William Maclay: the First ‘Jeffersonian’
by Joseph R. Stromberg
CAREER
William Maclay was born in New Garden, Chester County, Pennsylvania, in 1737. He had a classical education and apparently studied law. He saw some service in the French and Indian War, was a surveyor for the Penn family, and held minor official posts under the Proprietary Government. In spite of his employment under the Proprietary regime, Maclay supported American independence, serving as a commissary in the Continental Army, and serving in the state legislature in the 1780s.
When the state-building continental nationalist movement – curiously termed “Federalist” – put through their constitutional coup d’état, barely, Maclay slipped through the cracks to serve in the first Congress.
Since Senators were to serve six-year terms, with only a third of them standing for election every two years, the original Senators drew terms of two, four, or six years, so as to begin the rotation. Maclay drew a two-year term in the first US Senate. In this body, he stood out as almost the only real opposition spokesman. Consistently on the losing side of Senate votes, Maclay cannot be considered a “successful” legislator. When the Pennsylvania legislature failed to reëlect him to the US Senate, he went into state politics, serving in the assembly and also as a judge. He died in 1804, having seen the triumph of a movement grounded on the principles for which he had spoken in the Senate in 1789–1791.
(See http://maley.net/transcription/Sketches/BEMaclay.htm and http://bioguide.congress.gov/scripts/biodisplay.pl?index=M000031 )
Thus Maclay is remembered, not so much because of his federal career, but because he kept a famous journal, covering the period from April 24, 1789 through March 3, 1791. [1] This diary is almost the only available historical source dealing with Senate business in that period.
There is, however, one unfortunate gap in Maclay’s account. As historian Stuart Leibiger observes: “Since the Senate met in secret and the avid recorder of its debates, Senator William Maclay of Pennsylvania, was ill, little is known about its discussion of the Bill of Rights.” [2] It would be interesting to know the Senate’s role in Little Jamie Madison’s hijacking of the movement to amend the Constitution.
As to why the Senate met behind closed doors, Maclay’s comments on the celebrated Federalist Papers give a reason: “Memorandum: Get, if I can, The Federalist without buying it. It is not worth it. But, being a lost book, Izard, or some one else, will give it to me. It certainly was instrumental in procuring the adoption of the Constitution. This merely a point of curiosity and amusement to see how wide of its explanations and conjectures the stream of business has taken its course” (June 14, 1789). [3]
The Federalists had talked a good game of “enumerated powers” and “limited government” when selling the Constitution to the state ratifying conventions. As Maclay could see, they had suddenly found all manner of “implied powers” and loose, constructible verbiage in that “paper,” once they had their victory. It was no wonder they did not want the American people to enquire too deeply into their initial legislative work.
REGIONAL ANTIPATHIES AND PITHY COMMENTS
Some of the most amusing passages in the journal express Maclay’s opinions of gentlemen from other states. He did not always hold his colleagues in the highest regard. He was, for example, fairly hard on New Englanders: “We Pennsylvanians act as if we believed that God made of one blood all families of the earth; but the Eastern people seem to think that he made none but New England folks.” Elsewhere, he writes: “there is very little candor in New England men.” And in a rather prophetic passage, he says: “For my knowledge of the Eastern character warrants me in drawing this conclusion, that they will cabal against and endeavor to subvert any government which they have not the management of.” [4]
Other states fell under Maclay’s knife. Of his colleague, Oliver Ellsworth, he comments: “I am often led to doubt whether he has a particle of integrity; perhaps such a quality is useless in Connecticut.” While he sometimes found himself voting with Southerners, he could still write that, “No Virginian can talk on any subject, but the perfection of General Washington interweaves itself into every conversation.” Maclay was especially hard on the state in which Congress was then meeting: “These Yorkers are the vilest of people. Their vices have not the palliation of being manly. They resemble bad schoolboys who are unfortunate at play: they revenge themselves by telling enormous thumpers.” [5]
Rhode Island was generally disliked and derided at this time. Maclay defended that state when Congress put pressure on it to ratify the Constitution, or else. Even so, when a bill came in, in June 1790, to buy land for a fortress at West Point, a bill he saw as a clearcut piece of jobbery, he asks: “Am I mistaken, or is it the spirit of prodigality broke loose since Rhode Island came in?” [6]
The journal also abounds in unkind comments on particular individuals. From the outset, Maclay was shocked by the royalist punctilio with which the Federalist majority wished to deck the new government. This included a motion to thank Washington for his “most gracious address” and suggested titles for the President such as “Elective Majesty” (this one borrowed from Poland).
