X LOUISIANA PURCHASE
In 1803, Napoleon, fearing that he could not hold his distant American possession, known as the Louisiana Province, acquired from Spain, and which by treaty was to be re-ceded to Spain and not disposed of to any other nation, put aside all scruples and good faith, and for 60,000,000 francs, on April 30th signed a treaty of cession of the vast territory, then mostly uninhabited, to the United States. This was in Jefferson's administration.
The United States bought this domain and its people just as they might buy unoccupied lands with animals on it.
It was early claimed as slave territory. There were only a few slaves within its limits when purchased, though slavery was recognized there. This purchase was a most important one, although at the time it was not so regarded.
The Louisiana Purchase was much greater, territorially speaking, than all the States then in the Union, with all its other possessions.(35)
It comprised what are now the States of Louisiana, Arkansas, Missouri, Iowa, Nebraska, North Dakota, South Dakota, nearly all of Kansas, Minnesota, Montana, Wyoming, large parts of Colorado and the Indian Territory, and a portion of Idaho. These States and Territories in 1890 contained 11,804,101 inhabitants.
At the time of this great acquisition a conviction prevailed that slavery was rapidly diminishing. Adams and Jefferson, each, while President, entertained the belief that slavery would, ere long, come to a peaceful end. It might then have been possible, by law of Congress, to devote this new region to freedom, but, as slavery existed at and around New Orleans in 1812 when the State of Louisiana was admitted into the Union, it became a slave State. This fate was largely due to the claim of its original inhabitants that they were secured the right to hold slaves by the treaty of cession from France.
Later on, the provision of this treaty, under which it was claimed slavery was perpetuated, was a subject of much discussion, and on it was founded the most absurd arguments on behalf of the slave power.
Its third article was the sole one referred to as fastening forever the institution of slavery on the inhabitants of this vast empire. There are those yet living who deny that, even under the present Constitution of the United States or the constitutions of the States since erected therein, slavery is lawfully excluded therefrom.
This article reads:
"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 meantime they shall be maintained and protected in the enjoyment of their liberty, property, and the religion they profess."
Justice Catron, of the United States Supreme Court, speaking in the Dred Scott case, for the majority of the court and of this article, says:
"Louisiana was a province where slavery was not only lawful, but where property in slaves was the most valuable of all personal property. The province was ceded as a unit, with an equal right pertaining to all its inhabitants, in every part thereof, to own slaves."
He and others of the concurring justices held that the inhabitants at the time of the purchase, also all immigrants after the cession, were protected in the right to hold slaves in the entire purchase.
Near the close of his opinion, still speaking of this article and the acquired territory, he says:
"The right of the United States in or over it depends on the contract of cession, which operates to incorporate as well the Territory as its inhabitants into the Union.
"My opinion is that the third article of the treaty of 1803, ceding Louisiana to the United States, stands protected by the Constitution, and cannot be repealed by Congress."
This view was heroically combatted by a minority of the court, especially by Justices McLean and Curtis. The latter, in his opinion, said
"That a treaty with a foreign nation cannot deprive Congress of any part of its legislative power conferred by the people, so that it no longer can legislate as it is empowered by the Constitution."
Also, that if the treaty expressly prohibited (as it did not) the exclusion of slavery from the ceded territory the "court could not declare that an act of Congress excluding it was void by force of the treaty. . . . A refusal to execute such a stipulation would not be a judicial, but a political and legislative question. . . . It would belong to diplomacy and legislation, and not to the administration of existing laws."(36)
Plainly no part of the treaty of cession fastened slavery, or any other institution of France, on the territory ceded to the United States. If its provisions were violated by the United States, France, internationally, or the inhabitants at the date of the treaty, might have complained and had redress. Obviously the treaty had no bearing on the question of slavery in the United States, but its provisions were seized upon, as was every possible pretext, by the votaries of slavery to maintain and extend it.
It was also, by a majority of the court, held in this memorable case (hereafter to be mentioned) that under the third article of the cession slaves could be taken from any State into any part of the Louisiana Purchase during its territorial state, and there held, and hence that the Missouri Compromise, of 1820, forbidding slavery in the territory north of 36° 30´, was in violation of the treaty and was unconstitutional, as were all other acts of Congress excluding slavery from United States territory. This was in the heyday (1857) of the slave power, and when it aspired, practically, to make slavery national.
This aggressive policy, as we shall see when we come to consider the Nebraska Act of 1854 relating to a principal part of the Louisiana Purchase, led to a great uprising of the friends of freedom, the political overthrow of the advocates of slavery in most branches of the Union; then to secession; then to war, whence came, with peace, universal freedom, and slavery in the Republic forever dead.
(35) For map showing territory acquired by the U. S., by each treaty, etc., see History Ready Ref., vol. v., p. 3286, and Louisiana Purchase (Hermann, Com. Gen. Land Office). The original thirteen States and Territories comprised 8,927,844 sq. mi. The Louisiana Purchase, 1,171,931, sq. mi.
(36) Dred Scott Case, 19 Howard, 393, etc.