IF President Jefferson and Secretary Madison, who wrote the
Resolutions of 1798, acquiesced, in 1803, in a course of conduct which
as Jefferson believed made blank paper of the Constitution, and which,
whether it did so or not, certainly made waste paper of the Virginia
and Kentucky Resolutions, no one could expect that their followers
would be more consistent or more rigid than themselves. Fortunately,
all the more prominent Republicans of 1798 had been placed in office by
the people as a result of popular approval, and were ready to explain
their own views. In the Senate sat John Breckenridge of Kentucky,
supposed to be the author of the Kentucky Resolutions, and known as
their champion in the Kentucky legislature. From Virginia came John
Taylor of Caroline, the reputed father of the Virginia Resolutions,
and the soundest of strict constructionists. Twenty years later, his
“Construction Construed” and “New Views of the Constitution” became
the text-books of the State-rights school. His colleague was Wilson
Cary Nicholas, who had also taken a prominent part in supporting the
Virginia Resolutions, and whose devotion to the principles of strict
construction was beyond doubt. One of the South Carolina senators
was Pierce Butler; one of those from North Carolina was David Stone;
Georgia was represented by Abraham Baldwin and James Jackson,--stanch
State-rights Republicans all. In the House a small coterie of
State-rights Republicans controlled legislation. Speaker Macon was at
their head; John Randolph, chairman of the Ways and Means Committee,
was their mouthpiece. Joseph H. Nicholson of Maryland, and Cæsar A.
Rodney of Delaware, supported Randolph on the committee; while two
of President Jefferson’s sons-in-law, Thomas Mann Randolph and John
W. Eppes, sat in the Virginia delegation. Both in Senate and House
the Southern Republicans of the Virginia school held supremacy; their
power was so absolute as to admit no contest; they were at the flood
of that tide which had set in three years before. In the Senate they
controlled twenty-five votes against nine; in the House, one hundred
and two against thirty-nine. Virginia ruled the United States, and the
Republicans of 1798 ruled Virginia. The ideal moment of Republican
principles had arrived.
This moment was big with the fate of theories. Other debates of more
practical importance may have frequently occurred,--for in truth
whatever the decision of Congress might have been, it would in no case
have affected the result that Louisiana was to enter the Union: and
this inevitable result overshadowed all theory,--but no debate ever
took place in the Capitol which better deserved recollection.
Of extraordinary ability Congress contained but little, and owing to
the meagre character of the reports, appeared to contain even less
than it actually possessed; but if no one rose to excellence either of
logic or rhetoric, the speakers still dealt with the whole subject,
and rounded the precedent with all the argument and illustration that
a future nation could need. Both actions and words spoke with decision
and distinctness till that time unknown in American politics.
The debate began first in the House, where Gaylord Griswold of New
York, Oct. 24, 1803, moved for such papers as the Government might
possess tending to show the value of the title to Louisiana as against
Spain. Under the lead of John Randolph the House refused the call.
That this decision clashed with the traditions of the Republican party
was proved by the vote. With a majority of three to one, Randolph
succeeded in defeating Griswold only by fifty-nine to fifty-seven;
while Nicholson, Rodney, Varnum of Massachusetts, and many other stanch
Republicans voted with the Federalists.
The next day the House took up the motion for carrying the treaty
into effect. Griswold began again, and without knowing it repeated
Jefferson’s reasoning. The framers of the Constitution, he said,
“carried their ideas to the time when there might be an extended
population; but they did not carry them forward to the time when
an addition might be made to the Union of a territory equal to the
whole United States, which additional territory might overbalance the
existing territory, and thereby the rights of the present citizens of
the United States be swallowed up and lost.” The power to admit new
States referred only to the territory existing when the Constitution
was framed; but this right, whatever it might be, was vested in
Congress, not in the Executive. In promising to admit Louisiana as a
State into the Union, the treaty assumed for the President power which
in any case could not have been his. Finally, the treaty gave to French
and Spanish ships special privileges for twelve years in the port of
New Orleans; while the Constitution forbade any preference to be given,
by any regulation of commerce or revenue, to the ports of one State
over those of another.
