Hardly was it decided that the government had an inherent right to
acquire territory and annex foreign States, when the next question
forced itself on Congress for settlement,--What were the powers of
Congress over the new territory?
Three paths were open. The safest was to adopt an amendment of the
Constitution admitting Louisiana into the Union and extending over
it the express powers of Congress as they had applied to the old
territory of the United States. The second course was to assume that
the new territory became, by the fact of acquisition, assimilated
to the old, and might be “disposed of” in the same way. The third
was to hold it apart as a peculiar estate, and govern it, subject to
treaty stipulations, by an undefined power implied in the right to
acquire,--on the principle that government certainly had the right to
govern what it had the right to buy.
The first plan, which was in effect Jefferson’s original idea,
preserved the theory of the Constitution as far as was possible;
but the Republicans feared the consequences with France and Spain
of throwing a doubt on the legality of the treaty. Another reason
for their activity lay in the peculiarities of their character as a
party. The Northern democrats, never strict constructionists, knew and
cared little for the dogmas of their Southern allies. The Southern
Republicans, especially those of the Virginia school, were honest in
their jealousy of the central government; but as a class they were
impatient of control and unused to self-restraint: they liked to do
their will, and counted so surely on their own strength and honesty of
purpose that they could not feel the need of a curb upon their power.
None of them moved. The only man in Congress who showed a sincere wish
to save what could be preserved of the old constitutional theory was
Senator Adams of Massachusetts, who called upon Madison October 28,
before the debate, to ask whether the Executive intended, through any
member of either House, to propose an amendment of the Constitution to
carry the treaty into effect.[80] Madison talked to him openly, and
expressed ideas which as far as they went were the same with those of
Jefferson. For his own part, said Madison, had he been on the floor of
Congress he should have seen no difficulty in acknowledging that the
Constitution had not provided for such a case as this; that it must be
estimated by the magnitude of the object; and that those who had agreed
to it must rely upon the candor of their country for justification.
Probably, when the immediate pressure of special legislation was past,
the matter would be attended to; and if he should have any agency in
concerting the measure, he would request its mover to consult Senator
Adams. There for a month the matter rested, while Congress adopted its
special legislation.
At length, November 25, Senator Adams, becoming impatient, called again
on the Secretary of State, with the draft of an amendment which he
meant to propose. Madison thought it too comprehensive, and suggested
a simple declaration to meet the special case: “Louisiana is hereby
admitted into this Union.” On the same day Adams accordingly moved for
a committee, but could not obtain a seconder. The Senate unanimously
refused even the usual civility of a reference. No more was ever heard
of amending the Constitution.
With almost unanimous consent Louisiana was taken into the Union by
the treaty-making power, without an amendment. This point being fixed,
Congress had also to determine whether the new territory should be
governed by authority drawn from the power of acquisition, or whether
it should be merged in the old territory which Congress had express
right to “dispose of” and regulate at will.
By an act of sovereignty as despotic as the corresponding acts of
France and Spain, Jefferson and his party had annexed to the Union
a foreign people and a vast territory, which profoundly altered the
relations of the States and the character of their nationality. By
similar acts they governed both. Jefferson, in his special Message of
October 23, requested Congress to make “such temporary provisions ...
as the case may require.” A select committee, Randolph being chairman,
immediately reported a Bill, emanating from the Executive.
“It was a startling Bill,” was the criticism[81] of a man who
shared in much legislation, “continuing the existing Spanish
government; putting the President in the place of the King of
Spain; putting all the territorial officers in the place of
the King’s officers, and placing the appointment of all these
officers in the President alone without reference to the Senate.
Nothing could be more incompatible with our Constitution than
such a government,--a mere emanation of Spanish despotism, in
which all powers, civil and military, legislative, executive,
and judicial, were in the Intendant General, representing the
King; and where the people, far from possessing political
rights, were punishable arbitrarily for presuming to meddle with
political subjects.”
