University of Virginia Library

CHAPTER III.

IN HARNESS.

In the autumn of 1800 the presidential election
took place, which overthrew the federalist
sway, and brought the republican party into
power. As every reader knows, Jefferson and
Burr received an equal number of electoral
votes, a result which, under the Constitution as
it then stood, threw the choice into the House
of Representatives, where the vote must be
taken by States. This business absorbed attention
and left little opening for members to put
themselves forward in debate. Randolph, like
the rest, could only watch eagerly and write
letters, two of which, addressed to Joseph H.
Nicholson, then for a few days absent from his
seat, are curious as showing his state of mind
towards Mr. Jefferson, the idol of his party.
The first letter is dated December 17, 1800:—

These ideas seem to have startled Nicholson,
who replied with a remonstrance, while in the
mean time public opinion in Washington quickly
decided that Jefferson alone could be accepted
as the republican candidate. On January 1,
1801, a fortnight later, Randolph wrote with a
considerable change of tone: —

Then, after explaining that the will of the
people would in any case decide his conduct
and preferences, he continued: —

This was sound doctrine for a man of the
people, who held no office and had no object
in politics beyond the public good; but in a
man himself aspiring to rival the demi-god,
and who instinctively disliked what other men
adored, it was open to misinterpretation. Mr.
Jefferson was quick — no man was quicker —
to feel a breath of coldness in his supporters.
What would he have thought had Nicholson
shown him these letters?

For the present Randolph's independence
roused no ill-feeling or suspicion. Mr. Jefferson
got his election by the withdrawal of federalist
votes. The session passed without bringing
to Randolph any special opportunity for
distinguishing himself; and on March 4, 1801,
the new administration was organized. In
every way it was favorable to Randolph's ambition.
The President was a Virginian and a
blood relation, although perhaps not on that
account dearer to Randolph's affections; the
Secretary of State was a Virginian; and, still
better, the appointment of Gallatin as Secretary

of the Treasury removed from the House
its oldest and ablest leader.

The summer of 1801 was passed quietly at
Bizarre, while Mr. Jefferson was getting his
new administration into order, and preparing a
series of measures intended to purify the Constitution
and restore the States to their proper
functions. On July 18, 1801, Randolph writes
thus to his friend Nicholson: —

In other words, if Mr. Jefferson did not prove
reformer enough, Randolph would do his own
reforming, and wished for Nicholson's help.
Here already is the germ of his future development
and the clue to his erratic career. The
writer goes on: —

He had passed the last session in the same
house with the Nicholsons, and wished to do so
again: —

And finally comes a significant little postscript:
"What think you of the New Jersey supervisor?"
The New Jersey supervisor was
James Linn, a member of the last Congress,
whose doubtful vote decided the State of New

Jersey for Jefferson, and who now received his
reward in the profitable office of supervisor.
Randolph seems to have questioned the perfect
disinterestedness of the transaction on either
side.

This glimpse of his private life shows the
spirit in which he took up his new responsibilities.
He prided himself on independence.
These old republicans of the south, Giles,
Macon, Nicholson, Randolph, and their friends,
always asserted their right to judge party
measures by their private standard; and to vote
as they pleased, nor was this right a mere
theory, for they exercised it freely, and sometimes
fatally to their party interests. Whether
they were wise or foolish statesmen, the difference
between them and others was simply in
this pride, or as some may call it, self-respect,
which made them despise with caustic
contempt politicians who obeyed party orders,
and surrendered their consciences to a caucus.
Even in 1801 Randolph would probably have
horsewhipped any man who dared tell him he
must obey his party, but the whip itself would
not have expressed half the bitter contempt
his heart felt for so mean a wretch. To be
jealous of executive influence and patronage
was the duty of a true republican, and to wear
the livery of a superior was his abhorrence.

Randolph, from the first, was jealous of Mr.
Jefferson. Whether he was right or wrong
is the riddle of his life.