John Randolph next rose. Just thirty years old, with a sarcasm of tone
and manner that overbore remonstrance, and with an authority in the
House that no one contested, Randolph spoke the voice of Virginia with
autocratic distinctness. His past history was chiefly marked by the
ardor with which, from 1798 to 1800, he had supported the principles of
his party and encouraged resistance to the national government. He had
gone beyond Jefferson and Madison in willingness to back their theories
by force, and to fix by a display of Virginia power the limit beyond
which neither Executive, Congress, nor Judiciary should pass. Even then
he probably cared little for what he called the “parchment barriers”
of the Constitution: in his mind force was the real balance,--force
of State against force of Union; and any measure which threatened to
increase the power of the national government beyond that of the State,
was sure of his enmity. A feather might turn the balance, so nice
was the adjustment; and Randolph again and again cried with violence
against feathers.
In the Louisiana debate, Randolph spoke in a different tone. The
Constitution, he said, could not restrict the country to particular
limits, because at the time of its adoption the boundary was unsettled
on the northeastern, northwestern, and southern frontiers. The power
to settle disputes as to limits was indispensable; it existed in the
Constitution, had been repeatedly exercised, and involved the power of
extending boundaries.
This argument was startling in the mouth of one who had helped to arm
the State of Virginia against a moderate exercise of implied powers.
Randolph asserted that the right to annex Louisiana, Texas, Mexico,
South America, if need be, was involved in the right to run a doubtful
boundary line between the Georgia territory and Florida. If this power
existed in the government, it necessarily devolved on the Executive
as the organ for dealing with foreign States. Thus Griswold’s first
objection was answered.
Griswold objected in the second place that the treaty made New Orleans
a favored port. “I regard this stipulation,” replied Randolph, “as
a part of the price of the territory. It was a condition which the
party ceding had a right to require, and to which we had a right to
assent. The right to acquire involves the right to give the equivalent
demanded.” Randolph did not further illustrate this sweeping principle
of implied power.
After the subject had been treated by speakers of less weight, Roger
Griswold of Connecticut took the floor. So long as his party had been
in office, the vigor of the Constitution had found no warmer friend
than he; but believing New England to have fallen at the mercy of
Virginia, he was earnest to save her from the complete extinction which
he thought near at hand. Griswold could not deny that the Constitution
gave the power to acquire territory: his Federalist principles were
too fresh to dispute such an inherent right; and Gouverneur Morris,
as extreme a Federalist as himself, whose words had been used in the
Constitution, averred that he knew in 1788 as well as he knew in
1803, that all North America must at length be annexed, and that it
would have been Utopian to restrain the movement.[79] This was old
Federalist doctrine, resting on “inherent rights,” on nationality and
broad construction,--the Federalism of President Washington, which
the Republican party from the beginning denounced as monarchical.
Griswold would not turn his back on it; he still took a liberal
view of the power, and even stretched it beyond reasonable shape to
accord with Morris’s idea. “A new territory and new subjects,” said
he, “may undoubtedly be obtained by conquest and by purchase; but
neither the conquest nor the purchase can incorporate them into the
Union. They must remain in the condition of colonies, and be governed
accordingly.” This claim gave the central government despotic power
over its new purchase; but it declared that a treaty which pledged the
nation to admit the people of Louisiana into the Union must be invalid,
because it assumed that “the President and Senate may admit at will
any foreign nation into this copartnership without the consent of the
States,”--a power directly repugnant to the principles of the compact.
In substance, Griswold maintained that either under the war power or
under the treaty-making power the government could acquire territory,
and as a matter of course could hold and govern that territory as it
pleased,--despotically if necessary, or for selfish objects; but that
the President and Senate could not admit a foreign people into the
Union, as a State. Yet to this, the treaty bound them.
To meet this attack the Republicans put forward their two best
men,--Joseph H. Nicholson of Maryland, and Cæsar A. Rodney of Delaware.
The task was difficult, and Nicholson showed his embarrassment at the
outset. “Whether the United States,” said he, “as a sovereign and
independent empire, has a right to acquire territory is one thing;
but whether they can admit that territory into the Union upon an
equal footing with the other States is a question of a very different
nature.” He refused to discuss this latter issue; in his opinion it was
not before the House.
