THE FIRST ADMINISTRATION
OF
THOMAS JEFFERSON
1801–1805

HISTORY
OF THE
UNITED STATES OF AMERICA

DURING THE FIRST ADMINISTRATION OF

THOMAS JEFFERSON

By HENRY ADAMS

Vol. II.

NEW YORK
CHARLES SCRIBNER’S SONS
1889

Copyright, 1889,
By Charles Scribner’s Sons.

University Press:
John Wilson and Son, Cambridge.

CONTENTS OF VOL. II.

THE COAST OF
WEST FLORIDA
AND
LOUISIANA

(From Jeffery’s American Atlas. London, 1800.)

HISTORY OF THE UNITED STATES.

CHAPTER I.

Congress expired; Monroe set sail March 8, 1803; Washington relapsed into silence; and the President and his Cabinet waited alone in the empty village, triumphing for the moment over their difficulties. Although a French prefect was actually in New Orleans, and the delivery of Louisiana to Bonaparte might from day to day be expected, not an additional soldier stood on the banks of the Mississippi, and the States of Kentucky and Tennessee were as quiet as though their flat-boats still floated down to New Orleans. A month passed before Madison or Jefferson again moved. Then the President asked his Cabinet[1] what Monroe should do in case France, as he expressed it, “refused our rights.” He proposed an alliance with England, and suggested three inducements which might be offered to Great Britain: “1. Not to make a separate peace. 2. To let her take Louisiana. 3. Commercial privileges.” The Cabinet unanimously rejected the second and third concessions, but Dearborn and Lincoln were alone in opposing the first; and a majority agreed to instruct Monroe and Livingston, “as soon as they find that no arrangements can be made with France, to use all possible procrastination with them, and in the mean time enter into conferences with the British government, through their ambassador at Paris, to fix principles of alliance, and leave us in peace till Congress meets; and prevent war till next spring.”

Madison wrote the instructions. If the French government, he said,[2] should meditate hostilities against the United States, or force a war by closing the Mississippi, the two envoys were to invite England to an alliance, and were to negotiate a treaty stipulating that neither party should make peace or truce without consent of the other. Should France deny the right of deposit without disputing the navigation, the envoys were to make no positive engagement, but should let Congress decide between immediate war or further procrastination.

At no time in Talleyrand’s negotiations had the idea of war against the United States been suggested. Of his intentions in this respect alone he had given positive assurances.[3] Above all things both he and the First Consul feared a war with the United States. They had nothing to gain by it. Madison’s instructions therefore rested on an idea which had no foundation, and which in face of the latest news from Europe was not worth considering; yet even if intended only for use at home, the instructions were startling enough to warrant Virginians in doubting their authenticity. The late Administration, British in feeling as it was supposed to be, had never thought an alliance with England necessary even during actual hostilities with France, and had not hesitated to risk the chances of independent action. Had either of Jefferson’s predecessors instructed American ministers abroad, in case of war with France, to bind the United States to make no peace without England’s consent, the consequence would have been an impeachment of the President, or direct steps by Virginia, Kentucky, and North Carolina, as in 1798, tending to a dissolution of the Union. Such an alliance, offensive and defensive, with England contradicted every principle established by President Washington in power or professed by Jefferson in opposition. If it was not finesse, it was an act such as the Republicans of 1798 would have charged as a crime.

While Madison was writing these instructions, he was interrupted by the Marquis of Casa Yrujo,[4] who came in triumph to say that his Government had sent out a brigantine especially to tell the President that the right of deposit would be restored and continued till another agreement or equivalent place could be fixed upon.[5] Yrujo was instructed to thank the President for his friendly, prudent, and moderate conduct during the excitement. He sent to New Orleans the positive order of King Charles IV. to the Intendant Morales, that the right of deposit should be immediately restored; the western people were told that their produce might go down the river as before, and thus the last vestige of anxiety was removed. In face of this action by Godoy, and of the war evidently at hand between France and England, the success of the peace policy was assured. These events in some degree explained the extraordinary nature of the new instructions of April, 1803.

Monroe was then already at Paris. In order to make clear the situation in which he found himself, the sequence of events in Europe needs to be understood.

Bonaparte’s expedition to Louisiana was to have sailed at the end of September, 1802.[6] A general of division, three generals of brigade, five battalions of infantry, two companies of artillery, sixteen pieces of cannon, and three thousand muskets were to be collected at Dunkirk for shipment; but as fast as regiments could be named they were consumed by the fiery furnace of St. Domingo. Nevertheless, all the orders and arrangements were gradually made. Victor was to command the forces in Louisiana; Laussat was to be prefect, charged with the civil administration. Both received elaborate written instructions; and although Victor could not sail without ships or troops, Laussat was sent on his way.

These instructions, which were never published, had extreme value for the decision of disputes which were to perturb American politics for the next twenty years. Although Victor was forced to wait in Holland for the expedition he commanded, a copy of his instructions was given to Laussat, and served to regulate his conduct as long as he remained in office. Decrès, the Minister of Marine, was the author of this paper, which unfolded the purpose that had guided France in recovering, and was to control her in administering, this vast possession. Nothing could be simpler, clearer, or more consistent with French policy than this document, which embodied so large a part of Talleyrand’s political system.

The instructions began, as was natural, by a careful definition of the new province. After reciting the terms of the retrocession according to the Third Article of Berthier’s Treaty, Decrès fixed the boundaries of the territory which Victor, on the part of the French republic, was to receive from the Marquis of Somoruelos, the Captain-General of Cuba.[7]

“The extent of Louisiana,” he said, “is well determined on the south by the Gulf of Mexico. But bounded on the west by the river called Rio Bravo from its mouth to about the 30° parallel, the line of demarcation stops after reaching this point, and there seems never to have been any agreement in regard to this part of the frontier. The farther we go northward, the more undecided is the boundary. This part of America contains little more than uninhabited forests or Indian tribes, and the necessity of fixing a boundary has never yet been felt there. There also exists none between Louisiana and Canada.”

In this state of things the captain-general would have to relieve the most remote Spanish garrisons, in order to establish possession; in other respects he would be guided only by political and military interests. The western and northern boundary was of less consequence than the little strip which separated New Orleans from Mobile; and to this point the instructions specially called Victor’s attention. Quoting the treaty of 1763 between Spain, Great Britain, and France, when Florida was to become a British possession, Decrès fixed its terms as still binding upon all the interested parties.

“‘It is agreed,’” said the seventh article of this treaty, “‘that in future the boundaries between the States of his Most Christian Majesty and those of his Britannic Majesty shall be irrevocably fixed by a line drawn down the middle of the Mississippi River from its source to the River Iberville, and from there by a line down the middle of that river and of the lakes Maurepas and Pontchartrain to the sea. New Orleans and the island on which it stands shall belong to France.’ Such is still to-day the eastern limit of Louisiana. All to the east and north of this limit makes part of the United States or of West Florida.”

Nothing could be clearer. Louisiana stretched from the Iberville to the Rio Bravo; West Florida from the Iberville to the Appalachicola. The retrocession of Louisiana by Spain to France could restore only what France had ceded to Spain in 1762. West Florida had nothing to do with the cession of 1762 or the retrocession of 1800, and being Spanish by a wholly different title could not even be brought in question by the First Consul, much as he wanted Baton Rouge, Mobile, and Pensacola. Victor’s orders were emphatic:—

“There is therefore no obscurity as to our boundary on this side any more than as to that of our allies; and although Florida belongs to Spain, Spain’s right of property in this quarter will have as much interest for the Captain-General of Louisiana as though Florida were a French possession.”

After thus establishing the boundary, as far as possible, in every direction, the minister treated at some length of the English claim to navigation on the Mississippi, and at last reached the general subject of the relation between Louisiana and the world about it,—the subject in which Jefferson would have found acute interest:—

“The system of this, as of all our other colonies, should be to concentrate its commerce in the national commerce; it should have in particular the aim of establishing its relations with our Antilles, so as to take the place, in these colonies, of the American commerce for all the objects whose import and export is permitted to them. The captain-general should especially abstain from every innovation favorable to strangers, who should be restricted to such communications as are absolutely indispensable to the prosperity of Louisiana and to such as are explicitly determined by the treaties.”

Commercial relations with the Spanish colonies were to be encouraged and extended as much as possible, while the utmost caution was to be observed toward the United States:—

“From what has been said of Louisiana and the adjacent States, it is clear that the republic of France, being master of both banks at the mouth of the Mississippi, holds the key to its navigation. This navigation is nevertheless a matter of the highest importance for the western States of the Federal Government.... This is enough to show with what jealousy the Federal Government will see us take possession of Louisiana. Whatever may be the events which this new part of the continent has to expect, the arrival of the French forces should be marked there by the expression of sentiments of great benevolence for these new neighbors.”

Expression of benevolent sentiments was a pleasing duty; but it was not to interfere with practical measures, both defensive and offensive:—

“The greatest circumspection will be required in directing the colonial administration. A little local experience will soon enable you to discern the sentiments of the western provinces of the Federal Government. It will be well to maintain sources of intelligence in that country, whose numerous, warlike, and sober population may present you a redoubtable enemy. The inhabitants of Kentucky especially should fix the attention of the captain-general.... He must also fortify himself against them by alliance with the Indian nations scattered to the east of the river. The Chibackas, Choctaws, Alabamas, Creeks, etc., are represented as being entirely devoted to us.... He will not forget that the French government wishes peace; but that if war takes place, Louisiana will certainly become the theatre of hostilities.... The intention of the First Consul is to raise Louisiana to a degree of strength which will allow him in time of war to abandon it to its own resources without anxiety; so that enemies may be forced to the greatest sacrifices merely in attempting to attack it.”

In these instructions not a word could be found which clashed with Jefferson’s pacific views; and partly for that reason they were more dangerous to the United States than if they had ordered Victor to seize American property on the Mississippi and occupy Natchez with his three thousand men. Victor was instructed, in effect, to tamper with every adventurer from Pittsburg to Natchez; buy up every Indian tribe in the Georgia and Northwestern Territory; fortify every bluff on the western bank from St. Louis to New Orleans; and in a few years create a series of French settlements which would realize Madison’s “sound policy” of discouraging the United States from colonizing the west bank.

Fortified by these instructions, the Citizen Laussat set sail Jan. 12, 1803, and in due time arrived at New Orleans. Victor labored in Holland to put his ships and supplies in a condition to follow. As Laussat sailed, another step was taken by the French government. General Bernadotte, a very distinguished republican officer, brother-in-law of Joseph Bonaparte, was appointed minister at Washington.[8] The First Consul had his own reasons for wishing to remove Bernadotte, as he meant to remove Moreau; and Washington was a place of indirect banishment for a kinsman whose character was to be feared. Bernadotte’s instructions[9] were signed by Talleyrand Jan. 14, 1803, the day after Monroe was confirmed as special envoy to France by the Senate at Washington, and while Laussat was still on the French coast. Although Bonaparte had been obliged to withdraw a part of Victor’s force, he still intended that the expedition should start at once with two thousand men;[10] and its departure was to be so timed that Bernadotte should reach Washington as Victor and his troops reached New Orleans. Their instructions were on one point identical. News of the closure of the Mississippi by Morales had reached Paris, and had already caused an official protest by Livingston, when Talleyrand drew up the instructions to Bernadotte:—

“Louisiana being soon to pass into our hands, with all the rights which have belonged to Spain, we can only with pleasure see that a special circumstance has obliged the Spanish Administration to declare formally [constater] its right to grant or to refuse at will to the Americans the privilege of a commercial entrepôt at New Orleans; the difficulty of maintaining this position will be less for us than that of establishing it.... Yet in any discussion that may arise on this subject, and in every discussion you may have to sustain, the First Consul wishes you to be informed of his most positive and pronounced desire to live in good understanding with the American government, to cultivate and to improve for the advantage of American commerce the relations of friendship which unite the two peoples. No one in Europe wishes the prosperity of that people more than he. In accrediting you to its Government he has given it a peculiar mark of his good disposition; he doubts not that you will make every effort to bind closer the ties which exist between the two nations. In consequence of the firm intention which the First Consul has shown on this subject, I must recommend you to take every care to avoid whatever might alter our relations with that nation and its Government. The agents of the French republic in the United States should forbid themselves whatever might even remotely lead to a rupture. In ordinary communication, every step should show the benevolent disposition and mutual friendship which animate the chiefs and all the members of the two Governments; and when any unforeseen difficulty rises which may in any degree whatever compromise their good understanding, the simplest and most effectual means of preventing all danger is to refer its solution to the inquiry and direct judgment of the two Governments.”

Talleyrand’s language was more elaborate, but not clearer, than that which Bonaparte himself used to Victor.[11]

“I have no need to tell you,” the First Consul wrote, “with what impatience the Government will wait for news from you in order to settle its ideas in regard to the pretensions of the United States and their usurpations over the Spaniards. What the Government may think proper to do must not be judged in advance until you have rendered an account of the state of things. Every time you perceive that the United States are raising pretensions, answer that no one has an idea of this at Paris (que l’on n’a aucune idée de cela à Paris); but that you have written, and that you are expecting orders.”

These were the ideas held by the government of France at the moment when Jefferson nominated Monroe as a special envoy to buy New Orleans and West Florida. Jefferson’s hopes of his success were small; and Livingston, although on the spot and eager to try the experiment, could only write:[12] “Do not absolutely despair.” Whatever chance existed of obtaining New Orleans seemed to lie in the possibility that Addington’s peaceful administration in England might be driven into some act contrary to its vital interests; and even this chance was worth little, for so long as Bonaparte wanted peace, he could always keep it. England was thoroughly weary of war; and proved it by patiently looking on while Bonaparte, during the year, committed one arbitrary act after another, which at any previous time would have been followed by an instant withdrawal of the British minister from Paris.

On the other hand, the world could see that Bonaparte was already tired of peace; his rôle of beneficent shopkeeper disgusted him, and a new war in Europe was only a question of months. In such a case the blow might fall on the east bank of the Rhine, on Spain, or on England. Yet Bonaparte was in any case bound to keep Louisiana, or return it to Spain. Florida was not his to sell. The chance that Jefferson could buy either of these countries, even in case of a European war, seemed so small as hardly to be worth considering; but it existed, because Bonaparte was not a man like other men, and his action could never be calculated in advance.

The news that Leclerc was dead, that his army was annihilated, St. Domingo ruined, and the negroes more than ever beyond control, reached Paris and was printed in the “Moniteur” Jan. 7, 1803, in the same active week when Bernadette, Laussat, and Victor were ordered from France to America, and Monroe was ordered from America to France. Of all the events of the time, Leclerc’s death was the most decisive. The colonial system of France centred in St. Domingo. Without that island the system had hands, feet, and even a head, but no body. Of what use was Louisiana, when France had clearly lost the main colony which Louisiana was meant to feed and fortify? The new ruler of France was not unused to failure. More than once he had suddenly given up his dearest plans and deserted his oldest companions when their success was hopeless. He had abandoned Paoli and Corsica with as little compunction as afterward he abandoned the army and the officers whom he led to Egypt. Obstinate in pursuing any object which led to his own advancement, he was quick to see the moment when pursuit became useless; and the difficulties that rose in his path toward colonial empire were quite as great as those which had driven him to abandon Corsica and Egypt. Not only had the island of St. Domingo been ruined by the war, its plantations destroyed, its labor paralyzed, and its population reduced to barbarism, so that the task of restoring its commercial value had become extremely difficult; but other and greater objections existed to a renewal of the struggle. The army dreaded service in St. Domingo, where certain death awaited every soldier; the expense was frightful; a year of war had consumed fifty thousand men and money in vast amounts, with no other result than to prove that at least as many men and as much money would be still needed before any return could be expected for so lavish an expenditure. In Europe war could be made to support war; in St. Domingo peace alone could but slowly repair some part of this frightful waste.

Leclerc was succeeded at St. Domingo by General Rochambeau, a son of the Comte de Rochambeau, who twenty years before had commanded the French corps which enabled Washington to capture Cornwallis at Yorktown. A brave officer, but known to be little fit for administration, Rochambeau was incompetent for the task that fell on him. Leclerc had warned the Government that in case of his own retirement he had no officer fit to replace him,—least of all Rochambeau, who was next in rank. Rochambeau wrote to inform the First Consul that thirty-five thousand men must be sent to save the island.[13] Without a new commander-in-chief of the highest ability, a new army was useless; and meanwhile Rochambeau was certain to waste the few thousand acclimated soldiers who should form its nucleus.

The First Consul found himself in a difficult and even dangerous situation. Probably the colonial scheme had never suited his tastes, and perhaps he had waited only until he should be firm in power in order to throw off the tutelage of Talleyrand; but the moment had arrived when his tastes coincided with policy. A second failure at St. Domingo would destroy his own credit, and disgust both the army and the public. Abandonment of the island was equally hazardous; for it required the abandonment of French traditions and a confession of failure. Retirement from St. Domingo was impossible, except under cover of some new enterprise; and as Europe stood, no other enterprise remained for France to undertake which would not lead her armies across the Rhine or the Pyrenees. For this undertaking Bonaparte was not yet ready; but even had he been so, it would have offered no excuse for abandoning the colonies. The ocean would still have been open, and St. Domingo within easy reach.

Only one resource remained. Bonaparte told no one his plans; but he was not a man to hesitate when decision was needed. From the day when news of Leclerc’s death arrived, during the first week of January, 1803, the First Consul brooded over the means of abandoning St. Domingo without appearing to desert intentionally a policy dear to France. Talleyrand and Decrès were allowed to go on as before; they gave instructions to Bernadotte, and hurried the preparations of Victor, whom the ice and snow of Holland and the slowness of the workmen held motionless; they prepared a reinforcement of fifteen thousand men for Rochambeau, and Bonaparte gave all the necessary orders for hastening the departure of both expeditions. As late as February 5, he wrote to Decrès that fifteen thousand men had been, or were about to be, sent to St. Domingo, and that fifteen thousand more must be ready to sail by the middle of August.[14] Yet his policy of abandoning the colonial system had been already decided; for on January 30 the “Moniteur” produced Sebastiani’s famous Report on the military condition of the East,—a publication which could have no other object than to alarm England.[15]

Livingston was quick to see the change of policy; but although he understood as much as was known to any one, he could not count with certainty on the result.[16] Not even Joseph and Lucien knew what was in their brother’s mind. Talleyrand seems to have been elaborately deceived; even as late as February 19 he was allowed to instruct General Beurnonville, the French ambassador at Madrid, to express “the warm satisfaction which the last acts of sovereignty exercised by the King of Spain in Louisiana have given to the First Consul.”[17] The last act of sovereignty exercised by Spain in Louisiana had been the closure of the Mississippi. Before Beurnonville could obey this order, Godoy, hastening to anticipate possible interference from France, promised Pinckney, February 28, that the entrepôt should be restored. King Charles’s order of restitution bore date March 1, 1803; Beurnonville’s note, urging the King to sustain Morales, bore date March 4, and March 10 Don Pedro Cevallos replied to Talleyrand’s congratulation in a tone so evasive as to show that Godoy was again deceiving the First Consul.[18] Cevallos did not say that the right of deposit had ten days before been restored; he contented himself with mentioning the reasons alleged by Morales for his act, adding at the close the empty assurance that “in every way his Majesty prizes highly the applause of the French government.” In January, only a few weeks before, Godoy had told Beurnonville, with unconcealed satisfaction, that Bonaparte should not have Florida,—although without Florida the town of New Orleans was supposed to be of little value. In February he snatched away what he could of New Orleans by replacing the Americans in all their privileges there.

