James Madison: A Life Reconsidered (39 page)

Of all the damsels on the green,

On mountain, or in valley,

A lass so luscious ne’er was seen,

As Monticellian Sally.

Jefferson’s daughters gathered around him, coming to Washington in late November, but the salacious rhymes and vicious commentary did not stop and even gained new energy when Thomas Paine, “
the greatest infidel on earth,
” as one newspaper called him, took up a two-week residence at the president’s house. Jefferson’s enemies lumped them together as blasphemers and atheists, and one balladeer suggested that Paine, too, was sleeping with Sally.
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Jefferson refused to address Callender’s charge about Hemings but found it necessary to take action when Callender enthusiastically promoted another theme: that Jefferson had made unwanted advances to a married woman, Betsey Walker, many years before. Mrs. Walker’s embarrassed husband, John, decided that the situation was an affair of honor, and Madison helped with damage control. Jefferson and Walker met at Montpelier to sort things out, and Madison was able to report to Monroe on April 20, 1803, that a duel had been averted. Putting many of his words into cipher, he wrote, “The affair between the president and J. Walker has had a happy éclaircissement.”
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The enormous significance of the acquisition of Louisiana helped the administration move beyond James Callender and his stories about Jefferson’s intimate life, as did Callender’s death just a few weeks after word of the purchase reached Washington. Callender drowned in three feet of water in the James River in what the coroner’s jury ruled was an accident caused by his being intoxicated. One of Jefferson’s friends thought it was suicide, an explanation that fits what must have been Callender’s psychological situation.
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He had tried to bring down a powerful man he had hated beyond measure and no doubt thought that he had the information to do it. How it must have stung to see Jefferson move onward and upward, to ever greater glory.

During a visit to Monticello a year or so after the scandal, Dolley Madison, so the story is told, promised Sally Hemings a gift if she could name Hemings’s newborn child. Hemings consented, and Dolley, according to Sally’s son, “dubbed me by the name I now acknowledge”—which was Madison. Sally’s children had been named after people important to Jefferson. Was Dolley slyly acknowledging the naming pattern with her suggestion and perhaps as well indicating an understanding of the reason behind it? Southern white women typically wore blinders when it came to masters sleeping with slaves, but one wonders if Dolley grew momentarily weary of the pretense. Of course, something simpler might have been at work, but Dolley was not a simple person. Whatever the explanation, Madison Hemings later wrote that his mother never received the gift Mrs. Madison had promised: “Like
many promises of white folks to the slaves she never gave my mother anything.”
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LIKE MOST GREAT EVENTS,
the acquisition of Louisiana was not over when it was announced. There was contention about who should get the credit, and Madison had to soothe Monroe, who was aggrieved by what he perceived as Livingston’s self-promotion. There was also concern that the Floridas had not been part of the bargain and still belonged to Spain. It was generally agreed at a July 16 cabinet meeting, however, that after the purchase of Louisiana, “they cannot fail to fall into our hands.” Indeed, Robert Livingston had already advised that by reading past treaties, it was possible to make a case that West Florida was part of the purchase. Madison would hold fast to this interpretation in the years ahead.
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For the moment the biggest stumbling block was Jefferson’s worry that in the absence of a specific provision in the Constitution about acquiring territory, the purchase might not be strictly constitutional. To Madison it was obvious that the United States, like any nation, had the right to acquire territory. He agreed with Gallatin, who pointed out to the president that the Constitution provided for the admission of new states and gave the power to make treaties (such as the one executing the purchase of Louisiana) to the president and Congress. But Jefferson continued to worry, indeed over-worry, the matter. If the United States could acquire Louisiana, what was next? the president wanted to know. Ireland? Holland? He wanted to amend the Constitution to take the matter of Louisiana into account, and even though Madison did not think it was necessary, he dutifully offered advice: namely, that the amendment should not preclude the United States from acquiring further territory, such as the Floridas.
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On August 17, Jefferson received a letter at Monticello from Robert Livingston. Much of it was in a cipher that he did not have the key to decode, but what he could read worried him, and he sent the letter on to Madison the next day. Were the French threatening to retract their
offer if there was a delay in ratification? Madison did not think that was the intent, and Jefferson continued to work on a constitutional amendment, but he was convinced now that it would be best to keep his concerns about constitutional complications “sub silentio.” If the French were even the least uneasy, they should not be further alarmed. It was not until the Madisons visited Monticello in September, however, that the president dropped his plan for amending the Constitution.
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When Jefferson addressed the matter of the treaty with Congress in October 1803, he indicated that once ratified, the treaty would be “constitutionally confirmed.” Not everyone agreed. Timothy Pickering of Massachusetts, now a Federalist senator, declared the president and the Senate were not “competent to such an act of incorporation.” Senator Uriah Tracy of Connecticut agreed. Representative Roger Griswold of Connecticut let slip that it was not just the constitutionality of the purchase that troubled New England Federalists but “the destruction of that balance . . . between the eastern and western states” which, he said, “threatens at no very distant day the subversion of our Union.” William Plumer of New Hampshire raised the stakes even higher. “Admit this western world into the Union,” he said, “and you destroy at once the weight and importance of the eastern states and compel them to establish a separate, independent empire.” Jefferson dismissed such talk, but this was not the last time there would be discussion among New Englanders about creating a northern confederacy.
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The Senate voted in favor of the treaty by 24 to 7, and the historic deed was done. It was, Henry Adams later observed, “an event so portentous as to defy measurement; it . . . ranked in historical importance next to the Declaration of Independence and the adoption of the Constitution—events of which it was the logical outcome.”
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•   •   •

