Thomas Jefferson: The Art of Power (43 page)

Burr was brought to Richmond for trial, where John Marshall presided over a courtroom set up in the Eagle Tavern. Jefferson took an obsessive interest in the case, gathering information and advising the prosecution counsel. He believed serious issues were at stake and characteristically threw himself into the matter in detail—but at a distance.

Though Burr was indicted for treason, the weaknesses of the case against him grew evident as the trial progressed. Coconspirator-turned-prosecution-witness James Wilkinson had charged that Burr intended to capture New Orleans—an allegation that had led Jefferson to declare martial law there to defend against any treachery—and to lead an attack on Spanish holdings. (A problematic allegation, since filibusters were not illegal.)

T
he messenger from Richmond rode up Jefferson's mountain in darkness. The vacationing president was still awake, and he perused the communication—and its enclosure—with care. It was no ordinary delivery: U.S. attorney George Hay, the prosecutor in the Burr case, was subpoenaing the president to testify at the trial in person. After consulting with Madison, a houseguest at Monticello, Jefferson refused to submit himself and his office to the control of others. Writing Hay the next day, he said: “As I do not believe that the district courts have a power of
commanding
the Executive government to abandon superior duties and attend on them, at whatever distance, I am unwilling by any notice of the subpoena to set a precedent which might sanction a proceeding so preposterous.”

Jefferson's decision to reserve unto himself the authority to decide whether to obey a summons to testify set a significant precedent in executive power: The president, Jefferson was saying, had higher obligations to the common good than to answer the importunings of the legal system. He would, instead, send Hay relevant documents—a wise compromise that prevented a president from holding himself above the law but preserved his ability to do his job without being forced to travel at the command of distant courts. He enclosed the subpoena to Hay and dispatched it whence it had come.

Marshall's decisions and demeanor as the trial judge exacerbated matters for Jefferson, who tended to ascribe any setback for the prosecution to the chief justice's politics. The proceedings in Virginia joined the repeal of the Judiciary Act of 1801, the reaction to
Marbury,
and the impeachment of Samuel Chase as a front in Jefferson's long struggle against a judicial system that he disliked and distrusted more and more as the years passed.

Burr's eventual acquittal enraged the president. In truth, the evidence on the treason charge against the defendant was weak. Jefferson nevertheless hoped that the country would join him in seeing the hand of Marshall as the decisive force in thwarting the prosecution. “The nation will judge both the offender, and judges for themselves,” Jefferson wrote William Branch Giles. “If a member of the Executive or Legislature does wrong, the day is never far distant when the people will remove him.” Perhaps, Jefferson thought, outrage over the Burr verdict could be channeled into a constitutional amendment making judges more accountable to the public.

H
e had been miserable for a week. “I am now in the 7th day of a periodical head-ache, and I write this in the morning before the fit has come on,” he wrote Patsy in March 1807. “The fits are by no means as severe as I have felt in former times, but they hold me very long, from 9 or 10 in the morning till dark. Neither Calomel nor bark has as yet made the least impression on them.”

There were also the usual complaints and stresses. “I am tired of an office where I can do no more good than many others who would be glad to be employed in it,” he wrote his old Revolutionary colleague John Dickinson in early 1807. “To myself personally it brings nothing but unceasing drudgery and daily loss of friends.”

In this period a proposed treaty with Britain arrived in Washington. It did little for American interests. “The British commissioners appear to have screwed every article as far as it would bear, to have taken everything, and yielded nothing,” Jefferson wrote of the treaty in March 1807. Diplomacy, in short, had not resolved conflict with Britain, particularly in terms of stopping the humiliating impressment of American seamen. Jefferson refused to send it to the Senate.

In February 1807, in a passing conversation with his sons-in-law, Jefferson invited John Wayles Eppes to join him on some occasion (the details are unknown) but did not include Randolph. The slight, however unintentional, at once enraged and depressed Randolph, who wrote Jefferson an emotional letter complaining that the president favored Eppes, whom Randolph envied and saw as an all-too-successful rival for the affections and attentions of their father-in-law.

Jefferson was taken aback by the complaints. He had, he said, detected some tension between the two congressmen who had married daughters of his, but—typically for Jefferson—he had chosen not to inquire about the unease; avoiding overt conflict was a Jeffersonian specialty. “What acts of mine can have induced you to suppose that I felt or manifested a preference for [Eppes], I cannot conceive,” Jefferson soothingly wrote Randolph.

