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An Un-American Politician?

Jefferson the President: Second Term, 1805-1809

(Volume Five of “Jefferson and His Time”) Dumas Malone
Little, Brown, 704 pp., $14.50

Volume Nineteen of The Papers of Thomas Jefferson just appeared from the Princeton University Press. It covers three months of the year 1791, when Jefferson was secretary of state—when he was, by comparison with some later years, on the periphery of national events. A Jefferson scholar has surmised, “If Julian Boyd [the series editor] keeps to the same standards of inclusiveness, it will take him a full volume just to get through one week of Jefferson’s more difficult times as President.” And though it takes Volume Nineteen 646 pages to cover these three months, Volume Eighteen spent 688 pages on the preceding three. This suggests one great difficulty in coming to grips with Jefferson, the too little that we too often get from his too much. The man articulated himself into mystery, becoming dark with argument—by his very density of clarification and self-explanation, his endless lucubrations: lucus a non lucendo.

The volume of material Dumas Malone must control in writing his fifth volume of the Jefferson biography is staggering. The period covered—the second term as president—is crowded with events and controversy. Malone’s area is not Virginia, any more, or even the United States, but the world. He must deal with the complicated international situation, not only in its more famous aspects like the maneuverings with Britain and France and Spain over commerce and territory, but on little-known points like Jefferson’s friendly cultivation of Tsar Alexander I, whom he admired as the finest type of Enlightenment monarch. Given the complexity of the story, it is a wonder that Malone can tell it so clearly and well in just 700 pages, with a beautiful mastery of the sources. When public business begins to weary the reader (as it certainly did Jefferson), Malone inserts a chapter or more on the private man, on his life of the mind at Monticello, that refreshes as much by the evidence of Malone’s affection for his subject as by the subject’s own brilliance.

Still, the book labors under inescapable difficulties. As Malone begins by admitting, this was not the most glorious period in Jefferson’s long life. His landslide election to a second term had given him powers that were largely dissipated by the time he left office, bequeathing his successor a nation and a party seriously wounded by the unpopular embargo. Besides, Malone is covering territory traversed by Henry Adams, whose sympathies were not with Jefferson, in the work that is probably supreme among all American historical studies. To add further problems, this time in Jefferson’s life has been exposed to serious criticism in recent years by just those men who had been special keepers of a Jeffersonian tradition up till now. In Jefferson and Civil Liberties: The Darker Side, Leonard Levy, while arranging his material to suggest a critique of Jefferson’s entire life, actually draws all his most powerful ammunition from the second term—two whole chapters on the embargo, another on the Burr case, and a chapter on the free press that relies primarily on the Connecticut libel suits (against Jefferson’s critics in the newspapers and pulpit, encouraged by the President himself).

The Levy attack is serious and detailed, and has had an enormous effect—one that Malone is obviously aware of, though he refers to Levy only once, for what he considers a particularly egregious charge, that Jefferson inspired (instead of merely countenancing) the prosecution of Frederick Hoxie for defiance of the embargo. Levy admitted he was making a brief against certain of Jefferson’s actions as seen in only one light, not rounding out an objective portrait of the man. But in countering such attacks—which draw from sources as separated in time as John Randolph, Henry Adams, Albert Beveridge, along with Levy himself—Malone is at times forced to argue an opposite, and similarly one-sided, brief. For instance: Levy, in his book, levels nine distinct accusations at Jefferson on the handling of the Burr case alone; and on every head Malone makes what defense he can. The charges are that Jefferson:

became Burr’s prosecutor himself (p. 71): Malone answers that Caesar Rodney, a part-time attorney general with no Justice Department to assist him, took no further part in the trial after the indictments were brought. Thus “except for such direction as Jefferson might give them [the prosecutors], they were left to their own devices” (p. 306). And why not? That was their job. But Jefferson intervened to keep the case going, overruling Hay’s judgment that the misdemeanor trial was hopeless (p. 334). If Rodney thought there was no further need of aid, why did Jefferson not reach the same conclusion? Malone stresses all the times when Jefferson was not intervening (pp. 307-308)—somewhat like a lawyer who points out that his client had not threatened the life of another man for 354 days of the past year.

prejudged the case in public (pp. 70-71): Malone admits this appears “most unfortunate” when looked at “with the benefit of hindsight” (p. 265), but adds that Jefferson’s political enemies would have been able to “make a martyr out of Burr” even if he had “adopted a more tentative tone.”

