The Great Decision

Less than two weeks after learning of his defeat, on December 15, 1800, John Adams sat and brooded in the unfinished President’s House. The Republican takeover of the presidency and Congress loomed. A new president, a Republican—either Jefferson or Burr—would take office in ten weeks; Republicans would take control of the next Congress.

Adams focused on the very next day, Tuesday, December 16, when he would submit a proposed treaty with France’s new leader, Napoleon Bonaparte, to the Senate for ratification. The agreement faced skepticism in the Senate, especially from Adams’s fellow anglophile Federalists, who were suspicious of any agreement with the French. Adams’s envoy, Chief Justice Oliver Ellsworth, had negotiated the treaty, known as the Convention of Mortefontaine, in Paris with Napoleon’s older brother, Joseph Bonaparte, as a balanced response to the Jay Treaty.

As he was considering his diminishing options in the period before he had to hand over the presidency to the Republicans, Adams received a letter from Ellsworth in Paris announcing his resignation from the Supreme Court. Ellsworth’s diplomatic mission had kept him away from the Court for more than a year. He was ill, and his doctor forbade a trans-Atlantic trip. Ellsworth would spend the winter receiving mineral treatments in England at Bath. The letter had taken two months to reach the president.

Adams discussed the opening that cold December day in the cavernous and unfinished President’s House with the man who had become his closest adviser, John Marshall. Marshall suggested promoting Supreme Court Justice William Paterson to the now-open position of chief justice.

From humble origins, Paterson had built an illustrious career. Born in Ireland, he had been brought to Princeton, New Jersey, as an infant. He grew up working in his parents’ general store serving the students and faculty at the new College of New Jersey (later renamed Princeton University) and soaking up the academic environment. After attending a preparatory school founded by Aaron Burr’s father, Paterson stayed in town and attended the College of New Jersey. At the Constitutional Convention in 1787, Paterson had been the leading advocate for a Congress in which each state had an equal vote, a position that eventually led to the bicameral compromise in which the Senate would be organized on Paterson’s basis of equal votes for each state. Paterson had served as governor of New Jersey before resigning to join the Supreme Court in 1793. An ardent Federalist, he was a hero to the party’s extreme wing, based in part on his zealous condemnation of Matthew Lyon and the firmness with which he enforced the controversial Sedition Act.

But Adams swatted away Marshall’s suggestion of Paterson. He told Marshall that appointing Paterson as chief would insult Justice William Cushing, Adams’s old friend and colleague from Massachusetts. Cushing was now 68, the only original appointee of George Washington still serving on the bench, and a man who seemed increasingly ancient and frail. Four years earlier, in 1796, Cushing already had declined Washington’s nomination of the chief justice post on the ground that his “infirm and declining state of health” prevented it. (He actually was confirmed by the Senate and served one week before resigning and returning to his post as associate justice; during that week as chief, he heard no cases and his only official action was attending a dinner.)

Marshall understood that selecting the more junior Paterson would mean bypassing Cushing. But Marshall also knew that Adams had a deeper, more personal objection to Paterson. Still smarting from his defeat in the election, Adams was in no mood to appoint somebody closely aligned with Hamilton and the “High Federalists.”

On Thursday, December 18, 1800, Adams sent the name of John Jay to the Senate for confirmation as third chief justice of the United States. The next day he penned the letter to Governor Jay announcing that he wanted him to return to his previous job. “I have nominated you to your old station,” Adams proclaimed. Clearly worried, Adams implored Jay that his appointment could be an “opportunity” from “providence” to inhibit “the increasing dissolution of morals.”

Adams gave the letter to Marshall for formal transmittal, and Marshall included a cover note encouraging Jay to accept. “The President, anxious to avail the United States of your services as Chief Justice, has nominated you to the senate for that important office, now vacant by the resignation of Mr. Ellesworth. In the hope that you may be prevaild on to accept it, I feel peculiar satisfaction in transmitting to you the commission.”

Marshall knew that the odds were against Jay’s acceptance, and he was worried about the consequences. Marshall confided to Charles Pinckney, “Mr. Ellsworth has resignd his seat as chief justice & Mr. Jay has been nominated in his place. Should he as is most probable decline the office I fear the President will nominate the senior Judge.” The “senior Judge” was Cushing.

