IN the excitement of this rapid and half-understood foreign
drama, domestic affairs seemed tame to the American people, who
were busied only with the routine of daily life. They had set their
democratic house in order. So short and easy was the task, that the
work of a single year finished it. When the President was about to meet
Congress for the second time, he had no new measures to offer.[62]
“The path we have to pursue is so quiet that we have nothing scarcely
to propose to our legislature.” The session was too short for severe
labor. A quorum was not made until the middle of December, 1802;
the Seventh Congress expired March 4, 1803. Of these ten weeks, a
large part was consumed in discussions of Morales’s proclamation and
Bonaparte’s scheme of colonizing Louisiana.
On one plea the ruling party relied as an excuse for inactivity and
as a defence against attack. Their enemies had said and believed that
the democrats possessed neither virtue nor ability enough to carry on
the government; but after eighteen months of trial, as the year 1803
began, the most severe Federalist could not with truth assert that
the country had yet suffered in material welfare from the change.
Although the peace in Europe, after October, 1801, checked the shipping
interests of America, and although France and Spain, returning to the
strictness of their colonial system, drove the American flag from their
harbors in the Antilles, yet Gallatin at the close of the first year of
peace was able to tell Congress[63] that the customs revenue, which he
had estimated twelve months before at $9,500,000, had brought into the
Treasury $12,280,000, or much more than had ever before been realized
in a single year from all sources of revenue united. That the Secretary
of the Treasury should miscalculate by one third the product of his
own taxes was strange; but Gallatin liked to measure the future, not
by a probable mean, but by its lowest possible extreme, and his chief
aim was to check extravagance in appropriations for objects which he
thought bad. His caution increased the popular effect of his success.
Opposition became ridiculous when it persisted in grumbling at a system
which, beginning with a hazardous reduction of taxes, brought in a
single year an immense increase in revenue. The details of Gallatin’s
finance fretted the Federalists without helping them.
The Federalists were equally unlucky in finding other domestic
grievances. The removals from office did not shock the majority. The
Judiciary was not again molested. The overwhelming superiority of
the democrats was increased by the admission of Ohio, Nov. 29, 1802.
No man of sense could deny that the people were better satisfied with
their new Administration than they ever had been with the old. Loudly
as New England grumbled, the Federalists even there steadily declined
in relative strength; while elsewhere an organized body of opposition
to the national government hardly existed. From New York to Savannah,
no one complained of being forced to work for national objects; South
Carolina as well as Virginia was pleased with the power she helped to
sway.
Here and there might be found districts in which Federalism tried
to hold its own; but the Federalism of Delaware and Maryland was
not dangerous, and even in Delaware the Federalist champion Bayard
was beaten by Cæsar A. Rodney in his contest for the House, and was
driven to take refuge in the Senate. Pennsylvania, New York, Virginia,
and North Carolina were nearly unanimous; and beyond the mountains
democracy had its own way without the trouble of a discussion.
Federalism was already an old-fashioned thing; a subject of ridicule
to people who had no faith in forms; a half-way house between the
European past and the American future. The mass of Americans had become
democratic in thought as well as act; not even another political
revolution could undo what had been done. As a democrat, Jefferson’s
social success was sweeping and final; but he was more than a
democrat,--and in his other character, as a Virginia republican of the
State-rights school, he was not equally successful.
In the short session of 1802–1803 many signs proved that the revolution
of 1800 had spent its force, and that a reaction was at hand. Congress
showed no eagerness to adopt the President’s new economies, and
dismissed, with silence almost contemptuous, his scheme for building
at Washington a large dry-dock in which the navy should be stored for
safety and saving. The mint was continued by law for another five
years, and twenty thousand dollars were quietly appropriated for its
support. Instead of reducing the navy, Congress decided to build four
sixteen-gun brigs and fifteen gunboats, and appropriated ninety-six
thousand dollars for the brigs alone. The appropriation of two millions
as a first instalment toward paying for New Orleans and Florida was
another and a longer stride in the old Federalist path of confidence
in the Executive and liberality for national objects. The expenditure
for 1802, excluding interest on debt, was $3,737,000. Never afterward
in United States history did the annual expenditure fall below four
millions. The navy, in 1802, cost $915,000; never afterward did it cost
less than a million.
