by Jon Meacham
Though some Federalists spoke of throwing support to Burr in exchange for political and policy concessions, the New Yorker showed no outward signs of working against Jefferson. “I do not … apprehend any embarrassment even in case the votes should come 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,” Burr told Jefferson. “On the contrary, they will be found among your most zealous adherents.” There is no evidence that Burr considered betraying Jefferson, but Jefferson soon came to believe that his running mate was an unreliable and undesirable ally. The eventual outcome of the election of 1800, Jefferson told his son-in-law John Wayles Eppes, passed all understanding.
“The President, I am told, is in a state of deep dejection; his feelings are not to be envied,” wrote Timothy Pickering on Monday, January 5, 1801. “To his UNADVISED (to use a mild term) measures are traced the evils with which the whole of our country is now perplexed and depressed. And many discerning Federalists at least doubted which was to be most deprecated—his reelection, or Mr. Jefferson’s elevation to the Presidency.”
Republicans worried about a Federalist defeat of the popular will. “The dread now,” a correspondent wrote John Breckinridge in late December 1800, “is that Jefferson and Burr are equal as the vote of the electors, and that Burr will be preferred by the Eastern states, not because they think him really the most capable, but because Jefferson is the choice of the people … and their will shall not prevail; this certainly would be a wicked and contrary disposition in them. But what will they not do or attempt?”
The year ended in fog and mystery. “The Feds appear determined to prevent an election, and pass a bill giving the government to Mr. Jay, appointed Chief Justice, or to Marshall as Secy. of State,” Jefferson wrote Madison on the day after Christmas. “Yet I am rather of the opinion that Maryland and Jersey will join the 7 republican majorities.” By the last Sunday in December 1800, the votes were all in. They came to Jefferson as president of the Senate.
It was a tie.
James McHenry put the key question to Rufus King on the second day of 1801.
“Where,” McHenry asked, “is all this to end?”
THIRTY-ONE
A DESPERATE STATE OF AFFAIRS
Rumors are various, and intrigues great.
—GOUVERNEUR MORRIS
It is extremely uncertain on whom the choice will fall.
—JOHN MARSHALL
THE WASHINGTON, D.C., OF 1800–1801 was a makeshift affair. Six or seven boardinghouses were in competition with Conrad and McMunn’s, where Jefferson lodged. A Philadelphia boot maker had recently set up shop near the Capitol, as had a bookstore. Benjamin W. Morris and Co. Groceries stocked Madeira wine, brandy, and spirits, along with soap, lamp oil, and hair powder. The sides of Capitol Hill itself were still wild, wooded, and filled with game.
Moving between the Senate, where he remained the presiding officer, and his quarters at Conrad and McMunn’s, Jefferson tried to keep his equilibrium. It was not easy. No one knew what each day would bring. “The election,” Jefferson wrote a son-in-law, “is still problematical.”
Once an ally, Aaron Burr now seemed a possible a threat. On Monday, January 5, 1801, the Philadelphia Gazette wrote that Burr “was heard to insinuate that he felt as competent to the exercise of the Presidential functions as Mr. Jefferson.” On the same day, Benjamin Hichborn, a Jeffersonian, reported, “Some of our friends, as they call themselves, are willing to join the other party in case they should unite in favor of Col. Burr.”
Jefferson’s enemies were indeed at work, open to considering any outcome that would keep Jefferson out of power. “There would be really cause to fear that the government would not survive the course of moral and political experiments to which it would be subjected in the hands of Mr. Jefferson,” said Delaware congressman James Bayard, a Federalist.
Albert Gallatin, writing to his wife, said, “What will be the plans of the Federalists? Will they usurp the Presidential powers? … I see some danger in the fate of the election.”
Roger Griswold lamented the sorry pass things had come to. “Jefferson as a politician I believe to be the weakest of all men—he may be honest but it is a point which is much doubted by those acquainted with his private life,” Griswold said.
