The Life Of Thomas Paine, Vol. 2. (of 2) / With A History of His Literary, Political and Religious Career in America France, and England

by Moncure Daniel Conway

Of the same date is a letter to Senator Breck-enridge, of Kentucky, forwarded through Jefferson:

"My Dear Friend,—Not knowing your place of Residence in Kentucky I send this under cover to the President desiring him to fill up the direction.

"I see by the public papers and the Proclamation for calling Congress, that the cession of Louisiana has been obtained. The papers state the purchase to be 11,250,000 dollars in the six per cents and 3,750,000 dollars to be paid to American claimants who have furnished supplies to France and the french Colonies and are yet unpaid, making on the whole 15,000,000 dollars.

"I observe that the faction of the Feds who last Winter were for going to war to obtain possession of that country and who attached so much importance to it that no expense or risk ought be spared to obtain it, have now altered their tone and say it is not worth having, and that we are better without it than with it. Thus much for their consistency. What follows is for your private consideration.

"The second section of the 2d article of the constitution says, The 'President shall have Power by and with the consent of the senate to make Treaties provided two thirds of the senators present concur.'

"A question may be supposed to arise on the present case, which is, under what character is the cession to be considered and taken up in congress, whether as a treaty, or in some other shape? I go to examine this point.

"Though the word, Treaty, as a Word, is unlimited in its meaning and application, it must be supposed to have a denned meaning in the constitution. It there means Treaties of alliance or of navigation and commerce—Things which require a more profound deliberation than common acts do, because they entail on the parties a future reciprocal responsibility and become afterwards a supreme law on each of the contracting countries which neither can annull. But the cession of Louisiana to the United States has none of these features in it It is a sale and purchase. A sole act which when finished, the parties have no more to do with each other than other buyers and sellers have. It has no future reciprocal consequences (which is one of the marked characters of a Treaty) annexed to it; and the idea of its becoming a supreme law to the parties reciprocally (which is another of the characters of a Treaty) is inapplicable in the present case. There remains nothing for such a law to act upon.

"I love the restriction in the constitution which takes from the Executive the power of making treaties of his own will: and also the clause which requires the consent of two thirds of the Senators, because we cannot be too cautious in involving and entangling ourselves with foreign powers; but I have an equal objection against extending the same power to the senate in cases to which it is not strictly and constitutionally applicable, because it is giving a nullifying power to a minority. Treaties, as already observed, are to have future consequences and whilst they remain, remain always in execution externally as well as internally, and therefore it is better to run the risk of losing a good treaty for the want of two thirds of the senate than be exposed to the danger of ratifying a bad one by a small majority. But in the present case no operation is to follow but what acts itself within our own Territory and under our own laws. We are the sole power concerned after the cession is accepted and the money paid, and therefore the cession is not a Treaty in the constitutional meaning of the word subject to be rejected by a minority in the senate.

"The question whether the cession shall be accepted and the bargain closed by a grant of money for the purpose, (which I take to be the sole question) is a case equally open to both houses of congress, and if there is any distinction of formal right, it ought according to the constitution, as a money transaction, to begin in the house of Representatives.

"I suggest these matters that the senate may not be taken unawares, for I think it not improbable that some Fed, who intends to negative the cession, will move to take it up as if it were a Treaty of Alliance or of Navigation and Commerce.