lied to Erick Bollman, Burr’s associate (pp. 72-73): Malone admits that Jefferson, against his pledge, let Bollman’s written statement on Burr’s plans out of his own hand, yet claims that “the promise that it would not be used against him was scrupulously kept” (p. 307)—though Jefferson authorized George Hay to “shew the paper to him” on the stand as a way of catching out any “prevarication.” Malone argues that the statement “added little” to material given by Bollman outside the promise (which is surely a further reason not to use it); that Bollman was “untrustworthy” (as if that gave license to Jefferson’s untrustworthiness); and that “there would have been no point in procuring the testimony in the first place merely for his personal information”—which makes Jefferson either an idiot, for doing something inherently silly, or a conscious liar, pledging himself to silly conditions which he meant from the outset to break.

tried to involve Luther Martin, one of Burr’s defense counsel, in Burr’s crime of conspiracy (p. 74): Malone absolves Jefferson from the “spiteful though not unnatural outburst” against Martin on the grounds that he did not follow it up with action (p. 348)—though he did have Rodney collect evidence which Hay had no stomach to use. Besides, echoing General Haig, Malone is critical of Martin for “delivering a tirade against the Commander-in-Chief” (p. 316)—though Mr. Jefferson was no more Martin’s commander-in-chief than Mr. Nixon was William Ruckelshaus’s.

wanted a stacked grand jury (pp. 74-75): Malone notes that Jefferson was not accustomed, in his Virginia practice, to the challenging of jurors for bias (p. 311), but Jefferson went further and denied that the two jurors in question were biased at all—a claim that George Hay did not try to uphold in court.

showed signs of duplicity over Burr’s real guilt on the treason count (pp. 75-76): Malone actually cites better evidence for this charge than Levy had—the letter to James Bowdoin, in which Jefferson said that Burr “very early saw that the fidelity of the Western country was not to be shaken, and turned himself wholly towards Mexico.” Malone is sure that this letter “was not an expression of his full opinion” (p. 298), but was shaded for the benefit of the Spanish, to whom Bowdoin was the American minister.

wanted to extend the test of treason against the Constitution’s clear effort to preclude “constructive treason” (pp. 7-81): Malone argues that Jefferson’s expressions on this subject came in a letter (of April 20, 1807) to Senator William Branch Giles, a man “more partisan and violent than he [Jefferson],” and that such comments in private correspondence do not represent a public position defended in strict law (pp. 304-305). In short, a man must be allowed to rave a little among friends.

encouraged the Senate to suspend the right of habeas corpus (pp. 85-92): Malone shows that this is an unproved assertion; Senator Giles moved the resolution in January, and probably needed no encouragement from Jefferson (pp. 304-305)—though he certainly received no discouragement from that quarter, as the April 20 letter proves. If anything, this may indicate that “private” ravings have public consequences in a president’s case, even when no direct encouragement is involved. Actually, Levy admitted that “it is unlikely…that the bill originated in the White House” (p. 205), but showed that Jefferson was not only willing to sign it into law but anticipated some of its measures (p. 86).

supported the illegal military dictatorship of James Wilkinson in New Orleans (pp. 71-72, 81-85, 86-70): This is the most serious charge, involving wrongs to far more people than to Burr himself. Jefferson had good reason to hope for the prosecution of Burr, but little excuse for defending Wilkinson. Malone worries this problem off and on, offering different hypotheses at different times to explain the odd fierce loyalty Jefferson showed for Wilkinson throughout. About the best he can do is oppose the view that Jefferson was willing to use any soiled instrument in his lust to get Burr by suggesting that Jefferson was Wilkinson’s instrument, fooled by him, made to do his will. Jefferson thus ceases to be a Machiavellian himself, but only to become a two-bit Machiavellian’s patsy.

Quoting John Randolph on the way Wilkinson captured the king’s ear, Malone says ruefully: “This particular king was not at his best in dealing with scoundrels, especially this one” (p. 328). Thus Jefferson “glossed over the legal difficulties” when Wilkinson made illegal arrests (p. 266), and let the general lead him into the hard-to-prove treason charge against Burr: “Wilkinson forced his hand and limited his freedom of action” (ibid). Jefferson “felt compelled to depend on him” (p. 269), and when others gave Jefferson evidence that Wilkinson was part of Burr’s plot (pp. 270, 362), the President ignored them.

