. It was his task to combat the overwhelming Republican majority. Outside of Congress, meanwhile, social affairs commanded the

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Delawarean's attention—for Mrs. Bayard had accompanied him to Washington for the session—and he was forced to escort his wife to the various balls and musicales. He "found the entertainment insufferably dull," but, as he told his sister-in-law, "it is indispensable to indulge and accompany Madam." 2 8 The Supreme Court, also, occupied his time. As a relatively famous lawyer, he was employed as counsel in several important suits (including the famous Amelia and Peggy salvage litigations). "I have argued four cases in the Supreme Court here," he wrote to Rodney, "for which I have been paid absolutely nothing. The papers were sent to me without fees, briefs or instructions. It is impossible to conceive of business more loose than some of that which comes before the Supreme Court." 29 It was Congress, however, with which Bayard was most concerned in early 1802. An apportionment bill, for example, had to be debated following the completion of the census of 1800. This was not an issue between Federalist and Republican, but the arguments drifted into the sphere of partisan allegiances and gave Bayard an opportunity to lash out at the power of Virginia, the perfidy of Jefferson. The central government, said the Delawarean in swiping at Virginia, "was now able to govern the small states; but if one of the largest should deny and resist the authority of the Union, he doubted the ability of the Government to enforce obedience to its laws." 30 Bayard's major barbs were saved for the President, however, especially the inaugural words " W e are all republicans—we are federalists." 31 The Delawarean was in fact called to order several times for the inflammatory nature of his remarks. Jefferson, he said, ought to define what he means by the term republican. "Bonaparte called himself a republican [in order] to get the station he now holds." 32 To say, as many Jeffersonians did, that there was an anti-Republican minority in Congress was specious and fallacious. For there were degrees of republicanism, said Bayard, which belied the "artificial distinctions" between parties which were currently popular. Characteristically, he concluded with a Jeffersonian-like appeal to moderation in political battles. "If there must be party," said

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Bayard, "let us divide as Americans, and not as French and English. The very distinction tends to embitter the spirit of party and weaken the attachment to our country." 33 Following the debate on apportionment, the Republicans appointed a committee to investigate the uses of moneys drawn from the Treasury—actually, to inquire into the receipts and expenditures of Timothy Pickering and other department heads in the Adams administration. Griswold and Bayard, minority members of the committee, joined hands in attacking the majority report. The two Federalist leaders, sharply, brilliantly, accused the majority of not giving them an opportunity to explain or rebut the evidence presented; of deliberately acting in a secretive manner in order to write a biased document for propaganda purposes ; of misrepresenting the financial accounts in order to reach absurd conclusions; of declaring as illegal certain actions which were accepted practices and which were in use by the present Republican administration. John Randolph joined Joseph Nicholson in heated replies to these accusations. The report was then adopted by a strict party vote of 46 to 22.M Another subject mentioned by Jefferson in his message to Congress, or far more importance than reapportionment of representatives or stricter congressional control of the use of appropriations, was that of taxation. "There is reasonable ground of confidence," said Jefferson, "that we may now safely dispense with all the internal taxes, comprehending excises, stamps, auctions, licenses, carriages . . . . refined sugars, . . . [and] postage on newspapers." 3S At the same time, said Jefferson, barring the possibility of "untoward events," there must be a concurrent reduction in the habitual expenditures of our civil government "and for the army and navy." 38 It was not Giles, Randolph, Nicholson, nor any other Republican, however, who urged congressional consideration of the suggested measure—but Bayard. In late December, 1801, he offered a resolution instructing the Committee of Ways and Means to investigate "the expediency of repealing the laws laying duties on stills and distilled spirits, on refined sugar, on sales

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at auction, on pleasurable carriages, and on postage of letters." 37 His resolution was a smart political move on the part of the Federalists. The minority party, generally, was opposed to the dispensation of these direct (internal) taxes and preferred, instead, the abolition of certain commercial tariffs. 38 They realized, however, that the Republican steamroller majority could easily carry a repeal through Congress without much debate. They were conscious, furthermore, of the popular approval the abolition of direct taxes would effect. These motivations shed clarity upon actions which otherwise appear hopelessly confusing. For the minority leader to introduce this measure may have been startling, for an instant, to the entire lower house. But by doing so, he could claim credit for being instrumental in the passage of a popular measure; was assured of having the subject heard before a standing committee upon which he sat; could, at the same time, state his basic opposition to an immediate and total repeal of these taxes! The Federalists were fighting a rearguard movement of delay, of debate, of defiance rather than deference to the sweeping flood of Republicanism. But they also realized the impossibility of success. "It is not easy to conjecture what the President's party will do," wrote Gouverneur Morris, "but I believe they can do whatever they please." 3 9 And, realizing this, the Federalists decided to capitalize upon rather than futilely oppose the tidal wave. In January, 1802, Bayard introduced a resolution instructing the Committee of Ways and Means to consider a reduction of the duty on salt. 40 It was defeated by the Republicans. Ten days later John Rutledge, Jr. offered a resolution of the same nature, asking for a reduction of the duties on brown sugar, coffee, and bohea tea. 41 This also was defeated by the Republicans. The Federalists, first-rate political strategists, now had piercing barbs to hurl at their opponents. "Must we confine ourselves," asked Bayard, "to philosophic revenues alone, without any reference to what is useful? Because it has been mentioned by the President in his message, that the taxes on luxuries may be reduced, shall we [not] inquire as to the neces-

