History of the United States During the Administrations of Thomas Jefferson/First/II:5
Chapter 5: The Louisiana Debate
If President Jefferson and Secretary Madison, who wrote the Resolutions of 1798, acquiesced, in 1803, in a course of conduct which as Jefferson believed made blank paper of the Constitution, and which, whether it did so or not, certainly made waste paper of the Virginia and Kentucky Resolutions, no one could expect that their followers would be more consistent or more rigid than themselves. Fortunately, all the more prominent Republicans of 1798 had been placed in office by the people as a result of popular approval, and were ready to explain their own views. In the Senate sat John Breckinridge of Kentucky, supposed to be the author of the Kentucky Resolutions, and known as their champion in the Kentucky legislature. From Virginia came John Taylor of Caroline, the reputed father of the Virginia Resolutions, and the soundest of strict constructionists. Twenty years later, his "Construction Construed" and "New Views of the Constitution" became the text-books of the State-rights school. His colleague was Wilson Cary Nicholas, who had also taken a prominent part in supporting the Virginia Resolutions, and whose devotion to the principles of strict construction was beyond doubt. One of the South Carolina senators was Pierce Butler; one of those from North Carolina was David Stone; Georgia was represented by Abraham Baldwin and James Jackson,—stanch State-rights Republicans all. In the House a small coterie of State-rights Republicans controlled legislation. Speaker Macon was at their head; John Randolph, chairman of the Ways and Means Committee, was their mouthpiece. Joseph H. Nicholson of Maryland, and Cæsar A. Rodney of Delaware, supported Randolph on the committee; while two of President Jefferson’s sons-in-law, Thomas Mann Randolph and John W. Eppes, sat in the Virginia delegation. Both in Senate and House the Southern Republicans of the Virginia school held supremacy; their power was so absolute as to admit no contest; they were at the flood of that tide which had set in three years before. In the Senate they controlled twenty-five votes against nine; in the House, one hundred and two against thirty-nine. Virginia ruled the United States, and the Republicans of 1798 ruled Virginia. The ideal moment of Republican principles had arrived.
This moment was big with the fate of theories. Other debates of more practical importance may have frequently occurred,—for in truth whatever the decision of Congress might have been, it would in no case have affected the result that Louisiana was to enter the Union; and this inevitable result overshadowed all theory,—but no debate ever took place in the Capitol which better deserved recollection.
Of extraordinary ability Congress contained but little, and owing to the meager character of the reports, appeared to contain even less than it actually possessed; but if no one rose to excellence either of logic or rhetoric, the speakers still dealt with the whole subject, and rounded the precedent with all the argument and illustration that a future nation could need. Both actions and words spoke with decision and distinctness till that time unknown in American politics.
The debate began first in the House, where Gaylord Griswold of New York, Oct. 24, 1803, moved for such papers as the Government might possess tending to show the value of the title to Louisiana as against Spain. Under the lead of John Randolph the House refused the call. That this decision clashed with the traditions of the Republican party was proved by the vote. With a majority of three to one, Randolph succeeded in defeating Griswold only by fifty-nine to fifty-seven; while Nicholson, Rodney, Varnum of Massachusetts, and many other stanch Republicans voted with the Federalists.
The next day the House took up the motion for carrying the treaty into effect. Griswold began again, and without knowing it repeated Jefferson’s reasoning. The framers of the Constitution, he said, "carried their ideas to the time when there might be an extended population; but they did not carry them forward to the time when an addition might be made to the Union of a territory equal to the whole United States, which additional territory might overbalance the existing territory, and thereby the rights of the present citizens of the United States be swallowed up and lost." The power to admit new States referred only to the territory existing when the Constitution was framed; but this right, whatever it might be, was vested in Congress, not in the Executive. In promising to admit Louisiana as a State into the Union, the treaty assumed for the President power which in any case could not have been his. Finally, the treaty gave to French and Spanish ships special privileges for twelve years in the port of New Orleans; while the Constitution forbade any preference to be given, by any regulation of commerce or revenue, to the ports of one State over those of another.
