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CORNELL UNIVERSITY LIBRARY 
 
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UNIVERSITY OF CALIFORNIA 
 PUBLICATIONS IN HISTORY 
 
 HERBERT E. BOLTON 
 
 EDITOR 
 
 VOLUME X 
 
THE 
 
 CONSTITUTIONAL HISTORY 
 
 OF THE 
 
 LOUISIANA PURCHASE 
 1803-1812 
 
 BY 
 
 EVERETT SOMERVILLE BROWN, Ph.D. 
 
 UNIVERSITY OF CALIFORNIA PRESS 
 BERKELEY 
 
PREFACE 
 
 One of the most striking features of the history of the United 
 States is the gradual extension of its boundaries westward and 
 the successful operation of a colonial, or territorial, system of 
 government. Hardly had the Constitution, which contained no 
 specific grant of power to acquire territory, been put into effect 
 when the first step in the acquisition of foreign territory was 
 made. The purpose of this monograph is to discuss the most 
 important of the constitutional questions which arose as a con- 
 sequence of the purchase of Louisiana, and to show how the 
 statesmen and legislators in charge of affairs at that time inter- 
 preted the Constitution in answering those questions. Much has 
 been written on the Louisiana Purchase but no connected nar- 
 rative of its constitutional aspects has hitherto appeared. 
 
 The writer believes that he has added many important details 
 to the printed accounts of United States history. For instance, 
 he has given, for the first time, the detailed storj'- of the Senate 
 debate on the Breckinridge Bill. Then, too, there is much to 
 be learned of the struggle between correct theory and actual 
 practice in government from tracing Jefferson's plans for the 
 settlement and government of Louisiana. The status of the 
 inhabitants of territories — so fruitful a theme for controversy 
 even to the present day; the control of slavery and the slave- 
 trade bj^ Congress, set forth with startling bitterness in the 
 Senate debate on the Breckinridge Bill; and the Indian and 
 land questions, always incidental to American westward expan- 
 sion, all have new light shed upon them, 
 
 A certain limitation should here be made. This study has 
 been confined principally to the lower part of the province 
 purchased from France, that which was organized as Orleans 
 
Constitutional History of the Louisimm Purchase 
 
 Territory and which later entered the Union as the state of 
 Louisiana. Occasional reference is made to Upper Louisiana 
 but to have traced the constitutional history of the entire area 
 known as Louisiana would have involved entering a field almost 
 limitless in extent. The writer hopes, however, to make further 
 investigation of the constitutional history of the territorial 
 expansion of the United States. 
 
 In writing this monograph, mucli hitherto unpublished man- 
 uscript material has been utilized. Personal investigation was 
 conducted in the following places: the University of California 
 Library; the Bancroft Library; the Cabildo (home of the Louis- 
 iana Historical Society), and the City Hall, New Orleans; the 
 Library of Congress, especially the Manuscript Division; the 
 Bureau of Rolls and Library of the State Department, Washing- 
 ton, D. C. ; the Boston Public Library; the Massachusetts 
 Historical Society Library ; the Athenaeum ; Harvard University 
 Librar3'^ ; the American Antiquarian Society Library, Worcester, 
 Mass. ; the New Hampshire Historical Society Library, and the 
 New Hampshire State Library, both located at Concord ; and the 
 New York Public Library. 
 
 Much new information was obtained from the William 
 Plumer manuscripts, a mine of hitherto little-consulted material. 
 William Plumer was born at Newburj-port, Massachusetts, in 
 1759, but moved with his parents to Epping, New Hampshire, 
 in 1768. He was given a liberal education, following which he 
 engaged in the practice of law. Entering the political field, 
 he served for a number of years in the state legislature, and rose 
 to the position of presiding officer of the house of representa- 
 tives and, later, of the senate. He was a member of the state 
 constitutional convention in 1791-1792; served as United States 
 senator from New Hampshire from December 6, 1802, to March 
 3, 1807; was governor of his state for the terms of 1812-1813 
 
 VI 
 
Preface 
 
 and 1816-1819; and, as presidential elector in 1820, east the 
 single vote against James Monroe. Plumer devoted the later 
 years of his life to literature. He died in 1850. 
 
 Having decided earlj^ in life to write a history of the United 
 States, Plumer made use of every opportunity^ to collect mater- 
 ials to that end. His ambition as a historical writer was not 
 gratified, but he left a vast quantity of manuscripts, invaluable 
 for the history of his period. A small part of this collection 
 was used by William Plumer Jr. in his Life of Willmm Plumer. 
 In that book, however, the younger Plumer practically ignored 
 the very valuable memorandum which Senator Plumer kept of 
 the debates in the United States Senate from 1803 to 1807. This 
 memorandum gives detailed information on government matters 
 seemingly nowhere else obtainable. Neither the Government 
 nor the newspapers at that time kept a full report of the debates 
 in Congress. Especiallj^ was this true of those of the Senate. 
 
 A part of this "Memorandum" was contributed by the 
 present writer to the American Historical Bevieiv, XXII (1917), 
 340-364. No other writer, so far as I can ascertain, has exten- 
 sively used the Plumer "Memorandum." In the monograph 
 a differentiation in citation is made between the "Memorandum" 
 and Plumer 's letters, the latter being referred to as MSB. 
 Plumer 's papers have not been arranged in any more definite 
 order than that in which he left them, which makes citation of 
 them rather difficult. 
 
 Other important manuscripts used were the Clmhorue Papers, 
 consisting of six volumes entitled "Claiborne's Correspondence 
 relative to Orleans Territory," and one volume, "Orleans Terri- 
 tory, Miscellaneous." These volumes in the Bureau of Rolls 
 and Library in the Department of State in Washington, contain 
 Governor Claiborne's reports of the territorial government of 
 Louisiana, or, to be more exact, of Orleans Territory, from 
 
 Vll 
 
Canstitutimial History of the Louisiana Purchase 
 
 December, 1803, when the province was turned over to the 
 American commissioners, until the admission, in 1812, of 
 Orleans Territory into the Union as the state of Louisiana. 
 The volume of miscellaneous papers contains a few items of as 
 late date as 1815. An idea of the number of letters in the 
 Claiborne collection and the subject matter contained in them, 
 can be obtained by consulting David W. Parker, Calendar of 
 papers in Washington relating to the territories of the United 
 States, Washington, D. C, 1911 (Publication number 148 of the 
 Carnegie Institution). Copies of Claiborne's letters and papers 
 have been preserved in Jackson, Mississippi.* 
 
 From the Jefferson, Madison, and Monroe papers were 
 gleaned many items not contained in the published writings of 
 these statesmen. Especially was this true of letters which had 
 been available only in part in printed form. The following 
 bibliographical aids were of much assistance in the examination 
 of the voluminous collections just cited : 
 
 Calendar of the Correspondence of Thomas Jefferson, Part I, Letters from 
 Jefferson. BuUetin No. 6 of the Bureau of Rolls and Library of the 
 Department of State, "Washington, 1894. 
 
 Ibid., Part. II, Letters to Jefferson. Bulletin No. 8 of the same depart- 
 ment. "Washington, 1895. 
 
 Ihid., Part III, Supplementary. Bulletin No. 10 of the same department. 
 Washington, 1903. (Calendar of papers received after the publication 
 of Bulletin No. 8.) 
 
 * See the Third Anmtal Report of the Director of tlie Department of 
 Archives and History of the State of Mississippi from October 1, 1903, 
 to October 1, 1904, Dunbar Rowland, director. Nashville, Tenn., 1905. Also 
 Elev€7ith and Twelfth Eeports of the Director of the Departm-ent of Archives 
 and History of the State of Mississippi from November 1, 1911, to Octo- 
 ber 31, 1912. An Official Guide to the Historical Materials in the Mississippi 
 Department of Archives and History, Dunbar Rowland, LL.D., director. 
 Nashville, Tenn., 1914. 
 
 At the time when this monograph was being -written, the Official Letter 
 Books of W. C. C. Claiborne, 1801-1816, edited by Dunbar Rowland (6 vols. 
 Jackson, Miss., 1917) had not yet appeared. Many of the Claiborne letters 
 cited in manuscript form are now available in print. 
 
 viii 
 
Preface 
 
 Calendar of the Correspondence of Javies Monroe. Bulletin No. 2 of the 
 same department. Washington, 1893. 
 
 Calendar of the Correspondence of James Madison. Bulletin No. 4 of 
 the same department. Washington, 1894. 
 
 Arrangement of tlie Papers of Madison, Jefferson, Hamilton, Monroe, and 
 Franklin. Bulletin No. 5 of the same department. Washington, 1894. 
 
 A number of unpublished letters bearing on the subject of 
 Louisiana were found in the Pickering Payers, in the library of 
 the Massachusetts Historical Society. Consultation of the Pick- 
 ering collection also afforded the opportunity of correcting or 
 verifying dates and names used erroneously or doubtfully by 
 editors of the printed works of some of Pickering's correspon- 
 dents. The Historical Index to the Pickering Payers in the 
 Massachusetts Historical Society, Collectio-ns, Sixth Series, III, 
 Boston, 1896, was of great assistance in the use of these papers. 
 
 Occasional important letters were picked up in odd places. 
 An excellent example is the Nahum Mitchell letter, quoted in 
 Chapter VIII, which was found among the Rohhins Papers. 
 The present writer is unaware of its ever having been previously 
 used. 
 
 Needless to say, the published writings of the statesmen 
 already mentioned, as well as many others, were carefully con- 
 sulted. A full list is given in the bibliography. 
 
 The controversial side of the Louisiana question is well 
 illustrated by contemporaneous printed pamphlets and news- 
 papers. On the publications of this type, the citations in the 
 monograph and the bibliography afford sufficient comment. 
 
 Secondary authorities were used only to substantiate a 
 statement already obtained from primary sources, or when the 
 author of the book cited was himself quoting primary authorities. 
 In this respect the books most used were those of Henry Adams 
 and Charles Gayarre. 
 
 IX 
 
Constitutmiol History of the Louisiatia Purchase 
 
 The writer wishes to thank all those librarians and archivists 
 who made possible his search for materials. In particular, in 
 this respect, does he owe much to the never-failing kindness of 
 Mr. John C. Fitzpatrick of the Manuscript Division of the 
 Library'- of Congress. Acknowledgments are also due to Pro- 
 fessor Frederick J. Teggart of the University of California for 
 suggestive criticism; and to Professor Herbert E. Bolton and 
 the editorial committee of the University of California Press for 
 the editing of the monograph. The writer's wife was especially 
 helpful in the arduous task of copying manuscripts and in read- 
 ing proof. Finally, the writer desires to express his appreciation 
 of the kindly and scholarly assistance of Dr. Eugene Irving 
 McCormac of the University of California, under whose guidance 
 this study was made. 
 
 Everett Somerville Brown. 
 Washington, D.C, December 18, 1918. 
 
CONTENTS 
 
 PAGES 
 
 Preface _ v-x 
 
 CHAPTER I 
 ^Events Leading to the Purchase .1-13 
 
 CHAPTER II 
 The Constitutional Right to Acquire Territory: Contempo- 
 rary Opinion 14 -35 
 
 CHAPTER III 
 ■^ The Status of the Acquired Territory: Contemporary Opinion 36-48 
 
 CHAPTER IV 
 The Debate on the Treaty: the Treaty-Making Power 49-61 
 
 CHAPTER V 
 J The Debate on the Treaty, (1) The Right to Acquire Terri- 
 tory. (2) Status of the Acquired Territory. (3) Commer- 
 cial Privileges Under the Treaty 62-83 
 
 CHAPTER VI 
 The Government of the Acquired Territory 84-100 
 
 CHAPTER VII 
 
 The Debate in the Senate on the Louisiana Government Bill 101-131 
 
 CHAPTER VIII 
 The Louisiana Government Bill in the House 132-140 
 
 CHAPTER IX 
 Problems of Territorial Government 147-169 
 
 CHAPTER X 
 Demands for Statehood and the Question op West Florida .— 170-187 
 
 CHAPTER XI 
 Admission to Statehood 188-196 
 
 Bibliography 197-209 
 
 Appendix 210-234 
 
 Index - 235 
 
 XI 
 
CHAPTER I 
 EVENTS LEADING TO THE PURCHASE 
 
 The early years of the nineteenth century were crucial ones 
 for the new government of the United States. The "critical 
 period" under the Articles of Confederation had led to the 
 demand for a more effective plan of government, and the Con- 
 stitution was the result. The ratification of this instrument was, 
 however, but the beginning of another period of experiment ; or 
 better, perhaps, another chapter in the history of the old 
 experiment. The danger of disunion and consequent disinte- 
 gration had become apparent to all thinking citizens of the 
 young nation. Such dangers must in future be avoided or inde- 
 pendence threatened to become a curse rather than a blessing. 
 Did the Constitution offer the solution of these perplexing prob- 
 lems? It was a well known fact that the Constitution was the 
 result of compromises and that it had been ratified by the people 
 in the states onlj'- after a long campaign and in the face of 
 strong opposition. The Constitution had merelj^ laid down a 
 framework of government; a framework which had to be elab- 
 orated into a working system. The powers of the Federal 
 Government must be made strong enough to meet the needs 
 of the country as a whole, but could this be done without infring- 
 ing upon the constitutional rights claimed by the states ? 'What 
 were the rights of the ."original partners" to the compact? 
 Could their relative importance in the councils of state be 
 altered without their consent, given by their legislatures or 
 by conventions called for that purpose? 
 
 Only fourteen years after the ratification of the Constitution 
 a tremendous new problem was thrust upon the infant govern- 
 ment for settlement. This was the acquisition of Louisiana, 
 a vast, undeveloped, foreign country, equal in size to the entire 
 
2 Constitutional History of the Louisiana Purchase 
 
 United States of that daj^ What would be its effect on the 
 destinies of the Republic? 
 
 Undoubtedly the purchase of Louisiana was one of the most 
 momentous steps in the history of our countr3\ In its broader 
 aspects, viewed from the present time, it insured to the American 
 people the opportunity of westward expansion, and through the 
 ownership of a vast public domain helped in the upbuilding of a 
 broader national feeling and occasioned the downfall of the 
 policy of strict construction of the Constitution.^ In its own 
 day the acquisition, after the establishment of independence and 
 the Constitution, was hailed as "the greatest political blessing 
 ever conferred on these states."^ 
 
 Yet the purchase of Louisiana incidentally raised many con- 
 stitutional points, the settlement of which has been of the utmost 
 significance in the constitutional historj^ of the United States, 
 In the words of Professor Frederick J, Turner: "When the 
 whole sweep of American history and the present tendencies of 
 / our life are taken into view, it would be possible to argue that 
 the doctrines of the Louisiana Purchase were farther-reaching 
 jin their effect upon the Constitution than even the measures 
 I' of Alexander Hamilton or the decisions of John Marshall. ' '^ 
 / To this strong statement may be added that of a well known 
 expositor of the Constitution, who asserts that the purchase of 
 Louisiana from France "gave such direction to the subsequent 
 thought of the people and led to such marshaling of political 
 forces, that nearly all the leading events of later American 
 history were either traceable to or in some measure shaped or 
 detei-mined by it."* 
 
 1 Turner, ' ' Significance of the Frontier in American History, ' ' in Amer- 
 ican Historical Association, Aimiuxl Beport, 1903, 218. 
 
 2 David Ramsay, An Oration on the Cession of Louisiana to the United 
 States, . . . May 12, 1804, . . . Charleston, S. C. 
 
 3 Turner, "Significance of the Louisiana Purchase," in Review of Re- 
 views, XXVII, 584. 
 
 4 Cooley, "The Acquisition of Louisiana," in Indiana Historical Society, 
 Publications, II, 65. 
 
Events Leading to the Purchase *6 
 
 What did the men who helped to frame the Constitution 
 think of the questions involved in the acquisition and govern- 
 ment of Louisiana? What interpretation of that instrument 
 was made by members of Congress when the question of the 
 right to acquire and govern foreign territory came before them ? 
 The writings of the statesmen concerned, and the debates in 
 Congress show the great interest displayed in the problems 
 which arose ; and the settlement of these problems has served as 
 the basis for similar decision in later cases. Details might var^ 
 but in t he broader aspects of constitutional interpretation arising 
 from the acquisition of foreign territory by the United States, 
 the Louisiana Purchase served as tlie great precedent. 
 Tite eveuls^ading to the purchase ~of Louisiana^may be 
 
 treated briefly. The necessity for the control of a p lace of 
 deposit for merchandise on the lower Mississippi had been recog- 
 nized 'T}y^~ariafge~l)iaff" of the^eople~o:f~the~Unifed StatesT A 
 widespread alarm was therefore aroused when, through the ces- 
 sion~of tEe Louisiana territory by Spain to France^_a_stronger 
 power "came into contact jwitli the United States in that region. 
 President Jefferson in his second annual message to Congress, 
 December 15, 1^2, declared: "Tlie cession of the _Sganish" 
 Province of .Louisiana_taJPrance,- which-4^ok place^in. the course 
 of the late war, will if carried into effect, make a change in 
 the aspect of our foreign relations which will doubtless have 
 just weight in any deliberation of the Legislature connected 
 with that subject."' 
 
 Upon the first rumors of such a transfer of Louisiana from 
 Spain to France, Secretary of State Madison had written to 
 Robert R. Livingston, United States minister to France, asking 
 him to find out whether or not these rumors were true; and if 
 so, to ascertain whether France could not be induced to transfer 
 the Floridas to the United States, provided they were included 
 
 5 Biehardson, Messages and Papers of tlie Presidents, I, 343. 
 
4 Constitutwiial History of the Lo^imaiia Purchase 
 
 in the cession. At the very least, West Florida was to be 
 obtained, if possible. If the Floridas were not included in the 
 transfer, Livingston was to make every effort to obtain the 
 consent of France and Spain to their cession to the United 
 States. Should he learn that the Floridas were still in the 
 hands of Spain, Livingston was to act in harmony with Charles 
 Pinckney at Madrid in an attempt to procure them.® Livingston 
 immediately opened negotiations with the French Minister of 
 Exterior Relations.' Sj2ain_insiste_d-that4lie-F4o^ri<ias~w«i:^not 
 incl udedJn_the_cession, whileJFranca held that theyjwere.^ Liv- 
 ingston continued negotiations. In answer to a question from 
 Joseph Bonaparte whether the United States would prefer the 
 Floridas to Louisiana, Livingston replied that his Government 
 had no wish to extend its boundary across the Mississippi. All 
 that was sought was security'', not extension of territor^'.^ 
 
 While these negotiations were being carried on under the 
 direction of the President, Congress was not idle. On January 
 4, 1803, Roger Griswold of Connecticut read the part of the 
 President's message of December 15 relating to the cession of 
 Louisiana to the French and made the following motion: 
 
 Sesolved, That the President of the United States be requested to direct 
 the proper ofl&cer to lay before the House copies of such official documents 
 as have been received by this Government, announcing the cession of Louis- 
 iana to France, together vrith a report explaining the stipulations, circum- 
 stances, and conditions, under -which that province is to be delivered up ; 
 unless such documents and reports will, in the opinion of the President, 
 divulge to the House particular transactions not proper at this time to be 
 eommunieated, 
 
 Griswold stated that although he did not desire from the Presi- 
 dent papers that might be improper at the time, nevertheless 
 
 <5 Madison to Livingston, September 28, 1801, in Annals of Congress, 
 7 Cong., 2 Sess. (1802-1803), Appendix, 1014^1016. 
 
 ribid., 1022-1023. 
 
 sihid., 1052. 
 
 9 Livingston to the President, October 28, 1802, in ibid., 1055. 
 
Events Leading to the Purchase 5 
 
 he considered the subject very important, and one that might 
 require from the Legislature further protection for the frontier 
 facing the ceded province.^" 
 
 "Wlien_th£.jquQs tion oame -iiprfor~di"scussion on the following 
 day, John Randolph of Virginia moved to commit the resolution 
 to~lHe (Jommittee of the ^^SbI e~"on the s tate of^theZOnicm:!^ 
 This was opposed by Griswold, who claimed for the House all 
 the information in the power of the Executive to give. Referring 
 the resolution to the committee would be putting it to sleep and 
 the Legislature would be deprived of information it ought to 
 possess." Rutledge of South Carolina declared that "did he 
 consider that the giving publicity to any information on this 
 subject would in the least interfere with the Constitutional 
 functions of the President, he would be the last man to support 
 the resolution" of Griswold. He could see no improprietj'^, 
 however, in asking the President for information relative to 
 that which he had stated as a fact ; that is, as much information 
 as the president considered it expedient to give.^^ 
 
 Samuel Smith of Maryland turned to the case of the British 
 Treaty of 1794 (Jay's Treaty) as a precedent. At that time, 
 he said, one party in the House had called for the papers on the 
 principle that the negotiations having been terminated, the House 
 
 10 Annals of Congress, 7 Cong., 2 Sess, (1802-1803), 312. 
 
 11 Ibid., 314. 
 
 12 Ibid., 314-315. 
 
 13 Ibid., 316. Compare the stand taken by Eepresentative Shaekleford 
 of Missouri, March 7, 1916, on the McLemore resolutions when he said he 
 favored a resolution warning citizens of the United States against traveling 
 on ships of the belligerent powers, but if agitation for one had disturbed 
 the President's diplomatic negotiations, he was ready to vote against it. 
 In this connection the report of the House Committee on Foreign Affairs 
 on these same resolutions is worth noting. In recommending that the reso- 
 lutions be laid on the table (March 3), the committee said in part, "Under 
 the Constitution the practice and precedents in this country, the conduct 
 of diplomatic negotiations has been left to the President and with this 
 practice the committee does not think it proper for the House of Representa- 
 tives to interfere." 
 
6 Constitutiaiud History of the Lowisiwiia Purchase 
 
 had a right to obtain information before granting money under 
 a treaty. This party, however, acknowledged a call for informa- 
 tion to be improper during a pending negotiation.** Huger of 
 South Carolina did not consider the present case similar to 
 that arising out of the British Treaty. In the latter instance, 
 one party in the House claimed the right to demand the infor- 
 mation of the Executive, and he was obliged to deliver it ; while 
 the other party did not acknowledge the right of the House to 
 demand, or the obligation of the President to obey. In the 
 present case nothing was asked except what the Executive should 
 think proper to furnish. If proper for Congress to know the 
 contents of the Convention he thought they ought to have the 
 documents; if not proper, the reason should be given.*" Smilie 
 of Pennsylvania claimed that in the debate on the British Treaty 
 the resolution proposed had not been peremptory but had been 
 qualified hj an exception of such papers as the President might 
 consider it improper to furnish. He confirmed his remark by 
 quoting from the House Journals.*^ 
 
 Griswold said the ground of opposition in 1796, under the 
 British Treatv, had been that the resolution had claimed the 
 right of the House to decide upon a treaty, and to establish this 
 point papers had been called for. On the decision of the ques- 
 tion of granting or refusing the application, had depended the 
 establishment of the riglit of the House to participate in the 
 treaty-making power. Those who had voted against the call had 
 denied this right. In the case of the Louisiana convention, con- 
 tinued Griswold, there was no difference of opinion as to the 
 power of the House. The President having expressly stated in 
 his message that the cession would have weight in the delibera- 
 
 ^i Annals of Congress, 7 Cong., 2 Sess. (1802-1803), 316. 
 
 15 Ihid., 318. 
 
 16 Ibid. 
 
Events Leading to the Purchase 7 
 
 tions of the Legislature, information was necessary.^^ Despite 
 Griswold's objection, Randolph's motion to refer the motion 
 to a Committee of the Whole on the state of the Union carried 
 by a vote of forty-nine to thirty-nine.^^ 
 
 In the debate on Randolph's motion, various views were 
 expressed regarding the relation of the branches of the Govern- 
 ment to one another. Dana of Connecticut held it to be not only 
 proper but the duty of the House to request any information 
 from the President which would assist in the proceedings. The 
 President, he said, was designated by the Constitution as the 
 proper person from whom information on such subjects as the 
 one under discussion was to be obtained.^^ 
 
 Randolph's answer to Dana opened the^way for a broader 
 interpretation of executive powers: 
 
 But, sir, it seems that this unfortunate resolution betrays so entire an 
 ignorance of the distribution of the powers of our Government as to clothe 
 the Executive with an authority not only not devolved upon it by the Con- 
 stitution, but which is the peculiar province of this and the other branch 
 
 ^"^ Ibid., 319. For "Washington's refusal to comply with the request of 
 the House, see his message of March 30, 1796, in Biehardson, Messages and 
 Papers of the Presidents, I, 194-196. 
 
 Because he as President was called upon to take a stand on the question 
 of the participation of the House in treaty-making, Jefferson's statements 
 on the treaty-making power at the time of the Jay Treaty are of signifi- 
 cance. In a letter to William B. Giles, December 31, 1795, he said it was 
 ^'the true theory of our constitution, that when a treaty is made, involving 
 matters confided by the constitution to the three branches of the legislature 
 conjointly, the representatives are as free as the President & Senate were 
 to consider whether the national interest requires or forbids their giving 
 the forms & force of law to the articles over which they have a power. ' ' 
 Jefferson, Writings (Ford, ed.), VII, 41. 
 
 On March 21, 1796, Jefferson wrote to Monroe that although the Presi- 
 dent and Senate had the general poAver of making treaties, yet all articles 
 contained in a treaty necessitating an act of legislation must be submitted 
 to the House, which as one branch of the Legislature '*are perfectly free to 
 pass the act or refuse it, governing themselves by their OAvn judgment 
 whether it is for the good of their constituents to let the treaty go into 
 effect or not. On the' precedent now to be set will depend the future 
 construction of our constitution, and whether the powers of legislation shall 
 be transferred from the P. Senate & H. of E. to P. Senate & Piarningo or 
 any Indian, Algerine or any other chief." Ibid., VII, 67-68. 
 
 i» Annals of Congress, 7 Cong., 2 Sess. (1802-1803), 321. 
 
 19 Ibid., 353. 
 
8 Cotistitutianal History of the LouismiM Purchase 
 
 of the Legislature. The gentleman [Mr. Dana] denies the power of the 
 Executive to redress injuries received from foreign nations. . . . Have I, 
 indeed, so far mistaken, and, contrary to my own avowed principles, am 
 so disposed to augment the Executive powers at the expense of the other 
 departments of the Government? Suppose, on the representations of the 
 Court of Spain, that Court, which is more than probable, should restore the 
 rights of navigation and deposit, disavow tlie conduct of their officers in 
 violating those rights, and, moreover, punish them for itf Would any 
 person deny that, through the agency of the Executive, constitutionally 
 exercised, the injury was redressed? . . . 
 
 By the Constitution of the United States, the Executive is the repre- 
 sentative of the United States to foreign nations. It is furnished with 
 organs by which to receive their propositions, and to communicate their 
 own. The Constitution, therefore, presumes that to this department may 
 
 be entirely confided our negotiations with foreign States Until it could 
 
 be shown that some specific act of the Executive had rendered that depart- 
 ment unworthy of our confidence, we might consistently express it : and, 
 even if proof of such misconduct could be established, it would not alter 
 the tenor of the Constitution, however the individual might be affected 
 by it. For your Constitution, sir, is not of that precarious nature Avhich 
 depends on the fluctuating characters of particular men.20 
 
 John Randolph's phrase, "fluctuating character," might well 
 be applied to himself for it is doubtful if a more unique man 
 ever sat in Congress. A sturdy defender af the-states' rights 
 theory, and one strong ly ^^rppT^S Sd'tolhfi-Gent-t^l iz i n g teoderncies- 
 of the National Government, he was at jthe^linie. of_this_d.ebate 
 one~bf the lea^rs of his party in supporting the acts of the 
 Jefferson administrat ion, w hich was now__abQut_l:iLdo^o much 
 tow'arcl^tren^he'ning the federal power. The open break with 
 liis part}^ had iiot yet conre~"and"Randolph was a man whose 
 influence was steadily growing. To be sure, he did not com- 
 pletely close his eyes to the dangers which he considered threat- 
 ening to the rights of the states and his voice was often heard 
 in. protest against certain of the measures introduced by the 
 administration. 
 
 The exigencies of the situation seemed to Jefferson to demand 
 that prompt action be taken to secure the interests of the United 
 
 20 Ibid., 360-361, 
 
Events Leading to the Purchase 9 
 
 States. "With that object in view he nominated Robert R. Liv- 
 ingston to be minister plenipotentiary and James Monroe min- 
 ister extraordinary and plenipotentiary, to enter into a treaty 
 or convention with the First Consul of France for the securing 
 of the rights of the Americans on the Mississippi. To facilitate 
 negotiations with Spain, since the possession of the territory 
 along the Mississippi was still in her hands, Charles Pinckney 
 was nominated minister plenipotentiary to that country, and 
 James Monroe was given the same position with regard to Spain 
 as in his appointment to France.^* 
 
 There was considerable objection to the appointment of 
 ^Monroe, due, Senator Plumer says, to the fact that Monroe, when 
 recalled by Washington, was friendly with the men whom 
 Napoleon Bonaparte considered as Jacobins and enemies to him. 
 Good policy, in Plumer 's opinion, would have dictated the send- 
 ing of a man who would be well received by the government to 
 whom he was sent. The appointment was confirmed by the close 
 vote of fifteen to twelve.^^ 
 
 News of Monroe's .appointment was sent to Livingston by 
 Secretary of State Madison, January 18, 1803. The object of the 
 negotiations was stated to be the procurement of New Orleans 
 and the Floridas; and consequently the establishment of the 
 ^Mississippi as the boundary line between the United States and 
 Louisiana. Toward this end a sum of uionej' would be offered 
 the French Government; also, such regulations of the commerce 
 
 21 Riehardson, Messages and Papers of ' the Presidents, I, 350-351, 
 Message to the Senate, January 11, 1803. On this matter Manasseh Cutler 
 wrote to Dr. Joseph Torrey, January 15, 1803: "The object is to make a, 
 purchase of the Province [New Orleans]. This is certainly the best thing 
 that can be done. It will save us from the expenses, hazard, and evils of a 
 war. . . , The whole, business is now left with the Executive, and Monroe, 
 late Governor of Virginia, is the minister, it is said, who is sent on this 
 business." Cutler and Cutler, Life, Journals and Correspondence of Rev. 
 Maruisseh Cutler, II, 122. 
 
 22 Plumer to Livermore, January 13, 1803 ; Plumer to Daniel Plumer, 
 January 15, 1803, in Plumer MSS. See also Plumer to John Taylor Gilman, 
 January 18, 1803, in Plumer, Life of William Plumer, 249. 
 
10 Co-nstitutiajial History of the Louisiana Purcliase 
 
 of the Mississippi and of the other rivers entering the Gulf of 
 Mexico as ought to prove satisfactory to France.^^ 
 
 In order to assist the President in his negotiations for a place 
 of deposit on the Mississippi, the House of Representatives took 
 under consideration, January 12, 1803, the report of a committee 
 on the following resolution: 
 
 Eesolved, that a sum of two millions of dollars, in addition to the pro- 
 vision heretofore made, be appropriated to defray any expenses -which may 
 be incurred in relation to the intercourse between the United States and 
 foreign nations, to be paid out of any money that may be in the Treasury, 
 not otherwise appropriated, and be applied under the direction of the Presi- 
 dent of the United States, who, if necessary, is hereby authorized to borrow 
 the whole or any part thereof; an account whereof, as soon as may be shall 
 be laid before Congress. 
 
