Madison and Jefferson (135 page)

20.
Everett S. Brown, “The Senate Debate on the Breckenridge Bill for the Government of Louisiana, 1804,”
American Historical Review
22 (January 1917): 345–47, 350, 353–54. In 1798 John Nicholas and William B. Giles, both Virginians, had appealed similarly when the subject was allowing slavery in Mississippi Territory. At the time Congressman George Thatcher of Massachusetts, who had proposed keeping the restriction on slavery from the Northwest Ordinance in the Mississippi Territory bill, reacted to the diffusion argument: “The gentleman from Virginia … contended that certain States were overflowing with slaves, and if not colonized by opening this wide tract of country to them, they would not be able to keep or manage them … The gentleman wished to take the blacks away from places where they are huddle up together, and spread them over this territory; they wished to get rid of them, and to plague others with them.”
Annals of Congress
, 5th Cong., 2nd sess., 1308–11; Rothman,
Slave Country
, 24–26.

21.
Annals of Congress
, 8th Cong., 1st sess., 60. Tench Coxe had advocated diffusion to Madison in 1801, calling for tight restrictions on the foreign slave trade and a stronger militia to avoid the dangers previewed in the Caribbean; see Coxe to JM, December 12, 1801,
PJM-SS
, 2:307–8; TJ to Monroe, November 24, 1801,
PTJ
, 35:718–21; TJ to David Barrow, May 1, 1815,
TJP-LC.

22.
Joseph T. Hatfield,
William Claiborne: Jeffersonian Centurion in the American Southwest
(Lafayette, La., 1976); Kastor,
Nation’s Crucible
, 36–41, 55–66; Claiborne to JM, December 27, 1803, January 31, February 4, March 1, and May 12, 1804,
PJM-SS
, 6:231, 416, 428–29, 525; 7:210.

23.
Brant, 4:56–57, 160–70; Malone, 4:93–94, 376–77. As to Madison’s reluctance to commit an opinion without first knowing Jefferson approved, see JM to TJ, April 24, 1804,
RL
, 2:1323, in an instance involving Governor Claiborne of Louisiana and Secretary Gallatin and the establishment of a state bank. Madison distinguished between private letters expressing “sentiments” and official letters expressing the government’s position. It is also an example of the seamless communication of Madison, Gallatin, and the president.

24.
Catherine Allgor,
Parlor Politics
(Charlottesville, Va., 2000), 34–47; Malone, 4:377–83; JM to Monroe, February 16, 1804,
PJM-SS
, 6:484–86. The French minister separately confirmed Madison’s and Jefferson’s assessment of the negative impact Mrs. Merry’s resentments had on other Washington diplomat families.

25.
Burr to Theodosia Burr, October 16, 1803, and January 17, 1804, in
Correspondence of Aaron Burr and His Daughter Theodosia
, ed. Mark Van Doren (New York, 1929), 129, 147–48; Catherine Allgor,
A Perfect Union: Dolley Madison and the Creation of the American
Nation
(New York, 2006). Allgor’s portrait of Dolley Madison is very insightful, though her penchant to diminish James in order to lift Dolley to preeminence amounts to caricature; Monroe to JM, July 1, 1804,
PJM-SS
, 7:404.

26.
JM to Robert Livingston, January 31, 1804,
PJM-SS
, 6:411–12;
Albany Gazette
, December 19, 1805, reporting a decree from the French general governing Haiti, which stated that all American vessels bringing supplies to the “revolted Negroes” would face “seizure and condemnation.”

27.
Robert A. Rutland, who calls Secretary of State Madison Jefferson’s “assistant chief executive,” has pointed out the difficulty of knowing precisely what Madison and Jefferson discussed in private from 1801 to 1809; he cites Jefferson’s letter at the end of his presidency, in which he reminded Madison: “A short conference saves a long letter.” See Rutland,
James Madison: The Founding Father
(New York, 1987), 169–70. See TJ to JM, August 7 and August 18, 1804,
RL
, 2:1332–33, 1337–38, for pertinent examples (among many) of the transatlantic correspondence they shared and the opinions they hazarded to each other. They were open about their complaints against Livingston, whose letters to the State Department were deficient, in Madison’s judgment, and whose “quarrelsome disposition” irritated Jefferson. See also JM to TJ, August 4 and August 18, 1804, and TJ to JM, August 18, 1804, ibid., 1331, 1338.

28.
James R. Sofka, “The Jeffersonian Idea of National Security: Commerce, the Atlantic Balance of Power, and the Barbary War, 1786–1805,”
Diplomatic History
21 (Fall 1997): 519, 526.