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saries of life and the interests of the country? Will not gentlemen give up their favorite project as to internal taxes, even for the welfare of the country?" 4 2 Rutledge, Griswold, and Dana joined Bayard, taking pleasure in displaying the anti-democratic nature of the Republican opposition to their resolutions. " W e wish the whole subject before the committee [of Ways and Means]," said Bayard, "for them to calculate the two species of taxation, internal and external, that they may decide which taxes would be more beneficial to the community to be reduced." 4 i One wonders whether the Federalists would have proposed these resolutions, spoken so vigorously, posed so liberally, had they not realized that the adoption of their proposals were highly improbable. As the Aurora commented, this Federalist maneuvering was intended "to catch at popular ground" by casting "an odium on the majority." 4 4 Actually, the Aurora explained, the Republicans "considered the abolition . . . as a progressive, and not as an immediate step." 45 The Republicans, angry at Federalist tactics, decided to allow their opponents to remain unanswered; they would keep silent, refuse debate, and merely vote down the Federalist proposals. Bayard, at this point, offered a resolution asking for detailed information from the Secretary of Treasury, of expenses incurred in collecting different internal taxes. 44 Randolph, instead of answering Bayard's request, had the Clerk of the House read a statement of general costs of collection from a report written by Albert Gallatin. The Federalists condemned this conspiracy of silence. "I thank God," said Bayard, "if we have not the advantage of hearing gentlemen on the other side express their opinions, we have still the liberty of expressing our own sentiments." 47 The Republicans remained unmoved. "Not a member on the opposite side," reported Manasseh Cutler, "opened his mouth, unless in 'grinning a horrid smile.' " 48 On that same day Bayard told his father-in-law that "the resolution for the repeal of all these internal taxes was carried . . . in the Committee of Ways and Means . . . . It is quite certain that the measure

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will take effect." 49 Less than a month later the bill was passed without debate. Many other topics—a Republican proposal to abolish the United States Mint as an economy measure; the scope of reductions in the "Military Establishment"—were debated and decided in the first Republican Congress, with Bayard directing the minority forces. His speeches—their type and timing— clearly indicate that the Delawarean was the foremost Federalist in the lower house, the director of their campaign of opposition. Certainly, as Bayard and the Federalists expected, these speeches could have little effect in Congress. The debates, however, were reported widely, and the Federalists felt that talent (and virtue) were on their side. So they did not despair before the Goliath in these early months, but flung their spears in the hope of weakening the giant. They were certain that the superior logic of their arguments, when placed alongside their disinterested motivations, would regain for them public confidence and support. Led by Bayard, they entered every fray with the foreknowledge of immediate defeat, with the expectation of eventual victory. Besides, one had to wait for a major issue, something of supreme importance and monumental consequence, before public opinion would really be known. That issue was the judiciary. Here feelings ran the highest, debates the most complete and most acrimonious. For the Republicans, so the Federalists thought, were shaking the foundation stone of the citadel.

CHAPTER

IX

T H E GREAT JUDICIARY DEBATE " T h i s day the Constitution has numbered 13 years and in my opinion has received a mortal wound."

1

Thus wrote Bayard to

his father-in-law on March 3, 1802, the day on which the judiciary act of 1801 was repealed.

This attitude was reflected by

Federalists throughout America.

" T h e judiciary bill is knocked

on the head," lamented Daniel Webster, then a young teacher in Fryeburg, Maine. 2

Seth Hastings, Representative from Massa-

chusetts, angrily relayed the news to a friend in the frontier village of Detroit: " T h u s is the independency of our national Judiciary broken down, and prostrated at the feet of our national Legislature."

