His first term in office began in humbling fashion, however. In that grim committee room in the Capitol, with only three of his five colleagues and almost no spectators present, the greatest chief justice the United States has ever known was sworn in at 11 A.M. on February 4, 1801. Eschewing the scarlet robes or grand accoutrements favored by other judges, Marshall dressed simply, in a plain black robe. He did not specify whether this was fitting for the surroundings, a function of the general lack of interest in appearances for which he was well known, or a symbolic message that the Supreme Court would no longer hold itself above the people, but soon all the associate justices were wearing plain black robes, as they do today.* Six days later, without passing on a single case of note, the Court adjourned the February term, and Marshall once again became full-time secretary of state.
* In January 1995, Chief Justice William Rehnquist shocked Court watchers when he appeared in a gown with four gold horizontal stripes on each sleeve.
* The committee of the whole House, in which the Speaker yielded the chair to another representative, was a device that allowed the members more latitude in debate.
* There was nothing that rankled Adams more than the epithet “President by three votes.”
* Had the situation been reversed, Adams, by virtue of the single vote for Jay, would have been president and Pinckney vice president.
* The excuse turned out to be unconvincing—Jay lived for another twenty-nine years.
FIFTEEN
TWO BILLS: ADAMS’S LAST STAND
TO THE SURPRISE OF MANY, the courts bill had not sailed through the Federalist Congress. After the first two readings on December 19, the bill was not even discussed until January 5. Possibly this was a result of the vacancy in the chief justice’s chair, or simply a reflection of the general chaos that seemed to surround a government poised for its first political transition; but, whatever the case, once the measure did come to the floor, determined Republicans persisted in prolonging argument throughout January by introducing extraneous topics of debate. In one case, the better part of a day was spent deciding whether Virginia should be one circuit or two and, if two, whether the line of division should be by latitude or longitude.1 Two days later, Republicans initiated an extended discourse as to whether state courts could be made to adhere to federal law, an important issue, but one that been covered before. Even the House reporter noted that one congressman “went over the same ground as that taken by him in a former debate.”2 There were motions to reduce the judges’ $2,000 salary to $1,800, and many others to parse this section of the bill or that.
In session after session, Federalists and Republicans alike droned on about minutiae and little of substance was accomplished. With Jay, the putative chief justice, yet to make an appearance, however, Federalists had no choice but to accept the endless palaver. The House Journal for January 5, 1801, gave a sense of the pace. “The House, according to the order of the day, again resolved itself into a Committee of the Whole House on the bill to provide for the more convenient organization of the Courts of the United States; and, after some time spent therein, Mr. Speaker resumed the chair, and Mr. Rutledge* reported that the committee had, according to order, again had the said bill under consideration, and made a further progress therein.”3 The exact same entry appeared for January 7 and for January 8, 9, and 12, except that for the latter three days it was Mr. Morris4 reporting progress instead of Mr. Rutledge. Not until January 16 did the House get around to dealing with amendments.
Finally, on January 20, as Adams’s nomination of John Marshall for chief justice was read in the Senate, the House of Representatives quickly brought the courts bill to a vote and it passed, 51–43. In the early days of Congress, votes of specific members were only recorded if one fifth of those present called for yeas and nays, which happened here. Whether Federalists or Republicans asked for the roll call was not specified, but the results showed a strict party-line vote, with not a single Republican agreeing to the reorganization.
The Jay debacle had cost Federalists precious weeks, and speed was now of the essence. The following day, the bill was reported to the Senate, received the second reading a day after that, and then sent to a committee that consisted of five Federalists, four of the five from New England. The committee reported out the bill without amendment on January 29, two days after John Marshall had been confirmed as chief justice.
Republicans were not finished, however. Once again they bombarded the bill with a series of amendments. They proposed lowering the salaries of the circuit judges and, when that failed, raising the salary of circuit judges in Republican Tennessee and Kentucky. They suggested changing the mandated day for the meeting of one of the circuit courts by one month. Had any of these amendments passed, the bill would have returned to the House. Finally, on Saturday, February 7, the Senate passed the bill as received, by a 16–11 vote. It was affirmed on the following Tuesday, February 10, and then brought to the House, where it was signed by the Speaker.5
The following day, Wednesday, February 11, was supposed to be one of high ceremony, when Americans found out for the first time who would be their next president. According to the plan, the electoral votes from the various states, suitably endorsed and certified, were to be read in the Senate chamber by the president of the Senate (who happened to be Thomas Jefferson) and then tallied with great flourish and drama before a joint session of Congress. When the tally was complete, a proclamation announcing the result would be issued to a breathless and eager nation. Since the result of the election was by this time known to virtually every person in America, many thought that this grand scenario would have lost its allure. But since the tie between Jefferson and Burr had injected a number of heretofore unforeseen variables into the mix, anticlimax had been replaced with excitement of a different sort than what was anticipated by the framers.
