STRICT CONSTRUCTION AN IMPOSSIBILITY
Sixty years of almost uninterrupted Republican-Democratic administration
were inaugurated with Thomas Jefferson in 1801. This period was
auspiciously begun by correcting the abuses wrought in the National
Government by the twelve years of Federalism. It was ended by the
faithful adherence of the party to the slavery system, to which it was
bound both by geographic strength and the principles of individualism.
The period was apparently long enough to allow the party to give the
Union such a bias toward decentralisation that it could never recover
its power and prestige. How the compelling laws of organised society,
the needs of the people in their conquest of the wilderness, and the
necessity of providing for the common defence and the general welfare
prevented such an unfortunate consummation makes up the middle period
of the story of the United States.
It was easy for the new administrators to show in theory how the Central
Government should be restricted to certain actions; it was impossible
to avoid entering upon certain new activities as progress demanded
from time to time. Take such a simple matter as the national capital.
Suddenly transferred to the woods on the banks of the Potomac, the
National Government found no such accommodations as the two cities in
which it had previously been lodged had afforded. One completed and
one incomplete wing of the Capitol building, an empty and bare
President's mansion, one tavern, and a few houses, with streets
indicated only by felled trees, formed the Athens of America, pronounced
by Robert Morris the very best city in the world for a "future"
residence. Members of Congress who traversed the three miles of mud
road to Georgetown, where the only comfortable lodgings were to be
obtained, would willingly have reduced the scale upon which the capital
was laid out. Very early it became the "City of Magnificent Distances."
However crude the city might be, the soil on which it rested belonged
exclusively to the United States. It was the only spot of any magnitude
which could be so claimed. It was due to the generosity of two
neighouring States, Virginia and Maryland. To the same charity was
owed the money which had partly built the two wings of the Capitol and
the President's mansion. Nevertheless, land and buildings do not make
a city. Money for the construction of streets, it was at first supposed,
would come from the sale of lots. "Path-ways" were built from this
resource under direction of members of the Cabinet before the Government
was transferred from Philadelphia. Money was advanced on such
expectation both by Congress and by the State of Maryland. Yet the
advent of Government and the inauguration of Jefferson found the work
incomplete. Members of Congress who stepped gingerly in their low shoes
over the paths made of chips of stone from the new buildings, or who
attempted the mile of cleared roadway between the two administration
buildings, received an object lesson in the necessity for improvements
which speedily overcame conscientious scruples.
[Illustration: THE CITY OF WASHINGTON. A drawing made about 1800 before
the site was graded. The Capitol is seen at the left of the masts.]
Any expenditure for such purposes could find warrant in the Constitution
only through the implied powers theory. "To exercise exclusive
legislation" over the District might mean to construct sidewalks and
to grade streets; but it was not so expressed. So urgent became the
necessity, that in 1803 an appropriation for buildings was made to
include the repair of the highway between the Capitol and the other
public buildings. The expenditure of this money, as Jefferson afterwards
boasted, was confined carefully to the avenue between the Capitol and
Mansion hills and to the squares about them. As time went on and the
city grew, specific appropriations had to be made for the construction
of streets and roadways within the District. These were wrung annually
from the reluctant party. To the disgust of people living in more
remote parts of the District, the first of these sums was spent entirely
in widening Pennsylvania Avenue, planting it with trees, in replacing
its wooden culverts with brick, in repairing the public squares about
the buildings, and in grading the slope in front of the War Office.
"It cannot be supposed," replied Jefferson to one protestant, "that
Congress intended to tax the people of the United States at large for
all avenues in Washington and roads in the District of Columbia."
Trivial as these incidents must appear in comparison with the present
attitude of the Government toward the District, they serve to illustrate
the law of compulsion. Numerous others might be introduced here. The
Jeffersonians inherited from the Federalists a small collection of
books and maps, which had been purchased for the use of the members
of Congress deprived of the library facilities they had enjoyed in the
cities of New York and Philadelphia. It was the beginning of the present
magnificent Library of Congress. Instead of casting aside the volumes
and returning the unexpended balance to the treasury, the strict
constructionists adopted the library and soon began to make direct
appropriations for it, crowning the action in 1815 by expending
twenty-three thousand dollars for the purchase of Jefferson's own
library to be added to the collection.
Thus did the seat of government and its needs drive another wedge of
loose construction into close-grained theory. To have exclusive control
over a district not exceeding ten miles square meant not only police
control, but it meant to make a home fit for the national seat of
government, and to provide for the necessities of its representatives.
Nevertheless conscientious scruples and niggardly appropriations had
sufficient weight for many years to make the home of the Union a
disgrace to the nation and a thing of contempt in comparison with the
capitals of other lands.
If the strict constructionists had inaugurated the National Government,
their task of confining it within a certain limit would not have been
so difficult. There is little doubt that the power to "regulate
commerce" was intended originally to cover the collection of a national
impost. But if United States custom-houses were to collect duties on
imported goods, they must erect lighthouses, build piers, and dredge
channels in order to get the goods into the harbours. The States,
having surrendered the benefits of an impost to the National Government,
were not likely to undertake or continue such works on an adequate
scale. No permission to engage in such enterprises was to be found in
the Constitution except as deduced from the power stated above. The
encouragement of foreign commerce had been almost a fetich with the
Federalists. They had freely granted appropriations for such purposes.
