In the wake of Hay’s visit, Randolph wrote Monroe that he would always remember the personal kindness Monroe had done him by seeing to his handicapped nephew’s British education and to insist that he would always “rejoice to hear of your personal prosperity.” That he would no longer care for Monroe’s political success went unspoken. Political Manichean that he was, Randolph that night jotted only four words in his diary: “Richmond, James Monroe, Traitor.” The other leading Old Republicans, Taylor and Littleton Waller Tazewell, happily endeavored to escort their confreres into the Madison administration’s good graces.16 This was the ground on which Monroe entered upon his second stint as governor. He no doubt took it, as his friend Jefferson characterized it in a congratulatory letter, as “bearing testimony to the fidelity of [his] principles before the Republicans of the union generally.”17

  A few days later Madison asked Virginia (state) Senator Joseph Brent to sound out Governor Monroe regarding his willingness to become secretary of state. Brent told Monroe he had already relayed his belief that Monroe would be willing and that although he could not promise it, he was certain Monroe would be appointed as soon as his answer was given. Immediately upon receiving this news on March 13, 1811, Monroe wrote to Tazewell asking his advice. “The removal of the current incumbent, and the race of pigmy associates, who are combined with him, in a pestilent system of policy” was of course desirable, but Monroe worried that by entering the Cabinet, he would merely associate himself with a line of policy it was too late to change, thus damaging his own reputation without conferring any benefit upon the country. Too, he feared that leaving the governorship only a few days after accepting it would give the wrong impression. Therefore, he said, “The bias of my mind is against it.”18

  Tazewell hurried to write back that of course Monroe must accept the post. He likely thought it remarkable that so soon after the break with Randolph, thus Monroe’s evident abandonment of the Tertium Quids, they were now to see their figurehead elevated to the second post in the government. He did say, however, that in case Monroe did accept the offer, he should condition his acceptance on the principles in foreign policy for which he was known to stand, which “are the result of much reflection & experience, and therefore will not probably be changed.” Being known to have insisted on this condition would stand Monroe in good stead, Tazewell noted, whether he was taken into the Cabinet on that basis or not. If the measures Monroe favored were adopted, he would be directing the administration’s chief policies—“in fact, altho’ not in name, the President, & must hereafter inevitably succeed to the name also, provided the issues of your Counsels are prosperous.” Tazewell hoped that the arrangement with Britain a Secretary Monroe could achieve would stand America in as good stead as if the Monroe-Pinkney Treaty had been ratified.

  Perhaps such a British adjustment would lead to war with France, but Tazewell thought prudence could avert it. He also thought that the country had a right to expect Monroe to take this position, in which his weight on the side of good policy would help Madison, always disposed to do good, fend off the bad counsel by which he had sometimes been misled. To refuse the post would “give a death blow” to Monroe’s career. Virginians, having put Monroe in the governor’s mansion in anticipation of the good he could do there, surely would not resent his departing it in expectation of doing greater good in Washington.19

  Monroe consulted other political allies as well. Besides Randolph, who criticized the idea, they sided with Tazewell.20 He next drafted a letter accepting the offer, ran it by Tazewell, and sent it to Brent. It said essentially what Monroe and Tazewell had agreed it should: that Monroe recognized the crisis at which the nation’s affairs had arrived, had always worked well with and respected Gallatin and Madison, and still held Madison in high esteem, and that he only thought he could enter upon this new role in case the government’s policy was not already set in stone.21

