History of the United States During the Administrations of Thomas Jefferson/First/II:6

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Chapter 6: Louisiana Legislation[edit]

Hardly was it decided that the government had an inherent right to acquire territory and annex foreign States, when the next question forced itself on Congress for settlement,—What were the powers of Congress over the new territory?

Three paths were open. The safest was to adopt an amendment to the Constitution admitting Louisiana into the Union and extending over it the express powers of Congress as they had applied to the old territory of the United States. The second course was to assume that the new territory became, by the fact of acquisition, assimilated to the old, and might be "disposed of" in the same way. The third was to hold it apart as a peculiar estate, and govern it, subject to treaty stipulations, by an undefined power implied in the right to acquire,—on the principle that government certainly had the right to govern what it had the right to buy.

The first plan, which was in effect Jefferson's original idea, preserved the theory of the Constitution as far as was possible; but the Republicans feared the consequences with France and Spain of throwing a doubt on the legality of the treaty. Another reason for their activity lay in the peculiarities of their character as a party. The Northern democrats, never strict constructionists, knew and cared little for the dogmas of their Southern allies. The Southern Republicans, especially those of the Virginia school, were honest in their jealousy of the central government; but as a class they were impatient of control and unused to self-restraint: they liked to do their will, and counted so surely on their own strength and honesty of purpose that they could not feel the need of a curb upon their power. None of them moved. The only man in Congress who showed a sincere wish to save what could be preserved of the old constitutional theory was Senator Adams of Massachusetts, who called upon Madison October 28, before the debate, to ask whether the Executive intended, through any member of either House, to propose an amendment of the Constitution to carry the treaty into effect.[1] Madison talked to him openly, and expressed ideas which as far as they went were the same with those of Jefferson. For his own part, said Madison, had he been on the floor of Congress he should have seen no difficulty in acknowledging that the Constitution had not provided for such a case as this; that it must be estimated by the magnitude of the object; and that those who had agreed to it must rely upon the candor of their country for justification. Probably, when the immediate pressure of special legislation was past, the matter would be attended to; and if he should have any agency in concerting the measure, he would request its mover to consult Senator Adams. There for a month the matter rested, while Congress adopted its special legislation.

At length, November 25, Senator Adams, becoming impatient, called again on the Secretary of State, with the draft of an amendment which he meant to propose. Madison thought it too comprehensive, and suggested a simple declaration to meet the spcial case: "Louisiana is hereby admitted into this Union." On the same day Adams accordingly moved for a committee, but could not obtain a seconder. The Senate unanimously refused even the usual civility of a reference. No more was ever heard of amending the Constitution.

With almost unanimous consent Louisiana was taken into the Union by the treaty-making power, without an amendment. This point being fixed, Congress had also to determine whether the new territory should be governed by authority drawn from the power of acquisition, or whether it should be merged in the old territory which Congress had express right to "dispose of" and regulate at will.

By an act of sovereignty as despotic as the corresponding acts of France and Spain, Jefferson and his party had annexed to the Union a foreign people and a vast territory, which profoundly altered the relations of the States and the character of their nationality. By similar acts they governed both. Jefferson, in his special Message of October 23, requested Congress to make "such temporary provisions . . . as the case may require." A select committee, Randolph being chairman, immediately reported a Bill, emanating from the Executive.

"It was a startling Bill," was the criticism [2] of a man who shared in much legislation, "continuing the existing Spanish government; putting the President in the place of the King of Spain; putting all the territorial officers in the place of the King's officers, and placing the appointment of all these officers in the President alone without reference to the Senate. Nothing could be more incompatable with our Constitution than such a government,—a mere emanation of Spanish despotism, in which all powers, civil and military, legislative, executive, and judicial, were in the Intendant General, representing the King; and where the people, far from possessing political rights, were punishable arbitrarily for presuming to meddle with political subjects."

The Federalist immediately objected that the powers conferred on the President by this bill were unconstitutional. The Republicans replied, in effect, that the Constitution was made for States, not for territories. Rodney explained the whole intent of his party in advocating the bill: "It shows that Congress have a power in the territories which they cannot exercise in the States, and that the limitations of power found in the Constitution are applicable to States and not to territories."[3] John Randolph defended the assumption of power on the ground of necessity, and maintained that the government of the United States, with respect to this territory, possessed the powers of European sovereignty: "Gentlemen will see the necessity of the United States taking possession of this country in the capacity of sovereigns, in the same extent as that of the existing government of the province." The Bill passed Congress by a party vote, and was approved by Jefferson, October 31,[4] without delay.