 The committee stated the object of the resolution to be to 
 enable the Executive to commence, with more effect, a negotia- 
 tion with the French and Spanish governments relative to the 
 purchase from them of the island of New Orleans and the two 
 Floridas. The need for a place of deposit was pointed out, as 
 also for an outlet from Mississippi through "West Florida. The 
 acquisition of East Florida was considered advisable, if not a 
 necessity. Increase of territory was not the object sought; 
 although "if we look forwardnto'lliT~fi^Tuse'"of~fIiF3irssissippi, 
 the !Mobile, the Apalachicola, and the other rivers of the West, 
 by ourselves and our posterity. New Orleans and the Floridas 
 must become a part of the United States, either by purchase or 
 by conquest." The committee reported favorably on the reso- 
 lution.2^ 
 
 On February 15, 1803, a confidential message from the 
 House was received by the Senate, transmitting a bill which had 
 
 23A7inals of Congress, 7 Cong., 2 Sess. (1802-1803), Appendix, 1063- 
 1064. 
 
 24/biU, 370-374. 
 
Events Leading to the Purchase 11 
 
 passed the House, entitled * * An act making further provision for 
 the expenses attending the intercourse between the United States 
 and foreign nations," in which the concurrence of the Senate 
 was requested.^^ 
 
 There were those in the Senate_whp jjelieved in forcible^ 
 occupation of_ Jbhe desired territory. Ross of Pennsylvania 
 "^aiined the indisputable right to free navigation of the 
 Mississippi and to a place of deposit, and introduced resolutions 
 authorizing the President to take immediate possession of such 
 place or places as he saw fit for this purpose. The President 
 was also to be authorized to call into service the militia of the 
 neighboring states and the Mississippi Territory, not exceeding 
 fifty thousand, and to employ them together with the military 
 and naval forces of the Union for effecting the desired objects. 
 The sum of five millions of dollars was to be appropriated to 
 the carrA^ing into effect of these resolutions.-*' 
 
 Although Ross' resolutions were struck out, the constitutional 
 questions involved were not so quickly passed bj''. The danger 
 of armed action on the part of the Executive was pointed out by 
 Clinton of New York, who said that the measure would tend 
 toward upsetting the balance of the Government by gmng exten- 
 sive powers to the Executive: it was_an _infevitable conseq uence_ 
 -a£. jvar in free countries that the power which wielded the force 
 
 always rose above the power that expressed the will oftEF 
 people. The stale govermnents would be greatly w^eakened. 
 '^^hose~stately pillars which support the magnificent dome of 
 our National Government will totter under the increased weight 
 of the superincumbent pressure."-^ 
 
 25 Ibid., 90. 
 
 26 Ibid., 95-96. By friends of the administration Eoss was suspected 
 of representing a group of men ready to plunge the country into war and 
 ruin to gratify party ends. For this view, see the National Intelligencer, 
 February 16, 1803. 
 
 27 Annals of Congress, 7 Cong., 2 Sess. (1802-1803), 132. 
 
12 Constitwti/yiml History of tJie Lo^visiana Purchase 
 
 Gouverneur Morris of New York expressed the opinion that 
 the western regions were peculiarlj'- the heritage of the American 
 people and must be held open to the westward migration of the 
 overflowing population of the eastern states. For this reason 
 New Orleans and the Floridas must not be separated from the 
 United States.=^^ Other senators held more strictly than Morris 
 to the constitutionality of the measure proposed. Stevens T. 
 Mason of Virginia demanded : ' 
 
 Does the gentleman not know that the militia cannot be sent on the 
 service of invasion into the territory of their neighbors? Does he not know 
 that we are destitute of any authority to send them? The Constitution 
 gives Congress the power over the militia to 'suppress insurrections, and 
 repel invasid:K7' but' nothing further. . . . Gentlemen tell us that they are 
 ■"waiing'to entrust toTthe Executive the power of gong to war, or not, at his 
 discretion. . . . "Who gave them the authority to vest in any other authority 
 than in Congress the right of declaring war? . . . He could not, as one, with- 
 out treason to the Constitution, consent ever to relinquish the right of 
 declaring war to any man, or men, besides Congress.29 
 
 Mason looked into the future when he declared that Gouv- 
 erneur Morris's statement that immediate possession of the 
 Floridas must be secured, showed that the deposit at New 
 Orleans was not the real object which Morris had in mind. 
 "Presentlv we shall be told we must have Louisiana; then the 
 gold mines of Mexico — these would be good things if come by 
 honestly — then Potosi — then St. Domingo, with their sugar, 
 coffee, and all the rest."^° 
 
 The House bill ** making further provision for the expenses 
 attending the intercourse between the United States and foreign 
 nations" passed the Senate bj^ the close vote of fourteen to 
 
 ^^ Amuils of Congress, 7 Cong., 2 Sess. (1802-1803), 195. 
 
 29 7&MZ,, 216. 
 
 30 Ihid., 218-219. The movemeut of Americans into Spanish territory 
 is confirmed a little later by John Smith in his letter to Jefferson, August 
 30, 1803, from West Florida. A rumor having reached him that Louisiana 
 was to be exchanged for Florida, Smith advised against it. Florida could 
 soon be obtained at a low price. It was rapidly being settled by Ameri- 
 cans. Jefferson Papers, "Letters received at Washington, 2d Series," 
 LXXVI (46). 
 
Events Leading to the Purchase 13 
 
 twelve.^^ \Vlien Senator Plumer, as chairman of the Committee 
 on Enrolled Bills, presented the act to Jefferson, on February 26, 
 the President said that a great point had now been gained, a 
 new precedent established in our Government, namely, the pass- 
 age of an important act of Congress in secret sessimi.^^ 
 
 It does not fall within the province of this discussion to follow 
 in detail the story of the purchase of Louisiana.^^ It is the 
 history of the constitutional problems arising out of that acqui- 
 sition which will be taken up. Livingston and Monroe wrote 
 from Paris, May 13, 1803, announcing the purchase.^* Madison 
 in reply stated that the President approved of the action taken 
 by the negotiators, despite the lack of instructions, such action 
 having been justified by the reasons given by the two ministers.^^ 
 
 The reception of the treaty in Congress is described by 
 Jefferson in his letter to Livingston, November 4, 1803, in which 
 he wrote that the treaty was generally approved except by the 
 Federalists, whose "numbers were so greatlj'" reduced^hat^fHey 
 _counti3I26r.']Grttle-^^ Writing to Captain" Meriwether Lewis, 
 November 16, Jefferson said, "The votes of both Houses on 
 ratifying and carrjdng the treaties into execution, have been 
 precisely party votes, except that General Dayton has separated 
 from his friends on these questions, and voted for the treaties. ' '^'' 
 
 31 Annals of Congress, 7 Cong., 2. Sess. (1802-1803), 104. 
 
 32 Plumer, Life of William Plumer, 255-256. 
 
 • 33 See Henry Adams, History of the United States, I, 423^46, II, 25-50. 
 
 3i Annals of Congress, 7 Cong., 2 Sess. (1802-1803), Appendix, 1145- 
 1150. 
 
 35 /bid., 1166, Letter of July 29, 1803. 
 
 SG JeSerson, Writings (Washington, ed.), IV, 510. 
 
 37 Jefferson, Writings (Memorial ed.), X, 434. A similar statement 
 appears in Plumer 's '* Memorandum, " under date of October 20, 1803. 
 Plumer defended his own vote against ratification of the treaty on the 
 ground that he considered it as a direct violation of the Constitution. The 
 admission of such a vast territory into the Union would tend to divide the 
 United States into separate empires. It would destroy the influence of the 
 "Eastern States" in Congress. Plumer to Daniel Plumer, November 22, 
 1803, in Plumer Mss. This Avas the stock New England argument against 
 the purchase. 
 
CHAPTER II 
 
 THE CONSTITUTIONAL RIGHT TO ACQUIRE 
 TERRITORY: CONTEMPORARY OPINION 
 
 One of the first constitutional questions to be discussed as a 
 result of the purchase of Louisiana was: ^i^ « (',0?iatitntional 
 4 right to acquire territo rxjsxisti 
 
 No specific grant of such power was to be found in the Con- 
 stitution. Article four, section three, declares: 
 
 Ne-w States may be admitted by the Congress into this Union; but no 
 new State shall be formed or erected within the jurisdiction of any other 
 State; nor any State be formed by the Junction of two or more States, or 
 Parts of States, without the consent of the Legislatures of the States con- 
 cerned as well as of Congress, 
 
 The Congress shall have power to dispose of and make all needful Eulcs 
 and Regulations respecting the Territory or other Property belonging to the 
 United States; and nothing in this Constitution shall be so construed as to 
 Prejudice any claims of the United States, or of any particular State. 
 
 Was the authorization of power to acquire territory to be found 
 in these provisions?^ This was a disputed question. 
 
 Article eleven of the Articles of Confederation contained the 
 pro3risiQn : ' ' Canada, acceding to this Confederation, and joining 
 in the measures of the United States, shall be admitted into, and 
 entitled to, all the advantages of this union ; but no other colony- 
 shall be admitted into the same unless such admission be agreed 
 to by nine states."^ 
 
 In Edmund Randolph's "Propositions" in the Federal Con- 
 vention, commonly known as the VirginifriPlan, we find under 
 
 1 No such interpretation was made by Madison in his explanation of 
 these sections of the Constitution in the Federalist. See No. 42 (Ford, ed. 
 1898); also Ford's footnote, 284-285. 
 
 2 Elliotj Debates on the Federal Constitution, I, 84. 
 
Coiistitutioiml Bight to Acquire Territory 15 
 
 number ten: ''Resolved, That provision ought to be made for 
 the admission of states, lawfully arising vrithin the limits of the 
 United States, whether from a voluntary junction of government 
 or territory, or otherwise, with the consent of a number of voices 
 in the national legislature less than the whole/ '^ This proposal 
 would seem to apply onh'- to territory then owned by the United 
 Sfaj^ 
 
 Patterson 's proposals, or the New Jersey Plan, merely declared 
 ''that provision ought to be made for the admission of new 
 states into the Union."* T he restrictions of the Randolph plan 
 were not included. Hamilton's plan contained a provision 
 similar to that of the Patterson plan.^ The Charles Pinckney 
 draft provided for the admission of new states into the Union 
 by the Legislature on the same terms with the original states, 
 if two-thirds of the members present in both Houses should agree 
 thereto.^ 
 
 A definite restriction appears in the report of the Committee 
 of Detail where it is stipulated that new states soliciting admis- 
 sion into the Union "must be within the -present limits of the 
 -United""Statesr^' IH^Oateinreport thejmp^ 
 wasomitted.^ 
 
 The draft of a Constitution as reported by the Committee 
 of Five, August 6, 1787, contained the following article: 
 
 Article 17. New states, lawfully constituted or established within the 
 limits of the United States, may be admitted by the legislature into this 
 government; but to such admission the consent of two-thirds of tlie mem- 
 hers present i7i each house shall be necessary. If a new state shall arise 
 
 3 Elliot, Debates, I, 144—145 ; Farrand, Records of the Federal Conven- 
 tion, I, 22. Italics mine. 
 
 4 Elliot, Debates, I, 177 ; Farrand, Records of the Federal Convention, 
 I, 245. 
 
 5 Farrand, Records of the Federal Convention, III, 629-630. 
 
 6 Elliot, Debates, I, 149 ; Farrand, Records of tlie Federal Convention, 
 III, 601, Appendix D. 
 
 7 Farrand, Records of the Federal Convention, II, 147. Italics mine. 
 
 8 Ibid., II, 173. 
 
16 Constihitimial History of the Louisiana Purchase 
 
 withia the limits of anj of the present states, the consent of the legislature 
 of such states shall be also necessary to the admission. If the admission 
 be consented to, the new states shall be admitted on the same terms with 
 the original states. 9 
 
 No agreement was reached as to the meaning of these pro- 
 posals, and thus the way was opened for differences of opinion 
 in later interpretation of the disputed points. According to 
 Gouverneur Morris this clause of the Constitution had been pur- 
 posely left vague.^° 
 
 Other pro^'^sions of the Constitution afforded justification 
 to many for the acquisition of territory. These were the power 
 given to Congress to declare war," and the treaty-making power 
 of the President and Senate.^^ The consequent power of the 
 Government to acquire territory, either by conquest or by 
 treaty, was advanced at the time of the purchase of Louisiana. 
 This view received the legal sanction of the Supreme Court a 
 little later.^3 
 
 The acquisition of territory was defended bj'^ others on the 
 ground that the United States as a sovereign state could adopt 
 all the methods of extending its possessions recognized by inter- 
 national usage. With the expansion of the United States this 
 last interpretation has come more and more to be generally 
 accepted. 
 
 To what extent these various interpretations were supported 
 and denied in relation to Louisiana it will now be our purpose 
 to investigate. 
 
 9 Elliot, Debates, I, 229-230. Italics mine. 
 
 10 Sparks, Life of Gouverneur Morris, III, 192; Farrand, Becords of the 
 Federal Convention, III, 404. See below. 
 
 It is interesting to note that when a portion of the citizens of the 
 United States at a later date had an opportunity of drawing up a new 
 constitution, a specific provision for the acquisition of new territory was 
 made. See article 4, section 3, clause 3, of the constitution of the Con- 
 federate States. 
 
 11 Article I, section 8, clause 11. 
 
 12 Article II, section 2, clause 2. 
 
 13 See below. 
 
Cmistitutional Right to Acquire Territory 17 
 
 The news of the purchase of the whole of Louisiana caused 
 JeffCTSOB-gbifie^sti^rij^m -^^ that he had never 
 
 contemplated the extension of American control westward. As 
 early as 1786 the report of discontent in Kentucky and the 
 threat that this region might separate itself from the Conf ederacj^ 
 caused him to remark that this would be a ''calametous event." 
 He believed an increase of votes in Congress would be a good 
 thing in helping to keep down the little divisions existing there.^* 
 The Confe derac; g^ miist-be-viewed ~a&~the^n£st. f rom.„which ^11 
 Amenca, North & South is to be peopled." The territory while 
 
 -•■;«>■.. jw^^'rf'j ■t««.*^«Jiiwifc^»»<»w.«.;5i-it*(»^S£3!kriOiv-'-. 
 
 in possession of Spain, he continued, was in good hands and care 
 must be taken not to press too soon on the Spaniards. The onh'' 
 danger la;y in the fact that ..the 'Spaniards- inight be too' feeble 
 to hold the territory until the Americans^ were, ready to take it 
 piece by piece. At the time of writing, the navigation of the 
 Mississippi was regarded as absolutely necessarj'. That was all 
 the Americans were as yet ready to receive. ^^ 
 
 Again, in 1791, Jefferson, in discussing the invitation of 
 Governor Quesada to settlers to come into Florida, remarked 
 that he wished a hundred thousand Americans would go. '*It 
 will be the means of delivering to us peaceably, what may other- 
 wise cost us a war. In the meantime we may complain of this 
 seduction of our inhabitants just enough to make them [the 
 Spaniards] believe we think it very wise policy for them, and 
 confirm them in it."^^ 
 
 Constitutional difficulties which might arise from such acqui- 
 sition of territory do not seem to have entered Jefferson's head, 
 but when the decision was made in January, 1803, to send Mon- 
 
 1* On August 17, 1821, in referring to the admission of Missouri into 
 the Union Jefferson wrote to Henry Dearborn: "I still believe that the 
 Westward extension of our confederacy will ensure its duration, by over- 
 ruling local factions, which might shake a smaller association. ' ' Jefferson, 
 Writings (Federal ed.), XII, 206, 
 
 15 Jefferson, Writings (Ford, ed.), II, 188-189. Italics mine. 
 
 i6l6td., V, 316. 
 
18 Constitutwtial History of the Louismiia Purchase 
 
 roe to negotiate for the purchase of New Orleans and Florida, 
 the question of the constitutionality of the purchase was raised. 
 Attorney General Levi Lincoln foresaw the storm of opposition 
 which might be expected, and worked out a novel and unique 
 scheme to avert the attack. His plan is disclosed in a letter to 
 Jefferson, January 10, 1803. The importance of New Orleans 
 and the Floridas, with the unimpeded navigation of the Missis- 
 sippi to the United States, in his opinion justified almost any 
 risk for their attainment. The mode of attainment while sub- 
 stantially securing the object sought for, would, perhaps, free it 
 from ''formidable difficulties." 
 
 The idea is [lie continued] that for the common advantage of having 
 great, fixed, and natural boundaries between the territory of France and 
 the United States, and to secure to the latter, the full and unimpeded 
 navigation of, maritime & commercial rights important, and naturally 
 appurtenant to a country' bordering on navigable rivers, in the neighborhood 
 of a sea coast, and from the interior of which country, navigable rivers 
 empty themselves into a neighboring sea, France agrees to extend the 
 boundaries of the Mississippi Territory, and of the State of Georgia [to 
 the Mississippi River and the Gulf, including all the desired territory]. 
 By this indirect mode, if it is feasible, would not the General Govt avoid 
 some constitutional, and some political embarrassments, Tvhich a direct 
 acquisition of a foreign territory by the Govt of the United States might 
 occasion? 
 
 For instance, would not the territory added to the respective states by 
 the enlargement of their boundaries, as an incident immediately by the act 
 of accretion, assimilate to the principal, and merging in them, be subject 
 to their authority, and of course to the authority of the United States? 
 
 If the proposed acquired property, or territory, can be thus melted down, 
 and consolidated, instead of being federated with the States already united, 
 their laws would extend to it, in common with other parts of the enlarged 
 States, without risking the doubtful attempt, so to amend the Constitution, 
 as to embrace the object; or hazarding the ratification of the treaty, from 
 an opposition to such an amendment — or being exposed to the consequences 
 of such an amendment being refused — The Inhabitants thus added, and 
 who would have been citizens of the enlarged state, had the acquired 
 territory originally been a, part of such state, would of course be considered 
 as citizens; and others get naturalized under the existing laws. This 
 
Constitutiotval Right to Acquire Territory 19 
 
 mode of naturalization would keep one door closed against future contro- 
 versy, and dangerous divisions, in our country, and on a principle somewhat 
 similar to the one sanctioned by Jay's treaty. 
 
 If the opinion is correct, that the Genl Govt when formed, was predi- 
 cated on the then existing United States, and such as could grow out of 
 them, & out of tliem only, and that its authority, is, constitutionally, lim- 
 ited to the people composing the several political State Societies in that 
 union, & such as might be formed out of them; would not a direct inde- 
 pendent purchase, be extending the executive power further, and be more 
 alarming and [illegible] by the opposition and the Eastern States, than 
 the proposed indirect mode? Is there not danger, that, The Eastern States, 
 including even Ehode Island & Vermont, if not New York, & other states 
 further South, would object to the ratification of a treaty directly mtro- 
 ducing a state of things, involving the idea of adding to the weightTJf'y 
 the Southern States in one branch of the Govt of which there is already too - 
 great ar jealousry & dread, while they would acquiesce in that increase of 
 the other branch consequent on the enlargement of the boundaries of a 
 State? 
 
 It is foreseen that the opposition and the eastern States will take a 
 distinction, between securing the free navigation of the Mississippi, with 
 a convenient deposit for merchandise, and a measure and the principles 
 of a measure, which may add one or more States to the Union, and thereby 
 change that relative influence between different parts of the United States, 
 on which the general Govt, was predicated. No plan of necessity, of com- 
 mercial utility, or national security, will have weight with a violent party, 
 or be any security against their hostile efforts & opposition clamor 
 
 The principles, and the precedent, of an independent purchase of terri- 
 tory, it will be said, may be extended to the East or West Indies, and that 
 some future executive, will extend them, to the purchase of Louisiana, or 
 still further south, & become the Executive of the United States of North 
 & South America. . . . 
 
 The mode of acquiring new territory by extending the boundaries of 
 existing States, will foreclose these objections, as well as supersede the 
 necessity of amend [ing] the Constitution, and perhaps prevent the rejection 
 of the acquisition treaty, if such a one should be made. 
 
 The consequences deducible from the principles & the precedent, in the 
 present case, if predicated on the advantages & necessity of having great 
 natural boundaries for national ones, and the river navigation naturally 
 belonging to the country; would necessarily be limited by the object, and 
 if extended, to the utmost could never be injuriously applied in future. The 
 only case, in which the principle could possibly be applied hereafter, would 
 be in extending the boundaries of some of the northern States to the river 
 St. Lawrence. 
 
20 Constituturnal History of the Louisiana Purchase 
 
 This mode of acquiring property by the U. S. in adding to the territory 
 of particular States, would require their consent. In the proposed instance 
 they would not object, Georgia ought to give the money we owe her, on 
 account of her late cession for this acquisition NeAV Orleans & W Florida 
 being of the territory of Mississippi, may in future be made a, State, if it 
 shall be found to be useful, without altering the constitution. From this 
 accession of inhabitants to the territorial Govt, it would soon arrive to its 
 second grade, and increase the value & sale of lands belonging to the 
 U. S."i7 
 
 It is not necessary' to point out the obvious weakness in 
 Lincoln's plan. The best possible reply is that of Gallatin, to 
 whom Jefferson submitted Lincoln's letter. Gallatin laid down 
 a clear statement of broad construction of the Constitution. He 
 could see no difference ** between a power to acquire territory 
 for the United States and the power to extend by treaty the 
 territory of the tjnited States." Annexation of new territory 
 t6''a" state was no more acceptable than the plan to extend the 
 boundaries. If the Legislature and Executive could not acquire 
 territory under the Constitution for the use of the Union, cer- 
 tainly, contended Gallatin, they could not acquire it for the use 
 of one state. Was there any constitutional objection to the 
 acquisition of territory? Gallatin's answer to the question is 
 worth following in detail: 
 
 The 3d Section of the 4th Article of the Constitution provides: 1st. 
 That new Stat€s may be admitted by Congress into this Union. 2d. That 
 Congress shall have poAver to dispose of and make all needful rules and 
 regulations respecting the territory and other property belonging to the 
 United States. 
 
 Mr. Lincoln, in order to support his objections, is compelled to suppose, 
 1st, that the new States therein alluded to must be carved either out of 
 other States, or out of the territory belonging to the United States; and, 
 2d, that the power given to Congress of making regulations respecting the 
 territory belonging to the United States is expressly confined to the terri- 
 tory then belonging to the Union. 
 
 A general and perhaps sufficient answer is that the whole rests on a 
 supposition, there being no words in the section which confine the authority 
 
 1' Jefferson Papers, * ' Letters Received at Washington, 2d. Series, ' ' 
 LII (25). See also Henry Adams, History of tlie United States, II, 78-79. 
 
Co7istituti<ynal Bight to Acquire Territory 21 
 
 given to Congress to those specific objects ; whilst, on the contrary, the 
 existence of the United States as a nation presupposes the power enjoyed 
 by every nation of extending their territory by treaties, and the general 
 jjower given to the President and Senate of making treaties designates the 
 organ through which the acquisition may be made, whilst this section pro- 
 vides the proper authority (viz. Congress) for either admitting in the 
 Union or governing as subjects the territory thus acquired. It may be 
 further observed in relation to the power of admitting new States in the 
 Union, that this section was substituted to the 11th Article of Confedera- 
 tion, which was in these words: 'Canada acceding, etc; shall be admitted 
 into, etc., but no other colony shall be admitted into the same, unless such 
 admission be agreed to by nine (9) States.' As the power was there 
 explicitly given to nine (9) States, and as the other powers given in the 
 Articles of Confederation to nine (9) States were by the Constitution trans- 
 ferred to Congress, there is no reason to believe, as the words relative to the 
 power of admission are, in the Constitution, general, that it was not the 
 true intention of that Constitution to give the powers generally and without 
 restriction. 
 
 As to the other clause, that which gives the power of governing the 
 territory of the United States, the limited construction of Mr. Lincoln is 
 still less tenable; for if that power is limited to the territory belonging to 
 the United States at the time when the Constitution was adopted, it would 
 have precluded the United States from governing any territory acquired, 
 since the adoption of the Constitution, by cession of one of the States, 
 which, however, has been done in the case of the cessions of North Carolina 
 and Georgia; and, as the words "other property" follow, and must be 
 embraced by the same construction which will apply to the territory, it 
 would result from Mr. L's opinion, that the United States could not, after 
 the Constitution, either acquire or dispose of any personal property. To 
 me it would appear: 
 
 1st. That the United States as a nation have an inherent right to acquire 
 territory. 
 
 2d. 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. 
 
 3d. That whenever the territory has been acquired. Congress have the power 
 either of admitting into the Union as a new State, or of annexing to a State 
 with the consent of that State, or by making regulations for the government 
 of such territory. 
 
 The only possible objection must be derived from the 12thi8 Amend- 
 ment, which declares that powers not delegated to the United States, nor 
 prohibited by it to the States, are reserved to the States or to the people. 
 
 18 Tenth. 
 
22 Constitutional History of the Louisiana Purchase 
 
 As the States are expressly prohibited from making treaties, it is evident 
 that, if the power of acquiring by treaty is not considered within the mean- 
 ing of the Amendment as delegated to the United States, it must be reserved 
 to the people. If that be the true construction of the Constitution, it 
 substantially amounts to this; that the United States are precluded from, 
 and renounce altogether, the enlargement of territory, a provision sufficiently 
 important and singular to have deserved to be expressly enacted. Is it not 
 a more natural construction to say that the power of acquiring territory 
 is delegated to the United States by the several provisions which authorize 
 the several branches of government to make war, to make treaties, and to 
 govern the territory of the Union? 
 
 After this clear-cut, logical exposition of broad construction 
 of the Constitution, which would have done credit to any Fed- 
 eralist, Gallatin weakened and added, ''I must, however, confess 
 that after all I do not feel myself perfectly satisfied ; the subject 
 must be thoroughl}'- examined; and the above observations must 
 be considered as hasty and incomplete. "^^ 
 
 Gallatin's arguments had weight with Jefferson. This is 
 shown in his reply to Gallatin : "... You are right, in my 
 opinion, as to Mr. L's proposition: there is no constitutional 
 difficulty as to the acquisition of territory, and whether, when 
 acquired, it may be taken into the Union by the Constitution as 
 it now stands, will become a question of expediency. I think it 
 will be safer not to permit the enlargement of the Union but 
 by amendment of the Constitution. ' '-° "^ -^ „ {\ -■■^j\J ' ' 
 
 Although Jefferson was influenced somewhat by Gallatin's 
 interpretation, his constitutional scruples as to incorporation of 
 new states formed from territory- acquired since the ratification 
 of the Constitution were not j^et overcome. The arrival of the 
 treaty of cession July 14, 1803, and the short period allowed for 
 
 19 Gallatin, Writings (Adams, ed.), I, 111-114. Adams dates this letter 
 January 13, but no date appears on the original received by Jefferson other 
 than the note in Jefferson 's handwriting, * ' Departmt of Treasy rece 'd Jan. 
 13, 1803." For Gallatin's later view regarding the need of an amendment 
 in this matter, see below. 
 
 20 Ibid., I, 115; Jefferson, Writings (Ford, ed.), VIII, 2-il (footnote). 
 This statement has received various interpretations; see Insulnr Cases, 125- 
 126, 152-153, 292-293. 
 
Caiistitutional Right to Acquire Territory 23 
 
 ratification, limited to October 30, obliged Jefferson to convene 
 Congress earlier than usual.^^ The date decided upon was 
 October 17. Jefferson felt it to be important that Congress 
 should be supplied with all the available information respecting 
 the treaty. Congress would be "obliged to ask the people for 
 an amendment of the Constitution, authorizing their receiving 
 the province into the Union, and providing for its government; 
 and the limitations of power which shall be given b}"- that amend- 
 ment, will be unalterable but by the same authority "^^ 
 
 On July 18, Jefferson informed Benjamin Austin, by letter, 
 of the arrival of the treaty and conventions, and, after giving a 
 brief statement of their provisions, he added: "They_-will of 
 course require an amendment of the Constitution adapted to the 
 ease which will leave the inhabitants & territory .for~some-time 
 in a situation difficult to be defined, but the acquisition has 
 decided the painful question whether we are to be a peaceable 
 or a warring- nation. . . . ' '^^ 
 
 The need of a constitutional amendment to authorize the 
 acquisition was again stated in a letter which Jefferson wrote 
 to John Dickinson,, August 9, 1803 : 
 
 But there is a difficulty in this acquisition •n-hieh presents a handle to the 
 malcontents among us, though they have not yet discovered it. Our con- 
 federation is certainly confined to the limits established by the revolution. 
 The general government has no powers but such as the constitution has 
 given it; and it has not given it a power of holding foreign territory, and < 
 still less of incorporating it into the Union. An amendment of the Consti- - 
 tution seems necessary for this. In the meantime we must ratify & pay our . 
 money, as we have treated, for a thing beyond the constitution, and rely 
 on the nation to sanction an act done for its great good, without its i 
 previous authority. With respect to the disposal of the country, we must 
 take the island of New Orleans and west side of the river as high up as 
 
 21 Th. J[efferson] to T[homas] E[andolph], July 15, [18]03, in Jeffer- 
 son Tapers, Coolidge Collection, Massachusetts Historical Society Library. 
 
 22 Jefferson to Wm. Dunbar, July 17, 1803, in Jefferson, Writings (Ford, 
 ed.), VIII, 254-255 (footnote). 
 
 2^ Jefferson Papers, "Letters from Jefferson, 1st Series, 1803-1803," 
 IX (112). 
 
24 Constitutional History of the Louisiaim Purchase 
 
 Point Coupee, containing nearly the whole inhabitants, say about 50,000, 
 and erect it into a state, or annex it to the Mississippi territory; and shut 
 up all the rest from settlement for a long time to come, endeavoring to 
 exchange some of the country there unoccupied by Indians for the lands 
 held by the Indians on this side of the Mississippi, who will be glad to cede 
 us their country here for an equivalent there: and we may sell our lands 
 here and pay the whole debt before it comes due.24 
 
 Although Jefferson frequently spoke of closing the territory 
 across the Mississippi to settlement, ^^ it was not his idea that the 
 land there should remain permanently in the hands of the 
 Indians. Land offices were to be opened east of the river and 
 settlers established there. When the eastern side had been filled, 
 a range of states was to be laid off on the opposite bank from 
 the head to the mouth of the river. This policy was to be fol- 
 lowed, range after range, advancing compactlj'^ as population 
 increased.^^ 
 
 Constitutional difficulties and expediency, the good of his 
 country-, were conflicting in Jefferson's mind. He laid bare 
 his thoughts in this matter to Breckinridge: \j-<^' -'^--^^ ')- , ' f 
 
 I / This treaty must of course be laid before both Houses, because both 
 have important functions to exercise respecting it. They, I presume, will 
 see their duty to their country in ratifying & paying for it, so as to secure 
 a good which Avould otherwise probably be never again in their power. But 
 I suppose they must then appeal to the nation for an additional article to 
 the Constitution, approving & confirming an act which the nation had not 
 previously authorized. The Constitution has made no provision for our 
 
 24 Jefferson, Writings (Ford, ed.), VIII, 262-263. Jefferson had given 
 considerable thought to the control of emigration to the ceded territory. 
 Eobert Smith assured him that this could be accomplished by constitutional 
 prohibition that Congress should not establish a new state or territorial 
 government in the acquired territory north of latitude thirty-two degrees, 
 and that no grant or title to any of the territory should be given to any 
 persons except Indians. Jefferson, Writings (Ford., ed.), VIII, 241-242. 
 Henry Adams, History of the United States, II, 83-84. For Jefferson's 
 policy with regard to the removal of the Indians into Louisiana, see Miss 
 Annie Heloise Abel, "The History of Events resulting in Indian Consoli- 
 dation west of the Mississippi," in American Historical Association, 
 Annual JReport, 1906, I, 241-249. 
 
