The first of these measures was an “Act for the more effectual preservation of peace in the ports and harbors of the United States.” Under this law any United States marshal, on the warrant of any United States judge, was bound to board any British or other foreign ship-of-war lying in American waters, and seize every person charged with having violated the peace. If the marshal should be resisted, or if surrender was not made, he must call in the military power, and compel surrender by force of arms. If death should ensue, he should be held blameless; but the resisting party should be punished as for felonious homicide. Further, the President was authorized to interdict at will the ports of the United States to all or any armed vessels of a foreign nation; and to arrest and indict any foreign officer who should come within the jurisdiction after committing on the high seas “any trespass or tort, or any spoliation, on board any vessel of the United States, or any unlawful interruption or vexation of trading-vessels actually coming to or going from the United States.”
Such laws were commonly understood in diplomacy as removing the subject in question from the field of negotiation, preliminary to reprisals and war. The Act was passed with little debate in the last hours of the session, in the midst of the confusion which followed the acquittal of Judge Chase. Merry immediately called on the Secretary of State, and asked him for some assurance that might serve to quiet the apprehensions which his Government would feel on reading the Act.[291] Madison could give none, except that the President would probably not exercise for the present his discretionary powers. As for the words, “any trespass or tort,” Madison frankly avowed “he could not but confess they were meant to imply the impressment of any individual whatsoever from on board an American vessel, the exercise of which pretended right on the part of his Majesty’s officers was a matter, he said, which the sense of the people at large would never allow the government of this country to acquiesce in.”
To this announcement Merry replied in substance that the right was one which would certainly never be abandoned by his Government; and there the matter rested at the close of Jefferson’s first term. Madison assured the British minister that the authority granted to the President by Congress over foreign ships of war in American waters would not at present be enforced. He went even a step further toward conciliation. The Legislature of Virginia was induced quietly to modify the Act which had hitherto offered so much encouragement to the desertion of British seamen.[292]
The second threatening measure was a Resolution of the Senate, March 2, 1805, calling upon the Secretary of State for such Acts of the British Parliament as imposed heavier duties on the exportation of merchandise to the United States than on similar goods exported to the nations of Europe. Such an export duty upon merchandise for the United States and the West Indies had in fact been imposed by Parliament some two years before; and this Resolution foreshadowed some commercial retaliation by Congress.
While sending to his Government these warnings to expect from Jefferson’s second administration a degree of hostility more active than from the first, Merry suggested means of giving the United States occupation that should induce them to leave England alone. A new element of conspiracy disclosed itself to the British minister.
Under the Louisiana treaty of cession, the United States government had promised 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.” This pledge had been broken. The usual display of casuistry had been made to prove that the infraction of treaty was no infraction at all; but the more outspoken Republicans avowed, as has been already shown, that the people of Louisiana could not be trusted, or in the commoner phrase that they were unfit for self-government, and must be treated as a conquered race until they learned to consider themselves American citizens.
The people of New Orleans finding themselves in a position of dependence, which, owing chiefly to their hatred of Governor Claiborne, seemed more irritating than their old Spanish servitude, sent three representatives to Washington to urge upon Congress the duty of executing the treaty. Messieurs Sauvé, Derbigny, and Destréhan accordingly appeared at Washington, and in December, 1804, presented a remonstrance so strong that Government was greatly embarrassed to deal with it.[293] Any reply that should repudiate either the treaty obligation or the principles of American liberty and self-government was out of the question; any reply that should affirm either the one or the other was fatal to the system established by Congress in Louisiana. John Randolph, on whose shoulders the duty fell, made a report on the subject. “It is only under the torture,” said he, “that this article of the treaty of Paris can be made to speak the language ascribed to it by the memorialists;” but after explaining in his own way what the article did not mean, he surprised his audience by admitting in effect that the law of the last session was repugnant to the Constitution, and that the people of Louisiana had a right to self-government.[294] Senator Giles said in private that Randolph’s report was “a perfect transcript of Randolph’s own character; it began by setting the claims of the Louisianians at defiance, and concluded with a proposal to give them more than they asked.”[295]
Under these influences the three delegates from the creole society succeeded in getting, not what they asked, but a general admission that the people of Louisiana had political rights, which Congress recognized by an Act, approved March 2, 1805, to the extent of allowing them to elect a General Assembly of twenty-five representatives, and of promising them admission into the Union whenever their free inhabitants should reach the number of sixty thousand. Considering that the people of Louisiana were supposed to be entitled to “all the rights, advantages, and immunities of citizens,” Messieurs Sauvé, Derbigny, and Destréhan thought the concession too small, and expressed themselves strongly on the subject. Naturally the British minister, as well as other ill-affected persons at Washington, listened eagerly to the discontent which promised to breed hostility to the Union.
“The deputies above mentioned,” wrote Merry to his Government,[296] “who while they had any hopes of obtaining the redress of their grievances had carefully avoided giving any umbrage or jealousy to the Government by visiting or holding any intercourse with the agents of foreign Powers at this place, when they found that their fate was decided, although the law had not as yet passed, no longer abstained from communicating with those agents, nor from expressing very publicly the great dissatisfaction which the law would occasion among their constituents,—going even so far as to say that it would not be tolerated, and that they would be obliged to seek redress from some other quarter; while they observed that the opportunity they had had of obtaining a correct knowledge of the state of things in this country, and of witnessing the proceedings of Congress, afforded them no confidence in the stability of the Union, and furnished them with such strong motives to be dissatisfied with the form and mode of government as to make them regret extremely the connection which they had been forced into with it. These sentiments they continued to express till the moment of their departure from hence, which took place the day after the close of the session.”
Another man watched the attitude of the three delegates with extreme interest. Aaron Burr, March 4, 1805, ceased to hold the office of Vice-president. Since the previous August he had awaited the report of his friend Colonel Williamson, who entered into conferences with members of the British ministry, hoping to gain their support for Burr’s plan of creating a Western Confederacy in the Valley of the Ohio. No sooner was Burr out of office than he went to Merry with new communications, which Merry hastened to send to his Government in a despatch marked “Most secret” in triplicate.[297]