Livingston plied the French officials with arguments and memorials; but he might have spared himself the trouble, for Bonaparte’s policy was already fixed. The First Consul acted with the rapidity which marked all his great measures. England at once took Sebastiani’s Report as a warning, and began to arm. February 20 Bonaparte sent to the Corps Législatif his Annual Report, or Message, which spoke of Great Britain in language that could not be disregarded; finally, March 12, Livingston saw a melodramatic spectacle which transfixed him with surprise and excitement.[19] The scene was at Madame Bonaparte’s drawing-room; the actors were Bonaparte and Lord Whitworth, the British ambassador. “I find, my Lord, your nation want war again!” said the First Consul. “No, sir,” replied Whitworth; “we are very desirous of peace.” “I must either have Malta or war!” rejoined Bonaparte. Livingston received these words from Lord Whitworth himself on the spot; and returning at once to his cabinet, wrote to warn Madison. Within a few days the alarm spread through Europe, and the affairs of St. Domingo were forgotten.

Bonaparte loved long-prepared transformation-scenes. Such a scene he was preparing, and the early days of April, 1803, found the actors eagerly waiting it. All the struggles and passions of the last two years were crowded into the explosion of April. At St. Domingo, horror followed fast on horror. Rochambeau, shut in Port au Prince,—drunken, reckless, surrounded by worthless men and by women more abandoned still, wallowing in the dregs of the former English occupation and of a half-civilized negro empire,—waged as he best could a guerrilla war, hanging, shooting, drowning, burning all the negroes he could catch; hunting them with fifteen hundred bloodhounds bought in Jamaica for something more than one hundred dollars each; wasting money, squandering men; while Dessalines and Christophe massacred every white being within their reach. To complete Bonaparte’s work, from which he wished to turn the world’s attention, high among the Jura Mountains, where the ice and snow had not yet relaxed their grip upon the desolate little Fortress and its sunless casemate, in which for months nothing but Toussaint’s cough had been heard, Commander Amiot wrote a brief military Report to the Minister of Marine:[20] “On the 17th [April 7], at half-past eleven o’clock of the morning, on taking him his food, I found him dead, seated on his chair near his fire.” According to Tavernier, doctor of medicine and chirurgien of Pontarlier, who performed the autopsy, pleuro-pneumonia was the cause of Toussaint’s death.

Toussaint never knew that St. Domingo had successfully resisted the whole power of France, and that had he been truer to himself and his color he might have worn the crown that became the plaything of Christophe and Dessalines; but even when shivering in the frosts of the Jura, his last moments would have glowed with gratified revenge, had he known that at the same instant Bonaparte was turning into a path which the negroes of St. Domingo had driven him to take, and which was to lead him to parallel at St. Helena the fate of Toussaint himself at the Château de Joux. In these days of passion, men had little time for thought; and the last subject on which Bonaparte thereafter cared to fix his mind was the fate of Toussaint and Leclerc. That the “miserable negro,” as Bonaparte called him, should have been forgotten so soon was not surprising; but the prejudice of race alone blinded the American people to the debt they owed to the desperate courage of five hundred thousand Haytian negroes who would not be enslaved.

If this debt was due chiefly to the negroes, it was also in a degree due to Godoy and to Spain. In the new shifting of scenes, Godoy suddenly found himself, like Toussaint eighteen months before, face to face with Bonaparte bent on revenge. No one knew better than Godoy the dangers that hung over him and his country. Aware of his perils, he tried, as in 1795, to conciliate the United States by a course offensive to France. Not only did he restore the entrepôt at New Orleans, but he also admitted the claims for damages sustained by American citizens from Spanish subjects in the late war, and through Don Pedro Cevallos negotiated with Pinckney a convention which provided for a settlement of these claims.[21] Although he refused to recognize in this convention the spoliations made by Frenchmen within Spanish jurisdiction, and insisted that these were in their nature claims against France which Spain was not morally bound to admit, he consented to insert an article copied from the expunged Article II. of the treaty of Morfontaine, reserving to the United States the right to press these demands at a future time.

So well pleased was Jefferson with the conduct of Spain and the Spanish ministers, that not a complaint was made of ill treatment; and even the conduct of Morales did not shake the President’s faith in the friendliness of King Charles. No doubt he mistook the motives of this friendliness, for Spain had no other object than to protect her colonies and commerce on the Gulf of Mexico, and hoped to prevent attack by conciliation; while Madison imagined that Spain might be induced by money to part with her colonies and admit the United States to the Gulf. In this hope he instructed Pinckney,[22] in case he should find that Louisiana had not been retroceded to France, to offer a guaranty of Spanish territory west of the Mississippi as part of the consideration for New Orleans and the Floridas. The offer was made with a degree of cordiality very unlike the similar offer to France, and was pressed by Pinckney so zealously that at last Cevallos evaded his earnestness by a civil equivocation.

“The system adopted by his Majesty,” said he,[23] “not to dispossess himself of any portion of his States, deprives him of the pleasure of assenting to the cessions which the United States wish to obtain by purchase.... The United States can address themselves to the French government to negotiate the acquisition of territories which may suit their interest.”

Cevallos knew that Bonaparte had bound himself formally never to alienate Louisiana, and in referring Pinckney to France he supposed himself safe. Pinckney, on the other hand, prided himself on having helped to prevent France from gaining Florida as well as Louisiana, and was anxious to secure West Florida for his own credit; while he had no idea that Louisiana could be obtained at all.

Yet nearly a week before this note was written Louisiana had become American property. So completely was Godoy deceived, that when April arrived and he saw Spain again about to be dragged into unknown perils, he never divined that he was to be struck in America; his anxieties rose from fear that Spain might be dragged into a new war in Europe, in subservience to France. He could expect to escape such a war only by a quarrel with Napoleon, and he knew that a war with Napoleon was a desperate resource.

In London statesmanship had an easier game, and played it at first simply and coolly. Rufus King watched it with anxious eyes. He wished to escape from the duty of expressing a diplomatic policy which he might not approve, to a Government which had other and heavier tasks than that of listening to his advice or warnings. The British Ministry behaved well to America; for their advices from Thornton led them to hope that the United States would, if properly supported, seize Louisiana and accept war with Bonaparte. “If you can obtain Louisiana,—well!” said Addington to Rufus King;[24] “if not, we ought to prevent its going into the hands of France.”

CHAPTER II.

Monroe arrived in sight of the French coast April 7, 1803; but while he was still on the ocean, Bonaparte without reference to him or his mission, opened his mind to Talleyrand in regard to ceding Louisiana to the United States. The First Consul a few days afterward repeated to his Finance Minister, Barbé Marbois,[25] a part of the conversation with Talleyrand; and his words implied that Talleyrand opposed Bonaparte’s scheme, less because it sacrificed Louisiana than because its true object was not a war with England, but conquest of Germany. “He alone knows my intentions,” said Bonaparte to Marbois. “If I attended to his advice, France would confine her ambition to the left bank of the Rhine, and would make war only to protect the weak States and to prevent any dismemberment of her possessions; but he also admits that the cession of Louisiana is not a dismemberment of France.” In reality, the cession of Louisiana meant the overthrow of Talleyrand’s influence and the failure of those hopes which had led to the coalition of the 18th Brumaire.

Easter Sunday, April 10, 1803, arrived, and Monroe was leaving Havre for Paris, when Bonaparte, after the religious ceremonies of the day at St. Cloud, called to him two of his ministers, of whom Barbé Marbois was one.[26] He wished to explain his intention of selling Louisiana to the United States; and he did so in his peculiar way. He began by expressing the fear that England would seize Louisiana as her first act of war. “I think of ceding it to the United States. I can scarcely say that I cede it to them, for it is not yet in our possession. If, however, I leave the least time to our enemies, I shall only transmit an empty title to those republicans whose friendship I seek. They ask of me only one town in Louisiana; but I already consider the colony as entirely lost; and it appears to me that in the hands of this growing Power it will be more useful to the policy, and even to the commerce, of France than if I should attempt to keep it.”

To this appeal the two ministers replied by giving two opposite opinions. Marbois favored the cession, as the First Consul probably expected him to do; for Marbois was a republican who had learned republicanism in the United States, and whose attachment to that country was secured by marriage to an American wife. His colleague, with equal decision, opposed the scheme. Their arguments were waste of breath. The First Consul said no more, and dismissed them; but the next morning, Monday, April 11, at daybreak, summoning Marbois, he made a short oration of the kind for which he was so famous:[27]—

“Irresolution and deliberation are no longer in season; I renounce Louisiana. It is not only New Orleans that I cede; it is the whole colony, without reserve. I know the price of what I abandon. I have proved the importance I attach to this province, since my first diplomatic act with Spain had the object of recovering it. I renounce it with the greatest regret; to attempt obstinately to retain it would be folly. I direct you to negotiate the affair. Have an interview this very day with Mr. Livingston.”

The order so peremptorily given was instantly carried out; but not by Marbois. Talleyrand, in an interview a few hours afterward, startled Livingston with the new offer.[28]

“M. Talleyrand asked me this day, when pressing the subject, whether we wished to have the whole of Louisiana. I told him no; that our wishes extended only to New Orleans and the Floridas; that the policy of France, however, should dictate (as I had shown in an official note) to give us the country above the River Arkansas, in order to place a barrier between them and Canada. He said that if they gave New Orleans the rest would be of little value, and that he would wish to know ‘what we would give for the whole.’ I told him it was a subject I had not thought of, but that I supposed we should not object to twenty millions [francs], provided our citizens were paid. He told me that this was too low an offer, and that he would be glad if I would reflect upon it and tell him to-morrow. I told him that as Mr. Monroe would be in town in two days, I would delay my further offer until I had the pleasure of introducing him. He added that he did not speak from authority, but that the idea had struck him.”

The suddenness of Bonaparte’s change disconcerted Livingston. For months he had wearied the First Consul with written and verbal arguments, remonstrances, threats,—all intended to prove that there was nothing grasping or ambitious in the American character; that France should invite the Americans to protect Louisiana from the Canadians; that the United States cared nothing for Louisiana, but wanted only West Florida and New Orleans,—“barren sands and sunken marshes,” he said; “a small town built of wood; ... about seven thousand souls;” a territory important to the United States because it contained “the mouths of some of their rivers,” but a mere drain of resources to France.[29] To this rhapsody, repeated day after day for weeks and months, Talleyrand had listened with his imperturbable silence, the stillness of a sceptical mind into which such professions fell meaningless; until he suddenly looked into Livingston’s face and asked: “What will you give for the whole?” Naturally Livingston for a moment lost countenance.

The next day, Tuesday, April 12, Livingston, partly recovered from his surprise, hung about Talleyrand persistently, for his chance of reaping alone the fruit of his labors vanished with every minute that passed. Monroe had reached St. Germain late Monday night, and at one o’clock Tuesday afternoon descended from his postchaise at the door of his Paris hotel.[30] From the moment of his arrival he was sure to seize public attention at home and abroad. Livingston used the interval to make one more effort with Talleyrand:[31]—

“He then thought proper to declare that his proposition was only personal, but still requested me to make an offer; and upon my declining to do so, as I expected Mr. Monroe the next day, he shrugged up his shoulders and changed the conversation. Not willing, however, to lose sight of it, I told him I had been long endeavoring to bring him to some point, but unfortunately without effect; and with that view had written him a note which contained that request.... He told me he would answer my note, but that he must do it evasively, because Louisiana was not theirs. I smiled at this assertion, and told him that I had seen the treaty recognizing it.... He still persisted that they had it in contemplation to obtain it, but had it not.”

An hour or two afterward came a note from Monroe announcing that he would wait upon Livingston in the evening. The two American ministers passed the next day together,[32] examining papers and preparing to act whenever Monroe could be officially presented. They entertained a party at dinner that afternoon in Livingston’s apartments, and while sitting at table Livingston saw Barbé Marbois strolling in the garden outside. Livingston sent to invite Marbois to join the party at table. While coffee was served, Marbois came in and entered into conversation with Livingston, who began at once to tell him of Talleyrand’s “extraordinary conduct.” Marbois hinted that he knew something of the matter, and that Livingston had better come to his house as soon as the dinner company departed. The moment Monroe took leave, Livingston acted on Marbois’s hint, and in a midnight conversation the bargain was practically made. Marbois told a story, largely of his own invention, in regard to the First Consul’s conduct on Easter Sunday, three days before. Bonaparte mentioned fifty million francs as his price for Louisiana; but as Marbois reported the offer to Livingston, Bonaparte said: “Well! you have charge of the Treasury. Let them give you one hundred millions of francs, and pay their own claims, and take the whole country.” The American claims were estimated at about twenty-five millions, and therefore Marbois’s price amounted to at least one hundred and twenty-five million francs.

Yet twenty-four or twenty-five million dollars for the whole west bank of the Mississippi, from the Lake of the Woods to the Gulf of Mexico, and indefinitely westward, was not an extortionate price, especially since New Orleans was thrown into the bargain, and indirect political advantages which could not be valued at less than the cost of a war, whatever it might be. Five million dollars were to be paid in America to American citizens, so that less than twenty millions would come to France. Livingston could hardly have been blamed for closing with Marbois on the spot, especially as his instructions warranted him in offering ten millions for New Orleans and the Floridas alone; but Livingston still professed that he did not want the west bank. “I told him that the United States were anxious to preserve peace with France; that for that reason they wished to remove them to the west side of the Mississippi; that we would be perfectly satisfied with New Orleans and the Floridas, and had no disposition to extend across the river; that of course we would not give any great sum for the purchase.... He then pressed me to name the sum.” After a little more fencing, Marbois dropped at once from one hundred millions to sixty, with estimated claims to the amount of twenty millions more. “I told him that it was vain to ask anything that was so greatly beyond our means; that true policy would dictate to the First Consul not to press such a demand; that he must know it would render the present government unpopular.” The conversation closed by Livingston’s departure at midnight with a final protest: “I told him that I would consult Mr. Monroe, but that neither he nor I could accede to his ideas on the subject.” Then he went home; and sitting down to his desk wrote a long despatch to Madison, to record that without Monroe’s help he had won Louisiana. The letter closed with some reflections:—

“As to the quantum, I have yet made up no opinion. The field open to us is infinitely larger than our instructions contemplated, the revenue increasing, and the land more than adequate to sink the capital, should we even go the sum proposed by Marbois,—nay, I persuade myself that the whole sum may be raised by the sale of the territory west of the Mississippi, with the right of sovereignty, to some Power in Europe whose vicinity we should not fear. I speak now without reflection and without having seen Mr. Monroe, as it was midnight when I left the Treasury Office, and it is now near three o’clock. It is so very important that you should be apprised that a negotiation is actually opened, even before Mr. Monroe has been presented, in order to calm the tumult which the news of war will renew, that I have lost no time in communicating it. We shall do all we can to cheapen the purchase; but my present sentiment is that we shall buy.”

A week was next passed in haggling over the price.[33] Livingston did his utmost to beat Marbois down, but without success. Meanwhile he ran some risk of losing everything; for when Bonaparte offered a favor suitors did well to waste no time in acceptance. A slight weight might have turned the scale; a divulgence of the secret, a protest from Spain, a moment of irritation at Jefferson’s coquetry with England or at the vaporings of the American press, a sudden perception of the disgust which every true Frenchman was sure sooner or later to feel at this squandering of French territory and enterprise,—any remonstrance that should stir the First Consul’s pride or startle his fear of posterity, might have cut short the thread of negotiation. Livingston did not know the secrets of the Tuileries, or he would not have passed time in cheapening the price of his purchase. The voice of opposition was silenced in the French people, but was still so high in Bonaparte’s family as to make the Louisiana scheme an occasion for scenes so violent as to sound like the prelude to a tragedy.

One evening when Talma was to appear in a new rôle, Lucien Bonaparte, coming home to dress for the theatre, found his brother Joseph waiting for him.[34] “Here you are at last!” cried Joseph; “I was afraid you might not come. This is no time for theatre-going; I have news for you that will give you no fancy for amusement. The General wants to sell Louisiana.”

Lucien, proud of having made the treaty which secured the retrocession, was for a moment thunderstruck; then recovering confidence, he said, “Come, now! if he were capable of wishing it, the Chambers would never consent.”

“So he means to do without their consent,” replied Joseph. “This is what he answered me, when I said to him, like you, that the Chambers would not consent. What is more, he added that this sale would supply him the first funds for the war. Do you know that I am beginning to think he is much too fond of war?”

History is not often able to penetrate the private lives of famous men, and catch their words as they were uttered. Although Lucien Bonaparte’s veracity was not greatly superior to that of his brother Napoleon, his story agreed with the known facts. If his imagination here and there filled in the gaps of memory,—if he was embittered and angry when he wrote, and hated his brother Napoleon with Corsican passion, these circumstances did not discredit his story, for he would certainly have told the truth against his brother under no other conditions. The story was not libellous, but Napoleonic; it told nothing new of the First Consul’s character, but it was honorable to Joseph, who proposed to Lucien that they should go together and prevent their brother from committing a fault which would rouse the indignation of France, and endanger his own safety as well as theirs.

The next morning Lucien went to the Tuileries; by his brother’s order he was admitted, and found Napoleon in his bath, the water of which was opaque with mixture of eau de Cologne. They talked for some time on indifferent matters. Lucien was timid, and dared not speak until Joseph came. Then Napoleon announced his decision to sell Louisiana, and invited Lucien to say what he thought of it.

“I flatter myself,” replied Lucien, “that the Chambers will not give their consent.”

“You flatter yourself!” repeated Napoleon in a tone of surprise; then murmuring in a lower voice, “that is precious, in truth!” (c’est précieux, en vérité!)

“And I too flatter myself, as I have already told the First Consul,” cried Joseph.

“And what did I answer?” said Napoleon warmly, glaring from his bath at the two men.

“That you would do without the Chambers.”

“Precisely! That is what I have taken the great liberty to tell Mr. Joseph, and what I now repeat to the Citizen Lucien,—begging him at the same time to give me his opinion about it, without taking into consideration his paternal tenderness for his diplomatic conquest.” Then, not satisfied with irony, he continued in a tone of exasperating contempt: “And now, gentlemen, think of it what you will; but both of you go into mourning about this affair,—you, Lucien, for the sale itself; you, Joseph, because I shall do without the consent of any one whomsoever. Do you understand?”

At this Joseph came close to the bath, and rejoined in a vehement tone: “And you will do well, my dear brother, not to expose your project to parliamentary discussion; for I declare to you that if necessary I will put myself first at the head of the opposition which will not fail to be made against you.”

The First Consul burst into a peal of forced laughter, while Joseph, crimson with anger and almost stammering his words, went on: “Laugh, laugh, laugh, then! I will act up to my promise; and though I am not fond of mounting the tribune, this time you will see me there!”

Napoleon, half rising from the bath, rejoined in a serious tone: “You will have no need to lead the opposition, for I repeat that there will be no debate, for the reason that the project which has not the fortune to meet your approval, conceived by me, negotiated by me, shall be ratified and executed by me alone, do you comprehend?—by me, who laugh at your opposition!”

Hereupon Joseph wholly lost his self-control, and with flashing eyes shouted: “Good! I tell you, General, that you, I, and all of us, if you do what you threaten, may prepare ourselves soon to go and join the poor innocent devils whom you so legally, humanely, and especially with such justice, have transported to Sinnamary.”