 25 See below, 
 
 26 Jefferson to Breckinridge, August 18, 1803, in Jefferson, Writings 
 (Ford, ed.), VIII, 244 (footnote) ; (Washington, ed.), IV, 500-501. 
 
Constitutwn-al Right to Acquire Territory 25 
 
 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 Con- 
 stitution, The Legislature in casting behind them metaphysical subtleties, 
 and risking themselves like faithful servants, must ratify & 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 position to 
 do it. It is the case of a guardian, investing the money of his ward in 
 purchasing an adjacent territory; and saying to him when of age, I did 
 this for your good; you may disavow me, and I must get out of the scrape 
 as I can : I thought it my duty to risk myself for you. But we shall not be 
 disavowed by the nation, and their act of indemnity will confirm and not 
 ^ I weaken the Constitution, by more strongly" marking out its lines-ZT 
 
 It is very interesting to follow Jefferson in his perplexity. 
 Fear of a change of mind on the part of Napoleon led him to 
 write to his friends enjoining silence concerning the consti- 
 tutional difficulties arising out of the acquisition of Louisiana. -"^ 
 An inkling of the expected struggle along party lines is seen in 
 the admonition to Breckinridge to impress the necessity of the 
 presence of western Senators on the first day of the session as 
 
 ■<: 
 
 "'•'-^7 Hid. The need of an amendment was admitted by Jefferson to 
 Senator Plumer, See Plumer, Life of William Plumer, 362-363. Judge 
 Cooley considered it diffieult to conceive of any doctrine more dangerous 
 to the fundamental ideas of the American Union than that the Constitution 
 could be "shut up" temporarily in order that the Government might 
 accomplish something not warranted by it. * ' The practical settlement of 
 the question of Constitutional power," says Cooley, "did not heal the 
 wound the Constitution received when the chief ofS.cer holding ofldce under 
 it advised the temporary putting it aside, and secured the approval of his 
 advice by a numerical majority of the people. The poison was in the 
 doctrine which took from the Constitution all sacredness, and made subject 
 to the will and caprice of the hour that which, in the intent of the founders, 
 Avas above parties, and majorities, and presidents, and congresses, and was 
 meant to hold them all in close subordination. After this time the proposal 
 to exercise unwarranted powers on a plea of necessity might be safely 
 advanced without exciting the detestation it deserved; and the sentiment 
 of loyalty to the Constitution was so far weakened that it easily gave way 
 under the pressure of political expediency. ' ' Thomas M. Cooley, ' * The 
 Acquisition of Louisiana," in Indiana Historical Society, Publications, II, 
 no. 3 (1887), 81-88. See also Lodge, Life and Letters of George Cabot, 
 333-334. 
 
 28 Jefferson to Thomas Paine, August 18, 1803, in Jefferson, Writings 
 (Ford, ed.), VIII, 245 (footnote); Jefferson to Breckinridge, ibid., 244- 
 245; Jefferson to Secretary of State [Madison], ibid., 245. 
 
26 Canstitutionwl History of the Louisiana Purchase 
 
 every friend of the treaty was needed.^^ To Gallatin Jefferson 
 wrote that it would be well to say as little as possible about the 
 constitutional difficulty, and have Congress act on it without 
 talking ; and yet in this same letter he presented an amendment 
 to cover the case.^° 
 
 Jefferson's idea of an amendment to the Constitution was one 
 which gave general powers, with specific exceptions. He sub- 
 mitted the substance of such an amendment to Madison : 
 
 Louisiana as ceded by Prance to the U. S., is made a part of the U. S. 
 Its "white inhabitants shall be citizens, and stand, as their rights & obliga- 
 tions, on the same footing Avith other citizens of the U. S. in analogous 
 situations. Save only that as to the portion thereof lying north of the " 
 latitude of the mouth of the Arkansa river, no new State shall be estab- 
 lished, nor any grants of land made thereip, other than to Indians, in 
 exchange for equivalent .portions of land" occupied by them, until amend- 
 ment to the Constitution shall be made for those purposes. 
 
 Looking once more to the future Jefferson added: "Florida 
 also, whenever it maj^ be rightfully obtained, shall become a part 
 of the U. S. Its white inhabitants shall thereupon be citizens, on 
 the same footing with other citizens of the U. S. in analogous 
 circumstances. ' '^^ 
 
 The constitutionality of the treaty and of its pro\asions was 
 a topic of conversation between Jefferson and his friends, who 
 urged him to take a broad view of the powers granted to the 
 Federal Government under the Constitution. Wilson Gary 
 Nicholas, senator from Virginia, in a letter to Jefferson, Septem- 
 ber 3, 1803, admitted having reflected much on the subject of 
 the power of the United States to acquire territory, and to admit 
 new states into the Union ; 
 
 Upon an examination of the constitution, [writes Nicholas] I find the 
 power as broad as it could well be made (3d par. 4 art.), except that new 
 
 29 Jefferson to Breckinridge, August 18, 1803, ibid., VII, 244-245. 
 
 30 Gallatin, Writings (Adams, ed.), I, 144-145 (August 23, 1803). See 
 also Jefferson to Levi Lincoln, August 30, 1803, in Jefferson, Writings 
 (Ford, ed.), VIII, 246-247; (Washington, ed.), IV, 504-505. 
 
 31 Jefferson, Writings (Ford, ed.), VIII, 241-245 (August 25, 1803); 
 (Wasli*ugton, ed.), IV, 503; Gallatin, Writings (Adams, ed.), I, 145. 
 
Cotistitutional Bight to Acquire Territory 27 
 
 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 Tras not intended to confine the congress in the admission of new States 
 to what was then the territory of the U. S. Nor do I see anything in the 
 constitution that limits the treaty-making power, except the general limita- 
 tion of the power given to the government, and the evident object for which 
 the government was instituted. If it is determined that Congress possess 
 exclusively, all the powers that are to be found in the enumeration of 
 powers given to that body, it will be deciding that there does not exist in 
 the U. S. a power competent to make a treaty, for I will venture to assert, 
 that a, treaty cannot be formed, without the exercise of one or more of 
 those powers by the president and the Senate, particularly a commercial 
 treaty — nor does it seem to me that the sanction of Congress wou'd cure 
 the defect, & that wou'd be to give them substantially the power of rati- 
 fication, or rejection. Nor do I believe we could ever expect any Nation 
 to form a treaty with us under such construction of our constitution ; for I 
 do not see what wou'd prevent subsequent legislatures from repealing the 
 laws upon which the validity of a treaty depended; and indeed making 
 laws in direct violation of such a treaty, if it was admitted that it derived 
 all its power from a law, 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.32 Upon due consideration, it 
 really appears to me that a different construction of the constitution, from 
 that which I have given it, would be to transfer the treaty making powers 
 to congress, or to deprive the govt of the U, S. of the capacity of making 
 treaties. I should be wanting in the sincerity and candour with which you 
 have always permitted me to give you my opinion if I was to forbear to 
 recommend to you to avoid giving an opinion as to the competence of the 
 treaty making power, to make such a treaty as that lately entered into with 
 Prance, by giving an opinion before the Senate act upon it, you wou'd take 
 the whole responsibility of that opinion upon yourself in the public esti- 
 mation, whereas if the Senate act before your opinion is known they will 
 at least divide the responsibility with you. I shou'd think it very probable 
 if the treaty shou 'd be by you declared to exceed the constitutional authority 
 of the treaty making power, that it would be rejected by the Senate, and if 
 that should not happen, that great use wou 'd be made with the people, of a, 
 wilful breach of the constitution.33 
 
 Jefferson's reply is a clear statement of his stand on the 
 interpretation of the Constitution, After remarking on the 
 danger of delay and the necessity for rapid action on the 
 
 32 Jay 's Treaty. 
 
 S3 Jefferson Papers, '^Letters to Jefferson, 2d. Series," LXIII, (47); 
 Henry Adams, History of the United States, II, 87-88. 
 
28 Constitutional History of the Louisiana Purchase 
 
 part of Congress, he turned his attention to the constitutional 
 questions involved. Rexerting-~to . stjdct^^iistruction__Jefferson 
 declared it as his . belief -that Congress did not have the power 
 of admitting new states into the_Union outside the territory 
 owned at the time of the adoption of the Constitution. Con- 
 tinuing hesafdr ' — -" ' 
 
 When an instrument admits two constructions, the one safe, the other 
 dangerous, the one precise, the other indefinite, I prefer that which is safe 
 & precise. I had rather ask an enlargement of power from the nation, when 
 it is found necessary, than to assume 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. If it has 
 bounds they can be no others than the definitions of the powers which that 
 instrument gives. It specifies and delineates the operations permitted to 
 the federal government, and gives all the powers necessary to carry these 
 into execution. Whatever of these enumerated objects is proper for a law. 
 Congress may make the law; whatever is proper to be executed by a treaty, 
 the President & Senate may enter into the treaty; whatever is to be done 
 by a judicial sentence, the judges may pass the sentence. Nothing is more 
 
 likely than their envmieration of powers is defective Let us go then 
 
 perfecting it, by adding, by way of the Constitution, those powers which 
 time & trial show are still wanting. ... I confess, then, I think it important, 
 in the present case, to set an example against broad construction by 
 appealing for new power to the people. 
 
 But here again Jefferson shows that strict construction can 
 give way to.whatis coiisidered essential to the common good: 
 ' ' If, however, our friends shall think differently, certainly I 
 acquiesce with satisfaction; confiding, that the good sense of 
 our country will correct the evil of construction when it shall 
 produce ill effects."^* 
 
 Jefferson was apparently won ov er to the side. of broad 
 construction-foT'lie" no~longer held out for an amendment to 
 
 34 Jefferson to Wilson C' Nicholas, September 7, 1803, in Jefferson, 
 Writings (Ford, ed.), VIII, 247-248 (footnote): (Washington, ed.), IV, 
 505-507. 6 J y; , 
 
Constitutional Right to Acquire Territory 29 
 
 the Constitution. What was necessary to be done he left to 
 ■"Congress.^® Doubtless such an amendment as Jefferson desired 
 could have been carried without great difficulty, but it was not 
 proposed, and an important precedent for future action in 
 regard to the acquisition of territory was established. How far 
 Jefferson was influenced by the European situation it is not neces- 
 sary here to discuss.^*^ 
 
 The President was not alone in his appreciation of the con- 
 stitutional questions involved in the purchase of Louisiana. 
 Although party lines decided the attitude of the majority of the 
 leaders, nevertheless an examination of contemporary opinion 
 throws much light on the interpretation of the Constitution. 
 Fisher Ames denounced the whole affair in no uncertain terms. 
 The less territory the better was his declaration. By adding the 
 territory beyond the Mississippi, ''we rush like a comet into 
 infinite space. In our wild career, we may jostle some other 
 world out of its orbit, but we shall, in every event, quench the 
 light of our own. ' '^^ Yet, dropping his party bias, ^mes jeould \ 
 not bring himself to assent to the argument of the Federalists, 
 ^^ow^«tfeea«paFty^K)f^«trict"^onst rnetioEg HD^ 
 merely an "affair of special pleading, and to be interpreted in 
 every case as if everything was written down in a book." Cer- 
 tain powers he considered inseparable from the fact 6f a society 
 being formed, and incident to its being. Then he rather pessi- 
 mistically concludes : ' ' Besides, as party interprets and amends 
 
 35 Here it must be remarked that Gallatin, who had argued so strongly 
 for broad construction, in commenting on the President's message observed 
 "that not even Congress can prevent some constitutional iiTegularity in 
 the proceedings relative to occupying and governing that country before an 
 amendment to the Constitution shall take place." Gallatin, WHtings 
 (Adams, ed.), I, 158; remarks on the President's message [Received Oct. 
 4, 1803]. 
 
 36 On this point see Adams, History of the United States, II, 92-93. 
 
 37 Ames to Christopher Gore, October 3, 1803, in Ames, Works, I, 323- 
 324. See also a letter of Ames to Thomas Dwight, October 31, 1803, ibid., 
 329-330. 
 
30 CotistitiUiwi-al History of the Louisiana Purchase 
 
 the Constitution, and as we the people care not a pin's point for 
 it, all arguments from that source, however solid, would avail 
 nothing. ' '^* 
 
 John Quiney Adams was a sturdy defender of strict con- 
 struction of the Constitution in the Louisiana affair. At a later 
 dat« he criticized Jefferson for getting into office under the 
 banners of states' rights and state sovereignty, and the pretense 
 that the Government of the Union had no powers except those 
 expressly delegated by the Constitution, and immediatelj'' pur- 
 chasing Louisiana, "an assumption of implied power greater in 
 itself and more comprehensive in its consequences, than all the 
 assumptions of implied power in the twelve years of the AVash- 
 ington and Adams Administrations put together."^' 
 
 In an argument with Attorney General Wirt over the con- 
 stitutionality of the Louisiana purchase, Adams inquired where 
 in the Constitution the power to purchase territory was located. 
 Wirt answered that there was a power to make treaties. This 
 did not satisfy Adams, who vehemently denounced the purchase 
 as in substance a dissolution and recomposition of the Union: 
 
 It made a Union totally different from that for which the Constitution 
 had been formed. It gives despotic power over territories purchased. It 
 naturalizes foreign nations in a mass. It makes French and Spanish laws 
 a large part of the laws of the Union. It introduced whole systems of 
 legislation abhorrent to' the spirit and character of our institutions, and all 
 this done by an administration which came in blowing a trumpet against 
 implied power. After this, to nibble at a bank, a road, a canal, the mere 
 mint and cummin of the law was but glorious inconsistency. 
 
 Upon Wirt's statement that the people had sanctioned the 
 purchase through their representatives in Congress, Adams 
 replied that this doctrine was too bold for him.*° 
 
 Adams believed that an amendment to the Constitution was 
 necessary for the carrying through of the Louisiana Treaty, and 
 
 3SAmes to Thomas Dwight, ibid., I, 334. 
 
 39 John Quincy Adams, Memoirs, V, 364-365 (October 20, 1821), 
 
 io Ibid., V, 401 (November 17, 1821). 
 
Constittitional Bight to Acquire Territory 31 
 
 told Madison that unless some one else did so he would consider 
 it his duty to move such an amendment. Madison answered that 
 * * he did not know that it was universally agreed that it required 
 an amendment."*^ During the debate in the Senate upon the 
 bill to enable the President to take possession of Louisiana, 
 Adams moved an amendment to the last House amendment of 
 the Senate bill which had come back from the House, by adding 
 the words, ** consistently with the Constitution of the United 
 States:" This was ruled out.*^ 
 
 In the autumn of 1803 when the constitutionality of the 
 recent purchase of Louisiana was causing considerable agitation, 
 Henry W. Livingston wrote to Gouverneur Morris asking him 
 to find out what was the intention of the framers of the Con- 
 stitution on this point. Morris replied: 
 
 ... It is not possible for me to recollect with precision all that passed 
 in the Convention, while we were framing the Constitution; and if I could, 
 it is most probable that a meaning would have been conceived from inci- 
 dental expressions, different from that which they were intended to convey, 
 and very different from the fixed opinions of the speaker. This happens 
 daily. 
 
 I am certain that I had it not in contemplation to insert a decree in 
 de coercendo imperio in the Constitution of America. Without examining 
 whether a limitation of territory be or be not essential to the preservation 
 of republican government, I am certain that the country between the Mis- 
 sissippi and the Atlantic exceeds by far the limits, which prudence would 
 assign, if in effect any limitation be required. Another reason of equal 
 weight must have prevented me from thinking of such a clause. I knew 
 as well then as I do now, that all North America must at length be annexed 
 to us. Happy, indeed, if the lust for dominion stops there. It would, 
 therefore, have been perfectly Utopian to oppose a paper restriction to the 
 violence of popular sentiment in a popular government.*^ 
 
 41 Ibid., I, 267-268 (October 28, 1803). 
 
 i^Ihid., I, 268 (October 29, 1803). 
 
 43 Sparks, Life of Gouverneur Morris, III, 185 ; Tarrand, Records of th^ 
 Federal^ Convention, III, 401. For a difference in the rendering of this 
 letter, see Anne Cary Morris, Diary and Letters of Gouverneur Morris, II, 
 441—442. The Sparks edition seems to make the better sense and has Ijeen 
 generally accepted. 
 
32 Const it utw}uil History of the Louisiana Purchase 
 
 Just how much importance and significance can be attached 
 to Morris's statement it would be difficult to determine, since the 
 reasons advanced may have been made to fit the accomplished 
 deed. It is worth noting, however, that a definite attempt was 
 made to ascertain what the men who framed the Constitution 
 themselves understood by its provisions. Could Morris but see 
 the wide extent of the possessions of the United States at the 
 present daj' he might find justification for his statement that 
 ''paper restrictions" would avail little in the face of American 
 expansion. Wliile not all of North America has been annexed, 
 the ''lust for dominion" has not stopped here but has included 
 island possessions a great distance from the original states of 
 the Union. 
 
 ]\Iorris was not alone in his statement concerning "paper 
 restrictions." George Cabot feared that the mfluence of New 
 England would be diminished by the acquisition of territory 
 in the south. He thought a paper Constitution "too feeble a 
 barrier to obstruct a triumphant majority in their course," and 
 was apprehensive of any alteration they felt it necessary to 
 make.** 
 
 ■1^ Cabot to Pickering, December 10. 1803, in PicJcering Papers, "Letters 
 from Correspondents, 1800-1803," XXVI, 336 (Mass. Hist. Soc.) ; Lodge, 
 Life and Letters of George Caiot, 333-334. 
 
 The persistence of the idea here expressed by Cabot is seen in his 
 biographer's account of Jefferson's action. Granting that Jefferson was 
 right in purchasing peace, Lodge nevertheless insists that in carrying out 
 his policy, Jefferson violated the Constitution. "Thus," he says, "the 
 first example "vras given of both the will and desire to violate the Constitu- 
 tion, if the popular feeling would sustain the executive and the legislature 
 in so doing; and in this fact lies the pernicious and crying evil of the 
 Louisiana purchase. It was the first lesson that taught Americans that a 
 numerical majority was superior to the Constitution, was a safe protection 
 against it when violated, and that when polic}- approved the necessity of 
 change, it Avas easier to break than to legally and regularly amend the 
 provisions of our charter." Lodge, Life and Letters of George Cahot, 
 434—435. Cf. the statement of Judge Cooley already quoted. 
 
 Alleged ulterior motives for Jefferson 's action are found in Quincj' 's 
 Life of Josiah Quincy, 90-91, where Jefferson and his partisans are accused 
 of deliberately seizing the opportunity of giving Congress authority to 
 multiply new states in foreign territories without any appeal to the states, 
 their object being to add slave states to the Union. There is no ground for 
 such a charge. 
 
Constitutional Right to Acquire Territory 33 
 
 Manasseh Cutler was of practically the same opinion as 
 Cabot. Besides declaring that the treatj^ was a "flagrant viola- 
 tion of the principles of the Constitution," he repeated the 
 much-held New England opinion that the admission into the 
 Union of a new state formed from this territory would throw 
 the balance of political power to the southern states, and in all 
 probability ''will lay the foundation for a separation of the 
 States. "*s 
 
 Although not referring to the Louisiana country, the position 
 of the United States with regard to the acquisition of foreign 
 territory was stated by Robert R. Livingston in a conversation 
 reported by Barbe Marbois. In answer to Marbois's statement 
 that many French politicians were afraid that the United States 
 would eventually conquer the French West Indies, Livingston 
 denied that this would ever take place. Although the whites 
 there required to be protected against the slave population, 
 
 it would be contrary to our institutions and even our interests to undertake 
 this charge. . . . Should these colonies hereafter wish to belong to us and 
 to enter into the Union, we could not receive them; we could still less have 
 them as dependent and subject possessions, I do not foresee what will 
 happen if, in their emergencies, they should resort to our generosity and 
 protection. But do not fear that we shall ever make the conquest of that 
 which we would not wish to accept even as a gif t.*^ 
 
 Substituting Spanish insular possessions for French, Living- 
 ston's "emergencies" have arisen. We have made the conquest 
 and they have been made "dependent and subject possessions." 
 Whether they will remain so is one of the interesting problems 
 for the future to solve. 
 
 One of the strongest defenders of the purchase of Louisiana, 
 and on constitutional grounds at that, was found among the 
 leaders of the Federalist party at the very time when party 
 
 45 Cutler to Dr. Torrey, October 31, 1803, in Cutler and Cutler, Life, 
 Journals and Correspondence of Manasseh Cutler, II, 138. 
 
 46 Barbe Marbois, History of Louisiana, 299. 
 
34 Constitutional History of the Louisiana Purchase 
 
 spirit was beginning to run high in New England. This was 
 John Adams, who, writing to Josiah Quincy, February 9, 1811, 
 gave one of the best arguments possible in support of the act 
 of the Jefferson administration: 
 
 The Union appears to me to be the rock of our salvation, and every 
 reasonable measure for its preservation is expedient. Upon this principle, 
 I own I was pleased with the purchase of Louisiana, because, without it, 
 we could never have secured and commanded the navigation of the Mis- 
 sissippi. The western country would infallibly have revolted from the 
 Union. Those States would have united with England, or Spain, or France, 
 or set up an independence, or done anything else to obtain the free use 
 of that river. I wish the Constitution had been more explicit, or that the 
 States had been consulted; but it seems Congress have not entertained any 
 doubts of their authority, and I cannot say that they are destitute of 
 plausible arguments to support their opinion. . , . 
 
 But I was saying a word upon the Constitution. You appear to be 
 fully convinced that the Convention had it not in contemplation to admit 
 any State or States into our Confederation, then situated without the 
 limits of the thirteen States. In this point I am not so clear. The Con- 
 stitution, it is true, must speak for itself, and be interpreted by its own 
 phraseology; yet the history and state of things at the time may be con- 
 sulted to elucidate the meaning of words, and determine the hona fide 
 intention of the Convention. Suppose we should admit for argiiment's 
 sake, that no member of the Convention foresaw the purchase of Louisiana! 
 It will not follow that many of them did not foresee the necessity of 
 conquering, some time or other, the Floridas and New Orleans, and other 
 territories on this side of the Mississippi; the state of things between this 
 country and Spain in 1787, was such as to render the apprehensions of a 
 war with that power by no means improbable, the boundaries were not 
 settled, the navigation of the river was threatened, and Spain was known 
 to be tampering, and England too. 
 
 Tou think it impossible the Convention could have a thought of war 
 with Great Britain, and the conquest of Canada. In this point I differ from 
 you very widely. The conduct of Great Britain, and the conduct of our 
 States, too, was such as to keep up very serious apprehensions between 
 the two powers. The treaty of peace was not fulfilled on either side. The 
 English had carried away the negroes, in direct violation of a most express 
 stipulation; they held possession by strong garrisons of a long train of 
 posts within our territory, commanding many nations of Indians, among 
 whom they excited dispositions hostile to us; the limits were not settled 
 against Nova Scotia, and many turbulences between the inhabitants arose. 
 
Constitutional Bight to Acquire Territory 35 
 
 On the other side the old debts were not paid, and positive laws existed in 
 many, if not most, of the States, against their recovery. I therefore think 
 it highly probable that the Convention meant to authorize Congress in 
 future to admit Canada and Nova Scotia into the Union, in case we should 
 have a war, and be obliged to conquer them by kindness or force.*^ 
 
 One staunch supporter of the Jefferson administration took 
 the stand that the cession of Louisiana gave additional security 
 to the free form of the Constitution. Had the French remained 
 in possession of that country and colonized it, the United States 
 would have been forced to maintain a large standing army. The 
 result would have been heavy taxes for the maintenance of this 
 army, and an expensive patronage. Republican forms of gov- 
 ernment would have been undermined and the way paved for 
 the concentration of power in the hands of an hereditary mon- 
 arch.*^. 
 
 Any doubts as to the constitutional right of the United States 
 Government to acquire territory were laid to rest by Chief Jus- 
 tice Marshall in 1828 when he declared: "The Constitution 
 confers absolutely on the Government of the Union the powers 
 of making war, and of making treaties ; consequently, that Gov- 
 ernment possesses the power of acquiring territory, either by 
 conquest or by treaty."*^ 
 
 47 John Adams, WorTcs, IX, 631-632. This strong statement does not 
 appear to have been used in the arguments from precedent and from the 
 opinions of early statesmen cited in the Insular Gases. 
 
 48 David Bamsay, An Oration on the Cession of Louisiana to the United 
 States (1804), 14. 
 
 49 American Insurance Co. vs. Canter, I Peters, 511. 
 
CHAPTER III 
 
 THE STATUS OF THE ACQUIRED TERRITORY: 
 CONTEMPORARY OPINION 
 
 What was to be the status of the acquired territor^^ ? From 
 the standpoint of constitutional interpretation this question 
 proved a difficult one to answer. Many and divergent were the 
 answers proposed. There might be practically a consensus of 
 opinion in favor of the acquisition of territory: that seemed 
 in harmony with the ideas held by a large majority of the people 
 of the United States as to the power of a sovereign nation. 
 Could, however, such acquired territory be formed into states 
 and be admitted into the Union on an equal footing with the 
 original states? If so, by whose authority? Would not the 
 "balance of power" among the old states be upset? Was not 
 the consent of each of the parties to the original contract 
 under the Constitution a necessary prerequisite to the admission 
 of new states into the Union? On the other hand, could the 
 United States hold territory'- not destined at some future day to 
 become a state? Contemporary opinion on these questions 
 throws much light on the interpretation of the Constitution by 
 men who lived near to the time when that instrument of gov- 
 ernment was framed. 
 
 The relation Louisiana would bear to the rest of the United 
 States aroused comment at the time of the acquisition. One 
 contemporary writer stated the questions for the Government 
 to decide as follows: 
 
 1. Whether this territory, under the peculiar limitations of the Federal 
 Constitution can immediately be admitted into the Union with the States! 
 
 2. Whether it is considered under those subordinate relations to the 
 United States, that characterize the Indiana and Mississippi territories? or, 
 
Status of the Acquired Territory 37 
 
 3. Whether the cession by treaty attaches itself to the empire as a fief, 
 to be held upon the same principles as the Scotch and Irish Unions, and 
 the island of Jamaica and Canada, by the crown of England ?i 
 
 Another writer who styles himself * * Sylvestris " questioned 
 whether, if a portion of West Florida could be obtained from 
 Spain, it might not be worthy of an amendment of the Consti- 
 tution to incorporate that territory, together with the territory 
 of New Orleans, with the present government on the Mississippi, 
 and admit the whole into the Union as a new state, as soon as 
 the population entitled it to such admission.^ 
 
 Still another considered it farcical to pretend that the 
 Louisiana territory could not be erected into separate estab- 
 lishments, all associated under one federal compact. Such a 
 confederation could as well be maintained between twenty as 
 between seventeen independent states. Furthermore, the inter- 
 change of commercial commodities would not fail to convince 
 both the North and South of the special advantages of each, and 
 bind them more closely to one another.' 
 
 In making plans for the acceptance of Louisiana, Jefferson 
 felt it necessary to come to a decision as to the footing on which 
 the new territory was to be placed, and to put this plan in the 
 hands of friends in Congress. Considering an amendment to 
 the Constitution as the proper mode, he sketched one to be 
 
 1 Allan B. Magruder, Political, Commercial and Moral Reflections, on 
 the late cession of Lousiana to tlie United States (1803), 95. Magruder 
 did not think the expansion of territory could produce any dangerous 
 effect. While it was true that when a new state was formed in Louisiana, 
 the Federal circle would be expanded, the state governments merely receded 
 in point of "geographical mensuration" from the general seat of govern- 
 ment. Louisiana's remote situation would not give either more power to 
 itself or diminish the influence of the Federal Government. Ibid., 73. 
 
 Magruder was a native of Kentucky but had moved to Louisiana. He 
 took an active part in politics, being a state representative, and serving 
 as United States senator from Louisiana from November 18, 1812, to 
 March 3, 1813. 
 
 2 Sylvestris, pseud.. Reflections on the Cession of Louisiana to the United 
 States (1803), 26-27. 
 
 3 David A. Leonard, An Oration . . .on the late acquisitian of Louisiana 
 (1804), 20. 
 
38 Constitutional History of the Louisiana Purchase 
 
 proposed by Congress to the states as soon as Congress should 
 meet. This amendment he submitted to members of the Cabinet 
 for suggestions or approval,* 
 
 The amendment was in harmony with Jefferson's idea of 
 strict construction of the Constitution, for practically every con- 
 ceivable contingency was provided for and legislative action was 
 stringentlj^ circumscribed. -^Hie jext of the propo sed amendment 
 was-a&.follows : 
 
 The province of Louisiana is incorporated with the U. S. and made part 
 thereof. The rights of occupancy in the soil, and of self-government, are 
 confirmed to the Indian inhabitants, as they now exist. Pre-emption only 
 of the portions rightfully occupied by them & a succession to the occupancy 
 of such as they may abandon, with the full rights of possession as well as 
 of property & sovereignty in whatever is not or shall cease to be so right- 
 fully occupied by them shall belong to the U. S. 
 
 The legislature of the Union shall have authority to exchange the right 
 of occupancy in portions where the U. S. have full right for lands pos- 
 sessed by Indians within the U. S. on the East side of the Mississippi: to 
 exchange lands on the East side of the river for those of the white inhab- 
 itants on the West side thereof and above the latitude of 31 degrees: to 
 maintain in any part of the province such military posts as may be requisite 
 for peace or safety: to exercise police over all persons therein, not being 
 Indian inhabitants: to work salt springs, or mines of coal, metals and other 
 minerals within the possession of the U. S. or in any others with the 
 consent of the possessors; to regulate trade & intercourse between the 
 Indian inhabitants and all other persons; to explore and ascertain the 
 geography of the province, its productions and other interesting circum- 
 stances; to open roads and navigation therein when necessary for beneficial 
 communication; & to establish agencies and factories therein for the culti- 
 vation of commerce, peace and good understanding with the Indians 
 residing there. 
 
 The legislature shall have no authority to dispose of the lands of the 
 province otherwise than as hereinbefore permitted, until a new Amendment 
 of the constitution shall give that authority. Except as to that portion 
 thereof which lies South of the latitude of 31 degrees; which whenever they 
 deem expedient, they may erect into a territorial Government, either sepi 
 
 •* Jefferson to Gallatin, July 9, 1803, in Jefferson Papers, "Letters from 
 Jefferson, 1st Series, 1802-1803," IX (96). 
 
Status of the Acquired Territory 39 
 
 arate or as making part with one on the eastern side of the river, vesting the 
 "Inhabitanfe thereof with all the rights possessed by other territorial citizens 
 "^f the^tj. S e --- 
 
 The weak points in this lengthy plan of amendment were 
 pointed out by Secretary of the Navy Robert Smith, to whom 
 it had been submitted by Jeffer§on. While agreeing with the 
 general purpose of the proposed amendment, Smith doubted the 
 advisability of attaching so many provisions to the Constitution.* 
 
 Regarding the Indian question and occupancy of lands. 
 Smith asked if it might not be better to leave this to be settled 
 by legislative provision. He felt that if the Indian rights of 
 occupancy became a part of the Constitution the Government 
 might find itself much entangled, especially in its dealings with 
 hostile Indians.' 
 
 Jefferson was not alone in laying plans for the acceptance 
 of the territory and arranging for its control. It was taken for 
 granted that the treaty would be ratified by the Senate. As 
 early as July 9, 1803, over three months before Congress met, 
 Gallatin, as Secretary of the Treasury, began considerations of 
 the problem of revenue in Louisiana, particularly that drawn 
 from duties on imports and exports. The amount of exports, 
 especially the articles like cotton, indigo and sugar — the latter 
 most important of all — ^which paid duty on their importation 
 into the United States was a subject under investigation. The 
 revenue collected by the United States from sugar Gallatin esti- 
 mated at not less than nine hundred thousand dollars a j^ear. 
 It was therefore important to ascertain the quantity annually 
 exported from New Orleans, in order either to find means of 
 supplying the deficiency of revenue should sugar be imported 
 
 5 Jefferson, Writings (Ford, ed.), VIII, 241-249. 
 
 6 ibid. 
 