This flinching was neither candid nor courageous; but it was within
the fair limits of a lawyer’s if not of a statesman’s practice, and
Nicholson at least saved his consistency. On the simpler question,
whether “a sovereign nation,” as he next said, “had a right to acquire
new territory,” he spoke with as much emphasis as Roger Griswold and
Gouverneur Morris, and he took the same ground. The separate States had
surrendered their sovereignty by adopting the Constitution; “the right
to declare war was given to Congress; the right to make treaties, to
the President and Senate. Conquest and purchase alone are the means
by which nations acquire territory.” Griswold was right, then, in the
ground he had taken; but Nicholson, not satisfied with gaining his
point through the treaty-making power, which was at least express,
added: “The right must exist somewhere: it is essential to independent
sovereignty.” As it was prohibited to the States, the power was
necessarily vested in the United States.
This general implication, that powers inherent in sovereignty which had
not been expressly reserved to the States were vested in the national
government, was not more radical centralization than Nicholson’s next
point. The treaty gave to the port of New Orleans a decided preference
over all other ports of the United States, although the Constitution
said that no preference should be given to the ports of one State over
those of another. To this objection Nicholson replied that Louisiana
was not a State. “It is a territory purchased by the United States in
their confederate capacity, and may be disposed of by them at pleasure.
It is in the nature of a colony whose commerce may be regulated without
any reference to the Constitution.” The new territory, therefore, was
in the nature of a European colony; the United States government might
regulate its commerce without regard to the Constitution, give its
population whatever advantages Congress might see fit, and use it to
break down New England--or slavery.
With the fecund avowal that Louisiana must be governed by Congress at
pleasure without reference to the Constitution, Nicholson sat down; and
Cæsar Rodney took the floor,--an able and ingenious lawyer, who came
to the House with the prestige of defeating the Federalist champion
Bayard. If Randolph and Nicholson, like the mouse in the fable nibbling
at the cords which bound the lion of Power, had left one strand still
unsevered, the lion stood wholly free before Rodney ended. He began
by appealing to the “general welfare” clause,--a device which the
Republican party and all State-rights advocates once regarded as
little short of treason. “I cannot perceive,” said he, “why within
the fair meaning of this general provision is not included the power
of increasing our territory, if necessary for the general welfare or
common defence.” This argument in such a mouth might well have sent
a chill to the marrow of every Republican of 1798; but this was not
the whole. He next invoked the “necessary and proper” clause, even at
that early time familiar to every strict constructionist as one of the
most dangerous instruments of centralization. “Have we not also vested
in us every power necessary for carrying such a treaty into effect,
in the words of the Constitution which give Congress the authority
to ‘make all laws which shall be necessary and proper for carrying
into execution the foregoing powers, and all other powers vested by
this Constitution in the government of the United States or in any
department or officer thereof’?”
One more point was affirmed by Rodney. Gaylord Griswold had maintained
that the territory mentioned in the Constitution was the territory
existing in 1789. Rodney denied it. Congress, he said, had express
power to “make all needful rules and regulations” respecting any and
all territory; it had no need to infer this power from other grants. As
for the special privilege of trade accorded to New Orleans, it violated
in no way the Constitution; it was indirectly a benefit to all the
States, and a preference to none.
The Northern democrats also supported these views; but the opinions of
Northern democrats on constitutional questions carried little weight.
Neither among them nor among Southern Republicans did any member
question what Randolph, Nicholson, and Rodney had said. Macon sat
silent in his chair, while John Randolph closed the debate. As though
he could not satisfy himself with leaving a doubt as to the right of
Government to assume what powers it wanted, Randolph took this moment
to meet Roger Griswold’s assertion that the United States government
could not lawfully incorporate Great Britain or France into the Union.
Randolph affirmed that, so far as the Constitution was concerned, this
might be done. “We cannot because we cannot.”
The reply was disingenuous, but decisive. The question was not whether
the States in union could lawfully admit England or France into the
Union, for no one denied that the States could do what they pleased.