Maclay saw John Adams as one of the worst offenders in this area. He writes: “John Adams has served to illustrate two points at least with me, viz., that a fool is the most unmanageable of all brutes, and that flattery is the most irksome of all service.” Further: “Our Vice-President, however, never seems pleased but when he is concerned in some trifling affair of etiquette or ceremony.” And, twisting the knife: “Bonny Johnny Adams, ever and anon mantling his visage with the most unmeaning simper that ever dimpled the face of folly.” [7]
Of his colleagues Rufus King (Massachusetts) and Ellsworth, he says, “their toolism is sufficiently evident to everyone.” [8]
Maclay’s journal describes the social life of the temporary capital city. Without such modern conveniences as telephones and email, one had to go around in person, or send someone, to deliver calling cards. In time, cards, dinner invitations, and the like were seen as wasted on Maclay. Social favors did not influence his votes. The President, among others, noticed this, and Maclay received fewer and fewer invitations.
GENERAL POLITICAL MISGIVINGS
Early in the session, Maclay had begun to fear the worst: “My mind revolts, in many instances, against the Constitution of the United States. Indeed, I am afraid it will turn out the vilest of all traps that ever was set to ensnare the freedom of an unsuspecting people. Treaties formed by the Executive of the United States are to be the law of the land. To cloak the Executive with legislative authority is setting aside our modern and much-boasted distribution of power into legislative, judicial, and executive – discoveries unknown to Locke and Montesquieu, and all the ancient writers. It certainly contradicts all the modern theory of government, and in practice must be tyranny.” [9]
Much later, he writes: “The adoption of the new Constitution raised a singular ferment in the minds of men. Every one ill at ease in his finances; every one out at elbows in his circumstances; every ambitious man, every one desirous of a short cut to wealth and honors, cast their eyes on the new Constitution as the machine which could be wrought to their purposes, either in the funds of speculation it would afford, the offices it would create, or the jobs to be obtained under it.” [10]
It remains to canvass Maclay’s libertarian/republican views on the business of Congress, as various issues presented themselves.
THE IMPOST AND OTHER TAXES
One of the first pieces of business was the impost. Maclay seems shocked that the bill ran to forty pages! [11] (He would really hate today’s Federal Code.) Still, the new regime had to have some revenue, and an impost was far less intrusive than an excise. Here, Maclay and other Anti-Federalists were on the same ground as American revolutionaries who had contrasted “external” and “internal” taxes.
There is much discussion in the journal of the interstate wrangling about rates and schedules. The New Englanders were very protective of their molasses. Maclay, it must be admitted, was a bit tender about Pennsylvania’s iron industry, arguing that a 7% duty would be too much of a shock for an industry which had gotten used to a state tariff of 12%.
On the other hand, he took a proto-Jeffersonian line on excises, commenting, “If I really wished to destroy the new Constitution, to injure it to the utmost of my power, I would follow exactly the line of conduct which” Richard Henry Lee (Virginia) “has pursued.” [12]
THE JUDICIARY ACT
The debate on the Judiciary Act drew from Maclay many unkind comments about lawyers, along with principled objections. Thus: “We got on to the clause where a defendant was required, on oath, to disclose his or her knowledge in the cause, etc. I rose and declared that I wished not to take up the time of the committee…but that I could not pass in silence a clause which carried such inquisitorial powers with it…. [B]ut here was an attempt to exercise a tyranny of the same kind over the mind” as torture. “The conscience was to be put on the rack; that forcing oaths or evidence from men, I considered as equally tyrannical as extorting evidence by torture; and of consequence had only the difference between excusable lies and willful perjury.” [13]
As the debate ran on, “the lawyers” dredged up Blackstone, trial by battle, feudal precedent, chancery, and all manner of arcane trickery. The bill, “fabricated by a knot of lawyers” was such that Maclay was driven to “dislike the whole of this bill.” On July 3, 1789, “we came to the clause empowering the judges, either on their own knowledge or complaint of others, to apprehend, bail, commit, etc.” Maclay’s response in the chamber was this: “If a judge happened to be the only person having knowledge of the commission of a crime, let him apply to some other judge.” [14]