The Federalists immediately objected that the powers conferred on
the President by this bill were unconstitutional. The Republicans
replied, in effect, that the Constitution was made for States, not
for territories. Rodney explained the whole intent of his party
in advocating the bill: “It shows that Congress have a power in
the territories which they cannot exercise in the States, and that
the limitations of power found in the Constitution are applicable
to States and not to territories.”[82] John Randolph defended the
assumption of power on the ground of necessity, and maintained that
the government of the United States, with respect to this territory,
possessed the powers of European sovereignty: “Gentlemen will see the
necessity of the United States taking possession of this country in
the capacity of sovereigns, in the same extent as that of the existing
government of the province.” The Bill passed Congress by a party vote,
and was approved by Jefferson, October 31,[83] without delay.
The Act of October 31 was a temporary measure rather for taking
possession of the territory than for governing it. Four weeks later,
Senator Breckenridge moved for a committee to prepare a territorial
form of government for Louisiana. Two senators of the State-rights
school,--Jackson and Baldwin of Georgia,--besides Breckenridge and J.
Q. Adams, were appointed on this committee; and they reported, December
30, a Bill that settled the principle on which the new territory should
be governed.
Breckenridge’s Bill divided the purchased country at the 33d parallel,
the line which afterward divided the State of Arkansas from the State
of Louisiana. The country north of that line was named the District of
Louisiana, and, after some dispute, was subjected to the territorial
government of the Indiana Territory, consisting of a governor,
secretary, and judges without a legislature, all controlled by the
Ordinance of 1787. This arrangement implied that Congress considered
the new territory as assimilated to the old, and “disposed of” it by
the same constitutional power.
The northern district contained few white inhabitants, and its
administrative arrangements chiefly concerned Indians; but the southern
district, which received the name “Territory of Orleans,” included an
old and established society, numbering fifty thousand persons. The
territory of Ohio numbered only forty-five thousand persons by the
census of 1800, while the States of Delaware and Rhode Island contained
less than seventy thousand. The treaty guaranteed that “the inhabitants
of the ceded territory shall be incorporated in the Union of the United
States, and admitted as soon as possible, according to the principles
of the Federal Constitution, to the enjoyment of all the rights,
advantages, and immunities of citizens of the United States; and in the
mean time they shall be maintained and protected in the free enjoyment
of their liberty, property, and the religion which they profess.”
Breckenridge’s Bill, which was probably drawn by Madison in
co-operation with the President, created a territorial government in
which the people of Louisiana were to have no share. The governor and
secretary were to be appointed by the President for three years; the
legislative council consisted of thirteen members to be appointed by
the President without consulting the Senate, and was to be convened
and prorogued by the governor as he might think proper. The judicial
officers, also appointed by the President, were to hold office for
four years, instead of the usual term of good behavior. The right to
a jury trial was restricted to cases where the matter in controversy
exceeded twenty dollars, and to capital cases in criminal prosecutions.
The slave-trade was restricted by threefold prohibitions: 1. No slave
could be imported from abroad; 2. No slave could be brought into the
territory from the Union who had been imported from abroad since
May 1, 1798; 3. No slave could be introduced into the territory,
“directly or indirectly,” except by an American citizen “removing into
said territory for actual settlement, and being, at the time of such
removal, _bona fide_ owner of such slave,”--the penalty being
three hundred dollars fine and the slave’s freedom.
This Bill seemed to set the new Territory apart, as a peculiar
estate, to be governed by a power implied in the right to acquire
it. The debate which followed its introduction into the Senate was
not reported, but the Journal mentioned that Senator Adams, Jan. 10,
1804, moved three Resolutions, to the effect that no constitutional
power existed to tax the people of Louisiana without their consent,
and carried but three voices with him in support of the principle.[84]
Other attempts were made to arrest the exercise of arbitrary power
without better success, and the Bill passed the Senate, Feb. 18, 1804,
after six weeks consideration, by a vote of twenty to five.
Few gaps in the parliamentary history of the Union left so serious a
want as was caused by the failure to report the Senate debate on this
Bill; but the report of the House debate partly supplied the loss, for
the Bill became there a target for attack from every quarter. Michael
Leib, one of the extreme Pennsylvania democrats, began by objecting
to the power given to the governor over the Louisiana legislature
as “royal.” His colleague, Andrew Gregg, objected altogether to the
appointment of the council by the President. Varnum of Massachusetts
denounced the whole system, and demanded an elective legislature.