The Act of October 31 was a temporary measure rather for taking possession of the territory than for governing it. Four weeks later, Senator Breckinridge moved for a committee to prepare a territorial form of government for Louisiana. Two senators of the States-rights school,—Jackson and Baldwin of Georgia,—besides Breckinridge and J. Q. Adams, were appointed on this committee; and they reported, December 30, a Bill that settled the principle on which the new territory should be governed.

Breckinridge's Bill divided the purchased country at the 33d parallel, the line which afterward divided the State of Arkansas from the State of Louisiana. The country north of that line was named the District of Louisiana, and, after some dispute, was subjected to the territorial government of the Indiana Territory, consisting of a governor, secretary, and judges without a legislature, all controlled by the Ordinance of 1787. This arrangement implied that Congress considered the new territory as assimilated to the old, and "disposed of" it by the same constitutional power.

The northern district contained few white inhabitants, and its administrative arrangements chiefly concerned Indians; but the southern district, which received the name "Territory of Orleans," included an old and established society, numbering fifty thousand persons. The territory of Ohio numbered only forty-five thousand persons by the census of 1800, while the States of Delaware and Rhode Island contained less than seventy thousand. The treaty guaranteed that "the inhabitants of the ceded territory shall be incorporated in the Union of the United States, and admitted as soon as possible, according to the principles of the Federal Constitution, to the enjoyment of all the rights, advantages, and immunities of citizens of the United States; and in the mean time they shall be maintained and protected in the free enjoyment of their liberty, property, and the religion which they profess."

Breckinridge's Bill, which was probably drawn by Madison in co-operation with the President, created a territorial government in which the people of Louisiana were to have no share. The governor and secretary were to be appointed by the President for three years; the legislative concil consisted of thirteen members to be appointed by the President without consulting the Senate, and was to be convened and prorogued by the governor as he might think proper. The judicial officers, also appointed by the President, were to hold office for four years, instead of the usual term of good behavior. The right to a jury trial was restricted to cases where the matter in controversy exceeded twenty dollars, and to capital cases in criminal prosecutions. The slave-trade was restricted by threefold prohibitions: 1. No slave could be imported from abroad; 2. No slave could be brought into the territory from the Union who had been imported from abroad since May 1, 1798; 3. No slave could be introduced into the territory "directly or indirectly," except by an American citizen "removing into said territory for actual settlement, and being, at the time of such removal, bona fide owner of such slave,"—the penalty being three hundred dollars fine and the slave's freedom.

This Bill seemed to set the new Territory apart, as a peculiar estate, to be governed by a power implied in the right to acquire it. The debate which followed its introduction into the Senate was not reported, but the Journal mentioned that Senator Adams, Jan. 10, 1804, moved three Resolultions, to the effect that no constititutional power existed to tax the people of Louisiana without their consent, and carried but three voices with him in support of the principle.[5] Other attempts were made to arrest the exercise of arbitrary power without better success, and the Bill passed the Senate, Feb. 18, 1804, after six weeks consideration, by a vote of twenty to five.

Few gaps in the parliamentary history of the Union left so serious a want as was caused by the failure to report the Senate debate on this Bill; but the report of the House debate partly supplied the loss, for the Bill became there a target for attack from every quarter. Michael Leib, one of the extreme Peensylvania democrats, began by objecting to the power given to the governor over the Louisiana legislature as "royal." His colleague, Andrew Gregg, objected altogether to the appointment of the council by the President. Varnum of Massacusetts denounced the whole system, and demanded an elective legislature. Matthew Lyon, who represented Kentucky, compared Jefferson to Bonaparte. "Do we not owe something on this score to principle?" he asked. Speaker Macon took the same ground. George W. Campbell of Tennessee was more precise. "It really establishes a complete despotism," he said; "it does not evince a single trait of liberty; it does not confer one single right to which they are entitled under the treaty; it does not extend to them the benefits of the Federal Constitution, or declare when, hereafter, they shall receive them." On the other hand Dr. Eustis, of Boston, took the ground that a despotism was necessary: "I am one of those who believe that the principles of civil liberty cannot suddenly be engrafted on a people accustomed to a regimen of a directly opposite hue." In contradiction to the language of the treaty and the principles of his party, he went on to say that the people of Louisiana had no rights: "I consider them as standing in nearly the same relation to us as if they were a conquered country." Other speakers supported him. The Louisianians, it was said, had shed tears when they saw the American flag hoisted in place of the French; they were not prepared for self-government. When the treaty was under discussion, the speakers assumed that the people of Louisiana were so eager for annexation as to make an appeal to them useless; when they were annexed, they were so degraded as not to be worth consulting.