A week later, “the lawyers showed plainly the cloven foot of their intentions.… Now we see what gentlemen would be at. It is to try facts on civil-law principles, without the aid of a jury, and this, I promise you, never will be submitted to.” After another week, he could write: “I opposed this bill from the beginning. It certainly is a vile law system, calculated for expense and with a design to draw by degrees all law business into the Federal courts. The Constitution is meant to swallow all the State Constitutions by degrees, and thus to swallow, by degrees, all the State judiciaries.” [15]
THE PRESIDENCY AND AN EMERGING COURT PARTY
As a hard-core republican, Maclay saw current events as the American counterpart to the British struggle between Court and Country and cast Treasury Secretary Alexander Hamilton in the role of Sir Robert Walpole. This was actually a very good comparison. In July 1789, he writes, “It seems as if a court party was forming; indeed, I believe it was formed long ago.” Patterson “flew over to England; extolled its Government; wished, in the most unequivocal language, that our President had the same powers….” He quotes his colleague William Grayson (Virginia): “The matter predicted by Mr. Henry is now coming to pass; consolidation is the object of the new Government, and the first attempt will be to destroy the Senate, as they are the representatives of the State Legislatures.” [16]
Maclay complained of servile attempts to get the Senate to praise the President’s speech of January 8, 1790. This he termed “a stale ministerial trick in Britain to get the Houses of Parliament to chime in with the speech, and then consider them as pledged to support any measure which could be grafted on the speech.” [17]
Maclay believed that establishing the principle that state legislators could instruct their Senators on how to vote might serve as a counterweight to this emerging system. He writes: “Perhaps the best way is for all the States to use it, and the general evil, if it really should be one, will call for a remedy.” Further: “Is it to be expected that a Federal law passed directly against the sense of a whole State will ever be executed in that State? If the answer is in the negative, it is clearly better to give the State an early legislative negative than finally let her use a practical one which would go to the dissolution of the Union.” [18]
In mid-August 1789, he has this: “A thought here on the subject of influence. Stripped of its courtly coloring, and it is neither more nor less than corruption…. But Walpole was a villain. What, then, must be the man that follows his footsteps?” And a bit later, this: “Can it be that they wish to surround the President with a set of lordly and pompous officers, and thus having provided the furniture of a court, nothing but the name of majesty, highness, or some such title will be wanted to step into all the forms of royalty?” [19]
In Maclay’s view, members of the court party were bent on “giving the President as far as possible every appendage of royalty.” Some even held that, “the President, personally, was not the subject to any process whatever; could have no action whatever brought against him” save impeachment. Well, asked Maclay, what if a President committed a murder, and then committed new ones daily? Adams replied that crowned heads had never committed murder. To this, Maclay answered (in the journal): “Very true, in the retail way, Charles IX of France excepted. They generally do these things on a great scale.” [20]
ASSUMPTION AND ‘FUNDING’ (NATIONAL DEBT)
In mid-January 1790, Maclay writes that Hamilton “recommends indiscriminate funding, and, in the style of a British minister, has sent down his bill. 'Tis said a committee of speculators in certificates could not have formed it more for their advantage.” He adds: “It appears that a system of speculation for the engrossing [of] certificates has been carrying on for some time.” Further: “I really fear the members of Congress are deeper in this business than any others.” [21]
At issue was the fate of certificates issued by the Continental Congress and the states during the Revolution. These notes had circulated as money and had, by their rapid multiplication, quickly lost value. Speculators bought them up at depressed values (10% or less of face value), expecting a new federal regime with enhanced taxing powers to pay off the notes at rates closer to face value. These proposals, funding – creation of new public debt in the course of paying off the old debt, and assumption, federal payment of state debts, were the heart and soul of the nationalist movement. [22]
The logic was impeccable: By the mid-1780s, the states were sopping up their debts by retiring them at rates close to their actual market value. If this process were finished, there would be less reason for nationalists in the Confederation Congress to press for a new taxing power (the impost). It became critical for the would-be centralizers to put through a new plan of government as soon as possible. They had succeeded and were now addressing, through funding and assumption, one of their key goals.