When Jefferson urges Wilkinson not to make more illegal arrests than the traffic of public opinion will bear, Malone suggests that he is writing down to the moral level of Wilkinson, since he took higher ground with the more principled governor of Louisiana (p. 277)—so Jefferson knew something about Wilkinson’s moral level? But on the preceding page, Malone asserts that Jefferson’s “gullibility” kept him from such knowledge. Still, even there, the gullibility is oddly linked with calculation: “one seemingly necessary step followed another until he had reached a position from which it would have been extremely difficult to withdraw.”

Was he fooled by Wilkinson, or just stuck with him? Malone cannot make up his mind: “The President saw no choice at this stage but to support him”—willingly, or reluctantly? If the former, from stupidity? If the latter, from a ruthlessness toward Burr? At one point, Jefferson’s dilemma is presented as the analogue of Abraham Lincoln’s—Wilkinson was the price of the Union itself (p. 341), much as Grant’s bottle would later be. But where does Jefferson himself pose the choice in these terms?

Malone even tries to make a virtue of his own suspension of judgment over Jefferson’s suspension of judgment over Wilkinson: “His power of projecting, his ability to put himself in another person’s place, was one of the reasons for his harmonious relations with his civil lieutenants, and in his dealings at the time with his chief military officer he gave a conspicuous example of sympathetic understanding.” At last, in all this labyrinth of weak or minor excuses, one comes up against pure bunk: if Jefferson had understood Wilkinson, he could not have sympathized with his despotic reign. Malone had better stick to his client’s plea of ignorance—of “gullibility,” even of stupidity. Jefferson is in deeper trouble the minute he begins to “understand” James Wilkinson. To put himself in Wilkinson’s shoes is to put himself, by a terrible descent, on Wilkinson’s level.

To highlight this was hardly Malone’s purpose; but a defense lawyer, reaching desperately for any and all excuses, often unites self-contradicting ones “which, as they kiss, consume.” Mr. St. Clair is learning this at the moment, and even Malone shows an uneasiness as he tries to juggle equally unpleasant alternatives into a mutually neutralizing balance:

This [i.e., the sympathetic understanding] was more than Wilkinson deserved, as he might have suspected, but he was in character [as condoning scoundrels?] when he said: “I am thoroughly sensible of the painful difficulties of your situation, expecting an attack from an overwhelming force, unversed in law [a hint to Wilkinson to start asking around about the law?], surrounded by suspected persons, and in a nation tender as to everything infringing liberty, and especially from the military.” Recognizing these circumstances, he condoned the General’s past actions….

Well, which is it to be? Did he recognize the circumstances—and so realize how Wilkinson had overreached himself? Or did he condone the man—and so show ignorance or insensitivity to the conditions of tyranny in New Orleans?

If Levy can draw up an accuser’s brief, it might be argued, Malone should be allowed to argue for the defense; but admirers of both Jefferson and Malone must feel regret that, by acting like James St. Clair, Malone suggests that Jefferson was an earlier Richard Nixon. He was not, and Malone knows that; but he does not make us come to know it in a final and convincing way. He argues for a friend he is so well acquainted with that he trusts him totally. Yet the disjunct excuses and skilled minimizings that engage him make it hard for him to acquaint us with the man being defended. After spending over 150 pages trying to get Jefferson off the hook in the Burr affair, he spends even more than that on the same exonerating tactics for the embargo—which leaves us too little time in Monticello for appreciating one of the best minds America ever produced (or, perhaps, one of the best minds that produced America).

What Jefferson needs is not defense but explanation. Those of us who are not accusers, but merely curious, look for the continuity in his career. Were all his offenses against civil liberties mere lapses from principle, more or less condemnable or excusable according to the various circumstances? Jefferson himself seems never to have thought so. He defended his actions, not only at the time but later, as part and parcel of his beliefs. Why?

Henry Adams gives us a clue when he notes that Jefferson was at first too careless of the threat that came from Burr. He remained indifferent when those sounding the alarm were Federalists like Joseph Daveiss. It looked then as if Burr, having alienated the Federalists by killing their intellectual leader, Alexander Hamilton, was trying to mobilize the Republicans of the West. Jefferson did not care to challenge his own constituency, and remained confident that his hold on it was stronger than Burr’s could ever be. Only when Burr’s Federalist support in the North came to his attention did Jefferson become the ardent prosecutor.

