With such influence Jefferson might promise himself success in any undertaking; and if he had at heart one object more momentous than the embargo, it was the punishment of Chief-Justice Marshall for his treatment of Burr. As early as Nov. 5, 1807, Senator Tiffin of Ohio began his career in the Senate by moving, as an amendment to the Constitution, that all judges of the United States should hold office for a term of years, and should be removed by the President on address by two-thirds of both Houses. Governor Tiffin’s motion was not an isolated or personal act. The State legislatures were invoked. Vermont adopted the amendment. The House of Delegates in Virginia, both branches of the Pennsylvania legislature, the popular branch in Tennessee, and various other State governments, in whole or in part, adopted the principle and urged it upon Congress. In the House, George W. Campbell moved a similar amendment January 30, and from time to time other senators and members made attempts to bring the subject forward. In the Senate, Giles aided the attack by bringing in a bill for the punishment of treason. February 11 he spoke in support of his proposed measure, advancing doctrines which terrified Democrats as well as Federalists. Joseph Story was one of his audience, and wrote an account of this alarming speech:—
“Giles exhibits in his appearance no marks of greatness; he has a dark complexion and retreating eyes, black hair, and robust form. His dress is remarkably plain and in the style of Virginia carelessness. Having broken his leg a year or two since, he uses a crutch, and perhaps this adds somewhat to the indifference or doubt with which you contemplate him. But when he speaks, your opinion immediately changes.... I heard him a day or two since in support of a bill to define treason, reported by himself. Never did I hear such all-unhinging and terrible doctrines. He laid the axe at the root of judicial power, and every stroke might be distinctly felt. His argument was very specious and forensic, sustained with many plausible principles and adorned with various political axioms, designed ad captandum. One of its objects was to prove the right of the Legislature to define treason. My dear friend, look at the Constitution of the United States and see if any such construction can possibly be allowed!... He attacked Chief-Justice Marshall with insidious warmth. Among other things he said, “I have learned that judicial opinions on this subject are like changeable silks, which vary their colors as they are held up in political sunshine.””[161]
Had Giles’s proposed definition of treason become law, it would in another half-century have had singular interest for Virginians of his school. According to this bill any persons, without exception, “owing allegiance to the United States of America,” who should assemble with intent forcibly to change the government of the United States, or to dismember them or any one of them, or to resist the general execution of any public law, should suffer death as a traitor; and even though not personally present at the assemblage or at the use of force, yet should any person aid or assist in doing any of the acts proscribed, such person should also suffer death as a traitor.[162] Fortunately for Southern theories the bill, although it passed the Senate by means of Southern votes, was lost in the House, where John Randolph had introduced a bill of his own more moderate in character.[163]
Although the attack on the Supreme Court was more persistent and was carried further than ever before, it met with passive resistance which foreshadowed failure, and probably for this reason was allowed to exhaust its strength in the committee-rooms of Congress. The chief-justice escaped without a wound. Under the shadow of the embargo he could watch in security the slow exhaustion of his antagonist. Jefferson had lost the last chance of reforming the Supreme Court. In another six months Congress would follow the will of some new Executive chief; and if in the full tide of Jefferson’s power Marshall had repeatedly thwarted or defied him with impunity, the chance was small that another President would meet a happier fate.
The failure of his attack on the Supreme Court was not the only evidence that Jefferson’s authority when put to the test was more apparent than real. If in the President’s eyes Marshall deserved punishment, another offender merited it still more. Senator Smith of Ohio was deeply implicated in Burr’s conspiracy. The dignity of the President and of Congress demanded inquiry, and an investigation was made. The evidence left no reasonable doubt that Smith had been privy to Burr’s scheme; but the motion to expel him from the Senate failed by a vote of nineteen to ten, two thirds being required for this purpose. In the House, John Randolph brought charges against General Wilkinson which could neither be admitted nor met. The Administration was obliged to cover and ignore the military scandals brought to light by Burr’s trial.