"I well remember," said Jefferson, on one occasion to Gallatin, under
whose care these agencies of commerce must come, "the opposition on
this very ground to the first act for building a light house. The
utility of the thing has sanctioned the infraction."
But it was not possible to restrict the demand to lighthouses. Presently
an appropriation was necessary for a dry dock to accommodate the little
gunboats which the thrifty Administration had substituted for the
Federal men-of-war. Jefferson got out of this in a way which would
have done credit to his great rival. "Although the power to regulate
commerce," said he, "does not give a power to build piers, wharves,
open ports, clear the beds of rivers, dig canals, build warehouses,
build manufacturing machines, set up manufactories, cultivate the
earth, to all of which the power would go if it went to the first, yet
a power to provide and maintain a navy is a power to provide receptacles
for it and places to cover and preserve it." Here Jefferson had made
out a list of proscribed actions, which the National Government dared
not enter upon. But soon Gallatin reported a vessel sunk in the Delaware
River, a menace to navigation, which neighbouring States showed no
inclination to remove. Reluctantly the President gave permission to
have the United States open the river. In quoting the powers of the
National Government over commerce to justify the action, he added,
"But we must take care not to go ahead of them and strain the meaning
of the terms still further to the clearing out of the channels of all
rivers, etc., of the United States. The removing of a sunken vessel
is not the repairing of a pier." Nevertheless, soon after, an
appropriation was made for erecting public piers in the Delaware River.
It is needless to continue citing the steps by which the Administration
assumed a fostering care of these public improvements. To sum up during
the last year of Jefferson's administration, appropriations aggregating
almost one hundred thousand dollars were made, without opposition, for
constructing lighthouses, for removing bars and shoals, and making
safe the ways of ocean commerce. The extension of this paternalistic
principle to internal commerce would come in time with the movement
of the people inland.
[Illustration: WESTERN ARKS AT NEW ORLEANS. From Hall's "Etchings in
America." In the foreground appear the flat boats which have brought
down the produce of the western people and beyond the shipping, which
is to carry the stuff to foreign markets. The sketch furnishes an
Illustration of the compulsion which caused the purchase of New
Orleans.]
It may be said truthfully that these various measures, so inconsistent
with the early avowed principles of the party, were inherited from the
Federalists. But responsibility for the supreme act, the addition of
foreign territory to the national domain, must be assumed solely by
the Administration. Perhaps no action, until the decision to prevent
certain States from leaving the Union, contributed so much to the
central authority as the purchase of the Louisiana country by the
Jeffersonians. If the decision had been negative, if conscientious
scruples had been allowed to prevail, one hesitates to predict what
would have been the fate of this "pent-up Utica." For forty years the
ownership of Louisiana had been shifting and uncertain. For twenty
years its possession had been a matter of scheming and intrigue by
both Great Britain and France. Permanently in the hand of any foreign
power, it would have completely blocked the path of progress. To possess
one-half the drainage basin of the valley would have led to constant
conflict with the owners of the other half. The insularity upon which
the United States has depended so largely, the freedom from annoying
neighbours, room for the westward expansion of the people, the
unification of the Mississippi valley--all would have been lost if the
original strict-construction theory had prevailed. Securing a domain
extending to the Mississippi in the Peace of 1783 had been simply
retaining what had been won largely by the colonists twenty years
before when the French were driven from the valley. In the Louisiana
question, the nation faced for the first time a national expansion.
To pronounce this the paramount action of the century in Union-making,
one need only think of the precedent for acquiring new territory thus
formed and which has been followed in no less than seven instances and
confirmed by a decision of the Supreme Court. It seems strange that
the framers of the Constitution did not foresee and provide for such
an emergency. Perhaps the omission was due to the intuitive feeling
that no nation in all history had hesitated to enlarge its domain when
advantage offered or necessity demanded. Necessity was here the moving
principle and it scattered to the winds party objection to using the
implied powers, and forced the friends of government to take refuge
in the preamble to the Constitution and in "all laws which are just
and necessary," a position from which they had tried in vain to drive
the Hamiltonians a few years before.
It was ordained by fate that the Jeffersonians should father a policy
of national expansion which covered every addition of territory to
that of Alaska. By nature they were opposed to giving such advantage
to the central power. After the acquisition had been made, Jefferson
was loud in his declaration that he would not "give one inch of the
waters of the Mississippi to any nation"; but neither by nature nor
party was he an expansionist. He would have been satisfied with the
acquisition of the east bank of the river, including New Orleans.
During the negotiations he confessed his doubts of success. He thought
trade would soon make Natchez a second New Orleans. Hamilton, on the
contrary, was an expansionist by principle and party. Three years
before the purchase of Louisiana he said of that country and the
Floridas, "I have been long in the habit of considering the acquisition
of those countries as essential to the permanency of the Union, which
I consider as very important to the welfare of the whole."