In his apparent anger and anguish, Randolph had moved out of the President's House. “Your return to the house would indeed be a consolation to me,” wrote Jefferson, who could not take his mind off the question. “Really loving you as I would a son (for I protest I know no difference) I took it too much for granted you were as sensible of it as myself,” he said in a second note on February 19, 1807.

Randolph, who had decided not to stand for reelection to Congress, fell ill in his new lodgings, and Jefferson dispatched a retainer to keep watch over his condition.

Jefferson's paternal feelings toward Randolph were genuine. “I certainly would not urge anything that would be strongly repugnant to your feelings, but I wish, my dear Sir, you could consent to return to your former room here,” Jefferson wrote Randolph on February 28.

Randolph did come back, but he was very sick and very depressed. He mused about suicide. Jefferson kept track of the number of paces the recuperating Randolph was able to walk in the circular room on the second floor of the President's House (500 or 600 steps the first day he tried; 1,200 the next) and wrote Patsy frequent optimistic reports. Domestic harmony mattered as much to him as political harmony did.

THIRTY
-
EIGHT

THIS DAMNED EMBARGO

Never since the battle of Lexington have I seen this country in such a state of exasperation as at present, and even that did not produce such unanimity.

—T
HOMAS
J
EFFERSON
, on the British attack on the USS
Chesapeake

I
N
W
ASHINGTON
, Jefferson was on war footing. “Something now occurs almost every day on which it is desirable to have the opinions of the heads of departments,” Jefferson wrote Treasury secretary Albert Gallatin in July 1807. The members of the cabinet were to feel free, Jefferson said, “to call on me at any moment of the day which suits their separate convenience.”

The precipitating crisis was a Monday, June 22, 1807, attack on the USS
Chesapeake
by the HMS
Leopard
in the waters off Cape Henry on the Virginia coast. The British ship had ordered the American one to allow it to search the
Chesapeake
for deserters. The commanding officer of the
Chesapeake,
James Barron, refused, at which point the
Leopard
opened fire on the American frigate. Twenty-two shots struck the
Chesapeake
before the Americans managed to get off a single rejoinder. Barron and seventeen others were wounded. Three men were killed.

It was an act of war—an insult to, and an attack on, the United States of America. The public reaction was swift. “After I had read the information of the outrageous attack on the
Chesapeake,
I felt as every true American should feel—indignation and resentment at the British,” a correspondent wrote Jefferson from Philadelphia on Monday, June 29.

Jefferson instantly summoned the cabinet. Gallatin was away in Maryland. “I am sorry to be obliged to hasten your return,” Jefferson wrote him, “and pray it may be without a moment's avoidable delay.” Gallatin was sick but would be along quickly. “I am so much fatigued that I cannot ride all night by the mail; but I will be with you on Wednesday about two or three o'clock in the afternoon.” Not a moment was to be wasted.

On the Fourth of July, Federalists made a point of appearing at Jefferson's annual levee; a newspaper reported that the president's foes “mingled with perfect cordiality with their republican brethren.” At a dinner at Stelle's, there were patriotic toasts. “The American People—Ready at a moment's warning to vindicate the rights, and avenge the wrongs of their country,” was one; another guest rose and said, “The President of the United States—The hand that drafted the Declaration of Independence will maintain, inviolate, the principles it recognizes.”

Jefferson grasped the import of the moment, issuing a proclamation banning armed British ships from U.S. waters. At a cabinet meeting he decided to call on the governors of the states to have their quotas of one hundred thousand militiamen ready, and he ordered the purchase of arms, ammunition, and supplies. The president gave the order unilaterally, without congressional approval.

He believed he was the best judge of what was needed in the present crisis. “The moment our peace was threatened, I deemed it indispensable to secure a greater provision of those articles of military stores with which our magazines were not sufficiently furnished,” Jefferson told Congress after the fact. “I trust that the legislature, feeling the same anxiety for the safety of our country, so materially advanced by this precaution, will approve, when done, what they would have seen so important to be done, if then assembled.”

Congress agreed. The presidency was further strengthened, and Jefferson's view of power affirmed. “A strict observance of the written laws is doubtless
one
of the high duties of a good citizen, but it is not
the highest,
” he wrote after he left office. “The laws of necessity, of self-preservation, of saving our country when in danger, are of higher obligation. To lose our country by a scrupulous adherence to written law, would be to lose the law itself, with life, liberty, property and all those who are enjoying them with us; thus absurdly sacrificing the end to the means.”