  Madison’s response, dated two days later, said that Monroe’s services would be needed for a short time starting in two weeks, after which he would be free to take a holiday.22 Monroe answered that he would be happy to accept the post if Madison understood that he had thought in 1806 that America ought “to make an accomodation with England, the great maritime power, even on moderate terms, rather than hazard war, or any other alternative. On that opinion,” as Madison perfectly well knew, “I acted afterwards, while I remain’d in office, and I own that I have since seen no cause to doubt its soundness.” Besides that, Madison could solve the ticklish problem Monroe faced in Richmond by sending Monroe a note explaining why his services were needed in Washington and in what capacity so that he could lay it before the General Assembly.23 Madison answered that the general policy of trying to make peace with the great powers, “or with either, as leading to a settlement with the other; or that failing, as putting us on better ground against him,” had been the general object of the U.S. Government since 1800. While there might be disagreement about specifics “even among those most agreed in the same general views,” this would be the Executive’s position going forward. The main bones of contention between America and Whitehall—“the Chesapeake, the orders in Council, and Blockades”—had all arisen since 1806, anyway.24 Monroe then moved with his wife, Elizabeth, and daughter Maria to the District of Columbia, where he accepted a recess appointment on April 6th. Once Congress convened, the Senate, receiving a regular nomination on November 13th, confirmed the appointment (despite dilatory measures by Giles) unanimously (yes, including Giles) on November 25th.25 (Perhaps worthy of note is that Virginia Council of State President George. W. Smith succeeded to the governorship upon Monroe’s resignation. He was elected to a full term when Monroe’s expired, was sworn in to that on December 5th, and so died in the great Richmond Theater Fire three weeks later.26 Madison’s appointment may have saved Monroe’s life, then, although Elizabeth Monroe famously did not enjoy socializing, so it is possible the two of them would not have been at the theater that night even had James still been governor.)

  32

  While these events transpired, President Madison took the opportunity presented by two bills Congress presented for his signature to instruct the legislators and their constituents about the proper construction of the First Amendment’s Establishment Clause.1 By the first of the two bills, titled “An Act incorporating the protestant Episcopal Church in the Town of Alexandria in the District of Columbia” (Alexandria, recall, was originally part of the federal district), Congress had undertaken to incorporate into federal law various rules governing the parish thus created, “and,” in Madison’s words, “comprehending even the election and removal of the Minister of the same.” The church in question “would be so far a religious establishment by law,” particularly in light of the statute’s making its “injunctions & prohibitions” subject to be “enforced by the penal consequences applicable to a violation of them according to the local law.” Not only did it violate the Establishment Clause in this way, he concluded, but the bill’s provision entrusting the church with power to support the poor and educate poor children “would be a precedent for giving to religious Societies as such, a legal agency in carrying into effect a public and civil duty.” Presented with these objections, the House did not override Madison’s veto.

  The second of these veto messages concerned “An act for the relief of Richard Turvin, William Coleman, Edwin Lewis, Samuel Mims, Joseph Wilson, and the Baptist Church at Salem Meeting House, in the Mississippi Territory.” Madison explained simply that in reserving public land for the Baptist Church at Salem Meeting House, “the Bill … comprises a principle and precedent for the appropriation of funds of the United States, for the use and support of Religious Societies” in violation of the Establishment Clause. Again the House did not override Madison’s veto, but instead passed the bill again absent the offending section.

  What Monroe may not have realized when he accepted the foreign minister’s position was exactly how weak a position the United States was in. Treasury Secretary Albert Gallatin, realizing that military conflict likely would follow abandonment of the economic coercion policy, wrote to Representative John W. Eppes of Virginia, Chairman of the Committee on Ways and Means, on January 28, 1811, recommending that he see to a hike in the tariff. Eppes’s committee reported a bill to do so, but the House never acted on it.2

  Bereft of money, Congress cut military spending. It shaved the War Department’s appropriations from $4.7 million in 1808 to “about $3,100,000” in 1809–1810, then to “barely $3,000,000” in 1811. Naval appropriations went from $3 million in 1809 to $1.86 million in 1811. As March 1811 dawned, the House considered a bill authored by Senator William Crawford, R-GA, authorizing the president to take fifty thousand volunteers. Henry Adams, after noting that “[t]he House, without a division, indefinitely postponed the bill,” concludes his discussion of these matters this way: “and thus refusing to do more business of any kind, toward midnight of Sunday, March 3rd, the Eleventh Congress expired, leaving behind it, in the minds of many serious citizens, the repute of having brought Government to the last stage of imbecility before dissolution.”