AS THE CENTENNIAL YEAR came to a close and a showdown in the Congress loomed, Washington City was abuzz with political intrigue. The city was teeming with reporters, speculators, and lawmakers who huddled in hotel lobbies and crowded the city’s boarding houses awaiting the outcome of the election. The president and First Lady hosted the first New Year’s Day dinner party in the President’s House. At the brilliantly candle-lit dinner table, Thomas Jefferson sat next to Abigail Adams. Jefferson surveyed the rest of the table: He recognized a number of congressmen and was undoubtedly sizing up who would be in his corner when Congress chose the next president. When he confidently remarked to the First Lady that many of the dinner guests were familiar to him, she replied that she knew them all.

Abigail Adams had once liked and admired Thomas Jefferson. They had enjoyed many stimulating evenings together in Paris when both Adams and Jefferson were commissioners representing the United States. But the election of 1800 had colored her view of her former friend—she resented that Jefferson, her husband’s vice president, had collaborated with journalist James Callender’s slandering of the president. She would later tell her son that she pitied Jefferson’s “weakness.” Nevertheless, in the aftermath of the election, though still publicly uncommitted between Jefferson and Burr, the Adamses had invited Jefferson to dinner.

Vice President Jefferson continued to engage the First Lady on the subject of her dinner guests, inquiring what she thought “they mean to do” about the impending vote in the House of Representatives. Mrs. Adams must have smiled at Jefferson—whose ambition and charm had become familiar to her. She told him that she had no idea how the House would vote and that the election was a subject she did not “choose to converse upon.” And then, to leaven the conversation, she repeated an axiom that when people “do not know what to do, they should take great care that they do not do they know not what.” According to her diary, “At this he laughed out, and here ended the conversation.”

Jefferson maintained his sense of humor, but he had good reason to be concerned about the election. If Aaron Burr initially had seemed reluctant to even be considered for the presidency, after the votes were counted, and the deadlock became official, he let it be known privately that he wanted the top job. He may have been impressed by the support of the many prominent Federalists across the country who openly preferred him to Jefferson, a man whom many considered an atheist, an elitist, and a coward. Fisher Ames of Massachusetts, for instance, thought Burr “might impart vigor to the country,” while Jefferson was “absurd enough to believe his own nonsense.”

Around the New Year, Jefferson received support from a most unlikely ally: Alexander Hamilton. Hamilton, who had played such an important role in the months leading up to the voting, now once again intervened. An ardent Federalist, he had been sharply critical of President Adams for being too moderate. But his disdain for Jefferson and his Republicanism paled in comparison to the abiding hatred that he had for his old adversary in New York, Aaron Burr. Fearing that members of his party, the Federalists, who controlled the Congress until a new one was seated, might tilt the election toward Burr, Hamilton launched a campaign of letters to steer the Federalists to Jefferson. In a letter to his friend Gouverneur Morris, Hamilton mused that Burr “is sanguine enough to hope everything, daring enough to attempt anything, wicked enough to scruple nothing.” Hamilton wrote Oliver Wolcott, Jr., his successor as secretary of the Treasury, that Burr was “bankrupt beyond redemption, except by the plunder of his country. His public principles have no other spring or aim than his own aggrandizement. . . . He truly is the Catiline of America.”

Secretary of State Marshall received a similar letter from Hamilton but he remained uncommitted. Marshall claimed to be “totally unacquainted” with Burr, yet deeply concerned by how Hamilton had depicted his character. As Marshall put it, “Such a man as you describe is more to be feared and may do more immediate if not greater mischief.” Despite Hamilton’s dire descriptions, Marshall concluded that he would remain neutral in the outcome of the House vote because “I cannot bring myself to aid Mr. Jefferson.”

Jefferson continued to be very skeptical of the behind-the-scenes machinations of Federalist politicians. He especially didn’t trust his cousin, Secretary of State Marshall, who he speculated might himself covet the presidency. In a letter to his friend James Madison, Jefferson claimed that Federalists were delighted to prolong the election deadlock and might even be scheming to give the presidency to “Mr. Jay, appointed Chief Justice, or to Marshall as Secretary of State.”

IN MID-JANUARY, Governor Jay’s letter to President Adams refusing the chief justice position arrived on Secretary of State’s Marshall’s desk. Jay separately acknowledged “the polite Letter” Marshall had sent urging him to accept. But Jay reiterated his decision. “I am very sensible of the honor done me by this appointment. [But] (independent of other Considerations) the Incompetency of my Health to the fatigues incident to the office, forms an insuperable objection to my accepting it.” Foremost among “other Considerations” was Jay’s deeply held conviction that the Supreme Court never would possess any meaningful authority, stature, or power.