At this terrible rejoinder Napoleon half started up, crying out: “You are insolent! I ought—” then threw himself violently back in the bath with a force which sent a mass of perfumed water into Joseph’s flushed face, drenching him and Lucien, who had the wit to quote, in a theatrical tone, the words which Virgil put into the mouth of Neptune reproving the waves,—

“Quos ego....”

Between the water and the wit the three Bonapartes recovered their tempers, while the valet who was present, overcome by fear, fainted and fell on the floor. Joseph went home to change his clothes, while Lucien remained to pass through another scene almost equally amusing. A long conversation followed after the First Consul’s toilet was finished. Napoleon spoke of St. Domingo. “Do you want me to tell you the truth?” said he. “I am to-day more sorry than I like to confess for the expedition to St. Domingo. Our national glory will never come from our marine.” He justified what he called, in jest at Lucien, his “Louisianicide,” by the same reasons he gave to Marbois and Talleyrand, but especially by the necessity of providing funds for the war not yet declared. Lucien combated his arguments as Joseph had done, until at last he reached the same point. “If, like Joseph, I thought that this alienation of Louisiana without the assent of the Chambers might be fatal to me,—to me alone,—I would consent to run all risks in order to prove the devotion you doubt; but it is really too unconstitutional and—”

“Ah, indeed!” burst out Napoleon with another prolonged, forced laugh of derisive anger. “You lay it on handsomely! Unconstitutional is droll from you. Come now, let me alone! How have I hurt your Constitution? Answer!” Lucien replied that the intent to alienate any portion whatever of territory belonging to the Republic without the consent of the Chambers was an unconstitutional project. “In a word, the Constitution—”

“Go about your business!” broke in the guardian of the Constitution and of the national territory. Then he quickly and vehemently went on: “Constitution! unconstitutional! republic! national sovereignty!—big words! great phrases! Do you think yourself still in the club of St. Maximin? We are no longer there, mind that! Ah, it becomes you well, Sir Knight of the Constitution, to talk so to me! You had not the same respect for the Chambers on the 18th Brumaire!”

Nothing exasperated Lucien more than any allusion to the part he took in the coup d’état of the 18th Brumaire, when he betrayed the Chamber over which he presided. He commanded himself for the moment; but when Napoleon went on to say with still more contempt, “I laugh at you and your national representation,” Lucien answered coldly, “I do not laugh at you, Citizen Consul, but I know well what I think about it.”

“Parbleu!” said Napoleon, “I am curious to know what you think of me: say it, quick!”

“I think, Citizen Consul, that having given your oath to the Constitution of the 18th Brumaire into my own hands as President of the Council of Five Hundred, seeing you despise it thus, if I were not your brother I would be your enemy.”

“My enemy! ah, I would advise you! My enemy! That is a trifle strong!” cried Napoleon, advancing as though to strike his younger brother. “You my enemy! I would break you, look, like this box!” And so saying he flung his snuff-box violently on the floor.

In these angry scenes both parties knew that Napoleon’s bravado was not altogether honest. For once, Lucien was in earnest; and had his brother left a few other men in France as determined as he and his friend Bernadotte, the First Consul would have defied public opinion less boldly. Joseph, too, although less obstinate than his brothers, was not easily managed. According to Lucien there were further scenes between them, at one of which Joseph burst into such violence that the First Consul took refuge in Josephine’s room. These stories contained nothing incredible. The sale of Louisiana was the turning-point in Napoleon’s career; no true Frenchman forgave it. A second betrayal of France, it announced to his fellow conspirators that henceforward he alone was to profit by the treason of the 18th Brumaire.

Livingston and Monroe knew nothing of all this; they even depended upon Joseph to help their negotiation. Monroe fell ill and could not act. Over the negotiation of the treaty has always hung a cloud of mystery such as belonged to no other measure of equal importance in American history. No official report showed that the commissioners ever met in formal conference; no protocol of their proceedings, no account of their discussions, no date when their agreement was made, was left on record. Both the treaty itself and the avowals of Livingston gave evidence that at the end all parties acted in haste. If it were not for a private memorandum by Monroe,—not sent to the Government, but preserved among his private papers,—the course of negotiation could not be followed.

A fortnight passed after Monroe’s arrival without advancing matters a step. This period of inaction seems to have been broken by the First Consul. April 23 he drew up a “Projet of a Secret Convention,”[35] which he gave to Marbois and which set forth that to prevent misunderstandings about the matters of discussion mentioned in Articles II. and V. of the Morfontaine treaty, and also to strengthen friendly relations, the French republic was to cede its rights over Louisiana; and “in consequence of the said cession, Louisiana, its territory, and its proper dependencies shall become part of the American Union, and shall form successively one or more States on the terms of the Federal Constitution;” in return the United States were to favor French commerce in Louisiana, and give it all the rights of American commerce, with perpetual entrepôts at six points on the Mississippi, and a corresponding perpetual right of navigation; further, they were to assume all debts due to American citizens under the treaty of Morfontaine; and, finally, were to pay a hundred million francs to France. With this projet Marbois went by appointment, at two o’clock, April 27, to Monroe’s lodgings, where the three gentlemen had an informal meeting, of which no other record is known to exist than Monroe’s memoranda.[36] Monroe himself was too unwell to sit at the table, and reclined on a sofa throughout the discussion. Marbois produced Bonaparte’s projet, and after admitting that it was hard and unreasonable, presented a substitute of his own which he thought the First Consul would accept.

Livingston tried to give precedence to the claims; he wanted to dispose of them first, in case the cession should fail; but after pressing the point as far as he could, he was overruled by Monroe, and Livingston took Marbois’s project for consideration. The two American commissioners passed a day in working over it. Livingston drafted a claims convention, and it was drawn, as he thought, “with particular attention.”[37] Monroe thought differently. “My colleague took Mr. Marbois’s project with him, and brought me one, very loosely drawn, founded on it.”[38] Monroe made a draft of his own which was certainly not creditable to his legal or diplomatic skill, and which began by adopting an oversight contained in Bonaparte’s draft, according to which the cancelled Article II. of the treaty of Morfontaine was made a foundation of the new convention.[39] “We called on Mr. Marbois the 29th, and gave him our project, which was read to him and discussed. We proposed to offer fifty millions to France, and twenty millions on account of her debt to the citizens of the United States, making seventy in the whole.” Marbois replied that he would proceed only on the condition that eighty millions were accepted as the price. Then at last the American commissioners gave way; and with this change Marbois took their projet for reference to the First Consul the next morning.

The 30th of April was taken by Marbois for consultation with the First Consul. May 1 Monroe was presented at the Tuileries, and dined there with Livingston; but Bonaparte said nothing of their business, except that it should be settled. The same evening the two envoys had a final discussion with Marbois. “May 2, we actually signed the treaty and convention for the sixty million francs to France, in the French language; but our copies in English not being made out, we could not sign in our language. They were however prepared, and signed in two or three days afterward. The convention respecting American claims took more time, and was not signed till about the 8th or 9th.” All these documents were antedated to the 30th April.[40]

The first object of remark in this treaty was the absence of any attempt to define the property thus bought and sold. “Louisiana with the same extent that is now in the hands of Spain, and that it had when France possessed it, and such as it should be after the treaties subsequently entered into between Spain and other States,”—these words, taken from Berthier’s original treaty of retrocession, were convenient for France and Spain, whose governments might be supposed to know their own boundaries; but all that the United States government knew upon the subject was that Louisiana, as France possessed it, had included a part of Florida and the whole Ohio Valley as far as the Alleghany Mountains and Lake Erie. The American commissioners at first insisted upon defining the boundaries, and Marbois went to the First Consul with their request. He refused.[41] “If an obscurity did not already exist, it would perhaps be good policy to put one there.” He intentionally concealed the boundary he had himself defined, a knowledge of which would have prevented a long and mortifying dispute. Livingston went to Talleyrand for the orders given by Spain to the Marquis of Somoruelo, by France to Victor and Laussat. “What are the eastern bounds of Louisiana?” asked Livingston. “I do not know,” replied Talleyrand; “you must take it as we received it.” “But what did you mean to take?” urged Livingston. “I do not know,” repeated Talleyrand. “Then you mean that we shall construe it our own way?” “I can give you no direction. You have made a noble bargain for yourselves, and I suppose you will make the most of it,” was the final reply of Talleyrand. Had Livingston known that Victor’s instructions, which began by fixing the boundaries in question, were still in Talleyrand’s desk, the answer would have been the same.

One point alone was fixed,—the Floridas were not included in the sale; this was conceded on both sides. In his first conversation with Marbois, Livingston made a condition that France should aid him in procuring these territories from Spain.[42] “I asked him, in case of purchase, whether they would stipulate that France would never possess the Floridas, and that she would aid us to procure them, and relinquish all right that she might have to them. He told me that she would go thus far.” Several days later, Marbois repeated this assurance to Monroe, saying that the First Consul authorized him, besides offering Louisiana, “to engage his support of our claim to the Floridas with Spain.”[43] Yet when the American commissioners tried to insert this pledge into the treaty, they failed. Bonaparte would give nothing but a verbal promise to use his good offices with Spain.

Besides the failure to dispose of these two points, which were in reality but one, the treaty contained a positive provision, Article III., taken from Bonaparte’s projet, with slight alteration, 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.” On republican principles of the Virginian school, only the States themselves could by a new grant of power authorize such an incorporation. Article III. violated Madison’s instructions, which forbade the promise.[44] “To incorporate the inhabitants of the hereby-ceded territory with the citizens of the United States,” said these instructions, “being a provision which cannot now be made, it is to be expected, from the character and policy of the United States, that such incorporation will take place without unnecessary delay.” The provision, which Madison said could not be made, was nevertheless made by Livingston and Monroe.

Embarrassing as these omissions or provisions were, they proved not so much that the treaty was carelessly drawn, as that the American negotiators were ready to stipulate whatever was needed for their purpose. Other portions of the treaty were not to be defended on that excuse. The price stipulated for Louisiana was sixty million francs, in the form of United States six-per-cent bonds, representing a capital of $11,250,000. Besides this sum of eleven and a quarter million dollars, the United States government was to assume and pay the debts due by France to American citizens, estimated at twenty million francs, or, at the same rate of exchange, $3,750,000,—making fifteen million dollars in all as the price to be paid. Livingston himself drew the claims convention with what he supposed to be particular attention; but it was modified by Monroe, and still further altered by Marbois. “The moment was critical; the question of peace or war was in the balance; and it was important to come to a conclusion before either scale preponderated. I considered the convention as a trifle compared with the other great object,” avowed Livingston; “and as it had already delayed us many days, I was ready to take it under any form.”[45] The claims convention was not signed till nearly a week after the signature of the treaty of cession. The form in which Livingston took it showed that neither he nor Monroe could have given careful attention to the subject; for not only did the preamble declare that the parties were acting in compliance with Article II. of the treaty of Morfontaine,—an Article which had been formally struck out by the Senate, cancelled by Bonaparte, and the omission ratified by the Senate and President since Livingston’s residence at Paris; not only did the claims specified fail to embrace all the cases provided for by the treaty of 1800, which this convention was framed to execute; not only were the specifications arbitrary, and even self-contradictory,—but the estimate of twenty million francs was far below the amount of the claims admitted in principle; no rule of apportionment was provided, and, worst of all, the right of final decision in every case was reserved to the French government. The meaning of this last provision might be guessed from the notorious corruption of Talleyrand and his band of confidential or secret agents.

Doubtless Livingston was right in securing his main object at any cost; but could he have given more time to his claims convention, he would perhaps have saved his own reputation and that of his successor from much stain, although he might have gained no more than he did for his Government. In the two conventions of 1800 and 1803 the United States obtained two objects of the utmost value,—by the first, a release from treaty obligations which, if carried out, required war with England; by the second, the whole west bank of the Mississippi River and the island of New Orleans, with all the incidental advantages attached. In return for these gains the United States government promised not to press the claims of its citizens against the French government beyond the amount of three million seven hundred and fifty thousand dollars, which was one fourth part of the price paid for Louisiana. The legitimate claims of American citizens against France amounted to many million dollars; in the result, certain favored claimants received three million seven hundred and fifty thousand dollars less their expenses, which reduced the sum about one half.

The impression of diplomatic oversight was deepened by the scandals which grew out of the distribution of the three million seven hundred and fifty thousand dollars which the favored claimants were to receive. Livingston’s diplomatic career was poisoned by quarrels over this money.[46] That the French government acted with little concealment of venality was no matter of surprise; but that Livingston should be officially charged by his own associates with favoritism and corruption,—“imbecility of mind and a childish vanity, mixed with a considerable portion of duplicity,”—injured the credit of his Government; and the matter was not bettered when he threw back similar charges on the Board of Commissioners, or when at last General Armstrong, coming to succeed him, was discredited by similar suspicions. Considering how small was the amount of money distributed, the scandal and corruption surpassed any other experience of the national government.

Livingston’s troubles did not end there. He could afford to suffer some deduction from his triumph; for he had achieved the greatest diplomatic success recorded in American history. Neither Franklin, Jay, Gallatin, nor any other American diplomatist was so fortunate as Livingston for the immensity of his results compared with the paucity of his means. Other treaties of immense consequence have been signed by American representatives,—the treaty of alliance with France; the treaty of peace with England which recognized independence; the treaty of Ghent; the treaty which ceded Florida; the Ashburton treaty; the treaty of Guadeloupe Hidalgo,—but in none of these did the United States government get so much for so little. The annexation of Louisiana was an event so portentous as to defy measurement; it gave a new face to politics, and ranked in historical importance next to the Declaration of Independence and the adoption of the Constitution,—events of which it was the logical outcome; but as a matter of diplomacy it was unparalleled, because it cost almost nothing.

The scandalous failure of the claims convention was a trifling drawback to the enjoyment of this unique success; but the success was further embittered by the conviction that America would give the honor to Monroe. Virginia was all-powerful. Livingston was unpopular, distrusted, not liked even by Madison; while Monroe, for political reasons, had been made a prominent figure. Public attention had been artificially drawn upon his mission; and in consequence, Monroe’s name grew great, so as almost to overshadow that of Madison, while Livingston heard few voices proclaiming his services to the country. In a few weeks Livingston began to see his laurels wither, and was forced to claim the credit that he thought his due. Monroe treated him less generously than he might have done, considering that Monroe gained the political profit of the success.[47] Acknowledging that his own share was next to nothing in the negotiation, he still encouraged the idea that Livingston’s influence had been equally null. This view was doubtless correct, but if universally applied in history, would deprive many great men of their laurels. Monroe’s criticism helped only to diminish the political chances of a possible rival who had no Virginia behind him to press his preferment and cover his mistakes.

CHAPTER III.

When Marbois took the treaty to the First Consul, Bonaparte listened to its provisions with lively interest; and on hearing that twenty millions were to be employed in paying claims,—a use of money which he much disliked,—he broke out: “Who authorized you to dispose of the money of the State? I want to have these twenty millions paid into the Treasury. The claimants’ rights cannot come before our own.”[48] His own projet had required the Americans to assume these claims,—which was, in fact, the better plan. Marbois’s alteration turned the claims into a French job. Perhaps Bonaparte was not averse to this; for when Marbois reminded him that he had himself fixed the price at fifty millions, whereas the treaty gave him sixty, and settled the claims besides,—“It is true,” he said; “the negotiation leaves me nothing to wish. Sixty millions for an occupation that will not perhaps last a day! I want France to have the good of this unexpected capital, and to employ it in works of use to her marine.” On the spot he dictated a decree for the construction of five canals. This excellent use of the money seemed inconsistent with Lucien’s remark that it was wanted for war,—but the canals were never built or begun; and the sixty millions were spent, to the last centime, in preparations for an impracticable descent on England.

Yet money was not the inducement which caused Bonaparte to sell Louisiana to the United States. The Prince of Peace would at any time have given more money, and would perhaps have been willing, as he certainly was able, to pay it from his private means rather than allow the United States to own Louisiana. In other respects, the sale needed explanation, since it contradicted the First Consul’s political theories and prejudices. He had but two rooted hatreds. The deeper and fiercer of these was directed against the republic,—the organized democracy, and what he called ideology, which Americans knew in practice as Jeffersonian theories; the second and steadier was his hatred of England as the chief barrier to his military omnipotence. The cession of Louisiana to the United States contradicted both these passions, making the ideologists supreme in the New World, and necessarily tending in the end to strengthen England in the Old. Bonaparte had been taught by Talleyrand that America and England, whatever might be their mutual jealousies, hatreds, or wars, were socially and economically one and indivisible. Barely ten years after the Revolutionary War had closed, and at a time when the wounds it made were still raw, Talleyrand remarked: “In every part of America through which I have travelled, I have not found a single Englishman who did not feel himself to be an American; not a single Frenchman who did not find himself a stranger.” Bonaparte knew that England held the monopoly of American trade, and that America held the monopoly of democratic principles; yet he did an act which was certain to extend British trade and fortify democratic principles.

This contradiction was due to no change in Bonaparte’s opinions; these remained what they were. At the moment when talking to Marbois about “those republicans whose friendship I seek,” he was calculating on the chance that his gift would one day prove their ruin. “Perhaps it will also be objected to me,” he said,[49] “that the Americans may in two or three centuries be found too powerful for Europe; but my foresight does not embrace such remote fears. Besides, we may hereafter expect rivalries among the members of the Union. The confederations that are called perpetual last only till one of the contracting parties finds it to its interest to break them.... It is to prevent the danger to which the colossal power of England exposes us that I would provide a remedy.” The colossal power of England depended on her navy, her colonies, and her manufactures. Bonaparte proposed to overthrow it by shattering beyond repair the colonial system of France and Spain; and even this step was reasonable compared with what followed. He expected to check the power of England by giving Louisiana to the United States,—a measure which opened a new world to English commerce and manufactures, and riveted England’s grasp on the whole American continent, inviting her to do what she afterward did,—join hands with the United States in revolutionizing Mexico and South America in her own interests. As though to render these results certain, after extending this invitation to English commerce and American democracy, Bonaparte next invited a war with England, which was certain to drive from the ocean every ship belonging to France or Spain,—a war which left even the United States at England’s mercy.

Every detail that could explain Bonaparte’s motives becomes interesting in a matter so important to American history. Certain points were clear. Talleyrand’s colonial and peace policy failed. Resting on the maintenance of order in Europe and the extension of French power in rivalry with the United States and England in America, it was a statesmanlike and honorable scheme, which claimed for the Latin races what Louis XIV. tried to gain for them; but it had the disadvantage of rousing hostility in the United States, and of throwing them into the arms of England. For this result Talleyrand was prepared. He knew that he could keep peace with England, and that the United States alone could not prevent him from carrying out his policy. Indeed, Madison in his conversation with Pichon invited such action, and Jefferson had no means of resisting it; but from the moment when St. Domingo prevented the success of the scheme, and Bonaparte gained an excuse for following his own military instincts, the hostility of the United States became troublesome. President Jefferson had chiefly reckoned on this possibility as his hope of getting Louisiana; and slight as the chance seemed, he was right.

