EXPIRING FEDERALISM IV. EXPIRING FEDERALISM canism 331 The Federalist leaders had fallen into foolish blunders (like the house tax) because they did not understand popular feeling; and they had attempted reactionary and Federalism despotic measures (like the Sedition Act) because out of touch they did not believe in popular government. They with Ameriwere out of touch with the most wholesome tendency of the times. The brief reactionary movement of 1783-1793 was dying, and the people had resumed their march toward democracy. Patriotism had temporarily rallied the nation to the support of the Federalist administration when that administration had been insulted by the arrogant French Directory; but with the passing of that foreign danger, passed also the chance of further Federalist rule. For the election in 1800, the Federalists tried to bolster their cause by inducing Washington to be a candidate once more. Weary and discouraged, Washington re- The election fused, affirming that his candidacy would not draw of 1800 a vote from the anti-Federalists. This refusal, followed by Washington's sudden death, threw the Federalists back upon Adams, whose old Revolutionary popularity made him still their most available man. The Republican candidates were Jefferson and Burr (the latter a sharp New York politician). Lacking true majorities the Federalists strove to manufacture false ones. The electoral vote finally stood only 73 to 65 against them; but 20 of their 65 electors they got by disreputable trickery, against the will of the sharp people. Of several instances, only one can be told practice here. In Pennsylvania the new House of Representatives was strongly Republican; but hold-over members, from the warelection, kept the Senate Federalist. So far, that State had always chosen its electors by popular vote. This time the Senate would not agree to the necessary law (since that method would give most of the districts to the Republicans). 1 In a new constitution, in 1790, Pennsylvania had exchanged its one-House legislature for the prevalent two-chambered system. There being no law on the matter, it was then necessary for the legislature itself to choose electors. All elections by that body had been by joint ballot, but the Senate now insisted upon a concurrent vote. It finally compromised upon a scheme which allowed it to name seven of the fifteen electors. This shabby trick-a deliberate violation of a popular mandate - was loudly applauded by the Federalists as lofty patriotism. The Philadelphia United States Gazette said of the Federalist Senators: "[They] deserve the praises and blessings of all America. They have checked the mad enthusiasm of a deluded populace. They have saved a falling world." When it was plain that the people had turned the Federalists out of all the elective branches of the government, the expiring and repudiated Congress and President used the few days left them unscrupulously to entrench their party in the appointive Judiciary, "that part of the government upon which all the rest hinges." The Act of 1801 The infamous Judiciary Act of 1801 had three main parts. (1) To lessen Jefferson's chances of making appointments to the Supreme Court it provided that the first vacancy should not be filled, but that the number of Justices should at that future time be reduced by one. (2) Circuit courts were created, with a distinct body of judges, and the number of circuits was increased to six, with three judges for each except the last. This made places for sixteen new judges, to be immediately appointed by Adams in the remaining nineteen days of his administration. (3) The number of District courts was increased from thirteen to twenty-three, making places for eight more such appointments. In addition, of course, there were clerks and marshals to be named for all these new courts. The law of 1789 had created three circuits, but had arranged for courts consisting of Justices of the Supreme Court "on circuit," aided by some District judge. The Federalists justified the new bill flimsily by urging the need of the separate Circuit courts to protect the "overworked" "MIDNIGHT JUDGES" 333 Supreme Court Justices. But, in plain fact, the Supreme Court had never been overworked. It had then only ten cases before it, and, in the preceding ten years of its life, it had had fewer cases than are customary in one year now. The weakness of the Federalist argument appears in the fact that the bill was repealed at once (page 358) and the old order restored and maintained seventy years longer. Adams was not able to make his last appointments under the new law until late on the last evening of his term of office; and the judges so appointed have gone in The "Midhistory by the name of "the Midnight Judges." night One of the worst features of a thoroughly bad Judges" business was that these appointments were used to take care of Federalist politicians now thrown out of any other job. The people at the polls had repudiated certain men for government positions; but President Adams, the people's