Griswold only affirmed that the people of the States had never
delegated to John Randolph or Thomas Jefferson, or to a majority of
the United States Senate, the right to make a political revolution by
annexing a foreign State. Jefferson agreed with Griswold that they had
not; if they had, “then we have no Constitution” was his comment. Yet
not a voice was raised in the Administration party against Randolph’s
views. After one day’s debate, ninety Republicans supported Randolph
with their votes, and twenty-five Federalists alone protested. Of these
twenty-five, not less than seventeen were from New England.
A week afterward, Nov. 2, 1803, the Senate took up the subject.
After several speeches had been made without touching deeply the
constitutional difficulty, Senator Pickering of Massachusetts took the
floor, and in a few words stated the extreme New England doctrine.
Like Griswold and Gouverneur Morris, he affirmed the right of conquest
or of purchase, and the right to govern the territory so acquired as
a dependent province; but neither the President nor Congress could
incorporate this territory in the Union, nor could the incorporation
lawfully be effected even by an ordinary amendment to the Constitution.
“I believe the assent of each individual State to be necessary for
the admission of a foreign country as an associate in the Union,
in like manner as in a commercial house the consent of each member
would be necessary to admit a new partner into the company.” With
his usual skill in saying what was calculated to annoy,--a skill in
which he had no superior,--he struck one truth which no other eyes
would see. “I believe that this whole transaction has been purposely
wrapped in obscurity by the French government. The boundary of
Louisiana, for instance, on the side of Florida is in the treaty really
unintelligible; and yet nothing was more easy to define.”
Pickering was followed by Dayton of New Jersey, and he by the
celebrated John Taylor of Caroline, the senator from Virginia, whose
Resolutions of 1798, with echoes which were to ring louder and louder
for sixty years to come, had declared “deep regret that a spirit
has in sundry instances been manifested by the federal government
to enlarge its powers by forced constructions of the constitutional
charter which defines them; and that indications have appeared of a
design to expound certain general phrases ... so as to consolidate the
States by degrees into one sovereignty.” In purchasing Louisiana, the
United States government had done an act identical with the despotic
acts of consolidated European governments,--it had bought a foreign
people without their consent and without consulting the States, and
had pledged itself to incorporate this people in the Union. Colonel
Taylor’s argument, so far as it went, supported the act; and although
it evaded, or tried to evade, the most difficult points of objection,
it went as far as the farthest in the path of forced construction. On
the right to acquire territory, Taylor took the ground taken by Joseph
Nicholson in the House,--he inferred it from the war and treaty powers:
“If the means of acquiring and the right of holding are equivalent
to the right of acquiring territory, then this right merged from the
separate States to the United States, as indispensably annexed to the
treaty-making power and the power of making war.” This part of the
Federalist scheme he adopted without a murmur; but when he came to
the next inevitable step, he showed the want of courage often felt by
honest men trying to be untrue to themselves. This territory which
the Washington government could acquire by conquest or treaty,--what
was its status? Could the Washington government “dispose of” it, as
the government was expressly permitted to dispose of the territory it
already held under the Constitution; or must Louisiana be governed
extra-constitutionally by “inherent powers,” as Griswold maintained;
or ought Congress to ask for new and express authority from the
States? Taylor took the first position. The treaty-making power, he
said, was not defined; it was competent to acquire territory. This
territory by the acquisition became a part of the Union, a portion of
the territories of the United States, and might be “disposed of” by
Congress without an amendment to the Constitution. Although Taylor
differed with Jefferson on this point, no objection could be made to
the justice of his opinion except that it left the true dispute to
be settled by mere implication. The power of the government over the
territory had no limits, so far as Colonel Taylor defined it; yet it
either could or could not admit the new territory as a State. If it
could, the government could alter the original compact by admitting
a foreign country as a State; if it could not, either the treaty was
void, or government must apply to the people of the States for new
powers.
Uriah Tracy of Connecticut replied to Taylor in a speech which was
probably the best on his side of the question. His opposition to the
purchase was grounded on a party reason: “The relative strength
which this admission gives to a Southern and Western interest is
contradictory to the principles of our original Union.” The President
and Senate had no power to make States, and the treaty was void.