The House refused to tolerate such violation of principle, and by the majority of seventy-four to twenty-three struck out the section which vested legislative powers in the President's nominees. John Randolph did not vote; but his freind Nicholson and the President's son-in-law, Thomas Mann Randolph, were in the minority. By fifty-eight to forty-two the House then adopted an amendment which vested legislative powers, after the first year, in an elective council; by forty-four to thirty-seven the restriction on jury trials was rejected; the Act was then limited to two years; and so altered it passed the House March 17, 1804, several Republicans recording their votes against it to the end.

When the Bill, thus amended, came back to the Senate, that body, March 20, summarily disagreed with all the changes made by the House except the limitation of time, which the Senate further reduced to one year. This change reconciled the House, not very cheerully, to recede, and March 23 the Bill, as it passed the Senate, became law by a vote of fifty-one to forty-five. With the passage of this Act and its twin statute for collecting duties in the ceded territory, the precedent was complete. Louisiana received a government in which its people, who had been solemnly promised all the rights of American citizens, were set apart, not as citizens, but as subjects lower in the political scale than the meanest tribes of Indians, whose right to self-government was never questioned.

By these measures the Executive and the Legislature recorded their decision in regard to the powers of government over national territory. The Judiciary was not then consulted; but twenty-five years afterward, in the year 1828, Chief-Justice Marshall was in his turn required to give an opinion, and he added the final authority of the Supreme Court to the precedent. With characteristic wisdom he claimed for the government both the constitutional and the extra-constitutional powers in question. The case concerned the rights of the inhabitants of Florida, who he said—

"Do not participate in political power; they do not share in the government till Florida shall become a State. In the mean time Florida continues to be a territory of the United States, governed by virtue of that clause in the Constitution which empowers Congress 'to make all needful rules and regulations respecting the territory or other property belonging to the United States.' Perhaps the power of governing a territory belonging to the United States which has not, by becoming a State, acquired the means of self-government, may result necessarily from the fact that it is no within the jurisdiction of any particular State, and is within the power and jurisdiction of the United States. The right to govern may be the inevitable consequence of the right to acquire territory. Whichever may be the source whence the power is derived, the possession of it is unquestioned."[6]

The effect of such a precedent on constitutional principles was certain to be great. A government competent to interpret its own powers so liberally in one instance, could hardly resist any strong temptation to do so in others. The doctrines of "strict construction" could not be considered as the doctrines of the government after they had been abandoned in this leading case by a government controlled by strict constructionists. The time came at last when the opponents of centralization were obliged to review their acts and to discover the source of their mistakes. In 1856 the Supreme Court was again required to pronounce an opinion, and found itself confronted by the legislation of 1803-1804 and the decision of Chief-Justice Marshall in 1828. Chief-Justice Taney and his associates, in the case of Dred Scott, then reviewed the acts of Jefferson and his friends in 1803-1804, and pronounced upon them the final judgment of the States-rights school.

Chief-Justice Taney affirmed the right of the government to buy Louisiana and to govern it, but not to govern it as a part of the old territory over which the Constitution gave Congress unlimited power. Louisiana was governed, according to Marshall's dictum, by a power which was "the inevitable consequence of the right to acquire territory,"—a power limited by the general purposes of the Constitution, and therefore not extending to a colonial system like that of Europe. Territory might thus be acquired; but it was acquired in order to become a State, and not to be held as a colony and governed by Congress with absolute authority; citizens who migrated to it "cannot be ruled as mere colonists dependent upon the will of the general government, and to be governed by any laws it may think proper to impose." The chief-justice dwelt on this point at much length; the federal government, he said, "cannot, when it enters a territory of the United States, put off its character and assure discretionary or despotic powers which the Constitution has denied it."

