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.