3

Aaron Burr had kept Charles Biddle of Pennsyl-

vania informed of the progress of the repealing act, a measure the Vice-President reprobated. 4

Charles Carroll, from

Annapolis,

wrote wrathfully to Robert G. Harper (who needed no convincing)

of

his

irritation

at

this

Republican

deconsecration. 5

Federalists bemoaned the repeal, predicted that dissolution of the Union would be its result. 6

The Jeffersonians had struck

hard at the metacentre of a highly sensitive and neatly balanced federal system. 7

" T h e blow," said Bayard, "is mortal, and . . .

we may bid a final adieu to the Constitution."

8

Rebublicans saw no reason for such fears to the safety of the Union.

After all, wrote John Breckenridge, the repealing law

only "goes to a revival . . . of the former system."

9

The effect

of the new law was merely to establish a more democratic equilibrium in the federal balance. measure.

It was a perfectly constitutional

" A s to the . . . right of Congress to repeal the late

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[judiciary] act," stated Caesar A. Rodney, "I do not believe the Federalists themselves can seriously entertain a doubt." 10 It was, furthermore, a comparatively conservative measure. For, despite Federalist fears of a revolutionary blood-bath, the repealing act overthrew ( i n the words of Henry A d a m s ) "a mere outer line of defense," leaving "the citadel intact." 11 T h u s many Republicans were amazed at the bitter hatred and sharp cries of the Federalists, amused at their forebodings of impending catastrophe. The debate on the bill, wrote John Clopton, a Representative from Virginia, "has been attended with circumstances of acrimony and personal invective exceeding anything I recollect to have heard before." 12 And John Dawson, another Representative from Virginia, wrote, tongue-in-cheek, on March 4, 1802: "Yesterday we passed the bill for the repeal of the judiciary system. Today we celebrate the anniversary of the triumph of Republicanism. Thus, you see, the dreadful spirit . . . of innovation is going on." 13 F o u r months earlier, Jefferson, in his message to Congress, had laid down the lines of action for Congress to follow in reference to the judiciary. Before this message was delivered, Manasseh Cutler thought that "a total change in the Judiciary system is undoubtedly intended." 14 Cutler's anticipation was shared by many of his equally astute colleagues. T o their surprise, the President wrote no bitter tract of hatred against the Supreme Court and its effect of anti-democratic centralization. Instead, Jefferson stated simply: " T h e judiciary system of the United States, and especially that portion of it recently erected, will of course present itself to the contemplation of Congress." 15 The portion "recently erected," was the judiciary bill passed by the Federalists on February 13, 1801. This law fixed the number of Supreme Court judges at five, following the next vacancy —depriving the Republican President of the right to appoint a justice. " T h e most essential feature [however]." wrote John Marshall, "is the separation of the Judges of the supreme from those of the circuit courts, and the establishment of the latter on a system capable of an extension commensurate with the neces-

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sities of the nation." 18 Sixteen new circuit court judges were appointed, among them Bayard's father-in-law. Thomas Rodney, a typical (albeit overly bitter) Republican of the period, noted sarcastically in his diary on February 25, 1801 : "Marshall, an old Tory, is appointed by . . . [Adams] C [hief] J[ustice] of the U[nited] S[tates], And Bassett an old Insurgent nominated as a Circuit Judge—bravo!" 1 7 And, two days later: "Bassett appears . . . elated with the news—but as this judiciary bill was merely to Station a gang of Adams partizans it is probable the New Congress (which will be democratic) will soon Repeal it." 18 On January 4, 1802, "the attack upon the judiciary," wrote John C. Smith, "commenced in both houses." 19 John Breckenridge, who had received a finely detailed analysis of the constitutionality of the proposed repealing act from the pen of John Taylor, notified the Senate on that day of his intention to call up the question of the judiciary. 20 The brilliant and eccentric John Randolph introduced the topic in the House of Representatives. 21 The Senate acted first, the repealing bill barely squeezing by on a strict party vote of 16 to 15.'-2 The upper house had debated the bill for a full month. Several Federalists, Gouverneur Morris and Uriah Tracy in particular, had delivered superlative speeches against repeal. But they had failed, and the Federalists in the lower house (a much smaller minority) now had the task of formulating strategy to oppose the Republican juggernaut. James Hillhouse, a Federalist Senator from Connecticut, perhaps disgusted with his party's loss in the Senate, "wished to let the Adversary carry the Repeal without opposition." 2 3 But most Federalists felt it was better to go down fighting; at least then the public would be able to hear and read the truth. Bayard, in an early stage of the debate, expressed a desire to have public opinion aroused, to have it "profoundly agitated, to destroy all apathy where the vital principles of the Constitution were so deeply affected." For, he said, "if the Constitution . . . [was to be] saved, it must be by the people." 24 William Branch Giles told Bayard, in answer, that the Republicans did not fear public opinion. "I believe," said Giles, "that sentiment is with