On Monday, January 19, 1801, Marshall met with Adams to advise him of Jay’s refusal. Adams listened attentively. The situation was complicated by the fact that legislation pending in Congress would reduce the size of the Supreme Court from six to five justices at the time of the next vacancy. If Adams did not move quickly, the vacancy probably would not be filled at all. Now, as Adams considered Jay’s response, the defeated president pondered his options.

Having firmly rejected Paterson, Adams, after what seemed to Marshall like “a moment’s hesitation,” said, “I believe I must nominate you.” Marshall recalled that he “had never even thought of it,” but “was pleased as well as surprised, and bowed in silence.” The next day he was nominated.

Marshall may have expected Adams to name another. But his claim that he never even thought of himself for the post seems an assertion of modesty for posterity. Marshall greatly prized his reputation as a leading lawyer and appellate advocate in the Virginia courts. Marshall could hardly have forgotten that, in 1798, Adams had offered to appoint him to the Supreme Court to succeed the late James Wilson. When he declined, Adams had instead appointed Marshall’s close friend, Bushrod Washington, George Washington’s nephew. Now, as secretary of state, Marshall controlled the paper flow to and from potential chief justices and was intimately involved in the selection process. The thought of filling the post himself must have occurred to him.

BORN IN 1755, the oldest of fifteen children, John Marshall was raised in a wooden cabin in the foothills of the Blue Ridge Mountains of Virginia. He had no formal childhood education, but his father taught him to read and steeped him in the classics. After the outbreak of the Revolutionary War, Marshall enlisted and soon became an aide to George Washington, serving with him during the bitter winter at Valley Forge. Marshall was athletic and well-liked; he was said to be the only man in Washington’s army who could jump six feet high.

After the war, Marshall became one of the first students at the new law school at William and Mary. He filled his law notebooks with detailed notes on English cases, as well as with doodles and idle scrawls about the woman who would be his wife, Polly Ambler. After graduation Marshall quickly became a successful lawyer in Richmond, handling trials, wills, contracts, appeals, and anything else that had a fee behind it. (“A client is just come in,” Marshall wrote a friend in 1789, “pray heaven he may have money.”) He also became a part-time public official, serving on a state board and in the state legislature, but throughout the 1780s and most of the 1790s he made clear that law practice was his first priority.

In 1788, Marshall played a crucial role in the legendary Virginia constitutional ratification. Virginia’s decision to support the new federal constitution, more than any other state’s, would determine its fate: Virginia was by far the largest state, with one-fifth of the nation’s population and over one-third of its commerce, and a successful nation without Virginia’s participation was inconceivable. Marshall teamed with James Madison to win ratification, by only a few votes, against a galaxy of leading Virginia citizens, including Patrick Henry and George Mason. Throughout the weeks of debate, Marshall genially hosted dinners and drinks at his home and at local inns and taverns. Marshall’s hospitality contributed significantly to a softening of opposition that made the narrow ratification possible. Marshall also delivered a pivotal speech, defending the proposed federal judiciary against the charge that it would lead to an imperial federal government. He had a gift for turning opponents into friends and allies. His ardent foe on ratification, Patrick Henry, was so impressed with Marshall’s skill and personality that he later became Marshall’s close friend and occasional law partner.

Marshall was instinctively convivial; he loved feasting, imbibing, and socializing. In his hometown of Richmond, he was a founder and charter member of the “Quoits Club,” or “Barbecue Club,” a club devoted to quoits, a game involving the pitching of a metal ring onto a pin several yards away, usually accompanied by raucous eating and drinking. Marshall remained a member and enthusiast of the club his entire life, spending every Saturday there from April to September. Marshall particularly enjoyed a special punch that he developed, a mix of brandy, rum, and Madeira. According to the informal club rules, which Marshall cheerfully enforced, no politics, business, or religion could be discussed. Violators were fined a case of champagne, to be consumed at the next club meeting.

In September 1798, just a few months after Marshall’s return from France and the XYZ Affair that had made him a hero at home, George Washington summoned Marshall and Bushrod Washington, his nephew, to Mt. Vernon. The former president was greatly concerned about the potential threat from the rising Republicans and he implored his nephew and his protégé to run for Congress for the Federalists. After dinner that night, Marshall explained to the former president that he was reluctant to leave his flourishing law practice. The following morning, Marshall planned to flee Mt. Vernon before dawn so that he would not have to see Washington again. As Marshall approached the stable to saddle his horse in the early morning, he found Washington waiting for him. Only an inch taller than Marshall, the former president nevertheless was an imposing and often intimidating figure. Washington reminded Marshall that, against his personal desires, Washington had given up the pleasures of private life to serve his country. Marshall reluctantly agreed to run.