On Sunday, January 11, 1801, Jefferson attended morning services in the Capitol. The Right Reverend Thomas Claggett, the Episcopal bishop of Maryland and chaplain of the Senate, was presiding. Roger Griswold was there, too, and could watch Jefferson as the sermon unfolded. Claggett—with, Griswold said, “more learning perhaps than wisdom”—was trying to link some biblical prophecy to the events of the French Revolution. In doing so, Griswold wrote, the bishop “was obliged to dwell at some length upon the mischief which had grown out of the visionary plans of the French philosophers.… Then [their] infidelity was described, and [the] pernicious tendency of their schemes, both as they related to politics and morals, was painted in glowing colors.”
To Griswold’s eye, Jefferson “took every word to himself, and thought the Bishop was delivering a Philippic upon his theories, and visions.” Jefferson “blushed like a young girl of fifteen, and I make no doubt wished the Bishop and his prophecies at the devil.”
Along the mid-Atlantic, Jefferson partisans considered arming themselves to march on the capital. The denial of the popular will, Jefferson said privately, “opens upon us an abyss at which every sincere patriot must shudder.” Elbridge Gerry was told by “high authority” that Jefferson’s election “would put the constitution to the test.”
Rumors grew as days passed. “Some strange reports are circulating here of the views of the Federal party in the present desperate state of its affairs,” Monroe wrote Jefferson from Richmond on Tuesday, January 6, 1801. “It is said they are resolved to prevent the designation by the H. of Reps. of the person to be president, and that they mean to commit the power by a legislative act to John Marshall, Samuel A. Otis or some other person till another election.”
Lawmakers in Richmond were debating whether to remain in session, Monroe said, “to be on the ground to take such steps as might be deemed proper to defeat” any measure that denied Jefferson the presidency.
Everyone was to be watched. “Unfriendly foreign ministers should be observed,” wrote Tench Coxe on Saturday, January 10, 1801. “The professions of Federalists should not be too hastily credited.… It is a case wherein we cannot fear too far, if we preserve our firmness, and temper.”
With the outcome uncertain, the Federalists struck while they could, passing the Judiciary Act of 1801 in February. If Jefferson or Burr prevailed, who knew when the Federalist interest might again have the power to act?
Taking advantage of the hour, then, the Congress passed, and President Adams signed, a bill that increased the number of federal judicial officers, strengthened and expanded the circuit courts, and reduced the number of Supreme Court justices from six to five, thus depriving any Republican president of at least one appointment. “The Judiciary bill has been crammed down our throats without a word or letter being suffered to be altered,” Senator Stevens Thomson Mason of Virginia wrote to Senator John Breckinridge of Kentucky.
Jefferson believed the law, coming so late in Adams’s term, was a “parasitical plant engrafted at the last session on the judiciary body” and that the Federalist appointees to the new positions had “retired into the judiciary as a stronghold … and from that battery all the works of republicanism are to be beaten down and erased.” Such appointees became colloquially known as Adams’s “midnight judges,” and there were “midnight appointments” to lesser offices as well.
The most significant decision Adams made in these months was to name John Marshall, his secretary of state, as chief justice of the United States, giving a Jefferson foe lifetime tenure as head of one o
f the three branches of the federal government. The Federalists believed Jefferson’s Republicans to be every bit as dangerous as Jefferson’s Republicans believed the Federalists to be.
Adams and Marshall met in January 1801, while Marshall was still secretary of state, to discuss possible successors to Chief Justice Oliver Ellsworth, who was retiring. Though Adams had sought to reenlist John Jay, the first chief justice, to return to the bench, Jay chose to remain in the New York governorship.
“Who shall I nominate now?” Adams asked Marshall.
As Marshall recalled the conversation, he told the president that he had no counsel to give.
“I believe I must nominate you,” Adams said.
Marshall recalled being “pleased as well as surprised, and bowed in silence.”
The U.S. Senate confirmed the president’s nomination in the last week of January 1801.