When Congress met, December 7, 1801, the
House chose Nathaniel Macon for its Speaker.
Honest, simple-minded, ignorant as a North
Carolinian planter in those days was expected
to be, and pure as any Cincinnatus ever bred
by Rome, Macon was dazzled and bewitched
by the charm of Randolph's manner, mind, and
ambition. Few southern men could ever resist
Randolph's caresses when he chose to caress,
and the men who followed him most faithfully
and believed in him to the last were the
most high-minded and unselfish of southerners.
Macon was already on his knees to him
as before an Apollo, and in spite of innumerable
rude shocks the honest North Carolinian
never quite freed himself from the strange
fascination of this young Virginian Brutus,
with eyes that pierced and voice that rang
like the vibration of glass, and with the pride
of twenty kings to back his more than Roman
virtue. This conception of Randolph's
character may have shown want of experience,
but perhaps Macon had, among his simple theories,
no stronger conviction than that Randolph
was, what he himself was not, a true man of
the world. At all events, the Speaker instantly

made his youthful idol chairman of the Ways
and Means Committee and leader of the House.
Thus, from the start, Randolph was put in the
direct line of promotion to the cabinet and the
presidency. During the whole of Mr. Jefferson's
first administration, from 1801 to 1805,
he was on trial, like a colt in training. Long
afterwards Mr. Gallatin, in one of his private
letters, ran over the list of candidates for honors,
favored by the triumvirate of Jefferson,
Madison, and himself: "During the twelve
years I was at the Treasury I was anxiously
looking for some man that could fill my place
there and in the general direction of the national
concerns; for one, indeed, that could replace
Mr. Jefferson, Mr. Madison, and myself.
Breckenridge of Kentucky only appeared and
died; the eccentricities and temper of J. Randolph
soon destroyed his influence;" so that
Mr. William H. Crawford of Georgia became
at last the residuum of six great reputations.

Randolph began, like Breckenridge, with
marked superiority of will, as well as of talents,
and ruled over the House with a hand
so heavy that William Pitt might have envied
him. Even Mr. Jefferson in the White House,
wielding an influence little short of despotic,
did not venture to put on, like Randolph, the
manners of a despot. Outside the House, however,

his authority did not extend. In the Cabinet
and in the Senate other men overshadowed
him, and some dramatic climax could hardly
fail to spring from this conflict of forces. The
story of Randolph's career as a party leader
marks an epoch; round it cluster more serious
difficulties, doubts, problems, paradoxes, more
disputes as to fact and theory, more contradictions
in the estimate to be put on men called
great, than are to be found in any other part
of our history. Elsewhere it is not hard for
the student to find a clue to right and wrong;
to take sides, and mete out some measure of
justice with some degree of confidence; but in
regard to John Randolph's extraordinary career
from 1800 to 1806 it is more than likely that
no two historians will ever agree.

From the moment of his first appearance
in Congress, Randolph claimed and received
recognition as a representative of the extreme
school of Virginian republicans, whose political
creed was expressed by the Resolutions of
1798. Dread of the Executive, of corruption
and patronage, of usurpations by the central
government; dread of the Judiciary as an invariable
servant to despotism; dread of national
sovereignty altogether, were the dogmas
of this creed. All these men foresaw what the
people of America would be obliged to meet:

they were firmly convinced that the central
government, intended to be the people's creature
and servant, would one day make itself
the people's master, and, interpreting its own
powers without asking permission, would become
extravagant, corrupt, despotic. Accordingly
they set themselves to the task of correcting
past mistakes, and of establishing a new
line of precedents to fix the character of future
politics. Every branch of the government except
the Judiciary was in their hands. Mr.
Jefferson, Mr. Madison, and Mr. Gallatin were
their greatest leaders; Macon, the Speaker, was
heart and soul with them; Joseph H. Nicholson
and Randolph were Macon's closest friends, and
by these three men the House of Representatives
was ruled. If any government could be
saved, this was it.