 7 Smith to Jefferson, July 9, [18] 03, in Jefferson, Writings (Ford, ed.), 
 VIII, 241-242 (footnote). 
 
40 Constitutional History of the Lotiisi-ana Purchase 
 
 from there duty free, or to devise a method by which the duty 
 might still be collected. 
 
 My present idea [Avrote Gallatin] was that until an amendment to the 
 Constitution had been adopted, all the duties on imports now payable in 
 the United Stat-es should be likewise paid on importations to New Orleans. 
 All the duties on exports now payable at New Orleans by Spanish laws 
 shoiild cease, and all articles of the g^OAvth of Louisiana which, when 
 imported into the United States, now pay duty, should continue to pay the 
 same, or at least such rates as would, on the whole, not affect the revenue.^ 
 
 Gallatin's letter is significant in several respects. The idea 
 that the Constitution would be amended to allow the treaty of 
 cession to be carried into execution was brought out once more. 
 Of particular interest in the light of the Insular Decisions is 
 Gallatin's opinion concerning the revenue, which was an im- 
 portant phase of the question of the status of the acquired 
 territory. While extending the import duties payable in the 
 United States to Louisiana and dropping duties on exports 
 under Spanish laws, Gallatin, as will be noticed, planned to con- 
 tinue to impose duties on articles imported into the United States 
 from Louisiana. Gallatin's reason, as he himself gives it, was 
 one of expediency — ^the collection of a revenue. Nevertheless the 
 imposition of these import duties would set Louisiana apart 
 from the rest of the territory of the United States. 
 
 On October 31, Gallatin, in accordance with his under- 
 standing of the situation, informed Claiborne, who was to take 
 possession of Louisiana, that the existing duties on imports and 
 exports, being levied in that province under Spanish law, should 
 continue until Congress should otherwise provide.® 
 
 8 Gallatin to Jefferson, Julv 9, 1803, in Gallatin, Writings (Adams, ed.), 
 I, 127. 
 
 9 Gallatin, Writings (Adams, ed.), I, 167. Gallatin's opinion in this 
 matter was cited in the Insular Cases, 175, 176-178, 316-317. 
 
 Compare the statement in Moore, Digest of International Law, I, 311: 
 "When Florida was ceded to the United States and possession of it had 
 actually been taken it was held by the Secretary of the Treasury, whose 
 opinion was sanctioned by the Attorney-General, that, under our revenue 
 laws, its ports must be regarded as foreign until they were established as 
 domestic by an act of Congress." 
 
Status of the Acquired Territory 41 
 
 Congress soon made the provision spoken of by Gallatin by 
 an act, approved February 24, 1804, for laying and collecting 
 duties on imports and tonnage within the ceded territory. This 
 act provided that the same duties which were laid on goods 
 imported into the United States should be laid and collected on 
 goods imported into Louisiana. 
 
 4JLlayi^ayiftg^aBX.^Uties»0JiwgQods-iniported into the United 
 States from the ceded territory were repealed. Furthermore, 
 the President was authorized to erect the shore, waters and inlets 
 of the bay and river Mobile into a separate district and establish 
 a port of entry and delivery '^ whenever he shall deem it expedi- 
 ent.''^^ The full significance of this last provision became 
 apparent when the West Florida question became acute.^^ 
 
 The plan of an amendment which would leave but little 
 initiative in the hands of the Legislature was early given up by 
 Jeiferson. Even before the drafting of a second amendment^^ 
 he wrote to Horatio Gates that, *'If our legislature dispose of it 
 [the territory] with the wisdom we have a right to expect, they 
 may make it the means of tempting all our Indians on the East 
 side of the Mississippi to remove to the West, and of condensing 
 instead of scattering our population. ' ' In the same letter Jeffer- 
 son drops some hints as to the contemplated government of the 
 territorj^. He did not think it would be a separate government, 
 but presumed New Orleans and the settled country across the 
 river would be annexed to the Mississippi Territory. The rest 
 would be locked up from American settlement and left to the 
 self-government of the natives." 
 
 In his Third Annual Message to Congress, October 17, 1803, 
 Jefferson announced the transfer of Louisiana b}'' France to 
 the United States, adding that when the transfer had been sanc- 
 
 10 Laws of the U. States, III, 569-574. Italics mine. 
 
 11 See below. Chapters X and XI. 
 
 12 For -which, see above. 
 
 13 Jefferson to Horatio Gates, July 11, [18] 03, in Jefferson, Writings 
 (Ford, ed.), VIII, 249-250. 
 
42 Constitutioncd History of the Louisiana PurcJiase 
 
 tioned hy the Senate, the matter would be laid before the House 
 
 of Representatives "for the exercise of their functions, as to 
 
 those conditions which are within the powers vested by the 
 
 constitution in Congress."^* 
 
 Then comes a clear statement of the powers of Congress over 
 
 territories : 
 
 With the wisdom of Congress it -will rest to take those ulterior meas- 
 ures which may be necessary for the immediate occupation and temporary 
 government of the country; for its incorporation into our Union; for ren- 
 dering the change of government a blessing to our newly-adopted brethren; 
 for securing to tJiem tlie rights of conscience and of property; for con- 
 firming to the Indian inhabitants their occupancy and self-government, 
 establishing friendly and commercial relations "with them, and for ascertain- 
 ing the geography of the country acquired.i5. 
 
 On October 21, 1803, Jefferson submitted a special message 
 on Louisiana to Congress, announcing the exchange of ratifiea- 
 
 14 Italics mine. 
 
 At least one Senator considered the language used in the message im- 
 proper for a President. "Ke not only publicly pledges himself to ratify 
 the treaties if the Senate shall advise thereto, but takes it for gi'anted that 
 the Senate will sanction them. As far as his influence can extend this is 
 destroying the freedom of opinion in the Senate on that subject." Plumer, 
 "Memorandum," October 17, 1803-Mareh 27, 1804, 2-3. Plumer might 
 have stated his objections even more emphatically had he seen the corre- 
 spondence of Jefferson and his closest friends in which the ratification was 
 not only taken for granted but plans made for the government of the 
 territory, even before Congress met. 
 
 Plumer 's disapprobation, in substance, was revived during the admin- 
 istration of McKinley when that President was criticized for issuing, on 
 December 21, 1898, prior to the ratification of the treaty with Spain ceding 
 the Philippines, an executive order which contained the following words: 
 "With the signature of the treaty of peace between the United States and 
 Spain by their respective plenipotentiaries at Paris on the 10th instant, 
 and as the result of the victories of American arms, the future control, 
 disposition, and government of the Philippine Islands are ceded to the 
 United States. In fulfilment of the rights of sovereignty thus acquired, 
 etc. ' ' The treaty-making power of the United States did not ratify the 
 treaty untU February, and the treaty did not go into effect until April 11, 
 1899. W. W. Willoughby, The Constitutional Law of the United States, 
 I, 385, footnote, 
 
 15 Jefferson, Writings (Ford, ed,), VIII, 268-269; Eichardson, Messages 
 and Papers of tlie Presidents, I, 358-359. Italics mine. Compare the 
 sentiment expressed here Avith that in the proposed amendment. Jefferson's 
 opinion of the powers of Congress over the territories underwent numerous 
 changes. These will be discussed under the subject of the government of 
 Louisiana. 
 
Status of the Acquired Territory 43 
 
 tions between the President and the First Consul of France. He 
 asked for a consideration of the treaty and conventions by Con- 
 gress in its legislative capacity. He pointed out that some 
 important provisions could not be carried into execution without 
 the aid of the Legislature, and urged a decision without delay.^* 
 
 What composed the constitutional rights of the House of 
 Representatives in regard to the treaty caused considerable 
 debate.^' 
 
 Other questions of constitutional interpretation, fraught with 
 very great significance to the well-being of the nation, were 
 raised. 
 
 i 
 
 Congress [Rufus King wrote] may admit new States, but can the 
 Executive by treaty admit them, or, what is equivalent, enter into engage- 
 ments binding Congress to do so? As by the Louisiana Treaty, tho ceded 
 territory must be formed into States, & admitted into the Union, is it 
 understood that Congress can annex any condition to their admission? if 
 not, as Slavery is authorized & exists in Louisiana, and the treaty engages 
 to protect the Property of the inhabitants, wiU. not the present inequality, 
 arising from the Representation of Slaves be increased? 
 
 King desired-.that4he representation and taxation might be. lim- 
 ited to free inhabitants only,^^ 
 
 Pickering, referring to King's letter, claimed that the ruling 
 party did not pretend that the Louisianians were citizens of the 
 United States; nor had they ventured to say that the Govern- 
 ment had a coiistiiuticiial power to incorporate the new country 
 into the Union, To him it appeared evident that in a few years, 
 when their power had become more confirmed, they would erect 
 states in the territory and incorporate those states into the Union. 
 The future to giekering had a dark outloo k, for the Constitution 
 
 16 Jefferson, Writings (Ford, ed.), VIII, 274; Richardson, Messages 
 and Papers of tlie Presidents, I, 362—363. 
 
 17 See below. 
 
 18 King to Colonel Pickering, November 4, 1803, in King, Life and Corre- 
 spondence of Bufus King, IV, 324r-325, "Letter probably to Pickering": 
 doubt removed by examination of the original letter, Pickering Papers, 
 ** Letters from Correspondents 1800-1803," XXVI, 319 (Mass. Hist. Soc, 
 Library). See Madison's opinion on the question of imposing restrictions 
 on prospective states, p. 48. 
 
44 Constitutional History of the Louisiana Purchase 
 
 would become_on2v_a_convenientj|nstr^ shaped, by 
 
 construction, into any form that would best promote the views 
 QfjthejO£erators^.'~He"concluded~with the remark that it might 
 be better if we had no Constitution, for "the leaders of the 
 populace wanting the function of a Constitutional power might 
 then be more cautious in their measures. "^^ 
 
 Gouverneur Morris declared that he was not sorry that the 
 Louisiana-treaty "had been ratified and provision made for carry- 
 ing it into effect in accordance with the wish of the President. 
 He added^^J^tJbyjtheiE^.atQts^.the-Democrats had done more to 
 strengthen the Executive than the Federalists had ever dared to 
 
 -contemplate-.^^-^R-everting-td'^'the inquiry made by Henry W. 
 
 ' "Livmgston^*"TMorris wrote, December 4, 1803: 
 
 A circumstanee, "which turned up in conversation yesterday has led me 
 again to read over your letter of the third of November, and my answer 
 of the twenty-eighth, I perceive now, that I mistook the drift of your 
 inquiry, which is substantially whether Congress can admit, as a new 
 State, territory, which did not belong to the United States when the 
 Constitution was made. In my opinion they cannot. 
 
 I always thought that, when we should acquire Canada and Louisiana 
 it would be proper to govern them as provinces, and allow them no voice 
 in our couneils.22 In wording the third section of the fourth article, I went 
 as far as circumstances would permit to establish the exclusion. Candor 
 obliges me to add my belief that, had it been more pointedly expressed, a 
 strong opposition would have been made.23 
 
 It could probably be shown that this policy would have been 
 more dangerous to the Government than the overthrow of the 
 balance of power by the admission of new states, from which the 
 
 19 Pickering to Eufus King, March 3, 1804, in Pickering Papers, "Letters 
 to his Correspondents, 1801-1813," XIV, 97 (Mass. Hist. Soc. Library). 
 
 20 Sparks, Life of Gmivemeur Morris, III, 184. 
 
 21 See above. 
 
 22 Morris 's opinion does not harmonize with the spirit of article eleven 
 of the Articles of Confederation which made specific provision for the 
 admission of Canada into the Union. 
 
 23 Sparks, Life of Gouverneur Morris, III, 192 ; Farrand, Records of 
 the Federal Convention, III, 404, 
 
Status of the Acquired Territory 45 
 
 New Englanders claimed to fear so much. Fortunately for the 
 future of the new Republic this interpretation of the Consti- 
 tution was not accepted. Morris, however, persisted in the 
 belief that the admission of the inhabitants of the ceded territory ^ 
 into the Union w^uld_prove^angerous.,,.He jpessimistically re- 
 marked that at the rate^things^ were going, ^'the^J^^^ 
 cannot last, and an unbalanced monarchy-will' be~estabHshed on 
 its ruins. "^* 
 
 'C)ne of the staunchest supporters of strict construction of 
 the Constitution throiigTiouT^thT^fmggle^dver L'o was 
 
 John Quincy Adams. He confessed that the whole subject had 
 i3ause'd"liiiii sleepless nights. ^^ He complained that Pickering, 
 who differed with him on the Louisiana matter, was guided by 
 expediency rather than by constitutional right.^^ The question 
 of taxing the people of Louisiana without their own consent was 
 abhorrent to Adams. He therefore moved in the Senate the 
 adoption of the following resolutions : 
 
 Resolved, That the people of the United States, have never, in any 
 manner delegated to this Senate, the power of giving its legislative con- 
 currence to any act for imposing taxes u pon the inhabitants of _Lauialana, - 
 without their consent. 
 
 ^Kesolved, That by concurring in any act of legislation for imposing 
 taxes upon the inhabitants of Louisiana without their consent, this Senate 
 would assume a power, unwarranted by the constitution and dangerous to 
 the people of the United States. ^ 
 
 Resolved, That the power of originating bills -for raising revenue, being 
 exclusively vested in~"t"he^nSouse of Representatives, these .resolutions -be 
 carried to~ them by the Secretary to the Senate: that whenever they think 
 proper they' may adopt such measures as to their wisdom may appear 
 necessary and expedient, for raising and collecting a revenue from Louis- 
 iana:2T'' " 
 
 24 Morris to Jonathan Dayton, January 7, 1804, in Sparks, Life of 
 Gouverneur Morris, III, 203. 
 
 25 John Quincy Adams, Memoirs (Adams, ed.), I, 285, January 8, 1804. 
 
 26 Ibid., I, 289, January 15, 1804. 
 
 27 John Quincy Adams, Writings (Ford, ed.), Ill, 25-26; Memoirs, I, 
 286 (footnote). 
 
46 Canstitutional History of the Louisiana Purchase 
 
 A vote was taken upon each resolution. The first and second 
 were rejected by twenty-one to four. The third was unanimously 
 rejected.^^ 
 
 Adams believed that the consent of the people of the United 
 States and of the people of Louisiana was necessary to make 
 Louisiana a part of the American Union. France could only 
 cede her property right to the territory; while the right of sov- 
 ereignty inherent in the people must be ceded by an act of their 
 own and acquired by some act of the people of the United 
 States.^* Considering an amendment to the Constitution neces- 
 sary, he drafted one and submitted it to Madison and Pickering, 
 neither of whom approved of it. The tenor of the amendment was 
 a grant of general power to Congress to annex new territories 
 to the Union at its discretion. The exercise of sovereign powers 
 by Congress over the people of Louisiana Adams considered an 
 assumption of power not delegated. However, this power hav- 
 ing been acquiesced in, there was no constitutional obstacle to 
 the admission of Louisiana into the Union as a state. He did 
 not think it the intention of the framers of the Constitution to 
 limit the admission of new states into the Union to the original 
 territory of the United States. Such an intention would have 
 probably been expressed. Aj3omparison of the Articles of Con- 
 federation with the Constitution showed, said Adams, that the 
 power'tb admit new states was substituted for the clause autlior- 
 izing the admission of Canada. The power in the Constitution 
 applied to the admission of states within the original territory 
 of the Union, but there was no reason to believe that it- was 
 intended to apply so exclusively. 
 
 "Manifest destiny" again comes to the fore and Adams 
 concluded : 
 
 2s John Quiney Adams, Memoirs (Adams, ed.), I, 287, January 10, 1804. 
 
 29 See Adams 's speech in the Senate, February 18, 1804, as reported by 
 Plumer, in Chapter VII, 
 
Stattis of the Acquired Territory 47 
 
 The whole continent of North America appears to be destined by Divine 
 Providence to be peopled by one nation, speaking one language, professing 
 one general system of religious and political principles, and accustomed to 
 one general tenor of social usages and customs. For the common happiness 
 of them all, I believe it indispensable that they should be associated in one 
 federal Union.30 
 
 Pickering expressed himself as in favor of something more 
 practical than the doctrine proposed by Adams. He held that 
 the people were accustomed to such transfers and to being ruled 
 without their inclinations being consulted. He would give 
 individuals no option except quiet obedience or expatriation. 
 He would provide for a gradual amelioration of their laws, in 
 conformity with the principles of our own jurisprudence, win- 
 ning their affections and assimilating them as fast as possible 
 to the character of citizens of the United States.^^ 
 
 To Adams's inquiry by what clause in the Constitution Pick- 
 ering deemed Congress authorized to tax and govern Louisiana, 
 Pickering answered that Congress in its legislative capacity was 
 often obliged to legislate in cases where correct theory forbade 
 it, negro slavery being an example. Although some stipulations 
 in the treaty, or even the purchase itself, were not warranted 
 by the Constitution ; and although the abstract theory of govern- 
 ment forbade the taxing, or the imposing of laws on any people 
 without their own consent; yet with regard to Louisiana, it 
 having become in fact a province of the United States the 
 "general welfare" required Congress 'Ho provide" for its gov- 
 ernment. Pickering expressed himself as willing to cooperate 
 in forming the same regulations for the "general welfare" as 
 would have been proper had Louisiana been in all respects 
 constitutionally acquired.^^ 
 
 30 Letter to John Adams, August 31, 1811, in John Quincy Adams, 
 Writings (Ford, ed.), IV, 204-210. See also Henry Adams, Documents 
 relating to New England Federalism, 52-55. 
 
 31 Pickering to Stephen Higginson, January 14, 1804, in Pickering 
 Papers, ''Letters to his Correspondents, 1801-1803," XIV, 84. 
 
 32 Pickering to Higginson, January 16, 1804, ibid., XIV, 89. 
 
48 Constitutimial History of the Louisiaim Purchase 
 
 Echoes of the Louisiana question and its results, directly 
 and indirectly, can be traced far down even into Madison's writ- 
 ings. Perhaps no man was better qualified than he to say what 
 the meaning- of the Constitution was. His clear-cut way of going 
 immediately to the heart of any question is well illustrated in 
 this connection. On the admission of Missouri into the Union 
 Madison wrote : 
 
 As to the power of admitting new States into the federal compact, the 
 questions offering themselves are: whether congress can attach conditions, 
 or the new States concur in conditions, which after admission, would 
 abridge or enl-arge the constitutional rights of legislation common to the 
 other States; whether Ck)ngress can by a compact with a new member take 
 power either to or from itself, or place the new member above or below 
 the equal rank and rights possessed by the others; whether all such stipu- 
 lations, expressed or implied would not be nullities, and so pronounced when 
 brought to a practical test. . . .33 
 
 *'0n the whole," said Madison, "the Missouri question, as 
 a constitutional one, amounts to the question whether the con- 
 dition proposed to be annexed to the admission of Missouri 
 would or would not be void in itself, or become void the moment 
 the territory should enter as a State within the pale of the Con- 
 stitution. "^* The truth of this statement is borne out by the 
 history of the territorial expansion of the United States. 
 
 Constitutional construction was at the bottom of the whole 
 matter of the acquisition of territory with its inhabitants, turn- 
 ing on the right to acquire and to admit when acquired.^^ 
 
 33 Madison to Robert Walsh, November 27, 1819, in Madison, Writings 
 (Hunt, ed.), IX, &-7. 
 
 34 nid., IX, 12. 
 
 35 Madison to James Robertson, April 20, 1831, in Madison, Letters and 
 otlier Writings (Congressional ed.), IV, 171. 
 
CHAPTER IV 
 
 THE DEBATE ON THE TREATY: THE TREATY-MAKING 
 
 POWERS 
 
 As soon as the news that the President had signed the treaty- 
 became known there arose at once the question of the interpre- 
 tation of the constitutional provisions concerning treat3'"-making. 
 Jefferson had been warned of possible difficulties on this score 
 by both Madison and Gallatin. The draft of the President's 
 message of October 17 had been submitted to Madison, who, 
 under date of October 1, commented on it. He thought it well 
 to avoid ''what the theory of our constitution does not seem 
 to have met, the influence of deliberations and anticipations of 
 the H. of Reps, on a Treaty depending in the Senate." Delay 
 might arise from the doubtfulness and novelty of a communi- 
 cation of a treaty negotiated by the Executive to both Houses 
 for their respective deliberations.^ 
 
 Gallatin thought the treaty ought not to be laid before both 
 Houses of Congress until after ratification by the Senate. * * The 
 House of Representatives," he wrote, "neither can nor ought 
 to act on the treaty until after it is a treaty." Great care, he 
 continued, should be taken against possible encroachment upon 
 the constitutional rights of the Senate. Grants of money or 
 other legislative acts for enabling the Executive to carry on a 
 negotiation could be asked for before the negotiation had been 
 opened or the treat}' received. After the negotiation had been 
 
 - For a recent general treatment of this topic see W, W. Willoughby, 
 The Constitutional Law of the United States, I, Chapters XXXII-XXXV; 
 also Samuel B. Crandall, Treaties: Their Making and Enforcement. 
 
 2 Jefferson, Writings (Ford, ed.), VIII, 266 (footnote). That it -was 
 not wise for the House to take part in treaty-making was laid down by 
 John Jay in the Federalist (Ford, ed.), no. 64. See also no. 75 by Ham- 
 ilton. 
 
50 Constitutional History of the Louisiana Purchase 
 
 closed and the treaty signed, as in the case at hand, the House 
 need not be consulted until ratification by the President and 
 Senate has been completed.^ 
 
 Just what claims to participation in treaty-making the 
 House would put forth were soon evident. On October 22, 1803, 
 it was reported to the House that the conventions entered into 
 with the Government of France for the cession of Louisiana to 
 the United States had been ratified by the Senate and were laid 
 before the House in its legislative capacity. John Randolph 
 submitted a resolution providing for the carrying into effect of 
 the treaty and conventions. This was submitted to a committee 
 to which the President's message had been referred.* 
 
 Two days later, October 24, Gaylord Griswold of New York 
 moved a resolution asking that the President be requested to 
 have laid before the House a copy of the treaty between France 
 and Spain, entered into October 1, 1800, together with a copy 
 of the deed of cession of Louisiana from Spain to France under 
 that treaty, if such deed existed; also copies of any correspon- 
 dence which might have taken place between the Governments 
 of the United States and Spain which would show the assent 
 or dissent of Spain to the cession of Louisiana to the United 
 States, together with any other documents in possession of the 
 Ame"rican Government showing that the United States had 
 really acquired title to the possession of Louisiana.^ 
 
 Varying degrees of opinion became evident in the debate 
 which followed the introduction of this resolution. John Ran- 
 dolph opposed the resolution and was answered by Goddard of 
 Connecticut. Smilie of Pennsylvania also opposed the motion, 
 and quoted Washington's reply to the House on the demand 
 for the papers in relation to Jaj'^'s Treaty. Elliot of Vermont 
 
 3 Gallatin, Writings (Adams, ed.), I, 156; remarks received by Jefferson 
 October 4. 
 
 * AnimU of Congress, 8 Cong., 1 Sess. (1803-1804), 382. 
 
 ^Ihid,, 385. 
 
The Treaty-Making Power 51 
 
 opposed the call on the Executive for papers, while Thacher of 
 Massachusetts spoke for the resolution. Nicholson of Maryland 
 favored the call for the papers on the treaty but not the recog- 
 nition of any claim of Spain. Mitchill of New York acknowl- 
 edged the right of the House to request of the President the 
 copies of the papers mentioned in the resolution under debate; 
 his opposition to the resolution arose from the' persuasion he 
 felt, that the papers were unnecessary, and some of them im- 
 possible to obtain.* 
 
 The question was taken on agreeing to the first part of the 
 resolution which requested the President to cause to be laid 
 before the House a copy of the treaty between France and Spain, 
 of October 1, 1800, and was carried by the casting vote of the 
 Speaker. The other parts of the motion were lost. The original 
 motion was amended to read: 
 
 Eesolved, That the President of the United States be requested to cause 
 to be laid before the House a copy of the treaty between the French Repub- 
 lic and Spain, on the 1st October, 1800, together "with a copy of any instru- 
 ment in possession of the Executive, showing that the Spanish Government 
 has ordered the province of Louisiana to be delivered to the Commissary or 
 other agent of the French Government. 
 
 The motion was lost by the close vote of fifty-nine to fifty-seven.'" 
 On October 25, the House went into the Committee of the 
 "Whole for consideration of measures for carrying the treaty 
 into effect.® Gaylord Griswold desired to know where was to 
 be found the constitutional power of the Government to incorpo- 
 rate the territory with its inhabitants into the Union of the 
 United States, with the privileges of the United States. The 
 constitutional right of making treaties, he said, was vested in the 
 President and Senate and a treaty made by them on a subject 
 constitutionally within their treaty-making power, was valid 
 
 6 nid., 387-402. 
 Tibid., 418^19. 
 Blbid., 432. 
 
52 Constitutional History of the Louisiana Purchase 
 
 without the consent of the House. The House eould refuse the 
 necessary means of carrying treaties into effect but this power 
 was not the same as that conferred by the Constitution. Should, 
 however, the treaty-making power be exceeded, it ought not to be 
 carried into effect. Even a beneficial measure, if it violated the 
 Constitution, should be resisted. Quoting the third article of 
 the treaty, Griswold declared : 
 
 Here then is a compact between the French Government and that of the 
 United States, to admit to citizenship persons out of the jurisdiction of 
 the United States, as it now is, and to admit territory out of the United 
 States, to be incorporated into the Union. He did not find in the Con- 
 stitution such a power vested in the President and Senate. If such a power . 
 be not expressly vested, it must be reserved to the people. It was not 
 consistent with the spirit of the Constitution that territory other than that 
 attached to the United States at the time of the adoption of the Consti- 
 tution should be admitted; because at that time the persons who formed the 
 Constitution of the United States had a particular respect to the then 
 subsisting territory. 
 
 Even though the f ramers of the Constitution had looked forward 
 to a greater population they had not intended that an addition 
 of territory large enough to overbalance all the rest should be 
 made. He did not believe that any such power had been dele- 
 gated to any department of the Government. If it had been 
 placed anywhere it must rest with the Legislature, for the Con- 
 stitution states that new states are to be admitted into the Union 
 by Congress.^ This provision, however, related to the then 
 existing territory of the United States. Power to incorporate 
 new territory did not exist; but if this power did exist the 
 Legislature, and not the Executive, could incorporate the terri- 
 tory into the Union. It was the duty of the House, he concluded, 
 to resist the usurped power exercised by the Executive.^'' 
 
 Griswold also took exception to the seventh article of the 
 treaty, which provided that the ships of France and Spain 
 
 9 Article 4, section 3. 
 
 io Annals of Congress, 8 Cong., 1 Sess. (1803-1804), 432-433. 
 
The Treaty -Making Power 53 
 
 should have the same right, under certain conditions and for a 
 term of twelve years, of entering the ports of the ceded territory 
 as those of the United States. The inference was that a favor 
 was being granted to the port of New Orleans over othei* ports 
 of the United States. Such discrimination was contrary to the 
 ninth section of the first article of the Constitution which states 
 that *'no preference shall be given by any regulation of com- 
 merce or revenue to the ports of one State over those of another. ' ' 
 The treaty becoming a law of the land, had made a commercial 
 regulation, giving the ports of the ceded territory a preference 
 to any other ports. Giving an advantage to the ports in ques- 
 tion would be *'a fatal blow proposed against the Constitution 
 of the United States, for it would destroy the reciprocity of 
 interest that unites at present the different members of the 
 Union."" 
 
 John Randolph answered Griswold by stating clearly the 
 treaty-making powers as he interpreted them : 
 
 If the Government of the United States possess the Constitutional 
 power to acquire territory from foreign States, the Executive, as the organ 
 by which we communicate with such States, must be the prime iagent, in 
 negotiating such an acquisition. Conceding, then, that the power of con- 
 firming this act, and annexing to the United States the territory thus 
 acquired, ultimately rests with Congpress, where has been the invasion of 
 the privileges of that body? Does not the President of the United States 
 submit this subject to Congress for their sanction? Does he not recognize 
 the principle that no treaty is binding until we pass the laws for execut- 
 ing it — that the powers conferred by the Constitution on Congress cannot 
 be modified or abridged, by any treaty whatever — that the subjects of which 
 they have cognizance cannot be taken, in any way, out of their jurisdiction? 
 . . . As to the initiative, in a matter like this, it necessarily devolved on the 
 Exeeutive.i2 
 
 Roger Griswold of Connecticut was not altogether satisfied 
 with the interpretation here given. "While declaring that the 
 power of making treaties belonged exclusively to the President, 
 
 iiJfcwZ., 434. 
 
 12 J&id., 436-^37. 
 
54 Canstitutional History of the Lauismtia Purchase 
 
 with the consent of the Senate, and that a treaty, constitution- 
 ally made and ratified, became a law and must be executed, he 
 still maintained that the treaty must be consistent with the 
 Constitution in every respect. A treaty repugnant to the Con- 
 stitution either in subject-matter or in form of ratification could 
 not be constitutionally considered a treaty. Congress, in such 
 a case, was bound to support the Constitution and refuse its 
 consent to laws which would infringe that instrument.^^ 
 
 Nicholson took it upon himself to answer the charge that the 
 President and Senate have no right to pledge the Government 
 for anything not immediately within their own powers. He 
 pointed out that the President and. Senate have the treaty- 
 making power but nearly all of the treaties ratified by them 
 contain stipulations which must be performed bj' the House, if 
 performed at all. This had been the case in the last convention 
 made with Great Britain, in which the President and Senate 
 pledged the United States to the payment of six hundred thou- 
 sand pounds sterling, yet no constitutional power to do so was 
 possessed by them ; nor could the money have been paid without 
 the concurrence of the House. No doubt of the constitutionality 
 of this stipulation had been held. Furthermore, no question had 
 been raised over the pledge in the present treaty to pay to France 
 fifteen million dollars, although the treaty could not be carried 
 into effect wdthout the cooperation of the House. 
 
 Nicholson also discussed the point made by Roger Griswold 
 that since the treaty embraced objects not in the power of the 
 General Government, the whole treaty was invalid. This, he 
 held, was not true. Impossible covenants in a treaty might be 
 void and not invalidate the rest. There was a distinction be- 
 tween articles of a treaty which were violated by one party, and 
 articles which from the nature of things, or from previous 
 engagements, were void. As a precedent he cited the Treaty of 
 Peace with Great Britain, concluded in 1783, the fourth article 
 
 i^ Ann<ils of Congress, 8 Cong., 1 Sess. (1803-1804), 460. 
 
