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The Federalists justified the bill flimsily by urging the need of the separate circuit courts to protect the "overworked" 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 The weakness of the Federalist argument appears in the fact that the bill was repealed at once (§ 447) and the old order was restored and maintained seventy years longer.

422. 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 history by the name of "the Midnight Judges." One of the worst features of a thoroughly bad business was that these appointments were used to take care of Federalist politicians now thrown out of any other job. 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, had turned the judiciary into "a hospital for decayed politicians."

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. This sad abuse of the Presidential power has had much later imitation. Such a practice is repugnant to every principle of representative government.

423. 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 (§ 390) the election between these two was now left

§ 425]

ELECTION OF JEFFERSON

351

to the old House of Representatives, in which the Federalists had their expiring war majority.1

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.

424. 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.2 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 separately President and Vice President on the electoral ballots.

...

425. The fatal fault of the Federalist leaders was their fundamental disbelief in popular government. After Jefferson's victory, in 1800, this feeling found violent expression. Fisher Ames, a Boston idol, declared: "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." Cabot, 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

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.

beast." Dennie's Portfolio, the chief literary publication of the time, railed at greater length:

"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, asserted:

"The great object of Jacobinism 1. . . 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 designs upon the property or the life of Federalist leaders. Gouverneur Morris' diary for 1804 contains 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 apprehend a bloody anarchy: I apprehend an anarchy in which property, not lives, will be sacrificed." And Fisher Ames wrote: "My health is good for nothing, but.. if the Jacobins make haste, I may yet live to be hanged." In 1804, in a Connecticut town, an applauded Fourth of July toast to the "President of the United States" ran "Thomas Jefferson: may he receive from his fellow citizens the reward of his merit- a halter!"

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426. These faults must not obscure the vast service the Federalists had rendered. Alexander Hamilton is the hero of the twelve-year Federalist period. He should be judged in the main by his work in the years 1789-1793. During that critical era, 1 A term borrowed from the French Revolution, and applied to the Republicans by their opponents, -as reactionaries now use Bolshevist.

§ 426]

ALEXANDER HAMILTON

353

he stood forth as no other man of the day could have done as statesman-general in the conflict between order and anarchy, union and disunion. His constructive work and his genius for organization were

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then as indispensable to his country as Jefferson's democratic faith and inspiration were to be later. Except for Hamilton, there would hardly have been a Nation for Jefferson to Americanize. We may rejoice that Hamilton did not have his whole will; but we must recognize that the forces he set in motion made the Union none too strong to withstand

the trials of the years ALEXANDER HAMILTON. From the painting by that followed.

Trumbull in the School of Fine Arts at Yale.

Those centralizing forces may be summarized concisely. The tremendous support of capital was secured for almost any claim the government might make to doubtful powers. Congress set the example of exercising doubtful and unenumerated powers; and a cover was devised for such practice in the doctrine of implied powers. The appellate jurisdiction conferred on the Supreme Court was to enable it to defend and extend this doctrine. Congress began to add new States with greater dependence of feeling upon the National government. And the people at large began to feel a new dignity and many material gains from a strong Union.

PART VII

JEFFERSONIAN REPUBLICANISM, 1800-1830

CHAPTER XXXIX

AMERICA IN 1800

427. From Jefferson to Lincoln, six great lines of growth mark our history: our territory expanded tremendously; we won our intellectual independence from Old World opinion; democracy spread and deepened; our industrial system grew vastly complex; slavery was abolished; and Nationalism triumphed over disunion.

428. Territorial expansion was the warp through which ran the other threads of growth. The expansion of civilization into waste spaces marked world history in the nineteenth century. England and Russia led in the movement; but not even for them was this growth so much the soul of things as it was for us.

It made us truly American. Our tidewater communities remained "colonial" in feeling long after they became independent politically,- still hanging timorously on Old-World approval. Only when our people had climbed the mountain crests and turned their faces in earnest to the great West, did they cease to look to Europe for standards of thought.

It made us democratic. The communities progressive in politics have always been the frontier parts of the country,first the western sections of the original States, and then successive layers of new States.

It created our complex industrialism, with the dependence of

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