No one can deny the ability with which Mr.
Jefferson's first administration began its career,
or the brilliant success which it won. During
twelve years of opposition the party had hammered
out a scheme of government, forging it,
so to speak, on the anvil of federalism, so as to
be federalism precisely reversed. The constitution
of the republican party was the federalists'
constitution read backwards, like a mediæval
invocation of the devil; and this was in
many respects and for ordinary times, the best

and safest way of reading it, although followed
for only a few years by its inventors, and then
going out of fashion, never again to be heard of
except as mere party shibboleth, not seriously
intended, even by its loudest champions, but
strong for them to conjure with among honest
and earnest citizens. In 1801, however, the
party was itself in earnest. Mr. Jefferson
and his Virginian followers thoroughly believed
themselves to have founded a new system of
polity. Never did any party or any administration
in our country begin a career of power
with such entire confidence that a new era of
civilization and liberty had dawned on earth.
If Mr. Jefferson did not rank among his followers
as one of the greatest lawgivers recorded
in history, a resplendent figure seated by the
side of Moses and Solon, of Justinian and
Charlemagne, the tone of the time much belies
them. In his mind, what had gone before
was monarchism; what came after was alone
true republicanism. However absurdly this
doctrine may have sounded to northern ears,
and to men who knew the relative character of
New England and Virginia, the still greater
absurdities of leading federalists lent some color
of truth to it; and there can be no doubt that
Mr. Jefferson, by his very freedom from theological
prejudices and from Calvinistic doctrines,
was a sounder democrat than any orthodox
New Englander could ever hope to be.
Thus it was that he took into his hand the
federalists' constitution, and set himself to the
task of stripping away its monarchical excrescences,
and restoring its true republican outlines;
but its one serious excrescence, the only
one which was essentially and dangerously monarchical,
he could not, or would not, touch; it
was his own office, — the executive power.

When Randolph spoke of a "substantial
reform," he meant that he wanted something
radical, something more than a mere change of
office-holders. The federalists had built up the
nation at the expense of the States; their work
must be undone. When he returned to Washington
he found what it was that the President
and the party proposed to do by way of restoring
purity to the system. In the executive department,
forms were to be renounced; patronage
cut down; influence diminished; the army
and navy reduced to a police force; internal
taxes abandoned; the debt paid, and its centralizing
influence removed from the body politic;
nay, even the mint abolished as a useless
expense, and foreign coins to be used in preference
to those of the nation, since even a copper
cent, the only national coin then in common
use, was a daily and irritating assertion

of national over state sovereignty. In the legislative
department there could be little change
except in sentiment and in their earnest wish
to heal the wounds that the Constitution had
suffered; but in the Judiciary! — there was
the rub!

The test of the party policy lay here. All
these Jeffersonian reforms, payment of debt,
reduction of patronage, abandonment of etiquette,
preference of Spanish dollars, touched
only the surface of things. The executive
power was still there, though it might not be so
visible; the legislative power was also there,
dangerous as ever even by its very acts of reform;
while, to exorcise these demons effectually,
it was necessary to alter the Constitution
itself, which neither Mr. Jefferson nor his party
dared to do. There was something not merely
ridiculous, but contemptible, in abolishing the
President's receptions and stopping the coinage
of cents, while that terrible clause was left in
the Constitution which enabled Congress to
make all laws it might choose to think "necessary
and proper" to carry out its own powers
and provide for the general welfare; or while
the Judiciary stood ready at any moment to interpret
that clause as it pleased.

Certainly Randolph's own wishes would have
favored a thorough revision of the Constitution

and the laws; he knew where the radical danger
lay, and would have supported with his
usual energy any radical measures of reform, but
it was not upon him that responsibility rested.
The President and the Cabinet shrank from
strong measures, and the northern democrats
were not to be relied upon for their support.
Moreover, the Senate was still narrowly divided,
and the federalists were not only strong
in numbers, but in ability. Perhaps, however,
the real reason for following a moderate course
lay deeper than any mere question of majorities.
The republican party in 1801 would not touch
the true sources of political danger, the executive
and legislative powers, because they themselves
now controlled these powers, and they
honestly thought that so long as this was the
case, states' rights and private liberties were
safe. The Judiciary, however, was not within
their control, but was wholly federalist, and
likely for many years to remain so, — a fortress
of centralization, a standing threat to states'
rights. The late administration had in its last
moments, after the election of Mr. Jefferson,
taken a series of measures meant not only to
rivet its own hold over the Judiciary, but to
widen and strengthen the influence of national
at the expense of state courts, by reconstructing
the judiciary system, reducing to five the
number of judges on the supreme bench, and
increasing the district courts to twenty-three,
thus creating as many new judges. This done,
the late President filled up these offices with
federalists; the Senate confirmed his appointments;
and, to crown all, the President appointed
and the Senate confirmed the ablest
of the Virginian federalists, the Secretary of
State, John Marshall, as Chief Justice of the
Supreme Court.