This was, in effect, the explanation which Talleyrand officially wrote to his colleague Decrès, communicating a copy of the treaty, and requesting him to take the necessary measures for executing it.[50]

“The wish to spare the North American continent the war with which it was threatened, to dispose of different points in dispute between France and the United States of America, and to remove all the new causes of misunderstanding which competition and neighborhood might have produced between them; the position of the French colonies; their want of men, cultivation, and assistance; in fine, the empire of circumstances, foresight of the future, and the intention to compensate by an advantageous arrangement for the inevitable loss of a country which war was going to put at the mercy of another nation,—all these motives have determined the Government to pass to the United States the rights it had acquired from Spain over the sovereignty and property of Louisiana.”

Talleyrand’s words were always happily chosen, whether to reveal or to conceal his thoughts. This display of reasons for an act which he probably preferred to condemn, might explain some of the First Consul’s motives in ceding Louisiana to the United States; but it only confused another more perplexing question. Louisiana did not belong to France, but to Spain. The retrocession had never been completed; the territory was still possessed, garrisoned, and administered by Don Carlos IV.; until actual delivery was made, Spain might yet require that the conditions of retrocession should be rigorously performed. Her right in the present instance was complete, because she held as one of the conditions precedent to the retrocession a solemn pledge from the First Consul never to alienate Louisiana. The sale of Louisiana to the United States was trebly invalid: if it were French property, Bonaparte could not constitutionally alienate it without the consent of the Chambers; if it were Spanish property, he could not alienate it at all; if Spain had a right of reclamation, his sale was worthless. In spite of all these objections the alienation took place; and the motives which led the First Consul to conciliate America by violating the Constitution of France were perhaps as simple as he represented them to be; but no one explained what motives led Bonaparte to break his word of honor and betray the monarchy of Spain.

Bonaparte’s evident inclination toward a new war with England greatly distressed King Charles IV. Treaty stipulations bound Spain either to take part with France in the war, or to pay a heavy annual subsidy; and Spain was so weak that either alternative seemed fatal. The Prince of Peace would have liked to join England or Austria in a coalition against Bonaparte; but he knew that to this last desperate measure King Charles would never assent until Bonaparte’s hand was actually on his crown; for no one could reasonably doubt that within a year after Spain should declare an unsuccessful war on France, the whole picturesque Spanish court—not only Don Carlos IV. himself and Queen Luisa, but also the Prince of Peace, Don Pedro Cevallos, the Infant Don Ferdinand, and the train of courtiers who thronged La Granja and the Escorial—would be wandering in exile or wearing out their lives in captivity. To increase the complication, the young King of Etruria died May 27, 1803, leaving an infant seated upon the frail throne which was sure soon to disappear at the bidding of some military order countersigned by Berthier.

In the midst of such anxieties, Godoy heard a public rumor that Bonaparte had sold Louisiana to the United States; and he felt it as the death-knell of the Spanish empire. Between the energy of the American democracy and the violence of Napoleon whom no oath bound, Spain could hope for no escape. From New Orleans to Vera Cruz was but a step; from Bayonne to Cadiz a winter campaign of some five or six hundred miles. Yet Godoy would probably have risked everything, and would have thrown Spain into England’s hands, had he been able to control the King and Queen, over whom Bonaparte exercised the influence of a master. On learning the sale of Louisiana, the Spanish government used language almost equivalent to a rupture with France. The Spanish minister at Paris was ordered to remonstrate in the strongest terms against the step which the First Consul had taken behind the back of the King his ally.[51]

“This alienation,” wrote the Chevalier d’Azara to Talleyrand, “not only deranges from top to bottom the whole colonial system of Spain, and even of Europe, but is directly opposed to the compacts and formal stipulations agreed upon between France and Spain, and to the terms of the cession in the treaty of Tuscany; and the King my master brought himself to give up the colony only on condition that it should at no time, under no pretext, and in no manner, be alienated or ceded to any other Power.”

Then, after reciting the words of Gouvion St.-Cyr’s pledge, the note continued:—

“It is impossible to conceive more frankness or loyalty than the King has put into his conduct toward France throughout this affair. His Majesty had therefore the right to expect as much on the part of his ally, but unhappily finds himself deceived in his hopes by the sale of the said colony. Yet trusting always in the straightforwardness and justice of the First Consul, he has ordered me to make this representation, and to protest against the alienation, hoping that it will be revoked, as manifestly contrary to the treaties and to the most solemn anterior promises.”

Not stopping there, the note also insisted that Tuscany should be evacuated by the French troops, who were not needed, and had become an intolerable burden, so that the country was reduced to the utmost misery. Next, King Charles demanded that Parma and Piacenza should be surrendered to the King of Etruria, to whom they belonged as the heir of the late Duke of Parma. Finally, the note closed with a complaint even more grave in substance than any of the rest:—

“The King my master could have wished also a little more friendly frankness in communicating the negotiations with England, and especially in regard to the dispositions of the Northern courts, guarantors of the treaty of Amiens; but as this affair belongs to negotiations of another kind, the undersigned abstains for the moment from entering into them, reserving the right to do so on a better occasion.”

Beurnonville, the French minister at Madrid, tried to soothe or silence the complaints of Cevallos; but found himself only silenced in return. The views of the Spanish secretary were energetic, precise, and not to be met by argument.[52] “I have not been able to bring M. Cevallos to any moderate, conciliatory, or even calm expression,” wrote Beurnonville to Talleyrand; “he has persistently shown himself inaccessible to all persuasion.” The Prince of Peace was no more manageable than Cevallos: “While substituting a soft and pliant tone for the sharpest expressions, and presenting under the appearance of regret what had been advanced to me with the bitterness of reproach, the difference between the Prince’s conduct and that of M. Cevallos is one only in words.” Both of them said, what was quite true, that the United States would not have objected to the continued possession of Louisiana by Spain, and that France had greatly exaggerated the dispute about the entrepôt.

“The whole matter reduces itself to a blunder (gaucherie) of the Intendant,” said Cevallos; “it has been finally explained to Mr. Jefferson, and friendship is restored. On both sides there has been irritation, but not a shadow of aggression; and from the moment of coming to an understanding, both parties see that they are at bottom of one mind, and mutually very well disposed toward each other. Moreover, it is quite gratuitous to assume that Louisiana is so easy to take in the event of a war, either by the Americans or by the English. The first have only militia,—very considerable, it is true, but few troops of the line; while Louisiana, at least for the moment, has ten thousand militia-men, and a body of three thousand five hundred regular troops. As for the English, they cannot seriously have views on a province which is impregnable to them; and all things considered, it would be no great calamity if they should take it. The United States, having a much firmer hold on the American continent, should they take a new enlargement, would end by becoming formidable, and would one day disturb the Spanish possessions. As for the debts due to Americans, Spain has still more claim to an arrangement of that kind; and in any case the King, as Bonaparte must know, would have gladly discharged all the debts contracted by France, and perhaps even a large instalment of the American claim, in order to recover an old domain of the crown. Finally, the intention which led the King to give his consent to the exchange of Louisiana was completely deceived. This intention had been to interpose a strong dyke between the Spanish colonies and the American possessions; now, on the contrary, the doors of Mexico are to stay open to them.”

To these allegations, which Beurnonville called “insincere, weak, and ill-timed,” Cevallos added a piece of evidence which, strangely enough, was altogether new to the French minister, and reduced him to confusion: it was Gouvion St.-Cyr’s letter, pledging the First Consul never to alienate Louisiana.

When Beurnonville’s despatch narrating these interviews reached Paris, it stung Bonaparte to the quick, and called from him one of the angry avowals with which he sometimes revealed a part of the motives that influenced his strange mind. Talleyrand wrote back to Beurnonville, June 22, a letter which bore the mark of the First Consul’s hand.

“In one of my last letters,” he began,[53] “I made known to you the motives which determined the Government to give up Louisiana to the United States. You will not conceal from the Court of Madrid that one of the causes which had most influence on this determination was discontent at learning that Spain, after having promised to sustain the measures taken by the Intendant of New Orleans, had nevertheless formally revoked them. These measures would have tended to free the capital of Louisiana from subjection to a right of deposit which was becoming a source of bickerings between the Louisianians and Americans. We should have afterward assigned to the United States, in conformity to their treaty with Spain, another place of deposit, less troublesome to the colony and less injurious to its commerce; but Spain put to flight all these hopes by confirming the privileges of the Americans at New Orleans,—thus granting them definitively local advantages which had been at first only temporary. The French government, which had reason to count on the contrary assurance given in this regard by that of Spain, had a right to feel surprise at this determination; and seeing no way of reconciling it with the commercial advantages of the colony and with a long peace between the colony and its neighbors, took the only course which actual circumstances and wise prevision could suggest.”

These assertions contained no more truth than those which Cevallos had answered. Spain had not promised to sustain the Intendant, nor had she revoked the Intendant’s measures after, but before, the imagined promise; she had not confirmed the American privileges at New Orleans, but had expressly reserved them for future treatment. On the other hand, the restoration of the deposit was not only reconcilable with peace between Louisiana and the United States, but the whole world knew that the risk of war rose from the threat of disturbing the right of deposit. The idea that the colony had become less valuable on this account was new. France had begged for the colony with its American privileges, and meaning to risk the chances of American hostility; but if these privileges were the cause of selling the colony to the Americans, and if, as Talleyrand implied, France could and would have held Louisiana if the right of deposit at New Orleans had been abolished and the Americans restricted to some other spot on the river-bank, fear of England was not, as had been previously alleged, the cause of the sale. Finally, if the act of Spain made the colony worthless, why was Spain deprived of the chance to buy it back?

The answer was evident. The reason why Bonaparte did not keep his word to Don Carlos IV. was that he looked on Spain as his own property, and on himself as representing her sovereignty. The reasons for which he refused to Spain the chance to redeem the colony, were probably far more complicated. The only obvious explanation, assuming that he still remembered his pledge, was a wish to punish Spain.

After all these questions were asked, one problem still remained. Bonaparte had reasons for not returning the colony to Spain; he had reasons, too, for giving it to the United States,—but why did he alienate the territory from France? Fear of England was not the true cause. He had not to learn how to reconquer Louisiana on the Danube and the Po. At one time or another Great Britain had captured nearly all the French colonies in the New World, and had been forced not only to disgorge conquests, but to abandon possessions; until of the three great European Powers in America, England was weakest. Any attempt to regain old ascendency by conquering Louisiana would have thrown the United States into the hands of France; and had Bonaparte anticipated such an act, he should have helped it. That Great Britain should waste strength in conquering Louisiana in order to give it to the United States, was an idea not to be gravely argued. Jefferson might, indeed, be driven into an English alliance in order to take Louisiana by force from France or Spain; but this danger was slight in itself, and might have been removed by the simple measure of selling only the island of New Orleans, and by retaining the west bank, which Jefferson was ready to guarantee. This was the American plan; and the President offered for New Orleans alone about half the price he paid for all Louisiana.[54] Still, Bonaparte forced the west bank on Livingston. Every diplomatic object would have been gained by accepting Jefferson’s projet of a treaty, and signing it without the change of a word. Spain would have been still in some degree protected; England would have been tempted to commit the mistake of conquering the retained territory, and thereby the United States would have been held in check; the United States would have gained all the stimulus their ambition could require for many years to come; and what was more important to Bonaparte, France could not justly say that he had illegally and ignobly sold national territory except for a sufficient and national object.

The real reasons which induced Bonaparte to alienate the territory from France remained hidden in the mysterious processes of his mind. Perhaps he could not himself have given the true explanation of his act. Anger with Spain and Godoy had a share in it, as he avowed through Talleyrand’s letter of June 22; disgust for the sacrifices he had made, and impatience to begin his new campaigns on the Rhine,—possibly a wish to show Talleyrand that his policy could never be revived, and that he had no choice but to follow into Germany,—had still more to do with the act. Yet it is also reasonable to believe that the depths of his nature concealed a wish to hide forever the monument of a defeat. As he would have liked to blot Corsica, Egypt, and St. Domingo from the map, and wipe from human memory the record of his failures, he may have taken pleasure in flinging Louisiana far off, and burying it forever from the sight of France in the bosom of the only government which could absorb and conceal it.

For reasons of his own, which belonged rather to military and European than to American history, Bonaparte preferred to deal with Germany before crossing the Pyrenees; and he knew that meanwhile Spain could not escape. Godoy on his side could neither drag King Charles into a war with France, nor could he provide the means of carrying on such a war with success. Where strong nations like Austria, Russia, and Prussia were forced to crouch before Bonaparte, and even England would have been glad to accept tolerable terms, Spain could not challenge attack. The violent anger that followed the sale of Louisiana and the rupture of the peace of Amiens soon subsided. Bonaparte, aware that he had outraged the rights of Spain, became moderate. Anxious to prevent her from committing any act of desperation, he did not require her to take part in the war, but even allowed her stipulated subsidies to run in arrears; and although he might not perhaps regret his sale of Louisiana to the United States, he felt that he had gone too far in shaking the colonial system. At the moment when Cevallos made his bitterest complaints, Bonaparte was least disposed to resent them by war. Both parties knew that so far as Louisiana was concerned, the act was done and could not be undone; that France was bound to carry out her pledge, or the United States would take possession of Louisiana without her aid. Bonaparte was willing to go far in the way of conciliation, if Spain would consent to withdraw her protest.

Of this the American negotiators knew little. Through such complications, of which Bonaparte alone understood the secret, the Americans moved more or less blindly, not knowing enemies from friends. The only public man who seemed ever to understand Napoleon’s methods was Pozzo di Borgo, whose ways of thought belonged to the island society in which both had grown to manhood; and Monroe was not skilled in the diplomacy of Pozzo, or even of Godoy. Throughout life, Monroe was greatly under the influence of other men. He came to Paris almost a stranger to its new society, for his only relations of friendship had been with the republicans, most of whom Bonaparte had sent to Cayenne. He found Livingston master of the situation, and wisely interfered in no way with what Livingston did. The treaty was no sooner signed than he showed his readiness to follow Livingston further, without regard to embarrassments which might result.

When Livingston set his name to the treaty of cession, May 2, 1803, he was aware of the immense importance of the act. He rose and shook hands with Monroe and Marbois. “We have lived long,” said he; “but this is the noblest work of our lives.” This was said by the man who in the Continental Congress had been a member of the committee appointed to draft the Declaration of Independence; and it was said to Monroe, who had been assured only three months before, by President Jefferson of the grandeur of his destinies in words he could hardly have forgotten:[55] “Some men are born for the public. Nature, by fitting them for the service of the human race on a broad scale, has stamped them with the evidences of her destination and their duty.” Monroe was born for the public, and knew what destiny lay before him; while in Livingston’s mind New York had thenceforward a candidate for the Presidency whose claims were better than Monroe’s. In the cup of triumph of which these two men then drank deep, was yet one drop of acid. They had been sent to buy the Floridas and New Orleans. They had bought New Orleans; but instead of Florida, so much wanted by the Southern people, they had paid ten or twelve million dollars for the west bank of the Mississippi. The negotiators were annoyed to think that having been sent to buy the east bank of the Mississippi, they had bought the west bank instead; that the Floridas were not a part of their purchase. Livingston especially felt the disappointment, and looked about him for some way to retrieve it.

Hardly was the treaty signed, when Livingston found what he sought. He discovered that France had actually bought West Florida without knowing it, and had sold it to the United States without being paid for it. This theory, which seemed at first sight preposterous, became a fixed idea in Livingston’s mind. He knew that West Florida had not been included by Spain in the retrocession, but that on the contrary Charles IV. had repeatedly, obstinately, and almost publicly rejected Bonaparte’s tempting bids for that province. Livingston’s own argument for the cession of Louisiana had chiefly rested on this knowledge, and on the theory that without Mobile New Orleans was worthless. He recounted this to Madison in the same letter which announced Talleyrand’s offer to sell:[56]—

“I have used every exertion with the Spanish Ambassador and Lord Whitworth to prevent the transfer of the Floridas, ... and unless they [the French] get Florida, I have convinced them that Louisiana is worth little.”

In the preceding year one of the French ministers had applied to Livingston “to know what we understand in America by Louisiana;” and Livingston’s answer was on record in the State Department at Washington:[57] “Since the possession of the Floridas by Britain and the treaty of 1762, I think there can be no doubt as to the precise meaning of the terms.” He had himself drafted an article which he tried to insert in Marbois’s projet, pledging the First Consul to interpose his good offices with the King of Spain to obtain the country east of the Mississippi. As late as May 12, Livingston wrote to Madison:[58] “I am satisfied that ... if they [the French] could have concluded with Spain, we should also have had West Florida.” In his next letter, only a week afterward, he insisted that West Florida was his:[59]—

“Now, sir, the sum of this business is to recommend to you in the strongest terms, after having obtained the possession that the French commissary will give you, to insist upon this as a part of your right, and to take possession at all events to the River Perdido. I pledge myself that your right is good.”

The reasoning on which he rested this change of opinion was in substance the following: France had, in early days, owned nearly all the North American continent, and her province of Louisiana had then included Ohio and the watercourses between the Lakes and the Gulf, as well as West Florida, or a part of it. This possession lasted until the treaty of peace, Nov. 3, 1762, when France ceded to England not only Canada, but also Florida and all other possessions east of the Mississippi, except the Island of New Orleans. Then West Florida by treaty first received its modern boundary at the Iberville. On the same day France further ceded to Spain the Island of New Orleans and all Louisiana west of the Mississippi. Not a foot of the vast French possessions on the continent of North America remained in the hands of the King of France; they were divided between England and Spain.

The retrocession of 1800 was made on the understanding that it referred to this cession of 1762. The province of Louisiana which had been ceded was retro-ceded, with its treaty-boundary at the Iberville. Livingston knew that the understanding between France and Spain was complete; yet on examination he found that it had not been expressed in words so clearly but that these words could be made to bear a different meaning. Louisiana was retroceded, he perceived, “with the same extent that it now has in the hands of Spain, and that it had when France possessed it, and such as it should be according to the treaties subsequently entered into between Spain and other States.” When France possessed Louisiana it included Ohio and West Florida: no one could deny that West Florida was in the hands of Spain; therefore Bonaparte, in the absence of negative proof, might have claimed West Florida, if he had been acute enough to know his own rights, or willing to offend Spain,—and as all Bonaparte’s rights were vested in the United States, President Jefferson was at liberty to avail himself of them.

The ingenuity of Livingston’s idea was not to be disputed; and as a ground for a war of conquest it was as good as some of the claims which Bonaparte made the world respect. As a diplomatic weapon, backed as Napoleon would have backed it by a hundred thousand soldiers, it was as effective an instrument as though it had every attribute of morality and good faith; and all it wanted, as against Spain, was the approval of Bonaparte. Livingston hoped that after the proof of friendship which Bonaparte had already given in selling Louisiana to the United States, he might without insuperable difficulty be induced to grant this favor. Both Marbois and Talleyrand, under the First Consul’s express orders, led him on. Marbois did not deny that Mobile might lie in Louisiana, and Talleyrand positively denied knowledge that Laussat’s instructions contained a definition of boundaries. Bonaparte stood behind both these agents, telling them that if an obscurity did not exist about the boundary they should make one. Talleyrand went so far as to encourage the pretensions which Livingston hinted: “You have made a noble bargain for yourselves,” said he, “and I suppose you will make the most of it.” This was said at the time when Bonaparte was still intent on punishing Spain.