John Randolph next rose. Just thirty years old, with a sarcasm of tone and manner that overbore remonstrance, and with an authority in the House that no one contested, Randolph spoke the voice of Virginia with autocratic distinctness. His past history was chiefly marked by the ardor with which, from 1798 to 1800, he had supported the principles of his party and encouraged resistance to the national government. He had gone beyond Jefferson and Madison in willingness to back their theories by force, and to fix by a display of Virginia power the limit beyond which neither Executive, Congress, nor Judiciary should pass. Even then he probably cared little for what he called the "parchment barriers" of the Constitution: in his mind force was the real balance,—force of State against force of Union; and any measure which threatened to increase the power of the national government beyond that of the State, was sure of his enmity. A feather might turn the balance, so nice was the adjustment; and Randolph again and again cried with violence against feathers.
In the Louisiana debate, Randolph spoke in a different tone. The Constitution, he said, could not restrict the country to particular limits, because at the time of its adoption the boundary was unsettled on the northeastern, northwestern, and southern frontiers. The power to settle disputes as to limits was indispensable; it existed in the Constitution, had been repeatedly exercised, and involved the power of extending boundaries.
This argument was startling in the mouth of one who had helped to arm the State of Virginia against a moderate exercise of implied powers. Randolph asserted that the right to annex Louisiana, Texas, Mexico, South America, if need be, was involved in the right to run a doubtful boundary line between the Georgia territory and Florida. If this power existed in the government, it necessarily devolved on the Executive as the organ for dealing with foreign States. Thus Griswold’s first objection was answered.
Griswold objected in the second place that the treaty made New Orleans a favored port. "I regard this stipulation," replied Randolph, "as a part of the price of the territory. It was a condition which the party ceding had a right to require, and to which we had a right to assent. The right to acquire involves the right to give the equivalent demanded." Randolph did not further illustrate this sweeping principle of implied power.
After the subject had been treated by speakers of less weight, Roger Griswold of Connecticut took the floor. So long as his party had been in office, the vigor of the Constitution had found no warmer friend than he; but believing New England to have fallen at the mercy of Virginia, he was earnest to save her from the complete extinction which he thought near at hand. Griswold could not deny that the Constitution gave the power to acquire territory: his Federalist principles were too fresh to dispute such an inherent right; and Gouverneur Morris, as extreme a Federalist as himself, whose words had been used in the Constitution, averred that he knew in 1788 as well as he knew in 1803, that all North America must at length be annexed, and that it would have been Utopian to restrain the movement. This was old Federalist doctrine, resting on "inherent rights," on nationality and broad construction,—the Federalism of President Washington, which the Republican party from the beginning denounced as monarchical. Griswold would not turn his back on it; he still took a liberal view of the power, and even stretched it beyond reasonable shape to accord with Morris’s idea. "A new territory and new subjects," said he, "may undoubtedly be obtained by conquest and by purchase; but neither the conquest nor the purchase can incorporate them into the Union. They must remain in the condition of colonies, and be governed accordingly." This claim gave the central government despotic power over its new purchase; but it declared that a treaty which pledged the nation to admit the people of Louisiana into the Union must be invalid, because it assumed that "the President and Senate may admit at will any foreign nation into this copartnership without consent of the States,"—a power directly repugnant to the principles of the compact. In substance, Griswold maintained that either under the war power or under the treaty-making power the government could acquire territory, and as a matter of course could hold and govern that territory as it pleased,—despotically if necessary, or for selfish objects; but that the President and Senate could not admit a foreign people into the Union, as a State. Yet to this, the treaty bound them.
To meet this attack the Republican put forward their two best men,—Joseph H. Nicholson of Maryland, and Cæsar A. Rodney of Delaware. The task was difficult, and Nicholson showed his embarrassment at the outset. "Whether the United States," said he, "as a sovereign and independent empire, has a right to acquire territory is one thing; but whether they can admit that territory into the Union upon an equal footing with the other States is a question of a very different nature." He refused to discuss this latter issue; in his opinion it was not before the House.