Virginia was a hotbed of Republicanism, with Jefferson, Madison, and Governor James Monroe setting the tone in the state. But Marshall made a key decision in his congressional campaign. He signaled that he did not agree with the Federalist position on the Alien and Sedition Acts, and that he would not have voted for them. Although a Federalist, Marshall made clear that he was not an ideologue and could make common cause with those outside his party. In the heat of the contest, Republican hero Patrick Henry delivered a strong endorsement of Marshall.

On election day, both Marshall and his opponent, John Clopton, actively solicited votes at the polling place. According to the practice of the day, Marshall stood at one end of a table with a jug of whiskey and his opponent stood at the other. Voting was not a private matter as voters publicly announced their choices at the polling place. Marshall later recalled that two ministers had arrived together: One voted for him and the other for his opponent. One of the ministers explained that the votes would cancel each other out, “and nobody could say that the clergy had influenced the election.”

Arriving in Philadelphia as a new congressman, Marshall found himself in a cauldron of enmity toward President Adams from his own party as well as from the Republicans. Two decades younger than Adams, Marshall seemed the opposite of his prickly president. Marshall was six feet two and gregarious. Supreme Court Justice Joseph Story later remarked of Marshall, “His laugh was too hearty for an intriguer.” Marshall lounged comfortably in plain clothes, priding himself on his down-home manner and lack of airs. Even as a public luminary, he once happily rode alongside the driver of a crowded carriage-for-hire because there was no room for him within the carriage. Another time, while he was on the Supreme Court, he helped a citizen carry groceries for miles. The citizen, thinking Marshall a workman, tipped him. Marshall pocketed the tip and gleefully added the story to his repertoire.

Despite their differences in personality and manner, from Marshall’s first days in Congress in 1799 he was one of Adams’s few devoted loyalists on the House floor. He defended Adams’s policies against onslaughts from the High Federalists on one side and the Republicans on the other. His easy manner and effective advocacy built friendships and alliances with both factions, but, almost alone, he vigorously supported the president. At the same time, when a motion to repeal the Sedition Act arose on the House floor, he was one of the only Federalists to vote for it.

From his first days, Marshall’s speeches in the House had an impact. In the celebrated “Jonathan Robbins affair,” for example, Marshall delivered an electrifying three-hour speech on the House floor defending Adams’s decision to hand over “John Nash,” a fugitive sailor sought by the British for desertion. Nash claimed actually to be “Jonathan Robbins,” an American citizen immune from extradition. A federal judge found that Nash had not established his American identity as “Jonathan Robbins” and ordered him extradited. Despite a firestorm by Republicans against the hated British, Adams refused to intervene and refused to block the judge’s action. The British promptly tried and hanged Nash, and Republicans savaged Adams and sought his censure in the House.

Marshall took the House floor and powerfully defended the president’s position. Congressman Albert Gallatin, the Republican scheduled to speak after Marshall, is said to have turned to colleagues at the conclusion of Marshall’s speech and advised, “Gentlemen, answer it yourself. For my part, I think it is unanswerable.”

Beneath Marshall’s easy airs and bonhomie, he was energetic, efficient, pithy, and luminously logical. Marshall woke early every morning, walked six miles, and began working hard before the day had begun. Lawyers and listeners from across the spectrum admired his turn of mind and his razor-sharp reasoning.

Marshall was devoted to his wife, Polly, who suffered from nervous exhaustion, anxiety, and depression from the time of his trip to France in the XYZ Affair until her death in 1831. Polly frequently was an invalid, confined to her bedroom and requiring complete quiet around her at all times. When in Richmond, Marshall doted on her and took elaborate actions to try to ensure a hushed environment.

Even with his devotion to Polly, Marshall richly appreciated the art of flirtation. He remarked once that young men now seemed excessively timid in their pursuit of women. In his stay in Paris during the XYZ Affair, Marshall lodged with the Marquise de Villette, who had been raised by Voltaire and who kept Voltaire’s heart in a silver case in her sitting room. Marshall was thoroughly enthralled with the Marquise, leading to speculation that they may have had an affair, the only suspected liaison in his fifty-year marriage to Polly.