On the morning of February 11, the capital’s few thousand residents awoke to a driving snowstorm. House members slogged through the mess and dutifully trooped into the Senate chamber, listened to the reading of an outcome that had been more or less public for weeks, affirmed that both Jefferson and Burr had received a majority of the electoral votes, and then dutifully trooped out to return to their own chamber to commence the by-state voting to break the tie.6
Federalists kept their vow to vote for Burr, and the result of the first ballot was eight states for Jefferson, six for Burr, and two divided. The result of the second ballot was the same. And the third. After eight ballots, neither side had blinked. By the ninth ballot, even the House reporter had wearied of recording the same outcome and he noted simply, “The States then proceeded to a ninth, tenth, eleventh, twelfth, thirteenth, fourteenth, and fifteenth ballots; and, upon examination of the ballots respectively, the result was declared to be the same.”7
The delegates took a break for dinner and then returned to the freezing, half-finished Capitol to cast the sixteenth ballot at 9 P.M. After that provided no change, the members voted to take only one vote per hour, thereby allowing time for someone to try to broker a deal. At 11 P.M. a motion to adjourn until the following day was defeated, and at midnight the nineteenth ballot was still eight for Jefferson, six for Burr, and two divided. The votes kept coming through the night, monotonous in their repetition, while America waited to learn the identity of the next president. After the twenty-seventh ballot, which had begun at 8 A.M., the members gave themselves a break until noon. The rest did not help—the twenty-eighth ballot was the same. The House then adjourned until the next day.
Before the voting began, the House had agreed that they would not be interrupted by other business until a president had been chosen. According to the reporter, “During the time the States were employed in balloting, sundry messages from the President of the United States, from the Senate, and communications from Departments, were received, and reports from committees made; but it being contrary to the rules established on [February 9] for the House to take them into consideration at that time
, they were taken up and acted upon after the balloting had been completed, and the final result declared.”8 One of the sundry messages was to inform the House that “An act to provide for the more convenient organization of the Courts of the United States” had been placed before the president for his signature.9
On Friday, February 13, only one ballot was taken, the twenty-ninth, with the same inconclusive result. Meanwhile, at the President’s House, John Adams signed “An act to provide for the more convenient organization of the courts of the United States,” which soon became popularly known as the Judiciary Act of 1801.10
Four ballots were taken on February 14 and, after taking Sunday off, one on February 16. The nation was facing the very real possibility that, in two weeks, it would be without a chief executive. On February 17, the first vote of the day, the thirty-fifth ballot, showed no change. At 1 P.M., the thirty-sixth ballot was taken. The reporter noted:
The time agreed upon by the last mentioned vote being expired, the States proceeded in manner aforesaid to the thirty-sixth ballot; and, upon examination thereof, the result being reported by the tellers to the Speaker, the Speaker declared to the House that the votes of ten States had been given for Thomas Jefferson, of Virginia; the votes of four States for Aaron Burr, of New York; and that the votes of two States had been given in blank; and that, consequently, Thomas Jefferson, of Virginia, had been, agreeably to the Constitution, elected President of the United States, for the term four years, commencing on the fourth day of March next.11
The stalemate had been broken not by an arrangement made in the House chamber, but as a result of the turmoil on the outside.12 While the congressmen repetitively cast their ballots during that week in February, the United States had teetered on the brink of dissolution, military coup, or even civil war. Republicans had been unimpressed that Federalists magnanimously had not tried to actually seize the government, but remained so incensed by what they saw as a bald-faced ploy to frustrate the will of the voters that in two states, Virginia and Pennsylvania, militia had been either alerted or actually mustered with the intent of marching on the capital if Jefferson’s election was not validated by the House. Virginians threatened to secede or call another constitutional convention. For every actual event, there were ten rumors, one of which was that a mob of Pennsylvanians had seized the federal arsenal in Philadelphia. Other rumors had key Federalists receiving death threats that would be carried out if Jefferson was denied the presidency.
In the capital itself, deals and counter-deals were proposed seemingly by the hour. Federalists were convinced that they could barter their votes for concessions from one or both of the candidates. Different members of the party petitioned or were said to petition—fact was becoming increasingly indistinct from fiction—both Burr and Jefferson, trying to wrangle indulgences.13
During the Sunday break, James Bayard, Federalist of Delaware, began to waver. Bayard was in a unique position in the House—a delegation of one, the sole representative of the state that, at the time, had the smallest population in the Union. Bayard despised Jefferson and could never bring himself to vote Republican. But, if he turned in a blank ballot, according to the rules, it would be as if Delaware did not exist. The number of states would be reduced to fifteen and Jefferson’s eight would be a majority.