Jefferson, shy and fastidious in his dealings with other men, liked always to transcend “personalities” and put his politics on a theoretical basis. This might be expected to drain rancor and individual hostility from his politics. But in simplifying conflict down to a theoretical base, he sharpened difference. Burr was not his target—the Federalist “monocrats” were, the enemies of Republican virtue and theory. Both Marshall and Burr disappeared from his landscape as troubling individuals and became embodied error—just as Wilkinson disappeared and became the embattled Republic itself. Malone notes that Jefferson was the first president who was also a party leader—and his partisanship had special edge because he thought it was above mere party. The Republicans were not a party but the nation, for him as for Monroe; and the anti-Republicans, under whatever name, were enemies of the nation, outside its idea, illegitimate claimers of its protection. That is why Jefferson could be so confident that Marshall and Burr meant to dismember the union—not merely by military action but, more insidiously, by destroying the philosophy that bound the young Republic together.

The trouble with a nation “dedicated to a proposition” (as Lincoln put it), or bound together by subscription to “self-evident” truths, is that those who do not hold the proposition or see the truths are automatically excluded from the nation’s life. Since their first principles are un-American, all their activities will be, too. Thus Richard Hofstadter derived that peculiarly American notion of “un-American activities” from the Jeffersonian approach to party politics. Although the third president admitted there would always be tory and whig factions in society, based on temperamental differences in the nature of men, he considered that these should be the differences between tory and whig republicans; and their healthy interplay depended on the extermination of monocratic principles. Federalists who were only tory republicans could be tolerated. But not Federalists who were monocrats.

He came into office with a sense of grievance, with a feeling that the Revolution had been betrayed. In 1798 he wrote to John Taylor: “Our present situation is not a natural one. The body of our countrymen is substantially republican through every part of the Union. It was the irresistible influence and popularity of General Washington, played off by the cunning of Hamilton, which turned the government over to anti-republican hands, or turned the republican members, chosen by the people, into anti-republicans. He delivered it over to his successor in this state, and very untoward events, since improved with great artifice, have produced on the public mind the impression we see; but still, I repeat, this is not the natural state.”

Jefferson’s own election he took to be a second revolution, a counterrevolution against the betrayers of the first revolution. This would end partisanship—since, as Noble Cunningham has pointed out, Jefferson created the American party system out of a lasting belief that there should be no parties. The persistence of them under his own presidency he took to be a sign of perverseness in his opponents, who were opposed not only to the electorate but to the basic principles that had created an electorate in the first place. Thus he could be for freedom of the press and still believe that this meant a freedom for the Republican press—which meant the extinction of the Federalist press, by slow means or fast, by gradual and gentle pressures if possible; otherwise, by things like the Connecticut libel suits. His response to the Burr threat was not that of one citizen to another, but of the nation to an internal enemy. His acts were war measures, because Burr had made himself an alien. In much the same way, he could not take seriously the deep resistance to his embargo, since most of that was coming from New England, the stronghold of Federalists, whose views should not be taken into account.

Thus the actions Levy criticized were not mere aberrations or departures from principle. To suggest this is to notice defects in the principle itself—things far worthier of study than the exasperation of one man’s nerves at particular turns of fortune. Malone does well to remind us what aggravations Jefferson contended with; but he does not do credit to Jefferson’s principled consistency, even on his less attractive side. Jefferson was wielding the conservative presidency created by Washington yet trying to maintain some of the radical theories that would have found a more congenial setting in the French Revolution. In that sense, he was the un-American politician, exasperated that others persisted in an “unnatural” disregard of true revolutionary theory.

I write in the happy knowledge that nothing I (or anyone) can say will diminish the size of Malone’s achievement. Monuments make easy targets, but survive whatever small misgivings are expressed about them. The material for reflection on Jefferson is given us by Malone even when we use it to criticize some of his findings. In that sense, my scribblings on the base of the monument will soon disappear as unnecessary. Allowance will be made for the man’s hero worship, since the hero is so worthy of the worship—as this book and its companions prove for all time.

(This is the third of three articles on Jefferson studies.)

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