CHAPTER IV.

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.

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