A ship—the USS
Revenge
—was dispatched to England to receive an answer from the British government about the
Leopard
's attack. Outrage came upon outrage: A revenue cutter was also fired upon; its most prominent passenger, Vice President George Clinton, later told Jefferson that the emotion generated by the British depredations was unsettling even the most extreme of Federalists. “To the Tories or British Federalists,” Clinton said, “this is a mortifying circumstance as they cannot but perceive that in case of war they will be deserted by their electioneering allies and left to shift for themselves.”

Anti-British feeling was certainly acute. “The spirit and enterprise of the American character are peculiarly fit for offensive enterprises,” the journalist William Duane wrote Jefferson on Wednesday, July 8. He proposed a four-point attack on the British as an offensive move in the wake of the
Chesapeake
. Duane's suggestions: Strike Canada, capture Halifax, and invade Newfoundland and Jamaica.

Jefferson planned to call Congress for October 1807. “Reason and the usage of civilized nations require that we should give them an opportunity of disavowal and reparation,” Jefferson wrote to John Wayles Eppes on Sunday, July 12. “Our own interest, too, the very means of making war, requires that we should give time to our merchants to gather in their vessels and property and our seamen now afloat.”

Jefferson's openness to war was evident from the beginning of the crisis. “ ‘Reparation for the past and security for the future' is our motto; but whether the English will yield it freely, or will require resort to non-intercourse, or to war, is yet to be seen,” he said. “We prepare for the last.”

On the final day of July 1807, he called for the October special session of Congress. Worried about remaining fully informed during a visit to Monticello, he increased the mail service from Washington to Monticello, where he was to spend the latter part of the summer.

Despite the war fever in the first hours of the
Chesapeake
crisis, Jefferson had guessed that lawmakers would be more inclined to impose an embargo than to go immediately to war. He was not lost in a philosophic experiment in pacifism—he was willing to fight. But he believed Congress would prefer an embargo first.

Differing Jeffersonian impulses were in conflict. His fear of the threat large military establishments posed to republics was predominant at the moment. Yet he was also being practical. He knew America could not build a navy to compete with Britain's soon enough to make a difference in the struggle at hand. His experience of the past two decades in foreign policy had also taught him that time often resolved the issues of the hour.

From Nootka Sound to St. Domingue, shifting strategic concerns abroad—the fall of a government in London, the decision of an emperor in Paris, the outcome of a battle in a far-off place—could settle (or complicate) the problems facing the United States.

At dinner one day in November 1807 at the President's House, David Montagu Erskine, the new British minister, was sitting with Jefferson, Augustus Foster, the poet-diplomat Joel Barlow, and Louisa Catherine and John Quincy Adams. There were reports that London might transfer the negotiations over the maritime issues to Washington. If true, Jefferson said to Erskine, “I suppose [this] will take us all winter, and in the meantime your nation will make peace, and leave us nothing to dispute about—
that is all my hope
.” Recording the incident in his diary, John Quincy Adams wrote: “If there was any sincerity in these words,
procrastination
includes the whole compass of Mr. Jefferson's policy, which I believe to be really the case.”

The question of the moment, Jefferson told Thomas Mann Randolph, Jr., on Monday, November 30, was “whether War, Embargo or Nothing shall be the course. The middle proposition is most likely.” But that was not to be the only American response. “In the meantime,” Jefferson said, “there is a disposition 1. To vote a sufficient number of gunboats. 2. A sufficient sum (750,000 D.) for defensive works. 3. To classify the militia. 4. To establish a Naval militia. 5. To give a bounty in lands in Orleans on the West side of the river for a strong settlement of Americans as a Militia.”

An embargo was a means, not an end. “The members, as far as I can judge are extremely disposed for peace: and as there is no doubt Gr. Br. will disavow the act of the
Leopard,
I am inclined to believe they will be more disposed to combat her practice of impressment by a non-importation law than by arms,” he wrote Thomas Mann Randolph, Jr., on Monday, October 26.

In December 1807, news from Paris and London roiled the already unsettled American capital. Napoleon announced he was extending the Berlin Decree banning British imports to all nations, including the United States. George III, far from making concessions on the impressment question, ordered British vessels to seize British subjects from merchant and warships.