The reaction toward Federalist practices was more marked in the
attitude of the Executive than in that of Congress. If Jefferson’s
favorite phrase was true,--that the Federalist differed from the
Republican only in the shade more or less of power to be given
the Executive,--it was hard to see how any President could be more
Federalist than Jefferson himself. A resolution to commit the nation
without its knowledge to an indissoluble British alliance, was more
than Washington would have dared take; yet this step was taken by the
President, and was sustained by Madison, Gallatin, and Robert Smith
as fairly within the limits of the Constitution. In regard to another
stretch of the treaty-making power, they felt with reason the gravest
doubts. When the President and Cabinet decided early in January,
1803, to send Monroe with two million dollars to buy New Orleans and
Florida, a question was instantly raised as to the form in which such
a purchase could be constitutionally made. Attorney-General Lincoln
wished to frame the treaty or convention in such language as to make
France appear not as adding new territory to the United States, but as
extending already existing territory by an alteration of its boundary.
He urged this idea upon the President in a letter written the day of
Monroe’s nomination to the Senate.[64]
“If the opinion is correct,” said he, “that the general
government when formed was predicated on the then existing
_United_ States, and such as could grow out of them, and
out of them only; and that its authority is constitutionally
limited to the people composing the several political State
societies in that Union, and such as might be formed out of
them,--would not a direct independent purchase be extending the
executive power farther, and be more alarming, and improvable
by the opposition and the Eastern States, than the proposed
indirect mode?”
Jefferson sent this letter to Gallatin, who treated it without
favor.[65]
“If the acquisition of territory is not warranted by the
Constitution,” said he, “it is not more legal to acquire for
one State than for the United States.... What could, on his
construction, prevent the President and Senate, by treaty,
annexing Cuba to Massachusetts, or Bengal to Rhode Island, if
ever the acquirement of colonies should become a favorite object
with governments, and colonies should be acquired? But does any
constitutional objection really exist?... To me it would appear,
(1) that the United States, as a nation, have an inherent
right to acquire territory; (2) that whenever that acquisition
is by treaty, the same constituted authorities in whom the
treaty-making power is vested have a constitutional right to
sanction the acquisition.”
Gallatin not only advanced Federal doctrine, but used also what the
Virginians always denounced as Federalist play on words. “The United
States as a nation” had an inherent right to do whatever the States in
union cared to do; but the Republican party, with Jefferson, Madison,
and Gallatin at their head, had again and again maintained that the
United States _government_ had the inherent right to do no act
whatever, but was the creature of the States in union; and its acts, if
not resulting from an expressly granted power, were no acts at all,
but void, and not to be obeyed or regarded by the States. No foreigner,
not even Gallatin, could master the theory of Virginia and New England,
or distinguish between the nation of States in union which granted
certain powers, and the creature at Washington to which these powers
were granted, and which might be strengthened, weakened, or abolished
without necessarily affecting the nation. Whether the inability to
grasp this distinction was a result of clearer insight or of coarser
intelligence, the fact was the same; and on this point, in spite of his
speech on the Alien and Sedition Acts, Gallatin belonged to the school
of Hamilton, while both were of one mind with Dallas. The chief avowed
object of Jefferson’s election had been to overthrow the reign of this
school. No Virginian could be expected within two short years to adopt
the opinions of opponents who had been so often branded as “monocrats,”
because of acting on these opinions. Although the Attorney-General’s
advice was not followed, the negotiation for New Orleans was begun on
the understanding that the purchase, if made, would be an inchoate act
which would need express sanction from the States in the shape of an
amendment to the Constitution.
There the matter rested. At the moment of Monroe’s appointment, the
President, according to his letters, had little hope of quick success
in the purchase of territory. His plan was to “palliate and endure,”
unless France should force a war upon him; the constitutional question
could wait, and it was accordingly laid aside. Yet the chief ambition
of Southern statesmen in foreign affairs was to obtain the Floridas
and New Orleans; and in effecting this object they could hardly escape
establishing a serious precedent. Already Jefferson had ordered his
ministers at Paris to buy this territory, although he thought the
Constitution gave him no power to do so; he was willing to increase
the national debt for this purpose, even though a national debt was a
“mortal canker;” and he ordered his minister, in case Bonaparte should
close the Mississippi, to make a permanent alliance with England, or in
his own words to “marry ourselves to the British fleet and nation,” as
the price of New Orleans and Florida. Jefferson foresaw and accepted
the consequences of the necessity; he repeatedly referred to them and
deprecated them in his letters; but the territory was a vital object,
and success there would, as he pointed out, secure forever the triumph
of his party even in New England.
“I believe we may consider the mass of the States south and west
of Connecticut and Massachusetts as now a consolidated body of
Republicanism,”--he wrote to Governor McKean in the midst of the
Mississippi excitement.[66] “In Connecticut, Massachusetts, and New
Hampshire there is still a Federal ascendency; but it is near its last.
