And now, in the spring of 1804, they were pushing their way west against the current of the mighty Missouri. It was hard going. Boats continued to snag on invisible obstacles. Tow ropes parted. A mast broke. Mosquitoes drew blood. Stomachs upheaved and boils broke out. Shore parties fought their way through dense forests and thickets as they hunted game and botanical specimens and herded the expedition’s horses. At night the party usually camped in tents by the river, after trading and dickering with friendly Indians. It was not a company of saints or heroes. Men returned to camp drunk from nearby forays, spoke “disrespectfully” to their commanders, went about without leave, slept on guard duty, stole whiskey from the company keg, even deserted. But this was an army unit and discipline was swift and sure. After courts-martial, men were lashed with switches 25 to 100 times on their bare backs. And painfully, steadily, determinedly, they moved upstream through the Dakotas.
The expedition stopped repeatedly for long powwows with Indian chiefs. Lewis had clear instructions from Jefferson about dealing with the natives: to “treat them in the most friendly & conciliatory manner which their own conduct will admit; allay all jealousies as to the object of your journey, satisfy them of it’s innocence, make them acquainted with the position, extent, character, peaceable & commercial dispositions of the U.S., of our wish to be neighborly, friendly & useful to them, & of our dispositions to a commercial intercourse with them.” A chief wishing to visit Washington would be conveyed there at public expense. If any of the chiefs “should wish to have some of their young people brought up with us, & taught such arts as may be useful to them, we will receive, instruct & take care of them.” Visits of chiefs or young people “would give some security to your own party,” Jefferson added.
In fact, the explorers found the Indians on the whole friendly but most perplexing. Otos, Omahas, Missouris, Sioux, Pawnees, Poncas, Arikaras…the tribes seemed of endless number and variety, and many were divided into complex subgroups. The tribes along the river seemed to coexist in near-anarchy; Sioux chiefs thought they were at war with twenty tribes and at peace with eight, but they were not sure. To the unknowing Americans, Indian behavior seemed erratic and unpredictable. Some of the natives were friendly, some hostile; some thieving and some honest; some abstemious, some sottish; some communicative, some not. At best communication was poor, in part because of the numberless dialects. Lewis had a set technique for dealing with the natives: to announce at a parley that he had been sent by the great white father to assert American sovereignty and to receive the fealty of the red children; then to distribute American medals and flags and lavish gifts of beads, cloth, trinkets, and badges.
But two cultures were meeting along the banks of the Missouri, and they often clashed. The whites were appalled by the natives’ craving for the more putrid meat, even the intestines and offal of long-decaying animals; appalled and delighted by their definition of hospitality as providing guests with food, presents, and “temporary wives,” most often the sisters or spouses of their hosts; amazed by their ability to play, stark naked, lacrosse on ice at 25 degrees below zero. The Indians for their part gaped at these creatures with white skins and hair all over their faces; and gaped even more at the black man York. In village after village natives crowded around the slave; some would wet their fingers and try to rub away his blackness to find the “natural” color underneath. The Indians were dismayed by some of the whites’ behavior. An Arikara chief said, after watching a flogging, that it was wrong to humiliate persons like that; the chief said that in his nation, according to Clark’s report, they “never whiped even their Children from their burth.” In such cases, the chief added, they would simply put the man to death.
After wintering in well-fortified huts at the great bend of the Missouri in (present) North Dakota, the Americans struck out in the spring of 1805 toward the western mountains. The going became more and more arduous and perilous as the river narrowed. The big pirogue had to be abandoned, as the men continued in canoes and keelboats. They coped with fearsome grizzlies, rattlesnakes, exhausting portages around falls, overturned boats, deep-biting mosquitoes, scanty game and hence inadequate food. They were now in almost unknown country, and desperately anxious to find the best route to avoid being caught in the high mountains in the winter. They were guided by long reconnoiters of Missouri tributaries and also by a new member of the party, Sacagawea, the very young wife of a Frenchman who also joined the expedition. Captured by the Minnetarees a few years earlier and traded from warrior to warrior and finally to the white trader, the squaw-wife vaguely remembered some of the territory of the upper reaches of the Missouri. Pregnant at the time, she bore her baby stoically on the trip and carried him until the end.
