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fisher ames “Falkland,” No. 2 6 February 1801 - Lance Banning, Liberty and Order: The First American Party Struggle 
Liberty and Order: The First American Party Struggle, ed. and with a Preface by Lance Banning (Indianapolis: Liberty Fund, 2004).
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fisher ames “Falkland,” No. 2 6 February 1801
In the aftermath of his famous speech on Jay’s Treaty, Ames, who had been suffering from pneumonia and perhaps from tuberculosis for much of the session, declined to stand for reelection. Although a brief term on the governor’s council in Massachusetts would be his only later office, he wrote numerous essays condemning Jeffersonian pandering to the people. This one appeared in the Palladium a month before Jefferson’s inauguration.
… The jacobins and anarchists … will act at first, and until they have brought things into the confusion that democrats ever do, … according to the forms of the Constitution. The legal powers of a president are not too great, and unless a majority in Congress should cooperate in the abuse of them, we have more to apprehend immediately from their neglect. The executive department will probably be suffered to droop in imbecility and to struggle with embarrassments. The men who have hitherto opposed order have not understood nor respected its principles, and it is expected they will more frequently obstruct than enforce them. The Secretary of the Treasury will be treated as a head clerk—his reports and plans will not be asked for nor tolerated, much less adopted. No department of power will be allowed to be safe except that of the House of Representatives—nor that in opposition to a rabble. What if the pipe should get choked up through which the funding system is nourished, what is that to the people?
If, merely by neglect, the work of destruction, though sure, should appear to be too slow and they should be impatient to hasten it by projects of innovation, there must be a majority in Congress. At present, the Senate of the United States is disposed to stand as a barrier against the democratic flood, the very office for which it was erected. Accordingly, we see that the imported patriots of Pennsylvania are already armed to assail the senate of that state as a useless and dangerous branch of government. The like attempt will be made against the Senate of the United States. Indeed, Virginia proposed, some years ago, so to amend that branch that it should become in future a tool in the hands of faction, not a defense against it. All barriers against the licentiousness of democracy will be called usurpations on the people—meaning always the vile, and ignorant, and needy—and be rendered odious in order to be broken down. Demagogues found their influence on the popular passions—they are certainly sincere, therefore, when they execrate senates and courts, and Sedition Laws, and all other impediments to the current of those passions. They pretend to be the friends of liberty, but all demagogues are the rivals and the enemies of free government. The most conspicuous of the new men are demagogues. New York and Pennsylvania were subjected to such influence, and Virginia was trained and disciplined according to its tactics. Hence their victory.
The leading men of the ruling party will certainly endeavor to support and exercise their power in the way that they gained it, by soothing the meanest of the vulgar prejudices and exciting and assuming the direction of their passions. Things that are to be destroyed must be made unpopular, and whatever is popular in Virginia must be attempted. What is popular then? Is credit—is finance—is impost or excise, or the carriage tax, or the stamp act, or the compulsory payment of debts, is trade, and especially trade with the British dominions, popular among those lazy feudal barons? But regulations and restrictions on the commerce of other states, projects and visionary schemes to make France rich and to starve British manufactures, projects of finance to pay debts by discrimination, pretending to give to original holders what we do not owe and denying to purchasing holders what we do. Projects to administer the government without departments, without banks, and without compulsion have been popular, and we are to expect they will be resumed. Impracticable theories will be recommended and if possible established by law, because they are not British, and because they seem to be philosophy.
It is very much to be apprehended that the next House of Representatives in Congress will be hurried away by a democratic impulse. If the majority should be great, they will feel incited to execute the most extravagant of their plans, for which they have long sought the opportunity, conscious that this may not last long and that they may never enjoy another. What will they do? is the question. It has been already hinted, as one equally momentous, what will they not neglect to do? Waiving that consideration, however, for the present, it is material to inquire into the state of their inclinations and of their power; in other words, what they will desire and what they will be able to do.
They will desire to reduce their darling theories to practice. There is in the democratic sect, which will be the prevailing one, a fanaticism that disdains argument and is mad with zeal to make converts; a presumption that disdains experience and is blind to difficulties. … The people are deemed to be perfect in their intelligence and all rulers corrupted by their power. The will or the caprice or, if that could be, the vice of the people, whether regularly and distinctly known or only guessed at, is a law paramount to all laws, not excepting those of public faith and honor, of God and virtue. Hence the instructions of a representative bind him more than the constitution or his oath, his duty or conscience. With all democrats, the state of nature is still assumed as existing, each man being a sovereign invested with power which he has delegated to his representative in Congress as his ambassador, but no man is a subject even of the laws. The very name subject stinks of slavery and is disdainfully disclaimed in the gazettes of the democrats.