If we can settle happily the difficulties of the Mississippi, I think
we may promise ourselves smooth seas during our time.” What he rightly
feared more than any other political disaster was the risk of falling
back to the feelings of 1798 and 1799, “when a final dissolution of all
bonds, civil and social, appeared imminent.”[67] With zeal which never
flagged, Jefferson kept up his struggle with the New England oligarchy,
whose last move alarmed him. So sensitive was the President, that he
joined personally in the fray that distracted New England; and while
waiting for news from Monroe, he wrote a defence of his own use of
patronage, showing, under the assumed character of a Massachusetts man,
that a proportionate division of offices between the two parties would,
since the Federalists had so much declined in numbers, leave to them
even a smaller share of Federal offices than they still possessed. This
paper he sent to Attorney-General Lincoln,[68] to be published in the
Boston “Chronicle;” and there, although never recognized, it appeared.
Had the Federalists suspected the authorship, they would have fallen
without mercy upon its arguments and its modest compliment to “the
tried ability and patriotism of the present Executive;” but the
essay was no sooner published than it was forgotten. The “Chronicle”
of June 27, 1803, contained Jefferson’s argument founded on the
rapid disappearance of the Federalist party; the next issue of the
“Chronicle,” June 30, contained a single headline, which sounded the
death-knell of Federalism altogether: “Louisiana ceded to the United
States!” The great news had arrived; and the Federalist orators of July
4, 1803, set about their annual task of foreboding the ruin of society
amid the cheers and congratulations of the happiest society the world
then knew.
The President’s first thought was of the Constitution. Without delay he
drew up an amendment, which he sent at once to his Cabinet.[69] “The
province of Louisiana is incorporated with the United States and made
part thereof,” began this curious paper; “the rights of occupancy in
the soil and of self-government are confirmed to the Indian inhabitants
as they now exist.” Then, after creating a special Constitution for
the territory north of the 32d parallel, reserving it for the Indians
until a new amendment to the Constitution should give authority for
white ownership, the draft provided for erecting the portion south of
latitude 32° into a territorial government, and vesting the inhabitants
with the rights of other territorial citizens.
Gallatin took no notice of this paper, except to acknowledge receiving
it.[70] Robert Smith wrote at some length, July 9, dissuading Jefferson
from grafting so strange a shoot upon the Constitution.[71]
“Your great object is to prevent emigrations,” said he,
“excepting to a certain portion of the ceded territory.
This could be effectually accomplished by a constitutional
prohibition that Congress should not erect or establish in that
portion of the ceded territory situated north of latitude 32°
any new state or territorial government, and that they should
not grant to any people excepting Indians any right or title
whatever to any part of the said portion of the said territory.”
Of any jealousy between North and South which could be sharpened by
such a restriction of northern and extension of southern territory,
Jefferson was unaware. He proposed his amendment in good faith as a
means of holding the Union together by stopping its too rapid extension
into the wilderness.
Coldly as his ideas were received in the Cabinet, Jefferson did not
abandon them. Another month passed, and a call was issued for a special
meeting of Congress October 17 to provide the necessary legislation for
carrying the treaty into effect. As the summer wore away, Jefferson
imparted his opinions to persons outside the Cabinet. He wrote, August
12, to Breckenridge of Kentucky a long and genial letter. Congress, he
supposed,[72] after ratifying the treaty and paying for the country,
“must then appeal to _the nation_ for an additional article to the
Constitution approving and confirming an act which the nation had not
previously authorized. The Constitution has made no provision for our
holding foreign territory, still less for incorporating foreign nations
into our Union. The Executive, in seizing the fugitive occurrence which
so much advances the good of their country, have done an act beyond
the Constitution. The Legislature, in casting behind them metaphysical
subtleties and risking themselves like faithful servants, must ratify
and pay for it, and throw themselves on their country for doing for
them unauthorized what we know they would have done for themselves had
they been in a situation to do it.”
Breckenridge--whose Kentucky Resolutions, hardly five years before,
declared that unconstitutional assumptions of power were the surrender
of the form of government the people had chosen, and the replacing it
by a government which derived its powers from its own will--might be
annoyed at finding his principles abandoned by the man who had led
him to father them; and surely no leader who had sent to his follower
in one year the draft of the Kentucky Resolutions could have expected
to send in another the draft of the Louisiana treaty. “I suppose they
must then appeal to _the nation_” were the President’s words; and
he underscored this ominous phrase. “We shall not be disavowed by the
nation, and their act of indemnity will confirm and not weaken the
Constitution by more strongly marking out its lines.” The Constitution,
in dealing with the matter of amendments, made no reference to the
nation; the word itself was unknown to the Constitution, which
invariably spoke of the _Union_ wherever such an expression was
needed; and on the Virginia theory Congress had no right to appeal to
the nation at all, except as a nation of States, for an amendment. The
language used by Jefferson was the language of centralization, and
would have been rejected by him and his party in 1798 or in 1820.