Holding such aggressive opinions, Hamilton and his party, had they
been in control during this long period, might have rashly entered
upon an offensive policy which would have precipitated frequent wars
and have endangered the Republic before its home strength had been
developed. Looking to the happiness of the mass rather than the
individual and devoid of scruples about the divine rights of man, the
Federalists would not have hesitated to hold as subjects the inhabitants
of acquired territory longer than the principle of self-government,
for which a republic stands, would have permitted. On the other hand,
by the time the "porcupine policy" of dealing with other nations on
territorial questions, as the Federalists contemptuously called the
early attitude of their opponents, had grown gradually into an
aggressive policy, the Republic had become sufficiently strong to
maintain whatever position might be taken.
It was not alone fear that the ambitious Napoleon might obtain a
foothold in neighbouring territory which moved the Jeffersonians to
this inconsistent step. Neither was the action due entirely to fear
lest Britain might obtain possession of it in the renewed war with
France. The law of compulsion showed in other particulars. The advance
of the American pioneers across the continent could not be checked.
They had compelled the Atlantic-coast majority into making the Pinckney
Treaty which opened the mouth of the Mississippi in 1795. Remembrance
of their threatened secession compelled Jefferson to try to quiet their
fears freshly aroused by the transfer of Louisiana to France, and the
closing of the Mississippi. Ex-Governor Monroe, of Virginia, was
chosen to assist Livingston, because his former executive position had
put him in touch with the Western people.
In several ways Louisiana played havoc with strict-construction
theories. So regardful of the rights of the individual had the
Jeffersonians been in the early days that many had hesitated about
creating Territories in the western vacant lands, lest the people
migrating to them should not enjoy equal rights with their fellows in
the States. When the inhabitants of the Mississippi Territory in 1799
petitioned for promotion to the second grade of territorial government,
Jefferson denounced the first grade, which had been given to them by
Congress a few years before, as "a despotic oligarchy without a rational
object." Within five years, he and his party were facing the problem
of establishing a status for some forty thousand white people, whom
the United States had acquired with the Louisiana country. The problem
was whether to violate the doctrine of the rights of man as well as
the treaty and hold these people perpetually as colonists, or, by
providing for their erection into States, further imperil the sectional
balance of power, further endanger the sovereignty of the individual
States, and contribute to the growing strength of the Central
Government.
In his Ordinance of 1784, Jefferson had provided for eventual and not
immediate statehood for the inhabitants of the Western territory.
Manifestly a State could not be made out of vacant land; it must await
a sufficient number of inhabitants. But this excuse for holding citizens
temporarily in a subordinate position was not valid in Louisiana, where
the southern point of the great triangle already contained a sufficient
number of inhabitants for statehood. Moreover, Napoleon had sufficient
thought for these pawns in the game of diplomacy to insert in the
treaty of cession a provision that statehood should be given them "as
soon as possible." The Jeffersonians were compelled to resort to loose
construction in interpreting this phrase. Louisiana contained a large
non-English-speaking population, unaccustomed to the privileges and
obligations of free government. Their deficiency was only partly
supplied by a sprinkling of Americans, who always precede and bring
about a demand for expansion of territory. "All men are created equal,"
was the doctrine of the Jeffersonian Declaration. But even the
doctrinaire would not insist that it gave to each individual immediate
and equal share in all government both national and local, whether or
not he was prepared by inheritance or environment. During nine years
the people of the Louisiana territory had to serve in preparation under
the rule of the rights-of-man party, before the first portion was
erected to statehood on an equality with the older States.
Being unable to admit the people of Louisiana to immediate statehood,
and unwilling to hold them purely as colonists, the Jeffersonians
divided the land into a territory and a district. This action prolonged
for years the possibility that the people reside in territories,
deprived of the privileges and protection of a State government. Suppose
the "monarchists" should again come into national control and pass new
Alien and Sedition laws? Where could these inhabitants of a territory
find a protector? Under such conditions, the prestige of State
citizenship was rapidly disappearing. The very fact that certain
inhabitants of the United States were living solely under the protection
of the national authority inspired a greater respect for that authority.
Likewise, when these people were admitted to statehood at the end of
their period of probation, it would be done by an act of Congress, and
not by the States.
Among the many constitutional dilemmas into which the party had been
brought by this compulsory action, was a provision of the treaty that
the port of New Orleans should enjoy certain favours for a number of
years. To reconcile this exception with the Constitution, which says
that "all duties, imposts, and excises shall be uniform throughout the
states," it was declared that the territory had been purchased by the
States in their confederated capacity and they could hold it like a
colony. Therefore, the Congress could regulate it as a territory under
the Constitution without reference to the provisions affecting the
States. Thus did fate compel a virtual acknowledgment from the sticklers
for individual rights, within four years after their accession to
national control, that the Constitution did not follow in all its
provisions the extension of sovereignty over new soil.
From a broad point of view, the placing of sixty years of territorial
expansion in the hands of the party opposed to the practice by birth
and nature is a strong evidence of the checks and balances which have
made the nation. Under strict construction, territorial expansion
became a potent factor in loosening the bonds in which the Government
might have been confined. Under loose construction, expansion might
have become a centrifugal force through foreign conquest and colonial
holding which would have destroyed the free system it was intended to
build up. The Jeffersonians were moved in later expansions by a desire
to extend an economic system and to make party capital. They never
sought national aggrandisement, as their opponents might have done had
they been in power. Proud of the territorial growth of the Union as
we now are, and seeing so clearly the wisdom of the final consummation,
we forget that the domain might have been increased too rapidly or too
extensively in more sympathetic hands.
