Chase concluded that he would not accept the new circuit duties he had been assigned unless his brethren disagreed with his reasoning. He hoped the justices might meet in Washington to arrive at a common resolution of this question. Probably the district judges would agree.

  Justice Cushing reasoned entirely opposite to Chase.19 He had considered Chase’s arguments carefully. Yet eleven years’ precedent of Supreme Court justices serving on circuit courts had answered the question whether they might do so, he thought. Further, for a justice to refuse to serve as a circuit judge would not restore either the office or the salary of one of the circuit judges displaced by the Judiciary Act of 1802, so the justices would have no responsibility at all in that regard. Presenting their concerns to Jefferson could not help, as the law had already been adopted, the legislature was not in session, and neither Jefferson nor, certainly, the Federalist justices could make Congress change its decisions.

  Justice Bushrod Washington agreed with Cushing, to Marshall’s disappointment.20 “I have no doubt myself but that policy dictates this decision [acquiescence in the new state of things] to us all,” Marshall then told Paterson. Still, “[j]udges … are of all men those who have the least right to obey her dictates.” He would go along with the majority, and he would inform Paterson of Justice Alfred Moore’s views.21

  In the end the justices rode circuit in the fall of 1802 without raising the constitutional issue.22 On January 1, 1803, the Supreme Court in Stuart v. Laird23 answered an argument for reversal of an earlier circuit-court order on the ground that “the judges of the supreme court have no right to sit as circuit judges, not being appointed as such, or in other words, that they ought to have distinct commissions for that purpose,” as Justices Cushing and Washington had written they ought to do. Justice Paterson’s opinion for the Court said, “To this objection, which is of recent date, it is sufficient to observe, that practice and acquiescence under it for a period of several years, commencing with the organization of the judicial system, affords an irresistible answer, and has indeed fixed the construction. It is a contemporary interpretation of the most forcible nature.”

  The practice of the Federalist era in American politics had been raised to constitutional status. “Of course, the question is at rest,” the justice concluded, “and ought not now to be disturbed.” Whatever the new government had done in its earliest days, without giving much thought to constitutional questions, would be presumed constitutional. This argument would be heard again later in the Jeffersonian period, in perhaps the most unexpected of contexts. In some contexts, it was the political elite that invoked Federalist practice as binding precedents; in others, it was common people who saw things that way.

  12

  Chief Justice Marshall and his associates did not know it, but what seemed to them a low point for Federalism struck the resident of what is now 1600 Pennsylvania Avenue rather differently. While they planned a response to the Judiciary Act of 1802, President Jefferson dreaded the impending publication of Marshall’s The Life of George Washington. The late general’s papers had been entrusted to his nephew Justice Washington, and Jefferson feared the impact of a popular, slanted version of Washington’s life based on the hero’s personal correspondence. He asked Joel Barlow, the famous Connecticut Republican writer, to enter the lists against Marshall.1

  “Mr. Madison & myself have cut out a piece of work for you,” the president wrote from the Executive Mansion, “which is to write the history of the US. from the close of the war downwards.” The Republican high command dreaded a biased account of the battle with Hamiltonianism—one that put them in a bad light. Thus their friend should answer.

  The chief justice had abundant materials on which to base his work, Jefferson knew Barlow would be thinking, but “we are rich ourselves in materials, and can open all the public archives to you.” Marshall had George Washington’s papers, but Jefferson and Madison had the best account of the Philadelphia Convention, Madison’s, besides Madison’s and Jefferson’s own extensive papers, including their correspondence and Jefferson’s several memoranda of his experience in Washington’s Cabinet. In addition, as Jefferson pointed out, the archives were at their disposal. Besides providing these sources, Jefferson and Madison would be available to Barlow “for verbal communication.”

  The catch was that he would have to relocate to Washington. Knowing that Barlow shared not only his principles, but his loathing of Federalism, Jefferson guessed that learning Marshall’s book was “intended to come out just in time to influence the next presidential election” would seal the deal. George Washington had, on reading Barlow’s Vision of Columbus, an epic poem about America, branded its author “a genius of the first magnitude … and one of those Bards who hold the keys of the gate by which Patriots, Sages, and heroes are admitted to immortality,”2 but Jefferson never knew how ironic his invitation to Barlow thus was. Washington’s correspondence remained unavailable to him.

  Jefferson at the beginning of his intellectual life thought historical study a pointless diversion, but by 1802 he changed his mind.3 Now he believed it necessary to understand the Revolutionaries’ experience as they had, because only thus could Americans defend their legacy. All the materials to which he offered Barlow access had been collected for this purpose.

  Barlow disappointed him, however. He did not accept Jefferson’s invitation in time for the 1804 election, so “the perversions of truth necessary to be rectified,” as Jefferson described them to Barlow, were left to local newspapers to address. Nor indeed did any other Republican accept the task of answering Marshall’s book in Jefferson’s lifetime.

