“It was a startling Bill,” was the criticism[81] of a man who shared in much legislation, “continuing the existing Spanish government; putting the President in the place of the King of Spain; putting all the territorial officers in the place of the King’s officers, and placing the appointment of all these officers in the President alone without reference to the Senate. Nothing could be more incompatible with our Constitution than such a government,—a mere emanation of Spanish despotism, in which all powers, civil and military, legislative, executive, and judicial, were in the Intendant General, representing the King; and where the people, far from possessing political rights, were punishable arbitrarily for presuming to meddle with political subjects.”
The Federalists immediately objected that the powers conferred on the President by this bill were unconstitutional. The Republicans replied, in effect, that the Constitution was made for States, not for territories. Rodney explained the whole intent of his party in advocating the bill: “It shows that Congress have a power in the territories which they cannot exercise in the States, and that the limitations of power found in the Constitution are applicable to States and not to territories.”[82] John Randolph defended the assumption of power on the ground of necessity, and maintained that the government of the United States, with respect to this territory, possessed the powers of European sovereignty: “Gentlemen will see the necessity of the United States taking possession of this country in the capacity of sovereigns, in the same extent as that of the existing government of the province.” The Bill passed Congress by a party vote, and was approved by Jefferson, October 31,[83] without delay.
The Act of October 31 was a temporary measure rather for taking possession of the territory than for governing it. Four weeks later, Senator Breckenridge moved for a committee to prepare a territorial form of government for Louisiana. Two senators of the State-rights school,—Jackson and Baldwin of Georgia,—besides Breckenridge and J. Q. Adams, were appointed on this committee; and they reported, December 30, a Bill that settled the principle on which the new territory should be governed.
Breckenridge’s Bill divided the purchased country at the 33d parallel, the line which afterward divided the State of Arkansas from the State of Louisiana. The country north of that line was named the District of Louisiana, and, after some dispute, was subjected to the territorial government of the Indiana Territory, consisting of a governor, secretary, and judges without a legislature, all controlled by the Ordinance of 1787. This arrangement implied that Congress considered the new territory as assimilated to the old, and “disposed of” it by the same constitutional power.
The northern district contained few white inhabitants, and its administrative arrangements chiefly concerned Indians; but the southern district, which received the name “Territory of Orleans,” included an old and established society, numbering fifty thousand persons. The territory of Ohio numbered only forty-five thousand persons by the census of 1800, while the States of Delaware and Rhode Island contained less than seventy thousand. The treaty guaranteed that “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 mean time they shall be maintained and protected in the free enjoyment of their liberty, property, and the religion which they profess.”
Breckenridge’s Bill, which was probably drawn by Madison in co-operation with the President, created a territorial government in which the people of Louisiana were to have no share. The governor and secretary were to be appointed by the President for three years; the legislative council consisted of thirteen members to be appointed by the President without consulting the Senate, and was to be convened and prorogued by the governor as he might think proper. The judicial officers, also appointed by the President, were to hold office for four years, instead of the usual term of good behavior. The right to a jury trial was restricted to cases where the matter in controversy exceeded twenty dollars, and to capital cases in criminal prosecutions. The slave-trade was restricted by threefold prohibitions: 1. No slave could be imported from abroad; 2. No slave could be brought into the territory from the Union who had been imported from abroad since May 1, 1798; 3. No slave could be introduced into the territory, “directly or indirectly,” except by an American citizen “removing into said territory for actual settlement, and being, at the time of such removal, bona fide owner of such slave,”—the penalty being three hundred dollars fine and the slave’s freedom.
This Bill seemed to set the new Territory apart, as a peculiar estate, to be governed by a power implied in the right to acquire it. The debate which followed its introduction into the Senate was not reported, but the Journal mentioned that Senator Adams, Jan. 10, 1804, moved three Resolutions, to the effect that no constitutional power existed to tax the people of Louisiana without their consent, and carried but three voices with him in support of the principle.[84] Other attempts were made to arrest the exercise of arbitrary power without better success, and the Bill passed the Senate, Feb. 18, 1804, after six weeks consideration, by a vote of twenty to five.
Few gaps in the parliamentary history of the Union left so serious a want as was caused by the failure to report the Senate debate on this Bill; but the report of the House debate partly supplied the loss, for the Bill became there a target for attack from every quarter. Michael Leib, one of the extreme Pennsylvania democrats, began by objecting to the power given to the governor over the Louisiana legislature as “royal.” His colleague, Andrew Gregg, objected altogether to the appointment of the council by the President. Varnum of Massachusetts denounced the whole system, and demanded an elective legislature. Matthew Lyon, who represented Kentucky, compared Jefferson to Bonaparte. “Do we not owe something on this score to principle?” he asked. Speaker Macon took the same ground. George W. Campbell of Tennessee was more precise. “It really establishes a complete despotism,” he said; “it does not evince a single trait of liberty; it does not confer one single right to which they are entitled under the treaty; it does not extend to them the benefits of the Federal Constitution, or declare when, hereafter, they shall receive them.” On the other hand Dr. Eustis, of Boston, took the ground that a despotism was necessary: “I am one of those who believe that the principles of civil liberty cannot suddenly be engrafted on a people accustomed to a regimen of a directly opposite hue.” In contradiction to the language of the treaty and the principles of his party, he went on to say that the people of Louisiana had no rights: “I consider them as standing in nearly the same relation to us as if they were a conquered country.” Other speakers supported him. The Louisianians, it was said, had shed tears when they saw the American flag hoisted in place of the French; they were not prepared for self-government. When the treaty was under discussion, the speakers assumed that the people of Louisiana were so eager for annexation as to make an appeal to them useless; when they were annexed, they were so degraded as not to be worth consulting.
The House refused to tolerate such violation of principle, and by the majority of seventy-four to twenty-three struck out the section which vested legislative powers in the President’s nominees. John Randolph did not vote; but his friend Nicholson and the President’s son-in-law, Thomas Mann Randolph, were in the minority. By fifty-eight to forty-two the House then adopted an amendment which vested legislative powers, after the first year, in an elective council; by forty-four to thirty-seven the restriction on jury trials was rejected; the Act was then limited to two years; and so altered it passed the House March 17, 1804, several Republicans recording their votes against it to the end.
When the Bill, thus amended, came back to the Senate, that body, March 20, summarily disagreed with all the changes made by the House except the limitation of time, which the Senate further reduced to one year. This change reconciled the House, not very cheerfully, to recede, and March 23 the Bill, as it passed the Senate, became law by a vote of fifty-one to forty-five. With the passage of this Act and its twin statute for collecting duties in the ceded territory, the precedent was complete. Louisiana received a government in which its people, who had been solemnly promised all the rights of American citizens, were set apart, not as citizens, but as subjects lower in the political scale than the meanest tribes of Indians, whose right to self-government was never questioned.