The new President was furious at this manœuvre,
and to the last day of his life never
spoke of what he called the "midnight appointments"
without an unusual display of temper,
although it is not clear that a midnight
appointment is worse than a midday appointment,
or that the federalists were bound to
please a President who came into office solely
to undo their work. The real cause of Mr. Jefferson's
anger, and its excuse, lay beneath the
matter of patronage, in the fact that the Judiciary
thus established was a serious, if not fatal
obstacle to his own success; for until the fountain
of justice should be purified the stream of
constitutional law could not run pure, the necessary
legal precedents could not be established,
the States could not be safe from encroachments
or the President himself from constant
insult.

Thus it was that the most serious question
for the new President and his party regarded
the Judiciary, and this question of the Judiciary
was that which Congress undertook to
settle. Randolph, and men of his reckless nature,
seeing clearly that Chief Justice Marshall
and the Supreme Court, backed by the array of
circuit and district judges, could always overturn
republican principles and strict construction
faster than Congress and the President
could set them up, saw with the same clearness
that an entire reform of the Judiciary and
its adhesion to the popular will were necessary,
since otherwise the gross absurdity would follow
that four fifths of the people and of the
States, both Houses of Congress, the Executive,
and the state Judiciaries might go on forever
declaring and maintaining that the central government
had not the right to interpret its own
powers, while John Marshall and three or four
old federalists on the supreme bench proved the
contrary by interpreting those powers as they
liked, and by making their interpretation law.
Randolph and his friends, therefore, wished to reconstruct
the Judiciary throughout, and to secure
an ascendency over the courts of law, but
the northern democrats dreaded nothing more
than the charge of revolutionary and violent attacks
on the Constitution; the President and

Cabinet gave no encouragement to hasty and intemperate
measures; all the wise heads of the
party advised that Chief Justice Marshall and
the Supreme Court should be left to the influence
of time; and that Congress should be content
with abolishing the new circuit system of
the federalists, and with getting rid of the new
judges.

On January 4, 1802, Randolph moved for
an inquiry into the condition of the judiciary
establishment, and the motion was referred to
a committee of which his friend Nicholson was
chairman. Pending their report, a bill came
down from the Senate by which the Judiciary
Act of 1800 was repealed. The debate which
now ensued in the House was long and discursive.
The federalists naturally declared that
this repealing act put an end forever to the
independence of the Judiciary, and that it was
intended to do so; they declaimed against its
constitutionality; ransacked history and law
to prove their positions, and ended by declaring,
as they had declared with the utmost simplicity
of faith on every possible occasion for
ten years past: "We are standing on the
brink of that revolutionary torrent which deluged
in blood one of the fairest countries in
Europe." Yet the Repealing Act was in fact
not revolution, but concession; overthrowing a

mere outer line of defence, it left the citadel
intact, and gave a tacit pledge that the federalist
supreme bench should not be disturbed, at
least for the present. When it is considered
that Chief Justice Marshall, in the course of his
long judicial career, rooted out Mr. Jefferson's
system of polity more effectually than all the
Presidents and all the Congresses that ever
existed, and that the Supreme Court not only
made war on states' rights, but supported with
surprising unanimity every political and constitutional
innovation on the part of Congress
and the Executive, it can only be a matter of
wonder that Mr. Jefferson's party, knowing
well the danger, and aware that their lives and
fortunes depended, or might probably depend,
on their action at this point, should have let
Chief Justice Marshall slip through their fingers.
To remodel the whole bench might have
been revolution, but not to remodel it was to
insure the failure of their aim.

