by Lynne Cheney
For the moment the biggest stumbling block was Jefferson’s worry that in the absence of a specific provision in the Constitution about acquiring territory, the purchase might not be strictly constitutional. To Madison it was obvious that the United States, like any nation, had the right to acquire territory. He agreed with Gallatin, who pointed out to the president that the Constitution provided for the admission of new states and gave the power to make treaties (such as the one executing the purchase of Louisiana) to the president and Congress. But Jefferson continued to worry, indeed over-worry, the matter. If the United States could acquire Louisiana, what was next? the president wanted to know. Ireland? Holland? He wanted to amend the Constitution to take the matter of Louisiana into account, and even though Madison did not think it was necessary, he dutifully offered advice: namely, that the amendment should not preclude the United States from acquiring further territory, such as the Floridas.35
On August 17, Jefferson received a letter at Monticello from Robert Livingston. Much of it was in a cipher that he did not have the key to decode, but what he could read worried him, and he sent the letter on to Madison the next day. Were the French threatening to retract their offer if there was a delay in ratification? Madison did not think that was the intent, and Jefferson continued to work on a constitutional amendment, but he was convinced now that it would be best to keep his concerns about constitutional complications “sub silentio.” If the French were even the least uneasy, they should not be further alarmed. It was not until the Madisons visited Monticello in September, however, that the president dropped his plan for amending the Constitution.36
When Jefferson addressed the matter of the treaty with Congress in October 1803, he indicated that once ratified, the treaty would be “constitutionally confirmed.” Not everyone agreed. Timothy Pickering of Massachusetts, now a Federalist senator, declared the president and the Senate were not “competent to such an act of incorporation.” Senator Uriah Tracy of Connecticut agreed. Representative Roger Griswold of Connecticut let slip that it was not just the constitutionality of the purchase that troubled New England Federalists but “the destruction of that balance … between the eastern and western states” which, he said, “threatens at no very distant day the subversion of our Union.” William Plumer of New Hampshire raised the stakes even higher. “Admit this western world into the Union,” he said, “and you destroy at once the weight and importance of the eastern states and compel them to establish a separate, independent empire.” Jefferson dismissed such talk, but this was not the last time there would be discussion among New Englanders about creating a northern confederacy.37
The Senate voted in favor of the treaty by 24 to 7, and the historic deed was done. It was, Henry Adams later observed, “an event so portentous as to defy measurement; it … ranked in historical importance next to the Declaration of Independence and the adoption of the Constitution—events of which it was the logical outcome.”38
• • •
PARTICULARLY IN CONTRAST with the annexation of Louisiana, the decision handed down by the Supreme Court in Marbury v. Madison seemed at the time of little significance. William Marbury, a self-made man and Adams loyalist, was one of the “midnight” justices whom John Adams appointed during his last days in office. The Federalist Senate confirmed his appointment on Adams’s last day as president, but after Jefferson assumed office and found that Marbury’s commission had still not been delivered, he ordered that it be withheld. Marbury subsequently sought from the Supreme Court a writ of mandamus that would compel Secretary of State Madison to deliver his commission. In 1803, the court issued its opinion, saying that Marbury was entitled to the commission but that the Supreme Court could not issue the writ because the section of the Judiciary Act of 1789 that would have permitted the court to do so was unconstitutional. On the surface, the outcome seemed positive for the Jefferson administration. Madison did not have to deliver the commission. But Marshall’s decision also allowed the chief justice to avoid direct confrontation with the administration, which was riding high, even while pointing out that the president, whom he despised as only one Virginian cousin could another, had broken the law.39
Most important, in the decision Marshall declared, “It is emphatically the province and duty of the judicial department to say what the law is,” thus establishing a platform on which the giant superstructure of judicial review would be built. Madison did not believe that the Constitution sanctioned such a power. The Council of Revision that he had proposed in the Constitutional Convention, by giving the executive and the judiciary together final sign-off on legislation, would have precluded the possibility of the courts acting alone to decide constitutionality, but the council had been turned down, leaving “no provision … for the case of a disagreement in expounding [the laws].” In the absence of a provision, Madison saw that a pattern would develop: Congress would pass a law, the president sign it (thereby offering his opinion that it was constitutional), and the courts take the last word, thereby stamping the law “with its final character.” Observed Madison in 1788, “This makes the judiciary department paramount in fact to the legislature, which was never intended and can never be proper.”40
By the time of Marbury, Madison was becoming somewhat reconciled to the arrangement, largely because there was no reasonable alternative, but he was hardly so satisfied with it that he felt obliged to acknowledge Marshall’s authority to make the decision he had.41 Thus the defendant in what would become the most celebrated case in American judicial history left no recorded reaction to it, thereby lending support to the notion abroad at the time that there was nothing earthshaking about it.