Toiling up through the mountain valleys, desperately making friends with Indian tribes to gain information on passages west, the explorers in a final convulsive effort made their way through the mountain passes of the continental divide, and groped for and found the tributaries of the Columbia River. Boating down the roaring Columbia was perilous but at least comparatively rapid, and by late fall the party reached the coast and stared, elated, at the Pacific. After enduring a wet and depressing Oregon winter, they headed back east over the Rockies and then split in two, as Lewis followed the Missouri back and Clark led a party along the Yellowstone, all in an attempt to bring back to Mr. Jefferson as many observations and specimens as possible. Hardly a day on the return trip, as on the outward one, was free of troubles—illness, skirmishes with Indians, lost or stolen horses, encounters with animals, bad falls from horses or cliffs—but the two parties reunited on the Missouri and then moved rapidly down the muddy river to St. Louis, and home.
The expedition had been extraordinarily successful, an almost unbelievable combination of planning, skill, resourcefulness, courage, persistence, faith, and colossal luck. Despite the endless perils, ranging from grizzly bears to venereal disease, not a man had been lost, save for a victim of what was apparently appendicitis. The trip was a rare act of leadership on the part of Lewis and Clark, the kind of leadership that challenges, inspires, goads, and finally elevates followers, until they too become leaders. The two men, operating in remarkable harmony as coequals, turned out to be near-perfect choices to head the expedition, but success lay too with “ordinary” men who could make their own boats and shelter and moccasins and clothes and ammunition, with a slave who could cook, with a young Indian squaw who could help guide and translate. The journey was a monument to the potentials of the common people whom Jefferson idealized.
In St. Louis, early on the day after arriving, Lewis tore some blank sheets from his journal and wrote to the President:
“In obedience to your orders we have penetrated the Continent of North America to the Pacific Ocean and suficiently explored the interior of the country to affirm that we have discovered the most practicable communication which dose exist across the continent.” Lewis had journeyed east, to Charlottesville, before he received Jefferson’s reply:
“I received, my dear sir, with unspeakable joy your letter of Sep. 23 announcing the return of yourself, Capt. Clarke & your party in good health to St. Louis. The unknown scenes in which you were engaged, & the length of time without hearing of you had begun to be felt awfully.…” The President did not exaggerate. As the months had passed and fears mounted that the whole expedition had been lost to cold or starvation or Indians, he had grieved over his responsibility for the probable fate of these young men. Now they were back—and with all those specimens!
CHECKMATE: THE FEDERALIST BASTION STANDS
As good Virginia Republicans, Meriwether Lewis and William Clark were pleased to find on returning home in 1806 that their party and their patron had prospered. The Republican party was dominant in the presidency, in Congress, and in most of the state executive offices and legislatures. Unanimously renominated by the Republican congressional caucus early in 1804, Jefferson had gone on to defeat Charles Cotesworth Pinckney by the lopsided vote of 162 to 14. Th
e Federalist candidate had lost his own state and all of New England save for Connecticut. Yet if most of the old Federalist strongholds were in ruins, a most powerful bastion of a different kind remained for the party of Washington and Adams and Pinckney. There the President had sustained a defeat, the magnitude of which was hardly recognizable even to Jefferson himself.