Informing Congress that two of the world's great powers were increasing the pressure on American interests, Jefferson proposed that the United States order its own ships to remain in port in the United States while “making every preparation for whatever events may grow out of the present crisis.”

What came next? Politically, war seemed impossible at the moment. The emotional intensity that had grown out of the
Chesapeake
affair in summer had faded. “The war fever is past,” Jefferson wrote Patsy in November.

For now, the answer was embargo. It was far from ideal, and Albert Gallatin articulated its inherent flaws best. “In every point of view, privations, sufferings, revenue, effect on the enemy, politics at home, etc., I prefer war to a permanent embargo,” Gallatin told Jefferson on Friday December 18. Moreover, “Governmental prohibitions do always more mischief than had been calculated; and it is not without much hesitation that a statesman should hazard to regulate the concerns of individuals as if he could do it better than themselves.”

In principle, Jefferson agreed. In practice, he was torn. “What is
good
in this case cannot be effected,” he wrote Gallatin; “we have, therefore, only to find out what will be
least bad
.”

Jefferson was guided in part by republican ideology: The end of war and the reign of reason was a dream of the age. War led to monarchy and aristocracy and evils that tended to destroy the liberty of the many while empowering the few. Yet Jefferson was no pacific purist. He had waged war in the Mediterranean, and he was willing to wage it against Britain and possibly against France.

But not yet. His calculation—one ratified by Congress—was that time was America's ally. “The embargo keeping at home our vessels, cargoes and seamen, saves us the necessity of making their capture the cause of immediate war, for if going to England, France had determined to take them; if to any other place, England was to take them,” Jefferson wrote John Taylor. “This gives time. Time may produce peace in Europe. Peace in Europe removes all causes of differences till another European war, and by that time our debt may be paid, our revenues clear, and our strength increased.”

The legislation had passed quickly, and Jefferson signed the embargo on Tuesday, December 22, 1807. It was a breathtaking bill, a projection of governmental power that surpassed even the hated Alien and Sedition Acts. After signing it, Jefferson was struck by “a tooth-ache … which brought on a very large and hard swelling of the face, and that produced a fever which left me last night,” he wrote Patsy on Tuesday, December 29. He felt the burdens of office as never before.

The pain in his jaw compounded the stress he was feeling. For all intents and purposes, he was expanding federal power into every part of the economic life of every American. Trade with foreign nations was forbidden. Nothing could come into the country; nothing could go out. A subsequent enforcement act gave Jefferson himself power over shipping.

He was accustomed to wielding the weapons of economic war. Nonimportation with targeted countries, for instance, had been part of his life since Williamsburg. He believed in, and had long practiced, commercial diplomacy. The republican dream of a war-free world of open markets had proved unrealizable, which led Jefferson to adapt his principles to the realities that confronted the United States. Economic coercion was a widely accepted means of foreign policy.

The totality of an embargo was related but different: It was viewed as a limited means of securing time to prepare for war or to let the threat of war pass. As the American experience would show, embargoes were impractical over the long term. Jefferson understood that the nation was commercial as well as agrarian and that his duty extended to the whole country. “Our people have a decided taste for navigation and commerce,” he said. “They take this from their mother country: and their servants are in duty bound to calculate all their measures on this datum.”

In the beginning the country was willing to trust Jefferson's course. “Confidence now seems to be in Mr. Jefferson's hands, as effectual in producing a compliance with his recommendations as soldiers in the hands of Bonaparte in procuring submission to his commands,” Timothy Pickering wrote on Monday, January 18, 1808. Passage of the embargo, he said, was the result of the public's “implicit, blind confidence” in the president.

“Our embargo, which has been a very trying measure, has produced one very happy, and permanent effect,” Jefferson wrote Lafayette. “It has set us all on domestic manufacture, and will I verily believe reduce our future demands on England fully one half.”

That was an overstatement, but the yearlong embargo did have an effect in Britain. There were protests from merchants and manufacturers against the anti-American policy that had led to Jefferson's reprisal. In April 1808, Britain, feeling the lack of an American market, essentially invited ships to break the embargo. Smuggling was an enormous problem, particularly to the north, where illicit trade with the British in the Canadian region flourished. Jefferson warned those “combining and confederating together on Lake Champlain and the country thereto adjacent for the purposes of forming insurrections against the authority of the laws of the United States.” The executive branch was given extraordinary authority to enforce the embargo.