Even in regard to more serious matters the Government could hardly feel secure. In February, Sloan of New Jersey offered a motion that the seat of government should be removed from Washington to Philadelphia. The House, February 2, by a vote of sixty-eight to forty-seven, agreed to consider the resolution, and a debate followed which proved how far from stable the actual arrangement was supposed to be. Republicans and Federalists alike assailed the place in which they were condemned to live. Fifteen million dollars, it was said, had been spent upon it with no other result than to prove that a city could never be made to exist there. One day they were choked with dust; the next they were wallowing in mire. The climate was one of violent changes and piercing winds. Members sickened and died in greater numbers than ever before, but in case of illness they could find no physician except by sending to the navy yard some miles away. At the last session the House had been driven from its old hall by the wind breaking its windows. The new hall, however magnificent was unfit for its purpose; to hear was impossible; its ventilation was so bad as to have caused the illness of Jacob Crowninshield, one of its leading members, then lying at the point of death. The prices of everything in Washington were excessive. Butter was fifty cents a pound; a common turkey cost a dollar and a half; in Philadelphia members would save one hundred and fifty dollars a day in hack-hire alone. Even these objections were trifling compared with the inconvenience of governing from a wilderness where no machinery existed to make administration easy. As an example of the absurdities of such a system, members pointed to the navy yard, only to be reached by following the windings of the shallow Potomac, while the Navy Department was obliged at extravagant cost to bring every article of use from the seaboard, besides recruiting seamen at the commercial ports for every ship fitted out at Washington.
Sloan desisted from his motion only after the House had shown itself strongly inclined toward his opinion. On another point the divergence of ideas became more marked, and Jefferson found himself obliged to strain his influence.
In the Republican party any vote for a standing army had been hitherto considered a crime. The Federalists in 1801 had left a force of five thousand men; Jefferson reduced it to three thousand. The Republican party believed in a militia, but neglected it. Throughout the Southern States the militia was undisciplined and unarmed; but in Massachusetts, as President Jefferson was beginning to notice, the Federalists took much care of their State soldiery. The United States fort at Newport was garrisoned only by goats, and the strategic line of Lake Champlain and the Hudson River, which divided New England from the rest of the Union, lay open to an enemy. In view of war with England such negligence became wanton. Jefferson saw that an army must be raised; but many of his truest followers held that militia alone could be trusted, and that the risk of conquest from abroad was better than the risk of military despotism at home.
For a people naturally brave, Americans often showed themselves surprisingly unwilling to depend upon their own strength. To defy danger, to rush into competition with every foreign rival, to take risks without number, and to depend wholly on themselves were admitted characteristics of Americans as individuals; but the same man who, when left to his own resources, delighted in proving his skill and courage, when brought within the shadow of government never failed to clamor for protection. As a political body the American people shrank from tests of its own capacity. “American systems” of politics, whether domestic or foreign, were systems for evading competition. The American system in which the old Republican party believed was remarkable for avowing want of self-confidence as the foundation of domestic as well as of foreign policy. The Republican party stood alone in refusing, on principle, to protect national rights from foreign outrage; but it defied imitation when the sacrifice of national rights was justified by the argument that if American liberties were not abandoned to foreign nations they would be destroyed by the people themselves. War, which every other nation in history had looked upon as the first duty of a State, was in America a subject for dread, not so much because of possible defeat as of probable success. No truer Republican could be found in Virginia than John W. Eppes, one of Jefferson’s sons-in-law; and when the House debated in February a Senate bill for adding two regiments to the regular army, Eppes declared the true Republican doctrine:[164]—
“If we have war, this increase of the army will be useless; if peace, I am opposed to it. I am in favor of putting arms into the hands of our citizens and then let them defend themselves.... If we depend on regular troops alone, the liberty of the country must finally be destroyed by that army which is raised to defend it. Is there an instance in which a nation has lost its liberty by its own citizens in time of peace? It is by standing armies and very often by men raised on an emergency and professing virtuous feelings, but who eventually turned their arms against their country.... I never yet have voted for a regular army or soldier in time of peace. Whenever an opportunity has offered I have voted them down; and so help me God! I will as long as I live.”