Livingston found no difficulty in convincing Monroe that they had bought Florida as well as Louisiana.[60]

“We consider ourselves so strongly founded in this conclusion, that we are of opinion the United States should act on it in all the measures relative to Louisiana in the same manner as if West Florida was comprised within the Island of New Orleans, or lay to the west of the River Iberville.”

Livingston expected that “a little force,”[61] as he expressed himself, might be necessary.

“After the explanations that have been given here, you need apprehend nothing from a decisive measure; your minister here and at Madrid can support your claim, and the time is peculiarly favorable to enable you to do it without the smallest risk at home.... The moment is so favorable for taking possession of that country that I hope it has not been neglected, even though a little force should be necessary to effect it. Your minister must find the means to justify it.”

A little violence added to a little diplomacy would answer the purpose. To use the words which “Aristides” Van Ness was soon to utter with striking effect, the United States ministers to France “practised with unlimited success upon the Livingston maxim,—

‘Rem facias, rem

Si possis recte; si non, quocunque modo, REM.’”

CHAPTER IV.

In the excitement of this rapid and half-understood foreign drama, domestic affairs seemed tame to the American people, who were busied only with the routine of daily life. They had set their democratic house in order. So short and easy was the task, that the work of a single year finished it. When the President was about to meet Congress for the second time, he had no new measures to offer.[62] “The path we have to pursue is so quiet that we have nothing scarcely to propose to our legislature.” The session was too short for severe labor. A quorum was not made until the middle of December, 1802; the Seventh Congress expired March 4, 1803. Of these ten weeks, a large part was consumed in discussions of Morales’s proclamation and Bonaparte’s scheme of colonizing Louisiana.

On one plea the ruling party relied as an excuse for inactivity and as a defence against attack. Their enemies had said and believed that the democrats possessed neither virtue nor ability enough to carry on the government; but after eighteen months of trial, as the year 1803 began, the most severe Federalist could not with truth assert that the country had yet suffered in material welfare from the change. Although the peace in Europe, after October, 1801, checked the shipping interests of America, and although France and Spain, returning to the strictness of their colonial system, drove the American flag from their harbors in the Antilles, yet Gallatin at the close of the first year of peace was able to tell Congress[63] that the customs revenue, which he had estimated twelve months before at $9,500,000, had brought into the Treasury $12,280,000, or much more than had ever before been realized in a single year from all sources of revenue united. That the Secretary of the Treasury should miscalculate by one third the product of his own taxes was strange; but Gallatin liked to measure the future, not by a probable mean, but by its lowest possible extreme, and his chief aim was to check extravagance in appropriations for objects which he thought bad. His caution increased the popular effect of his success. Opposition became ridiculous when it persisted in grumbling at a system which, beginning with a hazardous reduction of taxes, brought in a single year an immense increase in revenue. The details of Gallatin’s finance fretted the Federalists without helping them.

The Federalists were equally unlucky in finding other domestic grievances. The removals from office did not shock the majority. The Judiciary was not again molested. The overwhelming superiority of the democrats was increased by the admission of Ohio, Nov. 29, 1802. No man of sense could deny that the people were better satisfied with their new Administration than they ever had been with the old. Loudly as New England grumbled, the Federalists even there steadily declined in relative strength; while elsewhere an organized body of opposition to the national government hardly existed. From New York to Savannah, no one complained of being forced to work for national objects; South Carolina as well as Virginia was pleased with the power she helped to sway.

Here and there might be found districts in which Federalism tried to hold its own; but the Federalism of Delaware and Maryland was not dangerous, and even in Delaware the Federalist champion Bayard was beaten by Cæsar A. Rodney in his contest for the House, and was driven to take refuge in the Senate. Pennsylvania, New York, Virginia, and North Carolina were nearly unanimous; and beyond the mountains democracy had its own way without the trouble of a discussion. Federalism was already an old-fashioned thing; a subject of ridicule to people who had no faith in forms; a half-way house between the European past and the American future. The mass of Americans had become democratic in thought as well as act; not even another political revolution could undo what had been done. As a democrat, Jefferson’s social success was sweeping and final; but he was more than a democrat,—and in his other character, as a Virginia republican of the State-rights school, he was not equally successful.

In the short session of 1802–1803 many signs proved that the revolution of 1800 had spent its force, and that a reaction was at hand. Congress showed no eagerness to adopt the President’s new economies, and dismissed, with silence almost contemptuous, his scheme for building at Washington a large dry-dock in which the navy should be stored for safety and saving. The mint was continued by law for another five years, and twenty thousand dollars were quietly appropriated for its support. Instead of reducing the navy, Congress decided to build four sixteen-gun brigs and fifteen gunboats, and appropriated ninety-six thousand dollars for the brigs alone. The appropriation of two millions as a first instalment toward paying for New Orleans and Florida was another and a longer stride in the old Federalist path of confidence in the Executive and liberality for national objects. The expenditure for 1802, excluding interest on debt, was $3,737,000. Never afterward in United States history did the annual expenditure fall below four millions. The navy, in 1802, cost $915,000; never afterward did it cost less than a million.

The reaction toward Federalist practices was more marked in the attitude of the Executive than in that of Congress. If Jefferson’s favorite phrase was true,—that the Federalist differed from the Republican only in the shade more or less of power to be given the Executive,—it was hard to see how any President could be more Federalist than Jefferson himself. A resolution to commit the nation without its knowledge to an indissoluble British alliance, was more than Washington would have dared take; yet this step was taken by the President, and was sustained by Madison, Gallatin, and Robert Smith as fairly within the limits of the Constitution. In regard to another stretch of the treaty-making power, they felt with reason the gravest doubts. When the President and Cabinet decided early in January, 1803, to send Monroe with two million dollars to buy New Orleans and Florida, a question was instantly raised as to the form in which such a purchase could be constitutionally made. Attorney-General Lincoln wished to frame the treaty or convention in such language as to make France appear not as adding new territory to the United States, but as extending already existing territory by an alteration of its boundary. He urged this idea upon the President in a letter written the day of Monroe’s nomination to the Senate.[64]

“If the opinion is correct,” said he, “that the general government when formed was predicated on the then existing United States, and such as could grow out of them, and out of them only; and that its authority is constitutionally limited to the people composing the several political State societies in that Union, and such as might be formed out of them,—would not a direct independent purchase be extending the executive power farther, and be more alarming, and improvable by the opposition and the Eastern States, than the proposed indirect mode?”

Jefferson sent this letter to Gallatin, who treated it without favor.[65]

“If the acquisition of territory is not warranted by the Constitution,” said he, “it is not more legal to acquire for one State than for the United States.... What could, on his construction, prevent the President and Senate, by treaty, annexing Cuba to Massachusetts, or Bengal to Rhode Island, if ever the acquirement of colonies should become a favorite object with governments, and colonies should be acquired? But does any constitutional objection really exist?... To me it would appear, (1) that the United States, as a nation, have an inherent right to acquire territory; (2) that whenever that acquisition is by treaty, the same constituted authorities in whom the treaty-making power is vested have a constitutional right to sanction the acquisition.”

Gallatin not only advanced Federal doctrine, but used also what the Virginians always denounced as Federalist play on words. “The United States as a nation” had an inherent right to do whatever the States in union cared to do; but the Republican party, with Jefferson, Madison, and Gallatin at their head, had again and again maintained that the United States government had the inherent right to do no act whatever, but was the creature of the States in union; and its acts, if not resulting from an expressly granted power, were no acts at all, but void, and not to be obeyed or regarded by the States. No foreigner, not even Gallatin, could master the theory of Virginia and New England, or distinguish between the nation of States in union which granted certain powers, and the creature at Washington to which these powers were granted, and which might be strengthened, weakened, or abolished without necessarily affecting the nation. Whether the inability to grasp this distinction was a result of clearer insight or of coarser intelligence, the fact was the same; and on this point, in spite of his speech on the Alien and Sedition Acts, Gallatin belonged to the school of Hamilton, while both were of one mind with Dallas. The chief avowed object of Jefferson’s election had been to overthrow the reign of this school. No Virginian could be expected within two short years to adopt the opinions of opponents who had been so often branded as “monocrats,” because of acting on these opinions. Although the Attorney-General’s advice was not followed, the negotiation for New Orleans was begun on the understanding that the purchase, if made, would be an inchoate act which would need express sanction from the States in the shape of an amendment to the Constitution.

There the matter rested. At the moment of Monroe’s appointment, the President, according to his letters, had little hope of quick success in the purchase of territory. His plan was to “palliate and endure,” unless France should force a war upon him; the constitutional question could wait, and it was accordingly laid aside. Yet the chief ambition of Southern statesmen in foreign affairs was to obtain the Floridas and New Orleans; and in effecting this object they could hardly escape establishing a serious precedent. Already Jefferson had ordered his ministers at Paris to buy this territory, although he thought the Constitution gave him no power to do so; he was willing to increase the national debt for this purpose, even though a national debt was a “mortal canker;” and he ordered his minister, in case Bonaparte should close the Mississippi, to make a permanent alliance with England, or in his own words to “marry ourselves to the British fleet and nation,” as the price of New Orleans and Florida. Jefferson foresaw and accepted the consequences of the necessity; he repeatedly referred to them and deprecated them in his letters; but the territory was a vital object, and success there would, as he pointed out, secure forever the triumph of his party even in New England.

“I believe we may consider the mass of the States south and west of Connecticut and Massachusetts as now a consolidated body of Republicanism,”—he wrote to Governor McKean in the midst of the Mississippi excitement.[66] “In Connecticut, Massachusetts, and New Hampshire there is still a Federal ascendency; but it is near its last. If we can settle happily the difficulties of the Mississippi, I think we may promise ourselves smooth seas during our time.” What he rightly feared more than any other political disaster was the risk of falling back to the feelings of 1798 and 1799, “when a final dissolution of all bonds, civil and social, appeared imminent.”[67] With zeal which never flagged, Jefferson kept up his struggle with the New England oligarchy, whose last move alarmed him. So sensitive was the President, that he joined personally in the fray that distracted New England; and while waiting for news from Monroe, he wrote a defence of his own use of patronage, showing, under the assumed character of a Massachusetts man, that a proportionate division of offices between the two parties would, since the Federalists had so much declined in numbers, leave to them even a smaller share of Federal offices than they still possessed. This paper he sent to Attorney-General Lincoln,[68] to be published in the Boston “Chronicle;” and there, although never recognized, it appeared.

Had the Federalists suspected the authorship, they would have fallen without mercy upon its arguments and its modest compliment to “the tried ability and patriotism of the present Executive;” but the essay was no sooner published than it was forgotten. The “Chronicle” of June 27, 1803, contained Jefferson’s argument founded on the rapid disappearance of the Federalist party; the next issue of the “Chronicle,” June 30, contained a single headline, which sounded the death-knell of Federalism altogether: “Louisiana ceded to the United States!” The great news had arrived; and the Federalist orators of July 4, 1803, set about their annual task of foreboding the ruin of society amid the cheers and congratulations of the happiest society the world then knew.

The President’s first thought was of the Constitution. Without delay he drew up an amendment, which he sent at once to his Cabinet.[69] “The province of Louisiana is incorporated with the United States and made part thereof,” began this curious paper; “the rights of occupancy in the soil and of self-government are confirmed to the Indian inhabitants as they now exist.” Then, after creating a special Constitution for the territory north of the 32d parallel, reserving it for the Indians until a new amendment to the Constitution should give authority for white ownership, the draft provided for erecting the portion south of latitude 32° into a territorial government, and vesting the inhabitants with the rights of other territorial citizens.

Gallatin took no notice of this paper, except to acknowledge receiving it.[70] Robert Smith wrote at some length, July 9, dissuading Jefferson from grafting so strange a shoot upon the Constitution.[71]

“Your great object is to prevent emigrations,” said he, “excepting to a certain portion of the ceded territory. This could be effectually accomplished by a constitutional prohibition that Congress should not erect or establish in that portion of the ceded territory situated north of latitude 32° any new state or territorial government, and that they should not grant to any people excepting Indians any right or title whatever to any part of the said portion of the said territory.”

Of any jealousy between North and South which could be sharpened by such a restriction of northern and extension of southern territory, Jefferson was unaware. He proposed his amendment in good faith as a means of holding the Union together by stopping its too rapid extension into the wilderness.

Coldly as his ideas were received in the Cabinet, Jefferson did not abandon them. Another month passed, and a call was issued for a special meeting of Congress October 17 to provide the necessary legislation for carrying the treaty into effect. As the summer wore away, Jefferson imparted his opinions to persons outside the Cabinet. He wrote, August 12, to Breckenridge of Kentucky a long and genial letter. Congress, he supposed,[72] after ratifying the treaty and paying for the country, “must then appeal to the nation for an additional article to the Constitution approving and confirming an act which the nation had not previously authorized. The Constitution has made no provision for our holding foreign territory, still less for incorporating foreign nations into our Union. The Executive, in seizing the fugitive occurrence which so much advances the good of their country, have done an act beyond the Constitution. The Legislature, in casting behind them metaphysical subtleties and risking themselves like faithful servants, must ratify and pay for it, and throw themselves on their country for doing for them unauthorized what we know they would have done for themselves had they been in a situation to do it.”

Breckenridge—whose Kentucky Resolutions, hardly five years before, declared that unconstitutional assumptions of power were the surrender of the form of government the people had chosen, and the replacing it by a government which derived its powers from its own will—might be annoyed at finding his principles abandoned by the man who had led him to father them; and surely no leader who had sent to his follower in one year the draft of the Kentucky Resolutions could have expected to send in another the draft of the Louisiana treaty. “I suppose they must then appeal to the nation” were the President’s words; and he underscored this ominous phrase. “We shall not be disavowed by the nation, and their act of indemnity will confirm and not weaken the Constitution by more strongly marking out its lines.” The Constitution, in dealing with the matter of amendments, made no reference to the nation; the word itself was unknown to the Constitution, which invariably spoke of the Union wherever such an expression was needed; and on the Virginia theory Congress had no right to appeal to the nation at all, except as a nation of States, for an amendment. The language used by Jefferson was the language of centralization, and would have been rejected by him and his party in 1798 or in 1820.

On the day of writing to Breckenridge the President wrote in a like sense to Paine; but in the course of a week despatches arrived from Paris which alarmed him. Livingston had reason to fear a sudden change of mind in the First Consul, and was willing to hasten the movements of President and Congress. Jefferson took the alarm, and wrote instantly to warn Breckenridge and Paine that no whisper of constitutional difficulties must be heard:[73]—

“I wrote you on the 12th instant on the subject of Louisiana and the constitutional provision which might be necessary for it. A letter received yesterday shows that nothing must be said on that subject which may give a pretext for retracting, but that we should do sub silentio what shall be found necessary. Be so good, therefore, as to consider that part of my letter as confidential.”

He gave the same warning to his Cabinet:[74] “I infer that the less we say about constitutional difficulties the better; and that what is necessary for surmounting them must be done sub silentio.”

He then drew up a new amendment, which he sent to the members of his Cabinet.[75] The July draft was long, elaborate, and almost a new Constitution in itself; the August draft was comparatively brief. “Louisiana as ceded by France to the United States is made a part of the United States. Its white inhabitants shall be citizens, and stand, as to their rights and obligations, on the same footing with other citizens of the United States in analogous situations.” The whole country north of the Arkansas River was reserved for Indians until another amendment should be made; and as an afterthought Florida was to be admitted as a part of the United States “whenever it may be rightfully obtained.”

These persistent attempts to preserve his own consistency and that of his party were coldly received. Jefferson found himself alone. Wilson Cary Nicholas, a prominent supporter of the Virginia Resolutions in 1798 and a senator of the United States in 1803, had a long conversation with the President, and in the early days of September wrote him a letter which might have come from Theodore Sedgwick or Roger Griswold in the days of Jay’s treaty, when Federalist notions of prerogative ran highest.

“Upon an examination of the Constitution,” wrote Nicholas,[76] “I find the power as broad as it could well be made (Sect. 3, Art. IV.), except that new States cannot be formed out of the old ones without the consent of the State to be dismembered; and the exception is a proof to my mind that it was not intended to confine the Congress in the admission of new States to what was then the territory of the United States. Nor do I see anything in the Constitution that limits the treaty-making power, except the general limitations of the other powers given to the government, and the evident objects for which the government was instituted.”

Had Nicholas reasoned thus in 1798 he would have been a Federalist, as he seemed conscious, for he went on to say: “I am aware that this is to us delicate ground, and perhaps my opinions may clash with the opinions given by our friends during the discussion of the British treaty.” Nevertheless he argued that if this treaty was unconstitutional, all other treaties were open to the same objection, and the United States government in such a case could make no treaty at all. Finally, he begged the President to avoid giving an opinion on the subject: “I should think it very probable if the treaty should be declared by you to exceed the constitutional authority of the treaty-making power, it would be rejected by the Senate, and if that should not happen, that great use would be made with the people of a wilful breach of the Constitution.”

Such reasoning in the mouths of Virginia Republicans, who had asked and gained office by pledging themselves to their people against the use of implied powers, marked a new epoch. From them the most dangerous of all arguments, the reductio ad absurdum, was ominous. What right had they to ask whether any constitutional grant was less complete than the people might have wished or intended? If the Constitution were incomplete or absurd, not the government, but the people of the States who had made it were the only proper authority to correct it. Otherwise, as Nicholas had so often pointed out, their creature would become their tyrant, as had been the law of politics from the beginning.

Jefferson was distressed to find himself thus deserted by his closest friends on an issue which he felt to be vital. The principle of strict construction was the breath of his political life. The Pope could as safely trifle with the doctrine of apostolic succession as Jefferson with the limits of Executive power. If he and his friends were to interpret the treaty-making power as they liked, the time was sure to come when their successors would put so broad an interpretation on other powers of the government as to lead from step to step, until at last Virginia might cower in blood and flames before the shadowy terror called the war-power. With what face could Jefferson then appear before the tribunal of history, and what position could he expect to receive?

All this he felt in his kindly way; and with this weight on his mind he wrote his reply to Nicholas.[77] Beginning with the warning that Bonaparte could not be trusted, and that Congress must act with as little debate as possible, particularly as respected the constitutional difficulty, he went on:—

“I am aware of the force of the observations you make on the power given by the Constitution to Congress to admit new States into the Union without restraining the subject to the territory then constituting the United States. But when I consider that the limits of the United States are precisely fixed by the treaty of 1783, that the Constitution expressly declares itself to be made for the United States, ... I do not believe it was meant that [Congress] might receive England, Ireland, Holland, etc., into it,—which would be the case on your construction.... I had rather ask an enlargement of power from the nation, where it is found necessary, than to assume it by a construction which would make our powers boundless. Our peculiar security is in the possession of a written Constitution. Let us not make it a blank paper by construction. I say the same as to the opinion of those who consider the grant of the treaty-making power as boundless. If it is, then we have no Constitution.”

From the Virginia standpoint nothing could be better said. Jefferson in this letter made two points clear: the first was that the admission of Louisiana into the Union without express authority from the States made blank paper of the Constitution; the second was that if the treaty-making power was equal to this act, it superseded the Constitution. He entertained no doubts on either point, and time sustained his view; for whether he was right or wrong in law, the Louisiana treaty gave a fatal wound to “strict construction,” and the Jeffersonian theories never again received general support. In thus giving them up, Jefferson did not lead the way, but he allowed his friends to drag him in the path they chose. The leadership he sought was one of sympathy and love, not of command; and there was never a time when he thought that resistance to the will of his party would serve the great ends he had in view. The evils which he foresaw were remote: in the hands of true Republicans the Constitution, even though violated, was on the whole safe; the precedent, though alarming, was exceptional. So it happened that after declaring in one sentence the Constitution at an end if Nicholas had his way, Jefferson in the next breath offered his acquiescence in advance:—

“I confess I think it important in the present case to set an example against broad construction by appealing for new power to the people. If, however, our friends shall think differently, certainly I shall acquiesce with satisfaction, confiding that the good sense of our country will correct the evil of construction when it shall produce ill effects.”