  Also early in 1802 Jefferson signed into law an abridgement of the length of residency required preliminary to naturalization. As he had noted in his State of the Union message in December, Federalists had extended it to fourteen years by legislation of 1798, but now Republicans in Congress cut it back to five. Together with the repeal of that same year’s Alien Act, the defeat of an 1801 attempt to reenact the expired Sedition Act, and Jefferson’s pardons for those convicted under that law, this meant that the entire suite of repressive legislation that had provoked the Virginia and Kentucky Resolutions had expired or been repealed.4

  President Jefferson faced another significant problem early in his presidency. This one had to do with the “peculiar institution” of the Southern states, specifically of Virginia. Just as the presidential election of 1800 had come to a head, Virginia seemingly had been the site of the largest slave conspiracy in American history. A slave on a plantation near Richmond, Gabriel Prosser, had organized many (he would claim well over a hundred) slave men to rise against their masters. Their plan was to march on the capital on an appointed evening, seize the state armory with the aid of the black man who was on watch there, abscond with the Commonwealth’s store of weapons, and use them to take control of the city.5

  Highly unfortunate in their timing—the appointed night, August 30, 1800, proved to be the occasion of the heaviest rainstorm in memory6—Gabriel and his coadjutors were captured. After the first few of what would be a lengthy series of trials, several of the insurgents were hanged. Rumors that white Frenchmen had been involved originated with the slave participants themselves. Distant Federalists chortled in private that now the Francophile Virginia Republicans were receiving a share of “liberty and equality.”7

  By September 15, 1800, Governor Monroe concluded that the bulk of the participants had been captured and the danger to the state had passed. After discharging the bulk of the militia called into service for the occasion,8 Monroe wrote to his political patron, Vice President Jefferson. “We have had much trouble with the negroes here,” he began. “The plan of an insurrection has been clearly proved, & appears to have been of considerable extent. 10. have been condemned & executed, and there are at least twenty perhaps 40. more to be tried, of whose guilt no doubt is entertained. It is unquestionably the most serious and formidable conspiracy we have ever known of the kind: tho’ indeed to call it so is to give no idea of the thing itself.” He had at first kept the news secret, but then had employed the full power of the state “to intimidate” potential participants.

  Monroe wrote not merely to inform Jefferson, but to ask his advice. “Where to arrest the hand of the Executioner,” he noted, was “a question of great importance.” A confessed conspirator who had aimed to kill his master could never “become a useful servant.” Besides, Virginia had “no power to transport him abroad.” Clearly having found the whole affair distasteful, he concluded that he could not “say whether mercy or severity [wa]s the best policy in this case, though where there [wa]s cause for doubt it [wa]s best to incline to the former council.” What to do?

  Jefferson confided to Monroe that even at Monticello, “where every thing has been perfectly tranquil,” though “a familiarity with slavery, and a possibility of danger from that quarter prepares the general mind for some severities, there is a strong sentiment that there has been hanging enough.”9 Clearly with an eye to Republicans’ prospects in that year’s federal elections, the vice president pointed out that “the other states & the world at large will for ever condemn us if we indulge a principle of revenge, or go one step beyond absolute necessity.…” After all, though free Virginians had their “rights,” the slaves’ goal—freedom—made them sympathetic in the eyes of many outside onlookers. The puzzle was made more difficult, as Jefferson saw it, by the essential impossibility of safely reincorporating Gabriel’s followers into Virginia society.

  Jefferson hoped the General Assembly would provide for the remaining conspirators’ “exportation.” He considered this “the proper measure on this & all similar occasions.” Jefferson had for twenty years by this point been devoted to the concept of colonization—freeing all slaves and moving them outside Virginia and/or America in the ordinary course of life.10 Slaves had the same right to liberty as anyone else, and so they must eventually be freed. He believed, however, that whites’ distaste for blacks and slaves’ loathing of whites (which he said whites earned anew every day) meant the two races could not live peacefully together. Thus he looked to a day when the blacks might be sent abroad. Gabriel’s conspiracy made the general issue urgent.

  At its next session the Virginia General Assembly first authorized sale of condemned slaves beyond the bounds of Virginia, then took up the matter of what to do with “persons obnoxious to the laws or dangerous to the peace of society,” resolving to have the governor raise it with his friend the president.11 Their idea was “obtaining by purchase lands without the limits of” Virginia to which the slave rebels might be sent. “The idea of such an acquisition,” Monroe explained to now-President Jefferson, “was suggested by motives of humanity, it being intended by means thereof to provide an alternate mode of punishment for those described by the resolution, who under the existing law might be doomed to suffer death.”

  Monroe told Jefferson that he thought the resolution contemplated moving the convicts in question to the Federal Government’s western lands, but he did not see that it ruled out deporting them from America altogether. He thought “or dangerous to the peace of society” could be read as including more people than “persons obnoxious to the laws,” but said he would not state an opinion on that question.