representative, thought it proper to place those men in more important government positions for life, where the people could not touch them. Such a practice is repugnant to every principle of representative government. The Constitution prevented the appointment of members of the expiring Congress to any of the new judgeships just created by them (Art. I, sec. 6); but this provision was evaded with as little compunction as went to thwarting the will of the people. Former District judges were promoted to the new Circuit judgeships, and their former places were filled by "retired" Federalist congressmen. The Federalists, exclaimed John Randolph of Virginia, had turned the judiciary into “a hospital for decayed politicians." The election in the House The desperate Federalists tried also to rob the majority of its choice for the Presidency. This led almost to civil war. Jefferson and Burr had received the same electoral vote. Every Republican had intended Jefferson for President and Burr for second place; but, under the clumsy provision of the Constitution (page 318) the election between these two was now left to the old House of Representatives, in which the Federalists had their ex of Repre sentatives piring war majority. Accordingly the Federalists planned to create a deadlock and prevent any election until after March 4. Then they could declare government at a standstill and elect the presiding officer of the old Senate as President of the country. Jefferson wrote at the time that they were kept from this attempt only by definite threats that it would be the signal for the Middle States to arm and call a convention to revise the Constitution. The Federalists then tried another trick which would equally have cheated the nation of its will. The House of Representatives had the legal right to choose Burr for President, instead of Jefferson. It seemed bent upon doing so; but Hamilton rendered his last great service to his country by opposing and preventing such action. So, after a delay of five weeks, and thirty-six ballotings, the House chose Jefferson President. Early in the next Congress the Twelfth amendment was proposed and ratified, for naming President and Vice President separately on the electoral ballots. Federalist Cabot, The fatal fault of the Federalist leaders was their fundamental disbelief in popular government. After Jefferson's victory, in 1800, this feeling found violent expresdisbelief in sion. Fisher Ames, a Boston idol, declared: democracy "Our country is too big for union, too sordid for patriotism, too democratic for liberty. Its vice will govern it.. This is ordained for democracies." another Massachusetts leader, affirmed, "We are democratic altogether, and I hold democracy, in its natural operation, to be the government of the worst." And Hamilton is reported to have exclaimed, pounding the table with clenched fist: "The people, sir! Your people is a great beast." Dennie's Portfolio, the chief literary publication of the time, railed at greater length: 1 The new House, elected some months before, but not to meet for nearly a year longer, was overwhelmingly Republican; but, by our awkward arrangement, the repudiated party remained in control at a critical moment. 2 Hamilton, does not seem to have felt the enormity of the proposed violation of the nation's will; but he knew Burr to be a reckless political adventurer, and thought his election more dangerous to the country than even the dreaded election of Jefferson. DISBELIEF IN DEMOCRACY 335 "Democracy . . . is on trial here, and the issue will be civil war, desolation, and anarchy. No wise man but discerns its imperfections; no good man but shudders at its miseries; no honest man but proclaims its fraud; and no brave man but draws his sword against its force." And Theodore Dwight of Connecticut (brother of the President of Yale College), in a Fourth of July oration, declaimed: "The great object of Jacobinism. . . is to destroy every trace of civilization in the world, and force mankind back into a savage state. . . . We have a country governed by blockheads and knaves; the ties of marriage are severed and destroyed; our wives and daughters are thrown into the stews; our children are cast into the world from the breast and forgotten; filial piety is extinguished; and our surnames, the only mark of distinction among families, are abolished. Can the imagination paint anything more dreadful on this side hell?" It was but a step from such twaddle to suspect Jefferson of plotting against the property or the life of Federalist leaders. In Gouverneur Morris' diary for 1804 we find the passage: "Wednesday, January 18, I dined at [Rufus] King's with General Hamilton. . They were both alarmed at the conduct of our rulers, and think the Constitution about to be overthrown: I think it already overthrown. They ALEXANDER HAMILTON. From the Trumbull portrait, in the Yale School of Fine Arts. 1 A term borrowed from the French Revolution, and applied to the Republicans by their opponents, much as "Bolshevist" has been used in recent years. |