The republicans were over-confident in their
own strength and in the permanence of their
principles; they had in fact hoodwinked themselves,
and Mr. Jefferson and John Randolph
were responsible for their trouble. The party
had really fought against the danger of an overgrown
governmental machine; but Mr. Jefferson
and John Randolph had told them they

were fighting against monarchy. Setting up,
to excite themselves, a scarecrow with a crown
upon its head, they called it King John I., and
then, with shouts of delight, told it to go back
to Braintree. The scarecrow vanished at their
word, and they thought their battle won. Randolph
saw from time to time that, so far as
there had been any monarchy in question, the
only difference was that Thomas Jefferson instead
of John Adams wore the shadow of a
crown, but even Randolph had not the perspicacity
or the courage to face the whole truth,
and to strike at the very tangible power which
stood behind this imaginary throne. He, like
all the rest, was willing to be silent now that
his people were masters; he turned away from
the self-defined, sovereign authority which was
to grind his "country," as he called Virginia,
into the dust; he had, it may be, fixed his eyes
somewhat too keenly on that phantom crown,
and in imagination was wearing it himself, —
King John II.

The debate on the Judiciary in the session of
1801-2 lacks paramount interest because the
states'-rights republicans, being now in power,
were afraid of laying weight on their own principle,
although there was then no taint of slavery
or rebellion about it, and although it was a
principle of which any man, who honestly believed

in it, must be proud. On the day when
Randolph moved his inquiry, Mr. Bayard of
Delaware, in debating the new apportionment
bill, had proposed to make 30,000 instead of
33,000 the ratio of representation, and had
given as his reason the belief that an addition
of ten members to the House would do more
than an army of 10,000 men to increase its
energy, and to give power by giving popularity
to the government. Randolph sprang to his
feet as Bayard sat down, and burst into a strong
states'-rights speech; yet even then, speaking
on the spur of his feelings, he was afraid to
say what was in his mind, — that the powers
of government were already too strong, and
needed to be diminished. "Without entering
into the question whether the power devolved
on the general government by the Constitution
exceeds that measure which in its formation I
would have been willing to bestow, I have no
hesitation in declaring that it does not fall
short of it; that I dread its extension, by
whatever means, and shall always oppose measures
whose object or tendency is to effect it."
Throughout the speech he stood on the defensive;
he evaded the challenge that Bayard
threw down.

The same caution was repeated in the judiciary
debate where there was still less excuse

for timidity. The bill could be defended only
on the ground that the new Judiciary had
been intended to strengthen the national at
the expense of the state courts; and that the
principle of limited powers could only be maintained
by fostering the energies of the States,
and especially of the state Judiciaries, and by
protecting them from the interference of the
general government. Randolph showed himself
afraid of this reasoning; his party dreaded
it; the President discouraged it; and the federalists
would have been delighted to call it
out. When, on February 20, 1802, Bayard
concluded his long judiciary speech, Randolph
again rose to answer him, and again took the
defensive. In an ingenious and vigorous argument,
as nearly statesman-like as any he ever
made, he defended the repeal as constitutional,
and certainly with success. He conceded
a great deal to the opposition. "I am
free to declare that if the intent of this bill
is to get rid of the judges, it is a perversion
of your power to a base purpose; it is an unconstitutional
act. The quo animo determines
the nature of this act, as it determines the innocence
or guilt of other acts." What, then,
was the quo animo, the intent, which constrained
him to this repeal? Surely this was the moment
for laying down those broad and permanent
principles which the national legislature
ought in future to observe in dealing with extensions
of the central power; now, if ever, Randolph
should have risen to the height of that
really great argument which alone justifies his
existence or perpetuates his memory as a statesman.
What was his "substantial reform"?
What were its principles? What its limits? "If
you are precluded from passing this law lest
depraved men make it a precedent to destroy
the independence of your Judiciary, do you not
concede that a desperate faction, finding themselves
about to be dismissed from the confidence
of their country, may pervert the power
of erecting courts, to provide to an extent for
their adherents and themselves?" "We assert
that we are not clothed with the tremendous
power of erecting, in defiance of the whole spirit
and express letter of the Constitution, a vast
judicial aristocracy over the heads of our fellow
citizens, on whose labor it is to prey." "It
is not on account of the paltry expense of the
new establishment that I wish to put it down.
No, sir! It is to give the death-blow to the
pretension of rendering the Judiciary an hospital
for decayed politicians; to prevent the state
courts from being engulfed by those of the
Union; to destroy the monstrous ambition of
arrogating to this House the right of evading
all the prohibitions of the Constitution, and
holding the nation at bay."