Family feuds undoubtedly played a part in the mutual enmity between Marshall and Jefferson. Marshall’s grandmother, Mary Randolph Isham Keith, had battled with the Randolph family and had been disowned by the Jefferson family. In addition, Marshall’s mother-in-law, Eliza Ambler, had been Jefferson’s first fiancé, and she nursed an abiding resentment toward her former lover.

Political differences also played a part in the breach. Jefferson, for example, had been critical of George Washington in the notorious “Mazzei letter,” in which Jefferson ridiculed Washington as the “shorn Samson.” Jefferson had written a letter providing an overview of American political life to his old friend Phillip Mazzei, an Italian who translated the letter and published it in a local Italian newspaper. The letter was then translated back into English and published in London newspapers. When those newspapers arrived in America in May 1797, the Mazzei letter shocked Washington loyalists such as Marshall. Like some other Revolutionary War veterans, Marshall also may have resented Jefferson’s actions in the Revolution; as the wartime governor of Virginia, Jefferson hastily fled Richmond as the British approached, a panicked flight that led to criticism throughout his career.

Whatever the reasons, their mutual dislike was clear and unshakeable. In a letter to Madison in 1795, Jefferson privately scorned Marshall’s “lax lounging manners” and his “profound hypocrisy.” Jefferson eagerly passed on rumors that Marshall had enriched himself during the XYZ Affair by looking after his private matters while in Europe. Jefferson also cast doubt on Marshall’s version of events with Talleyrand, writing Edmund Randolph in 1799 that the account of the XYZ Affair was merely “a dish cooked up by Marshall, where the swindlers are made to appear as the French government.” Jefferson was distressed when Marshall won election to Congress, and he privately condemned Patrick Henry for his “apostasy” in supporting him.

For his part, Marshall similarly was caustic about Jefferson. As Henry Adams concluded, “[T]his excellent and amiable man clung to one rooted prejudice: he detested Thomas Jefferson.” Late in life, Marshall would write that he had never believed Jefferson to be honorable. He derisively referred to Jefferson as the “great lama of the mountains,” meaning that he was aloof and didn’t care about anyone else.

As public figures, however, Jefferson and Marshall occasionally had to deal with each other. When Marshall returned to Philadelphia after the XYZ Affair, Vice President Jefferson twice tried to visit him at his hotel. On the second try Jefferson left a note saying that he “was so lucky as to find that he [Marshall] was out on both occasions.” Catching himself, Jefferson then scrawled an “un” onto the note above the “lucky.”

THE HIGH FEDERALISTS were furious at Adams’s nomination of Marshall to be chief justice. They did not trust him, and they had hoped for the appointment of Paterson, their champion and ally. Senator Jonathan Dayton of New Jersey, Paterson’s home state, erupted. He wrote Paterson that he was filled with “grief, astonishment and almost indignation,” and that Marshall’s nomination was “contrary to the hopes and expectations of us all.” Dayton immediately demanded that Adams reverse his decision. The outraged senator privately fumed that Adams’s recent appointments “have manifested such debility or derangement of intellect, that I am convinced, in common with most of our Federal members, that another four years of administration in his hands would have exposed us to destruction.”

The Republicans’ response, in contrast, was muted. Many viewed Marshall as far less objectionable than other Federalist possibilities. The exception among the Republicans was James Callender, imprisoned under the Sedition Act and not yet estranged from Jefferson. Callender wrote in the Richmond Examiner, a Republican newspaper in Marshall’s hometown, “we are to have that precious acquisition, John Marshall, as Chief Justice. . . . The very sound of this man’s name is an insult upon truth and justice.”

For his part, Adams was delighted with his appointment of the 45-year-old Marshall. Receiving a letter from New Jersey lawyers urging Adams to appoint himself as chief justice, Adams enthusiastically responded that he instead had nominated “a gentleman in the full vigor of middle age, in the full habits of business and whose reading in the science [of law] is fresh in his head.” At a time when all was bleak to Adams, with the President’s House about to be occupied by Jefferson or Burr and the Republicans poised to take over Congress, his appointment of Marshall to head the judiciary gave him great satisfaction.

Justice Paterson tried to snuff out the rebellion being waged on his behalf. He wrote Dayton warmly endorsing Marshall. Paterson stated that he felt “neither resentment nor disgust” about Marshall’s appointment and believed that Marshall was “a man of genius” whose “talents have at once the luster and solidity of gold.”