This flinching was neither candid nor courageous; but it was within the fair limits of a lawyer’s if not of a statesman’s practice, and Nicholson at least saved his consistency. On the simpler question, whether "a sovereign nation," as he next said, "had a right to acquire new territory," he spoke with as much emphasis as Roger Griswold and Gouverneur Morris, and he took the same ground. The separate states had surrendered their sovereignty by adopting the Constitution; "the right to declare war was given to Congress; the right to make treaties, to the President and Senate. Conquest and purchase alone are the means by which nations acquire territory." Griswold was right, then, in the ground he had taken; but Nicholson, not satisfied with gaining his point through the treaty-making power, which was at least express, added: "The right must exist somewhere: it is essential to independent sovereignty." As it was prohibited to the States, the power was necessarily vested in the United States.
This general implication, that powers inherent in sovereignty which had not been expressly reserved to the States were vested in the national government, was not more radical centralization than Nicholson’s next point. The treaty gave to the port of New Orleans a decided preference over all other ports of the United States, although the Constitution said that no preference should be given to the ports of one State over those of another. To this objection Nicholson replied that Louisiana was not a State. "It is a territory purchased by the United States in their confederate capacity, and may be disposed of by them at pleasure. It is in the nature of a colony whose commerce may be regulated without any reference to the Constitution." The new territory, therefore, was in the nature of a European colony; the United States government might regulate its commerce without regard to the Constitution, give its population whatever advantages Congress might see fit, and use it to break down New England—or slavery.
With the fecund avowal that Louisiana must be governed by Congress at pleasure without reference to the Constitution, Nicholson sat down; and Cæsar Rodney took the floor,—an able and ingenious lawyer, who came to the House with the prestige of defeating the Federalist champion Bayard. If Randolph and Nicholson, like the mouse in the fable nibbling at the cords which bound the lion of Power, had left one strand still unsevered, the lion stood wholly free before Rodney ended. He began by appealing to the "general welfare" clause,—a device which the Republican party and all State-rights advocates once regarded as little short of treason. "I cannot perceive," said he, "why within the fair meaning of this general provision is not included the power of increasing our territory, if necessary for the general provision is not included the power of increasing our territory, if necessary for the general welfare or common defence." This argument in such a mouth might well have sent a chill to the marrow of every Republican of 1798; but this was not the whole. He next invoked the “necessary and proper” clause, even at that early time familiar to every strict constructionist as one of the most dangerous instruments of centralization. "Have we not also vested in us every power necessary for carrying such a treaty into effect, in the words of the Constitution which give Congress the authority to 'make all laws which shall be necessary and proper for carrying into execution the foregoing powers, and all other powers vested by this Constitution in the government of the United States or in any department or officer thereof'?"
One more point was affirmed by Rodney. Gaylord Griswold had maintained that the territory mentioned in the Constitution was the territory existing in 1789. Rodney denied it. Congress, he said, had express power to "make all needful rules and regulations" respecting any and all territory; it had no need to infer this power from other grants. As for the special privilege of trade accorded to New Orleans, it violated in no way the Constitution; it was indirectly a benefit to all the States, and a preference to none.
The northern democrats also supported these views; but the opinions of Northern democrats on constitutional questions carried little weight. Neither among them nor among Southern Republicans did any member question what Randolph, Nicholson, and Rodney had said. Macon sat silent in his chair, while John Randolph closed the debate. As though he could not satisfy himself with leaving a doubt as to the right of the Government to assume what powers it wanted, Randolph took this moment to meet Roger Griswold’s assertion that the United States government could not lawfully incorporate Great Britain or France into the Union. Randolph affirmed that, so far as the Constitution was concerned, this might be done. "We cannot because we cannot."