That is all! Just enough to betray his
purpose without justifying it; to show temper
without proving courage or forethought! This
was not the way in which Gallatin and Madison
had led their side of the House. Take
it as one will, all this talk about "judicial aristocracy"
preying on labor, these sneers at
"decayed politicians," was poor stuff. Worse
than this: without a thorough justification in
principle, the repeal itself was a blow at the
very doctrine of strict construction, since it
strained the powers of Congress by a dangerous
precedent, without touching the power of
the Judiciary; it was the first of many instances
in which Mr. Jefferson's administration
unintentionally enlarged and exaggerated the
powers of the general government in one or
another of its branches.

By way of conclusion to a speech which, as
Randolph must have felt, was neither candid nor
convincing, he made a remark which showed
that he was still jealous of executive influence,
and that he wished to act honestly, even where
his own party was concerned, in proving his
good faith. Mr. Bayard twitted him with being
a mere tool of Mr. Jefferson, and the sneer
rankled. "If the gentleman is now anxious to

protect the independence of this and the other
House of Congress against executive influence,
regardless of his motives, I pledge myself to
support any measure which he may bring forward
for that purpose, and I believe I may
venture to pledge every one of my friends."
Whether Mr. Jefferson would be flattered by
this hint that his finger was too active in legislation
seems to have been a matter about which
Randolph was indifferent.

The Judiciary Bill, however, was not Randolph's
work, but was rather imposed upon
him by the party. His speech showed that
he was in harness, under strict discipline, and
rather anxious to disguise the full strength of
his opinions than to lay down any party doctrine.
The bill passed the House by a large
majority, and became law, while the practical
work of the Ways and Means Committee fell
to Randolph's special care, and proved serious
enough to prevent his eccentric mind from
worrying about possible evils in a distant
future. He was obliged to master Gallatin's
financial scheme; to explain and defend his
economies, the abolition of taxes, and operations
in exchange; details of financial legislation
which were as foreign to Randolph's taste and
habits of mind as they were natural to Gallatin.
This was the true limit of his responsibility,

and there is nothing to prove that he
was otherwise consulted by the President or the
Cabinet.

The federalists, who were better men of
business and more formidable debaters than
the republican majority, offered the usual opposition
and asked the ordinary troublesome
questions. At this early day the rules of the
House had not been altered; to stop debate
by silencing the minority was impossible, and
therefore Randolph and his friends undertook
to stop debate by silencing themselves, answering
no questions, listening to no criticisms,
and voting solidly as the administration directed.
Such a policy has long since proved
itself to be not only dangerous and dictatorial,
but blundering, for it gives an irresistible advantage
of sarcasm, irony, and argument to the
minority, — an advantage which the federalists
were quick to use. After a short trial the
experiment was given up. The republicans resumed
their tongues, a little mortified at the
ridicule they had invited, and in future they
preferred the more effective policy of gagging
their opponents rather than themselves; but
there remained the remarkable fact that this
attempt to check waste of time was made under
the leadership of John Randolph, who in
later years wasted without the least compunction

more public time than any public man
of his day in discursive and unprofitable talk.
The explanation is easy. In 1802 Randolph
and his party wished to prove their competence
and to make a reputation as practical
men of business; they frowned upon waste of
time, and wanted the public to understand that
they were not to blame for it. Randolph set
the example by speaking as little as possible,
always to the point, and by indulging his rebellious
temper only so far as might safely be
allowed; that is to say, in outbursts against
the federalists alone.

He gained ground at this session, and was a
more important man in May, 1802, when he
rode home to Bizarre, than in the previous
autumn when he left it. Congress had done
good work under his direction. The internal
taxes were abolished and half the government
patronage cut off; the army and navy suffered
what Mr. Jefferson called a "chaste reformation;"
the new federalist judiciary was swept
away. It is true that with all these reforms
in detail not one dangerous power had been
expressly limited, nor had one word of the
Constitution been altered or defined; no federalist
precedents, not even the Alien and Sedition
laws, were branded as unconstitutional by
either House of Congress or by the Executive.

The government was reformed, as an army may
be cut down, by dismissing half the rank and
file and reducing the expenses, while leaving
all its latent strength ready at any moment
for recalling the men and renewing the extravagance.
There is nothing to show that Randolph
now saw or cared for this fact, although
he afterwards thought proper to throw upon
others the responsibility for inaction.