Support for Marshall in the Senate was harder to secure—even from Adams’s own party. The Federalists had shown themselves willing to contradict the president; on January 23, 1801, just a few days after Adams nominated Marshall to be chief justice, the president suffered a humiliating defeat when the Senate rejected the Convention of Mortefontaine. Every vote against the treaty with France was cast by Adams’s fellow Federalists.

Within days of Marshall’s nomination, a delegation of Federalist senators met with Adams to pressure him to withdraw Marshall and nominate Paterson. But Adams was adamant. As Dayton confided to Paterson, “all voices with the exception of one only were united in favor of the conferring of this appointment upon you. The President alone was inflexible, and declared that he would never nominate you.”

Dayton and the other Federalists reluctantly decided to let Adams have his way on the chief justice nomination, figuring that if they blocked Marshall, the president’s replacement probably would be “not so well qualified, and most disgusting to the Bench.” Dayton advised Paterson that Marshall “was not privy to his own nomination, but had previously exerted his influence with the President on your behalf.” Marshall apparently had found a way, either directly or through a back channel, to temporarily mollify his most outspoken opponent by confiding that he had supported Paterson. But even after his vote for Marshall’s confirmation, Dayton remained bitter. He angrily derided Adams as “a wild freak of a man whose administration, happily for this country, is soon to terminate.”

On January 27, 1801, one week after Adams’s nomination of Marshall and without a hearing in the Senate (which would not occur for a Supreme Court nominee until 1925), the outgoing Senate unanimously confirmed John Marshall to be the third chief justice of the United States.

Marshall was thrilled and wrote Adams warmly accepting the appointment. “This additional and flattering mark of your good opinion has made an impression on my mind which time will not efface,” Marshall advised the president. “I shall enter immediately on the duties of the office and hope never to give you occasion to regret having made this appointment.”

Marshall may have been thrilled, but it was not clear that he even had a court to lead. On the same day that Adams announced his nomination of Marshall, Congress was still scrambling to find a place for the forgotten Branch to meet. The District commissioners, whose job was to plan the city and find housing for the various departments of the government, had written twice in recent months asking for recommendations on where to locate the Court: The letters, addressed to Secretary of State John Marshall, had not been answered.

On January 20, 1801, the Speaker of the House requested to Congress that the Supreme Court be accommodated in the Capitol. A few days later, on January 23, the House and Senate finally adopted a resolution formally giving leave to “the Commissioners of the City of Washington to use one of the rooms of the Capitol for holding the present session of the Supreme Court of the United States.”

Newspapers focused instead on a mysterious fire that had erupted at the new Treasury Department building, next door to the President’s House. “Last evening about dusk a fire was discovered in the TREASURY DEPARTMENT,” announced the National Intelligencer on the same day as Marshall’s nomination. “When discovered, one of the rooms of the Accountant was in a full blaze. The papers in this room are said to be entirely destroyed, and those in an upper and an adjacent room, to which the flames extended, are said to be considerably injured. The fire was extinguished in about an hour and a half.”

Rumors spread that Federalists had set this fire, along with other fires at War Department offices in Washington and Massachusetts to hide damaging secrets from the incoming Republicans. As Republican Congressman John Fowler explained in a letter to his Kentucky constituents, the fires, “at a period when patronage and the secrets of office were about to be transferred to different hands, could not but excite the worst suspicions.”

AS MARSHALL PREPARED to be sworn in as chief justice, he still had duties, and worries, as secretary of state. He had agreed to Adams’s request that he continue to serve in the cabinet until the new president, whoever it would be, named a new secretary of state on March 4—a simultaneous wearing of hats in the Executive and Judicial branches that would be unthinkable today. Secretary of State Marshall’s most pressing problem was the Convention of Mortefontaine with France, so recently rejected in the Senate by rebellious fellow Federalists. He maneuvered to reverse the decision by releasing a letter from Rufus King, the respected ambassador to England with great credibility among the Federalists, reporting that the British government had no objection to the treaty. Perhaps feeling that they had accomplished their goal of inflicting intramural pain on Adams, the Federalists now reversed course. On February 3, 1801, to Marshall’s great relief, the Senate finally ratified the Mortefontaine treaty between the United States and Napoleon Bonaparte’s new government.