29.
TJ to JM, August 28, 1801,
RL
, 2:1193–94; Samuel Smith to Captain Richard Dale, May 20, 1801, in
Naval Documents Relating to the United States Wars with the Barbary Powers
(Washington, D.C., 1939), 1:467; Frank Lambert,
The Barbary Wars: American Independence in the Atlantic World
(New York, 2005), 124–25, 133; “Editorial Note: Dispatching a Naval Squadron to the Mediterranean 20–21 May 1801,”
JMP-SS
, 1:198–99.

30.
David A. Carson, “Jefferson, Congress, and the Question of Leadership in the Tripolitan War,”
Virginia Magazine of History and Biography
94 (October 1986): 410, 412, 415, 417–18; “Jefferson’s Cabinet Notes, May 15, 1801,”
TJP-LC;
Lambert,
Barbary Wars
, 126; Sofka, “Jeffersonian Idea of National Security,” 538.

31.
Humphreys to JM, April 24, 1801,
JMP-SS
, 1:92; “Jefferson’s Cabinet Notes, May 15, 1801”; Gallatin to TJ, September 12, 1805,
TJP-LC.

32.
Decatur received a promotion and was commended by the secretary of the navy for his “gallant conduct” in a “brilliant enterprise.” The president ceremonially awarded him a sword. See Michael Kitzen, “Money Bags or Cannon Balls: The Origins of the Tripolitan War,”
Journal of the Early Republic
16 (Winter 1996): 601–24; Robert J. Allison,
The Crescent Obscured: The United States in the Muslim World, 1776–1815
(New York, 1995); Gardner W. Allen,
Our Navy and the Barbary Corsairs
(Boston, 1905), 173–77; Lambert,
Barbary Wars
, 128–30, 142–44.

33.
Humphreys to JM, April 24, 1801, James Leander Cathcart to JM, July 2, 1801, JM to Lear, July 14, 1803,
JMP-SS
, 1:92, 370–71; 5:178; G. A. Starr, “Escape from Barbary: A Seventeenth-Century Genre,”
Huntington Library Quarterly
21 (November 1965): 35–52. Franklin was not alone in criticizing southern slavery with his comparison to the Islamic practice. Royall Tyler’s
The Algerine Captive
(1797) was the most popular American work on the Barbary captives, and he too emphasized that American slavery was no better,
and perhaps worse, than the Algerine practice. See Thomas S. Kidd, “ ‘Is It Worse to Follow Mahomet than the Devil?’ Early American Uses of Islam,”
Church History
72 (December 2003): 766, 788. A former U.S. captive, William Ray, also published a memoir in 1808, in which he ridiculed the abuse of American sailors by their officers and compared them to African-American slaves; see William Ray,
Horrors of Slavery; or, the American Tars in Tripoli
, ed. Hester Blum (Troy, N.Y., 1808; rpt., New Brunswick, N.J., 2008), xix–xx; Lambert,
Barbary Wars
, 40, 110, 118, 120, 161; Sofka, “Jeffersonian Idea of National Security,” 542. This was not the only kind of representation Americans had access to; a 144-page history of Barbary described a “tawny”-colored people both “superstitious and cruel.” Its author led up to his explanation of current events with an account of the prophet Muhammad who, according to the Koran, urged his followers to fight to the death and fear nothing in so doing. The people of North Africa still, it was said, believed in evil spirits and in a destiny ordained by God; they acknowledged no law but “force and convenience.” See Stephen Cleveland Blyth,
History of the War between the United States and Tripoli and Other Barbary Powers
(Salem, Mass., 1806), quotes at 4, 40, 127–28.

34.
Jefferson’s reference to St. Domingue as the “American Algiers” is in TJ to JM, February 5, 1799; his reference to the Spanish provincial governors as “pigmy kings” in TJ to JM, August 30, 1802,
RL
, 2:1093, 1242. He used similar language some years earlier in a letter to James Monroe, in complaining that the federal government was making an unlawful attempt to transfer power from the House of Representatives to the president, the Senate, or “any other Indian, Algerine or other chief.” TJ to Monroe, March 21, 1796,
PTJ
, 29:41–42. Jefferson also expressed his willingness to use force against Spain, suggesting an attack on a Spanish garrison in 1792, and again while he was president. See Sofka, “Jeffersonian Idea of National Security,” 528; and TJ to JM, October 23, 1805, wherein he claimed that if Spain interfered with the status quo, “we shall repel force by force.”
RL
, 3:1395. Also see TJ to JM, September 14, 1803,
RL
, 2:1285–86.