The reply was disingenuous, but decisive. The question was not whether the States in union could lawfully admit England or France into the Union, for no one denied that the States could do what they pleased. Griswold only affirmed that the people of the States had never delegated to John Randolph or Thomas Jefferson, or to a majority of the United States Senate, the right to make a political revolution by annexing a foreign State. Jefferson agreed that they had not; if they had, "then we have no Constitution" was his comment. Yet not a voice was raised in the Administration party against Randolph’s views. After one day’s debate, ninety Republicans supported Randolph with their votes, and twenty-five Federalists alone protested. Of these twenty-five, not less than seventeen were from New England.
A week afterward, Nov. 2, 1803, the Senate took up the subject. After several speeches had been made without touching deeply the constitutional difficulty, Senator Pickering of Massachusetts took the floor, and in a few words stated the extreme New England doctrine. Like Griswold and Gouverneur Morris, he affirmed the right of conquest or of purchase, and the right to govern the territory so acquired as a dependent province; but neither the President nor Congress could incorporate this territory in the Union, nor could the incorporation lawfully be effected even by an ordinary amendment to the Constitution. "I believe the assent of each individual State to be necessary for the admission of a foreign country as an associate in the Union, in like manner as in a commercial house the consent of each member would be necessary to admit a new partner into the company." With his usual skill in saying what was calculated to annoy,—a skill in which he had no superior,—he struck one truth which no other eyes would see. "I believe that this whole transaction has been purposely wrapped in obscurity by the French government. The boundary of Louisiana, for instance, on the side of Florida is in the treaty really unintelligible; and yet nothing was more easy to define."
Pickering was followed by Dayton of New Jersey, and he by the celebrated John Taylor of Caroline, the senator from Virginia, whose Resolutions of 1798, with echoes which were to ring louder and louder for sixty years to come, had declared "deep regret that a spirit has in sundry instances been manifested by the federal government to enlarge its powers by forced constructions of the constitutional charter which defines them; and that indications have appeared of a design to expound certain general phrases . . . so as to consolidate the States by degrees into one sovereignty." In purchasing Louisiana, the United States government had done an act identical with the despotic acts of consolidated European governments,—it had brought a foreign people without their consent and without consulting the States, and had pledged itself to incorporate this people in the Union. Colonel Taylor’s argument, so far as it went, supported the act; and although it evaded, or tried to evade, the most difficult points of objection, it went as far as the farthest in the path of forced construction. On the right to acquire territory, Taylor took the ground taken by Joseph Nicholson in the House,—he inferred it from the war and treaty powers: "If the means of acquiring and the right of holding are equivalent to the right of acquiring territory, then this right merged from the separate States to the United States, as indispensably annexed to the treaty-making power and the power of making war." This part of the Federalist scheme he adopted without a murmur; but when he came to the next inevitable step, he showed the want of courage often felt by honest men trying to be untrue to themselves. This territory which the Washington government could acquire by conquest or treaty,—what was its status? Could the Washington government "dispose of" it, as the government was expressly permitted to dispose of the territory it already held under the Constitution; or must Louisiana be governed extra-constitutionally by "inherent powers," as Griswold maintained; or ought Congress to ask for new and express authority from the States? Taylor took the first position. The treaty-making power, he said, was not defined; it was competent to acquire territory. This territory by the acquisition became a part of the Union, a portion of the territories of the United States, and might be "disposed of" by Congress without an amendment to the Constitution. Although Taylor differed with Jefferson on this point, no objection could be made to the justice of his opinion except that it left the true dispute to be settled by mere implication. The power of the government over the territory had no limits, so far as Colonel Taylor defined it; yet it either could or could not admit the new territory as a State. If it could, the government could alter the original compact by admitting a foreign country as a State; if it could not, either the treaty was void, or government must apply to the people of the States for new powers.
Uriah Tracy of Connecticut replied to Taylor in a speech which was probably the best on his side of the question. His opposition to the purchase was grounded on a party reason: "The relative strength which this admission gives to a Southern and Western interest is contradictory to the principles of our original Union." The President and Senate had no power to make States, and the treaty was void.