• • •
LATE IN 1803, a full-blown minister arrived in Washington to represent Great Britain. Anthony Merry and his wife had a difficult journey, encountering rough weather in the last stages, and once they arrived in Washington City, matters seemed only to grow worse. There were the challenges of the raw capital, which many a newcomer considered unfit for habitation. Not a single house was deemed suitable for the Merrys, and they finally combined two residences into one for their quarters. And then there was the president, given to wearing two vests, one red and threadbare and the other described as “grey-colored” and “hairy,” with an old brown coat over the top of both. His favorite stockings were yarn and his favorite shoes a pair of slip-ons. He was known to cross his legs and dangle a shoe off his toes while he was seated. Both his breeches and his linen were on different occasions described as soiled, and he seems to have placed little importance upon combing his hair.42 One can well imagine the shock of Minister Merry, dressed in full diplomatic uniform, encountering the carelessly clad Jefferson when he presented his credentials.
Merry’s secretary, Augustus John Foster, was sure that Jefferson, who had attended the most sophisticated salons of Paris, knew better but was chasing popularity by dressing like the masses, and there was probably truth in his assessment, though as far as the soiled shirts and uncombed hair are concerned, Jefferson might simply have been suffering from having no wife.43 But when it came to his clothing generally, he probably had an idea of trying to appear as befitted a citizen of the Republic, particularly one living in what was essentially a rural setting—and he wasn’t about to make an exception to his dress, especially not for a minister from Britain.
Jefferson was similarly relaxed when it came to the dinners he gave. Instead of worrying about rank and precedence when it was time to move to the table, he turned to the woman who was serving as hostess for him and led her into dinner. Minister Merry and his wife arrived at the president’s house to dine unaware of this habit and were shocked when Jefferson escorted Dolley Madison to the table rather than Elizabeth Merry. A few days later, dining at the Madisons’, the Merrys suffered another blow. The Madisons were no doubt dressed properly—James, as was now his custom, in a black coat and breeches buckled at the knee, black silk stockings, and lace-up shoes, and Dolley in something low cut and elegant. But wh
en it came time to move from the drawing room to the dining room, Secretary Madison turned to Hannah Gallatin and escorted her to dinner, rather than Elizabeth Merry. This was one insult too many for the minister, who decided that he and Mrs. Merry would attend no more official events unless his government instructed him otherwise.44
Madison tried to control the damage, writing to Rufus King, who had just recently returned from representing the United States at the Court of St. James’s. Could he spell out what the rules were there? King replied that foreign ministers were seldom invited to royal entertainments, but when the king had his annual levee, the rule, with some exceptions, was pell-mell—which basically meant there was no rule. At dinners in “higher English circles,” King reported, the ladies left the drawing room for the dining room first, followed by the gentlemen. With this information, Madison went to the president, who agreed that in the future, when crowds were involved, he would adhere to pell-mell practice. He even worked with Madison to sketch out rules of etiquette. At dinners, the rule would be “gentlemen in mass giving precedence to the ladies in mass, in passing from one apartment where they are assembled into another.”45
Madison sat Merry down for a long talk, probably in his small office in the brick building next to the president’s house, where the Department of Foreign Affairs was now headquartered, and the minister spilled out all his complaints, but what he regarded as the insult to his wife loomed largest. All questions of rank aside, she was a newcomer and for that reason alone deserved special courtesy, Merry said. Madison expressed his personal sympathy: “At my own house in private life, it is probable that Mrs. Merry as a stranger would have received the first attention.” He explained that he was not a private citizen, however, but secretary of state in the Jefferson administration. “I had thought it most proper not to deviate from the established course,” that is, the one set by the president.46
Madison told Merry that he and his wife had been treated no differently from others who had attended the president’s dinners over the last three years and that the practice of pell-mell, to which the administration would henceforth adhere at crowded events, was also used in England. Merry refused to be placated, saying only that “he should conform to our ideas if so instructed.” Not long after his meeting with Madison, the minister was thrown into another tizzy when he heard about a party at the president’s house attended by Napoleon’s brother Jérôme Bonaparte and his new wife, the former Elizabeth Patterson of Baltimore. The president, rather than escorting a cabinet wife into dinner, had offered his arm to Mrs. Bonaparte, thereby, as the Merrys saw it, according the wife of a French visitor the treatment that he had not accorded Mrs. Merry. In the middle of the battle over precedence, escorting Mrs. Bonaparte into dinner was not the most tactful thing Jefferson could have done. It suggests that he took some delight at sending the Merrys into a tizzy, but he might simply have been delighting in Mrs. Bonaparte. She was gorgeous and given to wearing dresses so transparent that she nearly launched another front in the etiquette war. Several high-ranking Washington women threatened to quit attending parties where she would be present unless she wore more clothing.47
Madison wrote a letter of great length to James Monroe, who had replaced Rufus King as the U.S. minister to Great Britain, explaining the contretemps in great detail. “I blush at having put so much trash on paper,” he wrote. But foolish as the affair was, the diplomatic fire had to be extinguished, and Madison was giving Monroe information he needed to work the problem from the British side. Madison continued to meet frequently with Merry, refusing to let the social contretemps lead to a break in communications. He might have rounded out his work on what became known as the Merry Affair by dropping a tactful hint or two to the president about his apparel. By the end of the year, Jefferson was looking “well dressed,” Senator William Plumer of New Hampshire reported. He was wearing “a new suit of black, silk hose, shoes, clean linen, and his hair highly powdered.”48 In other words, he was dressed much as Madison habitually was.