With these words Jefferson closed his mouth on this subject forever. Although his future silence led many of his friends to think that he ended by altering his opinion, and by admitting that his purchase of Louisiana was constitutional, no evidence showed the change; but rather one is led to believe that when in later life he saw what he called the evils of construction grow until he cried against them with violence almost as shrill as in 1798, he felt most strongly the fatal error which his friends had forced him to commit, and which he could neither repudiate nor defend. He had declared that he would acquiesce with satisfaction in making blank paper of the Constitution.

A few weeks later, Oct. 17, 1803, Congress met. The President’s Message had little to say of domestic affairs. The Kaskaskia Indians had sold their territory to the United States, the revenue had again exceeded the estimate, more than three millions of debt had been paid within the year. Much was said about war in Europe and the rights and duties of neutrals, about gunboats which were no longer needed, and about the unsettled boundary in Maine and at the Lake of the Woods, but not a word about the constitutional difficulties raised by the Louisiana treaty. “With the wisdom of Congress it will rest,” said Jefferson, “to take those ulterior measures which may be necessary for the immediate occupation and temporary government of the country, for its incorporation into our Union, for rendering the change of government a blessing to our newly adopted brethren, for securing to them the rights of conscience and of property, for confirming to the Indian inhabitants their occupancy and self-government.” These were the points of his proposed amendment; but he gave no sign of his opinion that Congress was incompetent to deal with them, and that the Senate was equally incompetent to make the treaty valid.

There were good reasons for silence. Not only were Livingston’s letters alarming, but the Marquis of Casa Yrujo, the friend and benefactor of the Administration, sent to Madison one protest after another against the sale of Louisiana.[78] He quoted St.-Cyr’s letter of July, 1802, which bound France not to alienate the province, and he declared that France had never carried out the conditions of contract in regard to Tuscany, and therefore could not rightfully treat Louisiana as her own. A probable war with Spain stared Jefferson in the face, even if Bonaparte should raise no new difficulties. The responsibility for a mistake was great, and no one could blame Jefferson if he threw his burden on Congress.

CHAPTER V.

If President Jefferson and Secretary Madison, who wrote the Resolutions of 1798, acquiesced, in 1803, in a course of conduct which as Jefferson believed made blank paper of the Constitution, and which, whether it did so or not, certainly made waste paper of the Virginia and Kentucky Resolutions, no one could expect that their followers would be more consistent or more rigid than themselves. Fortunately, all the more prominent Republicans of 1798 had been placed in office by the people as a result of popular approval, and were ready to explain their own views. In the Senate sat John Breckenridge of Kentucky, supposed to be the author of the Kentucky Resolutions, and known as their champion in the Kentucky legislature. From Virginia came John Taylor of Caroline, the reputed father of the Virginia Resolutions, and the soundest of strict constructionists. Twenty years later, his “Construction Construed” and “New Views of the Constitution” became the text-books of the State-rights school. His colleague was Wilson Cary Nicholas, who had also taken a prominent part in supporting the Virginia Resolutions, and whose devotion to the principles of strict construction was beyond doubt. One of the South Carolina senators was Pierce Butler; one of those from North Carolina was David Stone; Georgia was represented by Abraham Baldwin and James Jackson,—stanch State-rights Republicans all. In the House a small coterie of State-rights Republicans controlled legislation. Speaker Macon was at their head; John Randolph, chairman of the Ways and Means Committee, was their mouthpiece. Joseph H. Nicholson of Maryland, and Cæsar A. Rodney of Delaware, supported Randolph on the committee; while two of President Jefferson’s sons-in-law, Thomas Mann Randolph and John W. Eppes, sat in the Virginia delegation. Both in Senate and House the Southern Republicans of the Virginia school held supremacy; their power was so absolute as to admit no contest; they were at the flood of that tide which had set in three years before. In the Senate they controlled twenty-five votes against nine; in the House, one hundred and two against thirty-nine. Virginia ruled the United States, and the Republicans of 1798 ruled Virginia. The ideal moment of Republican principles had arrived.

This moment was big with the fate of theories. Other debates of more practical importance may have frequently occurred,—for in truth whatever the decision of Congress might have been, it would in no case have affected the result that Louisiana was to enter the Union: and this inevitable result overshadowed all theory,—but no debate ever took place in the Capitol which better deserved recollection.

Of extraordinary ability Congress contained but little, and owing to the meagre character of the reports, appeared to contain even less than it actually possessed; but if no one rose to excellence either of logic or rhetoric, the speakers still dealt with the whole subject, and rounded the precedent with all the argument and illustration that a future nation could need. Both actions and words spoke with decision and distinctness till that time unknown in American politics.

The debate began first in the House, where Gaylord Griswold of New York, Oct. 24, 1803, moved for such papers as the Government might possess tending to show the value of the title to Louisiana as against Spain. Under the lead of John Randolph the House refused the call. That this decision clashed with the traditions of the Republican party was proved by the vote. With a majority of three to one, Randolph succeeded in defeating Griswold only by fifty-nine to fifty-seven; while Nicholson, Rodney, Varnum of Massachusetts, and many other stanch Republicans voted with the Federalists.

The next day the House took up the motion for carrying the treaty into effect. Griswold began again, and without knowing it repeated Jefferson’s reasoning. The framers of the Constitution, he said, “carried their ideas to the time when there might be an extended population; but they did not carry them forward to the time when an addition might be made to the Union of a territory equal to the whole United States, which additional territory might overbalance the existing territory, and thereby the rights of the present citizens of the United States be swallowed up and lost.” The power to admit new States referred only to the territory existing when the Constitution was framed; but this right, whatever it might be, was vested in Congress, not in the Executive. In promising to admit Louisiana as a State into the Union, the treaty assumed for the President power which in any case could not have been his. Finally, the treaty gave to French and Spanish ships special privileges for twelve years in the port of New Orleans; while the Constitution forbade any preference to be given, by any regulation of commerce or revenue, to the ports of one State over those of another.

John Randolph next rose. Just thirty years old, with a sarcasm of tone and manner that overbore remonstrance, and with an authority in the House that no one contested, Randolph spoke the voice of Virginia with autocratic distinctness. His past history was chiefly marked by the ardor with which, from 1798 to 1800, he had supported the principles of his party and encouraged resistance to the national government. He had gone beyond Jefferson and Madison in willingness to back their theories by force, and to fix by a display of Virginia power the limit beyond which neither Executive, Congress, nor Judiciary should pass. Even then he probably cared little for what he called the “parchment barriers” of the Constitution: in his mind force was the real balance,—force of State against force of Union; and any measure which threatened to increase the power of the national government beyond that of the State, was sure of his enmity. A feather might turn the balance, so nice was the adjustment; and Randolph again and again cried with violence against feathers.

In the Louisiana debate, Randolph spoke in a different tone. The Constitution, he said, could not restrict the country to particular limits, because at the time of its adoption the boundary was unsettled on the northeastern, northwestern, and southern frontiers. The power to settle disputes as to limits was indispensable; it existed in the Constitution, had been repeatedly exercised, and involved the power of extending boundaries.

This argument was startling in the mouth of one who had helped to arm the State of Virginia against a moderate exercise of implied powers. Randolph asserted that the right to annex Louisiana, Texas, Mexico, South America, if need be, was involved in the right to run a doubtful boundary line between the Georgia territory and Florida. If this power existed in the government, it necessarily devolved on the Executive as the organ for dealing with foreign States. Thus Griswold’s first objection was answered.

Griswold objected in the second place that the treaty made New Orleans a favored port. “I regard this stipulation,” replied Randolph, “as a part of the price of the territory. It was a condition which the party ceding had a right to require, and to which we had a right to assent. The right to acquire involves the right to give the equivalent demanded.” Randolph did not further illustrate this sweeping principle of implied power.

After the subject had been treated by speakers of less weight, Roger Griswold of Connecticut took the floor. So long as his party had been in office, the vigor of the Constitution had found no warmer friend than he; but believing New England to have fallen at the mercy of Virginia, he was earnest to save her from the complete extinction which he thought near at hand. Griswold could not deny that the Constitution gave the power to acquire territory: his Federalist principles were too fresh to dispute such an inherent right; and Gouverneur Morris, as extreme a Federalist as himself, whose words had been used in the Constitution, averred that he knew in 1788 as well as he knew in 1803, that all North America must at length be annexed, and that it would have been Utopian to restrain the movement.[79] This was old Federalist doctrine, resting on “inherent rights,” on nationality and broad construction,—the Federalism of President Washington, which the Republican party from the beginning denounced as monarchical. Griswold would not turn his back on it; he still took a liberal view of the power, and even stretched it beyond reasonable shape to accord with Morris’s idea. “A new territory and new subjects,” said he, “may undoubtedly be obtained by conquest and by purchase; but neither the conquest nor the purchase can incorporate them into the Union. They must remain in the condition of colonies, and be governed accordingly.” This claim gave the central government despotic power over its new purchase; but it declared that a treaty which pledged the nation to admit the people of Louisiana into the Union must be invalid, because it assumed that “the President and Senate may admit at will any foreign nation into this copartnership without the consent of the States,”—a power directly repugnant to the principles of the compact. In substance, Griswold maintained that either under the war power or under the treaty-making power the government could acquire territory, and as a matter of course could hold and govern that territory as it pleased,—despotically if necessary, or for selfish objects; but that the President and Senate could not admit a foreign people into the Union, as a State. Yet to this, the treaty bound them.

To meet this attack the Republicans put forward their two best men,—Joseph H. Nicholson of Maryland, and Cæsar A. Rodney of Delaware. The task was difficult, and Nicholson showed his embarrassment at the outset. “Whether the United States,” said he, “as a sovereign and independent empire, has a right to acquire territory is one thing; but whether they can admit that territory into the Union upon an equal footing with the other States is a question of a very different nature.” He refused to discuss this latter issue; in his opinion it was not before the House.

This flinching was neither candid nor courageous; but it was within the fair limits of a lawyer’s if not of a statesman’s practice, and Nicholson at least saved his consistency. On the simpler question, whether “a sovereign nation,” as he next said, “had a right to acquire new territory,” he spoke with as much emphasis as Roger Griswold and Gouverneur Morris, and he took the same ground. The separate States had surrendered their sovereignty by adopting the Constitution; “the right to declare war was given to Congress; the right to make treaties, to the President and Senate. Conquest and purchase alone are the means by which nations acquire territory.” Griswold was right, then, in the ground he had taken; but Nicholson, not satisfied with gaining his point through the treaty-making power, which was at least express, added: “The right must exist somewhere: it is essential to independent sovereignty.” As it was prohibited to the States, the power was necessarily vested in the United States.

This general implication, that powers inherent in sovereignty which had not been expressly reserved to the States were vested in the national government, was not more radical centralization than Nicholson’s next point. The treaty gave to the port of New Orleans a decided preference over all other ports of the United States, although the Constitution said that no preference should be given to the ports of one State over those of another. To this objection Nicholson replied that Louisiana was not a State. “It is a territory purchased by the United States in their confederate capacity, and may be disposed of by them at pleasure. It is in the nature of a colony whose commerce may be regulated without any reference to the Constitution.” The new territory, therefore, was in the nature of a European colony; the United States government might regulate its commerce without regard to the Constitution, give its population whatever advantages Congress might see fit, and use it to break down New England—or slavery.

With the fecund avowal that Louisiana must be governed by Congress at pleasure without reference to the Constitution, Nicholson sat down; and Cæsar Rodney took the floor,—an able and ingenious lawyer, who came to the House with the prestige of defeating the Federalist champion Bayard. If Randolph and Nicholson, like the mouse in the fable nibbling at the cords which bound the lion of Power, had left one strand still unsevered, the lion stood wholly free before Rodney ended. He began by appealing to the “general welfare” clause,—a device which the Republican party and all State-rights advocates once regarded as little short of treason. “I cannot perceive,” said he, “why within the fair meaning of this general provision is not included the power of increasing our territory, if necessary for the general welfare or common defence.” This argument in such a mouth might well have sent a chill to the marrow of every Republican of 1798; but this was not the whole. He next invoked the “necessary and proper” clause, even at that early time familiar to every strict constructionist as one of the most dangerous instruments of centralization. “Have we not also vested in us every power necessary for carrying such a treaty into effect, in the words of the Constitution which give Congress the authority to ‘make all laws which shall be necessary and proper for carrying into execution the foregoing powers, and all other powers vested by this Constitution in the government of the United States or in any department or officer thereof’?”

One more point was affirmed by Rodney. Gaylord Griswold had maintained that the territory mentioned in the Constitution was the territory existing in 1789. Rodney denied it. Congress, he said, had express power to “make all needful rules and regulations” respecting any and all territory; it had no need to infer this power from other grants. As for the special privilege of trade accorded to New Orleans, it violated in no way the Constitution; it was indirectly a benefit to all the States, and a preference to none.

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.

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.

“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.

By these measures the Executive and the Legislature recorded their decision in regard to the powers of government over national territory. The Judiciary was not then consulted; but twenty-five years afterward, in the year 1828, Chief-Justice Marshall was in his turn required to give an opinion, and he added the final authority of the Supreme Court to the precedent. With characteristic wisdom he claimed for the government both the constitutional and the extra-constitutional powers in question. The case concerned the rights of inhabitants of Florida, who he said—

“Do not participate in political power; they do not share in the government till Florida shall become a State. In the mean time Florida continues to be a territory of the United States, governed by virtue of that clause in the Constitution which empowers Congress ‘to make all needful rules and regulations respecting the territory or other property belonging to the United States.’ Perhaps the power of governing a territory belonging to the United States which has not, by becoming a State, acquired the means of self-government, may result necessarily from the fact that it is not within the jurisdiction of any particular State, and is within the power and jurisdiction of the United States. The right to govern may be the inevitable consequence of the right to acquire territory. Whichever may be the source whence the power is derived, the possession of it is unquestioned.”[85]

The effect of such a precedent on constitutional principles was certain to be great. A government competent to interpret its own powers so liberally in one instance, could hardly resist any strong temptation to do so in others. The doctrines of “strict construction” could not be considered as the doctrines of the government after they had been abandoned in this leading case by a government controlled by strict constructionists. The time came at last when the opponents of centralization were obliged to review their acts and to discover the source of their mistakes. In 1856 the Supreme Court was again required to pronounce an opinion, and found itself confronted by the legislation of 1803–1804 and the decision of Chief-Justice Marshall in 1828. Chief-Justice Taney and his associates, in the case of Dred Scott, then reviewed the acts of Jefferson and his friends in 1803–1804, and pronounced upon them the final judgment of the State-rights school.

Chief-Justice Taney affirmed the right of the government to buy Louisiana and to govern it, but not to govern it as a part of the old territory over which the Constitution gave Congress unlimited power. Louisiana was governed, according to Marshall’s dictum, by a power which was “the inevitable consequence of the right to acquire territory,”—a power limited by the general purposes of the Constitution, and therefore not extending to a colonial system like that of Europe. Territory might thus be acquired; but it was acquired in order to become a State, and not to be held as a colony and governed by Congress with absolute authority; citizens who migrated to it “cannot be ruled as mere colonists dependent upon the will of the general government, and to be governed by any laws it may think proper to impose.” The chief-justice dwelt on this point at much length; the federal government, he said, “cannot, when it enters a territory of the United States, put off its character and assume discretionary or despotic powers which the Constitution has denied it.”

Even this emphatic opinion, which implied that all the Louisiana legislation was unconstitutional, did not satisfy Justice Campbell, a Georgian, who represented the ultimate convictions of the strict constructionists. Campbell reviewed the national history in search of evidence “that a consolidated power had been inaugurated, whose subject comprehended an empire, and which had no restriction but the discretion of Congress.” He held that the Constitution had been plainly and repeatedly violated; “and in reference to the precedent of 1804, the wisest statesmen protested against it, and the President more than doubted its policy and the power of the government.” The Court, he said, could not undertake to conquer their scruples as the President and Congress had done. “They acknowledge that our peculiar security is in the possession of a written Constitution, and they cannot make it blank paper by construction.”

This sneer at President Jefferson was almost the last official expression of strict-constructionist principles. Of its propriety the Court itself was the best judge, but its historical interest could not be denied.

If Justice Campbell and Chief-Justice Taney were right, according to the tenets of their school the legislation of 1803–1804 was plainly unconstitutional. In that case, by stronger reasoning the treaty itself was unconstitutional and void from the beginning; for not only did Jefferson’s doubts to which Campbell alluded refer to the treaty and not to the legislation, but the treaty was at least equally responsible with the laws for making, in 1803, a situation which required what Campbell denounced,—“the supreme and irresistible power which is now claimed for Congress over boundless territories, the use of which cannot fail to react upon the political system of the States to its subversion.”

With the law the story need not concern itself, but the view of American history thus suggested was peculiarly interesting. If the chief-justice and his associate expressed correctly the opinions of the strict-constructionist school, the government had at some time been converted from a government of delegated powers into a sovereignty. Such was the belief of Campbell’s political friends. Four years after the Dred Scott decision was declared, the State of South Carolina, in Convention, issued an “Address to the People of the Slave-holding States,” justifying its act of secession from the Union.

“The one great evil,” it declared, “from which all other evils have flowed, is the overthrow of the Constitution of the United States. The government of the United States is no longer the government of confederated republics, but of a consolidated democracy. It is no longer a free government, but a despotism.”

If the strict constructionists held this opinion, they necessarily believed that at some moment in the past the government must have changed its character. The only event which had occurred in American history so large in its proportions, so permanent in its influence, and so cumulative in its effects as to represent such a revolution was the Louisiana purchase; and if the Louisiana purchase was to be considered as having done what the Federalists expected it to do,—if it had made a new constitution and a government of sovereign powers,—the strict constructionists were not only consenting parties to the change, they were its authors.

From every point of view, whether Justice Campbell and the secession convention of South Carolina were right or wrong in their historical judgment, the Louisiana purchase possessed an importance not to be ignored. Even in 1804 the political consequences of the act were already too striking to be overlooked. Within three years of his inauguration Jefferson bought a foreign colony without its consent and against its will, annexed it to the United States by an act which he said made blank paper of the Constitution; and then he who had found his predecessors too monarchical, and the Constitution too liberal in powers,—he who had nearly dissolved the bonds of society rather than allow his predecessor to order a dangerous alien out of the country in a time of threatened war,—made himself monarch of the new territory, and wielded over it, against its protests, the powers of its old kings. Such an experience was final; no century of slow and half-understood experience could be needed to prove that the hopes of humanity lay thenceforward, not in attempting to restrain the government from doing whatever the majority should think necessary, but in raising the people themselves till they should think nothing necessary but what was good.