  Meanwhile two Supreme Court seats had opened up. Here President Madison had the opportunity to steer the court, which had been entirely Federalist when Jefferson took office, but he made little of it. Quite the contrary, one of his appointments went on to dog Jeffersonian constitutionalism ever after.

  First to go was Samuel Chase. Though a member of the court and not averse to dissenting, he had kept his politics private since his 1805 impeachment trial.3 Yet, an uber Federalist to the end, he wrote admiring letters complaining of Jeffersonian political hegemony even to the ardent Timothy Pickering, the Hamiltonian secretary of state who had forced John Adams’s hand rather than resign when exposed as a Hamiltonian taking Hamilton’s advice behind the president’s back.4

  Madison’s choice to succeed Chase, Gabriel Duvall, like Chase a Marylander, proved an eminently undistinguished justice. Apparently Duvall came to the Republican federal leadership’s attention as “an early supporter of Jefferson,” which is what—according to a leading authority—recommended him for the Supreme Court.5 In nearly a quarter century as a justice, Duvall left “no evidence that [he] contributed intellectually to the Marshall Court,” though he proved a reliable ally of Chief Justice John Marshall. Not for nothing is he considered to have been one “of the ‘silent’ Justices of the Marshall Court’s cohesive years.” “Even the few opinions he did write are not memorable: almost none involved major cases, and none was more than a few pages in length.”6

  If Supreme Court appointments’ purpose is to ensure that the appointing president’s and Senate’s constitutional philosophy—in this case, James Madison’s and congressional Republicans’ constitutional philosophy—comes to be reflected in the work product of that court, Madison’s other choice for a vacancy that arose in 1811 may have been the worst selection in history. Joseph Story proved not merely a reliable vote in John Marshall’s pocket, but the other half of a Supreme Court partnership similar to—though opposed to—Madison’s political partnership with Thomas Jefferson.

  Madison faced difficult constraints in replacing Justice William Cushing. As justices in those days “rode circuit,” he needed another Massachusettsian—a lawyer who knew Massachusetts law—for Cushing’s seat. Republicans who fit the bill in the heart of Federalism were as rare as hen’s teeth. One name that came up was that of Salem’s Joseph Story, who had briefly been a congressman. Hearing of Story’s candidacy, Jefferson wrote to persuade Madison to reject it. He referred to Story as “unquestionably a Tory.”7

  What had irked Jefferson so was Congressman Story’s unwillingness to follow the administration line in the closing months of Jefferson’s presidency. As Jefferson told it, repeal of the embargo had resulted from Representative Story’s influence over fellow Republicans, which was enough to give the House’s few Federalists an anti–Embargo Act majority. “I ascribe all to this one pseudo-republican, Story,” Jefferson recalled. After hearing from Story, several Republicans were supposed to have decided the choice was “repeal or civil war” and so chosen “the fatal measure of repeal.” Thus nonintercourse had come to be, which, fumed Jefferson, “has reduced us to a low standing in the eyes of the world.” Back in Massachusetts, Story actually had vindicated the embargo against Federalist attacks, “eulogising Mr. Jefferson and his administration,” but Jefferson did not know that. The leading Story biographer describes Story as having in the waning days of Jefferson’s tenure “despaired that the whim and stubbornness of a president who refused to lead should have reduced foreign policy to a question of personal vanity, which the debate over the repeal date finally became.” Like Jefferson, Story thought of the embargo as a temporary expedient—a means of coercing the great powers into treating America better or a shield behind which military preparations could be made—and he did not change his opinion when Jefferson, loath to go to war, decided to keep it longer than Story judged reasonable. Even then, Story favored a June 1st repeal over the humiliating March 4th (final day of the president’s term) Congress finally chose.8

  More important than those facts by far is the effect his congressional experience had on Story. In short it persuaded him that republican politics did “bumbling work,” and that “lawyers, judges, the courts, and the common law were a corrective to” “the pathology of party government.” Story, in short, “chose the science of the law” over republicanism.9