Even this emphatic opinion, which implied that all the Louisiana legislation was unconstitutional, did not satisfy Justice Campbell, a Georgian, who represented the ultimate convictions of the strict constructionists. Campbell reviewed the national history in search of evidence "that a consolidated power had been inaugurated, whose subject comprehended an empire, and which had no restriction but the discretion of Congress." He held that the Constitution had been plainly and repeatedly violated; "and in reference to the precedent of 1804, the wisest statesmen protested against it, and the President more than doubted its policy and the power of the government." The Court, he said, could not undertake to conquer their scruples as the President and Congress had done. "They acknowledge that our peculiar security is in the possession of a written Constitution, and they cannot make it blank paper by construction."

This sneer at President Jefferson was almost the last official expression of strict-constructionist principles. Of its propriety the Court itself was the best judge, but its historical interest could not be denied.

If Justice Campbell and Chief-Justice Taney were right, according to the tenets of their school the legislation of 1803-1804 was plainly unconstitutional. In that case, by stronger reasoning the treaty itself was unconstitutional and void from the beginning; for not only did Jefferson's doubts to which Campbell alluded refer to the treaty and not to the legislation, but the treaty was at least equally responsible with the laws for making, in 1803, a situation which required what Campbell denounced,—"the supreme and irresistible power which is now claimed for Congress over boundless territories, the use of which cannot fail to react upon the political system of the States to its subversion."

With the law the story need not concern itself, but the view of American history thus suggested was peculiarly interesting. If the chief-justice and his associate expressed correctly the opinions of the strict-constructionist school, the government had at some time been converted from a government of delegated powers into a sovereignty. Such was the belief of Campbell's political friends. Four years after the Dred Scott decision was declared, the State of South Carolina, in Convention, issued an "Address to the People of the Slave-holding States," justifying its act of secession from the Union.

"The one great evil," it declared, "from which all other evils have flowed, is the overthrow of the Constitution of the United States. The government of the United States is no longer the government of confederated republics, but of a consolidated democracy. It is no longer a free government, but a despotism."
If the strict constructionists held this opinion, they necessarily believed that at some moment in the past the government must have changed its character. The only event which had occurred in American history so large in its proportions, so permanent in its influence, and so cumulative in its effects as to represent such a revolution was the Louisiana purchase; and having done what the Federalists expected it to do,—if it had made a new constitution and a government of sovereign powers,—the strict constructionists were not only consenting parties to the change, they were its authors.

From every point of view, whether Justice Campbell and the secession convention of South Carolina were right or wrong in their historical judgment, the Louisiana purchase possessed an importance not to be ignored. Even in 1804 the political consequences of the act were already too striking to be overlooked. Within three years of his inauguration Jefferson bought a foreign colony without its consent and against its will, annexed it to the United States by an act which he said made blank paper of the Constitution; and then he who had found his predecessors too monarchical, and the Constitution too liberal in powers,—he who had nearly dissolved the bonds of society rather than allow his predecessor to order a dangerous alien out of the country in a time of threatened war,—made himself monarch of the new territory, and wielded over it, against its protests, the powers of its old kings. Such an experience was final; no century of slow and half-understood experience could be needed to prove that the hopes of humanity lay thenceforward, not in attempting to restrain the government from doing whatever the majority should think necessary, but in raising the people themselves till they should think nothing necessary but what was good.

Jefferson took a different view. He regarded, or wished to regard, the Louisiana treaty and legislation as exceptional and as forming no precedent. While he signed the laws for governing the territory, he warmly objected to the establishment of a branch bank of the United States at New Orleans. "This institution is one of the most deadly hostility existing against the principles and form of our Constitution," he wrote to Gallatin;[7] "ought we to give further growth to an institution so powerful, so hostile?" Gallatin was clear that the business of the Treasury required such aid, and Jefferson again acquiesced. Gallatin was also allowed and encouraged to enforce the restrictions on the importation of slaves into Louisiana.[8] "It seems that the whole Cabinet," wrote the French chargé to his government, "put the utmost weight on this prohibition. Mr. Jefferson is earnestly bent on maintaining it, and his Secretary of the Treasury takes the severest measures to insure its execution."