In still another way was the fallacy of strict construction laid bare
by the Louisiana question. The remedy of an amendment to the
Constitution to bestow needed powers had been the one frequently
suggested. Here was an early opportunity to test this constitutional
preventive against central usurpation. But time was wanting. "From the
moment that France takes possession of the mouth of the Mississippi,"
said Jefferson, "she becomes our mortal enemy." Amendment-making is
necessarily a slow process. Months if not years are required. Jefferson
was obliged reluctantly to abandon his first thought of an amendment
to cover both the present case of Louisiana and the future affair of
the Floridas, if they were not included in Louisiana. He was forced
to suggest to members of Congress that the less said about any
constitutional difficulty the better, and that it would be desirable
for that body to do what was necessary in silence.
If the Jeffersonians had been driven from their first ground by this
territorial acquisition, the Federalists had fared no better. They had
first called into being the genii of the "implied powers," and now had
the mortification of seeing it serve their enemies. Having swung in
the change of 1801 from the "ins" to the "outs," they became the
opposition party and were compelled to resist many measures and
principles which they had formerly advocated. They had gradually lost
State after State until they were confined to New England. The former
great national party, the party of Hamilton, Jay, and Adams, the party
to which Washington had leaned, was shrinking into a sectional faction.
Where it had once wished to give the Union every means of
aggrandisement, it was now compelled to oppose almost doubling its
domain, lest the balance of power between the different parts be lost.
It feared the ascendency which Louisiana would give to the Southern
interests, never foreseeing from the shape of the addition that the
advantage would in time lie with the North. Professing devotion to the
Union, they would now deprive it of the advantages resulting from
prolonging indefinitely its holding of colonies. They must have seen
the result if the domain had never extended beyond the Mississippi.
The territory both north and south of the Ohio would speedily be made
into States according to existing arrangements. The great prestige
inuring to the Union from territorial control would thereby cease. But
with the addition of new provinces from time to time, the holding of
territories preliminary to statehood must be indefinitely prolonged.
The functions of the Union would be multiplied instead of diminished.
By the acquisition of Louisiana, Jefferson effectually settled the
twenty years of internal dispute over the navigation of the lower
Mississippi. From source to mouth, it flowed presumably through American
territory. Americans were to be found on both sides the great water
highway. Those west of the river had crossed upon invitation of Spain,
who hoped in this way to people her province without loss to her other
possessions. The colonists taken across the river by Colonel Morgan
and others had caused no little alarm to statesmen in the Confederation
days, lest the population of the United States be drawn off to people
a Spanish possession and so weaken the Republic. Among the thirty-five
thousand or more people to be found about the city of New Orleans and
along the lower Mississippi and the Red rivers was a small percentage
of Americans; but a much larger proportion was to be found in the six
thousand inhabitants of St. Louis and the small villages near by.
This leaven of Americans affected the whole. They had been accustomed
to the fostering hand of the National Government in the matter of
improving means of transportation and communication in the older States
from which they had migrated, and they did not hesitate to demand such
aid for their new localities. Thus the people in their westward
movement, carrying with them remembrances of the benefits of government
assistance enjoyed in their former homes, have extended the system of
national improvements across the continent.
There was a pressing demand for assistance in the Louisiana country.
The province had been long neglected because of the frequent changes
in ownership and the Latin method of colony holding. The task of
Americanising this foreign element was imperative. The extent of
territory to be brought under harmonious rule was extensive and varied.
It was impossible for the Administration, in providing for the welfare
and defence of the acquisition, not to be drawn into measure after
measure of that paternalistic nature for which the party had so roundly
criticised the Federalists. The sole management of Territories was
vested in the National Government. The individual States could have
no part in providing for the inhabitants of the Louisiana Purchase.
[Illustration: TAKING POSSESSION OF THE LOUISIANA PURCHASE. Occupying
presumably the same balcony in which Laussat, Wilkinson, and Claiborne
stood on the front of the Spanish _cabildo_ at New Orleans, in December,
1803, witnessing the replacing of the French flag by the American flag
in the public square below, there stand, in the illustration, the
Governor of Louisiana, with a descendant of Claiborne, the Archbishop
and the Mayor of New Orleans, enacting the scene in December, 1903.]
Federalist precedent had paved the way for Republican action. Since
the Revolutionary days, Congress had been accustomed to maintain troops
on the border for the protection of settlers. The establishment of
forts in distant parts made necessary the construction of roads between
the posts and their connection with the settled parts for the conveyance
of troops and supplies. The addition of the vast tract of Louisiana
demanded an immediate extension of military posts and military roads.
The Federalists had been accustomed, as previously described, to
construct new post-roads instead of confining the mails to roads already
built by State or private funds. Some of these post-roads were nothing
more than a "trace" cut through the woods, which permitted a man on
horseback to pass, carrying a post-bag. Even this could not be done
without some expenditure. Occasionally the expense was met by a donation
of public lands through which the trace passed. In other instances,
payment was made from the postal receipts and appropriations. The
constitutionality of such action had been attacked occasionally by the
Republicans before they came into power. But having assumed the national
control, they were compelled to continue the construction of military
and post-roads. Even the fear of a standing army and the desire to
economise could not warrant a neglect of the inhabitants scattered
through the new possession. Congress owed protection to them not only
as an implied power, but as an implied duty.