The Treaty-Making Power 55 
 
 of which provided that creditors on either side should meet with 
 no lawful impediments to the recovery of debts contracted pre- 
 vious to the war. This was a stipulation impossible for 
 Congress to perform. In the matter of debts the individual 
 states had uncontrolled authority. While the right to make 
 treaties had been given to the General Government by the 
 Articles of Confederation, the assent of the states was necessary 
 before this part of the treaty could be carried out. This article 
 was invalid, and never fulfilled on the part of the United States, 
 yet the whole treaty was not thereby nullified. Nicholson held 
 that even if it should be determined that Congress could not 
 admit the ceded territory into the Union as a state, yet the 
 remainder of the treaty with France would remain valid.^* 
 
 It was not in the House alone that the extent of the treaty- 
 making power was under probe. On November 2, when the 
 Senate resumed the second reading of the bill, entitled, "An 
 act authorizing the creation of a stock to the amount of eleven 
 millions two hundred and fifty thousand dollars, for the purpose 
 of carrying into effect the convention of the 30th of April, 1803, 
 between the United States of America and the French Republic 
 and making provisions for the payment of the same," a debate 
 arose on the question : shall the bill pass ?^^ White of Delaware 
 declared that the United States must have possession of New 
 Orleans and such other places on the Mississippi, necessary to 
 secure the complete and uninterrupted navigation of that river. 
 This much was essential to the peace of the United States and 
 to the prosperity of the West. "But as to Louisiana, this new, 
 immense, unbounded world, if it should ever be incorporated 
 into this Union, which I have no idea can be done but by alter- 
 ing the Constitution, I believe it will be the greatest curse that 
 could at present befall us."^® 
 
 i4j&i^., 468-470. 
 isjhid., 31. 
 i^Ihid., 33. 
 
56 Co7istitutional History of the Louisiatia Purchase 
 
 The constitutional right to acquire by treaty a small area 
 does not seem to have troubled Senator White: a larger area 
 was another matter. The friends of the bill were not slow in 
 pointing out the weakness of this argument.^"^ 
 
 The lack of power under the Constitution not only of the 
 treaty-making body, but of any or all departments of govern- 
 ment as they existed, was set forth by Senator Pickering of 
 Massachusetts in his classic exposition of the state-compact 
 theory of the formation of the Federal Government : 
 
 *The Constitution and the laws of the United States made in pursuance 
 thereof, and all treaties made, or which shall be made, shall be the supreme 
 law of the land. 'is But a treaty to be obligatory, must not contravene the 
 Constitution, nor contain any stipulations which transcend the powers therein 
 given to the President and Senate. The treaty between the United States 
 and the French Eepublie, professing to cede Louisiana to the United States, 
 appeared to him to contain an exceptionable stipulation — a stipulation 
 which cannot be executed by any authority now existing. It is declared 
 in the third article, that the inhabitants of the ceded territory shall be 
 incorporated in the Union of the United States. But neither the President 
 and Senate, nor the President and Congress, are competent to such an act 
 of incorporation. He believed that our Administration admitted that this 
 incorporation could not be effected "ni-thout an amendment of the Consti- 
 tution, and he conceived that this necessary amendment could not be made 
 in the ordinary mode by the concurrence of tAvo-thirds of both Houses of 
 Congress, and the ratification of the Legislatures of three-fourths of the 
 several States. He believed the assent of each individual State to be neces- 
 sary for the admission of 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. 
 
 Pickering, however, **had never doubted the right of the United 
 States to acquire new territory either by purchase or conquest 
 and to govern the territory so acquired as a dependent prov- 
 ince. "^« 
 
 1' See below. 
 
 IS Article 6, clause 2, 
 
 ^9 Annals of Congress, 8 Cong., 1 Sess. (1803-1804), 44-45. 
 
The Treaty-Making Power 57 
 
 A still different interpretation was presented by John Taylor 
 of Virginia in answer to the objections made to the treaty ; first, 
 that the United States could not constitutionally acquire terri- 
 tory ; and second, that the treaty stipulated for the admission of 
 a new state into the Union, a stipulation with which the treaty- 
 making power could not comply. Taylor argued that before the 
 formation of the Confederation, each state, being sovereign, 
 possessed the right to acquire ten'itory: this right it either still 
 held, or had surrendered to the General Government. This 
 power was not possessed by the states separately because the 
 states were prohibited by the Constitution from engaging in 
 war or entering into compacts with another state or with foreign 
 powers. No other means of acquiring territory existed. By 
 taking from each state the means of exercising the right of 
 acquiring territorj^, the Constitution had taken from each state 
 the right itself. On the other hand, neither the means nor the 
 right of acquiring territory were forbidden to the United States ; 
 and the fourth article of the Constitution even empowered Con- 
 gress "to dispose of and regulate the territory belonging to the 
 United States. ' ' The right of the United States to hold territory 
 was thus recognized. The means of acquiring territory' consisted 
 of war and compact. Both being expresslj'- surrendered to Con- 
 gress and prohibited to the several states, it followed, according 
 to Taylor, that these attributes of sovereignty once held by 
 each state were thus transferred to the United States, annexed 
 to the treaty-making power, and the power of making war; or 
 literally granted by the Constitution to the General Govern- 
 
 ment.2*' 
 
 Nicholas held it to be rather extraordinary that arguments 
 to show the unconstitutionality of the treaty should be made in 
 the Senate, to prevent its execution, after the treaty had already 
 
 ^olhid., 50. 
 
58 Constitutional History of the Louisiana Purchase 
 
 been ratified by that body. This action having been taken it was 
 not necessary to answer arguments denying the power of the 
 Government to make such a treaty. The only question at stake 
 was whether the bill ought to pass at that time. The principle 
 had been decided when the British Treaty was under discussion 
 that the treaty-making power of the Government was so limited 
 that the consent and cooperation of Congress was necessary 
 before engagements to pay money could be carried into effect. 
 In the Constitution the treaty-making powers were not specified 
 nor were any reservations made ; but from this it was not to be 
 inferred that the treaty-making power was unlimited. If special 
 grants of power to Congress were to be considered as limitations 
 of the treatj'--making power, the power of making treaties did 
 not substantially exist in the Government, for a commercial 
 treaty could not be formed without interfering with the Con- 
 gressional power to regulate commerce, lay and collect duties, 
 imposts, etc., and ever3'^ other treaty would require the payment 
 of money or some other stipulation calling for the exercise of 
 some power vested in Congress. 
 
 To make ours a practical Government, [declared Nicholas] it must be 
 understood that the treaty-making power may negotiate respecting many 
 of the subjects upon which Congress may legislate, but that Congress are 
 not bound to carry into execution such compacts (where an act of theirs is 
 necessary to give them effect) unless they approve of them. And this must 
 be fully understood by all nations vdth whom such compacts may be formed. 
 Upon every other subject proper for a national compact, not inconsistent 
 with our Constitution, and under the limitations by me stated, a treaty may 
 be negotiated and absolutely concluded by the treaty-making power, so as 
 to bind the nation. . . . By the British Treaty a great number of persons had 
 a right to become American citizens immediately; not only without a law, 
 but contrary to an existing law. And by that treaty many of the powers 
 specially given to Congress were exercised by the treaty-making power. 
 
 If the third article of the treaty 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 
 
The Treaty-Making Power 59 
 
 treaty-making power j for it will not be asserted by any rational man that 
 the territory is incorporated as a State by the treaty itself; when it is 
 expressly declared that 'the inhabitants shall be incorporated in the Union 
 of the United States, and admitted as soon as possible, according to the 
 principles of the Federal Constitution.' Evidently referring the question 
 of incorporation, in whatever character it was to have taken place, to the 
 competent authority ; and leaving it to that authority to do it, at such time, 
 and in such manner, as they may think proper. 
 
 This would be done by Congress or by an amendment to the 
 Constitution for in no other way could a State be admitted into 
 the Union.2^ 
 
 Cocke of Tennessee pointed out that the objections being 
 made to the treaty were not consistent with the opinions formally 
 delivered by those who, a short time before, advocated the taking 
 of New Orleans and the Floridas by military force.^^ He per- 
 tinently demanded whether the Constitution had formed a 
 barrier then. Presenting an extremely broad interpretation of 
 the Constitution, Cocke contended that the treaty-making powers 
 were ' ' competent to the full and free exercise of their best judg- 
 ment in making treaties, without limitation of power; for, on 
 every subject in which that power is called to a<jt, it must act 
 on its own responsibility. ' ' According to Cocke 's interpretation, 
 the treaty-making power passes out of the hands of the people 
 by their consent, and for a time limited by them, is vested in the 
 President and Senate. There it remains until the time set by 
 the people for the resumption of their elective rights.^^ 
 
 So sweeping a power for the treaty-making branch of the 
 Government was not held by many of Cocke's contemporaries 
 but it met with growing favor in the years following the Spanish- 
 American War of 1898. 
 
 21 Ibid., 68-71. It is very doubtful if a saner interpretation of the 
 constitutional provision for the treaty-making powers has been made than 
 this by Nicholas. 
 
 22 See above. 
 
 2Z Amials of Congress, 8 Cong., 1 Sess. (1803-1804), 71-73. 
 
60 Constitutwnal History of the Louisia/na Purchase 
 
 The vote on the passage of the bill to create eleven million 
 two hundred and fifty thousand dollars of stock to pay for 
 Louisiana was carried in the Senate by a vote of twenty-six to 
 five, those opposing it being Hillhouse and Tracy of Connecticut, 
 Pickering of Massachusetts, and Wliite and Wells of Delaware.^* 
 
 Senator Pluraer had voted against ratifying the treaty but 
 voted in favor of the bill for creating the stock to pay for the 
 territory. His justification of his action in the latter case was 
 that the President and Senate, the only tribunal established to 
 make treaties, had declared the instrument to be a treaty; and 
 this question having been settled, the faith of the nation was 
 pledged to make the necessary appropriations. The treaty, by 
 action of the President and Senate, having become a law, Plumer 
 did not consider himself at libertj' to withhold his vote on the 
 ground either that the treaty was unconstitutional, or that it 
 was a bad bargain. Those questions as they related to the 
 Senate, were, for him, definitely settled. 
 
 Plumer declined to say that the ratification made the treaty 
 a constitutional one, if its articles violated the Constitution, Its 
 ratification, however, bound the Government to carry it into 
 effect so far as the Government had authority to do so. * * Perish 
 the eleven millions of stock," declared Plumer, ''but preserve 
 the faith of the nation." He then pointed out that cases might 
 arise respecting the rights of individuals under the treaty in the 
 courts of law in which the constitutionality of the treaty might 
 be questioned. He could even conceive of cases in which it might 
 become the duty of the judges, if such were their opinion, and 
 if the nature of the ease required it, to declare the treaty to be 
 repugnant to the Constitution,^^ 
 
 2i Annals of Congress, 8 Cong., 1 Sess. (1803-1804), 73. 
 
 25 Pluitier, "Memorandum, 1803-1804," under date of Thursday, Novem- 
 ber 3, 1803 (p. 72). A briefer reference to his vote will be found in his 
 letter to Daniel Plumer, November 15, 1803, in his MSS letters, and in 
 Plumer, Life of William Plumer, 265. 
 
The Treaty-Makhig Power 61 
 
 Coming as it did only a few months after the decision of the 
 Supreme Court in the case of Marhury vs. Madison (February, 
 1803), Plumer's last statement is very striking. In Marhury 
 vs. Madismi the Supreme Court of the United States, for the 
 first time, had declared a law to be unconstitutional. Plumer's 
 assertion that the judges had the power "to declare a treaty 
 repugnant to the Constitution" is in harmony with that decision. 
 Plumer does not say whether he had been influenced by the 
 opinion of the Supreme Court or whether he had reached his 
 conclusion independently. In either case, his statement is an 
 interesting illustration of the development of constitutional 
 interpretation. 
 
 The extent of the treaty-making power was, like practically 
 all the other constitutional issues to which the Louisiana Pur- 
 chase gave rise, one of interpretation. To a great degree it has 
 remained so, yet precedent has added much to interpretation. 
 Just as the decision at the time of the Jay Treaty was made 
 use of in the debates on the Louisiana Treaty, so the latter has 
 been cited each time the same question has recurred. That 
 sectional interests have entered into these interpretations is of 
 none the less interest and importance ;. for it goes to show how 
 men sought, under the Constitution, a justification of their acts 
 and votes. 
 
CHAPTEE V 
 THE DEBATE ON THE TREATY 
 
 (1) The Uight to Acquire Territory 
 
 The right of the Government under the Constitution to 
 acquire new territory did not, in itself, cause much debate in 
 Congress when the Louisiana treaty was under discussion. This 
 right, although generally complicated with some of the other 
 points at issue, nevertheless, in some of its phases at least, stands 
 apart. The doctrine that a republic ought not to cover too 
 extensive an area was early introduced, as it had been during 
 the days when the ratification of the Constitution itself was 
 before the country.^ This doctrine John Breckinridge of Ken- 
 tucky, in the Senate, pronounced old and hackneyed. He, too, 
 asked whether the principle would have been violated by includ- 
 ing the island of Orleans and the Floridas. Since all parties 
 seemed to think their acquisition essential, why not acquire on 
 the west bank of the Mississippi as well as the east side ? Instead 
 of believing in the theory that a republic ought to be confined 
 within narrow limits, he believed that the more extensive its 
 dominion the more durable it would be.^ 
 
 1 Federalist (Ford, ed.), nos. 9, 10, 14. After the triumph of demoeracy 
 in 1801, Jefferson -wrote to Nathaniel NUes: "It furnishes a new proof 
 of the falsehood of Montesquieu's doctrine, that a republic can be preserved 
 only in a small territory. The reverse is tlie truth. Had our territory been 
 even a third only of what it is, we were gone. But when frenzy & delusion, 
 like an epidemic, gained certain parts, the residue remained sound & un- 
 touched, and held on till their brethren could recover from the temporary 
 delusion; and that circumstance has given me great comfort." Jefferson, 
 Writings (Ford, ed.), VIII, 24. Quoted by Ford in his edition of the 
 Federalist, 50, footnote. 
 
 ^ Aniials of Congress, 8 Cong., 1 Sess. (1803-1804), 60. 
 
 The same idea crept into the printed pamphlets of the time, where 
 supporters of the administration defended the extension of the Federal 
 limits. See for example, David A. Leonard, An Oration . . . on tJie late 
 acquisition of Louisiana^ . . . 1804, 20 ; David Eamsay, An Oration on the 
 
* The Bight to Acquire Territory 63 
 
 Upon the question of the right to acquire territory, Randolph 
 of Virginia stood, in the House, as the champion of broad con- 
 struction of the Constitution. He held that if, by the Consti- 
 tution, the United States was restricted to the limits which 
 existed at the time of its adoption, those limits must have been 
 accurately defined and generally known at the time. The 
 boundaries had been neither particularly described nor settled 
 beyond dispute. They were unsettled on the northwestern, 
 southern, and northeastern frontiers when the Constitution was 
 adopted. 
 
 It will not be denied, [said Kandolph] that, among the powers which 
 the Government possesses under the Constitution, there exists that of set- 
 tling disputes concerning our limits with the neighboring nations. . . . The 
 existence of this power will not be denied: it has been exercised in ascer- 
 taining our northeastern and southern frontier, and it involves in it the 
 power of extending the limits of the Confederacy. . . . That the Constitution 
 should tie us down to particular limits, Avithout expressing those limits; 
 that wc should be restrained to the then boundaries of the United States, 
 when it is in proof ... that no such bounds existed, or .do now exist, was 
 altogether uncompreheusible and inadmissible.^ 
 
 Elliott of Vermont declared that the treaty-making power had 
 been constituted by the American people with an eye to the law 
 of nations ; and that by virtue of this law, the Government and 
 the people of the United States possessed the power and right 
 of acquiring territory by conquest, cession, or purchase.* 
 
 Nicholson of Maryland traced historically the right of the 
 United States to acquire territory. When, in 1776, allegiance 
 was absolved from Great Britain, each state became a separate 
 and independent sovereignty. Included among the rights of 
 
 Cession of LovAsiana to the United States . . . 1804, 19 ; Allan B. Magruder, 
 Political, Commercial and Moral Beflections, on the late cession of Louisiana 
 to the United States, 73; John B. Colvin, Republican Policy, etc., 180S ; 
 Sylvestris (pseud.), Beflections on the Cession of Louisiana to the United 
 States. 
 
 3 Annals of Congress, 8 Cong., 1 Sess. (1803-1804), 434-^35, 
 
 *Ibid., 447-448. 
 
64 Constitutional History of the Louisimia Purchase 
 
 each state was that of extending its limits, either by conquest 
 or by purchase. In 1781, under the Articles of Confederation 
 each state surrendered a portion of its sovereignty for the com- 
 mon benefit of the whole. Among the rights surrendered was 
 that of acquiring new territory, with the powers of peace and 
 war. Again in 1788, the states resumed their original inde- 
 pendence. The present Constitution was adopted, giving the 
 right to declare war to Congress and the right to make treaties 
 to the President and Senate. These were the means of acquiring 
 territory.^ 
 
 Nicholson's argument is interesting as an early application 
 of the doctrine that the states did possess, at one time or other, 
 complete sovereign powers, some of which were given up to the 
 General Government. 
 
 The widest sweep of authority was claimed for the Govern- 
 ment by Rodney of Delaware, who held that unless special 
 restriction of the Constitution forbade it, there was no reason 
 why the power of acquiring territory could not come under the 
 clause providing for the general welfare and common defense. 
 The territory of the United States might also be extended 
 through war, and by the treaty-making power. Furthermore, 
 added Rodney, since Congress had the right to purchase terri- 
 tory from a state for a capital, forts, arsenals, public buildings, 
 etc., it must possess the power to purchase territory from a 
 foreign state.** The claims to power made here were too broad 
 even for the supporters of the treaty. 
 
 Mitchill of New York did not believe the framers of the 
 Constitution intended to prevent the United States from acquir- 
 ing territory. Such a restriction would have been contrary to 
 the powers inlierent in independent nations. Moreover, lands 
 had been frequently obtained bj^ treaty and purchase from the 
 
 5 Ihid., 468. 
 
 6 Ibid., 472-473. 
 
The Right to Acquire Territory 65 
 
 Indians who were as much aliens as other foreign nations, and 
 the question of the constitutionality of such acquisitions had 
 never been raised. He declared his understanding revolted at a 
 doctrine which held that there was no constitutional power to 
 purchase and possess waste lands across the Mississippi to which 
 the American people could spread when the eastern side had 
 become overpopulated.'^ 
 
 Thus it will be seen that the great difference of opinion was 
 not over the right to acquire territory, but over the means by 
 which this could be done. 
 
 (2) Status of the Acquired Territory 
 
 The third article of the treaty with France for the cession 
 of Louisiana to the United States provided 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 the rights, 
 advantages and immunities of citizens of the United States; and in the 
 meantime they shall be maintained and protected Ln the free enjoyment 
 of their liberty, property, and the religion which they profess. 
 
 This article caused the principal struggle over constitutional 
 interpretation aroused by the treaty. Whether the treaty- 
 making power could guarantee such rights as were here laid 
 down has already been discussed.^ The right under the Con- 
 stitution to incorporate into the Union the new territory, or 
 any new territory, was questioned bj^ opponents of the treaty. 
 The wording of the article itself called for interpretation. Just 
 what was meant by the term ** incorporated in the Union of the 
 United States"? Wliat obligation was mvolved in the stipula- 
 tion *'as soon as possible"? "What rights did the inhabitants 
 
 7 Hid., 477-479. 
 
 8 See above. 
 
66 Constitutional History of the Louisiana Purchase 
 
 have in the interval between acquisition and statehood, allowing 
 that ultimate statehood was to be the goal for Louisiana — which 
 some vehemently denied? 
 
 The policy of the Government was of the greatest significance 
 because of the precedents laid down, precedents cited in connec- 
 tion with every new acquisition of territory by the - United 
 States; and here again special attention must be called to the 
 recent Insular Cases, where the arguments used in connection 
 with the Louisiana purchase were gone over in detail.^ 
 
 Some light is thrown on the intentions of the Jefferson 
 Administration regarding the rights of the inhabitants of the 
 acquired territory by an examination of the outline of the treaty 
 drawn up by Madison for the guidance of Livingston and Mon- 
 roe, dated March 2, 1803. Although this plan of a treaty was 
 made with an eye to the purchase of the territory on the east 
 side of the Mississippi only, yet the attitude towards the inhab- 
 itants was the same as if the purchase of Louisiana had been 
 included. Article seven of the outlined treaty reads as follows: 
 
 To incorporate the inhabitants of the hereby ceded territory with the 
 citizens of the United States on an equal footing, 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. In the meantime they shall be secure in their persons 
 and property, and in the free enjoyment of their religion.io 
 
 Madison wrote in his instructions, March 2, 1803 : 
 
 This article is suggested by the respect due to the rights of the people 
 inhabiting the ceded territory, and by the delay which may be found in 
 constituting them a regular and integral portion of the union, A full 
 respect for their rights might require their consent to the act of cession; 
 and if the French Government should be disposed to concur in any proper 
 
 8 See Insular Cases, passim. Also Charles E. Magoon, Beport on the 
 Legal StattLS of the Territory and Inhabitants of the Islands acquired by 
 the United States during the War with Spain, Washington, 1900. 
 
 T-<> Annals of Congress, 7 Cong., 2 sess. (1802-1803), Appendix, 1101; 
 Am-erican State Papers, Foreign Relations, II, 542. 
 
Statics of the Acquired Territory 67 
 
 mode of obtaining it, the provision would be honorable to both nations. 
 There is no doubt that the Inhabitants would readily agree to the proposed 
 transfer of their allegianee.n 
 
 An undated manuscript abstract of the terms of the treaty 
 with France contained, as article three, the following provision: 
 
 All the rights which it is usual to reserve to the inhabitants of a ceded 
 territory or country, are reserved in a manner the most ample possible to 
 those of Louisiana, as well in the exercise of their religion as to retire 
 wheresoever they please, to sell their lands and other property or transport 
 their effects and persons without impediment of any [sort?] under any 
 pretext whatever, except for debts or criminal offenses. The [term?] fixed 
 for the said sale and removal or retreat shall be that of two years to 
 commence from the day of the exch[an]ge of the ratification of the present 
 treaty.i2 
 
 Article three of the treaty as finally ratified contains an 
 express stipulation that "The inhabitants of the ceded territory 
 shall be incorporated in the Union, and admitted as soon as 
 possible, according to the principles of the Federal Constitution, 
 to the enjojTuent of all the rights, advantEiges. and immunities 
 of citizens of the United States." How much of an obligation 
 did this imply? There were various answers to this question. 
 One was that of John Taylor, who, speaking in the Senate, 
 denied that the third article of the treaty stipulated that Louis- 
 iana must be erected into a state : 
 
 It is conceded that the treaty-making power cannot, by treaty, erect a 
 new State, however they may stipulate for it. . . . It has been proved that 
 the United States may acquire territory. Territory, so acquired, becomes 
 from the acquisition itself a portion of the territories of the United States, 
 or may be united with their territories without being erected into a State. 
 
 An union of territory is one thing; of States, another The United States 
 
 possesses territory, comprised in the union of territory, and not in the 
 union of States. Congress is empowered to regulate or dispose of State 
 
 11 Monroe Papers, "Writings to Monroe," IX, November 9, 1800- 
 September, 1803; American State Papers, Foreign Relations, II, 543. 
 
 ^i Monroe Papers, "Writings of Monroe," II, December 17, 1803- 
 December 16, 1804. 
 
68 Constitutional History of the Louisiatia PurcJuise 
 
 sections of the TJnioiL. The citizens of these territorial sections are citizens 
 of the United States, and they have all the rights of citizens of the United 
 States; but such rights do not include those political rights arising from 
 State compacts or governments, which are dissimilar in different States. 
 Supposing the General Government or treaty-making power have no right 
 to add or unite States and State citizens to the Union, yet they have a 
 power of adding or uniting to it territory and territorial citizens of the 
 
 United States 
 
 The third article declares that 'the inhabitants of the ceded territory 
 shall be incorporated in the Union of the United States. ' And these words 
 are said to require the territory to be erected into a State. This they do 
 not express, and the words are literally satisfied by incorporating them 
 into the Union as a territory, and not as a State. The Constitution recog- 
 nizes and the practice warrants an incorporation of a Territory and its 
 inhabitants into the Union as a territory, without admitting either as a 
 
 Stato For if the words 'the inhabitants of the ceded territory shall be 
 
 incorporated in the Union of the United States' intended that Louisiana 
 and its inhabitants should become a State in the Union of States, there 
 exists no reason for proceeding to stipulate that these same inhabitants 
 should be made 'citizens as soon as possible, according to the principles of 
 the Federal Constitution.' Their admission into the Union of the States 
 
 would have made them citizens of the United States. If my construction 
 
 is correct, all objections to the treaty and to this bill for fulfilling it, on 
 the ground of unconstitutionality, are unfounded. The three distinct 
 members of the third article will be each separately and distinctly com- 
 plied with; first, by an incorporation of the territory and its inhabitants 
 in the Union, as a Territory. Secondly, by admitting them to all the 
 rights of citizens of the United States — under some uniform rule of 
 naturalization; and thirdly, by protecting their liberty, property, and 
 religion, by 'rules and regulations,' to be, 'in the meantime,' enacted by 
 Congress, under a Constitutional power extending to Territories, but not 
 to States.13 
 
 Taylor's interpretation was not acceptable to the opponents 
 of the treaty of whom Tracy of Connecticut was a tj^pical rep- 
 resentative. Tracy held the meaning of the third article of the 
 treaty to be that the inliabitants of Louisiana were incorporated 
 by it into the Union on an equality with the territorial govern- 
 
 13 Annals of Congress, 8 Cong., 1 Sess. (1803-1804), 50-52. Taylor's 
 distinction between state and federal citizenship is a forerunner of the 
 lengthy discussion of this point in the Dred Scott case, and more recently 
 in the Insular Cases. 
 
Status of the Acquired Territory 69 
 
 ments already existing, and similarly, this territory when the 
 population had increased sufficiently, could be admitted as a 
 state, with the same rights as the other states. He questioned 
 the power of the President and Senate to guarantee this. 
 Although it was true that the Constitution provided for the 
 admission of new states by Congress, Tracy declared that the 
 President and Senate alone could not admit Louisiana. Further- 
 more, even Congress could not admit new "foreign" states into 
 the Union without the consent of the old partnei*s. 
 
 The compact theory, so often the weapon of the party of 
 opposition in the United States, was now pushed to the front 
 and along with it came the reasons for much of the New 
 England opposition to the treaty. The article of the Constitu- 
 tion alluded to, Tracy argued, referred only to "domestic" 
 states. It was "unreasonable to suppose that Congress should, 
 by a majority only, admit new foreign States, and swallow up 
 by it, the old partners, when two-thirds of all the members are 
 made requisite for the least alteration in the constitution." The 
 principles of the Government, the rights of the partners to the 
 compact, forbade a measure which would introduce a large for- 
 eign element into the Union. This could only be done by the 
 consent of all the partners. The reason for such an interpre- 
 tation comes out in Tracy's frank statement that "the relative 
 strength which this admission gives to a Southern and West- 
 ern interest, is contradictory to the principles of our original 
 Union."" 
 
 Breckinridge denied the charges of unconstitutionality 
 against the third article of the treaty. Opponents of the treaty, 
 he pointed out, had gone so far as to advocate the seizure of a 
 part of the country under question. Where was the constitu- 
 tional distinction between acquisition by conquest and purchase 
 
 ^*Ibid., 54-56. 
 
70 Cmistitutional History of the Louismiw, Purchase 
 
 through a treaty? An amendment could be made to the Consti- 
 tution to avoid all difficulty. Answering Tracy, Breckinridge 
 said: 
 
 [The] gentleman from Connecticut admits that Congress may acquire 
 territory and hold it as a territory, but cannot incorporate it into the 
 Union. By this construction he admits the power to acquire territory, a 
 modification infinitely more dangerous than the unconditional admission of 
 a new State; for by his construction, territories and citizens are considered 
 and held as the property of the United States, and may consequently be 
 used as dangerous engines in the hand of the Government against the 
 States and people As to the admission of new States the same gentle- 
 man observes that Congress may admit new States, the President and 
 Senate who are but a component part, cannot. Apply this doctrine to the 
 case before us. How can Congress by any mode of legislation admit this 
 country into the Union untO it is acquired? And how can this acquisition 
 be made except through the treaty -making power? Could the gentleman 
 rise in his place and move for leave to bring in a bill for the purchase 
 of Louisiana and its admission into the Union, I take it that no trans- 
 action of this or any kind with, a foreign Power can take place except 
 through the Executive Department, and that in the form of a treaty, 
 agreement, or convention. When the acquisition is made, Congress can 
 then make such disposition of it as may be expedient.is 
 
 New England scruples were not yet overcome and Thacher 
 of Massachusetts denied, as Tracy had done, the right to admit 
 a new member into the partnership of states without the consent 
 of all the partners: most assuredly, the President and Senate 
 had no such power.^° 
 
 Smilie of Pennsylvania considered the right of annexing 
 territory to be incidental to all Governments. In the United 
 States this right must reside in the General Government, because 
 the states were expressly forbidden to form treaties or make war. 
 Taking up the matter of the third article, Smilie said that if the 
 principles of the Constitution forbade the admission of the 
 
 •i^^ Annals of Congress, 8 Cong., 1 Sess. (1803-1804), 60-63. Just how 
 Breckinridge would have stood on the action taken by Congress in relation 
 to Texas is an interesting topic for conjecture. 
 
 i6/6i<Z., 454-455. 
 
status of the Acquired Territory 71 
 
 inhabitants of Louisiana into the Union, there was no obligation 
 to admit them. In this case the remedy would be an amendment 
 of the Constitution authorizing the admission. If the people 
 of the United States did not choose to pass such an amendment, 
 the inhabitants of the territory could remain in a colonial 
 state.^^ 
 
 Roger Griswold interpreted the third article to mean either 
 that the inhabitants of the ceded territory were to be incorpo- 
 rated into the Union, by the treaty itself, or that the faith of 
 the nation was pledged that this would be done within a reason- 
 able time. He denied the right of the President and Senate 
 to add new members to the Union by treaty, and, like other 
 opponents, he declared that the consent of all the parties to 
 the compact was necessary for the admission of a new partner. 
 
 The Government of tMs country is formed by a union of States, and 
 the people have declared, that the Constitution was established 'to form a 
 more perfect union of the United States.' The United States here cannot 
 be mistaken. They were the States then La existence, and such other new 
 States as should be formed, within the limits of the Union, conformably 
 to the provisions of the Constitution.is 
 
 The bringing in of a foreign nation, continued Griswold, would 
 destroy the * * perfect union of the States " : a treaty so stipulating 
 was void. 
 
 Taking up another line of attack, Griswold argued that a 
 promise to incorporate was the same in principle as incorpora- 
 tion. If^ o incor poration _of _ new— territory__could-4ake- place 
 wiihou±_an__amendnientJto_theXonstitution,_he_iienied--the-j'ight 
 of. the_treatyrmaking po wer_tO-Stipulate-ior- such_an amendment.^ 
 Stipulations which created an obligation were void. Admitting 
 that new territory and new subjects could undoubtedly be 
 obtained by conquest and by purchase, Griswold maintained that 
 
 17 Ibid., 457-i58. 
 
 18 Compare the argument in the Dred Scott Decision and in the Insular 
 Cases. 
 
72 Constitutional History of the Louisiaiui Purchase 
 
 they must remain in the condition of colonies, and be governed 
 as such. ''The objection to the third article is not that the 
 province of Louisiana could not have been purchased, but 
 neither this nor any other foreign nation, can be incorporated 
 into the Union by treaty or by law. ' '^^ 
 
 Griswold's interpretation, if followed, would have altered 
 greatly the history of the United States. The policy adopted 
 by the Government with regard to the steps by which the people 
 of the territories have been prepared for statehood was laid 
 down by Mitchill of New York in so clear a fashion that it seems 
 justifiable to follow him at some length. 
 