• • •
AARON BURR had become Jefferson’s vice president despite Jefferson’s suspicions about him. His ambition was entirely too obvious for Jefferson’s taste, but Burr’s work to put New York in the Republican column had earned him his place on the ticket. After the tied election, which Jefferson suspected Burr of trying to manipulate to his advantage, Jefferson made clear his lack of faith in his vice president by not appointing Burr’s right-hand man and faithful friend, Matthew Livingston Davis, to a high post that Burr sought for him. Albert Gallatin worried about the consequences of this “declaration of war.” If this was a signal that Burr was not to be the Republican candidate for vice president at the next election, then whom was the party going to nominate? Madison was the obvious choice, but he was from Virginia, and electors from that state could not vote for two Virginians. “Mr. Madison cannot on that occasion be supported with you,” Gallatin wrote to the president. The party could stick with Burr, but if that was the intent, why make him furious, stir up the Federalists, and incite a plot that might make Burr, with both Republican and Federalist votes, president in the next election?49
By 1804, there was no longer any possibility of Burr’s being on the ticket. A widower, he had been under steady attack as a libertine who seduced and corrupted both men and women. Burr ignored these charges, which he blamed on political rivals in New York, but he felt obliged to deny accusations that he had “crouched and fawned and surrendered himself” to Federalists in 1800 in an attempt to wrest the presidency from Jefferson. Burr went to see the president and told him that his main reason for agreeing to the vice presidential nomination had been a desire to promote Jefferson’s “fame and advancement, and from a desire to be with [Jefferson], whose company and conversation had always been fascinating to him.” Jefferson was having none of it, Burr saw the writing on the wall, and on February 18, 1804, his friends announced his candidacy for governor of New York. A week later, the Republican congressional caucus unanimously nominated Jefferson for president and by a two-thirds vote chose George Clinton of New York as the vice presidential nominee. Burr received not a single vote.50
Jefferson might well have urged the choice of Clinton not only because he brought regional balance to the ticket but because he was unlikely to stand in Madison’s way when it came time for the presidential election of 1808. The New York governor would be sixty-nine that year, and while he had once been a man of powerful physique, age had diminished him. Indeed, he had explained to Jefferson that his reason for not seeking reelection in New York was so that the governorship might be filled “with some suitable character not so far advanced in years and enjoying a better share of health.”51
Madison’s health, meanwhile, had markedly improved. After reporting a “pretty severe interruption” due to an “attack” in early 1802, he gives no indication in his letters of sudden attacks for the rest of that year or for 1803 and 1804. What he had once seemed to view as an “insuperable” obstacle to the presidency might no longer have appeared that way.52 He had seen the presidency up close and knew he could do justice to it. Indeed, he’d had his differences with the presidents he had known, Jefferson included, and probably thought he could do better. It was not the custom of the time to make announcements or even drop hints, but by the time Clinton became the vice presidential nominee, every indication is that Madison as well as Jefferson viewed Madison as the heir apparent.
• • •
THE SUMMER OF 1804 was a good time to be a Republican. “Our affairs continue on a prosperous train,” Madison reported to Monroe. “The tide of opinion is more and more favorable to the administration.” Even in New England the Republicans were making advances. New Hampshire had a newly Republican legislature and had recently provided the vote necessary to complete ratification of the Twelfth Amendment, which would require electors to vote separately for president and vice president. There had been Federalist objections—that the quality of vice presidential candidates would dim
inish if they were on a separate ballot, that the office itself would become “the subject of barter”—but Republicans prevailed, ensuring that there would be no opportunity for the Federalist mischief that had caused such turmoil with the election of 1800.53
It was a sad time to be a Federalist, a member of a party that was, in Henry Adams’s words, “prostrate, broken, and torn by dying convulsions.” Since Jefferson’s election, Alexander Hamilton, once high and powerful, had come to feel like a stranger in a strange land. He wrote to Gouverneur Morris, “Mine is an odd destiny. Perhaps no man in the United States has sacrificed or done more for the present Constitution than myself—and contrary to all my anticipations of its fate, as you know from the very beginning I am still laboring to prop the frail and worthless fabric. Yet I have the murmurs of its friends no less than the curses of its foes for my rewards. What can I do better than withdraw from the scene? Every day proves to me more and more that this American world was not made for me.” But when Aaron Burr announced his candidacy for the governorship of New York, Hamilton could not stay out of the political fray. Although some Federalists hoped that a win for Burr would place him in a position to lead northern states in an effective opposition to Virginia, Hamilton thought he was dangerous and didn’t hesitate to say so. His comments made it into print, and after Burr lost the election for governor, he sought Hamilton’s disavowal of his harsh words, which Hamilton would not provide. And so it was that on a cool July morning, Burr and Hamilton met on the dueling ground at Weehawken. Both men fired, Hamilton fell, and the next day he was dead.54