Thus it came about that Jefferson, who a few years before was taking
Madison to task for thinking that the power to establish post-roads
meant to construct new ones rather than to establish post-routes on
those already made, was engaged with his Cabinet in planning a vast
system of new highways to and through Louisiana. Among other
enterprises, they contemplated a great post-road to New Orleans through
Georgia, instead of the long water route heretofore used by way of
Nashville and Natchez. The new way, it was estimated, would shorten
the journey five hundred miles. Branches were planned to St. Louis and
to Detroit. The difficulties of frontier travel may be imagined from
the fact that the surveyor-general, who was despatched to examine the
feasibility of the Georgia route, was nearly three months in reaching
New Orleans from Washington.
Interested in scientific knowledge and exploration, and desirous of
keeping American ships off the seas by developing internal trade,
Jefferson had anticipated the purchase of Louisiana by proposing
confidentially to Congress the despatch of a few men on an investigating
trip up the Missouri River. Trade with the Indians needed to be
cultivated in this manner, but no State was sufficiently concerned to
undertake it. Jefferson found an easy way to warrant national action.
"The interests of commerce," said he, "place the principal object
within the constitutional powers and care of Congress." Not even
Randolph, who deplored every departure from old policies, could ever
regret the expenditure of the $2500 which sent the Lewis and Clark
expedition across the continent and laid the claims for national
addition nearly a half-century later. After this precedent, it was
easy to send Lieutenant Pike to ascertain the true source of the
Mississippi and to explore the vast plains on the south-west toward
the Spanish possessions. Many expeditions for scientific purposes and
for exploration have been sent by the National Government since that
day; but it must be remembered that the practice was inaugurated under
the strict constructionists, with no other warrant than "to regulate
commerce."
The Lewis and Clark expedition called fresh attention to the
possibilities of the great West, and justified the urgent demand of
the Western people for national aid. The danger of Western secession
had long since disappeared; but many plotters had shown a tendency to
use the frontiersmen as allies in the European wars. Genet, over ten
years before the Lewis and Clark expedition, contemplated the use of
an American force against British Canada. Miranda proposed to use the
same recruiting-ground for his movements on Spanish South America, and
even Hamilton consented to the scheme, if he could be commander of the
expedition. Now came Burr, planning an expedition of these hardy
trans-Alleghenians into New Orleans and thence into the disintegrating
Spanish possessions of the South-west. Napoleon's success seemed to
have turned the heads of all ambitious men of the day toward foreign
conquest and they proposed to use the Mississippi valley as a
rallying-ground. To invade the territory of a nation with whom the
United States was at peace was contrary to Federal law. Jefferson
turned his attention toward punishing Burr on even more serious grounds;
but Gallatin was keen enough to discover the cause for selecting the
Western people as tools. It was not a novel idea to suggest better
means of communication between the East and the West; but it was novel
to attribute Western disaffection to a lack of touch and sympathy
between the people of the two sections. Trade and intrigue with foreign
neighbours, so Gallatin thought, could be suppressed more easily by
kindness than by punishment. It was true that the National Government
had permanently opened the Mississippi River as an outlet for the West.
But the journey down was long and tedious, delays might be encountered
at New Orleans because of the limited number of ocean vessels on which
produce could be transshipped, and only a limited cargo if any was
possible on the return journey up-stream. The increase in population
and the consequent increase in the size of crops to be transported to
a market would speedily bring a demand for some means of taking the
products directly to the Atlantic seaboard and of bringing manufactured
goods in return.
Gallatin embodied some of these thoughts in his celebrated report on
the topography of the United States, which he submitted to Congress
in 1808. He first described the few attempts which had thus far been
made by States and private companies toward constructing canals and
turnpikes. Then he threw party theories to the wind and, with a
constructive statesmanship second only to that of Hamilton, he suggested
a vast system of national improvements on a worthy scale to be
undertaken and carried to completion by the central authority. It would
require not less than twenty million dollars. Since there would be an
annual surplus of five million dollars because of the unredeemable
form of the national debt, he would appropriate large sums to these
"national objects." Not only would the distant parts be bound together,
the mail better accommodated, and internal trade assisted, but, as
Gallatin pointed out, it would be possible to transport troops hurriedly
from place to place, adding to the national defence. Nature had
interposed mountains, falls, and sandbars in the pathways of interstate
communication. "The General Government alone," said he, "can remove
these obstacles."
Gallatin was compelled to acknowledge, however, that the execution of
his plan would be hampered because the National Government could not,
under the limits of the Constitution, undertake the construction of
a road or canal through a State without the express permission of that
State. In the Territories alone would it be possible. State consent
might be difficult to obtain, because so many States had inaugurated
similar enterprises, which would be obliged to compete with the national
roads and canals. Jefferson, in accord with his general theory,
suggested an amendment to the Constitution, removing this objection.