 According to Mitchill, the inhabitants of the ceded territory 
 were to have the choice of staying or leaving. If they chose to 
 remain they were to be maintained and protected in the enjoy- 
 ment of liberty, property and religion. They were to be trained 
 in a knowledge of American laws and institutions. And so: 
 
 They are thus to serve an apprenticeship to liberty; they are thus to be 
 taught the lessons of freedom; and by degrees they are to be raised to the 
 enjoyment and practice of independence. All this is to be done as soon 
 as possible; that is, as soon as the nature of the case "will permit; and 
 according to the principles of the Federal Constitution. . . . Secondly, after 
 they shall have a sufficient length of time in this probationary condition, 
 they shall, as soon as the principles of the Constitution permit, and con- 
 formably thereto, be declared citizens of the United States. Congress 
 "will judge the time, manner, and expediency of this. The act we are now 
 about to perform will not confer on them this elevated character. . . . By 
 degrees, however, they will pass on from the childhood of republicanism 
 through the improving period of youth, and arrive at the mature experience 
 of manhood. And then, they may be admitted to the full privileges which 
 their merit and station will entitle them to. At that time a general law 
 of naturalization may be passed. For I do iwt venture to affirm tJiat, by 
 the mere act of cession, tlie inliahitants ■ of u ceded country, become, of 
 course, citizens of the country to which they are annexed. It would seem 
 not to he tlxe case, unless specially -provided for.^o 
 
 19 Annals of Congress, 8 Cong., 1 Sess. (1803-1804), 460-463. 
 
 20 Italics mine. 
 
Status of the Acquired Territory 73 
 
 Mitchill cited the treaty of 1794 with Great Britain as a 
 precedent that, without an act of Congress, aliens could be con- 
 verted into citizens by the provisions of a treaty duly ratified by 
 the President and Senate. By the second article of that treaty 
 it was stipulated that all British subjects continuing within the 
 evacuated posts and precincts longer than a year, should be con- 
 sidered to have abandoned allegiance to the British Crown, and 
 to have elected to become American citizens. By taking the oath 
 of allegiance, they became at once, by act of treaty, citizens of 
 the United States. In the Louisiana treaty the power of making 
 citizens had not been exercised by the President and Senate 
 but was left to Congress at some future day.^^ 
 
 John Randolph argued that a stipulation to incorporate the 
 ceded territory did not imply that the inhabitants must ever 
 be admitted to the unqualified enjoyment of the privileges of 
 citizenship. It did not mean that they must be brought into thcQ 
 Union on an equal footing with the people of the original states, ' 
 or with those created under the Constitution. It merely ex- 
 tended to them the rights and immunities of citizens, 
 
 being those rights and immunities of jury-trial, liberty of conscience, etc., 
 which every citizen may challenge, whether he be a citizen of an individual 
 State, or of a territory subordinate to and dependent on those States in 
 their corporate capacity. In the meantime they are to be protected in the 
 enjoyment of their existing rights. There is no stipulation, however, that 
 they shall ever be formed into one or more States.2z 
 
 The validity of Randolph's argument has divided political 
 thinkers of the United States to the present day. One group, 
 of whom Randolph is an early exponent, holds that although 
 the Constitution grants to Congress the power of legislating for 
 the territories, yet legislation by Congress is not necessary for 
 the extension to the inhabitants of the territories of certain civil 
 
 21 Arnmls of Congress, 8 Cong., 1 Sess. (1803-1804), 480-481. 
 
 22 Ibid., 487. 
 
74 Canst itutioiial History of the Louisiana Purchase 
 
 rights, such as those enumerated by Randolph. Such rights, it 
 is claimed, are extended to the territories by the Constitution, 
 ex proprio vigore. 
 
 The opposing school maintains that Congressional legislation 
 is necessar^'^ in all cases, no exceptions whatever being made. 
 
 Just what action was taken with regard to the inhabitants of 
 Louisiana will be narrated later. 
 
 (3) Commercial Privileges Under the Treaty 
 
 Another question which aroused the keenest controversy at 
 the time and which left its legacy of constitutional difficulties 
 for many years afterwards was that of an alleged preference 
 given by article seven of the treaty to ports of the newly acquired 
 territorj'- over the other ports of the United States. Article 
 seven provided ''that the French ships coming directly from 
 France or any of her colonies, loaded with the produce and 
 manufactures of France or her said colonies," and the ships of 
 Spain in similar fashion, 
 
 should be admitted during the space of twelve years in the port of New 
 Orleans, and in all other legal ports of entry within the ceded territory, in 
 the same manner as the ships of the United States coming directly from 
 France or Spain, or any of their colonies, without being subject to any 
 other or greater duty on merchandize, or other or greater tonnage than that 
 paid by the citizens of the United States. 
 
 During this perid no other nation was to have the same privi- 
 leges in the ports mentioned. This provision pertained to 
 importations into Louisiana and was not to affect regulations 
 of the United States concerning the exportation of the produce 
 and merchandise of the United States. Article eight was really 
 a supplement of the above, stipulating that, "In future and 
 forever after the expiration of the twelve years, the ships of 
 France shall be treated upon the footing of the most favored 
 nations in the ports above mentioned." 
 
Commercial Privileges 75 
 
 Aside from the grant of commercial privileges to Prance and 
 Spain, which New England ship owners opposed, did article 
 seven of the treaty violate the provision in the Constitution 
 that, **No preference shall be given bjr any Regulation of 
 Commerce or Revenue to the Port of one State over those of 
 another "?23 Opponents of the treaty held that it did, while 
 those who favored the treaty declared that this provision of the 
 Constitution was for states only and that Congress might legis- 
 late as it chose for the territories. Senator Tracy of Connecticut 
 said that a commercial preference to the ports of the ceded terri- 
 tory over the other ports of the United States was hereby granted 
 because a duty of forty-four cents on tonnage was paid by all 
 foreign ships or vessels in all the ports of the United States. 
 He conceded, however, that if Louisiana were not admitted into 
 the Union and if no promise to admit her existed, then his argu- 
 ment did not apply.2* 
 
 The difference between state and territory is here recognized, 
 a distinction which formed the basis of the controversy. 
 
 John Quincy Adams claimed that the seventh article contained 
 engagements which he thought would necessitate an amendment 
 or an addition to the Constitution.^^ 
 
 In the House of Representatives the seventh article of the 
 treaty caused much more contention than it had in the Senate. 
 Gaylord Griswold of New York maintained that a violation of 
 the ninth section of article one of the Constitution would result 
 if the newly ceded territory should ever become incorporated 
 with the United States, because there would then be ports of 
 entry in the United States into which French and Spanish ships 
 might enter on terms different from those on which they could 
 enter other ports of the United States.^^ The same view was 
 
 23 Article I, section 9, clause 6. 
 
 2i Annals of Congress, 8 Cong., 1 Sess. (1803-1804), 57. 
 
 25 Ibid., 67. 
 
 26 Ibid., 434. 
 
76 Constitiiticynal History of the Louisiatia Purchase 
 
 held by Joseph Lewis of Virginia.^^ Randolph introduced a 
 novel interpretation in his denial of the unconstitutionality of 
 the seventh article on the ground that the privilege given French 
 and Spanish vessels was a part of the price of the territory.^* 
 Just how this satisfied the constitutional requirements of the case 
 did not appear clear to many and Randolph's arguments were 
 questioned. Thacher of Massachusetts, for instance, asked how 
 the preference could be considered a part of the purchase price 
 when it applied to Spain as well as France.^^ 
 
 To the alleged unconstitutionality of the article in question 
 on the ground that it violated the ninth section of the first article 
 of the Constitution, Griffin of. Virginia added another objec- 
 tion. He deemed the seventh article of the treaty a commercial 
 regulation. Therefore, since to Congress had been given, by the 
 eighth section of article one of the Constitution, power to regu- 
 late commerce with foreign nations, the treaty stipulation made 
 by the President and Senate was a contravention of this consti- 
 tutional investiture of Congress. The President and Senate, 
 in their executive .capacity, had legislated, and by so doing, had 
 infringed upon the rights of the House.^° 
 
 Elliott of Vermont in defending the seventh article reiterated 
 the statement of others that the provision of the Constitution 
 applied only to states and not to the territorial acquisitions. 
 Under the treaty, a complete discretion was left to the United 
 States as to the time and manner of admission of the inhabitants 
 of the ceded territorj^ into the Union; and he had no idea that 
 it would be necessary to admit them within the twelve years 
 during which the commercial privileges were enjoyed by France 
 and Spain. There could, therefore, be no possible violation of 
 the Constitution.^^ 
 
 ^-'Annals of Congress, 8 Cong., 1 Sess. (1803-1804), 440-441. 
 2Slbid., 437. 
 2sihid., 455. 
 30 Ibid., 442. 
 SI Ibid., 450. 
 
Comniercicd Privileges 77 
 
 Exactly what Elliott did not anticipate came to pass, for the 
 lower part of the territory entered the Union as the state of 
 Louisiana before the twelve-year period had elapsed.^^ 
 
 Crowninshield of Massachusetts combined the arguments of 
 the defenders of the treaty by stating that it was not unconsti- 
 tutional to receive the ships of France and Spain in the ports 
 of the new territory upon any terms whatever because the stipu- 
 lation was a mere condition of the purchase, a commercial regu- 
 lation to be agreed to or disagreed to by the House. Since the 
 privilege was extended only to ports in the ceded territory no 
 injury was done to the rights of ports in the Atlantic states.^^ 
 
 Crowninshield 's last statement did not pass unchallenged. 
 Just as it was fear of losing political power which drove certain 
 of the New Englanders to oppose the third article of the treaty, 
 so it was sectional and economic interests which dictated their 
 stand on the seventh. Roger Griswold presented the case clearly 
 and frankly. To admit the ships of France and Spain into the 
 port of New Orleans, on the same terms with American ships, 
 would result in the development of French and Spanish ship- 
 ping and the ruin of the trade of the Atlantic ports. "How 
 gentlemen," he concluded, "under these circumstances can con- 
 sider the interests of the Eastern States uninjured, is to me 
 inexplicable. ' '^* 
 
 Once more was the distinction between state and territory'", 
 and the powers of the Government over the latter, set forth by 
 Nicholson, when he said that Louisiana 
 
 is a territory purchased by the United States in their confederate capacity ,^j 
 and may be disposed of by them at pleasure. It is in the nature of a colony 1 
 whose commerce Tnay he regulated witlwut any reference to the Constitu- j 
 Hon. Had it been the Island of Cuba which was ceded to us, under a • 
 / 
 
 32 Difficulties arising as a result of its admission are discussed in the 
 latter part of this chapter. 
 
 zz Annals of Congress, 8 Cong., 1 Sess. (1803-1804), 459. 
 
 34j6«i., 464-465. 
 
78 Constitutional History of the Louisiaim Purcliase 
 
 similar condition of admitting French and Spanish vessels for a limited 
 time into the Havannah, could it possibly have been contended that this 
 would be giving a preference to the ports of one State over those of another, 
 or that the uniformity of duties, imports and excises throughout the United 
 States Avould have been destroyed ?35 And because Louisiana lies adjacent 
 to our territory, is it to be viewed in a different light ?36 
 
 Territories, then, according to Nicholson, were bej^ond the 
 pale of the Constitution. Not satisfied with this sweeping inter- 
 pretation, defenders of the treaty found still other grounds of 
 justification of the contested provisions. Rodney of Delaware 
 even contended that if the territory of the United States bene- 
 fited because of particular territorial regulations, the territory 
 being the common property of the United States, every state 
 in the Union reaped the benefit.^^ 
 
 It is very doubtful if Rodnej'-'s arguments carried any weight 
 with the New England group, who felt not only their political 
 power but also their shipping interests to be endangered. A 
 common benefit to be derived by the states under the treaty was 
 beyond their ken. 
 
 Mitchill, like Nicholson, considered the treaty-making power 
 "unfettered by constitutional impediments and like that great 
 charter of freedom itself, originates from its own source, 
 supreme laws of the land." A treaty, therefore, according to 
 Mitchill, could hardly be conceived as unconstitutional unless 
 it outraged all common principles, rights and feelings. Thus 
 interpreted, no charges of unconstitutionality could be brought 
 against the seventh article of the treaty.^^ 
 
 35 Nicholson was here approaching one of the questions involved in the 
 Insular Cases. His speech is there quoted, in part, in Iiisul^r Cases, 316. 
 
 S6 Annals of Congress, 8 Cong., 1 Sess. (1803-1804), 471. Italics mine. 
 
 ^"^ Ibid., 475. Cf. the argument in Insular Cases, 203: "All legislation 
 for Territories being enacted by the Congress chosen by the States, and the 
 Territory being the property of the United States, all the States are equally 
 advantaged by whatever is done toward the regulation of such Territories." 
 
 ssibid., 481-482. 
 
Commercial Privileges 79 
 
 So radical a view found few supporters. It was a difficult 
 matter to convince even the most ardent defenders of the treaty 
 that the treaty-making power was on a plane with the very 
 instrument which had brought it into existence. 
 
 John Randolph called attention to the fact that by the third 
 article of the Treaty of London,^^ the United States was pledged 
 not to impose on imports in British vessels from British terri- 
 tories in America, adjacent to the United States, any higher 
 duties than would be paid upon such imports, if brought into 
 the Atlantic ports of the United States in American vessels. 
 Here was no distinction between territory and state, the ports 
 being those of New York. Randolph said he did not defend the 
 constitutionality of this provision; as a matter of fact, he had 
 not voted to carry the treaty into effect. He desired to know 
 how such men as Griswold of Connecticut, who had advocated 
 the treaty, got over the constitutional difficulty which was urged 
 against the Louisiana treaty. How could a preference be given 
 to particular ports of certain states which could not constitu- 
 tionally be given to the ports of New Orleans, not within a 
 state ?*" 
 
 Years afterwards, James Madison described the nature of 
 
 the provision concerning commercial privileges made by the 
 
 Louisiana Treaty. Writing to Robert Walsh, November 27, 
 
 1819, he said: 
 
 \ 
 In the case of Louisiana, there is a circumstance which may deserve \ 
 
 notice. In the Treaty ceding it, a privilege was retained by the ceding 
 
 party, which distinguishes between its ports & others of the U. S. for a 
 
 special purpose & a short period. This privilege, however, was tlie result, 
 
 not of an ordinary legislative power in Congress; nor was it the result of 
 
 an arrangement between Congress 4" ^^^ people of Louisiana. It rests on 
 
 the ground tlmt the same power, even in the nation, over that territory, 
 
 as over the original territory of the U. S., never existed; the privilege 
 
 39 Jay 's Treaty. 
 
 io Annals of Congress, 8 Cong., 1 Sess. (1803-1804), 483-484. 
 
 J 
 
80 Constitutwiial History of the Louisiaim Purchase 
 
 alluded to being in tlie deed of cession carved Jjy the foreign owner out of 
 the title conveyed to the purchaser. A sort of necessity, therefore, was 
 thought to belong to so peculiar and extraordinary a ease. Notwithstand- 
 ing this plea, it is presumable that if the privilege had materially affected 
 the rights of other ports, or had been of a permanent or durable character, 
 the occurrence would not have been so little regarded. Congress would 
 not be allowed to effect, through the medium of a. Treaty, obnoxious dis- 
 crimination between new and old States more than among the latter,*i 
 
 Because of Madison's knowledge of the meaning of the Con- 
 stitution, it is interesting to hear from him that the commercial 
 privileges granted by the treaty were "in the deed of cession, 
 carved by the foreign owner out of the title conveyed to the 
 purchaser," and that the United States never possessed entire 
 power over that territory as over the original territory of the 
 United States. 
 
 As already shown, defenders of the constitutionality of the 
 seventh article of the treaty based their arguments on the dis- 
 tinction between territory and state. During the debate on the 
 seventh article, Elliott had declared that he had no idea that it 
 would be necessary to admit the inhabitants of Louisiana to 
 statehood within the twelve years during which the commercial 
 privileges were to be enjoyed by France and Spain. The ques- 
 tion is at once suggested : if Louisiana should be admitted before 
 this twelve-year period had elapsed could the provisions of the 
 treaty be carried out in the face of the apparent violation of 
 the constitutional prohibition against granting preferences to 
 ports of one state over those of another? A topic of conjecture 
 became a definite fact, for Louisiana was admitted into the 
 Union as a state, April 30, 1812, four years before the twelve- 
 year period during which preferences were to be granted to the 
 ships of France and Spain. Curiously enough, the New Eng- 
 landers did not raise the point during the debates on the passage 
 
 41 Madison, Letters and Other Writings (Congressional ed.), Ill, 153- 
 154; Writings (Hunt, ed.), IX, 7-8. Italics mine. 
 
Commercial Privileges 81 
 
 of the bill admitting Louisiana into the Union.*^ Attention was 
 called to it through the complaints made by the French minister, 
 Hyde de Neuville, to John Quincy Adams, Monroe's secretary 
 of state.*^ 
 
 Soon after the war of 1812, the United States adopted a plan 
 of reciprocity. Discriminating tonnage duties on foreign vessels 
 were to be repealed in favor of any nation whenever the Presi- 
 dent should be satisfied that similar discriminating duties of 
 such foreign nation, so far as they should be operative against 
 the United States, had been abolished.^* England took advan- 
 tage of this offer,*^ and was followed by the Netherlands, Sweden, 
 Prussia and certain of the Hanseatic cities.*^ France, however, 
 declined, and soon began to complain of discrimination against 
 her vessels. A formal complaint was lodged with Secretary of 
 State John Quincy Adams in 1817 by Baron de Neuville. This, 
 of course, was several years after the admission of Louisiana as 
 a state, and also after the expiration of the period during which 
 France and Spain were to enjoy commercial privileges in the 
 ports of Louisiana. De Neuville protested against the grant of 
 privileges to Great Britain in the ports of the United States, 
 and demanded similar privileges for France in the ports of 
 Louisiana, in accordance with article eight of the treaty of 1803 
 which stipulated that "in future and forever after the expira- 
 tion of the twelve years, the ships of France shall be treated upon 
 the equal footing of the most favored nations in the ports above 
 mentioned. ' '*^ 
 
 42 Adams to de Neuville, June 15, 1821, in American State Papers, 
 Foreign Belations, V, 182. 
 
 43 See Max Farrand, ' * The Commercial Privileges of the Treaty of 
 1803," in American Historical Eeview, VII, 494-499. This article was 
 closely followed. All of the documents bearing on the matter have been 
 consulted, however, and citations have been made directly to them. 
 
 44 U. S. Statutes at Large, March 3, 1815, ch. 77. 
 
 45 American State Papers, Foreign Relations, IV, 7-8. 
 
 46 76i(i., 738. 
 
 47 De Neuville to Adams, December 15, 1817, il)id., V, 152. 
 
82 Constitutional History of the Louisiana Purchase 
 
 Adams replied that French vessels were so treated; that 
 English vessels were granted privileges because of similar ones 
 made to the United States; and that France could obtain the 
 privileges held by vessels of Great Britain if she would make 
 the same provisions for American ships in return. This would 
 hold true for all the ports of the United States as well as those 
 of Louisiana. Adams said it would be a violation of the Con- 
 stitution to admit French vessels into the ports of Louisiana 
 upon payment of the same duties as vessels of the United States, 
 because the Constitution provides *'that no preference shall be 
 given to the ports of one State over those of another."*® De 
 Neiiville pointed out that France had enjoyed such privileges 
 in 1815, despite the apparent constitutional difficulties and 
 asked why they could not be enjoyed again.*® 
 
 No answer was made at the time but nearly three years later 
 de Neuville pressed for one^° and Adams made his replj^ He 
 declared it to be a question for the Senate to decide whether the 
 commercial privileges of the Louisiana treaty were compatible 
 with the Constitution of the United States or not. There was 
 no question, however, about the claim put forward by France; 
 it was directly contrary to the provision of the Constitution that 
 no preference could be given to the ports of one state over those 
 of another. "What had happened in the case of Louisiana did 
 not alter the interpretation of the Constitution. Had any of 
 the other states so desired, the act of admission of Louisiana 
 might have been delayed until the twelve-year period had 
 elapsed. "Waiving this right and allowing the admission "can 
 be considered in no other light than a friendly grant in advance 
 of that which in the lapse of three short years might have been 
 
 4s Adams to de Neuville, December 23, 1817, ibid., 152-153. 
 
 49 De Neurille to Adams, June 16, 1818, ibid., 154-155. 
 
 50 De Neuville to Adams, February 23, 1821, ibid., 162-163. 
 
Convnvercial Privileges 83 
 
 claimed as an undeniable right. "^^ France had received no 
 wrong, and therefore had no cause for complaint.^^ Soon after 
 this the question was dropped, despite the efforts of de Neuville 
 to continue negotiations.^' 
 
 51 Adams to de NeuviUe, March 29, 1821, ibid., 163-165. 
 
 52 Adams to de NeuviUe, June 15, 1821, Hid., 180-184, 
 
 53 De NeuviUe to Adams, June 30, 1821, ibid., 186-192; de Neuville to 
 Adams, August 15, 1821, ibid., 193-194; de Neuville to Adams, October 15, 
 1821, ibid., 194^195. 
 
CHAPTER VI 
 THE GOVERNMENT OF THE ACQUIRED TERRITORY 
 
 Louisiana having been acquired by the United States, it was 
 necessary that measures be taken for the occupation and govern- 
 ment of that country. The attention of Congress was called to 
 this fact by President Jefferson in the special message of October 
 21, 1803,^ Congress took immediate action. On October 25, 
 the following resolutions were delivered at the table of the clerk 
 of the House, and read : 
 
 1. Besolved, That provision ought to be made for carrying into effect 
 the treaty and conventions concluded at Paris on the thirtieth of April, 
 1803, between the United States of America and the French Eepublie. 
 
 2. Besolved, That so much of the Message of the President, of the 
 twenty-first instant, as relates to the establishment of a Provisional Gov- 
 ernment over the Territory acquired by the United States, in virtue of the 
 treaty and conventions lately negotiated with the French Eepublie be 
 referred to a select committee; and that they report by bill, or otherwise. 
 
 3. Besolved, That so much of the aforesaid conventions as relates to 
 the payment, by the United States, of sixty millions of francs to- the 
 French Republic, and to the payment, by the United States, of debts due 
 by France to citizens of the United States, be referred to the Committee 
 of Ways and Means.2 
 
 The first resolution was agreed upon in the House by a vote 
 of ninety yeas to twentj^-five nays.^ The second was again 
 read and amended, adding "occupation and" before "establish- 
 ment," and was referred to a committee consisting of John 
 Randolph of Virginia, Gay lord Griswold of New York, John 
 Rhea of Tennessee, "William Hoge of Pennsylvania, and George 
 Bedinger of Kentucky. The third resolution was reported from 
 the Committee of the Whole, read and agreed to.* 
 
 1 Richardson, Messages and Papers of t)w Presidents, I, 362-363. 
 
 2 Annals of Congress, 8 Cong., 1 Sess. (1803-1804), 488. 
 sihid. 
 
 * Ihid., 489. 
 
Government of the Acquired Territory 85 
 
 Two days later the House resolved itself into a Committee 
 of the Whole on a bill from the Senate enabling the President 
 to take possession of the ceded territory and empowering him 
 to use the army and navy if necessary, and also so much of the 
 sum appropriated by the acts as might be necessary.'* Section 
 two of the Senate bill provided: 
 
 That, until Congress shall have made provision for the temporary gov- 
 ernment of the said Territories, all the military, civil, and judicial powers, 
 exercised by the officers of the existing government of the same, shall be 
 vested in such person and persons, and shall be exercised in such manner, 
 as the President of the United States shall directs 
 
 It was certain that this section of the bill would not be 
 allowed to pass without opposition on constitutional grounds. 
 Party lines were not now held so strictly as when the provisions 
 of the treaty were being discussed. For instance, the real 
 objection to the passage of the section was voiced by John Ran- 
 dolph. While recognizing the necessity of vesting power in the 
 Executive which would enable him to take possession of Louis- 
 iana, Randolph declared himself opposed to so extensive a grant 
 as that contained in the bill. In order to have a check on the 
 Executive, he moved an amendment substituting in place of the 
 words, "Congress shall have made provision for the temporary 
 government of the said territories," the words, **the expiration 
 of the present session of Congress, unless provision for the tem- 
 porary government of the said territories be sooner made by 
 Congress. ' ' Thus the power of the President would cease at any 
 time during the session provided Congress took action; at most, 
 his power would continue only until the expiration of the session. 
 Congress would be forced to take early measures leading to the 
 reduction of the great power granted to the Executive.'^ 
 
 5 Ibid., 497. 
 
 6 Ibid., 498. 
 ribid. 
 
86 Constitutional History of the Louisiana Purchase 
 
 Eandolph was willing to support his party to a certain extent 
 but he still kept a watchful eye on what to him was a source 
 of grave danger — too extensive a power in the Executive. 
 
 Other members of the House were even more strongly opposed 
 to the section of the bill than Randolph. Among these was 
 Roger Griswold of Connecticut, who moved to strike out the 
 whole of the section on the ground that ignorance of what the 
 powers exercised by officials of the territory were might lead 
 to trouble if their continuance was authorized. It was even 
 probable, he contended, that some of them were inconsistent 
 with the Constitution of the United States.^ Furthermore, the 
 transfer to the President of all the civil, military and judicial 
 powers being exercised in the territory would be making him 
 legislator, judge and executive, something which could not con- 
 stitutionally be done.^ 
 
 Griswold 's motion was seconded by Elliott, who held that the 
 grant of such extensive powers to the President, even over a 
 territory, was unconstitutional. Should it be necessary to enact 
 such a provision as that planned for in the section it was Con- 
 gress who must take up the task of legislation.^^ 
 
 Nicholson defended the constitutionality of the bill. The 
 President, according to his interpretation, was merely'- invested 
 with the appointment of persons to exercise the civil, military 
 and judicial powers of the existing government, and was not 
 invested with the exercise of them himself. To Nicholson, this 
 was not different from the powers exercised by the President in 
 the appointment of officers under the Ordinance of 1787.^^ 
 
 Griswold answered that since the powers were to be exercised 
 as the President should direct they were virtually exercised by 
 him; and if Congress could not transfer to him legislative and 
 
 s Annals of Congress, 8 Cong., 1 Sess. (1803-1804), 498-499. 
 sihid., 500-501. 
 iolbid., 499, 
 11 Hid., 501. 
 
Goverwntent of the Acquired Territory 87 
 
 judicial power in any other territory, they could not in Louis- 
 iana. Furthermore, the section of the bill was imconstitutional 
 because it gave to the President full power to appoint all officers 
 in the province, without the sanction of the Senate.*^ 
 
 Mitchill interpreted the Constitution differently. Congress, 
 having the right to dispose of the territory and property of 
 the United States, could empower the President to put others 
 in a position to act. Instead of a claim of prerogative on the 
 part of the Executive it was a constitutional deposit of powers 
 in him by Congress.^^ On the other hand, Dana of Connecticut 
 regarded the power granted to the President in the bill as 
 creating "a complete despotism."^* 
 
 In the light of future interpretation, the speech of Varnum 
 of Massachusetts is fraught with significance: 
 
 We are told that "we are about to exercise a power over the ceded 
 territory not authorized by the Constitution, He would ask if the Consti- 
 tution were to take effect as soon as the United States take possession of 
 the territory? The treaty provides that 'the inhabitants of the ceded 
 territory shall be incorporated in the union of the United States, and 
 admitted as soon as possible.' How incorporated? By a legislative actf 
 No, 'according to the principles of the Federal Constitution, to the enjoy- 
 ment of all the rights, advantages, and immunities of citizens of the United 
 States; and in the meantime they shall be maintained and protected in the 
 full enjoyment of their liberty, property, and the religion which they pro- 
 fess.' In what meantime? 
 
 There is a time when the country is acquired, and a time when it will 
 be admitted into the Union. Between these periods, in the meantime, the 
 people are to enjoy their liberty, and the religion which they profess. I" 
 can devise no way of their enjoying these rights, until admitted into the 
 Union, but by their continuing under the government of the law of Spain. 
 The Senate have made provision for carrying into effect this part of the 
 treaty, and it cannot be carried into effect in any other way.is 
 
 12 Ibid., 510. Italics mine. 
 
 i3/&td., 502-504. 
 
 i^Ihid., 504r-506. 
 
 15 Ibid., 505-506. Italics mine. 
 
88 Constitutional History of the Louisiana Purchase 
 
 Another member from Massachusetts, Eustis, also supported 
 the bill. The Government, according to him, had a constitutional 
 right to acquire territory, and to take possession of it when 
 acquired, the latter being not only a right, but a duty of the 
 Government. Declaring this to be a new case, Eustis based the 
 extent of power vested in the Executive on necessity. He was 
 willing to give the President authority even to institute such 
 powers as might be necessary for the well-being of the country 
 until Congress should make the requisite laws. He failed to see 
 any constitutional obstacles to the carrying out of the provisions 
 of the bill.^« 
 
 Elliott of Vermont^' and Jackson of Virginia^^ aligned them- 
 selves with those who were against the second section of the bill 
 because of its alleged infringement of the Constitution. Rodney 
 of Delaware did not consider that the bill ''infringed the Con- 
 stitution in the remotest degree." The Constitution, by the 
 third section of article four, as he understood it, vested Congress 
 with full and complete power to exercise a sound discretion on 
 the subject of the government of territories. ''Congress," he 
 said, "have a power in the Territories, which they cannot exer- 
 cise in States, and the limitations of power, found in the Consti- 
 tution, are applicable to States and not to Territories."^^ 
 
 The question on striking out the second section was lost, only 
 thirty votes being cast in the affirmative. Randolph's motion 
 to amend the section b}^ the addition of the words, "for the 
 maintaining and protecting the inhabitants of Louisiana in the 
 full enjoyment of their liberty, property, and religion," was 
 agreed to. without a division,^" 
 
 ^G Annals of Congress^ 8 Cong., 1 Sess. (1803-1804), 506. 
 17 Ibid., 508. 
 is/btd., 511. 
 
 19 Ibid., 512-514. 
 
 20 Ibid., 514. 
 
Government of the Acquired Territory 89 
 
 The bill enabling the President to take possession of the 
 territories ceded by France and for the temporary government 
 thereof was passed by the House, October 28, 1803, by a vote 
 of eighty-nine to twenty-three,^^ and was approved by the Presi- 
 dent October 31.^^ The bill did not escape criticism. Senator 
 Plumer took exception to the grant to the President of the 
 appointment of all officers, superior and inferior, whereas the 
 Constitution provided that Congress might vest the appointment 
 of inferior officers in other places.-^ 
 
 Plumer 's particular criticism in this instance can in itself 
 be attacked because the very clause of the Constitution to which 
 he referred allows Congress to vest the appointment of inferior 
 officers in the President alone. Speaking broadly, that is what 
 was done. There is more ground for Plumer 's statement that, 
 "Had such a bill been passed bj^ federalists, the Democrats 
 would have denounced it as moimrchial but when enacted by 
 the exclusive friends of the people, it is pure republicanism."^^ 
 
 Somewhat similar is the complaint of Manasseh Cutler : 
 
 Look at the power given to the President by the provisional government 
 of Louisiana. By one sweeping clause, he is made as despotic as the Grand 
 Turk. Every officer is appointed by him, holds his commission during his 
 pleasure, and is amenable only to him. He is the Executive, the Legislature, 
 and the Judicature. What clamor a few years ago, lest the President should 
 be vested with too much power, the department the most dangerous of all 
 to be trusted.25 
 
 Supplementing what had already been done, an act was 
 passed giving effect to the laws of the United States within the 
 territories ceded by the treaty.^^ 
 
 zilhid., 546. 
 