Jefferson took a different view. He regarded, or wished to regard, the Louisiana treaty and legislation as exceptional and as forming no precedent. While he signed the laws for governing the territory, he warmly objected to the establishment of a branch bank of the United States at New Orleans. “This institution is one of the most deadly hostility existing against the principles and form of our Constitution,” he wrote to Gallatin;[86] “ought we to give further growth to an institution so powerful, so hostile?” Gallatin was clear that the business of the Treasury required such aid, and Jefferson again acquiesced. Gallatin was also allowed and encouraged to enforce the restrictions on the importation of slaves into Louisiana.[87] “It seems that the whole Cabinet,” wrote the French chargé to his government, “put the utmost weight on this prohibition. Mr. Jefferson is earnestly bent on maintaining it, and his Secretary of the Treasury takes the severest measures to insure its execution.”

As though the annexation of Louisiana alone made not enough change in the old established balances of the Constitution, Congress took up another matter which touched the mainspring of the compact. A new Presidential election was at hand. The narrow escape of 1800 warned the party in power not again to risk society by following the complicated arrangements of 1788. In the convention which framed the Constitution no single difficulty was more serious than that of compromising the question of power between the large and small States. Delaware, New Jersey, Rhode Island, Maryland, and Connecticut were well aware that the large States would take the lion’s share of power and patronage; they knew that except by accident no citizen of theirs could ever reach the Presidency; and as accident alone could give the small States a chance, accident was to them a thing of value. Whatever tended to make their votes decisive was an additional inducement with them to accept the Constitution. The Vice-presidency, as originally created, more than doubled their chance of getting the Presidency, and was invented chiefly for this purpose; but this was not all. As the number of electoral votes alone decided between President and Vice-president, a tie-vote was likely often to occur; and such a tie was decided by the House of Representatives, where another bribe was intentionally offered to the small States by giving the election to the State delegations voting as units, so that the vote of Delaware weighed as heavily as the vote of Pennsylvania.

The alarm caused by Burr’s rivalry with Jefferson in February, 1801, satisfied the Republican party that such a door to intrigue ought not to be left open. Oct. 17, 1803, before the Louisiana treaty was taken up, an amendment to the Constitution was moved by friends of the Administration in the House. This, which took shape at length as the Twelfth Amendment, obliged the members of the electoral college to distinguish in their ballots the persons voted for as President and Vice-president.

Slight as this change might appear, it tended toward centralizing powers hitherto jealously guarded. It swept away one of the checks on which the framers had counted to resist majority rule by the great States. Lessening the influence of the small States, and exaggerating the office of President by lowering the dignity of Vice-president, it made the processes of election and government smoother and more efficient,—a gain to politicians, but the result most feared by the State-rights school. The change was such as Pennsylvania or New York might naturally want; but it ran counter to the theories of Virginia Republicans, whose jealousy of Executive influence had been extreme.

Roger Griswold said with prophetic emphasis:[88]—

“The man voted for as Vice-president will be selected without any decisive view to his qualifications to administer the government. The office will generally be carried into the market to be exchanged for the votes of some large States for President; and the only criterion which will be regarded as a qualification for the office of Vice-president will be the temporary influence of the candidate over the electors of his State.... The momentary views of party may perhaps be promoted by such arrangements, but the permanent interests of the country are sacrificed.”

Griswold held that true reform required abolition of the office; and in this opinion his old enemy John Randolph warmly agreed. In the Senate, had the question risen as a new one, perhaps a majority might have favored abolition, for the results of retaining the office were foreseen; but the discussion was hampered by the supposed popular will and by express votes of State legislatures, and Congress felt itself obliged to follow a prescribed course. The amendment was adopted by the usual party vote; and the Federalists thenceforward were able to charge Jefferson and his party with responsibility not only for stripping the small States of an advantage which had made part of their bargain, but also for putting in the office of President, in case of vacancies, men whom no State and no elector intended for the post.

CHAPTER VII.

The extraordinary success which marked Jefferson’s foreign relations in the year 1803 was almost equally conspicuous in domestic affairs. The Treasury was as fortunate as the Department of State. Gallatin silenced opposition. Although the customs produced two millions less than in 1802, yet when the Secretary in October, 1803, announced his financial arrangements, which included the purchase-money of fifteen million dollars for Louisiana, he was able to provide for all his needs without imposing a new tax. The treaty required the issue of six-per-cent bonds for eleven million two hundred and fifty thousand dollars, redeemable after fifteen years. These were issued; and to meet the interest and sinking fund Gallatin added from his surplus an annual appropriation of seven hundred thousand dollars to his general fund; so that the discharge of the whole debt would take place within the year 1818, instead of eighteen months earlier, as had been intended. New Orleans was expected to provide two hundred thousand dollars a year toward the interest. Of the remaining four millions, the Treasury already held half, and Gallatin hoped to provide the whole from future surplus, which he actually did.

This was ideal success. On a sudden call, to pay out four million dollars in hard money, and add seven hundred thousand dollars to annual expenditure, without imposing a tax, and with a total revenue of eleven millions, was a feat that warranted congratulations. Yet Gallatin’s success was not obtained without an effort. As usual, he drew a part of his estimated surplus from the navy. He appealed to Jefferson to reduce the navy estimates from nine hundred thousand to six hundred thousand dollars.[89]

“I find that the establishment now consists of the ‘Constitution,’ the ‘Philadelphia,’ each 44, and five small vessels, all of which are now out, and intended to stay the whole year, as the crew is enlisted for two years. In my opinion one half of the force,—namely, one frigate and two or three small vessels,—were amply sufficient.”

Jefferson urged the reduction,[90] and Secretary Smith consented. The navy estimates were reduced to six hundred and fifty thousand dollars, and on the strength of this economy Gallatin made his calculation. As he probably foresaw, the attempt failed. Whether in any case Smith could have effected so great a retrenchment was doubtful; but an event occurred which made retrenchment impossible.

The war with Tripoli dragged tediously along, and seemed no nearer its end at the close of 1803 than eighteen months before. Commodore Morris, whom the President sent to command the Mediterranean squadron, cruised from port to port between May, 1802, and August, 1803, convoying merchant vessels from Gibraltar to Leghorn and Malta, or lay in harbor and repaired his ships, but neither blockaded nor molested Tripoli; until at length, June 21, 1803, the President called him home and dismissed him from the service. His successor was Commodore Preble, who Sept. 12, 1803, reached Gibraltar with the relief-squadron which Secretary Gallatin thought unnecessarily strong. He had the “Constitution,” of 44 guns, and the “Philadelphia,” of 38; the four new brigs just built,—the “Argus” and the “Syren,” of 16 guns, the “Nautilus” and the “Vixen,” of 14 guns; and the “Enterprise,” of 12. With this force Preble set energetically to work.

Tripoli was a feeble Power, and without much effort could be watched and blockaded; but if the other governments on the coast should make common cause against the United States, the task of dealing with them was not so easy. Morocco was especially dangerous, because its ports lay on the ocean, and could not be closed even by guarding the Straits. When Preble arrived, he found Morocco taking part with Tripoli. Captain Bainbridge, who reached Gibraltar in the “Philadelphia” August 24, some three weeks before Preble arrived, caught in the neighborhood a Moorish cruiser of 22 guns with an American brig in its clutches. Another American brig had just been seized at Mogador. Determined to stop this peril at the outset, Preble united to his own squadron the ships which he had come to relieve, and with this combined force,—the “Constitution,” 44; the “New York,” 36; the “John Adams,” 28; and the “Nautilus,” 14,—sending the “Philadelphia” to blockade Tripoli, he crossed to Tangiers October 6, and brought the Emperor of Morocco to reason. On both sides prizes and prisoners were restored, and the old treaty was renewed. This affair consumed time; and when at length Preble got the “Constitution” under way for the Tripolitan coast, he spoke a British frigate off the Island of Sardinia, which reported that the “Philadelphia” had been captured October 21, more than three weeks before.

The loss greatly embarrassed Preble. The “Philadelphia” was, next to the “Constitution,” his strongest ship. Indeed he had nothing else but his own frigate and small brigs of two and three hundred tons; but the accident was such as could not fail sometimes to happen, especially to active commanders. Bainbridge, cruising off Tripoli, had chased a Tripolitan cruiser into shoal water, and was hauling off, when the frigate struck on a reef at the mouth of the harbor. Every effort was made without success to float her; but at last she was surrounded by Tripolitan gunboats, and Bainbridge struck his flag. The Tripolitans, after a few days’ work, floated the frigate, and brought her under the guns of the castle. The officers became prisoners of war, and the crew, in number three hundred or more, were put to hard labor.

The affair was in no way discreditable to the squadron. Morris had been recalled in disgrace for over-caution, and Bainbridge was required to be active. The Tripolitans gained nothing except the prisoners; for at Bainbridge’s suggestion Preble, some time afterward, ordered Stephen Decatur, a young lieutenant in command of the “Enterprise,” to take a captured Tripolitan craft re-named the “Intrepid,” and with a crew of seventy-five men to sail from Syracuse, enter the harbor of Tripoli by night, board the “Philadelphia,” and burn her under the castle guns. The order was literally obeyed. Decatur ran into the harbor at ten o’clock in the night of Feb. 16, 1804, boarded the frigate within half gun-shot of the Pacha’s castle, drove the Tripolitan crew overboard, set the ship on fire, remained alongside until the flames were beyond control, and then withdrew without losing a man, while the Tripolitan gunboats and batteries fired on him as rapidly as want of discipline and training would allow. Gallant and successful as the affair was, it proved only what was already well known, that the Tripolitans were no match for men like Decatur and his companions; and it left Preble, after losing in the “Philadelphia” nearly one third of his force, still strong enough to do the work that needed to be done.

The frigate had been built by the citizens of Philadelphia, and given to the government in 1799. So far as the ship was concerned, the loss was not much regretted, for the Republicans when in opposition had strenuously opposed the building of frigates, and still considered them a danger rather than a defence. Although the “Philadelphia” was the newest ship in the service, a companion to the “Constellation,” the “Congress,” and the “Chesapeake,” she was never replaced; two 18-gun brigs, the “Hornet” and the “Wasp,” were constructed instead of one 38-gun frigate; and these were the last sea-going vessels built under Jefferson’s administration. The true annoyance was not that a frigate had been lost, but that the captivity and enslavement of the crew obliged Government to rescue them and to close the war, by a kind of expenditure which the Republican party disliked.

Bainbridge’s report of his capture, which had happened at the end of October, 1803, was sent to Congress March 20, 1804, in the last week of the session. The President sent with it a brief Message recommending Congress to increase the force and enlarge expenses in the Mediterranean. As Gallatin never willingly allowed his own plans for the public service to be deranged, Congress adopted a new means for meeting the new expense. Although the Treasury held a balance of $1,700,000, Gallatin would not trench upon this fund, but told Randolph, who was Chairman of the Ways and Means Committee, that the specie in the Treasury could not be safely reduced below that amount.[91] He informed Joseph Nicholson that $150,000 was the utmost sum he could spare. The sum wanted was $750,000 per annum. A Bill was introduced which imposed an additional duty of 2½ per cent on all imports that paid duty ad valorem. These imports had been divided, for purposes of revenue, into three classes, taxed respectively 12½, 15, and 20 per cent; the increase raised them to 15, 17½, and 22½ per cent. The average ad valorem duty was before about 13½; the additional tax raised it above 16 per cent; and the Republicans preferred this method of raising money as in every way better than the system of internal taxation. After imposing the additional duty of 2½ per cent,—a duty intended to produce about $750,000,—the Bill made of it a separate Treasury account, to be called the “Mediterranean Fund,” which was to last only as long as the Mediterranean war should last, when the 2½ per cent duty was to cease three months after a general peace.

The Mediterranean Fund was meant as a protest against loose expenditure,—a dike against the impending flood of extravagance. The Mediterranean war was the first failure of President Jefferson’s theory of foreign relations, and the Mediterranean Fund was the measure of the error in financial form. No reproach henceforward roused more ill temper among Republicans than the common charge that their elaborate financial precautions and formalities were a deception, and that the Mediterranean Fund was meant to conceal a change of principle and a return to Federalist practices. Even in the first words of the debate, Roger Griswold told them that their plausible special fund was “perfectly deceptive,” and amounted to nothing. John Randolph retaliated by declaring that the Republican government consisted of men who never drew a cent from the people except when necessity compelled it; and Griswold could not assert, though he might even then foresee, that for ten years to come, Randolph would denounce the extravagance and waste of the men whom he thus described.

The annexation of Louisiana, the constitutional amendment in regard to the Vice-presidency, the change of financial practices foreshadowed by the Mediterranean Fund, were signs of reaction toward nationality and energy in government. Yet the old prejudices of the Republican party had not yet wholly lost their force. Especially the extreme wing, consisting of men like John Randolph and W. B. Giles, thought that a substantial reform should be attempted. Increase of power encouraged them to act. The party, stimulated by its splendid success and irresistible popularity, at length, after long hesitation, prepared for a trial of strength with the last remnant of Federalism,—the Supreme Court of the United States.

A year of truce between Congress and the Supreme Court had followed the repeal of the Judiciary Act. To prevent Chief-Justice Marshall and his associates from interfering with the new arrangements, Congress in abolishing the circuit courts in 1801 took the strong measure of suspending for more than a year the sessions of the Supreme Court itself. Between December, 1801, and February, 1803, the court was not allowed to sit. Early in February, 1803, a few days before the Supreme Court was to meet, after fourteen months of separation, President Jefferson sent an ominous Message to the House of Representatives.

“The enclosed letter and affidavits,” he said,[92] “exhibiting matter of complaint against John Pickering, district judge of New Hampshire, which is not within executive cognizance, I transmit them to the House of Representatives, to whom the Constitution has confided a power of instituting proceedings of redress if they shall be of opinion that the case calls for them.”

The enclosed papers tended to show that Judge Pickering, owing to habits of intoxication or other causes, had become a scandal to the bench, and was unfit to perform his duties. At first sight the House of Representatives might not understand what it had to do with such a matter; but the President’s language admitted no doubt of his meaning. The Constitution said that the House of Representatives “shall have the sole power of impeachment;” and “all civil officers of the United States shall be removed from office on impeachment for, and conviction of, treason, bribery, or other high crimes and misdemeanors.” Jefferson’s Message officially announced to the House the President’s opinion that Judge Pickering’s conduct was a misdemeanor within the reach of impeachment.

The House referred the Message to a committee of five, controlled by Joseph Nicholson and John Randolph. A fortnight later, Nicholson reported a resolution ordering the impeachment; and before the session closed, the House, by a vote of forty-five to eight, adopted his report, and sent Nicholson and Randolph to the bar of the Senate to impeach Judge Pickering of high crimes and misdemeanors. March 3, 1803, the last day of the session, the two members delivered their message.

Precisely as the House, by the President’s invitation, was about to impeach Judge Pickering, the Supreme Court, through the Chief-Justice’s mouth, delivered an opinion which could be regarded in no other light than as a defiance. Chief-Justice Marshall’s own appointment had been one of those made by the last President between Dec. 12, 1800, and March 4, 1801, which Jefferson called an “outrage on decency,”[93] and which, except as concerned life offices, he held to be “nullities.” His doctrine that all appointments made by a retiring President were nullities, unless made with the consent of the President elect, rested on the argument that the retiring President was no longer selecting his own but his successor’s agents. Perhaps it involved also the favorite idea that the election of 1800 was something more than a change of Presidents,—that it was a real revolution in the principle of government. Any theory was sufficient for the Executive, but executive theories did not necessarily bind the Judiciary. Among the nominations which, like the appointment of Marshall, were obnoxious to Jefferson, was that of William Marbury as justice of the peace for five years for the District of Columbia. The nomination was sent to the Senate March 2, 1801, and was approved the next day, a few hours before Jefferson took his oath of office. The commission, regularly made out, signed by the President, countersigned by John Marshall the acting Secretary of State, and duly sealed, was left with other documents on the table in the State Department, where it came into the possession of Attorney-General Lincoln, acting as President Jefferson’s Secretary of State. Jefferson, having decided that late appointments were nullities, retained Marbury’s commission. Marbury, at the December term of 1801, moved the Supreme Court for a Rule to Secretary Madison to show cause why a mandamus should not issue commanding him to deliver the document. The Rule was duly served, and the case argued in December, 1801; but the Judiciary Act having suspended for fourteen months the sessions of the Supreme Court, the Chief-Justice did not deliver his opinion until Feb. 24, 1803.[94]

The strongest admirers of Marshall admitted that his manner of dealing with this case was unusual. Where a judgment was to turn on a question of jurisdiction, the Court commonly considered that point as first and final. In the case of Marbury the Court had no original jurisdiction, and so decided; but instead of beginning at that point and dismissing the motion, the Court began by discussing the merits of the case, and ruled that when a commission had been duly signed and sealed the act was complete, and delivery was not necessary to its validity. Marbury’s appointment was complete; and as the law gave him the right to hold for five years, independent of the Executive, his appointment was not revocable: “To withhold his commission, therefore, is an act deemed by the Court not warranted by law, but violative of a legal vested right.”

This part of the decision bore the stamp of Marshall’s character. The first duty of law, as he understood it, was to maintain the sanctity of pledged word. In his youth society had suffered severely from want of will to enforce a contract. The national government, and especially the judiciary, had been created to supply this want by compelling men to perform their contracts. The essence of the opinion in Marbury’s case was that the Executive should be held to the performance of a contract, all the more because of his personal repugnance. Marshall ruled that Marbury had to his commission a vested legal right of which the Executive could not deprive him; and although the Court could not intermeddle with the prerogatives of the Executive, it might and would command a head of department to perform a duty not depending on Executive discretion, but on particular Acts of Congress and the general principles of law. The mandamus might issue, but not from the Supreme Court, which had appellate jurisdiction only. In other words, if Marbury chose to apply for the mandamus to Judge Cranch and the District Court, he might expect the success of his application.

The decision in Marbury’s case naturally exasperated Jefferson; but the chief-justice knew the point beyond which he could not go in asserting the jurisdiction of his court, and was content to leave the matter as it stood. Marbury never applied for the mandamus in the court below. The opinion in the case of Marbury and Madison was allowed to sleep, and its language was too guarded to furnish excuse for impeachment; but while the President was still sore under the discourtesy of Marshall’s law, another member of the Supreme Bench attacked him in a different way. If one judge in the United States should have known the peril in which the judiciary stood, it was Justice Samuel Chase of Maryland, who had done more than all the other judges to exasperate the democratic majority. His overbearing manners had twice driven from his court the most eminent counsel of the circuit; he had left the bench without a quorum in order that he might make political speeches for his party; and his contempt for the popular will was loudly expressed. In the cases of Fries and Callender, in 1800, he had strained the law in order to convict for the government; and inasmuch as his energy was excess of zeal, for conviction was certain, he had exposed himself to the charge of over-officiousness in order to obtain the chief-justice’s chair, which was given to Marshall. That he was not impeached after the change of administration proved the caution of the Republican party; but by this neglect Congress seemed to have condoned his old offences, or at least had tacitly consented to let their punishment depend on the judge’s future good behavior.