- "I have no doubt but we can obtain territory either by conquest or compact, and hold it, even all Louisiana and a thousand times more if you please, without violating the Constitution. We can hold territory; but to admit the inhabitants into the Union, to make citizens of them, and States, by treaty, we cannot constitutionally do; and no subsequent act of legislation, or even ordinary amendment to our Constitution, can legalize such measures. If done at all, they must be done by universal consent of all the States or partners to our political association; and this universal consent I am positive can never be obtained to such a pernicious measure as the admission of Louisiana,—of a world, and such a world, into our Union. This would be absorbing the Northern States, and rendering them as insignificant in the Union as they ought to be, if by their own consent the measure should be adopted."
Tracy’s speech was answered by Breckenridge of Kentucky, who had induced the Kentucky legislature, only five years before, to declare itself determined "tamely to submit to undelegated, and consequently unlimited, powers in no man or body of men on earth;" and to assert further that submission to the exercise of such powers "would be to surrender the form of government we have chosen, and to live under one deriving its powers from its own will, and not from our authority." When he came to deal with the same question in a new form, he glided with extreme delicacy over the thin ice of the Constitution. His answer to Tracy was an admission. He pointed out that the Federalist argument carried centralization further than it was carried by this treaty. "By his construction," said Breckenridge, "territories and citizens are considered and held as the property of the government of the United States, and may consequently be used as dangerous engines in the hands of the government against the States and people." This was true. The Federalists maintained that such territory could be held only as property, not as part of the Union; and the consequences of this doctrine, if granted, were immense. Breckenridge argued that the admission by treaty of a foreign State was less dangerous, and therefore more constitutional, than such ownership of foreign territory. The conclusion was not perfectly logical, and was the less so because he denied the power in neither case. "Could we not," he went on, quoting from Tracy’s speech, "incorporate in the Union some foreign nation containing ten millions of inhabitants,—Africa, for instance,—and thereby destroy our government? Certainly the thing would be possible if Congress would do it and the people consent to it. . . . The true construction must depend on the manifest import of the instrument and the good sense of the community." What then had become of the old Republican principle that acts of undelegated authority were no acts at all? Or had the States really delegated to the President and two thirds of the Senate the right to "destroy our government"? If Breckinridge had expressed those ideas in his Kentucky Resolutions, American history would have contained less dispute as to the meaning of States-rights and the powers of the central government; but Breckinridge himself would have then led the Federalist, not the Republican party.
Breckinridge’s speech was followed by one from Pickering’s colleague, the young senator from Massachusetts, son of John Adams, the Federalist President whom Jefferson had succeeded. The Federalist majority in Massachusetts was divided; one portion followed the lead of the Essex Junto, the other and larger part yielded unwillingly to the supremacy of Alexander Hamilton and George Cabot. When in the spring of 1803 both seats of Massachusetts in the United States Senate became by chance vacant at once, the Essex Junto wished to choose Timothy Pickering for the long term. The moderate Federalists set Pickering aside, elected John Quincy Adams, then thirty-six years old, for the long term, and allowed Pickering to enter the Senate only as junior senator to a man more than twenty years younger than himself, whose father had but three years before dismissed Pickering abruptly and without explanation from his Cabinet. Neither of the senators owned a temper or character likely to allay strife. From the moment of their appearance in the Senate they took opposite sides.
Pickering held with Tracy, Griswold, and all the extreme Federalists that the treaty was void, and that the admission of Louisiana as a State without the separate consent of each State in the Union was a rupture of the compact, which broke the tie and left each State free to act independently of the rest. His colleague was as decided in favor of the Louisiana purchase as Pickering and Tracy were opposed to it, but he too agreed that the treaty was outside of the Constitution, and he urged the Senate to take this view. He believed that even Connecticut would approve of admitting Louisiana if the Southern majority had the courage to try the experiment. "I firmly believe, if an amendment to the Constitution, amply sufficient for the accomplishment of everything for which we have contracted, shall be proposed, as I think it ought, it will be adopted by the legislature of every State in the Union." This was in effect the view which Jefferson had pressed upon his Cabinet and friends.