 22 Laws of U. States, III, 562. 
 
 23 Plumer, "Memorandum, 1803-1804," 64-65, October 26, 1803. 
 
 24 Ibid. 
 
 25 Cutler and Cutler, Life, Journals and Correspondence of Rev^ Manas- 
 seh Cutler, II, 148. 
 
 2« Act approved February 24, 1804, Annals of Congress, 8 Cong., 1 
 Sess. (1803-1804), 1253-1258. 
 
90 Const iUitioiial History of the Louisimia Purchase 
 
 Jefferson had taken it for granted that the treaty would be 
 ratified and provision made for the transfer of the territory to 
 the United States. As early as July 18, 1803, only four days 
 after the arrival of the treaty from France, he wrote to Governor 
 Claiborne of Mississippi Territory that the government, public 
 property and archives of Louisiana were to be delivered up 
 immediately after the exchange of ratifications, which would 
 take place between the seventeenth and thirtieth of October. 
 Claiborne was to go there for the United States "to transact it, 
 and to hold the place some little time, until Congress shall direct 
 what is to be done more particularly. ' '^' Claiborne replied from 
 Natchez, August 12, that he would hold himself in readiness to 
 embark for New Orleans immediately on receiving orders. He 
 considered it a very high honor to be appointed to receive the 
 ceded territory. ^^ 
 
 Jefferson already had a good man in mind to be governor 
 of Louisiana, so he informed Madison July 31. ''Sumpter" he 
 regarded ' ' as perfect in all points as we can expect, sound judg- 
 ment, standing in society, knowledge of the world, wealth, liber- 
 ality, familiarity with the French language, & having a French 
 wife." Jefferson professed that he did not know a more proper 
 character for the place.^^ 
 
 Nor did Jefferson 's friends await the transfer of the territory 
 before making suggestions for the government of Louisiana. 
 Among them was Thomas Paine who supposed that a provisional 
 government formed by Congress for three, five, or seven years 
 would be the best mode of beginning. In the meantime the 
 
 -"i Jefferson Papers, "Letters from Jefferson, 1st Series," IX, (113). 
 
 2s Jefferson Papers, ' ' Letters received at Washington, 2nd Series, ' ' 
 XVII, (42). 
 
 ^^Madisan Papers, XXV, "Writings to Madison," Dec. 7, 1802-Nov. 
 2, 1803. This ideal governor was in all probability Thomas Sumter, Kevo- 
 lutionary War hero, and at the date of Jefferson's letter, United States 
 senator from South Carolina. For some reason or other the appointment 
 was not made. 
 
Governiiient of the Acquired Territory 91 
 
 people might be initiated into the practice of electing their 
 municipal government, and thus prepare for the election of a 
 state government- Characteristic of Paine is the additional note 
 that it would be a good plan to let the people elect their church 
 ministers, thus freeing them from papal control.^" 
 
 Before going to New Orleans Claiborne made inquiries con- 
 cerning the character of the inhabitants of Louisiana, the results 
 of which he conveyed by letter to Jefferson. On September 29 
 he wrote that a previous statement of his that a majority of the 
 citizens of Louisiana could read and write was based on incorrect 
 information; on the contrary, they were "involved in great 
 ignorance." The form of government which might be pre- 
 scribed for Louisiana, Claiborne reported, was exciting great 
 anxiety. The existing government of that territory he described 
 as a despotism, partly civil, partly military, and in some degree 
 ecclesiastical. To regenerate a system based on principles so 
 abhorrent to those of the United States would be a difficult task. 
 Although he felt that the Louisianians could be trusted very far, 
 it was Claiborne 's opinion, ' ' that until a knowledge of the Amer- 
 ican Constitutions, Laws, Language and customs is more gen- 
 erally diffused, a State Government in Louisiana would not be 
 managed with discretion. "^^ 
 
 Claiborne 's opinion of the political fitness of the Louisianians 
 for self-government was to change many times during the next 
 few years, as will be shown. 
 
 Jefferson had been busily engaged gathering material from 
 many sources in order that Congress might be supplied with all 
 information that might be of assistance in the framing of a form 
 of government for Louisiana. The result was a state paper which 
 he submitted to that body, November 14, 1803, covering a wide 
 
 30 Jefferson Papers, ' ' Letters received at Paris and Philadelphia, ' ' 2d 
 Series, LXV, (193). 
 
 31 Jefferson Papers, '* Letters received at Washington," 2d Series, XVII, 
 (38). 
 
92 Constitutional History of the Louisiana Purchase 
 
 range of topics, such as boundaries, population, resources, exist- 
 ing system of government, exports and imports, and many 
 others. ^- 
 
 General James Wilkinson was associated with Governor 
 Claiborne as commissioner for the purpose of receiving Louis- 
 iana from the French officials. The two commissioners proceeded 
 to New Orleans where the transfer took place December 20, 1803, 
 Laussat representing the French Government.^^ Claiborne, who 
 was to act as governor of the territory, made an. address in which 
 the people were assured of fair treatment and protection under 
 the terms of the treaty of the cession.^* 
 
 Steps were taken by the new governor to supply the needs 
 of government, especially in New Orleans where the cabildo had 
 been abolished by the French prefect. The doing away with this 
 body Claiborne considered an act beneficial to the United States 
 because the cabildo ''was created on principles altogether incon- 
 gruous with those of our Government. "^^ 
 
 32 American State Papers, Miscellaneous, I, 344-356. 
 
 33 Claiborne to Madison,' December 20, 1803, in Claihome Papers, 
 *' Claiborne 's Correspondence relative to Louisiana, 1803-1804," I. For 
 a description by an eye Avitness, see Robin, Voyages dans I 'interieur de la 
 Louisiana, II, 137-140. More recent accounts are given by Grace King, 
 Kew Orleans, 160-163, and Gayarre, History of Louisiana, IV, 619-622. 
 A copy of the instrument of cession, signed by Claiborne, "Wilkinson, and 
 Laussat is in the Annals of Congress, 8 Cong., 2 Sess. (1804-1805), Appen- 
 dix, 1229-1231. 
 
 34: Annals of Congress, 8 Cong., -2 Sess. (1804-1805), Appendix, 1232- 
 1233. 
 
 35 Claiborne to Madison, December 27, 1803, in Claihome Papers, "Clai- 
 borne 's Correspondence relative to Louisiana, " I ; Eobertson, Louisiana 
 under the Rule of Spain, France, and the United States, II, 227. 
 
 The cabildo had been established in accordance Avith the proclamation 
 of November 21, 1769, issued by Don Alexander O'Reilly, Avho had been 
 commissioned governor and captain-general of the province of Louisiana 
 in April of the same year. The proclamation stipulated that the cabildo, 
 ■which was substituted for the superior council, should be "composed of six 
 perpetual regidors, two ordinary alcaldes, an attorney-general-syndic, and a 
 clerk; over which the governor would preside in person." The cabildo sat 
 every Friday but might be convened by the governor at any time. In the 
 absence of the governor one of the ordinary alcaldes presided. Martin, 
 History of Louisiana, 209-210. 
 
Government of the Acquired Territory 93 
 
 Claiborne was vested, temporarily, with all the powers pre- 
 viously held by the Governor-General and the Intendant of 
 Louisiana. The inhabitants of the territory had expected a 
 much more liberal form of government and were greatly dis- 
 appointed because they were granted no voice in it. Moreover, 
 the new governor was unacquainted with their language, and 
 mutual misunderstandings and suspicions were, as a result, cer- 
 tain to arise. 
 
 Then, too, there were a number of American residents in 
 New Orleans and the neighboring country who sought to gain 
 political influence through exploiting the grievances of the 
 Louisianians. Their knowledge of American theories of govern- 
 ment and of American institutions gave them an opportunity 
 of criticizing the territorial government and, on the whole, 
 making the governor's position an exceedingly unhappy one. 
 
 Claiborne's opinion of the people fluctuated back and forth, 
 now favorable, now unfavorable. Difficulties of government 
 caused him much embarrassment and he urged the early estab- 
 lishment of some permanent government for the territory. The 
 constitution to be given ought to be as republican as the people 
 could safely be intrusted with. Training and tradition had 
 rendered the people unprepared to take a very active part in 
 government, however. Trial by juiy would at first be an 
 embarrassment to the administration of justice.^^ The better 
 acquainted he became with the inhabitants the more convinced 
 he was of their unfitness for a representative government. He 
 considered it advisable that they remain for some years under 
 the immediate guardianship of Congress. For the present a 
 local and temporary government for Louisiana, upon principles 
 somewhat similar to the present territorial government of the 
 first grade ought to be established. In the same letter Claiborne 
 reported that the merchants of the city desired a law to be passed 
 
 36 Claiborne to Madison, January 2, 1804, in Robertson, Louisiana under 
 the Eule of Spain, France, and the United States, II, 232-234. 
 
94 Constitutimial History of the Louisiana Purchase 
 
 for the regulation of commerce. They were complaining of 
 great injury for want of registers for their vessels, and of being 
 yet subject to export duties and other commercial inconven- 
 iences.^'^ 
 
 A somewhat similar opinion was expressed to Jefferson a 
 few days later, to which Claiborne added that he did not share 
 the opinion of some that a military government could alone, for 
 the present, insure good order and harmony. Louisiana could 
 be governed without force. He *' could wish Louisiana a State 
 tomorrow but that would be impolitic. ' '^^ 
 
 One of the questions which early presented itself to Claiborne 
 was that of the importation of slaves. In a letter to Madison, 
 January 31, 1804, he reported the arrival a few days before of 
 a ship with fifty African negroes for sale. He was opposed to 
 the traffic, but, doubting his authority to prevent it, appealed 
 to Mr. Leonard, late Spanish eontador at New Orleans, for 
 information as to the status of the slave treide under Spain. 
 Upon learning that the importation of African slaves had been 
 permitted, Claiborne did not interfere.^' 
 
 It might here be noted that the prohibition by law of the 
 importation of slaves into the territory of Louisiana was urged 
 upon Congress in a memorial of the "American Convention for 
 promoting the abolition of slavery, and improving the condition 
 of the African race" to the House, January 23, 1804. The 
 memorial was referred to the committee on the government of 
 Louisiana.**' 
 
 37 Claiborne to Madison, January 10, 1804, in Claiborne Papers, "Clai- 
 borne's Correspondence relative to Louisiana," I. 
 
 3S Claiborne to Jefferson, January 16, 1804, in Jefferson Papers, "Let- 
 ters received at Washington, 2d Series," XIX, (19). 
 
 39 Claiborne Papers, ' ' Claiborne 's Correspondence relative to Louisiana, ' ' 
 I; Eobertson, Louisiana under tlie Rule of Spain, France and the United 
 States, II, 240; American State Papers, Miscellaneous, I, 390. 
 
 ^^ Annals of Congress, 8 Cong., 1 Sess. (1803-1804), 940. The memorial 
 itself is in the American State Papers, Miscellaneous, I, 386, no. 171. In 
 this connection see Mary S. Locke, Anti-Slavery in America, 147—148, 162— 
 163. 
 
Govermn^ent of the Acquired Territory 95 
 
 On February 6, 1804, Claiborne reported the inhabitants of 
 New Orleans as manifesting great solicitude for a form of gov- 
 ernment, and the merchant class, in particular, desiring com- 
 mercial regulations. A spirit of restlessness pervaded the terri- 
 tory. Claiborne felt that a majority of the inhabitants were well 
 disposed towards the United States but the attachment to France 
 was still strong.*^ A few days later he repeated his statement 
 that the people were anxious for some form of permanent gov- 
 ernment. The rapid increase in population, bringing into the 
 territory all sorts of adventurers, further complicated the sit- 
 uation.*^ 
 
 One of Claiborne's first measures as governor had been to 
 establish a Court of Pleas. This had been done by ordinance, 
 issued December 30, 1803. The ordinance provided for a court 
 to be composed of not less than seven justices appointed by the 
 governor, any three of whom might hold court. In civil matters 
 their jurisdiction was limited to cases not exceeding in value 
 three thousand dollars, from which there was an appeal to the 
 governor when the amount in litigation was over five hundred 
 dollars. Their criminal jurisdiction was to extend over all 
 criminal cases involving punishment not to exceed two hundred 
 dollars fine and sixty days imprisonment. Each of the justices 
 was to have jurisdiction over all debts under one hundred dol- 
 lars, with right of appeal to the Court of Pleas, the seven justices 
 sitting together in court.*^ 
 
 This Court of Pleas was not used by the people to any extent. 
 The people preferred the governor to the court so Claiborne 
 decided to set apart one day in every week for the hearing and 
 
 41 Claiborne to Madison, February 6, 1804, in Robertson, Louisiana 
 wider the Bule of Spain, France, and the United States, II, 248-249. 
 
 42 Claiborne to Madison, February 13, 1804, in ibid., II, 250-251. 
 
 43 Gayarre, History of Louisiana, IV, 3 ; Martin, History of Louisiana, 
 319. 
 
96 Constitutional History of the Louisia^iia Purchase 
 
 deciding of causes until Congress should provide some fixed 
 government to relieve him of what he considered a painful 
 duty.** 
 
 Among other matters Claiborne was somewhat puzzled as to 
 the status of the people under his charge with respect to their 
 relation to the United States. Citizens of Louisiana passing 
 hj water to the United States or to Europe requested passports 
 or letters of protection. Having had no instructions on this 
 subject, Claiborne acted with some reluctance. Considering the 
 request reasonable, however, he issued to such applicant an 
 instrument in writing, providing proof were given that he had 
 been before, and on December 20, 1803, the date of the transfer 
 of Louisiana to the United States, an inhabitant of Louisiana.*^ 
 
 There was a desire on the part of the people for a delegate 
 in Congress and Claiborne suggested that in the formation of a 
 government for Louisiana, Congress might make provision for 
 one, placing him on an equal footing as regards privileges with 
 the delegates from other territories.*® 
 
 Claiborne admitted being compelled to exercise more author- 
 ity than he had contemplated, and feared his decrees and 
 ordinances would present a novel appearance in Washington. 
 This species of legislation he entered into only when necessary.*^ 
 
 Such were some of the difficulties of the governor of Louis- 
 iana at the outset of his administration. How he fared later will 
 
 44 Claiborne to Madison, February 13, 1804, in Cl-aiborne Papers, "Clai- 
 borne 's Correspondence relative to Louisiana, " I ; Robertson, Louisiana 
 under the Rule of Spain, France, and the United States, II, 250. 
 
 45 Claiborne to Madison, February 20, 1804, in Claiborne Paperx, "Clai- 
 borne's Correspondence relative to Louisiana," I. For the history of the 
 passport in the United States, see Gaillard Hunt, The American Passport. 
 Claiborne's issuance of passports is not mentioned by Hunt. 
 
 46 Claiborne to Madison, March 1, 1804, in Robertson, Louisiana under 
 tJie Sule of Spain, France, and the United States, II, 254. Before the 
 date of this letter the Senate had already debated on and declined to grant 
 a delegate to Louisiana. See the report of the debate in the Senate, Chapter 
 VII, below. 
 
 47 Claiborne to Madison, March 2, 1804, in Claiborne Papers, "Clai- 
 borne's Correspondence relative to Louisiana," I. 
 
Goverrmient of the Acquired Territory 97 
 
 be discussed in due time. We must turn now to the activities 
 of the federal authorities at Washington. 
 
 Jefferson had, in the meantime, been making plans for the 
 government of the territory. An outline of what he considered 
 proper was submitted to Gallatin in a letter of November 9, 
 1803, in which he says : 
 
 The following articles belong to the legislature. 
 
 The administration of justice to be prompt. Perhaps the judges should 
 be obliged to hold their courts weekly, at least for some time to come. The 
 ships of resident owners to be naturalized, and in general the laws of the 
 U. S. respecting navigation, importation, exportation, &c; to be extended 
 to the ports of the ceded territory. ' 
 
 The hospital to be provided for. 
 
 Slaves not to be imported, except from siieh of the U. S. as prohibit 
 importation. 
 
 Without looking at the old territorial ordinance, I had imagined it best 
 to found a government for the territory or territories of lower Louisiana 
 on that basis. But on examining it, I find it will not do at all; that 
 it would tiirn all their laws topsy-turvy. Still I believe it best to appoint 
 a governor & three judges, -with legislative powers; only providing that the 
 judges shall form the laws, & the governor have a negative only, subject 
 further to the negative of a national legislature. The existing laws of the 
 country being now in force, the new legislature will introduce the trial by 
 jury in criminal cases, first; the habeas corpus, the freedom of the press, 
 freedom of religion, etc., as soon as can be, and in general draw their laws 
 and organization to the mould of ours by degrees as they find practicable 
 without exciting too much discontent. In proportion as we find the people 
 there riper for receiving these first principles of freedom, congress may 
 from session to session confirm their enjoyment of them.^s 
 
 This letter is of importance for the light it throws on Jeffer- 
 son's idea of a government for the new territory. Jefferson, 
 who had drawn up the Declaration of Independence, is here 
 found planning a form of government in which the people to 
 be governed were to have no voice whatever. All rights, even 
 those of jury trial, habeas corpus, freedom of the press and of 
 religion, had to be legislated into the territory. Congress had 
 
 48 Jefferson, Writings (Ford, ed.), VIII, 275-276, footnote. 
 
98 Constitutional History of the Louisiana Purchase 
 
 complete power to regulate these rights and privileges as they 
 saw fit. It was a practical scheme of government, but it was 
 far removed from the abstract principles of government which 
 Jefferson had been accustomed to quote in putting forth the 
 claims of the American colonists against the British Government. 
 
 With regard to Upper Louisiana, Jefferson, in a postscript 
 in the letter quoted, wrote that it was his idea that this region 
 should be continued under its present form of government, only 
 making it subordinate to the national government and inde- 
 pendent of the lower part of Louisiana.*^ The division of the 
 territory into two parts was here early decided upon. 
 
 Writing to Dewitt Clinton, December 2, 1803, Jefferson said 
 that much difference of opinion manifested itself as to the man- 
 ner of governing Louisiana. He added that, * ' Altho ' it is as yet 
 incapable of self-government as children, yet some cannot bring 
 themselves to suspend its principles for a single moment. "^*^ 
 
 Whether the settlement of Upper Louisiana should be pro- 
 hibited gave rise to three groups holding different opinions 
 thereon. One wished to prohibit it until the Constitution could 
 be amended to provide for it, claiming that if the legislature 
 were allowed to open a land office there, this would have a great 
 influence on elections and end in a *'yazoo scheme," to quote 
 Jefferson. The second group would have the legislature pro- 
 hibit settlement, fearing that an amendment of the Constitution 
 could not be obtained. The last group was in favor of per 
 mitting immediate settlement.^^ 
 
 It had been Jefferson's idea that the upper portion of the 
 territory should be closed to settlers. This he had stated to 
 George D. Erving as early as July 10, 1803.^^ John Breckin- 
 
 49 Jefferson, Writings (Ford, ed.), VIII, 275-276, footnote. 
 
 50 Ibid., VII, 283. 
 
 51 Ibid. 
 
 52 Jefferson Papers, ^'Letters from Jefferson, 1st Series," IX, (99). 
 
Government of the Acquired Territory 99 
 
 ridge of Kentucky, however, informed Jefferson that it would 
 be impossible to prevent the Americans from crossing the Mis- 
 sissippi, "as they can do so with equal ease in every part of it 
 for an extent of upwards of 1000 miles. When they have once 
 crossed it, it will be the Rubicon to them. They have taken this 
 resolution & will hazzard all the consequences."^^ Jefferson, 
 despite his letter to Erving, seems to have reached the same 
 conclusion as Breckinridge, for in a letter already quoted he had 
 declared that after the filling up of the eastern side of the Mis- 
 sissippi range after range of states would be laid off on the 
 western side.^* 
 
 The progress made in planning the government for the terri- 
 tory can be traced in Jefferson's correspondence. On Januarj' 
 17, 1804, he wTote to Thomas McKean: 
 
 We are now at work on a territorial division & government for Louis- 
 iana. It wOl probably be a small improvement of our former territorial 
 governments, or first grade of government. The act proposes to give them 
 an assembly of Notables, selected by the Governor from the principal char- 
 acters of the territory. This will, I think, be a better legislature than the 
 former territorial one & will not be a greater departure from sound prin- 
 eiple.55 
 
 To Doctor Joseph Priestley, Jefferson expressed himself well 
 pleased with the ''duplication of area for extending a govern- 
 ment so free and economical as ours." Whether the country- 
 remained united or formed into Atlantic or JNIississippi confed- 
 eracies he did not consider vital to the happiness of the people. 
 He was willing to do all he could for either part.^® 
 
 53 John Breckinridge to Jefferson, September 10, 1803, in Jefferson, 
 Papers, "Letters received at Washington, 2nd Series," IX, (8). 
 
 54 See his letter to Breckinridge, above. Compare also the arguments 
 on this question in the Senate debate of January-February, 1804, on the 
 Breckinridge Bill, in Chapter "VTI, below, 
 
 55 Jefferson, Writings (Ford, ed.), VIII, 293. 
 
 56 Jefferson to Priestley, January 29, 1804, ihid., 295. 
 
100 Cmistitutionial History of the Louisiatia Purchase 
 
 In a letter of January 31, 1804, to Eobert K. Livingston, 
 Madison stated that a form of government was under discussion 
 but its precise form was not yet known. It was certain, however, 
 that: 
 
 The provisions generally contemplated will leave the people of the District 
 for awhile without the organization of power dictated by Republican 
 theory; but it is evident that a sudden transition to a condition so much 
 in contrast with that in which their ideas and habits have been formed, 
 would be as inacceptable and as little beneficial to them as it would be 
 difficult for the Government of the United States. It may fairly be 
 expected that every blessing of liberty will be extended to them as fast 
 as they shall be prepared and disposed to receive it.57 
 
 The extent to which Congress at that time considered the 
 Louisianians prepared to receive the ** blessings of liberty" will 
 now be related. 
 
 57 Madison, Writings (Hunt, ed.), VIII, 115. 
 
CHAPTER VII 
 
 THE DEBATE IN THE SENATE ON THE LOUISIANA 
 
 GOVERNMENT BILL^ 
 
 The law of October 31, 1803, which had placed the admin- 
 istration of the Louisiana territory, until further action by 
 Congress, in the hands of the President, was recognized as a 
 temporary measure and steps were soon taken to provide a differ- 
 ent government. With this object in view, it was moved in the 
 Senate on November 28 that a committee be appointed to form 
 such a government-^ This motion was taken into consideration 
 December 5, and being agreed to, Senators Breckinridge of Ken- 
 tucky, Wright of Maryland, Jackson and Baldwin of Georgia 
 and Adams of Massachusetts were selected.^ The committee, 
 through Breckinridge, reported on December 30* the bill which 
 bears Breckinridge's name. According to the provisions of the 
 bill, as finally passed, the purchased territory was divided into 
 
 1 The material used in the writing of this chapter is taken principally 
 from Senator William Plumer's "Memorandum of the proceedings of 
 Congress, Particularly of the Senate, from October 17, 1803, to March 27, 
 1804," cited as Plumer's ** Memorandum. " The part of the "Memo- 
 randum" which reports the Senate debate of January -February, 1804, on 
 the Louisiana Government Bill was contributed by the present writer to the 
 American Historical Review, XXII, 340-364. 
 
 Plumer's *' Memorandum " seems to have escaped the attention of 
 previous writers of American history. William Plumer, Jr., beyond quoting 
 a few paragraphs from it, did not make use of it in his Life of William 
 Plumer. The statement that this debate in the Senate was not reported 
 has been made by Henry Adams, History of the United Statse, II, 122-123 ; 
 F. A. Ogg, T<lie Opening of tlie Mississippi, 571; and Curtis M. Geer, TJie 
 Louisiana Purcluxse and the Westward Movement, 242. 
 
 Chapter VII, therefore, is an entirely new contribution to United States 
 history. 
 
 z Annals of Congress, 8 Cong., 1 Sess. (1803-1804), 106. 
 
 3 Ibid., 211. 
 
 * IMd., 223. As might be inferred from the personnel of the committee, 
 the framing of this bill was not accomplished without considerable difficulty. 
 Senator John Smith of Ohio wrote to Jefferson that the committee "have 
 met two or three times but cannot agree on the principles of the bill." 
 December, 1803. [Letter received December 12.] Jefferson Papers, "Let- 
 ters received at Washington, 2d Series," LXXVL 
 
102 Constitutioiial History of the Louisiana Purchase 
 
 two parts, that north of the thirty-third parallel to be called the 
 "District of Louisiana," and connected, for purposes of govern- 
 ment, with the territory of Indiana. The name "Territory of 
 Orleans," was applied to the southern area.^ For this region 
 the bill provided for a governor, appointed by the President for 
 a term of three years ; a secretary, similarly appointed, for four 
 years; and a legislative council of thirteen members, appointed 
 annually by the President. The governor was given power to 
 convene and prorogue the council at will. The judicial officers 
 were to be appointed by the President for a term of four years. 
 The right of trial by jury was granted in capital cases in crim- 
 inal prosecutions; and in all cases, criminal and civil, in the 
 superior court, if either party required it. The slave trade in 
 the territory was restricted to slaves brought from states of the 
 Union by American citizens going there to settle, and who at 
 the time were bona fide owners of such slaves. The importation 
 of slaves from abroad into Orleans Territory was prohibited, 
 and slaves imported since May 1, 1798, were to be excluded 
 from the territory.® 
 
 The provisions of the Breckinridge Bill and of amendments 
 thereto formed part of the programme in the Senate from 
 January 10, when Adams moved the three resolutions already 
 noted,'^ until February 18, 1804, when the bill passed the Senate. 
 
 5 For a discussion of the terms territory and district, see Max Farrand, 
 "Territory and District," in Am. Hist. Rev., V, 676-681. 
 
 6 For the full text of the bill, approved by Jefferson, March 26, 1804, 
 see the Antials of Congress, 8 Cong., 1 Sess. (1803-1804), Appendix, 1293- 
 1300 ; Statutes at Large, II, 283. 
 
 The act of April 7, 1798, which authorized the establishment of a gov- 
 ernment in the Mississippi territory, contained a section forbidding the 
 introduction into that territory of slaves from without the United States. 
 On this point see Du Bois, Tlie Suppression of tJie African Slave-Trade, 
 88-89, and Appendix B, 239. The act of 1798, together with the fact that 
 it antedated the reopening of the foreign slave trade by South Carolina, 
 explains the reason for the insertion of the date 1798 in the Louisiana bill. 
 
 7 See above; also Annals of Congress, 8 Cong., 1 Sess. (1803-1804), 
 228-229; Adams, Writings (Ford, ed.). Ill, 25-30; Adams, Memoirs, I, 
 286-287. 
 
Debate in Senate ooi the Louismna Governmeiit Bill 103 
 
 Senators Dayton, Nicholas and Jackson considered Adams's 
 resolutions as being alarming and dangerous in principle ; how- 
 ever, they did not point out any particular evil that would result 
 from their adoption. Plumer held them to be ''mere abstract 
 propositions, not connected with any business immediately before 
 the Senate," and declared that a vote in favor of them would 
 settle nothing.® 
 
 On January 16, Worthington of Ohio moved to amend the 
 fourth section, which made provision for the appointment and 
 powers of the legislative council, so as to authorize that body 
 to elect a delegate to Congress with the right to debate but not 
 vote.^ This motion gave rise to an interesting debate concerning 
 the status of the inhabitants of the ceded territory. Breckin- 
 ridge of Kentucky favored the motion as a means of conveying 
 useful knowledge to Congress. Samuel Smith of Maryland held 
 a somewhat similar view. So, too, did John Smith of Ohio, who 
 considered the amendment both necessary and important. Daj'- 
 ton of New Jersey, on the other hand, thought the legislative 
 council of the territory could better inform Congress of condi- 
 tions in the territory by memorials. Pickering of Massachusetts 
 took the stand that since Louisiana was not incorporated into 
 the Union, it would be absurd to admit a delegate from there to 
 debate in Congress. Louisiana was a purchased province and 
 must be governed as such. Opposition came also from White 
 of Delaware, who argued that since the legislative council was 
 to be created by the President and vested with the power of 
 choosing a delegate to Congress, this delegate would be in reality 
 the representative of the President, an arrangement which he 
 denounced as wrong. Bradley of Vermont held the same point 
 of view. Jackson of Georgia was of the opinion that it was 
 
 8 Plumer, " Memorandum, ' ' Tuesday [January] 10, 1804. 
 
 9 Annals of Congress, 8 Cong., 1 Sess. (1803-1804), 233. 
 
104 Constitutional History of the Louisi-atia Purchase 
 
 too soon to allow the Louisianians representation in Congress. 
 Worthington came to the support of his motion with the assur- 
 ance that no danger could arise from the measure. Dayton, 
 again participating in the debate, declared the motion unconsti- 
 tutional. He said: 
 
 The Constitution has provided only for the representation of States, 
 and DO man will pretend that. Louisiana is a State. It is true by the 
 confederationio provision was made for delegates from territories and our 
 Constitution has provided that all contracts and engagements entered into 
 before its adoption shall be valid (Art 6th) but no man will have the 
 hardihood to say that Louisiana was included in that engagement. 
 
 John Quincy Adams also sided with the opposition, owing 
 to constitutional scruples. Cocke of Tennessee saw no compari- 
 son between the government of Louisiana and other territorial 
 governments. He realized that the Senate was face to face with 
 a new problem, an original system, founded on new principles, 
 which must be worked out on its owti merits. He denied that 
 the bill violated the Constitution, and, answering the argument 
 that the people were ignorant, he claimed that they, knowing 
 the necessity of it, would always elect worthy representatives. 
 He expressed his veneration for these people because they lived 
 in the west. Breckinridge added his voice to those who denied 
 there was any infringement of the Constitution, and Samuel 
 Smith brought the debate to a close with the argument that since 
 the Constitution did not prevent the Senate from admitting 
 delegates from old territories he could see no power restraining 
 that body from allowing Louisiana to send a delegate to the 
 other House.^^ The motion failed by a vote of eighteen nays to 
 twelve yeas.^- 
 
 10 By the Ordinance of 1787, sec. 12. 
 
 11 Plumer, ' ' Memorandum, ' ' Monday, January 16. Compare the state- 
 ment in John Quincy Adams, Memoirs, I, 290, under the same date: "The 
 Louisiana Government bUl was further discussed ; but no decision had. ' ' 
 
 12 Annals of Congress, 8 Cong., 1 Sess. (1803-1804), 233-234. The 
 liberal tendencies of the West are seen in the vote on this measure. With 
 
Debate in Senate on the Louisiana Government Bill 105 
 
 Mere abstract theory of government played little part in this 
 debate. The principal grounds of argument were those of con- 
 stitutional restrictions and of expediency. 
 
