Marshall came out as the stanch and unshakable champion of legality, and Jefferson did not refrain from using the arguments and reasonings resorted to by the Federalists when the Sedition Act was passed. There was little excuse for a man of his legal training in believing that Burr could be convicted and punished for his "intentions" to commit a crime, and the prosecution failed to bring in sufficient proof of Aaron Burr's guilt. It would have been more dignified and more consistent with Jefferson's theories if, after the conspirator was made powerless, the President had remained silent. That, however, he could not do. Early in October, he called back Attorney-general Robert Smith in order to prepare a selection and digestion of the documents respecting Burr's treason and, in his message to Congress, on October 27, if he did not use the word treason, he still accused Burr of "enterprise against the public peace." He assumed responsibility and claimed credit for the measures that had permitted "to dissipate before their explosion plots engendering on the Mississippi." He laid before Congress the proceedings and evidence exhibited on the arraignment of the principal offenders. Finally, he concluded that Burr's acquittal was evidence that there was something wrong somewhere, and that the nation could not remain defenceless against such dangers. "The framers of our constitution certainly supposed they had guarded, as well their government against destruction by treason, as their citizens against oppression, under pretence of it; and if these ends are not attained, it is of importance to inquire by what means more effectual they may be secured."
A year later, writing to Doctor James Brown about the measures of repression taken by Wilkinson in New Orleans, Jefferson presented what he considered a full justification of his conduct:
I do wish to see these people get what they deserved; and under the maxim of the law itself, that inter arma silent leges, that in an encampment expecting daily attack from a powerful enemy, self preservation is paramount to all law. I expected that instead of invoking the forms of the law, to cover traitors, all good citizens would have concurred in securing them. Should we have ever gained our Revolution, if we had bound our hands by manacles of the law, not only in the beginning, but in any part of the revolutionary conflict?[458]
This was exactly the sort of reasoning that Jefferson had opposed so strenuously when advanced by his political opponents. Apparently he had completely reversed his position after getting in the saddle, which was very illogical and perhaps very damnable, but also very human. He was now, to use the vivid expression of a French statesman, "on the other side of the barricade", and he saw things in a different light. But if this episode can serve to illustrate the inconsistency of the philosopher, it constitutes also a most striking refutation of the accusations of Jacobinism so often launched against Jefferson; for only the Jacobin is perfectly consistent in all circumstances. More than thirty years had elapsed since Jefferson had copied the old maxim fiat justifia ruat cœlum in his "Memorandum book" and he was still wont to repeat it, but it had taken him less than eight years of executive responsibility to make him admit that democracy does not work in times of emergency. It was a most dangerous admission, but one to be expected from a man in whom still lived the ruthless spirit of the frontier. Pioneer communities in which unrestricted and unlimited democracy prevails are pitiless for the outlaw who endangers the life of the group, and are not stopped by "legal subtleties." In Jefferson there was more of the pioneer than he himself believed. For this very reason he was probably more completely and intensely an average American than if he had "acted up" to the letter of the law in every circumstance.
This was by far the most dramatic of the internal difficulties that Jefferson had to face during his second term. Burr's conspiracy obscured the attacks against Madison led by the former spokesman of Jefferson's party, John Randolph of Roanoke. But already, when Burr's trial was held in Richmond, "circumstances which seriously threatened the peace of the country" had made it a duty to convene Congress at an earlier date than usual. Once again, as under the administrations of Washington and Adams, foreign policies were to dominate and direct domestic policies, and once again America was to bear the penalty of all neutrals who try to keep out of the war in a world conflagration.
CHAPTER IV
"PEACE AND COMMERCE WITH EVERY NATION"
War is not always an unmixed curse, at least for nations who manage to remain neutral while the rest of the world is torn by calamitous conflicts. Europe's misfortune had been to some extent America's good fortune. With comparatively short intermissions, France and England were engaged in a death struggle from 1793 to 1815, and although Britannia ruled the sea, the belligerents had to resort to neutral shipping. The exports of the United States, which were valued at only nineteen millions in 1791, reached ninety-four millions in 1802, and one hundred eight millions in 1807. The imports followed approximately the same curve for the corresponding dates, jumping from nineteen millions to seventy-five millions in 1802 and reaching over one hundred thirty-eight millions in 1807. If the United States had been permitted to pursue the policy outlined by Jefferson in his messages, "to cultivate the friendship of the belligerent nations by every act of justice and of incessant kindness" (October 17, 1803), "to carry a commercial intercourse with every part of the dominions of a belligerent" (January 17, 1806), a sort of commercial millennium would have been attained and the prosperity of the United States would have been boundless. But, at least at the beginning of the nineteenth century, neither the rights of neutrals nor international law were observed by the belligerents, and neutrals were bound to suffer as well as to profit by their privileged situation.