Then came Wilson Cary Nicholas. Five years before, in the Virginia legislature, Nicholas had spoken and voted for the Resolutions moved by his colleague, John Taylor of Caroline. He then said that if the principle were once established that Congress had a right to use powers not expressly delegated, "the tenure by which we hold our liberty would be entirely subverted: instead of rights independent of human control, we must be content to hold by the courtesy and forbearance of those whom we have heretofore considered as the servants of the people." Instead of using the same language in 1803, he accepted his colleague’s views as to the extent of the treaty-making power, and added reasoning of his own. If the spirit of New England Calvinism contained an element of self-deceit, Virginia metaphysics occasionally ran into slippery evasion, as the argument of Nicholas showed. He evaded a straightforward opinion on every point at issue. The treaty making power was undefined, he thought, but not unlimited; the general limitations of the Constitution applied to it, not the special limitations of power; and of course the treaty must be judged by its conformity with the general meaning of the compact. He then explained away the apparent difficulties in the case. "If the third article of the treaty," said he, "is an engagement to incorporate the territory of Louisiana into the Union of the United States and to make it a State, it cannot be considered as an unconstitutional exercise of the treaty-making power, for it will not be asserted by any rational man that the territory is incorporated as a State by the treaty itself." This incorporation was stipulated to be done "according to the principles of the Constitution," and the States might do it or not, at their discretion: if it could not be done constitutionally, it might be done by amendment.
Nothing could be more interesting than to see the discomfort with which the champions of States-rights tossed themselves from one horn to the other of the Federalist dilemma. The Federalists cared little on which horn their opponents might choose to impale themselves, for both were equally fatal. Either Louisiana must be admitted as a State, or must be held as territory. In the first case the old Union was at an end; in the second case the national government was an empire, with "inherent sovereignty" derived from the war and treaty-making powers,—in either case the Virginia theories were exploded. The Virginians felt the embarassment, and some of them, like Nicholas, tried to hide it in a murmur of words and phrases; but the Republicans of Kentucky and Tennessee were impatient of such restraint, and slight as it was, thrust it away. The debate was closed by Senator Cocke of Tennessee, who defied opposition. "I assert," said he, "that the treaty-making powers in this country are competent to the full and free exercise of their best judgment in making treaties without limitation of power."
On this issue the vote was taken wihtout further discussion, and by twenty-six to five the Senate passed the bill. Pickering of Massachusetts, Tracy and Hillhouse of Connecticut, and the two senators Wells and White from Delaware, were in opposition.
The result of these debates in the Senate and House decided only one point. Every speaker, without distinction of party, agreed that the United States government had the power to acquire new territory either by conquest or by treaty; the only difference of opinion regarded the disposition of this territory after it was acquired. Did Louisiana belong to the central government at Washington, or to the States? The Federalists maintained that the central government, representing the States in union, might, if it pleased, as a consequence of its inherent sovereignty, hold the rest of America in its possession and govern it as England governed Jamaica or as Spain was governing Louisiana, but without the consent of the States could not admit such new territory into the Union. The Republicans seemed rather inclined to think that new territory acquired by war or conquest would become at once a part of the general territory mentioned in the Constitution, and as such might be admitted by Congress as a State, or otherwise disposed of as the general welfare might require, but that in either case neither the people nor the States had anything to do with the matter. At bottom, both doctrines were equally fatal to the old status of the Union. In one case the States, formed or to be formed, east of the Mississippi had established a government which could hold the rest of the world in despotic control, and which bought a foreign people as it might buy cattle, to rule over them as their owner; in the other case, the government was equally powerful, and might besides admit the purchased or conquered territory into the Union as States. The Federalist theory was one of empire, the Republican was one of assimilation; but both agreed that the moment had come when the old Union must change its character. Whether the government at Washington could possess Louisiana as a colony or admit it as a State, was a difference of no great matter if the cession were to hold good; the essential point was that for the first time in the national history all parties agreed in admitting that the government could govern.
- Morris to H. W. Livingston, Nov. 25, 1803. Writings of Gouverneur Morris, iii. 185.