In an era when the validity of elections is vigorously disputed, Professor David Forte reminds us of how America’s tradition of a “peaceful transition” began.
Professor Forte … your witness
On January 6, 2021, Americans stared at their television screens in disbelief as rioters besieged the Capitol Building where within, the electoral votes for President were to be counted. For over two centuries, the peaceful resolution of election disputes, and the calm handing over power to a new incoming administration, had been America’s tradition and expectation.
George Will has called the simple ceremony where a new President raises a hand, takes an oath, and assumes office a “little miracle.” How did this “little miracle” come to be? Historians have dated it from the 1801 transition from John Adams to Thomas Jefferson, labelling it as the “first peaceful transition of power” to an opposing party in modern history. In fact, however, that transition nearly was anything but peaceful. It was in danger of not happening at all. But John Marshall and Thomas Jefferson, confirmed political adversaries that they were notwithstanding, made sure that the change would be a model for generations to come.
We should recall that the election of 1800 was the most bitter in all of American history. The two political parties, the Federalists and the Jeffersonian Republicans, regarded each other not as opponents, but as mortal enemies to the nation. Each believed the other was intent on destroying the country and its Constitution. The Jeffersonians claimed that John Adams was readying the country for a return to monarchy, while the Federalists were certain that Jefferson would import the French Revolution and its bloody suppressions to our shores.
During the decade of the 1790s, Great Britain and revolutionary France began a war that would not end until 1815 at Waterloo. Both nations preyed on American shipping. Though President George Washington insisted on a policy of neutrality, the Federalists and the Republicans nonetheless took opposing sides, favoring England and France respectively. It was not all rhetoric. When they gained control of Congress in 1799, the Federalists pressed their advantage to prosecute and convict Republican printers through the Alien & Sedition Acts.
By 1800, the chasm between the parties was unbridgeable, and partisan language reflected the divide. During the election campaign, Republican editors claimed that Adams was “a repulsive pedant…a wretch that has neither the science of a magistrate, the politeness of a courtier, nor the courage of a man.” Jefferson fared worse. One prominent clergyman called Jefferson a “howling atheist.” Another Federalist editor predicted that if Jefferson won, “murder, robbery, rape, adultery, and incest will be openly taught and practiced.”
Jefferson did win the close election, besting Adams by an electoral vote of 73 to 65. The Federalists, however, refused to accept defeat. They saw an opportunity to keep the hated Jefferson out of the presidency. In the process at that time (before the 12th Amendment had been passed), each elector voted for two persons for President, and the candidate with the second largest total became Vice-President. That is how Jefferson became Vice-President to John Adams in the election of 1796. But in 1800, Jefferson’s “running mate,” Aaron Burr, also collected 73 electoral votes along with Jefferson. One of Jefferson’s electors had failed to “throw away” one of his votes to leave Jefferson ahead of his “running mate.”
The Constitution required that the House of Representatives, voting by state, would decide between the two electoral leaders in case of a tie. In the outgoing Congress, the Federalists had a numerical majority in the House, and although they controlled the delegations of only six states, by voting for Burr, they would be able to deny Jefferson a majority. With 16 states in the union at the time, it would take nine to win. This, the Federalists in Congress resolved to do until one of two results occurred: if a number of Republican members of Congress defected and turned the election to Burr, or, if there was no President elected at all when President Adams’ term ended on midnight of March 3. In either case, Jefferson would not be President.
When the strategy became known, James Monroe, governor of Virginia, mobilized the Virginia militia in preparation for a march on Washington if Jefferson were denied the Presidency. Thomas McKean, newly elected Republican governor of Pennsylvania promised the same. In return, the Washington Federalist newspaper opined that 90,000 New England militia would go south to meet the threat. If the election were decided by force of arms, many Republicans predicted that the Constitution would be displaced and a new constitutional convention called. A civil war was more than a possibility.
On February 11, 1801, the House of Representatives met to decide who would be President. After 35 ballots, the result was the same: eight states for Jefferson, six states for Burr, and two delegations divided and casting no vote. The Republican members of the House had remained firm. Then, James Bayard, lone Federalist congressman from Delaware and friend and close confidant of John Marshall, declared that he would do what he had threatened all along, namely, that if the Republicans did not defect to Burr, Bayard and his allies would withhold their votes, swinging enough states to Jefferson to give him a majority. I will not “hazard the Constitution,” Bayard stated.