That defeat had begun with an incident during the days of transition between Presidents Adams and Jefferson. In his famous “midnight appointments,” Adams stayed up late—probably to about 10 P.M.—on the eve of Jefferson’s Inaugural, busily signing commissions that would provide jobs for a host of deserving Federalists. The next day, after John Marshall swore Jefferson into the presidency, the Chief Justice at the request of the new President stayed on briefly as Secretary of State until James Madison could take over. And so it happened that a good Federalist still was running the State Department when John Adams’ “midnight” commissions came over to the department to be duly sent out to the waiting appointees. But Marshall had never been wholly attentive to detail, and there was much on his mind that day, since he was in the remarkable situation of serving as both Chief Justice and chief cabinet member. He neglected to send out a number of the commissions, and some time later Jefferson, who happened to be at the State Department, found the commissions there, still lying on a table.
With elation the President realized what he held in his hands. He was already angry at Adams’ last-minute effort to pack the government with Federalists—the “one act of Mr. Adams’s,” he later wrote Abigail Adams, which “ever gave me a moment’s personal displeasure.” He was also provoked by the fact that neither Washington nor Adams had appointed a single Republican to the entire federal judiciary, and by the judiciary Act of 1801, which the Federalists had rushed through Congress just before Adams left office and the Federalists lost control of the legislature. That act had relieved the justices of circuit court duty, created sixteen new circuit court judges, and reduced the number of Supreme Court justices from six to five at the next vacancy—which meant that the new President would be delayed indefinitely in making his first high court appointment. What to do about this kind of court packing? Jefferson resolved to have the Judiciary Act repealed as soon as possible. He would make a few recess appointments of his own. And he would issue pardons to persons punished under the Alien and Sedition Acts.
Meantime, here were these undelivered commissions. Why deliver them? He instructed Secretary of State Madison not to. Of all Jefferson’s countermoves against his foes’ judiciary packing, this seemed the easiest and most innocuous. It turned out to be the most consequential.
At this point Republican leadership suspected that the high Federalists, beaten at the polls, were already plotting under Marshall to entrench themselves in the judiciary. The Republicans were quite right, except that this was no secret plot but rather an open, deliberate, carefully worked out strategy. And certainly Marshall was the leader. Even apart from his hostility to Republicans—especially Republicans in his own state of Virginia—he had long hoped that the federal judiciary would take its rightful place as one of three coordinate but independent branches of the new government. Somehow that had not happened. The first Chief Justice, John Jay, was an illustrious Federalist leader who had felt that serving as United States Minister to the Court of St. James’s and even campaigning (successfully) for governor of New York were wholly compatible with holding his high judicial office. His successor, Oliver Ellsworth, had also been Minister to France. No harm had seemed to result, since the court heard few cases and rarely sought to exercise much influence. But Marshall was resolved to change all this. And now he had tenfold reason to do so, for the fanatical Republicans had taken over both the executive and legislative branches, and as his fellow Federalist Gouverneur Morris admitted, in “a heavy gale of adverse wind” they could hardly “be blamed for casting many anchors to hold their ship through the storm.” The biggest anchor would lie in the Supreme Court, until the Federalists could regain control of both presidency and Congress.
Thus the scene was laid for a collision between Marshall and Jefferson. People marveled that two men so alike—both lawyers, Virginians, ex-revolutionaries, politicians, and blood cousins to boot—could so dislike each other. But political ambition and ideology can be thicker than blood. As a nationalist and conservative Marshall had been drawn steadily into the Federalists’ orbit, while Jefferson had clung to the party of states’ rights and popular sovereignty. Determined though he was to assert judicial independence, however, the Chief Justice knew that he had to move with care. Unlike the President, he had no troops, no arms. Unlike Congress, he and his brethren were not chosen by the voters.
At least he could take comfort from the justices, stout Federalists all, who flanked him on the high court. The most senior associate justice, William Cushing of Massachusetts, had faced down Shays’s rioters years before and was one of the few American judges still to wear a wig, English style. William Paterson of New Jersey, main author of the famous compromise between the large and small states in the 1787 constitutional convention, was a former governor of his state. Samuel Chase of Maryland, a “high Federalist” if there ever was one, a former Son of Liberty, long a nationalist, was a brilliant ideologue who had already mapped out the frontiers of national power in court decisions. Alfred Moore of North Carolina was a soldier and lawyer. Bushrod Washington was the first President’s nephew and an old and close friend of Marshall’s.