He overlooked the fact that national post-roads and military roads had
been already constructed within States. With such an amendment, he was
willing to use the national income accruing above the national expenses
for "the improvement of roads, canals, rivers, education, and other
great foundations of prosperity and union," as he said in his last
annual message.
Gallatin said in his report that the only work undertaken by the United
States at their sole expense, and to which the consent of the States
had been obtained, was the road from Cumberland to Brownsville. Further
appropriations for that object were constitutional. As to other
projects, he thought the National Government was empowered to do nothing
more at present than to assist those undertaken by giving them loans
or subscribing to their stock. Also the Federal engineers might be
employed in making surveys for proposed improvements. It seems strange,
in the light of modern Government initiative, to see statesmen blocked
in a desired undertaking by constitutional quibbling. Having embarked
in the work in the case of military and post-roads and in the Cumberland
Road, they hesitated to go on.
[Illustration: WRITTEN LAW OF THE NORTH-WEST TERRITORY. A law passed
at Vincennes, now in Indiana, against gambling. In the absence of
printing-presses it is said the judges were accustomed to nail up
copies of the laws on trees for the information of the public.]
This Cumberland National Turnpike is an excellent example of the
constant menace to individualism and the irresistible tendency toward
unionism resulting from the advance of population, the topography of
the country, and the cupidity of the people. The portage across the
watershed from the streams of the Atlantic plain to those of the Ohio
valley had been a matter of concern from colonial times. Artificial
waterways were impossible from lack of water-supply on the high levels.
The Union inherited this problem when the policy of creating national
Territories out of the back lands was inaugurated. Lack of funds
prevented any extensive attempt to solve the problem.
The State of Ohio was the first to be created out of the public domain.
The unsold public lands lying within its boundaries remained in the
possession of the United States, although sovereignty over them passed
to the State. By an agreement between the two powers, the State
refrained from taxing the lands for five years, in return for which
the Federal Government promised to spend five per cent, of the proceeds
of the land sales within the State in the construction of public roads.
A portion of this was to be devoted to building a highway over the
Allegheny Mountains to the State. Strict-construction scruples were
satisfied by securing the consent of the States through which the road
was to be built.
Consent having been given by the State Legislatures of Virginia,
Maryland, and Pennsylvania, work was begun in 1808 at the eastern
terminus of the portage, Fort Cumberland, Maryland, a name eventually
given to the entire road. Grants of money were made from the land
sales; but the proceeds accumulated so slowly that they were inadequate
for carrying on the work. The demand for the completion of the road
increased with growth of travel to the West. A way out of the difficulty
was found by making appropriations directly from the national treasury
"to be repaid out of the fund reserved for laying out and making roads
to the state of Ohio." When this condition would be dropped and
appropriations made openly for the road, the same as for the army, the
navy, and other specified obligations of the National Government, would
depend entirely upon the demands of the people. Every appropriation
simply whetted the appetite for more.
As Gallatin said, the Cumberland Road is unique. It is a solitary
example. It did not mean the adoption by the Jeffersonians of a party
policy on such liberal principles. But it made easier the adoption of
such a policy after the War of 1812 had demonstrated in a most
unpleasant manner the absolute necessity for such action on the part
of the General Government.
Jefferson had a most delightful manner of satisfying his conscience
and adjusting himself to the inevitable by likening national to
individual actions. In the case of the Louisiana purchase he had
compared the National Administration to a guardian who adds a desirable
bit of property to his ward's farm and then throws himself on the mercy
of the ward for approval. He pardoned the assumption of a constitutional
right to build the Cumberland Road by likening the Administration to
a farmer who wishes to sell some distant and inaccessible portion of
his land, and is compelled to spend part of the proceeds in constructing
roads to it in order to sell the remainder. Regardless of the soundness
or folly of such philosophy, the mischief was done. Insidiously the
internal-improvement precedent had been allowed to creep into the
strict-construction fold. How it grew until one veto after another was
required to bring the people back to their senses remains to be
described later.
During the latter portion of Jefferson's eight years of administration,
the party was saved from being driven into more Union-making actions,
because domestic matters were overshadowed by the hostile aspect of
foreign affairs. Measures looking to the improvement of internal
communication, development of interstate commerce, interior exploration
and discovery, and the spread of intelligence had to be postponed from
session to session to consider retaliation on the European foes to
American commerce. Such aggressive acts as the attack of the _Leopard_
on the _Chesapeake_ could brook no delay. But it was inevitable that
when the engrossing foreign questions should cease, the demand for
paternalistic measures would be renewed with a zeal doubled by delay
and by the new spirit of nationality. The important fact to be noted
at this time is that the movement of the people across the continent
went on steadily, whatever might be the aspect of affairs on the
Atlantic coast.
The foreign relations of the United States were rapidly coming to a
point which would terminate the predominance of European influence on
American political parties. The struggle of the French people for
liberty, which had appealed so powerfully to Jefferson and his
followers, was now lost in the ambitions of Napoleon. "I had hoped,"
said Jefferson at a later time, "that he would have seen the difference
between the example of a Cromwell and a Washington." Ten years before,
Jefferson would willingly have seen his countrymen fighting side by
side with the French patriots against monarchical England; but to be
allied with Napoleon meant to further the ends of Napoleon. With the
single exception of the Louisiana transaction, Jefferson's diplomatic
administration is a story of European intrigue and imposition upon an
impotent and helpless neutral. American commercial rights were lost
sight of in the world-struggle between Napoleon and his enemies. The
decrees of one belligerent were followed by checkmating orders in
council of the other, and _vice versa_, with no regard for neutral
rights, and no object save starving each other into submission.