  Read it in the broader way, Monroe continued, and “vast and interesting objects present themselves to view.” He then ruminated on the condition of Virginia—the relationship of society as a whole to slaves—more generally. “It is impossible not to revolve in it,” he said, “the condition of those people, the embarrassment they have already occasioned us, and are still likely to subject us to.”

  By “embarrassment,” he referred not to abashment, but to difficulty—notably during the American Revolution, when Lord Dunmore’s Proclamation had thrown Virginia slave owners off their guard, driving them into supporting independence, and numerous Virginia slaves—some Jefferson’s own property—had fled into the British Army. He also referred, of course, to Gabriel’s Rebellion itself. Such problems would likely recur.

  “We perceive,” the governor continued, knowing Jefferson to be sympathetic, “an existing evil which commenced under our colonial System, with which we are not properly chargeable, or if at all not in the present degree.…”12 Then-Burgess Jefferson had with “A Summary View of the Rights of British America” (1774) intended to instruct Virginia’s congressmen to upbraid King George III for not approving Virginians’ attempts to stanch slave imports, and he had more famously intended in his draft Declaration of Independence (1776) to rebuke George for inflicting slavery on the colonies. The germ of accuracy in those charges had been that contemporary Americans had not made the decision that slavery should come to North America. No doubt familiar with Jefferson’s old claims, Monroe here conceded that Virginians of 1801 might bear some responsibility for slavery’s existence in the Old Dominion—though certainly “not in the present degree.”

  “We acknowledge,” he said, “the extreme difficulty of remedying it.” Jefferson had written in his sole book, Notes on the State of Virginia (1781), that freeing Virginia’s slaves without deporting them, which in the nineteenth century was called “colonizing” them, would “produce convulsions which [would] probably never end but in the extermination of the one or the other race.”13 No doubt Monroe shared his trepidation, as he referred to “obstacles which become more serious as we approach them.” Still, if the General Assembly were to act “in the extent to which it is capable, with a view to adopt the system of policy which appear[ed] to it most wise and just,… it [was] necessary that the field of practicable expedients be opened to its election, on the widest possible Scale.” On the basis of this passage, the editor of Monroe’s papers describes this letter as “the first known instance of JM expressing his support for the idea of general emancipation in Virginia.”14

  So he wanted Jefferson’s help. Could Virginia obtain some of the United States’ western lands for the purpose? If so, “on what terms?” If “a friendly power” might make appropriate territory available, “and [be] willing to facilitate the measure by co-operating with [Virginia] in the accomplishment of it,” he would like that information too. Perhaps the president could inquire of foreign countries with lands nearby regarding this project. Indeed he would do so. Monroe could not have known that Jefferson’s first response to news of Gabriel’s plot was to exclaim, “We truly are to be pitied!” Jefferson understood the deplorable situation in which white Virginians found themselves just as Monroe did.15

  At the General Assembly’s request Jefferson hoped to obtain permission from the British to send survivors of Gabriel’s Rebellion to their new west African colony of Sierra Leone. In conveying this message to the American minister to Great Britain, Federalist holdover Rufus King, Jefferson made a notable point.16 The people the General Assembly looked to transport, as Jefferson had it, were “not felons, or common malefactors, but persons guilty of what the safety of society, under actual [meaning current] circumstances, obliges us to treat as a crime.…” From the point of view of Sierra Leone, however, these people would be desirable immigrants: “they are such,” the president held, “as will be a valuable acquisition to the settlement already existing there.…”

  Of course, he ruminated, transporting so many people to Africa could be quite expensive. Why not then allow them to enter into indenture agreements, “as the Germans & others do who come to this country poor, giving their labour for a certain term to some one who will pay their passage.” Ships’ captains might be attracted into this business by the prospect of carrying items in commerce between that country and this one. King should pursue this issue with His Majesty’s Government. In fact King should inquire not only for information about sending the recently rebellious slaves, but about sending others not involved in Gabriel’s conspiracy to Sierra Leone. The general population of people emancipated in Virginia were not “a selection of bad subjects,” but generally either a master’s entire stock of slaves or “such individuals as have particularly deserved well. the latter is most frequent.”

  King may not have known it, but Jefferson had been urged to replace him as America’s minister to the Court of St. James’s. Jefferson closed his letter by assuring King that he hoped for smooth relations with the British and that Secretary Madison’s expressions of contentment with King’s performance reflected the president’s own views. No doubt Jefferson saw both domestic and diplomatic benefits to keeping King in place. His continuance in what in those days of primitive means of communication could be a significant policy-making post served as a powerful symbol of Jefferson’s intention to tamp down the former partisan divisions. Besides, the facts that his party’s Anglophile tendency was known in Whitehall and that King had established a reputation of his own there could only help the administration’s effort to keep American-British relations on a good footing.