  The Story selection would be momentous. It is a clear example of the importance of chance in history, because Story was Madison’s fourth choice for the post. Levi Lincoln did not want the job; the Senate rejected Alexander Wolcott’s nomination; John Quincy Adams, who was in St. Petersburg at the time, said no even though the Senate had already confirmed his appointment; and at last came Story.10 He eventually became the anti-Jeffersonians’ second recourse, the right-hand man to John Marshall, whom he esteemed above all others. Story’s enormously long tenure as a justice, from 1811 to 1845, was virtually the same length as Marshall’s. While the important decisions he wrote were necessarily less numerous, Marshall taking virtually all of the key ones for himself, Story did write the pivotal nationalist opinion for the court in Martin v. Hunter’s Lessee (1816), on which more below.

  Also important, Story served as the first professor of law at Harvard University, where he trained numerous of the nineteenth century’s most important lawyers and wrote several classic legal treatises. This meant that his views came to dominate the everyday work of attorneys all over the country. His treatise on the U.S. Constitution remains influential. Most important, Joseph Story’s preference for judge-made law over legislation and his extreme nationalism could not have been more at odds with Republican dogma. He knew that and did not try to hide it.

  The Congress that convened on November 4, 1811, marked a generational shift in the American republic’s leadership. Notable additions to the House of Representatives included Tennessee’s Felix Grundy, former senator Henry Clay of Kentucky, and South Carolina’s Langdon Cheves and John C. Calhoun, among others. Though Republican, these men generally came into the House bent on confrontation with the British. Not for them further legislation like Macon’s Bill No. 2. No more reductions in military expenditures. They would lead in shaping American policy for four decades to come. In their day as in this, Clay, Calhoun, and their colleague Daniel Webster generally were regarded as more significant historical figures than all but a couple of presidents between Monroe and Abraham Lincoln.

  Clay set the new tone when, in response to a point of order, he ordered John Randolph to remove his hunting dogs from the House floor—a step no preceding speaker of the House had dared to take. Randolph tamely obliged. The Kentuckian would be a new kind of speaker: one who dominated the House’s policy-making efforts. Three times—in 1850, in 1833, and, as we shall see, in 1819—Clay used his parliamentary expertise to cobble together compromises of major problems that had divided the Congress so severely as to seem irresoluble.

  The general attitude of these young House upstarts was that the offenses the British had inflicted on the United States could no longer be tolerated. They were spoiling for a fight. The president, though perhaps not enthused about it, thought one likely in the offing. This explained his decision to call Congress back into session earlier than had been scheduled. By this point Madison had had enough of the absurd diplomatic situation in which the country found itself. Apparently his chief advisor, Gallatin, had to rein him in, else his State of the Union message would have been too strident.11 On the other hand, even as war approached, Gallatin continued to insist on maintaining only a pared-back navy; after explaining that substantial expenditure in that area would result in the government’s borrowing at 8 percent instead of 6 percent, he counseled that privateers be encouraged and that the government focus its efforts in the War Department. If reading this did not remind Madison of the feckless Smith, perhaps it should have.

  Madison’s State of the Union Address of November 5, 1811, made clear that the president had reached a breaking point. Years of patience with Britain and France had availed him naught. Instead a succession of legislative enactments intended to bring one or, optimally, both of the great powers to respect what he saw as America’s basic rights, rights integral to the United States’ independence, had failed to achieve their purpose. Madison’s private secretary from White House days, Edward Coles, looking back on the years 1811 and 1812 many years later, told William Cabell Rives, a former U.S. senator and Madison biographer, that “it was congenial alike to the life and character of Mr. Madison that he should be reluctant to go to war … [a] savage and brutal manner of settling disputes among nations.” However, he held that Britain’s July 1811 decision not to rescind the Orders-in-Council unless America first made substantial concessions “closed the door to peace in Mr. Madison’s opinion.” Somewhat inconsistently Coles also blamed the War Hawks for both insisting on war without adequate preparation and denying the usefulness of new diplomatic initiatives.12