PARTICULARLY IN CONTRAST
with the annexation of Louisiana, the decision handed down by the Supreme Court in
Marbury v. Madison
seemed at the time of little significance. William Marbury, a self-made man and Adams loyalist, was one of the “midnight” justices whom
John Adams appointed during his last days in office. The Federalist Senate confirmed his appointment on Adams’s last day as president, but after Jefferson assumed office and found that Marbury’s commission had still not been delivered, he ordered that it be withheld. Marbury subsequently sought from the Supreme Court a writ of mandamus that would compel Secretary of State Madison to deliver his commission. In 1803, the court issued its opinion, saying that Marbury was entitled to the commission but that the Supreme Court could not issue the writ because the section of the Judiciary Act of 1789 that would have permitted the court to do so was unconstitutional.
On the surface, the outcome seemed positive for the Jefferson administration. Madison did not have to deliver the commission. But Marshall’s decision also allowed the chief justice to avoid direct confrontation with the administration, which was riding high, even while pointing out that the president, whom he despised as only one Virginian cousin could another, had broken the law.
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Most important, in the decision Marshall declared, “It is emphatically the province and duty of the judicial department to say what the law is,” thus establishing a platform on which the giant superstructure of judicial review would be built. Madison did not believe that the Constitution sanctioned such a power. The Council of Revision that he had proposed in the Constitutional Convention, by giving the executive and the judiciary together final sign-off on legislation, would have precluded the possibility of the courts acting alone to decide constitutionality, but the council had been turned down, leaving “no provision . . . for the case of a disagreement in expounding [the laws].” In the absence of a provision, Madison saw that a pattern would develop: Congress would pass a law, the president sign it (thereby offering his opinion that it was constitutional), and the courts take the last word, thereby stamping the law “with its final character.” Observed Madison in 1788, “This makes the judiciary department paramount in fact to the legislature, which was never intended and can never be proper.”
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By the time of
Marbury,
Madison was becoming somewhat reconciled to the arrangement, largely because there was no reasonable alternative,
but he was hardly so satisfied with it that he felt obliged to acknowledge Marshall’s authority to make the decision he had.
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Thus the defendant in what would become the most celebrated case in American judicial history left no recorded reaction to it, thereby lending support to the notion abroad at the time that there was nothing earthshaking about it.

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LATE IN 1803,
a full-blown minister arrived in Washington to represent Great Britain. Anthony Merry and his wife had a difficult journey, encountering rough weather in the last stages, and once they arrived in Washington City, matters seemed only to grow worse. There were the challenges of the raw capital, which many a newcomer considered unfit for habitation. Not a single house was deemed suitable for the Merrys, and they finally combined two residences into one for their quarters. And then there was the president, given to wearing two vests, one red and threadbare and the other described as “grey-colored” and “hairy,” with an old brown coat over the top of both. His favorite stockings were yarn and his favorite shoes a pair of slip-ons. He was known to cross his legs and dangle a shoe off his toes while he was seated. Both his breeches and his linen were on different occasions described as soiled, and he seems to have placed little importance upon combing his hair.
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One can well imagine the shock of Minister Merry, dressed in full diplomatic uniform, encountering the carelessly clad Jefferson when he presented his credentials.

Merry’s secretary, Augustus John Foster, was sure that Jefferson, who had attended the most sophisticated salons of Paris, knew better but was chasing popularity by dressing like the masses, and there was probably truth in his assessment, though as far as the soiled shirts and uncombed hair are concerned, Jefferson might simply have been suffering from having no wife.
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But when it came to his clothing generally, he probably had an idea of trying to appear as befitted a citizen of the Republic, particularly one living in what was essentially a rural setting—and he wasn’t about to make an exception to his dress, especially not for a minister from Britain.

Jefferson was similarly relaxed when it came to the dinners he gave. Instead of worrying about rank and precedence when it was time to move to the table, he turned to the woman who was serving as hostess for him and led her into dinner. Minister Merry and his wife arrived at the president’s house to dine unaware of this habit and were shocked when Jefferson escorted Dolley Madison to the table rather than Elizabeth Merry. A few days later, dining at the Madisons’, the Merrys suffered another blow. The Madisons were no doubt dressed properly—James, as was now his custom, in a black coat and breeches buckled at the knee, black silk stockings, and lace-up shoes, and Dolley in something low cut and elegant. But when it came time to move from the drawing room to the dining room, Secretary Madison turned to Hannah Gallatin and escorted her to dinner, rather than Elizabeth Merry. This was one insult too many for the minister, who decided that he and Mrs. Merry would attend no more official events unless his government instructed him otherwise.
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Madison tried to control the damage, writing to Rufus King, who had just recently returned from representing the United States at the Court of St. James’s. Could he spell out what the rules were there? King replied that foreign ministers were seldom invited to royal entertainments, but when the king had his annual levee, the rule, with some exceptions, was pell-mell—which basically meant there was no rule. At dinners in “higher English circles,” King reported, the ladies left the drawing room for the dining room first, followed by the gentlemen. With this information, Madison went to the president, who agreed that in the future, when crowds were involved, he would adhere to pell-mell practice. He even worked with Madison to sketch out rules of etiquette. At dinners, the rule would be “gentlemen in mass giving precedence to the ladies in mass, in passing from one apartment where they are assembled into another.”
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Madison sat Merry down for a long talk, probably in his small office in the brick building next to the president’s house, where the Department of Foreign Affairs was now headquartered, and the minister spilled out all his complaints, but what he regarded as the insult to his wife loomed largest. All questions of rank aside, she was a newcomer
and for that reason alone deserved special courtesy, Merry said. Madison expressed his personal sympathy: “At my own house in private life, it is probable that Mrs. Merry as a stranger would have received the first attention.” He explained that he was not a private citizen, however, but secretary of state in the Jefferson administration. “I had thought it most proper not to deviate from the established course,” that is, the one set by the president.
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