On February 17, Bayard went through with his prediction. With enough Federalist congressmen withholding their votes, the result was ten states for Jefferson, four for Burr, and two with blank ballots (Federalist congressmen not voting at all for either candidate). Thomas Jefferson had, at last, been elected President.
But would the Federalists accept Thomas Jefferson as President? President John Adams did not help matters when he let it be known that he would not attend the inauguration. In the most ungracious act of his administration, Adams would scurry out of President’s Mansion at four o’clock in morning of Inauguration Day, March 4, to board a coach to take him back to Massachusetts. Did this mean that the legitimacy of Jefferson’s presidency would be denied by the Federalists up and down the coast? There were already rumors of riots that might occur on inauguration day.
That question was resolved in the offices of the Secretary State John Marshall on March 2, 1801. John Marshall had become Chief Justice of the United States Supreme Court on January 31, but President Adams had asked him to continue on in his previous position, now as acting Secretary of State. Around Marshall, his office was in a flurry of activity, for in only two days, Thomas Jefferson would assume the presidency. But now, over in the Capitol, the Senate was finally approving dozens of appointments sent by President John Adams. Under the law, once the Senate approved and the President signed them, all appointments had to be routed through the State Department. Commissions had to made out, the countersignature of the Secretary affixed to each, the names of every appointee entered into the Department’s record book, and delivery arranged. (One of the appointees, it would turn out, was William Marbury.) The entire complement of the State Department—including five clerks, a translator, and a messenger—was put to work.
In the midst of the busyness, Marshall’s chief clerk, Jacob Wagner, delivered a message to the Secretary that had been received from Conrad’s and McMunn’s Boarding House. It was from Thomas Jefferson. Conrad’s, on the south side of the Capitol Hill, was Jefferson’s and the Republicans’ favorite place of lodging while in the District. The Federalists, including John Marshall, stayed at Tunnicliff’s Hotel and Tavern, on the east side of the Capitol.
The man who would soon be President was reaching out to his longtime adversary, for the two Virginians, second cousins though they were, had been personal and political rivals for years. Marshall had long thought the aristocratical sage of Monticello to be two-faced, betraying Washington behind the President’s back, while pretending to be the voice of the common man. He resented Jefferson’s victory over John Adams, whom Marshall had served with genuine respect. Marshall also believed that Jefferson was, at heart, an anti-Federalist, and not a friend to the Constitution. In turn, Jefferson regarded Marshall’s home-spun charm, casual dress, and effective persuasiveness as a ploy to undermine the republican values that Jefferson so passionately embraced.
When Marshall opened the letter, he discovered that the man who was to be President two days hence was asking him to remain as acting Secretary of State. James Madison, who all knew was to be the new Secretary, had been delayed by the death of his father and the necessity of winding up his estate, and Madison himself was ill. It was not certain when Madison could return to Washington to take up those duties. In fact, he did not do so until the First of May.
In the meantime, there was a present necessity to have a Secretary of State. Britain and France were at war and neutral vessels departing from United States ports had to carry a “sea letter” that described their cargoes and destination so that they could pass in safety if stopped by British or French warships. To be valid, the sea letter must be signed by the President and countersigned by the Secretary of State. With Madison gone, however, Jefferson would need someone at the State Department for more than a day, and he asked Marshall to carry on his official duties under him.
The significance of the request was unmistakable. Marshall had been, as Secretary of State, the senior member of the administration under the President. He was Adams’ closest advisor, drafted the President’s messages to the Congress, and in fact ran the administrative apparatus. Treasury Secretary Oliver Wolcott wrote of him at this time, “His value ought to estimated not only by the good that he does, but by the mischief he has prevented.”
Putting aside political enmity, Marshall immediately agreed to serve under the new President. When he received Marshall’s agreement later that day, Jefferson sent Marshall an additional letter confirming him as acting Secretary of State postdated to March 4. He likely also included the sea letters, similarly postdated. But something of greater significance occurred in this appointment than administrative convenience. With Marshall agreeing to stay on to serve Jefferson, the legitimacy of the transfer of power would be manifested in a practical manner.