“I have no doubt but we can obtain territory either by conquest
or compact, and hold it, even all Louisiana and a thousand times
more if you please, without violating the Constitution. We can
hold territory; but to admit the inhabitants into the Union,
to make citizens of them, and States, by treaty, we cannot
constitutionally do; and no subsequent act of legislation, or
even ordinary amendment to our Constitution, can legalize such
measures. If done at all, they must be done by universal consent
of all the States or partners to our political association; and
this universal consent I am positive can never be obtained to
such a pernicious measure as the admission of Louisiana,--of a
world, and such a world, into our Union. This would be absorbing
the Northern States, and rendering them as insignificant in the
Union as they ought to be, if by their own consent the measure
should be adopted.”
Tracy’s speech was answered by Breckenridge of Kentucky, who had
induced the Kentucky legislature, only five years before, to declare
itself determined “tamely to submit to undelegated, and consequently
unlimited, powers in no man or body of men on earth;” and to assert
further that submission to the exercise of such powers “would be to
surrender the form of government we have chosen, and to live under one
deriving its powers from its own will, and not from our authority.”
When he came to deal with the same question in a new form, he glided
with extreme delicacy over the thin ice of the Constitution. His
answer to Tracy was an admission. He pointed out that the Federalist
argument carried centralization further than it was carried by this
treaty. “By his construction,” said Breckenridge, “territories and
citizens are considered and held as the property of the government of
the United States, and may consequently be used as dangerous engines
in the hands of the government against the States and people.” This
was true. The Federalists maintained that such territory could be
held only as property, not as part of the Union; and the consequences
of this doctrine, if granted, were immense. Breckenridge argued
that the admission by treaty of a foreign State was less dangerous,
and therefore more constitutional, than such ownership of foreign
territory. The conclusion was not perfectly logical, and was the less
so because he denied the power in neither case. “Could we not,” he
went on, quoting from Tracy’s speech, “incorporate in the Union some
foreign nation containing ten millions of inhabitants,--Africa, for
instance,--and thereby destroy our government? Certainly the thing
would be possible if Congress would do it and the people consent to
it.... The true construction must depend on the manifest import of the
instrument and the good sense of the community.” What then had become
of the old Republican principle that acts of undelegated authority were
no acts at all? Or had the States really delegated to the President
and two thirds of the Senate the right to “destroy our government”?
If Breckenridge had expressed these ideas in his Kentucky Resolutions,
American history would have contained less dispute as to the meaning of
State-rights and the powers of the central government; but Breckenridge
himself would have then led the Federalist, not the Republican party.
Breckenridge’s speech was followed by one from Pickering’s colleague,
the young senator from Massachusetts, son of John Adams, the Federalist
President whom Jefferson had succeeded. The Federalist majority in
Massachusetts was divided; one portion followed the lead of the Essex
Junto, the other and larger part yielded unwillingly to the supremacy
of Alexander Hamilton and George Cabot. When in the spring of 1803 both
seats of Massachusetts in the United States Senate became by chance
vacant at once, the Essex Junto wished to choose Timothy Pickering for
the long term. The moderate Federalists set Pickering aside, elected
John Quincy Adams, then thirty-six years old, for the long term, and
allowed Pickering to enter the Senate only as junior senator to a man
more than twenty years younger than himself, whose father had but three
years before dismissed Pickering abruptly and without explanation from
his Cabinet. Neither of the senators owned a temper or character likely
to allay strife. The feud between them was bitter and life-long. From
the moment of their appearance in the Senate they took opposite sides.
Pickering held with Tracy, Griswold, and all the extreme Federalists
that the treaty was void, and that the admission of Louisiana as a
State without the separate consent of each State in the Union was a
rupture of the compact, which broke the tie and left each State free to
act independently of the rest. His colleague was as decided in favor of
the Louisiana purchase as Pickering and Tracy were opposed to it; but
he too agreed that the treaty was outside of the Constitution, and he
urged the Senate to take this view. He believed that even Connecticut
would approve of admitting Louisiana if the Southern majority had the
courage to try the experiment. “I firmly believe, if an amendment to
the Constitution, amply sufficient for the accomplishment of everything
for which we have contracted, shall be proposed, as I think it ought,
it will be adopted by the legislature of every State in the Union.”
This was in effect the view which Jefferson had pressed upon his
Cabinet and friends.