The following day, on February 4, 1801, a cold and rainy Wednesday morning in the capital, William Cushing of Massachusetts, the elderly senior associate justice, administered the oath of chief justice of the United States to John Marshall. Justice Bushrod Washington of Virginia, Marshall’s close friend, attended the brief ceremony, as did Justice Samuel Chase, the fiery, bombastic, partisan judge from Maryland. But otherwise, the event was sparsely attended. The other two members of the Supreme Court, Paterson of New Jersey and Alfred Moore of North Carolina, stayed home.

Marshall wore plain black robes, which set him apart from the other justices, who wore florid scarlet and ermine robes or academic gowns. It had been the custom of Virginia judges to wear such black robes. The simple black style suited Marshall. It symbolized a lack of pretense and pomp while maintaining an aura of dignity and authority.

The following week, on February 10, 1801, the Supreme Court met for the first time in a dark, cramped room in the Capitol, a room that the Supreme Court would share with the local District of Columbia courts. Chief Justice (and still Secretary of State) John Marshall presided. Once again, only Cushing, Washington, and Chase were in attendance; Paterson and Moore remained at home. There was no court reporter; Alexander Dallas, who occupied the position in Philadelphia, had refused to move to Washington. (He would eventually be elected Pennsylvania attorney general.)

THOMAS JEFFERSON had no apparent reaction to the installation of his cousin as the third chief justice of the United States. He must have been somewhat annoyed that a man he so disliked had been elevated to such a position. But perhaps Jefferson was so preoccupied with the deadlocked election and the looming vote in the House of Representatives that he did not pay much attention.

Several days after Marshall was confirmed as chief justice, Jefferson returned to the White House to have tea and say goodbye to Abigail Adams, who was preparing to return home in advance of her husband. In a letter to her son, Abigail wrote that Jefferson had visited her “to take leave and wish a good journey. It was more than I expected.” There is no other record of their visit. It seems unlikely that Jefferson ever mentioned the impending House vote as he had at the dinner party several weeks before, but it would later become clear that Jefferson hoped for John Adams’s intervention on his behalf. Jefferson was genuinely fond of the First Lady, but he was also aware of the extent to which her opinion mattered with the president; he undoubtedly hoped that Mrs. Adams would implore her husband to help. Jefferson knew that if President Adams could influence just one vote in the House of Representatives, the election would be his.

On February 11, as snow blanketed the city, House members assembled in the Senate Library to try to decide between Burr and Jefferson. The lower house’s chamber in the south wing of the Capitol still lacked a roof. The delegation of each state was allowed a single vote for president; as there were sixteen states, the winner needed a simple majority of 9 votes. Although Federalists had a majority in the House, Republicans had a majority of the delegations in eight states, Federalists had a majority of the delegations in six states, and two states (Maryland and Vermont) had delegations evenly split.

On the first ballot, six states voted for Burr, all of them the Federalist-controlled states. Eight states, the Republican-controlled states, voted for Jefferson. The evenly split delegations of Maryland and Vermont cast no votes. The session droned on for twenty hours with periodic votes. Servants brought in food, spirits, and water for the members in their seats. Four fireplaces heated the large rectangular room, but many congressmen wore their long overcoats and some of the lawmakers even curled up on the floor to catch a few hours of sleep between votes. Others smoked pipes or cigars. One legislator, too ill to sit at his desk, lay on a cot in a room just off the Senate floor. At nine o’clock the next morning, with still no progress, the Speaker announced that the House would adjourn until the following day.

The next day, lawmakers returned to the Capitol but again made no progress. Another day went by and the impasse continued. Then another. Rumors began to circulate that Federalists might stall the vote until after March 4, Inauguration Day, and then appoint their own candidate as president—perhaps former Supreme Court Chief Justice John Jay, or even the new chief justice, John Marshall—just as Jefferson had long suspected. Outside the Capitol building, demonstrators chanted Jefferson’s name. Several men rode a large wooden sleigh through the snowy streets waving a big banner proclaiming “Jefferson, the Friend of the People.” But concern over the deadlock went beyond protests and demonstrations. In Pennsylvania, Governor Thomas McKean, who had campaigned actively on behalf of Jefferson, pledged to call out the state militia, estimated at 20,000, and to march on the capital if Federalists attempted to deny the installation of a Republican president. There was talk of civil war.

