“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.
CHAPTER V.
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.