As Maclay saw it, James Madison’s alternative funding plan “yields no relief as to the burden, but affords some alleviation as to the design the tax will be laid for; and is, perhaps, on that account more dangerous, as it will be readier submitted to.” At most, Maclay wished to pay three percent on the debt via land office sales, rather than establish new debt. On February 22, 1790, he told Madison that the latter’s plan would not pass: “It hurt his Littleness.” [23]
Aside from redistributing wealth from the general public to bondholders, and between different classes of bondholders, assumption was meant, in Maclay’s opinion, to hasten “the reduction of the State governments….” Hence, Hamilton’s spokesmen “scarce disguise their design, which is to create a mass of debts which will justify them in seizing all the sources of Government, thus annihilating the State Legislatures and creating an empire on the basis of consolidation.” And further, on July 18, 1790: “Mr. Fitzsimmons averred, in the most unequivocal manner, the grand object the assumption to be the collecting all the resources of the United States into one treasury.” [24]
ECONOMIC COERCION OF RHODE ISLAND
A short-lived issue involved the determination of the new US government to coerce Rhode Island into ratifying the Constitution. As in the case of North Carolina, which has taken its time coming into the remodeled union, no one denied the independent statehood of Rhode Island, nor did anyone claim that, as part of some singular American-people-in-the-aggregate, Rhode Island must come into the union. Instead, Senators expressed concern that an independent Rhode Island might, by practicing freer trade, cut into US tariff revenue.
They therefore proposed to confront Rhode Island with potential trade barriers between that country and the US. As Maclay noted on May 10, 1790, the Constitution was “under deliberation in Rhode Island; that the resolves carried on the face of them a punishment for rejection, on the supposition that they would ruin our revenue.” This needed first to be shown. The next day, he writes: “They admitted on all hands that Rhode Island was independent, and did not deny the measures now taken were meant to force her into an adoption of the Constitution… and founded their arguments in our strength and her weakness.” And “this was playing the tyrant to all intents and purposes.” [25]
A week later, he summed up the spirit of the proposed sanctions, writing that they were “meant to be used in the same way that a robber does a dagger or a highwayman a pistol,” adding “that where independence was the property of both sides, no end whatever could justify the use of such means in the aggressors.” [26]
THE BANK OF THE UNITED STATES
Maclay notes the receipt by the Senator of Hamilton’s report on December 24, 1790, which called for a Bank of the United States. He was not too keen: “Considered as an aristocratic engine, I have no great predilection for banks. They may be considered, in some measure, as operating like a tax in favor of the rich.…” The power might well exist to create the bank. After all, the Confederation had enjoyed the power of incorporation. Maclay’s objections were practical: “Bank bills are promissory notes, and, of course, not money. I see no objection in this quarter. The great point is, if possible, to prevent the making of it machine for the mischievous purposes of bad ministers….” [27]
Here Maclay is chiefly concerned about the probable role of the bank as an engine of political corruption and favoritism in the hands of the American Walpole.
WAR, POWER, AND WAR POWERS
Maclay was unhappy at President Washington’s habit of dropping in on sessions of the Senate: “I saw no chance of a fair investigation of subjects, while the President of the United States sat there, with his Secretary of War, to support his opinions and overawe the timid and neutral part of the Senate.” [28] In Maclay’s opinion, this practice violated, among other things, the separation of the branches of government.
Maclay believed in republican simplicity and in staying out of unnecessary trouble with other nations. He also carried forward the revolutionary theme that standing armies were a menace to free institutions. He wrote that, “I thought the act was a mad one, when a Secretary of War was appointed in time of peace.” [29]
A War Secretary would necessarily want an army and would soon find employment for one. As he put it in his journal, “now we must find troops lest his office should run out of employment.” Yet militia could, and ought to handle the few cases in which force was needed – “the enforcing of laws, quelling insurrections, and repelling invasions. ” [30]
In mid-April 1790, the Senate once again took up the “bill for regulating the military establishment.” Maclay writes: “I have opposed this bill hitherto… as the foundation, the corner-stone of a standing army.” Under the new system, “a vast number of offices” have been created. “Hence we must have a mass of national debt to employ the Treasury, an army for fear the Department of War should lack employment. Foreign engagements, too, must be attended to keep up the consequences of that Secretary. The next cry will be for an Admiralty. Give Knox his army, and he will soon have a war on hand….” [31]
Maclay thought that Federalist Senators, impressed by “the glare of British grandeur, supposed to follow from her funds” (i.e., public debt), ought to consider that since adopting such a system, Britain had been in continual war: “The pretexts have been ridiculous – balances of power, balance of trade, honor of the flag, sovereignty at sea, etc., but the real object was to fill the Treasury, to furnish opportunity for royal peculation, jobs and contracts for needy courtiers, to increase the power of the crown by the multiplication of revenue and military appointments and the servility of the funds, for every stockholder is, of course, a courtier.”