On the day of writing to Breckenridge the President wrote in a like
sense to Paine; but in the course of a week despatches arrived from
Paris which alarmed him. Livingston had reason to fear a sudden change
of mind in the First Consul, and was willing to hasten the movements of
President and Congress. Jefferson took the alarm, and wrote instantly
to warn Breckenridge and Paine that no whisper of constitutional
difficulties must be heard:[73]--
“I wrote you on the 12th instant on the subject of Louisiana and
the constitutional provision which might be necessary for it.
A letter received yesterday shows that nothing must be said on
that subject which may give a pretext for retracting, but that
we should do _sub silentio_ what shall be found necessary.
Be so good, therefore, as to consider that part of my letter as
confidential.”
He gave the same warning to his Cabinet:[74] “I infer that the less
we say about constitutional difficulties the better; and that what is
necessary for surmounting them must be done _sub silentio_.”
He then drew up a new amendment, which he sent to the members of his
Cabinet.[75] The July draft was long, elaborate, and almost a new
Constitution in itself; the August draft was comparatively brief.
“Louisiana as ceded by France to the United States is made a part of
the United States. Its white inhabitants shall be citizens, and stand,
as to their rights and obligations, on the same footing with other
citizens of the United States in analogous situations.” The whole
country north of the Arkansas River was reserved for Indians until
another amendment should be made; and as an afterthought Florida was
to be admitted as a part of the United States “whenever it may be
rightfully obtained.”
These persistent attempts to preserve his own consistency and that of
his party were coldly received. Jefferson found himself alone. Wilson
Cary Nicholas, a prominent supporter of the Virginia Resolutions
in 1798 and a senator of the United States in 1803, had a long
conversation with the President, and in the early days of September
wrote him a letter which might have come from Theodore Sedgwick or
Roger Griswold in the days of Jay’s treaty, when Federalist notions of
prerogative ran highest.
“Upon an examination of the Constitution,” wrote Nicholas,[76]
“I find the power as broad as it could well be made (Sect.
3, Art. IV.), except that new States cannot be formed out of
the old ones without the consent of the _State_ to be
dismembered; and the exception is a proof to my mind that it was
not intended to confine the Congress in the admission of new
States to what was then the territory of the United States.
Nor do I see anything in the Constitution that limits the
treaty-making power, except the general limitations of the other
powers given to the government, and the evident objects for
which the government was instituted.”
Had Nicholas reasoned thus in 1798 he would have been a Federalist, as
he seemed conscious, for he went on to say: “I am aware that this is to
us delicate ground, and perhaps my opinions may clash with the opinions
given by our friends during the discussion of the British treaty.”
Nevertheless he argued that if this treaty was unconstitutional, all
other treaties were open to the same objection, and the United States
government in such a case could make no treaty at all. Finally, he
begged the President to avoid giving an opinion on the subject: “I
should think it very probable if the treaty should be declared by you
to exceed the constitutional authority of the treaty-making power, it
would be rejected by the Senate, and if that should not happen, that
great use would be made with the people of a wilful breach of the
Constitution.”
Such reasoning in the mouths of Virginia Republicans, who had asked and
gained office by pledging themselves to their people against the use
of implied powers, marked a new epoch. From them the most dangerous of
all arguments, the _reductio ad absurdum_, was ominous. What right
had they to ask whether any constitutional grant was less complete
than the people might have wished or intended? If the Constitution
were incomplete or absurd, not the government, but the people of the
States who had made it were the only proper authority to correct it.
Otherwise, as Nicholas had so often pointed out, their creature would
become their tyrant, as had been the law of politics from the beginning.
Jefferson was distressed to find himself thus deserted by his closest
friends on an issue which he felt to be vital. The principle of strict
construction was the breath of his political life. The Pope could as
safely trifle with the doctrine of apostolic succession as Jefferson
with the limits of Executive power. If he and his friends were to
interpret the treaty-making power as they liked, the time was sure to
come when their successors would put so broad an interpretation on
other powers of the government as to lead from step to step, until at
last Virginia might cower in blood and flames before the shadowy terror
called the war-power. With what face could Jefferson then appear before
the tribunal of history, and what position could he expect to receive?