A more visible acknowledgment of the transfer of legitimacy was in the next paragraph of Jefferson’s letter to Marshall, in this case, in Marshall’s capacity as Chief Justice: “I propose to take the oath or oaths of office as President of the U.S. on Wednesday the 4th inst. at 12 o’clock in the Senate chamber. May I hope the favor of your attendance to administer the oath?” The request revealed the gravity of this moment in American political history for both Jefferson and Marshall. The inaugural oaths to Washington and Adams had been administered by high judicial officials. New York’s Chancellor Robert Livingston had administered the oath at Washington’s first inauguration, and Supreme Court Justice William Cushing the second (Chief Justice John Jay apparently having been absent). Chief Justice Oliver Ellsworth administered John Adams’ oath of office in 1797. By following this tradition—for there was no legal requirement that the Chief Justice administer the oath—Jefferson was placing himself in the train of previous presidents, thereby helping to allay Federalist fears that his “Revolution of 1800” would be the kind of radical break with the past as had happened in France.
Lest any misinterpretation among observers arise from Marshall’s well-known propensity to be late, Jefferson tactfully continued, “As the two houses have notice of the day I presume a precise punctuality will be expected from me.” Marshall took the hint. In his quickly drafted reply to Jefferson, he stated, “I shall with much pleasure attend to administer the oath of office on the 4th of March with a point of being punctual.” Both knew the symbolism of the day. If Marshall had been tardy, it would have been seen and taken as a grave snub of the new President.
Then, in an irony that Jefferson did not realize, he asked Marshall to decide whether the oath of office prescribed in the Constitution, or the one that Congress had legislated, should be used. Jefferson gave his opinion that “it may be questionable whether the legislature can require any other oath from the President.” In other words, Jefferson was asking Marshall to decide whether an Act of Congress was constitutional, something he would contest in Marshall’s role as Chief Justice while Jefferson was President. In reply, Marshall stated his view unequivocally: “That prescribed in the constitution seems to me to be the only one which is to be administered.”
Finally, Jefferson noted that he had a need of a secretary. He had not received yet word from Meriwether Lewis whom he had asked to be his secretary, Lewis being far from easy communication in Pittsburgh. Jefferson concluded his missive,
Not being yet provided with a private Secretary, & needing some person on Wednesday to be the bearer of a message or messages to the Senate I presume the Chief Clerk of the Department of State might be employed with propriety. Permit me through you to ask the favor of his attendance on me to my lodgings on Wednesday after I shall have been qualified.
Marshall of course knew Wagner would be thoroughly occupied with critical business these next two days. Dozens of appointments were just now being approved by the Senate. Clerks were making out the commissions, but once the Senate acted, the commissions would have to be carried to the President’s House for his signature and then returned to the State Department offices for the Seal of the United States to be affixed and the Secretary’s signature appended. Wagner would then have to see that the commissions were first recorded in the Department’s Record Book and thence delivered to the appointees. Nonetheless, the new President needed a secretary, so Marshall told Wagner of Jefferson’s request. Marshall assured Jefferson, “The Chief Clerk of this department will attend you at the time requested.” Marshall was helping to make sure, in what we would call today, of a smooth transition.
On Wednesday morning, March 4, in his lodgings at Tunnicliff’s, John Marshall rose to prepare himself for his duties at the inauguration. He had a few moments, so he sat down and wrote to Charles Cotesworth Pinckney, Adams’ running mate, who had earlier written to congratulate Marshall on his appointment as Chief Justice. Marshall acknowledged,
For your friendly expressions on my late appointment I am infinitely obliged to you. Of the importance of the judiciary at all times, but more especially the present I am fully impressed & shall endeavor in the new office to which I am calld not to disappoint my friends.
Marshall then described the situation.
To day the new political order commences—The new order of things begins. … The democrats are divided into speculative theorists & absolute terrorists: With the latter I am not disposed to class Mr. Jefferson. If he arranges himself with them it is not difficult to foresee that much calamity is in store for our country—if he does not they will soon become his enemies & calumniators.
Marshall’s prophecy was at least partially fulfilled. The propagandist, James Callendar, whom Jefferson had set up and whom the Federalists imprisoned, would later turn on Jefferson with fury, while some of Jefferson’s more radical supporters chafed when Jefferson did not immediately purge the Federalists entirely from the government.
When it was time, John Marshall left off writing his letter to Pinckney to stroll up to the Capitol. It was a balmy day, presaging of Spring. When Marshall reached the Senate chamber, he found that Vice-President Aaron Burr had already been sworn in by James Hillhouse of Connecticut, the president pro-tempore of the Senate.