Federalists of course maintained “that this is nothing in a national point of view, as the nation owes it to individuals among themselves.” [32] Here the Federalists anticipated the New Dealers’ slogan “We owe it to ourselves,” but Maclay wasn’t buying it. His views call to mind Thomas Paine’s comment that taxes are not raised to make wars, but instead, wars are made in order to raise taxes
NON-INTERVENTION
Consistent with his other notions, Maclay was a strict noninterventionist: Neutrality is, he writes, “the grand desideratum of a wise nation, among contending powers. Multiplied engagements and contradictory treaties go to prevent this blessing and invite a nation in foreign quarrels. China, geographically speaking, may be called the counterpart to our American world. Oh, that we could make her policy the political model of our conduct with respect to other nations – ready to dispose of her superfluities to all the world! She stands committed by no engagement to any foreign part of it; dealing with every comer, she seems to say, ‘We trade with you and you with us, while common interest sanctifies the connection; but, that dissolved, we know no other engagement.’” [33]
This resembles Jefferson’s famous statement that we ought to be on the same footing as China, but Maclay cannot be as easily stuffed into the residual “agrarian” category so useful to modern scholars who have no sympathy for republican thinking.
In June 1790, Maclay pens another uncompromising noninterventionist sentiment. Noting that the bill “for appointing ambassadors” has cost forty thousand dollars, he says: “I consider the money as worse than thrown away, for I know not a single thing that we have for a minister to do at a single court in Europe. Indeed, the less we have to do with them the better. Our business is to pay them what we owe, and the less political connection the better with any European power.” [34]
DEFEAT AND DISILLUSIONMENT
Given his views, Maclay was increasingly frustrated at serving in the Senate. In July 1790, he could write: “I can not serve my country anything by my staying here longer.” By December, he was fed up and ready to leave, burdened by frustration at his “own insignificance and total inability to give the smallest check to the torrent which is pouring down on us.” The results of the secret sessions had been such that in January, he writes: “I am now more fully convinced than ever before of the propriety of opening our doors.” [35]
A JEFFERSONIAN BEFORE THE JEFFERSONIANS
Owing to Maclay’s dissenting views and lack of visible political success, the Pennsylvania legislature did not see fit to reappoint him to the Senate. As the boldest unconverted Anti-Federalist in a Senate dominated by Federalists, he stood his ground. It is not without reason that, in the 1927 preface to Maclay’s published journal, historian Charles Beard called him “the original Jeffersonian Democrat.” [36]
Of course, in tribute to Maclay’s stubbornness we could as reasonably refer to the subsequent republican movement as Maclayans or Maclayites, if we had not already adopted another term for it.
APPENDIX
[Maclay penned occasional essays, like this one, for friendly newspapers, while serving in the Senate.]
William Maclay, “The Budget Opened,” Philadelphia Independent Gazetteer, February 6, 1790:
Encrease the public debt by every possible method – admit all accounts authorized and unauthorized – blend the state debts with those of the Union, that thus a pretext may be afforded, to seize all the sources of revenue, and depress the state governments; for without reducing them to insignificance, a pompous Court cannot be established; and without such a Court, as a proper machine, no government can be properly managed; or in other words, the people will be meddling with serious matters, unless you amuse them with trifles. Fund all demands indiscriminately at the highest interest possible; but previous to this communicate the grand secret to all the monied interest of New-York, and to as many influential characters in Congress as may ensure the success of the project; that they may, by an united effort of speculation, secure all the certificates. Thus the whole Union will be subsidized to the city of New-York. The revenues of the United States will flow entire into the hands of her citizens. Thus possessed of the wealth of the Union, she will govern the Councils of the Empire, secure the residence of the Court and Congress, and grow in power, splendor and population, while there is room left on the island to build another house. The idle and affluent will crowd to her from all the new world, as well as many adventurers from the old. New loans must be opened on every pretext, as Holland and elsewhere; for the greater the mass of public debt, the greater will be the influence of the Treasury, which has the management of it, and all this will redound to the emolument of the favored city. Thus shall the capital of the United States in a few years equal London or Paris in population, extent, expence and dissipation, while for the aggrandizement of one spot, and one set of men, the national debt shall tower aloft to hundreds of millions.
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