Matthew Lyon, who represented Kentucky, compared Jefferson to
Bonaparte. “Do we not owe something on this score to principle?”
he asked. Speaker Macon took the same ground. George W. Campbell
of Tennessee was more precise. “It really establishes a complete
despotism,” he said; “it does not evince a single trait of liberty;
it does not confer one single right to which they are entitled under
the treaty; it does not extend to them the benefits of the Federal
Constitution, or declare when, hereafter, they shall receive them.” On
the other hand Dr. Eustis, of Boston, took the ground that a despotism
was necessary: “I am one of those who believe that the principles of
civil liberty cannot suddenly be engrafted on a people accustomed to a
regimen of a directly opposite hue.” In contradiction to the language
of the treaty and the principles of his party, he went on to say that
the people of Louisiana had no rights: “I consider them as standing in
nearly the same relation to us as if they were a conquered country.”
Other speakers supported him. The Louisianians, it was said, had shed
tears when they saw the American flag hoisted in place of the French;
they were not prepared for self-government. When the treaty was under
discussion, the speakers assumed that the people of Louisiana were so
eager for annexation as to make an appeal to them useless; when they
were annexed, they were so degraded as not to be worth consulting.
The House refused to tolerate such violation of principle, and by the
majority of seventy-four to twenty-three struck out the section which
vested legislative powers in the President’s nominees. John Randolph
did not vote; but his friend Nicholson and the President’s son-in-law,
Thomas Mann Randolph, were in the minority. By fifty-eight to forty-two
the House then adopted an amendment which vested legislative powers,
after the first year, in an elective council; by forty-four to
thirty-seven the restriction on jury trials was rejected; the Act was
then limited to two years; and so altered it passed the House March 17,
1804, several Republicans recording their votes against it to the end.
When the Bill, thus amended, came back to the Senate, that body, March
20, summarily disagreed with all the changes made by the House except
the limitation of time, which the Senate further reduced to one year.
This change reconciled the House, not very cheerfully, to recede, and
March 23 the Bill, as it passed the Senate, became law by a vote of
fifty-one to forty-five. With the passage of this Act and its twin
statute for collecting duties in the ceded territory, the precedent was
complete. Louisiana received a government in which its people, who had
been solemnly promised all the rights of American citizens, were set
apart, not as citizens, but as subjects lower in the political scale
than the meanest tribes of Indians, whose right to self-government was
never questioned.
By these measures the Executive and the Legislature recorded their
decision in regard to the powers of government over national territory.
The Judiciary was not then consulted; but twenty-five years afterward,
in the year 1828, Chief-Justice Marshall was in his turn required
to give an opinion, and he added the final authority of the Supreme
Court to the precedent. With characteristic wisdom he claimed for the
government both the constitutional and the extra-constitutional powers
in question. The case concerned the rights of inhabitants of Florida,
who he said--
“Do not participate in political power; they do not share in
the government till Florida shall become a State. In the mean
time Florida continues to be a territory of the United States,
governed by virtue of that clause in the Constitution which
empowers Congress ‘to make all needful rules and regulations
respecting the territory or other property belonging to the
United States.’ Perhaps the power of governing a territory
belonging to the United States which has not, by becoming
a State, acquired the means of self-government, may result
necessarily from the fact that it is not within the jurisdiction
of any particular State, and is within the power and
jurisdiction of the United States. The right to govern may be
the inevitable consequence of the right to acquire territory.
Whichever may be the source whence the power is derived, the
possession of it is unquestioned.”[85]
The effect of such a precedent on constitutional principles was certain
to be great. A government competent to interpret its own powers so
liberally in one instance, could hardly resist any strong temptation
to do so in others. The doctrines of “strict construction” could
not be considered as the doctrines of the government after they had
been abandoned in this leading case by a government controlled by
strict constructionists. The time came at last when the opponents of
centralization were obliged to review their acts and to discover the
source of their mistakes. In 1856 the Supreme Court was again required
to pronounce an opinion, and found itself confronted by the legislation
of 1803–1804 and the decision of Chief-Justice Marshall in 1828.
Chief-Justice Taney and his associates, in the case of Dred Scott,
then reviewed the acts of Jefferson and his friends in 1803–1804, and
pronounced upon them the final judgment of the State-rights school.