It is true that the American traders sought every opportunity of evading
these orders and decrees and continuing the most profitable trade
America had ever known. For instance, Britain forbade all trading
directly between France, Holland, Spain, and their colonies in order
to cut off supplies. In order to evade this, an American captain would
take a cargo in these colonies, sail to some American port, enter his
cargo, and immediately clear with the same, without really unloading.
He was entitled to a drawback of the duties he had paid. Having now
broken his voyage, as he claimed, he sailed to a French or Spanish
port without danger of violating the British orders. The British
admiralty courts soon declared that this was an evasion; that there
had been in reality no "broken voyage." Then American traders began
the practice of really landing the goods in some American port, while
the vessel was overhauled and repaired, then continuing the voyage,
after reloading. The British courts conceded this to be a broken voyage.
In 1805, so ample were the supplies furnished France and Spain by this
method of evading the law, that the British court reversed its former
opinion. A large number of seizures followed. To cover the entire
continental coast, a paper blockade was declared by Britain about the
same time. The Administration could no longer continue its policy of
forbearance. Negotiation had failed. Retaliation was the only method
left. Jefferson, the father of his people, was a warrior neither by
nature nor practice. A foreign war meant to him the disarrangement of
domestic affairs, interference with domestic development, and the
accumulation of a debt which must fall in the last analysis upon the
common people, the least able to bear it. To a correspondent he
expressed his desire to avoid war until the national debt was
discharged, when the regular income would meet the expense of a war
and so prevent a new debt and increased taxes. His policy of
retrenchment, dictated by his love of the people, had reduced the army
and navy and left the land without adequate means of defence. He further
realised that war might bring undue national aggrandisement. The common
defence must be undertaken by the Central Government. In the haste and
the necessities of war, measures might be taken oppressive to the
people and destructive of their individual rights, which would never
be passed in the calm contemplations of peace. Reluctantly he was
compelled to advise Congress to enter upon a system of total embargo
on foreign trade, which might possibly avoid war and preserve the
pattern of neutrality which had been set by the first President.
Notwithstanding the pacific motives which impelled Jefferson to choose
that form of retaliation, the embargo was a part of the old colonial
idea of restriction. To avoid the capture of American goods and sailors,
keep them at home. Committing suicide is one way to avoid being killed
by your enemy. A more modern way is to arm yourself. If the commercial
interests, ruined by the embargo, as they claimed, had belonged to the
individualistic rural States, or if Jefferson had been from the trading
States, sectional differences might not have been so prominent during
the continuation of this policy, and the reactionary laws leading to
unification might not have been so apparent. The chief protestor against
marching a Federal army into the sovereign State of Pennsylvania a
score of years before was now stationing gunboats off the coast of the
sovereign States of New England, and on Lake Champlain in the sovereign
State of New York, for the purpose of coercing the people into an
obedience to national laws. The section which at that time had supported
so vigorously the repressive measures of Washington was now opposing
as forcibly such actions when taken toward themselves. The people of
Pennsylvania, a part of whom were then resisting the central authority,
now offered an armed force to the President "to cram the embargo down
the throats of the Yankees."
The paralysing effects of the embargo became apparent gradually during
the fifteen months of its existence and brought the commercial States
to the verge of rebellion. Nearly one-half the population of Salem,
it was claimed, had been compelled to ask public aid. Prices on imported
goods rose to a fabulous height, while surplus products, formerly
exported, fell to ruinous rates. Inland commerce was equally affected,
since there was no demand for carrying goods to or from the coast.
Writers compared the embargo remedy to a snake biting itself with
poisonous fang when surrounded by enemies; to a man cutting down his
tree to rid it of caterpillars; or to the fool who cut off his head
to rid himself of an aching tooth. The first anniversary of the embargo
was observed throughout New England with tolling bells, flags at
half-mast, and processions of unemployed seamen and artisans. The mayor
of New York forbade riotous gatherings. When a number of men disguised
as Indians retook a sloop caught by a man-of-war in forbidden trade,
their action was compared to that of the patriots who threw overboard
the East India tea.
It was claimed in the commercial States that the power "to regulate"
commerce, bestowed by the Constitution, did not cover an embargo or
prohibition of commerce. In advancing this argument, the New England
people quoted the opinion of the Virginia and Kentucky Resolutions
that "an unconstitutional law is not binding on the people." In reply
to this point made by the loose constructionists, the strict
constructionists could do nothing more than quote the implied power.
"To regulate" meant to keep the enemy from seizing. Time had wrought
a strange transfer of doctrines.
Rhymesters exercised their wit in ridiculing both Jefferson and the
embargo. Said one:
"Our ships all in motion once whitened the ocean,
They sailed and returned with a cargo;
Now doomed to decay, they have fallen a prey
To Jefferson, worms, and embargo."