All this he felt in his kindly way; and with this weight on his mind
he wrote his reply to Nicholas.[77] Beginning with the warning that
Bonaparte could not be trusted, and that Congress must act with as
little debate as possible, particularly as respected the constitutional
difficulty, he went on:--
“I am aware of the force of the observations you make on the
power given by the Constitution to Congress to admit new States
into the Union without restraining the subject to the territory
then constituting the United States. But when I consider that
the limits of the United States are precisely fixed by the
treaty of 1783, that the Constitution expressly declares itself
to be made for the United States, ... I do not believe it was
meant that [Congress] might receive England, Ireland, Holland,
etc., into it,--which would be the case on your construction....
I had rather ask an enlargement of power from the nation, where
it is found necessary, than to assume it by a construction which
would make our powers boundless. Our peculiar security is in the
possession of a written Constitution. Let us not make it a blank
paper by construction. I say the same as to the opinion of those
who consider the grant of the treaty-making power as boundless.
If it is, then we have no Constitution.”
From the Virginia standpoint nothing could be better said. Jefferson
in this letter made two points clear: the first was that the admission
of Louisiana into the Union without express authority from the
States made blank paper of the Constitution; the second was that if
the treaty-making power was equal to this act, it superseded the
Constitution. He entertained no doubts on either point, and time
sustained his view; for whether he was right or wrong in law, the
Louisiana treaty gave a fatal wound to “strict construction,” and the
Jeffersonian theories never again received general support. In thus
giving them up, Jefferson did not lead the way, but he allowed his
friends to drag him in the path they chose. The leadership he sought
was one of sympathy and love, not of command; and there was never a
time when he thought that resistance to the will of his party would
serve the great ends he had in view. The evils which he foresaw were
remote: in the hands of true Republicans the Constitution, even though
violated, was on the whole safe; the precedent, though alarming, was
exceptional. So it happened that after declaring in one sentence the
Constitution at an end if Nicholas had his way, Jefferson in the next
breath offered his acquiescence in advance:--
“I confess I think it important in the present case to set an
example against broad construction by appealing for new power to
the people. If, however, our friends shall think differently,
certainly I shall acquiesce with satisfaction, confiding
that the good sense of our country will correct the evil of
construction when it shall produce ill effects.”
With these words Jefferson closed his mouth on this subject forever.
Although his future silence led many of his friends to think that he
ended by altering his opinion, and by admitting that his purchase of
Louisiana was constitutional, no evidence showed the change; but rather
one is led to believe that when in later life he saw what he called the
evils of construction grow until he cried against them with violence
almost as shrill as in 1798, he felt most strongly the fatal error
which his friends had forced him to commit, and which he could neither
repudiate nor defend. He had declared that he would acquiesce with
satisfaction in making blank paper of the Constitution.
A few weeks later, Oct. 17, 1803, Congress met. The President’s Message
had little to say of domestic affairs. The Kaskaskia Indians had sold
their territory to the United States, the revenue had again exceeded
the estimate, more than three millions of debt had been paid within
the year. Much was said about war in Europe and the rights and duties
of neutrals, about gunboats which were no longer needed, and about
the unsettled boundary in Maine and at the Lake of the Woods, but not
a word about the constitutional difficulties raised by the Louisiana
treaty. “With the wisdom of Congress it will rest,” said Jefferson,
“to take those ulterior measures which may be necessary for the
immediate occupation and temporary government of the country, for its
incorporation into our Union, for rendering the change of government a
blessing to our newly adopted brethren, for securing to them the rights
of conscience and of property, for confirming to the Indian inhabitants
their occupancy and self-government.” These were the points of his
proposed amendment; but he gave no sign of his opinion that Congress
was incompetent to deal with them, and that the Senate was equally
incompetent to make the treaty valid.
There were good reasons for silence. Not only were Livingston’s letters
alarming, but the Marquis of Casa Yrujo, the friend and benefactor of
the Administration, sent to Madison one protest after another against
the sale of Louisiana.[78] He quoted St.-Cyr’s letter of July, 1802,
which bound France not to alienate the province, and he declared that
France had never carried out the conditions of contract in regard to
Tuscany, and therefore could not rightfully treat Louisiana as her
own. A probable war with Spain stared Jefferson in the face, even if
Bonaparte should raise no new difficulties. The responsibility for a
mistake was great, and no one could blame Jefferson if he threw his
burden on Congress.