Chief-Justice Taney affirmed the right of the government to buy
Louisiana and to govern it, but not to govern it as a part of the
old territory over which the Constitution gave Congress unlimited
power. Louisiana was governed, according to Marshall’s dictum,
by a power which was “the inevitable consequence of the right to
acquire territory,”--a power limited by the general purposes of the
Constitution, and therefore not extending to a colonial system like
that of Europe. Territory might thus be acquired; but it was acquired
in order to become a State, and not to be held as a colony and governed
by Congress with absolute authority; citizens who migrated to it
“cannot be ruled as mere colonists dependent upon the will of the
general government, and to be governed by any laws it may think proper
to impose.” The chief-justice dwelt on this point at much length; the
federal government, he said, “cannot, when it enters a territory of
the United States, put off its character and assume discretionary or
despotic powers which the Constitution has denied it.”
Even this emphatic opinion, which implied that all the Louisiana
legislation was unconstitutional, did not satisfy Justice Campbell,
a Georgian, who represented the ultimate convictions of the strict
constructionists. Campbell reviewed the national history in search
of evidence “that a consolidated power had been inaugurated, whose
subject comprehended an empire, and which had no restriction but the
discretion of Congress.” He held that the Constitution had been plainly
and repeatedly violated; “and in reference to the precedent of 1804,
the wisest statesmen protested against it, and the President more than
doubted its policy and the power of the government.” The Court, he
said, could not undertake to conquer their scruples as the President
and Congress had done. “They acknowledge that our peculiar security is
in the possession of a written Constitution, and they cannot make it
blank paper by construction.”
This sneer at President Jefferson was almost the last official
expression of strict-constructionist principles. Of its propriety the
Court itself was the best judge, but its historical interest could not
be denied.
If Justice Campbell and Chief-Justice Taney were right, according to
the tenets of their school the legislation of 1803–1804 was plainly
unconstitutional. In that case, by stronger reasoning the treaty itself
was unconstitutional and void from the beginning; for not only did
Jefferson’s doubts to which Campbell alluded refer to the treaty and
not to the legislation, but the treaty was at least equally responsible
with the laws for making, in 1803, a situation which required what
Campbell denounced,--“the supreme and irresistible power which is now
claimed for Congress over boundless territories, the use of which
cannot fail to react upon the political system of the States to its
subversion.”
With the law the story need not concern itself, but the view of
American history thus suggested was peculiarly interesting. If the
chief-justice and his associate expressed correctly the opinions of the
strict-constructionist school, the government had at some time been
converted from a government of delegated powers into a sovereignty.
Such was the belief of Campbell’s political friends. Four years after
the Dred Scott decision was declared, the State of South Carolina,
in Convention, issued an “Address to the People of the Slave-holding
States,” justifying its act of secession from the Union.
“The one great evil,” it declared, “from which all other evils
have flowed, is the overthrow of the Constitution of the United
States. The government of the United States is no longer the
government of confederated republics, but of a consolidated
democracy. It is no longer a free government, but a despotism.”
If the strict constructionists held this opinion, they necessarily
believed that at some moment in the past the government must have
changed its character. The only event which had occurred in American
history so large in its proportions, so permanent in its influence, and
so cumulative in its effects as to represent such a revolution was the
Louisiana purchase; and if the Louisiana purchase was to be considered
as having done what the Federalists expected it to do,--if it had made
a new constitution and a government of sovereign powers,--the strict
constructionists were not only consenting parties to the change, they
were its authors.
From every point of view, whether Justice Campbell and the secession
convention of South Carolina were right or wrong in their historical
judgment, the Louisiana purchase possessed an importance not to be
ignored. Even in 1804 the political consequences of the act were
already too striking to be overlooked. Within three years of his
inauguration Jefferson bought a foreign colony without its consent and
against its will, annexed it to the United States by an act which he
said made blank paper of the Constitution; and then he who had found
his predecessors too monarchical, and the Constitution too liberal in
powers,--he who had nearly dissolved the bonds of society rather than
allow his predecessor to order a dangerous alien out of the country in
a time of threatened war,--made himself monarch of the new territory,
and wielded over it, against its protests, the powers of its old kings.