Then came Wilson Cary Nicholas. Five years before, in the Virginia
legislature, Nicholas had spoken and voted for the Resolutions moved
by his colleague, John Taylor of Caroline. He then said that if the
principle were once established that Congress had a right to use powers
not expressly delegated, “the tenure by which we hold our liberty
would be entirely subverted: instead of rights independent of human
control, we must be content to hold by the courtesy and forbearance
of those whom we have heretofore considered as the servants of the
people.” Instead of using the same language in 1803, he accepted his
colleague’s views as to the extent of the treaty-making power, and
added reasoning of his own. If the spirit of New England Calvinism
contained an element of self-deceit, Virginia metaphysics occasionally
ran into slippery evasion, as the argument of Nicholas showed.
He evaded a straightforward opinion on every point at issue. The
treaty-making power was undefined, he thought, but not unlimited; the
general limitations of the Constitution applied to it, not the special
limitations of power; and of course the treaty must be judged by its
conformity with the general meaning of the compact. He then explained
away the apparent difficulties in the case. “If the third article of
the treaty,” said he, “is an engagement to incorporate the territory
of Louisiana into the Union of the United States and to make it a
State, it cannot be considered as an unconstitutional exercise of the
treaty-making power, for it will not be asserted by any rational man
that the territory is incorporated as a State by the treaty itself.”
This incorporation was stipulated to be done “according to the
principles of the Constitution,” and the States might do it or not, at
their discretion: if it could not be done constitutionally, it might be
done by amendment.
Nothing could be more interesting than to see the discomfort with which
the champions of State-rights tossed themselves from one horn to the
other of the Federalist dilemma. The Federalists cared little on which
horn their opponents might choose to impale themselves, for both were
equally fatal. Either Louisiana must be admitted as a State, or must be
held as territory. In the first case the old Union was at an end; in
the second case the national government was an empire, with “inherent
sovereignty” derived from the war and treaty-making powers,--in either
case the Virginia theories were exploded. The Virginians felt the
embarrassment, and some of them, like Nicholas, tried to hide it in
a murmur of words and phrases; but the Republicans of Kentucky and
Tennessee were impatient of such restraint, and slight as it was,
thrust it away. The debate was closed by Senator Cocke of Tennessee,
who defied opposition. “I assert,” said he, “that the treaty-making
powers in this country are competent to the full and free exercise of
their best judgment in making treaties without limitation of power.”
On this issue the vote was taken without further discussion, and
by twenty-six to five the Senate passed the bill. Pickering of
Massachusetts, Tracy and Hillhouse of Connecticut, and the two senators
Wells and White from Delaware, were alone in opposition.
The result of these debates in the Senate and House decided only one
point. Every speaker, without distinction of party, agreed that the
United States government had the power to acquire new territory either
by conquest or by treaty; the only difference of opinion regarded the
disposition of this territory after it was acquired. Did Louisiana
belong to the central government at Washington, or to the States? The
Federalists maintained that the central government, representing the
States in union, might, if it pleased, as a consequence of its inherent
sovereignty, hold the rest of America in its possession and govern it
as England governed Jamaica or as Spain was governing Louisiana, but
without the consent of the States could not admit such new territory
into the Union. The Republicans seemed rather inclined to think that
new territory acquired by war or conquest would become at once a part
of the general territory mentioned in the Constitution, and as such
might be admitted by Congress as a State, or otherwise disposed of as
the general welfare might require, but that in either case neither the
people nor the States had anything to do with the matter. At bottom,
both doctrines were equally fatal to the old status of the Union. In
one case the States, formed or to be formed, east of the Mississippi
had established a government which could hold the rest of the world
in despotic control, and which bought a foreign people as it might
buy cattle, to rule over them as their owner; in the other case, the
government was equally powerful, and might besides admit the purchased
or conquered territory into the Union as States. The Federalist theory
was one of empire, the Republican was one of assimilation; but both
agreed that the moment had come when the old Union must change its
character. Whether the government at Washington could possess Louisiana
as a colony or admit it as a State, was a difference of no great matter
if the cession were to hold good; the essential point was that for the
first time in the national history all parties agreed in admitting that
the government could govern.