In the weeks after Marshall’s confirmation, Republicans took care to encourage one another about the presidential election. “Mr. Jefferson is undoubtedly the rock of our political salvation from which no concurrence of circumstances … should compel us to depart,” Caesar A. Rodney of Delaware wrote Joseph Nicholson on Tuesday, February 17, 1801. “We should consider ourselves as indissolubly bound to him, by a Gordian knot which no intrigue should untie and no force cut asunder.”
Jefferson himself was worried enough about talk of installing the president pro tempore of the Senate in the President’s House that he paid a call on Adams with one subject in view: “to have this desperate measure prevented by his [veto].”
Hearing Jefferson’s business, Adams flew into a temper. “He grew warm in an instant,” Jefferson recalled, and replied “with a vehemence he had not used towards me before.”
“Sir,” Adams said to Jefferson, “the event of the election is within your own power,” arguing that Jefferson need only commit to certain Federalist policies to end the suspense and become president: The government, Adams said, would “instantly be put in your hands.”
“Mr. Adams,” Jefferson replied, “I know not what part of my conduct, in either public or private life, can have authorized a doubt of my fidelity to the public engagements. I say however I will not come into the government by capitulation. I will not enter on it but in perfect freedom to follow the dictates of my own judgment.”
“Then things must take their course,” Adams said, and the conversation ended.
It was a bitter, uncomfortable moment—“the first time in our lives we had ever parted with anything like dissatisfaction,” Jefferson recalled. Such was the season; such were the stakes.
From Pennsylvania, Governor Thomas McKean saw every possibility. “Interest, character, duty, love of country all conspire to insure [Jefferson’s election]; but I have been told that envy, malice, despair and a delight in doing mischief will prompt the Anglo-Federalists to set all other considerations at nought, and that it is intended to so manage as to keep the states equally divided, in order that Congress may in the form of a law appoint a President for us until a new election shall take place.” Though he said he could not believe such a thing could happen, he also believed in preparing for the worst.
“But should it be possible that gentlemen will act the desperate part that has been suggested by the partisans of anarchy and civil war,” McKean asked, by what authority would they be acting? To install anyone other than Jefferson or Burr would be unconstitutional, an act of usurpation.
McKean was clear about his intentions. “If bad men will dare traitorously to destroy or embarrass our general government and the union of the states, I shall conceive it my duty to oppose them at every hazard of life and fortune; for I should deem it less inglorious to submit to foreign than domestic tyranny.” The Pennsylvania militia was to be readied, McKean said, and arms prepared for “upwards of twenty thousand,” including “brass field-pieces etc. etc.” The governor was also ready to issue an order “for the arresting and bringing to justice every member of Congress, or other person found in Pennsylvania, who should have been concerned in the treason.”
A few fires at official buildings in Washington raised suspicions. “The burning of the war-office last month and now the treasury have probably been accidental, but as these events were predicted in Philadelphia and subjects of conversation in July last, suspicions of design will be entertained by many,” McKean said. Reporting the fires at the Treasury and War offices, Roger Griswold observed, “It seems heaven has pointed its curses against our national establishments in this city of the wilderness.”
The tension of the time exhausted Jefferson. “I long to be in the midst of the children, and have more pleasure in their little follies than in the wisdom of the wise,” he wrote Patsy. “Here too there is such a mixture of the bad passions of the heart that one feels themselves in an enemy’s country.”
The House planned to meet on Wednesday, February 11, 1801, to choose a president. “The approach of the 11th Feb. makes the people here breathe long with suspense, their anxiety is so great,” wrote Thomas Mann Randolph, Jr., of Albemarle County.
As the lawmakers gathered, the mysteries only deepened. According to notes Jefferson made on Thursday, February 12, of a conversation with Edward Livingston, there was shadowy talk of deal making. “Edward Livingston tells me that [Federalist James] Bayard applied today or last night to Gen. 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.… Bayard in like manner tempted Livingston.… To Dr. Linn of New Jersey they have offered the government of New Jersey.”