Such an experience was final; no century of slow and half-understood
experience could be needed to prove that the hopes of humanity lay
thenceforward, not in attempting to restrain the government from doing
whatever the majority should think necessary, but in raising the people
themselves till they should think nothing necessary but what was good.
Jefferson took a different view. He regarded, or wished to regard,
the Louisiana treaty and legislation as exceptional and as forming
no precedent. While he signed the laws for governing the territory,
he warmly objected to the establishment of a branch bank of the
United States at New Orleans. “This institution is one of the most
deadly hostility existing against the principles and form of our
Constitution,” he wrote to Gallatin;[86] “ought we to give further
growth to an institution so powerful, so hostile?” Gallatin was clear
that the business of the Treasury required such aid, and Jefferson
again acquiesced. Gallatin was also allowed and encouraged to enforce
the restrictions on the importation of slaves into Louisiana.[87] “It
seems that the whole Cabinet,” wrote the French _chargé_ to his
government, “put the utmost weight on this prohibition. Mr. Jefferson
is earnestly bent on maintaining it, and his Secretary of the Treasury
takes the severest measures to insure its execution.”
As though the annexation of Louisiana alone made not enough change
in the old established balances of the Constitution, Congress took
up another matter which touched the mainspring of the compact. A new
Presidential election was at hand. The narrow escape of 1800 warned the
party in power not again to risk society by following the complicated
arrangements of 1788. In the convention which framed the Constitution
no single difficulty was more serious than that of compromising the
question of power between the large and small States. Delaware, New
Jersey, Rhode Island, Maryland, and Connecticut were well aware that
the large States would take the lion’s share of power and patronage;
they knew that except by accident no citizen of theirs could ever reach
the Presidency; and as accident alone could give the small States a
chance, accident was to them a thing of value. Whatever tended to make
their votes decisive was an additional inducement with them to accept
the Constitution. The Vice-presidency, as originally created, more
than doubled their chance of getting the Presidency, and was invented
chiefly for this purpose; but this was not all. As the number of
electoral votes alone decided between President and Vice-president, a
tie-vote was likely often to occur; and such a tie was decided by the
House of Representatives, where another bribe was intentionally offered
to the small States by giving the election to the State delegations
voting as units, so that the vote of Delaware weighed as heavily as the
vote of Pennsylvania.
The alarm caused by Burr’s rivalry with Jefferson in February, 1801,
satisfied the Republican party that such a door to intrigue ought
not to be left open. Oct. 17, 1803, before the Louisiana treaty was
taken up, an amendment to the Constitution was moved by friends of the
Administration in the House. This, which took shape at length as the
Twelfth Amendment, obliged the members of the electoral college to
distinguish in their ballots the persons voted for as President and
Vice-president.
Slight as this change might appear, it tended toward centralizing
powers hitherto jealously guarded. It swept away one of the checks on
which the framers had counted to resist majority rule by the great
States. Lessening the influence of the small States, and exaggerating
the office of President by lowering the dignity of Vice-president,
it made the processes of election and government smoother and more
efficient,--a gain to politicians, but the result most feared by the
State-rights school. The change was such as Pennsylvania or New York
might naturally want; but it ran counter to the theories of Virginia
Republicans, whose jealousy of Executive influence had been extreme.
Roger Griswold said with prophetic emphasis:[88]--
“The man voted for as Vice-president will be selected without
any decisive view to his qualifications to administer the
government. The office will generally be carried into the
market to be exchanged for the votes of some large States for
President; and the only criterion which will be regarded as
a qualification for the office of Vice-president will be the
temporary influence of the candidate over the electors of his
State.... The momentary views of party may perhaps be promoted
by such arrangements, but the permanent interests of the country
are sacrificed.”
Griswold held that true reform required abolition of the office; and
in this opinion his old enemy John Randolph warmly agreed. In the
Senate, had the question risen as a new one, perhaps a majority might
have favored abolition, for the results of retaining the office were
foreseen; but the discussion was hampered by the supposed popular will
and by express votes of State legislatures, and Congress felt itself
obliged to follow a prescribed course. The amendment was adopted by the
usual party vote; and the Federalists thenceforward were able to charge
Jefferson and his party with responsibility not only for stripping the
small States of an advantage which had made part of their bargain, but
also for putting in the office of President, in case of vacancies, men
whom no State and no elector intended for the post.