Nothing could be more interesting than to see the discomfort with which the champions of State-rights tossed themselves from one horn to the other of the Federalist dilemma. The Federalists cared little on which horn their opponents might choose to impale themselves, for both were equally fatal. Either Louisiana must be admitted as a State, or must be held as territory. In the first case the old Union was at an end; in the second case the national government was an empire, with “inherent sovereignty” derived from the war and treaty-making powers,—in either case the Virginia theories were exploded. The Virginians felt the embarrassment, and some of them, like Nicholas, tried to hide it in a murmur of words and phrases; but the Republicans of Kentucky and Tennessee were impatient of such restraint, and slight as it was, thrust it away. The debate was closed by Senator Cocke of Tennessee, who defied opposition. “I assert,” said he, “that the treaty-making powers in this country are competent to the full and free exercise of their best judgment in making treaties without limitation of power.”
On this issue the vote was taken without further discussion, and by twenty-six to five the Senate passed the bill. Pickering of Massachusetts, Tracy and Hillhouse of Connecticut, and the two senators Wells and White from Delaware, were alone in opposition.
The result of these debates in the Senate and House decided only one point. Every speaker, without distinction of party, agreed that the United States government had the power to acquire new territory either by conquest or by treaty; the only difference of opinion regarded the disposition of this territory after it was acquired. Did Louisiana belong to the central government at Washington, or to the States? The Federalists maintained that the central government, representing the States in union, might, if it pleased, as a consequence of its inherent sovereignty, hold the rest of America in its possession and govern it as England governed Jamaica or as Spain was governing Louisiana, but without the consent of the States could not admit such new territory into the Union. The Republicans seemed rather inclined to think that new territory acquired by war or conquest would become at once a part of the general territory mentioned in the Constitution, and as such might be admitted by Congress as a State, or otherwise disposed of as the general welfare might require, but that in either case neither the people nor the States had anything to do with the matter. At bottom, both doctrines were equally fatal to the old status of the Union. In one case the States, formed or to be formed, east of the Mississippi had established a government which could hold the rest of the world in despotic control, and which bought a foreign people as it might buy cattle, to rule over them as their owner; in the other case, the government was equally powerful, and might besides admit the purchased or conquered territory into the Union as States. The Federalist theory was one of empire, the Republican was one of assimilation; but both agreed that the moment had come when the old Union must change its character. Whether the government at Washington could possess Louisiana as a colony or admit it as a State, was a difference of no great matter if the cession were to hold good; the essential point was that for the first time in the national history all parties agreed in admitting that the government could govern.
CHAPTER VI.
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.