Jefferson, staying at his boardinghouse near the Capitol, conferred regularly with his Republican allies in the House; his frustration mounted as the deadlock dragged on. On February 14, he noted in his diary that General Armstrong had told him that Gouverneur Morris wondered “that Burr who is four hundred miles off (at Albany), has agents here at work with great activity, while Mr. Jefferson, who is on the spot, does nothing?” Jefferson now feared that the election might be stolen from him. As he would later recount in a letter to Benjamin Rush, “I called on Mr. Adams to have this desperate measure prevented by his negative.”

President Adams received his vice president in his personal office in the President’s House, but it was quickly apparent that he was in no mood to help. With only a few weeks left in his presidency, he was desperate to return to Massachusetts and to his wife who had left the city the day before. But Adams’s irritability was also grounded in his belief that this was a question for the legislature to decide and that separation of powers dictated that he have no say in the outcome of the election.

After Jefferson made his case for intervention, Adams snapped at him, “Sir, the event of the election is within your own power. You have only to say you will do justice to the public creditors, maintain the navy, and not disturb those holding office, and the government will instantly be put in your hands. We know it is the wish of the people it should be so.” According to Jefferson, Adams spoke “with a vehemence he had not used towards me before.” Jefferson replied, “I will not come into government by capitulation.” With these words, the last he would ever speak to Adams face to face, Jefferson left the President’s House.

Jefferson did not give up. While there is no public record of his next moves, he seemed to signal to certain key Federalist lawmakers, either directly or through intermediaries, that he would be flexible on matters of both policy and patronage. One such lawmaker was James A. Bayard of Delaware. Delaware was tiny and had only a single member of Congress, which meant that Bayard himself was the entire state delegation. If he switched sides, Jefferson would have his majority of nine states.

Bayard had been first approached by Representative John Nicolas of Virginia, a close friend of Jefferson’s. He would later recall that he had told Nicolas, “I considered it not only reasonable but necessary that offices of high discretion should be filled by men of Mr. Jefferson’s choice,” but Bayard wanted assurances from Jefferson of support for the public credit, the maintenance of the naval system, and security for minor office holders. These were essentially the same terms that President Adams had previously advised Jefferson to offer the Federalists. They represented a recognition of the importance of a national bank and a strong military—both central tenets of the Federalist Party—and, now that they were in the minority, grudging support for a two-party system. Bayard could not obtain a promise from Nicolas, but Samuel Smith, a congressman from Maryland, reported to Bayard that his requests “corresponded with his [Jefferson’s] views and intentions and that we might confide in him accordingly.” Jefferson would later dispute that he had authorized Smith to make such a representation.

On February 17, six days after their first vote, House members cast their thirty-sixth ballot. Representative Bayard of Delaware submitted a blank ballot, thereby removing his state’s vote from the Burr column and putting it in the “not-voting” category. At the same time, following Bayard’s lead, Federalists in the evenly split states of Maryland and Vermont now abstained, allowing their Republican counterparts to cast their states’ votes for Jefferson. Federalists in the South Carolina delegation, which consisted only of Federalists and which had been supporting Burr, likewise did not vote. The logjam had been broken: Jefferson won decisively with 10 votes (Maryland and Vermont added to his original 8) to Burr’s 4. Two states—Bayard’s Delaware and South Carolina—abstained.

As news of the outcome spread, Republicans gathered in bars, meeting houses, and parlors to raise toasts to the new president. The Federalist Gazette reported somewhat sarcastically, “The bells have been ringing, guns firing, dogs barking, cats mewing, children crying, and Jacobins getting drunk.”

An excited pro-Jefferson mob celebrated raucously in the streets of the capital. They marched to houses of well-known Federalists demanding a sign of acquiescence. Abigail Adams’s nephew, William Cranch, obliged the mob by placing a candle in his window. The crowd moved on to Georgetown and assembled outside the prominent two-story brick home belonging to William Marbury, who was by now a well-known Federalist. They cheered President-elect Jefferson and demanded a similar sign of surrender. Marbury staunchly declined. According to the Washington Gazette, “[h]e refused in the most resolute manner to obey the mandate, and the mob left him imprecating vengeance.”

The Republican Aurora proclaimed that “[t]he Revolution of 1776 is now, and for the first time, arrived at its completion.” Jefferson would later refer to his election as “the revolution of 1800,” for it marked the first peaceful democratic transfer of power from one political party to another in America’s short time as an independent nation, and in the history of the world. But others, such as Chief Justice John Marshall, quietly worried about the direction of the country, fearing that the new president would “strengthen the state governments at the expense of . . . the Union . . . and transfer as much as possible the powers remaining with the general government to the House of Representatives.”