Soon Jefferson himself was taking the two hundred paces to the Capitol from his lodgings at Conrad and McMunn’s in the company of throngs of well-wishers. Some members of Congress and elements of the Virginias militia provided escort. Jefferson made a point to appear republican. He was plainly dressed, his hair tied back in a modest queue. Unlike Washington and Adams, who had arrived at their inaugurations in a handsome carriage and who took the oath wearing a ceremonial sword, Jefferson trod to his triumph on foot.
When Jefferson arrived, he found the Senate Chamber, over which he had presided for four years as Vice-President, crowded with perhaps as many as a thousand persons. It was the only completed room in the Capitol. The Alexandria Times recorded the beginning of the new era.
At 12 o’clock (which was announced by a signal gun) Mr. Jefferson left his lodgings and walked to the Capitol, followed by the members of the House of Representatives and preceded by a detachment of the Alexander militia officers with drawn swords, and the marshal and deputy marshals of the district of Maryland [i.e. Washington County]. On his arrival at the Capitol, the Alexandria rifle company, commanded by Capt. Janney, which was stationed at the door, and the militia officers, opened their ranks and saluted the President elect as he passed.
As Jefferson entered the densely packed room, the members of the House and Senate rose. Vice-President Aaron Burr and Chief Justice Marshall also stood to greet him. Burr relinquished his chair as President of the Senate to Jefferson, taking a seat to the right, while John Marshall sat on Jefferson’s left. Jefferson remained seated for a few moments in silence, and then, he rose to deliver one of the most eloquent utterances of his life—eloquent, but barely audible. His soft-spoken delivery reached few in the audience, but the draft had already been given to the National Intelligencer beforehand, so the words, if not already in the hands of his audience, would be that very afternoon.
He began with becoming modesty and moving thanks for the country in which he dwelt. He desired
to declare a sincere consciousness that the task is above my talents, and that I approach it with those anxious and awful presentiments which the greatness of the charge and the weakness of my powers so justly inspire.
Then he embarked upon to the main theme of his address, which was a plea for harmony and reconciliation.
Let us then, fellow citizens, unite with one heart and one mind, let us restore to social intercourse that harmony and affection without which liberty, and even life itself, are but dreary things.
And in words that immediately transported his audience and have been recalled from then until now, he declared
[B]ut every difference of opinion is not a difference of principle. We have called by different names brethren of the same principle. We are all republicans: we are all federalists.… I know, indeed, that some honest men fear that a republican government can not be strong, that this Government is not strong enough; but would the honest patriot, in the full tide of successful experiment, abandon a government which has so far kept us free and firm on the theoretic and visionary fear that this Government, the world’s best hope, may by possibility want energy to preserve itself? I trust not.
Only after the address and another brief moment of silence did Jefferson turn and take the oath of office from Chief Justice Marshall. The Alexandria Times continued
Immediately after the oath of office was administered to Mr. Jefferson, sixteen rounds were fired by the Alexandria artillery company, which was drawn up on Capitol hill, from two field pieces which had been transported from Alexandria for the purpose. These guns were answered by the inhabitants of Alexandria by sixteen discharges from a 6 pounder at the point, below the town. The procession then returned in the same order to Conrad & M’Munn’s, where, on entering the door the President of the United States was saluted by the military. On the President’s arrival at his lodgings, the foreign ministers, the members of Congress, and a large number of the citizens of the District of Columbia waited upon him to pay their respects.
Marshall too came along with the inaugural party and undoubtedly exchanged greetings with friends from Congress and members of the diplomatic corps. There was a great celebration at Conrad’s that afternoon, refreshments served, and congratulations tendered to the tall quiet man who was now President.
When it was appropriate, John Marshall took his leave of the President, his new boss, and took the short walk back around the edge of Capitol Hill to his own lodgings at Tunnicliff’s Hotel. At around four o’clock, he sat down and resumed his letter to Pinckney. Marshall had been close enough to hear Jefferson’s address and acute enough to listen to what he was actually saying, particularly near the end, when Jefferson outlined his Republican program. Marshall penned,
I have administered the oath to the president. You will before this reaches you see his inauguration speech. It is in general well judgd & conciliatory. It is in direct terms giving the lie to the violent party declamation which has elected him; but it is strongly characteristic of the general cast of his political theory.
“I have administered the oath to the president,” John Marshall wrote. After the most divisive election in American history, fraught with threats of gridlock and civil war, John Marshall and Thomas Jefferson put their partisan difference to the side, and saw through the “first peaceful transition,” a model and type of how our democracy ought to act. They resolved “Not to hazard to constitution. We would do well to follow their example.