352

JEFFERSON'S ATTITUDE.

nor foolish. It was the first expansion of the Republic, and in directing it Jefferson showed statesmanship of the highest order. He did not suffer the silence of the Constitution respecting the acquisition of territory to prevent securing for the American people a region of country essential to their general welfare. In admitting that the Constitution made no provision for acquiring foreign territory, or incorporating foreign Nations into the Union, and in confessing that he believed that he had done an act beyond the Constitution, Jefferson was an honest man. But he believed that the act was for the good of the country, and for this reason the treaty should be ratified, the purchase money paid, and the Democratic-Republican party, which was responsible for the transaction, should appeal to the country for support. But Jefferson had sufficient respect for the fundamental law to urge an amendment to the Constitution formally ratifying the purchase, and he went so far as to draw one up, with the intention of submitting it to Congress. The great transaction, however, had been completed; the country believed in Jefferson and soon expressed itself in no unmistakable terms in favor of his policy in negotiating the acquisition. The party leaders, perhaps less scrupulous than Jefferson, declared that there was no need of an amendment, which evidently was also the opinion of Congress, for the matter was dropped. The acquisition of the Louisiana country remains unique in our history as an example of the abandonment of party doctrines by a party chief long enough to execute a policy which in principle contradicted his rule of constitutional interpretation.

But Jefferson and his friends were not alone in abandoning party precepts. The Federalists in like manner forgot their principles and attacked the purchase as unconstitutional, but they spoke as men piling up evidence

FEDERALIST OPPOSITION.

353

against themselves. What they lacked in argument they more than supplied in threats; they out-Jeffersoned Jefferson in demanding a constitutional amendment, but insisted that it should be adopted prior to the treaty. Even Nicholson of Maryland failed to satisfy them in his argument that a sovereign Nation always possesses a right to acquire new territory, though he cited in proof the provision in the Constitution which empowers Congress to dispose of and to make all needful rules and regulations respecting the territorial or other property of the United States. But this was a borrowed plume, a Federalist argument, and interpreted the Constitution along lines which the Democratic-Republicans long had somewhat noisily held to be highly dangerous.

Another objection of more serious nature was made by Pickering of Massachusetts, the late Secretary of State under Adams, who declared in the Senate that such a transaction as the purchase of Louisiana, which so seriously affected the Union, could not be made without the assent of each State, a remarkable utterance for a HighFederalist. "In like manner," said he, "as in a commercial house, the consent of each member would be necessary to admit a new partner into the company." But this partnership theory of the government was new, at least as a Federalist doctrine, though old enough in the mouths of the Republicans, who had made effective use of it when exploiting the Kentucky and Virginia resolutions, though they saw nothing in it now. Some of them blandly asked the Federalists, how this partnership theory could be harmonized with their favorite theory that the general government was national, not federal in character. All in all the debate was curious. Federalists turned Republicans, Republicans turned Federalists, at 1 Benton's Debates of Congress, III, 13.

354

ATTITUDE OF HAMILTON.

least for a time, and the transformation, in both cases, was merely to further party interests.

Hamilton was sharply criticised for supporting Jefferson, but he was not the only broad constructionist who stood with the President; John Quincy Adams sustained Jefferson and was promptly read out of the Federalist party. He agreed with Hamilton that the purchase was the right thing, but he differed with him as to the best means of removing the difficulties left over. He favored ratification of the purchase by the State legislatures as equivalent to a constitutional amendment, but this advice so plainly squinted between the old time national doctrine of the Federalists and the Republican doctrine of '98, that Adams found friends in neither party. Henceforth to the end of his life he continued to be the most active and able Independent in public life. Many Federalists, though not the great leaders, suddenly professed their belief in the doctrine of '98, and urged its radical application. Let the States pass on the question of the purchase, but rather than an approval of the treaty let them secede from the Union.1 But this program was too heavy, as only three States had Federalist legislatures at this time. Hamilton, who saw both the danger and the absurdity of this advice, opposed it. The correspondence of some of the Federal leaders with Aaron Burr at this time, the ultimate purpose of which is not exactly known, has been supposed by many to point clearly to secession. The disaffected Federalists persisted in saying that the Louisiana purchase would injure the North and East beyond remedy. But the element of danger latent in the acquisition seems to have been wholly missed, for not one Federalist is on record as having anticipated the extension of slave territory which the purchase made possible,

1 Jefferson's Works, IV, 542.

MARSHALL'S OPINION.

355

nor of foreseeing the effect which it was to have upon the history of the slave power.

Neither did the Republicans in defending the treaty hint at slavery extension; that issue was reserved for a later day. The bitter controversy over the treaty shows how political parties are dominated at critical times by expediency. The irony of history did not cease with the mere exchange of party position. Twenty-five years after the purchase, Chief-Justice Marshall, the greatest of our judges and one of the most uncompromising Federalists of his time, in an official opinion, fully sustained the constitutionality of the purchase. The Constitution, said he, confers absolutely on the government of the Union the powers of making war and of making treaties; consequently that government possesses the power of acquiring territory either by conquest or by treaty.1 Marshall was Chief-Justice at the time Louisiana was acquired. It is believed that he held the opinion then which he afterward expressed in his decision. That a few radical Federalists, chiefly in New England, advocated secession rather than acquiescence in the treaty is beyond doubt, but whether action would have followed speech is doubtful. It is an interesting question whether Marshall would have given a decision sustaining the constitutionality of the acquisition had the case involving this issue come before him in 1803. We believe that he would have sustained the purchase as constitutional. It may be asserted, boldly, that he would not have sustained an act of secession.2 The purchase of the Louisiana country under Jefferson became the precedent for all our later acquisitions, and the prin

1 The American Insurance Co., et al, vs. Canter, 1 Peters, 511, (1828).

2 Compare Cohens vs. Virginia, 6 Wheaton, 377; Ogden vs. Sanders, 12 Wheaton, 332.

ciple laid down by the Chief-Justice forever settled the question of their constitutionality.

Four years after the Louisiana purchase, one aspect of the issue of secession came up in connection with the embargo of 1807,1 which bore heavily on the commerce and manufactures of the whole country, but most heavily on New England, where it provoked serious opposition. Its defenders argued that it had been made in the exercise of the war power, under the authority of Congress to regulate commerce; but this did not convince the majority of the people of New England of the constitutionality of the law. Of the sentiment of New England toward the act Webster has not left us in doubt. Instead of regulating commerce, it stopped it indefinitely, for the law was perpetual; therefore, New England considered it a violation of the Constitution. Here, said Webster, was a fine opportunity for the New England States, and especially Massachusetts, to declare, according to the doctrine of '98, that the embargo law was a deliberate, palpable and dangerous exercise of power not granted by the Constitution. It was deliberate, because long continued; palpable, because no words in the Constitution, but only a violent construction of it suffered the law; and it was dangerous, since it threatened utterly to ruin the most important interest of the States. It beggared thousands of families; but the State went no further than to petition Congress for its repeal and with some effect.3 Though a majority of the New England people believed that the law was unconstitutional, they were willing that the decision should be made by the proper tribunal. It was made and it was made against them. The constitu

1 Act of December 22, 1807; Statutes at Large, II, 451.

2 Life of William Plummer, 369; Gould's Portland, 423. 8 Benton's Debates, III, 629; Webster's speech.