As though the annexation of Louisiana alone made not enough change in the old established blances of the Constitution, Congress took up another matter which touched the mainspring of the compact. A new Presidential election was at hand. The narrow escape of 1800 warned the party in power not again to risk society by following the complicated arrangements of 1788. In the convention which framed the Constitution no single difficulty was more serious than that of compromising the question of power between the large and small states. Delaware, New Jersey, Rhode Island, Maryland, and Connecticut were well aware that the large States would take the lion's share of power and patronage; they knew that except by accident no citizen of theirs could ever reach the Presidency; and as accident alone could give the small States a chance, accident was to them a thing of value. Whatever tended to make their votes decisive was an additional inducement with them to accept the Constitution. The Vice-presidency, as originally created, more than doubled their chance of getting the Presidency, and was invented chiefly for this purpose; but this was not all. As the number of electoral votes alone decided between President and Vice-president, a tie-vote was likely often to occur; and such a tie was decided by the House of Representatives, where another bribe was intentionally offered to the small States by giving the election to the State delegations voting as units, so that the vote of Delaware weighed as heavily as the vote of Pennsylvania.

The alarm caused by Burr's rivalry with Jefferson in February, 1801, satisfied the Republican party that such a door to intrigue ought not to be left open. Oct. 17, 1803, before the Louisiana treaty was taken up, an amendment to the Constitution was moved by friends of the Administration in the House. This, which took shape at length as the Twelfth Amendment, obliged the members of the electoral college to distinguish in their ballots the persons voted for as President and Vice-president.

Slight as this change might appear, it tended toward centralizing powers hitherto jealously guarded. It swept away one of the checks on which the framers had counted to resist majority rule by the great States. Lessening the influence of the small States, and exaggerating the office of President by lowering the dignity of Vice-president, it made the processes of election and government smoother and more efficient,—a gain to politicians, but the result most feared by the States-rights school. The change was such as Pennsylvania or New York might naturally want; but it ran counter to the theories of Virginia Republicans, whose jealousy of Executive influence had been extreme.

Roger Griswold said with prophetic emphasis:[9]

"The man voted for as Vice-president will be selected without any decisive view to his qualifications to administer the government. The office will generally be carried into the market to be exchanged for the votes of some large States for President; and the only criterion which will be regarded as a qualification for the office of Vice-president will be the temporary influence of the candidate over the electors of his State. . . . The momentary views of party may perhaps be promoted by such arrangements, but the permanent interests of the country are sacrificed."

Griswold held that true reform required abolition of the office; and in this opinion his old enemy John Randolph warmly agreed. In the Senate, had the question risen as a new one, perhaps a majority might have favored abolition, for the results of retaining the office were foreseen; but the discussion was hampered by the supposed popular will and by express votes of State legislatures, and Congress felt itself obliged to follow a prescribed course. The amendment was adopted by the usual party vote; and the Federalists thenceforward were able to charge Jefferson and his party with responsibility not only for stripping the small States of an advantage which had made part of their bargain, but also for putting in the office of President, in case of vacancies, men whom no State and no elector intended for the post.

  1. Documents relating to New England Federalism, pp. 156, 157; Diary of J. Q. Adams, i. 267.
  2. Examination of the Decision of the Supreme Court in the case of Dred Scott. By Thomas H. Benton, p. 55.
  3. Annals of Congress, 1803-1804, p. 514.
  4. Act of October 31, 1803. Annals of Congress, 1803-1804. App. p. 1245.
  5. Diary of J. Q. Adams (Jan. 10, 1804), i. 287.
  6. American Insurance Company and Others v. Canter (January Term, 1828), 1 Peters's Reports, 511-546.
  7. Jefferson to Gallatin, Dec. 13, 1803; Works, iv. 518.
  8. Pichon to Talleyrand, 16 Fructidor, An xii. (Sept. 3, 1804); Archives des Aff. Étr., MSS.
  9. Dec. 8, 1803; Annals of Congress, 1803-1804, p. 751.