Another paid his respects to the President in stanzas, one of which
will suffice:
"Like the Tyrant of fame, he embargoes his ports,
And to measures that ruin his subjects resorts;
By fools he is flattered--by wise men accursed,
For "No trade" is the maxim of Thomas the First."
These squibs illustrate the dominance which politics held over the
composition of the day. The discussion over the adoption of the
Constitution had long since given way to newspaper and pamphlet writing
on political issues. These writings, frequently scurrilous and abusive,
were caused by the rise of parties and, in turn, aided in forming
parties. None of the wretched stuff survived. _Peter Porcupine_, the
_Aurora_, and the much loftier _Columbiad_ are alike forgotten. Yet
it is indicative of the extent to which politics ruled the day to note
that in _Knickerbocker's History of New York_, Washington Irving turns
aside from the ostensible object of a humorous sketch of early New
York to ridicule President Jefferson. William the Testy, a dreamer,
a speculative philosopher, an impractical inventor, with a smattering
of all knowledge, was easily recognised as the President of the United
States. His suggestion of windmills as a means of defence was a
burlesque on Jefferson's little gunboats, and his government by
proclamation a parody on the embargo and its proclamations.
[Illustration: PRESIDENT JEFFERSON'S SECOND INAUGURAL ADDRESS.]
This isolated work of Irving, written ten years before the beginning
of his literary career, finds a counterpart in a long "poem" on the
embargo, advertised extensively in the newspapers of New York and New
England. It was composed by William Cullen Bryant, aged thirteen, no
doubt gladly forgotten in later years and to be found in few editions
of his works.
"Go, wretch! resign thy Presidential chair,
Disclose thy secret measures, foul or fair,"
was the gentle manner in which the young rhymester addressed the author
of the hated embargo. The following orthographic puzzle went the rounds
of the Federalist papers. By beginning at the central letter, the
phrase "Embargo will ruin us" may be read in countless directions.
S U N I U R L L I W I L L R U I N U S
U N I U R L L I W O W I L L R U I N U
N I U R L L I W O G O W I L L R U I N
I U R L L I W O G R G O W I L L R U I
U R L L I W O G R A R G O W I L L R U
R L L I W O G R A B A R G O W I L L R
L L I W O G R A B M B A R G O W I L L
L I W O G R A B M E M B A R G O W I L
L L I W O G R A B M B A R G O W I L L
R L L I W O G R A B A R G O W I L L R
U R L L I W O G R A R G O W I L L R U
I U R L L I W O G R G O W I L L R U I
N I U R L L I W O G O W I L L R U I N
U N I U R L L I W O W I L L R U I N U
S U N I U R L L I W I L L R U I N U S
The friends of the embargo attempted to rally the home spirit of the
people in order to support the measure. President Jefferson ordered
sufficient dark-blue cloth from Colonel Humphreys to make himself a
coat, saying: "Homespun is become the spirit of the times. My idea is
that we shall encourage home manufactures to the extent of our own
consumption of everything of which we raise the raw material." The
Legislatures of Virginia, North Carolina, Vermont, and Ohio fixed a
day, after which no imported clothing should be worn by members.
Pennsylvania used the proceeds of a dog tax to introduce a better breed
of sheep into the State. Clay, offering a resolution in the Kentucky
Legislature to use only homespun, was denounced by a fellow-member as
a demagogue, the affair ending, quite naturally, in a duel. A rally
of Americanism which would support the embargo was denied to Jefferson,
but Clay reaped the full benefit of these early efforts at a later
time.
The closing days of Jefferson's administration were not the most
pleasant he had to remember. Like the husband who, at his own request,
assumes direction of the household expenditures with high ideas of
reform, he found theory and practice far removed from each other. His
policy of retrenchment, it was true, had scaled down the army, navy,
and consular service nearly two million dollars a year, and the pension
list had been reduced to the lowest point in the history of the nation.
The public debt was lowered from eighty-three million dollars to
fifty-seven million, and could have been reduced still more if it had
been redeemable. Whatever pleasure the retiring President might have
derived from contemplating these facts was lost sight of in the
demoralising effects of the embargo. The exports had been reduced to
one-fifth their normal amount, the customs cut in half, and the entire
income of the nation had decreased from seventeen to seven million
dollars.
No American statesman before Greeley believed so confidently in the
goodness of the people and none so much desired their happiness. Nor
was ever altrurian more bitterly disappointed. The frustration of a
high hope and the selfishness of interests alike find exemplification
in the eight years of Jefferson. Assuming office with an aversion to
coercion in any form, assuring the people that the energies of the
nation should be used for the improvement of man and not wasted in his
destruction, he had been forced before leaving office to exclaim:
"Where is the patriotism of the people?" The individual had long since
been lost sight of in compelling the whole people to obey the law. It
was as impossible for Jefferson to carry the people to the thinly
populated plains of individualism as it had been found impossible to
transfer them to the elect city of centralisation. Defeated in his
attempts to avert war by commercial restriction, disheartened by his
failure to rally the patriotism of the people without recourse to war,
he confessed on leaving the Presidency that no prisoner, on being
released from his chains, felt such pleasure as he did in shaking off
the shackles of power.