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us." The Federalists were entirely incapable of raising any alarm, "because they are on the wrong side of the question." 2 5 Federalists felt deeply that Bayard had blundered by his appeal to public opinion. Uriah Tracy told Gouverneur Morris of "his discontent at Bayard's conduct on the Judiciary. He [Bayard] had the weakness to declare he wished to know the sense of the People and was well whipt [iic] for it by Giles." 2 6 But this interchange between Giles and Bayard had been a mere preliminary skirmish, involving an unsuccessful plea for the postponement of the question by Bayard, before the real debate commenced. For the better part of three days the opponents fired off their small guns, offering uninspired speeches (excepting that of Federalist Joseph Hemphill of Pennsylvania) by minor figures of each party. Four Federalists and four Republicans spoke at length to their colleagues and to a crowded and attentive gallery. But one and all awaited the big guns, guns which would blast away with conclusive authority. Those big guns were Giles and Bayard. 2 7 The former took the floor on the afternoon of February 18. He was known as Jefferson's lieutenant, co-leader with John Randolph of the Republicans in the House of Representatives. Forty years of age, a consistent opponent of all Federalist men and measures, Giles delivered his greatest speech on this occasion. 28 Brilliantly, succinctly, and dramatically, he prefaced his constitutional defense of the repealing act with an analysis of the birth, development, and ideas of the Federalist party. Generally, he said, there were "two extreme fundamental points"—the monarchical form, the republican form—around which each party revolves. 29 The Federalists, ever since they were in power, accepted the former and attempted to augment the power of the executive department. They did this "in direct hostility to the feelings and opinions of a great portion of the American people." 3 0 In rapid review, Giles surveyed the major events of the dozen years of Federalist rule, each event a step towards achiev-

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ing a goal of the Federalist faith. These were the assumption and funding measures, which erected "a moneyed interest"; an Indian war ( " [ I ] . . . would not say by what means," said Giles) necessitating a vastly enlarged Army and thereby increasing executive patronage and power; a war with the Mediterranean pirates, requiring a larger Navy, another item of patronage; taxes of many types, internal, excise, land, etc., to meet the expense of these undertakings, swelled to mountainous proportions by the quasi-war with France. Jefferson's lieutenant referred to the great faith of the people in George Washington, a faith which the Federalists employed to their advantage; to the XYZ affair, upon which the Federalists capitalized with window-dressing propaganda; to the Alien and Sedition Acts, "coercive measures to enforce obedience" to the doctrines of Federalism. 31 But the Federalists had failed. Note, said Giles, that the bill to be repealed, though under consideration many times, was not finally passed until February 13, 1801. The Federalists, having lost two branches of the government to their opponents, "it was natural for them to look out for some department of the Government in which they could entrench themselves." 32 The judiciary act, passed during "the highest paroxysm of party rage," was the vehicle for this purpose. 33 F"orty to fifty thousand dollars was added to the annual expense for the judiciary, an unnecessary expense since the new judges had a paucity of causes to decide, which contradicted Federalist assertions of the law's essentiality. Sixteen new judges, all Federalists, were appointed to the circuit seats, and other judges to district court seats left vacant by promotions. Giles pointed out that two members of the Senate, Ray Green of Rhode Island and Jacob Read of South Carolina, both of whom voted for the bill, received district court appointments soon after its passage. Such jurists were "political partisans, . . . pronouncing political harangues throughout the United States!" 34 Some of them have assumed that the barbarous common law is applicable to the United States, and have zealously employed its provisions in American courts. Having completed this partisan but penetrating analysis of

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Federalist beliefs, measures, and practices, Giles turned to the question of the repealing bill's constitutionality. The origin and powers of the three departments of our national government, he said, must clearly be delineated in order to understand their rights, relations, and restrictions. Only the executive and legislative departments are created by the Constitution. The obligations and duties, prerequisites and powers of these two departments are specifically designated by that instrument. Not so, said Giles, for the judiciary. "The Constitution does no more than to declare that there shall be a Judiciary department, and directs that it shall be formed by the other two departments, under certain modifications." 35 That there shall be but one Supreme Court, that the compensation of judges was certain during good behavior, that they were removable for certain offences only by impeachment—these were the only modifications. To say, therefore, that the judiciary department is created by the Constitution, is false. For, the number of inferior courts, the number of judges, their initial salaries, their time and place of meeting, their duties and functions, etc.. are all left to the discretion of Congress. As such, it is quite plain that the legislative body has a right to cancel, change, or modify, in any respect whatever, the power, number, or duties of any inferior court. Nowhere—"not . . . in the spirit, general character . . . phraseology . . . [or] any article or section of the Constitution—is to be found any such phrase as 'independence of Judges or of the Judiciary Department.' 3