Bayard apparently engaged an intermediary to determine what Jefferson was willing to guarantee in return for a blank ballot. It is unclear whether the intermediary ever brought the offer to Jefferson or, if he did, whether Jefferson responded. (Bayard later claimed that Jefferson agreed to terms—Jefferson denied it—but the man who put the hated Virginian in the presidency surely had an agenda of his own.) In any event, Bayard revealed his decision to abstain to a party caucus on Sunday, where it was not received well.14
Evidently, the reason that Bayard did not withhold his ballot first thing Monday morning or for the first ballot on Tuesday was that other Federalists were waiting for a response to a counter-offer from Burr. By midday Tuesday, it had either not arrived or was unsatisfactory, so, on the thirty-sixth ballot, Bayard cast his blank vote. Aware of Bayard’s intentions, Maryland’s five Federalists also did not bother to vote, nor did Vermont’s, throwing those states to Jefferson. South Carolina’s all-Federalist delegation refused to cast ballots as well, thereby creating an abstention and the final tally of ten states for Jefferson, four for Burr and two abstentions. At shortly after 1 P.M. on February 17, 1801, Thomas Jefferson was finally elected as the third president of the United States, a mere fifteen days before he was scheduled to take office.
The next day, John Adams sent his first list of judicial nominees to the Senate.
The courts bill Adams signed on February 13 had changed somewhat from the one that had been formulated the previous spring. It established a series of six circuit courts that would sit permanently within twenty-two federal court districts. These districts largely corresponded to state boundaries, but created a separate district for the territory of Maine (then part of Massachusetts) and the Ohio territories, and created a northern and southern district for New York, and eastern and western districts for Pennsylvania, Virginia, and Tennessee. Unlike the previous bill, which created a circuit judgeship for each district, five of the six circuit courts would be overseen by three permanent federal circuit court judges, and the sixth, Tennessee and Kentucky, by one new judge who would sit with the district court judges already in place. Judges would still ride from district to district within the circuit. Passage of this act would therefore enable the appointment of sixteen new federal judges, all of them with lifetime terms and all likely to be Federalists. As before, the act also provided for United States attorneys, federal marshals, and court clerks in each of the newly defined districts to supplement those already in place. All in all, this “convenient organization” promised to provide a convenient number of jobs for outgoing Federalists.
The provision to reduce the number of Supreme Court justices from six to five remained, meaning that, with Marshall now confirmed as chief justice, when the aged Cushing either died or resigned from the bench—one of which was expected imminently—Jefferson could not appoint a Republican replacement.* As had its predecessors, this bill also provided the Court the authority to issue “writs not specifically provided by statute, which may be necessary for the exercise of its jurisdiction, and agreeable to the principles and usages of law,” including writs of mandamus.
The twelve judicial nominees that Adams sent to the Senate on February 18 were far from a bankrupt lot. The list included Jared Ingersoll and Richard Bassett for the second circuit, both of whom had been delegates to the Constitutional Convention; Charles Lee, the sitting attorney general, for the fourth circuit; and even his own unfaithful treasury secretary, High Federalist Oliver Wolcott, for the first circuit.* Nonetheless, all were Federalists, and all stuck in the craw of a Republican Party forced to watch helplessly—for the moment—while Adams packed the courts. On Monday, February 23, Adams sent nominations for judges of the fifth and sixth circuits, as well as for a number of marshals and United States attorneys. All the nominations were quickly approved by the Senate.
The courts bill was not the only piece of legislation with implications for the judiciary that had been making its way through Congress while the struggle to elect a president was playing out. Another reorganization measure, “A Bill concerning the District of Columbia,” something of a companion piece to the courts bill, had been initiated in the Senate, but was attracting far less public attention. It created two counties, Washington for that part of the District that lay in Maryland, and Alexandria for that part in Virginia. It established a federal circuit court for the district that would “consist of one chief judge and two assistant judges, resident within the district,” giving President Adams three more Federalists to appoint. The chief judge would be paid the same $2,000 salary as circuit court judges, and the assistants would receive $1,600. The bill established terms for the court, and assigned it jurisdiction
over “all crimes and offenses committed within said district, and of all cases of law and equity between parties, both or either of which shall be resident or be found within said district, and also of all actions or suits of a civil nature at common law or in equity in which the United States shall be plaintiffs or complainants.” As in the courts bill, this legislation provided for all necessary support personnel as well—clerks, a marshal to run the jails, and a United States attorney to handle prosecutions. Although perhaps understood, the bill did not, as had the courts bill, specifically authorize the new circuit court to issue writs of mandamus.
Section 11 of the bill stipulated “That there be appointed for each of the said counties, such number of discreet persons to be justices of the peace, as the President of the United States shall from time to time think expedient, to continue in office for five years.” Justices of the peace, a local or county office, did not come up in the courts bill, which dealt with only the federal judiciary, but was required in any definition of District of Columbia government. Although limited by term and lack of salary—compensation came through court fees—it was nonetheless vital to municipal order, “the most powerful public office in the lives of the common people.”15 Justices of the peace manned county courts, and therefore oversaw arrest, arraignment, and a number of other key day-to-day civil and criminal court functions. Excepting the pre-existing towns of Georgetown and Alexandria, the District of Columbia justices of the peace were also to serve as the capital’s governing body.
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