Bayard soon shifted tack and went to Maryland Republican congressman Samuel Smith with a proposition for Jefferson. Bayard later claimed that he explained to Smith what could be done to resolve the impasse and give Jefferson the presidency. If Jefferson would pledge not to dismiss all Federalist officeholders and to preserve the navy and the public debt, all would be well. According to Bayard, Smith went to Jefferson, received Jefferson’s acquiescence, and then returned to Bayard with those answers.
“This is absolutely false,” Jefferson wrote later. “No proposition of any kind was ever made to me on that occasion by Genl. Smith, nor any answer authorized by me.” Smith supported Jefferson’s version of events, saying that he had discussed broad policy questions with Jefferson but had not told Jefferson why he was asking. Smith’s assurances to Bayard, then, were Smith’s interpretations of Jefferson’s intentions, not a proffer.
Did Jefferson strike a deal to win the presidency? His denials are firm, but the election was unfolding in a charged atmosphere in which no one spoke of anything else. It seems likely that Bayard believed he had sufficient assurance that Jefferson was not going to tear down the whole works of the previous dozen years. With Smith’s representations—however specific or explicit they were—in mind, Bayard moved to end the drama and deliver the presidency to Jefferson.
By his own account the Federalist terms were well known to Jefferson, who had been invited at least twice—once by President Adams himself—to calm the worst of the opposition’s fears. New York senator Gouverneur Morris encountered Jefferson one day outside the Senate chamber. “He stopped me and began a conversation on the strange and portentous state of things then existing, and went on to observe that the reasons why the minority of states were so opposed to my being elected, was that they apprehended that 1. I should turn all Federalists out of office, 2. put down the Navy 3. wipe off the public debt and 4. that I need only to declare, or authorize my friends to declare, that I would not take these steps, and instantly the event of the election would be fixed.”
Standing on the steps, absorbing Morris’s words, Jefferson replied: “I told him that I should leave the world to judge
of the course I meant to pursue by that which I had pursued hitherto; believing it to be my duty to be passive and silent during the present scene; that I should certainly make no terms, should never go into the office of President by capitulation, nor with my hands tied by any conditions which should hinder me from pursuing the measures which I should deem for the public good.”
Jefferson knew what he was passing up. “It was understood that Gouverneur Morris” could have swayed “another vote and decided the election,” Jefferson recalled.
Jefferson had similar exchanges with Adams in their meeting on Pennsylvania Avenue and again with the Federalist Dwight Foster, who called on Jefferson at Conrad and McMunn’s to seek assurances. Yet Jefferson had already said what he had to say, and that was as far as he was willing to go. “I do not recollect that I ever had any particular conversation with General Samuel Smith on this subject,” Jefferson wrote. “Very possibly I had, as the general subject and all its parts were the constant themes of conversation in the private tete a tetes with our friends. But certain I am that neither he, nor any other Republican ever uttered the most distant hint to me about submitting to any conditions or giving any assurances to anybody; and still more certainly was neither he nor any other person ever authorized by me to say what I would or would not do.”
Hamilton understood this. “Jefferson is to be preferred” over Burr, he said. “He is by far not so dangerous a man; and he has pretensions to character.” Jefferson, Hamilton noted, “is as likely as any man I know to temporize—to calculate what will be likely to promote his own reputation and advantage; and the probable result of such a temper is the preservation of systems, though originally opposed, which being once established, could not be overturned without danger to the person who did it.” Other Federalists agreed. “Mr. Jefferson is a man of too much virtue and good sense to attempt any material change in a system which was adopted by our late beloved Washington, and has been since steadily pursued by Mr. Adams, and which has preserved our country in peace and prosperity for 12 years, during which period almost the whole civilized world has been deluged in blood,” William Fitzhugh, a Virginia Federalist who had been close to George Washington, wrote in January 1801.