Unluckily Chase’s temper knew no laws of caution. He belonged to the old class of conservatives who thought that judges, clergymen, and all others in authority should guide and warn the people. May 2, 1803, barely two months after Marshall’s defiance of the President in Marbury’s case and the impeachment of Pickering, Justice Chase addressed the grand jury at Baltimore on the democratic tendencies of their local and national government.[95]

“Where law is uncertain, partial, or arbitrary,” he said; “where justice is not impartially administered to all; where property is insecure, and the person is liable to insult and violence without redress by law,—the people are not free, whatever may be their form of government. To this situation I greatly fear we are fast approaching.... The late alteration of the Federal judiciary by the abolition of the office of the sixteen circuit judges, and the recent change in our State Constitution by the establishing of universal suffrage, and the further alteration that is contemplated in our State judiciary (if adopted) will in my judgment take away all security for property and personal liberty. The independence of the national judiciary is already shaken to its foundation, and the virtue of the people alone can restore it.... Our republican Constitution will sink into a mobocracy,—the worst of all possible governments.... The modern doctrines by our late reformers, that all men in a state of society are entitled to enjoy equal liberty and equal rights, have brought this mighty mischief upon us; and I fear that it will rapidly progress until peace and order, freedom and property, shall be destroyed.”

At the moment of Justice Chase’s outburst to the Baltimore grand jury, the President was at Washington deeply interested in the Louisiana business, and unaware that on the day when Chase delivered his tirade Livingston and Monroe in Paris were signing their names to a treaty which put the Administration beyond danger from such attacks. When he saw in the newspapers a report of what had been said from the bench at Baltimore, he wrote to Joseph Nicholson, in whose hands already lay the management of Pickering’s impeachment:[96]—

“You must have heard of the extraordinary charge of Chase to the grand jury at Baltimore. Ought this seditious and official attack on the principles of our Constitution and on the proceedings of a State to go unpunished; and to whom so pointedly as yourself will the public look for the necessary measures? I ask these questions for your consideration; for myself, it is better that I should not interfere.”

“Non-intervention,” according to Talleyrand, “is a word used in politics and metaphysics, which means very nearly the same thing as intervention.” The event proved that non-intervention was wise policy; but Jefferson was somewhat apt to say that it was better he should not interfere in the same breath with which he interfered. The warning that he could not officially interfere seemed to imply that the quarrel was personal; for in the case of Pickering he had interfered with decision. If this was his view, the success of any attack upon Chase would be a gain to him, and he was so ordering as to make failure a loss only to those who undertook it. Nicholson, hot-headed though he was, did not enter readily into this hazardous venture. He reflected upon it all summer, and consulted the friends on whose support he depended. Macon wrote to him a letter of unusual length,[97] suggesting grave doubts whether a judge ought to be impeached for expressing to a grand jury political opinions which every man was at liberty to hold and express elsewhere, and closed by announcing the conviction that if any attempt were made to impeach, Nicholson ought not to be the leader. In this opinion Macon was evidently right, for Chase’s friends could not fail to suggest that Nicholson was to be rewarded by an appointment to Chase’s vacant seat on the Supreme Bench; but the House of Representatives contained no other leader whose authority, abilities, and experience warranted him in taking so prominent a part, unless it were John Randolph.

A worse champion than Randolph for a difficult cause could not be imagined. Between him and Jefferson little sympathy existed. Randolph had quarrelled with the branch of his family to which Jefferson was closely allied; and his private feelings stood in the way of personal attachment. His intimates in Congress were not chiefly Virginians, but men like Macon of North Carolina, Joseph Bryan of Georgia, and Nicholson of Maryland,—independent followers of Virginia doctrine, who owned no personal allegiance to Jefferson. That the President should have been willing to let such a man take entire responsibility for an impeachment was natural; but had Jefferson directed the step, he would never have selected Randolph to manage a prosecution on which the fate of his principles closely depended. Randolph was no lawyer; but this defect was a trifling objection compared with his greater unfitness in other respects. Ill-balanced, impatient of obstacles, incapable of sustained labor or of methodical arrangement, illogical to excess, and egotistic to the verge of madness, he was sparkling and formidable in debate or on the hustings, where he could follow the wayward impulse of his fancy running in the accustomed channels of his thought; but the qualities which helped him in debate were fatal to him at the bar.

Such was the origin of a measure which did more to define the character of the government than any other single event in Jefferson’s first administration, except the purchase of Louisiana. Randolph threw himself into the new undertaking; for he sincerely believed in the justice of his cause, and was alive to the danger of leaving the Supreme Court in the hands of Marshall and men of his stamp who were determined to consolidate the government. Yet the chance of obtaining a conviction, on a charge no stronger than that of the Baltimore address, was so slight as to incline Randolph against risking it; and he decided to insure success by putting the cases of Fries and Callender in the foreground.

This was not easily done. Pickering’s impeachment had been brought before the House by a Message from the President; but in Chase’s case the President preferred not to take part. Randolph was forced to escape the difficulty by an awkward manœuvre. During the autumn and early winter of 1803 Congress was busy with Louisiana legislation, and had no leisure for other matters; but soon after the new year Randolph rose and said[98] that in the course of the last session Mr. Smilie of Pennsylvania had made some statements in regard to Justice Chase’s conduct which seemed to call for notice, but that want of time had precluded action. Finding his attention thus drawn to the matter, Randolph gravely continued, he had felt it his duty to investigate Smilie’s charges; and having convinced himself that ground for impeachment existed, he asked the House to appoint a committee of inquiry. Such an introduction of a great constitutional struggle was not imposing; but party discipline was at its highest point, and after some vigorous Federalist resistance Randolph carried his motion by a vote of eighty-one to forty. Three Northern democrats voted with the Federalists; and although the defection seemed not serious so far as concerned the scientific Dr. Samuel L. Mitchill, whose political principles were liberal enough at all times, some importance even then attached to the vote of John Smith of New York, who was about to enter the Senate and to act as one of Chase’s judges.

Meanwhile Judge Pickering’s trial began. The Senate, “sitting as a Court of Impeachments,” listened while Nicholson, Randolph, Rodney, and six or seven other Republican members “exhibited the grand inquest of the nation.” The character of a court was taken in all the forms of summons. The Secretary of the Senate signed, and the Sergeant-at-Arms served, the summons to Judge Pickering, while the witnesses were regularly subpœnaed by the Secretary, “to appear before the Senate of the United States in their capacity of a Court of Impeachments,” and the subpœnas were served by the marshals of the district courts.

Judge Pickering was ordered to appear on the 2d of March, 1804; but when the day arrived, and the Senate was assembled, with the managers in attendance, John Pickering’s name was three times called without an answer. Vice-President Burr then submitted to the Senate a petition from Jacob Pickering, son of the impeached judge, praying the court to postpone the trial that he might have time to collect evidence with the view of showing that when the alleged crimes were committed, and two years before as well as ever since, the judge was wholly deranged, incapable of transacting any kind of business which required the exercise of reason, and therefore incapable of corruption of judgment, no subject of impeachment, and amenable to no tribunal for his actions. With this petition a letter from Robert G. Harper was laid before the court, requesting to be allowed to appear on the part of the petitioner in support of the petition. Harper, having been invited to a seat within the bar, asked whether he might be heard, not as counsel for Judge Pickering, who being insane could give no authority for the purpose, but as agent for the petitioner, to ask a postponement.

The question threw all parties into agitation. The managers instantly protested that Harper in such a character could not be heard. The senators retired for consultation, and debated all day without coming to a decision. The impeaching party dreaded the alternative to which the proof of insanity must force them,—of saying either that an insane man was responsible, or that a man mentally irresponsible might still be guilty of “high crimes and misdemeanors” for purposes of impeachment. Senator Jackson of Georgia, who had always the merit of speaking with candor, avowed the fear that presently Judge Chase’s friends would come and pretend that he too was mad;[99] but he could not, even with Breckenridge’s help, carry his point. The Northern democrats flinched. Six of them and three Southern senators voted with the Federalists, and admitted Harper in his volunteer character.

Harper put in his testimony, which was decisive in regard to the insanity; but when he rose to do so, the managers retired, saying that they considered themselves under no obligation to discuss a preliminary question raised by an unauthorized third party. The Senate went on with its session. The managers were obliged to maintain that insanity was no bar to impeachment, and the Northern democrats were forced to accept the doctrine.[100]

This view of impeachment, so far as concerned the judiciary, had strong arguments in its favor. Although the Constitution made judges’ tenure of office dependent on their good behavior, it provided no other means than that of impeachment for their removal. Even in England and in Massachusetts, judges could be removed by the joint action of Legislature and Executive; but this was not the case under the Constitution of the United States. If insanity or any other misfortune was to bar impeachment, the absurdity followed that unless a judge committed some indictable offence the people were powerless to protect themselves. Even Federalists might reasonably assume that the people had never placed themselves in such a situation, but that in making their judges subject to impeachment for misdemeanors they had meant to extend the scope of impeachment, and to include within it all cases of misbehavior which might require a removal from office for the good of the public service.

This ground was fairly taken by the impeachers, though not formally expressed. When Harper had put in his evidence and retired, the Senate sent again for the managers, who occupied one day in supplying evidence, and then left their case without argument in the hands of the court. The Senate found itself face to face with an issue beyond measure delicate, which had never been discussed, but from which escape was impossible. Acquittal of Pickering would probably be fatal to the impeachment of Chase, and would also proclaim that the people could not protect themselves from misbehavior in their judicial servants. On the other hand, conviction would violate the deep principle of law and justice that an insane man was not responsible for his acts, and not amenable to any earthly tribunal. Virginians like Randolph and Wilson Cary Nicholas, or John Breckenridge, were ready to make a precedent which should fix the rule that impeachment need not imply criminality, and might be the equivalent to removal by address. The Northern democrats were not unwilling to accept this view; but their consciences revolted against saying “guilty” where no guilt was implied or proved.

To escape this objection a compromise was proposed and adopted. The Federalists would have forced senators to say in their final vote that Judge Pickering was “guilty” or “not guilty” of high crimes and misdemeanors. Senator Anderson of Tennessee eluded this challenge by moving for a yea-and-nay vote on the question whether Pickering was guilty “as charged.” The nine Federalists alone opposed his motion, which was at length adopted by a majority of two to one. By a vote of nineteen to seven Judge Pickering was declared “guilty as charged” in the articles of impeachment; and by a vote of twenty to six the Senate resolved that he ought to be removed from office.

Two of the Federalist senators refused to vote, on the ground that the proceedings were irregular; Senator Bradley of Vermont, Senator Armstrong of New York, and Senator Stone of North Carolina tacitly protested by absenting themselves. In a Senate of thirty-four members only twenty-six voted, and only nineteen voted for conviction. So confused, contradictory, and irregular were these proceedings that Pickering’s trial was never considered a sound precedent. That an insane man could be guilty of crime, and could be punished on ex parte evidence, without a hearing, with not even an attorney to act in his behalf, seemed such a perversion of justice that the precedent fell dead on the spot. Perhaps, from the constitutional point of view, a more fatal objection was that in doing what the world was sure to consider an arbitrary and illegal act, the Virginians failed to put on record the reasons which led them to think it sound in principle. In the Louisiana purchase they had acted in a way equally arbitrary, but they had given their reasons for thinking themselves in the right. In Pickering’s case not a word was publicly spoken on either side; a plainly extra-constitutional act was done without recording the doctrine on which it rested.

The Republicans showed no hesitation. John Randolph’s orders were obeyed without open protest. Senator Bradley of Vermont talked strongly in private against them; Senator Armstrong of New York would not support them; barely half the Senate voted in their favor; but Randolph forced his party forward without stopping to see how well his steps were taken, or how far he was likely to go. As though to intimidate the Senate, March 6, the day after the managers were defeated on the vote to hear Harper, Randolph reported to the House a resolution ordering the impeachment of Justice Chase. March 12, the day when the Senate voted Pickering guilty, the House took up Randolph’s report, and the majority, without debate, voted by seventy-three to thirty-two that Chase should be impeached. Not a Republican ventured to record a vote in the negative. The next morning Randolph again appeared at the bar of the Senate, and announced that the House of Representatives would in due time exhibit articles of impeachment against Samuel Chase.

CHAPTER VIII.

As the year 1804 began, with Louisiana annexed, the Electoral Amendment secured, and the impeachments in prospect, the Federalists in Congress wrought themselves into a dangerous state of excitement. All agreed that the crisis was at hand; democracy had nearly reached its limit; and, as Justice Chase said from the bench, peace and order, freedom and property, would soon be destroyed. They discussed in private what should be done; and among the New Englanders almost all the men of weight were found to favor the policy of at least saving New England. Of the six Federalist senators from the Eastern States,—Plumer and Olcott of New Hampshire, Pickering and Adams of Massachusetts, Tracy and Hillhouse of Connecticut,—all but Olcott and Adams thought a dissolution of the Union inevitable.[101] Among the Federalist members of the House, Roger Griswold of Connecticut was the most active; he too was convinced that New England must protect herself. Samuel Hunt of New Hampshire, and Calvin Goddard of Connecticut held the same opinion. Indeed, Pickering declared that he did not know “one reflecting Nov-Anglian” who held any other.

In the month of January, 1804, despair turned into conspiracy. Pickering, Tracy, Griswold, Plumer, and perhaps others of the New England delegation, agreed to organize a movement in their States for a dissolution of the Union. They wrote to their most influential constituents, and sketched a plan of action. In a letter to George Cabot, Pickering recounted the impending dangers[102]:—

“By the Philadelphia papers I see that the Supreme Court judges of Pennsylvania are to be hurled from their seats, on the pretence that in punishing one Thomas Passmore for a contempt they acted illegally and tyrannically. I presume that Shippen, Yates, and Smith are to be removed by the Governor, on the representation of the Legislature. And when such grounds are taken in the National and State legislatures to destroy the rights of the judges, whose rights can be safe? Why destroy them, unless as the prelude to the destruction of every influential Federalist and of every man of considerable property who is not of the reigning sect? New judges, of characters and tempers suited to the object, will be the selected ministers of vengeance.”

A separation, Pickering inferred, had become necessary; but when and how was it to be effected?

“If Federalism is crumbling away in New England, there is no time to be lost, lest it should be overwhelmed and become unable to attempt its own relief; its last refuge is New England, and immediate exertion perhaps its only hope. It must begin in Massachusetts. The proposition would be welcomed in Connecticut; and could we doubt of New Hampshire? But New York must be associated; and how is her concurrence to be obtained? She must be made the centre of the confederacy. Vermont and New Jersey would follow of course, and Rhode Island of necessity. Who can be consulted, and who will take the lead? The legislatures of Massachusetts and Connecticut meet in May, and of New Hampshire in the same month, or June. The subject has engaged the contemplation of many. The Connecticut gentlemen have seriously meditated upon it.... Tracy has written to several of his most distinguished friends in Connecticut, and may soon receive their answers. R. Griswold, examining the finances, has found that the States above mentioned, to be embraced by the Northern confederacy, now pay as much or more of the public revenues as would discharge their share of the public debts due those States and abroad, leaving out the millions given for Louisiana.”

Roger Griswold wrote a few weeks afterward to Oliver Wolcott in similar terms:[103]—

“The project which we had formed was to induce, if possible, the legislatures of the three New England States who remain Federal to commence measures which should call for a reunion of the Northern States. The extent of those measures, and the rapidity with which they shall be followed up, must be governed by circumstances. The magnitude and jealousy of Massachusetts would render it necessary that the operation should be commenced there. If any hope can be created that New York will ultimately support the plan, it may perhaps be supported.”

The first action, said he, must come from the Legislature of Massachusetts, which was not yet elected, but would meet early in June. Connecticut and New Hampshire were to follow; and to Pickering’s sanguine mind the Northern Confederacy seemed already established. “The people of the East,” he said, “cannot reconcile their habits, views, and interests with those of the South and West. The latter are beginning to rule with a rod of iron.”

Pickering knew that the Federalist majority in Massachusetts was none too great. The election in May, four months later, showed a Federalist vote of 30,000 against a Republican minority of 24,000, while in the Legislature Harrison Gray Otis was chosen Speaker by 129 votes to 103. Pickering knew also that his colleague, Senator Adams, was watching his movements with increasing ill-will, which Pickering lost no chance to exasperate. Nothing could be more certain than that at the first suggestion of disunion Senator Adams and the moderate Federalists would attack the Essex Junto with the bitterness of long-suppressed hatred; and if they could not command fourteen votes in the Legislature and three thousand in the State, a great change must have occurred since the year before, when they elected Adams to the Senate for the long term over Pickering’s head. Pickering concealed his doings from his colleague; but Tracy was not so cautious. Adams learned the secret from Tracy; and the two senators from Massachusetts drew farther and farther apart, in spite of the impeachments, which tended to force them together.

The Essex Junto, which sent Pickering to Washington, and to which he appealed for support, read his letter with evident astonishment. George Cabot, Chief-Justice Parsons, Fisher Ames, and Stephen Higginson, who were the leaders consulted,[104] agreed that the scheme was impracticable; and Cabot, as gently as possible, put their common decision into words.

“All the evils you describe,” he said,[105] “and many more, are to be apprehended; but I greatly fear that a separation would be no remedy, because the source of them is in the political theories of our country and in ourselves. A separation at some period not very remote may probably take place,—the first impression of it is even now favorably received by many; but I cannot flatter myself with the expectation of essential good to proceed from it while we retain maxims and principles which all experience, and I may add reason too, pronounce to be impracticable and absurd. Even in New England, where there is among the body of the people more wisdom and virtue than in any other part of the United States, we are full of errors which no reasoning could eradicate if there were a Lycurgus in every village. We are democratic altogether; and I hold democracy in its natural operation to be the government of the worst.

“There is no energy in the Federal party, and there could be none manifested without great hazard of losing the State government. Some of our best men in high stations are kept in office because they forbear to exert any influence, and not because they possess right principles. They are permitted to have power if they will not use it.... I incline to the opinion that the essential alterations which may in future be made to amend our form of government will be the consequences only of great suffering or the immediate effects of violence. If we should be made to feel a very great calamity from the abuse of power by the National Administration, we might do almost anything; but it would be idle to talk to the deaf, to warn the people of distant evils. By this time you will suppose I am willing to do nothing but submit to fate. I would not be so understood. I am convinced we cannot do what is wished; but we can do much, if we work with Nature (or the course of things), and not against her. A separation is now impracticable, because we do not feel the necessity or utility of it. The same separation then will be unavoidable when our loyalty to the Union is generally perceived to be the instrument of debasement and impoverishment. If it is prematurely attempted, those few only will promote it who discern what is hidden from the multitude.”

Cabot’s letter, more clearly than any writing of Alexander Hamilton himself, expressed the philosophy and marked the tactics of their school. Neither Cabot nor Hamilton was a lively writer, and the dust which has gathered deep on their doctrines dulls whatever brilliancy they once possessed; but this letter showed why Cabot was considered the wisest head in his party, to whose rebuke even Hamilton was forced to bow. For patient and willing students who have groped in search of the idea which, used by Hamilton and Jefferson, caused bitterer feeling and roused deeper terrors than civil war itself, Cabot’s long and perhaps pedantic letter on the policy of disunion was full of meaning. “We shall go the way of all governments wholly popular,—from bad to worse,—until the evils, no longer tolerable, shall generate their own remedies.” Democracy must end in a crisis, experience and reason pronounced it impracticable and absurd, Nature would in due time vindicate her own laws; and when the inevitable chaos should come, then conservative statesmanship could set society on a sound footing by limiting the suffrage to those citizens who might hold in their own right two thousand dollars value in land. Meanwhile disunion would be useless, and the attempt to bring it about would break up the Federalist party. “A war with Great Britain manifestly provoked by our rulers” was the only chance which Cabot foresaw of bringing the people of New England to a dissolution of the Union.