There is no temperate man of sense who will take the trouble to examine these gazettes for the last twelve years, who will say that any sensible or safe system of administration could be extracted from them. He will pronounce with decision that their principles are absolutely chimerical and impracticable. It is observable that the machine of our government has moved with a great deal of friction and a very feeble and intermitting momentum. Sensible men have seriously dreaded that it would stop or drop to pieces. The government has not been obeyed in the back country. It has not dared to enforce obedience nor to punish rebellion. Yet the democrats have professed unfeignedly to fear this nerveless government, that could not stand up, but was ever to be held up, as a necromancer whose magic would bind the people in chains of slavery; a giant whose colossal tread would crush them into the earth. Accordingly, for twelve years there is no measure now a law that they did not obstruct in its passage; and not one of any importance that is a law that they originated. Mr. Madison’s abortive commercial resolutions were projected and urged against the opinion of every well-informed merchant in the United States. There is no other plan or system that has even been so much as proposed by the democratic party in Congress. It has been their sufficient employment to oppose all business but to do none. It has even been avowed as a salutary principle of duty thus to check the proneness of our government to extremes unfavorable to the liberty of the people. That our farmers may at once comprehend the usefulness and good sense of this democratic principle of opposing, let them apply a like rule in their own business. Instead of trying to make it easier to do, what would they think of schemes to make it harder? What would they say if, while two of their laborers were getting a load of hay, a third should think it his duty to pitch it off? Would they like to have their axle-trees made square or eight-sided, in order that the wagon wheels might not turn so fast, and perhaps not turn at all? For it is not the fault of this party that the wheels of the government have not stood still.
In a word, the fundamental principle of the democratic system is to consider their own power as liberty and all other power, even that ordained by the Constitution, as despotism.
Accordingly, we may expect that they will feel neither affection nor reverence for the Senate nor the departments, nor even for their democratic president, except as the head of their party, but not as president. They will profess to obey the popular prejudices and passions and rely on their cooperation to sustain their power. Of course, it will be a system of demagogy. Let it be repeated, the power gained by flattering the prejudices of the whisky, the treaty, the French, the house tax and the stamp act and sedition act mobs, and mob-meetings, must be supported as it was obtained. It is hostile to law, order, property, and government, in feeling, principle, tendency, and object.
This is the general description of the party. The detail of the measures that they will probably pursue is only a matter of conjecture. But the most fearful conjecture is corroborated by the analogy of the party here with the principles and examples of France. If they should exercise power, now they are in, with the same spirit that they have opposed while they were out, revolution and confusion have no terrors that would deter, no extremes that would stop them. Is there one principal head of legislation on which their ideas have been temperate, rational, and salutary? On the contrary, is there one on which they have not avowed and urged the wildest and most disorganizing theories of their own, and like objections to the systems devised by others? Banks, credit, finance, revenue, commerce, manufactures, fisheries, army, and navy are subjects that have afforded so many classes of absurdities. Within, they would restore chaos by the jumble of committees, instead of the heads of departments.—Without, they would court the curse of a French alliance, while they inconsistently affect to separate America from Europe and its politics. They have tried on all momentous questions to interpret the Constitution to mean nothing and to pervert it with amendments that would make it mean less—and worse.
What, then, are we to expect from such men but the execution of their systems? But will they be able to do it?
There will be impediments. Let us examine their nature. It is not the nature of democracy to stop short of extremes, and least of all in the delirium of newly acquired power. The Senate of the United States will be truly republican and a barrier against licentiousness. Such will be its disposition. But its firmness will much depend on the energy of the true federal republicans dispersed through the nation. We are to expect every method of intimidation will be used by the jacobins, as in Pennsylvania, to bend the Senate from virtue. Finding, as they will find, that these men will not change their principles, they will raise a clamor in all the federal states to change the men. This, however, will take time that is precious, because it is short—for such the reign of democracy will be. In Massachusetts we have had experience of the noble firmness of our senate when they saved the state from Shays, perhaps the union from civil war and confusion.
The judiciary is another rampart against the foes of all right. There is no question of the virtue of the judges. But when jacobin juries have to determine on great contested cases, we have seen enough to make us dread their perversion of the law. The best things, when misapplied, are the worst. Jacobin verdicts for damages might prove proscriptions and confiscations to the federalists.
There will also be a spirited and able minority in Congress, who will expose the bad principles and tendencies of the democratic measures. There public opinion will discern a center of light and heat. The old republican principles, the wise and tried measures and institutions of the federal administrations, will there have skillful advocates and bold champions. It cannot be that such champions will not be strongly reinforced from the sound and enlightened part of the public. New England is not democratic, and many who now think the system of the party delightful in prospect will abhor it in the trial. It cannot be tried without shaking New England to its center. All its interests and systems and even its institutions, political and religious, are such as are detested by the democrats, because they are the strong entrenchments of an enemy. Expect, then, to see them often mined and at last battered in breach.
Repeal of the Judiciary Act of 1801
On 27 February 1801, after the resolution of the electoral tie between Jefferson and Burr, the lame-duck Sixth Congress passed a new Judiciary Act. Federalists had long insisted that the old act of 1789 was inadequate to the nation’s needs, leaving the United States with too few circuit courts and requiring Supreme Court justices to ride circuit. The new law created sixteen circuit courts, increased the number of federal marshals, clerks, and attorneys, and reduced the Supreme Court from six Justices to five. Jefferson was convinced that the act of 1801 was a Federalist ploy to pack the courts with partisans of the defeated party, and, indeed, it was said that John Adams was signing commissions for the new positions until midnight on inauguration day. Repeal of the act was a leading recommendation of Jefferson’s First Annual Message. In the course of the congressional debates, members of both parties also reviewed the struggle of the past ten years.