The Chief Justice could marshal and mobilize his brethren; he could not manipulate them. Like any leader of a political collectivity, he had to pick his way between the wings of his court. Chase, the judicial firebrand, warned him that his conscience had to be satisfied on the question of judicial power, even though “my ruin should be the certain consequence,” while the moderates on the court urged him to be cautious in antagonizing the political branches. Carefully the Chief Justice analyzed the way in which he could establish the dignity and power of the high court. Dignity was hard to come by, for the brethren convened in a drab room, with a small fireplace, in the Senate wing of the Capitol. But Marshall would bide his time and pick his judicial ground, however insignificant the particular case might be, for establishing the power of the court against the political branches.
Jefferson’s political position somewhat resembled Marshall’s. He too sought to mobilize the power of his party in the two political branches, but he also had to pick his way between the wings of his party in and outside Congress. Exhorting him to take on the Federalist judicial stronghold in direct political combat were a group of “sweeping Republicans” centered especially in the House. One of the most militant leaders, William Branch Giles of Virginia, warned that the great revolution was “incomplete, so long as that strong fortress is in possession of the enemy.” Judicial—and hence Federalist—power must be extirpated root and branch. Then too, party loyalists were demanding jobs, and nothing was more enticing than a lifelong judicial appointment.
On the other hand, moderate Republicans were loath to assault the judiciary, in part because they respected a measure of judicial independence, in part because they had little stomach for confronting John Marshall. Jefferson, moreover, was still intent on winning over and retaining the support of moderate Federalists, and nothing would drive them back into the hands of the Federalist party faster than a determined attack on the Supreme Court.
Typically, the President faced this problem by taking one step at a time. The first was obviously to repeal the partisan Federalist Judiciary Act of 1801. When Senator John Breckinridge of Kentucky, an old ally of Jefferson’s from the days of the Virginia and Kentucky resolutions, introduced a repeal bill in January 1802, a furious battle broke out, as the Federalists accused their adversaries of seeking to destroy the independence of the judiciary. Clearly the Federalists would defend their bastion to the last man, but in the Senate voting the Republicans had the last man on the floor, as the bill passed 16 to 15. Giles and Randolph mobili
zed a strong vote for the bill in the House. Republicans in Congress relied not only on traditional arguments against “judicial tyranny” but on the fact of Jefferson’s clear support for the measure; this was the President’s bill.
The Republicans’ next step was even more controversial—a bill that by manipulating the scheduling of Supreme Court terms would in effect delay the next session of the high court for over a year, until February 1803. This maneuver would thwart any effort by the court to invalidate the repeal act before it could take effect. This bill passed too. Incensed and indignant, the justices considered the extreme step of refusing again to ride circuit and thus declaring the act unconstitutional. Chase in particular wanted to fight back, on the ground that this kind of meddling by President and Congress in the internal functions of the court would cripple it. Marshall was tempted to follow the strategy of defiance, but other members of the court took a more conciliatory position, he needed a united bench behind him, and he had to be sure of his ground. He waited for a better opportunity to strike back.
That opportunity was already developing in the form of a routine plea by a Washington-Federalist named William Marbury. An applicant for the position of justice of the peace, Marbury had had the misfortune to be one of Adams’ midnight appointments, the commission for which had fallen into Jefferson’s hands. What could be more natural for Marbury than to turn for relief to the court headed by the very man, John Marshall, who had neglected to deliver him his commission? Marbury went directly to the high court with a plea that the court order the Secretary of State—now James Madison—to deliver him his commission, on the ground that the original Judiciary Act of 1789 authorized the court, in situations when federal officials were not carrying out required “ministerial” acts, to issue writs of mandamus requiring those officials to perform the said duties.
American Experiment Page 26