35.
JM to Levi Lincoln, July 25, 1801, Humphreys to JM, April 24, 1801,
PJM-SS
, 1:92, 476; TJ to Cooper, February 18, 1806,
TJP-LC;
Cooper was a staunch Jeffersonian found guilty of libeling President Adams in 1800 and was briefly imprisoned under the Sedition Act. On Jefferson’s idea of informal leagues of nations, see Sofka, “Jeffersonian Idea of National Security,” 534, 539.

36.
William van Alstyne and John Marshall, “A Critical Guide to Marbury v. Madison,”
Duke Law Journal
(February 1969): 3–8.

37.
TJ to William B. Giles, March 23, 1801,
PTJ
, 33:413–14; TJ to JM, August 13, 1801,
RL
, 3:1186; William Marbury to JM, December 16, 1801,
PJM-SS
, 2:319–20. If Madison disagreed with the posture Jefferson took, there is no evidence of it. It is Bruce Ackerman who has suggested that Jefferson “muzzled” Madison; see Ackerman,
The Failure of the Founding Fathers: Jefferson, Marshall, and the Rise of Presidency Democracy
(New York, 2005), 191.

38.
TJ to John Dickinson, December 19, 1801,
PTJ
, 36:165–66. Newspapers friendly to the administration saw Marshall’s determination as a pathetic ploy to irritate the executive: “The Tories talk of dragging the President before the court, and impeaching him, and a wonderful deal of similar nothingness. But it is easy to see this is all
fume
, which can excite no more than a ludicrous irritation.” See reprint from the
Aurora
, December
22, 1801, in
Centinel of Freedom
[Newark, N.J.], December 29, 1801. Other Republican papers reported “dark and mysterious appointments” as a desperate act by President Adams. See
American Citizen
, January 4, 1802; and
Aurora
, December 30, 1801.

39.
Van Alstyne and Marshall, “Critical Guide to Marbury v. Madison,” 4–5. According to Carl Prince, Jefferson was able to remove 18 of 30 Federalist judges, out of a total of 32 individuals appointed. He also replaced 13 of 21 district attorneys (11 of them Federalists) and 18 of 29 U.S. marshals. Of 316 offices, he forced out at least 146 incumbents (46 percent), at least 118 (37 percent) of whom were Federalists. Carl Prince, “The Passing of the Aristocracy: Jefferson’s Removals of the Federalists, 1801–1805,”
Journal of American History
57 (1970): 565–68.

40.
Annals of Congress
, 7th Cong., 1st sess., 628, 662; also see Ackerman,
Failure of Founding Fathers
, 152, 154; and James M. O’Fallon, “Marbury,”
Stanford Law Review
44 (January 1992): 238.

41.
Ackerman,
Failure of Founding Fathers
, 156; Charles Hobson, “John Marshall, the Mandamus Case, and the Judiciary System, 1801–1803,”
George Washington Law Review
72 (December 2003): 295;
Annals of Congress
, 7th Cong., 1st sess., 38, 82.

42.
Marbury v. Madison
, 5 (1 Cranch) (1803); also see Hobson, “John Marshall,” 299.

43.
Marshall personally felt that forcing Supreme Court judges to share the duties of district judges (which would eliminate the need for more district court judges) was unconstitutional, and he had discussed the possibility of a boycott with his colleagues on the bench. But the justices decided not to make it a political issue and resumed the duties of riding the circuit. See R. Kent Newmeyer, “Symposium: Marbury v. Madison and the Revolution of 1800,”
George Washington University Law Review
72 (2003): 312; Van Alstyne and Marshall, “Critical Guide to Marbury v. Madison,” 35–37; Larry Kramer, “Understanding
Marbury v. Madison
,”
Proceedings of the American Philosophical Society
148 (March 2004): 25–26; and for the importance of
Stuart v. Laird
, whose opinion was written by Justice William Paterson and not Marshall, see Ackerman,
Failure of Founding Fathers
, 185–89, 193–94.

44.
While entirely speculative, this explanation is meant to provide additional insight into Jefferson’s mind. That he might have handed over the commission with a statement designed to limit judicial interference with executive authority is inferred from Jefferson’s action in 1807, when Marshall issued a subpoena
duces tecum
ordering him to hand over documents during Aaron Burr’s treason trial. At that time the president gave the court the required documents, while reserving the right to withhold any document containing confidential information. See Nancy Isenberg,
Fallen Founder: The Life of Aaron Burr
(New York, 2007), 345.

45.
Port Folio
, January 22, 1803 (on Monroe), and December 8, 1804 (on Madison).

46.
Davis,
Travels of Four Years and a Half
, 366.

47.
Republican Star
, September 21, 1802;
Trenton Federalist
, October 4, 1804. One of the “abandoned libelers” named was William Coleman, who had been set up in 1800 as editor of the
New-York Evening Post
by Alexander Hamilton.