History of the United States of America, Volume 2 (of 9)

by Henry Adams

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.