History of the United States During the Administrations of Thomas Jefferson/First/II:4


Chapter 4: Constitutional DifficultiesEdit

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.[1] "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[2] 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 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 mad. 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.[3]

"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 father, 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.[4]

"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 governemnts, 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.[5] "In Connecticut, Massachusetts, and New Hampshire there is still a Federal ascendancy; 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."[6] 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,[7] 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.[8] "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 32nd 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.[9] Robert Smith wrote at some length, July 9, dissuading Jefferson from grafting so strange a shoot upon the Constitution.[10]

"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 Breckinridge of Kentucky a long and genial letter. Congress, he supposed,[11] 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 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:[12]

"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 show 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:[13] "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.[14] 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,[15] "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 to 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.[16] 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.[17] 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.

  1. Jefferson to Thomas Cooper, Nov. 29, 1802; Works, iv. 452.
  2. Report of the Secretary of the Treasury, Dec. 16, 1802. Annals of Congress, 1802-1803, 1276.
  3. Lincoln to Jefferson, Jan. 10, 1803; Jefferson MSS.
  4. Gallatin to Jefferson, Jan. 13, 1803; Gallatin's Works, i. 112.
  5. Jefferson to Governor McKean, Feb. 19, 1803; Jefferson MSS.
  6. Jefferson to Colonel Hawkins, Feb. 18, 1803; Works, iv. 565.
  7. Jefferson's Writings (Ford), viii. 234.
  8. Jefferson's Writings (Ford), viii. 241.
  9. Gallatin to Jefferson, July 9, 1803; Works, i. 127.
  10. Jefferson's Writings (Ford), viii. 241.
  11. Jefferson to Breckinridge, Aug. 12, 1803; Works, iv. 498.
  12. Jefferson's Writings (Ford), viii. 245.
  13. Jefferson to Madison, Aug. 18, 1803; to R. Smith, Aug. 23; Jefferson MSS.
  14. Jefferson to Madison, Aug. 25; to Lincoln, Aug. 30, 1803; Works, iv. 501-505; to Gallatin, Aug. 23, 1803; Gallatin's Works, i. 144.
  15. W. C. Nicholas to Jefferson, Sept. 3, 1803; Jefferson MSS.
  16. Jefferson to W. C. Nicholas, Sept. 7, 1803; Works, iv. 505.
  17. Yrujo to Madison, Sept. 4, Sept. 27, Oct. 12, 1803; State Papers, ii. 569, 570.