To this militant attitude Jefferson ascribed the final decision of the Federalists to permit his election. But no evidence exists that they were intimidated in the least, or in any manner influenced, by the ravings of Jefferson's adherents. On the contrary, the Federalists defied and denounced the Republicans and met their threats of armed interference with declarations that they, too, would resort to the sword.[1278]
The proof is overwhelming and decisive that nothing but Burr's refusal to help the Federalists in his own behalf,[1279] his rejection of their proposals,[1280] and his determination, if chosen, to go in as a Republican untainted by any promises;[1281] and, on the other hand, the assurances which Jefferson gave Federalists as to offices and the principal Federalist policies—Neutrality, the Finances, and the Navy[1282]—only all of these circumstances combined finally made Jefferson president. Indeed, so stubborn was the opposition that, in spite of his bargain with the Federalists and Burr's repulsion of their advances, nearly all of them, through the long and thrillingly dramatic days and nights of balloting,[1283] with the menace of physical violence hanging over them, voted against Jefferson and for Burr to the very end.
The terms concluded with Jefferson, enough Federalists cast blank ballots[1284] to permit his election; and so the curtain dropped on this comedy of shame.[1285] "Thus has ended the most wicked and absurd attempt ever tried by the Federalists," said the innocent Gallatin.[1286] So it came about that the party of Washington, as a dominant and governing force in the development of the American Nation, went down forever in a welter of passion, tawdry politics, and disgraceful intrigue. All was lost, including honor.
But no! All was not lost. The Judiciary remained. The newly elected House and President were Republican and in two years the Senate also would be "Jacobin"; but no Republican was as yet a member of the National Judiciary. Let that branch of the Government be extended; let new judgeships be created, and let new judges be made while Federalists could be appointed and confirmed, so that, by means, at least, of the National Courts, States' Rights might be opposed and retarded, and Nationalism defended and advanced—thus ran the thoughts and the plans of the Federalist leaders.
Adams, in the speech to Congress in December of the previous year, had urged the enactment of a law to this end as "indispensably necessary."[1287] In the President's address to the expiring Federalist Congress on December 3, 1800, which Marshall wrote, the extension of the National Judiciary, as we have seen, was again insistently urged.[1288] Upon that measure, at least, Adams and all Federalists agreed. "Permit me," wrote General Gunn to Hamilton, "to offer for your consideration, the policy of the federal party extending the influence of our judiciary; if neglected by the federalists the ground will be occupied by the enemy, the very next session of Congress, and, sir, we shall see —— and many other scoundrels placed on the seat of justice."[1289]
Indeed, extension of the National Judiciary was now the most cherished purpose of Federalism.[1290] A year earlier, after Adams's first recommendation of it, Wolcott narrates that "the steady men" in the Senate and House were bent upon it, because "there is no other way to combat the state opposition [to National action] but by an efficient and extended organization of judges."[1291]
Two weeks after Congress convened, Roger Griswold of Connecticut reported the eventful bill to carry out this Federalist plan.[1292] It was carefully and ably drawn and greatly widened the practical effectiveness of the National Courts. The Supreme Court was reduced, after the next vacancy, to five members—to prevent, said the Republicans, the appointment of one of their party to the Nation's highest tribunal.[1293] Many new judgeships were created. The Justices of the Supreme Court, who had sat as circuit judges, were relieved of this itinerant labor and three circuit judges for each circuit were to assume these duties. At first, even the watchful and suspicious Jefferson thought that "the judiciary system will not be pushed, as the appointments, if made, by the present administration, could not fall on those who create them."[1294]
But Jefferson underestimated the determination of the Federalists. Because they felt that the bill would "greatly extend the judiciary power and of course widen the basis of government," they were resolved, writes Rutledge, to "profit of our shortlived majority, and do as much good as we can before the end of this session"[1295] by passing the Judiciary Bill.
In a single week Jefferson changed from confidence to alarm. After all, he reflected, Adams could fill the new judgeships, and these were life appointments. "I dread this above all the measures meditated, because appointments in the nature of freehold render it difficult to undo what is done,"[1296] was Jefferson's second thought.
The Republicans fought the measure, though not with the vigor or animosity justified by the political importance they afterwards attached to it. Among the many new districts created was an additional one in Virginia. The representatives from that State dissented; but, in the terms of that period, even their opposition was not strenuous. They said that, in Virginia, litigation was declining instead of increasing. "At the last term the docket was so completely cleared in ... ten days ... that the court ... had actually decided on several [suits] returnable to the ensuing term."[1297]