 The doctrine that territories must pass through varying 
 stages of progress before definite privileges were granted to them 
 is here applied to newly acquired foreign territory as well as 
 to that originally held. This was true not only of the one ques- 
 tion already discussed; it can be traced throughout the entire 
 debate. On the very next day following the refusal to grant a 
 delegate in Congress to Louisiana, a motion to extend to that 
 country the trial by jury in all criminal cases was defeated.^^ 
 
 The Breckinridge Bill was debated on January 18^* and on 
 January 23. On the latter day a difference of opinion was 
 manifest as to how much of the operative part of our political 
 institutions could be carried into direct effect in the new country, 
 and as to the mode by which the spirit and principles of these 
 institutions could be most effectually introduced. The immedi- 
 ate cause of debate was a motion to strike out a part of what 
 related to the legislative council. It was urged, on the one 
 side, that the legislative council ought to be chosen by the gov- 
 ernor from certain qualified settlers of the different parts of 
 the country, men who should be able to give information con- 
 
 the exception of John Brown of Kentucky the western states voted solidly 
 in favor of allowing the Louisianians a delegate in Congress. Those voting 
 aye were Anderson and Cocke of Tennessee, Breckinridge of Kentucky, 
 John Smith and Worthington of Ohio, Ellery and Potter of Rhode Island, 
 Logan of Pennsylvania, Israel Smith of Vermont, Samuel Smith of Mary- 
 land, and Nicholas and Venable of Virginia. The nays were Adams and 
 Pickering of Massachusetts, Armstrong of New York, Baldwin and Jackson 
 of Georgia, Bradley of Vermont, Brown of Kentucky, Condit and Dayton 
 of New Jersey, Franklin and Stone of North Carolina, Hillhouse and 
 Tracy of Connecticut, Maclay of Pennsylvania, Olcott and Plumer of New 
 Hampshire, and Wells and White of Delaware. 
 
 is Annals of Congress, 8 Cong., 1 Sess. (1803-1804), 235. Plumer does 
 not report the debate on this motion, nor does John Quiney Adams (Memoirs, 
 I 290). The bill limited trial by jury in criminal eases to those which were 
 capital. 
 
 1* Annals of Congress, 8 Cong., 1 Sess. (1803-1804), 236. 
 
106 Const it iitioival History of the Louisiana Purchase 
 
 cerning their respective sections. The governor, having power 
 to dissolve this council at discretion, could check factious dispo- 
 sitions; while, since the members were to be chosen annually by 
 the governor, who was responsible for their choice, no injury 
 could arise. Information could be acquired on the state of things 
 and the representative element of our government be introduced 
 gradually and progressively. This mode of procedure was con- 
 sidered necessary and expedient, on the one hand, because of 
 lack of information on the part of Congress of the local con- 
 ditions, and on the other, from the attitude of mind of the 
 inhabitants due to long subjection to a form of government very 
 different from our o\^'ti. If elections were held, there was a 
 danger that persons would be elected who did not know our 
 language and who, from want of necessary information in our 
 principles of government, would be incapable of proceeding 
 with legislation. 
 
 Those favoring the extension of legislative rights to the 
 Louisianians contended that capable men could be found in 
 every district. Furthermore, admitting the people of Louisiana 
 to be *'next to a state of nature," it was inconsistent with the 
 third article of the treaty to allow them to remain so. Having 
 guaranteed to them in due time equal rights and laws with 
 ourselves, the first step in effecting that extension of civil and 
 political liberty- to them was to grant the election of a legislative 
 council. Not to grant this would be perpetuating ignorance, 
 that ''great source of human enslavement." It would be better 
 to allow them to experiment while their numbers were few rather 
 than wait until more numerous settlers would render errors 
 arising from ignorance extensive and dangerous. The theory 
 of free government appeared in the statement: 
 
 That we best understood what is fit and what will be good or acceptable 
 in the eyes of others by placing ourselves in their situation and that if we 
 were in their situation noAv we should hardly complain or object to the 
 
Debate in Senate on the Louisiana Government Bill 107 
 
 conduct of those who should proffer to us the same means of happiness, 
 freedom and prosperity which had rendered our benefactors the admiration 
 of mankind.^ 5 
 
 On January 24, an amendment was offered authorizing the 
 governor to divide the territory into twenty-four districts, in 
 each of which the resident householders were to elect annually 
 two properly qualified persons, from whom the governor was to 
 select twenty-four, one from each district, to form a legislative 
 council.^* Jackson declared that the inhabitants of Louisiana 
 were not citizens of the United States; they were in a state of 
 probation and were as yet too ignorant to elect a legislature. 
 Tl\is view received the support of Samuel Smith, Nicholas and 
 Pickering, who considered the people absolutely incapable of 
 governing themselves, of electing their rulers, or of appointing 
 jurors. They would be in favor of granting a free government 
 as soon as the people were ready for it. Maclay of Pennsylvania 
 favored the amendment, as did Cocke, who opposed the original 
 bill as tyrannical. Anderson was surprised that the third article 
 of the treaty had been lost sight of. To him the original bill 
 had not * * a single feature of our government in it — it is a system 
 of tyranny, destructive of elective rights. We are bound by 
 treaty, and must give that people, a free elective government." 
 
 The proposal of an amendment to extend to the new territory 
 the act of February 28, 1803, forbidding importation of slaves 
 into states which prohibited their importation,^^ brought forth 
 the remark from Jackson that "slaves must be admitted into 
 
 15 Jiurora, January 27, 1804, The correspondent's communication is 
 dated "Washington, January 23. Curiously enough, this Avas the only 
 lengthy newspaper report on any part of the debate which the writer was 
 able to find. The Aurora correspondent contented himself the next day, 
 January 24, with a brief statement to the effect that the debate in the 
 Senate was continued along much the same lines as the day before. See 
 the Aurora for January 28. 
 
 16 Annals of Congress, 8 Cong., 1 Sess. (1803-1804), 238-239. 
 
 17 Ibid., 7 Cong,, 2 Sess. (1802-1803), Appendix, 1564-1565. 
 
108 Coiistitutimial History of the Louhiaiia Purchase 
 
 that territory; it cannot be cultivated without them." This 
 assertion opened the way for a heated discussion of slavery and 
 the slave-trade which became the central theme of the debate 
 until the final passage of the bill. Nearly all the arguments for 
 and against the institution of slavery which were to become 
 so familiar in the years to follow, were advanced. The light 
 thrown by Plumer on the position of the Senate on this question 
 is one of the most important of his contributions to our knowl- 
 edge of current congressional action. 
 
 The statement of a Georgia man, Jackson, was immediately 
 attacked by other Southerners, Franklin of North Carolina and 
 Breckinridge of Kentucky, both of whom declared themselves 
 opposed to slavery. Breckinridge expressed the hope that the 
 time was "not far distant when not a slave will exist in the 
 Union." He feared a slave uprising similar to that which 
 had occurred in San Domingo.^* 
 
 Slavery had not yet divided the country along geographical 
 lines, although such a division was hinted at during this debate.^^ 
 Dayton, senator from New Jersey and a native of that state, took 
 upon himself the defense of slavery on the ground that the newly 
 acquired territory would never be inhabited unless slavery should 
 be permitted there. White men could not bear the burning sun 
 and damp dews of that country. Dayton based his statement 
 on first-hand evidence, having traveled over a large part of 
 Louisiana, He was opposed, also, to limiting the trade in slaves 
 to the states of the Union, for this would lead the slave dealers 
 of the United States to collect and ship into the new territory 
 the worst type of slaves. 
 
 Daj^ton, however, was not the only senator who possessed 
 first-hand knowledge of Louisiana. John Smith of Ohio had 
 
 18 Frequent reference to this slave revolt shows how deep an impression 
 was made by it on the minds of the people of the South. See Du Bois, 
 Tlw Suppression of the African Slave-Trade, 70-93. 
 
 19 See the speech of Hillhouse, p. 112. 
 
Debate m Senate on the Louisiana Government BUI 109 
 
 spent considerable time there. He did not agree with Dayton 
 and maintained that white men could cultivate that land. Slaves 
 introduced from foreign countries would soon become so numer- 
 ous as to endanger the government and ruin the new country. 
 He, however, favored the admission of slaves from the states. 
 This would be the means of scattering the negroes more equally 
 through states and territories and thus check their power. He 
 professed his admiration of the policy of New England in exclud- 
 ing slavery, and thanked God there were no slaves in Ohio.^° 
 
 Franklin asserted gravely that, "Slavery is in every respect 
 an evil to the States in the south and in the west ; it will, I fear, 
 soon become a dreadful one. ' ' The great danger, however, arose 
 from negro insurrections. In support of his contention he 
 pointed to the laws of Virginia and North Carolina, made for 
 the purpose of guarding against and suppressing these rebel- 
 lions.^^ 
 
 The debate on the slave trade was resumed the next day. 
 Bradley of Vermont was in favor of permitting slavery in Louis- 
 iana because this right was claimed by the inhabitants and was 
 made binding on the United States by the treaty. He preferred, 
 however, to omit entirely the slave question from the bilL^^ 
 Hillhouse pointed to the great increase in the number of negroes 
 in the United States — nearly two hundred thousand for the ten 
 years ending with the last census. He regarded slavery as a 
 serious evil and desired to check it wherever possible. An 
 increase in the number of slaves in Louisiana would necessitate 
 
 20 The words slavery and slave trade are used rather loosely by Plumer 
 and sometimes lead to obscurity of meaning although, as a rule, it is not 
 difficult to ascertain from the context Trhich is meant. 
 
 21 Plumer, ** Memorandum, " Tuesday, January 24. Cf. John Quiney. 
 Adams, Memoirs, I, 292, under the same date: "The amendments to the 
 Louisiana Government bill were taken up, and some progress made in. them. 
 Mr. Venable's amendment, to give them the beginning of a popular repre- 
 sentation, faOed for want of one vote. Yeas fourteen, nays fourteen. On 
 the section prohibiting the slave trade, no question was taken. 
 
 22 See Adams's comments on Bradley's action, p. 110. 
 
110 Constitutional History of the Louisiana Purchase 
 
 the maintenance of a standing army to protect the people against 
 insurrections. In conclusion, he said that if the new country 
 could not be cultivated without slaves it would prove a curse to 
 the United States, particularly to some of the states nearest it. 
 
 Bradley favored the establishment of a general, not a par- 
 ticular foi-m of government. He cited the government of the 
 District of Columbia as proof of the fact that Congress was 
 incompetent to deal with particulars. 
 
 Adams held slavery in a moral sense to be an evil, but as 
 connected with commerce it had important uses. Considering 
 that the regulations offered to prevent slavery were insufficient, 
 he announced his intention of voting against them. Dayton 
 repeated his argument of the previous day that negro slave labor 
 was necessarj^ for the cultivation of the soil of Louisiana. 
 Reverting to other sections of the bill, he declared that an elec- 
 tive government and trial by jury would be a curse to the people, 
 but that slavery was essential to their existence. 
 
 Hillhouse and John Smith both took exception to Dayton's 
 remarks. The former claimed that the Constitution permitted 
 a republican government and no other. "We must," he said, 
 ** apply the Constitution to that people in all cases or in none. 
 We must consider that country as being within the Union or 
 without it — there is no alternative. I think myself they are not 
 a part or parcel of the United States. "^^ Smith's opposition 
 was simply a reiteration of his earlier statement that negroes 
 were not necessary for the tillage of the soil; white men could 
 cultivate it. He, too, emphasized the dangers and horrors of 
 negro rebellions, and again referred to the one in San Domingo. 
 
 23 The division of opinion on this point has continued to the present 
 day. One needs only to examine the magazines and newspapers of the 
 period immediately following the acquisition of our insular possessions to 
 see how live an issue this still is among students of political science and 
 constitutional history. The Insular Decisions of the Supreme Court throw 
 further light on the controversy. It has played a prominent part in the 
 discussions following each new acquisition of territory. The importance 
 of Louisiana as a, precedent is once more emphasized. 
 
Debate in Senate on the Louisiana Government Bill 111 
 
 Jackson, arguing from experience as a Georgia rice-planter, 
 held that slavery was necessary. To exclude slaves would de- 
 preciate the value of lands in Louisiana fifty per cent. The 
 third article of the treaty, according to his interpretation, for- 
 bade the exclusion. Full of serious portent for the future, 
 tinged with what might be well called the ** higher law," was 
 his statement: "You cannot prevent slavery — ^neither laws 
 moral or human can do it. Men will be governed by their inter- 
 est, not the law." 
 
 Opposition to the extension of slavery in the west was voiced 
 by Anderson of Tennessee, In his opinion its spread into Louis- 
 iana would prove a curse to the west. 
 
 The bitterness aroused by the debate, a bitterness which was 
 to grow until the ties of union were broken by southern secession, 
 did not escape men at the time and called forth the grave 
 remark from "White of Delaware : * ' I think it unfortunate that 
 whenever this question is stirred, feelings are excited that are 
 calculated to lead us astray." It was his hope that Congress 
 would use every means within its power to prevent "this dis- 
 graceful traffick in human flesh." Nothing in the treaty guar- 
 anteed to the people of Louisiana the power, much less right, of 
 holding slaves. He inquired whether the statement that Louis- 
 iana could not be cultivated by white men did not rise from 
 the fact of their having slaves. He believed white men could 
 accustom themselves to the fatigue of labor in that climate. In 
 conclusion he put forth an argument for free white labor which 
 was to be used many times afterwards, and one which the south- 
 ern planters were unwilling to admit: 
 
 Examine the state of this Union. In the Eastern States where slavery 
 is not suffered, their lands are highly cultivated, their buildings neat, use- 
 ful a,nd elegant, and the people are strong, powerful and wealthy. But as 
 you travel south, the instant you arrive to where slavery is, you find the 
 lands uncultivated, the buildings decaying and falling into ruins and the 
 people, poor, weak, and feeble. This is not the effect of the climate, for our 
 southern climates are more favorable than the eastern and northern. 
 
112 Constitutional History of the Louisiana Purchase 
 
 Bradley had a hard time making his attitude clearly under- 
 stood. Opposed to slavery in the "eastern states," he declared 
 his intention of voting against the measure under consideration 
 because it admitted of the principle of slavery. Hillhouse 
 pointed out that this stand, if adhered to, would throw open the 
 new territory to slaves imported directh'' from Africa, whereas 
 support of the bill would limit the trafSc to the United States. 
 
 Samuel Smith of Maryland claimed a constitutional right 
 to prohibit slavery in Louisiana but doubted the wisdom of 
 exercising it. Israel Smith of Vermont considered the provision 
 proposed to be insufficient ; it would increase rather than prevent 
 slavery. Although opposed to the slave trade, he did not think 
 CoUgress could prohibit it effectually until 1808. Many slaves 
 existed in Louisiana and the change proposed would be too sud- 
 den. It would encourage South Carolina to import slaves. He 
 was against present action in the matter.^* 
 
 No vote was taken and the debate was. continued on the next 
 day. Hillhouse, in introducing a new amendment to the pro- 
 vision concerning slavery, denied the accusation that he was 
 unfriendly to the new territor\^, and that he was bringing in 
 measures merely to embarrass the Administration, and asserted 
 his sincere desire to promote the interests of the Union. He then 
 uttered a remark fraught with significant meaning \ rj j ^ ' 
 
 It has been said on this floor that I am an Eastern m<m. I am so, but 
 while I am the representative of a State which is yet a member of the 
 
 24 Plumer, "Memorandum," "Wednesday, January 25. Cf. John Quincy 
 Adams, Memoirs, I, 292: ^*In Senate the debate continued all day upon 
 the question of the admission of slaves into Louisiana. Mr. Hillhouse is 
 to prepare a section to the same effect, but differently modified." Men- 
 tion of the debate is made in the Aurora, January 30, and in the Federal 
 Gazette 4" Baltimore Daily Advertiser, February 1, dated from Washington, 
 January 25. 
 
 South Carolina had, by suc<?€ssive amendments, from 1787 to 1803, 
 forbidden the importation of slaves, but the trade had been reopened by 
 the repeal of these laws, December 17, 1803. For statistics on the number 
 of slaves imported into Charleston after December, 1803, see DuBois, The 
 Suppression of the African Slave Trade, 90-91. 
 
Debate in Senate on the Louisiana Government BUI 113 
 
 Union, I hope I shall have as much influence as if I was a Soutliern man. 
 I did not expect so soon to hear on this floor the distinction of eastern and 
 northern, and southern, men. Has it indeed come to this — are we to be 
 designated by a geographical line! 
 
 Hillhouse's amendment declared it unlawful for anyone to 
 import, or assist in importing, any slaves into Louisiana from 
 without the United States. Persons convicted of this offense 
 were to be fined, and the slaves freed.^^ 
 
 The attack on the amendment was begun by Jackson, who 
 still insisted that unless slavery were established in that country 
 the territory must be abandoned. Personal interest inclined him 
 to favor the prohibition of slavery in Louisiana because this 
 would prevent its settlement and thereby raise the value of 
 estates in Georgia. Duty, he said, outweighed personal or state 
 interest. Like many other Southerners of his day, 'Jackson be- 
 lieved it would be for the interest of the United States to end 
 slavery altogether, but this could not be done. Reverting to 
 familiar arguments, he said that although he disliked the traffic 
 in human flesh, the decision must be made not on the morality 
 but the policy of the case. Furthermore, it was an improper 
 time to prohibit the importation of slaves into Louisiana, our 
 government not yet being established there. Anticipating the 
 later "popular sovereignty" doctrine, Jackson said: "Let those 
 people judge for themselves — the treatj^ is obligatory upon us." 
 
 The treaty obligation was emphasized by Dayton, who main- 
 tained that the faith of the nation was pledged, by treaty, that 
 the rights of the Louisianians should be secured to them : one of 
 their rights was slavery. 
 
 Both the doctrine of "popular sovereignty" and the rights 
 under the treaty were to rise again and again to plague the 
 Government until their settlement became issues of the Civil 
 War. 
 
 i5 Annals of Congress, 8 Cong., 1 Sess. (1803-1804), 240. 
 
114 Constitutuytial History of the Louisiana Purchase 
 
 Not all of the senators agreed with Jackson and Dayton as 
 to the treaty obligations. The right, under the treaty, to hold 
 slaves was denied by Breckinridge, himself a Southerner. Much 
 less, according to him, did the treaty pledge the faith of the 
 Union to support the slave traffic. Alarmed at the increase of 
 slaves in the southern states, he, considering slavery an evil, 
 desired to confine it within as small a compass as possible. 
 
 Some of the senators felt uncomfortable because of the stand 
 they felt forced to take on the question before the Senate. Brad- 
 ley opposed the amendment as insufficient. Desirous of abolish- 
 ing slavery completely, he did not think the proper time had 
 come. He wished nothing at all to be done on the subject. Sam- 
 uel Smith found himself in similar difficulties. He stated his 
 intention of voting against the amendment, although he wished 
 it understood that he was opposed to slavery. On the other 
 hand there were those in the Senate who were willing to vote 
 for what could be obtained. Franklin was of this group. His 
 wish was to exclude all slaves from the territory except those 
 carried by actual settlers from the United States, but despairing 
 of a vote in the Senate which would accomplish this exclusion, 
 he was willing to vote for such a prohibition as he could get. 
 With regard to all foreign importation of slaves, Franklin ex- 
 pressed his willingness to send a frigate to Charleston to prevent 
 the landing of slaves from Africa, and ''frittering those nefar- 
 imis traders to pieces." 
 
 Jackson again asserted that human power and invention 
 could not prevent the importation of slaves ; that it was vain to 
 make laws on the subject. Slaves directly from Africa were 
 preferable to those who had been long in this country, or born 
 here. He was sorry the constitution of Georgia probihitcd the 
 slave trade.-^ Jackson's idea of the futility of laws on the 
 
 26 Constitution of Georgia, 1798, Art. IV, sect. 11, Thorpe, Federal and 
 State Constitutions, II, 801. 
 
Debate in Senate on the Louisiana Government Bill 115 
 
 subject was shared by a New Englander, Israel Smith of Ver- 
 mont. Although opposed to slavery, Smith considered as useless 
 all laws made to prevent it. Such legislation would be as futile 
 as an attempt to prevent by law the use of cider in New England. 
 No effective law against the slave trade, he argued, could be 
 carried into effect until 1808. South Carolina was within her 
 rights in importing slaves from Africa. Any laws passed at the 
 present time would give encouragement to the states in 1808 to 
 resist laws which might then constitutionally be made to abolish 
 the slave trade. He hoped nothing would now be done on the 
 matter. 
 
 Jackson attempted to prevent a vote on the provision by 
 moving an adjournment, which was refused. He considered it 
 to be unfair for a majority to press the subject. The question 
 was taken on the amendment and passed in the affirmative, 
 twenty-one to six.^^ 
 
 27 Plumer, * ' Memorandum, ' ' Thursday, January 26. For the text of 
 the amendment under discussion, and the vote thereon, see Annals of Con- 
 gress, 8 Cong., 1 Sess. (1803-1804), 240-41. John Quincy Adams in his 
 Memoirs, I, 292-293, under date of January 26, says: 
 
 "The section for prohibiting the admission of slaves from abroad into 
 Louisiana was again debated all day. It was at last taken by yeas and 
 nays — seventeen to six. [An error. Compare the vote in the Annals. — 
 E. S. B.] The discussion of this question has developed characters. Jack- 
 son has opposed the section toti^ virihus, in all its shapes, and was very 
 angry when the question was taken — called twice for an adjournment, in 
 which they would not indulge him, and complained of unfairness. Dayton 
 has opposed the section throughout with equal vehemence, but happened 
 to be absent when the question was taken. Smith, of Maryland, who has 
 been all along extremely averse to the section, but afraid to avow it, com- 
 plained bitterly that the yeas and nays were taken in quasi committee, 
 instead of waiting to take them on the ultimate question in the Senate. 
 But, finding his party on this point stiff to him as if he was in the minority, 
 he left his seat, to avoid voting at all, in the yeas and nays. Bradley, of 
 Vermont, after trying various expedients to give the slip to the real ques- 
 tion, finally moved an amendment to prohibit the admission of slaves 
 altogether, as well from the United States as from abroad. The object 
 was to defeat the thing by its own excess, and made his abhorrence of all 
 slavery the ground of his argument to oppose the partial prohibition. He 
 therefore took the yeas and nays upon his own proposed amendment before 
 they were taken on Mr. Hillhouse 's section. The. workings of this question 
 upon the minds and heaVts of these men opened them to observation as much 
 as if thev had had the window in the breast.'-^ 
 
116 Constitutimuil History of the Louisiana Purchase 
 
 The slavery issue with respect to Louisiana was by uo means 
 settled. On Monday, January 30, Senator Hillhouse moved an 
 amendment to the Louisiana Bill, providing that no person 
 brought into the territory from any state or territory of the 
 Union or from any territory in America belonging to any foreign 
 Prince or State after a day to be decided could be held by law 
 to serve for more than one year after reaching the age of twenty- 
 one years for males and eighteen for females, unless bound by 
 their own voluntary act after reaching that age, or bound by 
 law for the pajrment of debts, damages, fines or costs. It was 
 also provided that this act should not affect fugitives from other 
 states or territories, who must be delivered up in the manner 
 prescribed by law.^^ 
 
 Practically no discussion of this amendment is reported, brief 
 remarks in favor of it by Hillhouse and Bradley alone being 
 noted. The measure was rejected.^^ 
 
 Hillhouse promptly offered another amendment, the first 
 part of which made it unlawful for any person to import into 
 the territory, from any place within the limits of the United 
 States, or to assist in importing, any slaves brought since [blank] 
 date into any part of the limits of the United States, from any 
 place outside those limits. If convicted of such an offense in 
 any competent court of the territory, the offender was liable to 
 fine.30 
 
 Dayton pointed to the fact that South Carolina had a con- 
 stitutional right, which she was exercising, to import slaves 
 from Africa, and the proposed amendment would impair that 
 right. Hillhouse admitted this, adding that it would do so justly. 
 Jackson touched on one of the real difficulties in any settlement 
 of the slavery question when he said it was unfortunate that 
 
 2^ Annals of Congress, 8 Cong., 1 Sess. (1803-1804), 241-242. 
 29Plumer, "Memorandum," Monday, January 30. For the vote see 
 Annals of Congress, 8 Cong., 1 Sess. (1803-1804), 242. 
 
 ^^ Annals of Congress, 8 Cong., 1 Sess. (1803-1804), 242. 
 
Debate in Senate on the Lonisiana Government Bill 117 
 
 slaves were owned, but having them it was unsafe to free them. 
 He said that a very few negroes would revolutionize Louisiana. 
 Georgia had prohibited the manumission of slaves.^^ He ex- 
 pressed his willingness to join in exporting all the slaves. 
 
 The difficulty of finding a solution to the slave problem was 
 apparent to all. The danger of a sudden,, general manumission 
 could not be overlooked ; nor was it, even by the very man who 
 by his many amendments showed his desire to check the growth 
 of slavery. Hillhouse held to his opinion that slavery was a 
 real evil, but he was not in favor of freeing all the slaves at 
 once; slavery must be extinguished by degrees. Adams stated 
 his opposition to slavery but added that he had voted against the 
 provisions to prohibit and lessen it. His reasons for so doing 
 were those advanced in his amendments proposed January 10; 
 namely, that he was opposed to legislating at all for Louisiana ; 
 and that the Senate was proceeding . with too much haste on 
 such an important question.^^ 
 
 The first division of the amendment was adopted, but the 
 second part was postponed until the next day.^^ By this second 
 division it was provided that no slaves should be introduced into 
 
 31 A Georgia aet of 1801 made manumission illegal unless accompanied 
 by act of the legislature. 
 
 32 Plumer, * * Memorandujn, " Monday, January 30. Cf. John Quincy 
 Adams, Memoirs, I, 293, for same date, where merely a brief note of the 
 continuance of the discussion is mentioned. The National Intelligencer 
 and Washington Advertiser, the Administration paper, under date of Jan- 
 uary 30, has the following to say: "The Senate have, for some days past, 
 been engaged on the bill for the government of Louisiana. After a debate 
 of considerable length, it has been decided — ^yeas 22 — nays 7 — to prohibit 
 the importation into Louisiana of slaves from all foreign countries. We 
 flatter ourselves that this important principle will be confirmed by the 
 ultimate vote of the two Houses, and that Congress will thereby evince 
 an unabating spirit to exert every legitimate power, with which they are 
 invested, to rescue the national character from its greatest degradation, and 
 save the people they represent from the deepest evils which futurity might 
 otherwise have in store for them." The same statement appears in the 
 Federal Gazette 4- Baltimore Daily Advertiser, Wednesday, February 1, 
 1804. 
 
 S3 Annals of Congress, 8 Cong., 1 Sess. (1803-1804), 242. 
 
118 Canstitutional History of the Louisiana Purchase 
 
 the territory except by persons removing thence for actual settle- 
 ment, and being, at the time of removal, hotia fide owners of such 
 slaves. The penalty for violation of this regulation was freedom 
 for the slaves.^^ An attempt to strike out this section and insert 
 another proposed by Breckinridge was defeated,^^ but not until 
 the matter had been debated "warmly," to use the phrase of 
 Adams.^^ Something of the warmth of the discussion is to be 
 seen in Plumer's report of it. Much was repetition of what had 
 already been said, and j^et there were sufficient new phases of 
 the question laid open and old phases emphasized in new ways 
 to make an examination of the debate exceedingly profitable. 
 The depth of the problem was voiced by Samuel Smith : 
 
 "When the prohibition of slavery "was first introduced into the bill I was 
 much alarmed. I foresaw it would take up time — that it would create 
 alarm and even endanger the peace and security of these States holding 
 slaves — especially when the subject is debated in the other House — and 
 those debates published in the newspapers.37 God knows that I am not 
 friendly to slavery, although I own slaves and live in a state where slavery 
 is established by law, I am unwilling to think much less to speak on this 
 subject. 
 
 Smith here voiced an attitude toward the slave question 
 which became all too common at a later date. The absolute 
 impossibility of avoiding the topic in this manner was recognized 
 bv another Southerner, Franklin of North Carolina, in the fol- 
 lowing words : "We cannot wink this subject out of sight — if we 
 leave it, it will follow us," Legislation on this question he 
 considered imperative. The evil of slavery was felt in North 
 Carolina; yet while Franklin was in favor of restraining for- 
 eign importation, he did not wish to go further. Breckinridge 
 
 sijvnals of Congress, 8 Cong,, 1 Sess. (1803-1804), 243. 
 S5l])id., 243-244. 
 
 36 John QuLncy Adams, Memoirs, I, 293. 
 
 37 Although the Senate was no longer closed to the public except when 
 special matters were under discussion, the debates in the House were given 
 much wider publicity, a fact to which Smith here bears Avitness, 
 
Debate in Sen-ate on the Louisiana Government Bill 119 
 
 believed firmly in the power of the Government to make laws 
 concerning slavery, and to carry those laws into effect. If this 
 could not be done then our power was too feeble to govern the 
 Union. Breckinridge emphasized the importance of the problem 
 — ^the legislation for a large section of the country. In consider- 
 ing this matter, said he, immediate effects of legislation must be 
 overlooked. The fundamental issue was: "Can it be right to 
 extend and foist slavery into that country?" Yet in answer- 
 ing his own question, Breckinridge could not forget the interests 
 of his own and neighboring states. He argued, as had been done 
 before, that it would be good policy to permit slaves to be sent 
 into Louisiana from the United States because this would disperse 
 the negroes over a wider area and thus free the southern states 
 from a part of their black population. Unless slaves could be 
 carried into the territory from the states, wealthy southern men 
 would be prohibited from going to Louisiana to settle. 
 
 Answering a charge made by Bradley that liberty and slavery 
 could not exist together, Breckinridge declared that such a con- 
 dition did exist in the slave states. He enlivened the discussion 
 by asserting that the Constitution not only recognized slavery 
 but expressly protected it. This was denied by Adams who said : 
 "The Constitution does not recognize slavery — ^it contains no 
 such word — a great circumlocution of words is used merely to 
 avoid the term slaves." He in turn was answered by Venable 
 who admitted that while the Constitution did not contain the 
 actual word slave, nevertheless it admitted the thing and pro- 
 tected it, and Congress had uniformly acted accordingly. 
 
 The whole situation from the point of practical statesman- 
 ship was summed up bj' Nicholas as follows : 
 
 One state only. South Carolina, can now import slaves — and that is a 
 right derived not from Congress, but from the Constitution — it is a mere 
 temporary right. The people of Louisiana cannot therefore complain of 
 the partiality in Congress because Ave deny them the liberty of importing 
 foreign slaves — It is no more than what we long since denied to the Mis- 
 
120 Constitutional History of the Louisiana Purchase 
 
 sissippi and Ohio territories. We are now making a form of government 
 for Louisiana, not establishing a common and ordinary law — I am for 
 prohibiting the people of that country from importing slaves from foreign 
 countries, and leave it optional with the government of Louisiana, when 
 they have one, to prohibit it from the United States also, if they should 
 think best.as 
 
 The vote on Hillhouse 's proposition was not then taken^* but 
 the measure was passed the following day in an amended form, 
 limiting to ' ' a citizen of the United States ' ' instead of " a person 
 or persons, ' ' in describing the right to take slaves into Louisiana. 
 The proposed change in wording and the slave problem in gen- 
 eral precipitated another debate on the subject, which, added 
 to what had alreadv been carried on, led to statements which 
 showed how bitter the feeling had become. Hardly had the 
 matter been raised again before Wright of Maryland stated what 
 was later to be one of the last defenses of the slave-holder : "It 
 is wrong to reproach us with the immorality of slavery — that is 
 a crime we must answer at the bar of God — We ought not there- 
 fore to answer it here — for it would be unjust that we should 
 be punished twice for the same offence." 
 
 Jackson opposed the amendment because it did not authorize 
 foreigners who might go there to settle to carry their slaves with 
 them. The settlement of that country should be the first object 
 aimed at; and interest dictated the admission of Englishmen 
 there as soon as possible.*" The amendment, however, was 
 passed.*^ 
 
 3S Plumer, "Memorandum," Tuesday, January 31. Plumer adds a note 
 to the effect that the real reason why the senators from the Southern 
 States desired the prohibition of the foreign importation of slaves into 
 Louisiana, was that such action would raise the price of their own slaves 
 in the market, and give them a chance to get rid of dangerous slaves. 
 
 39 John Quincy Adams, Memoirs, I, 293 (January 31). 
 
 40 Plumer, "Memorandum," Wednesday, February 1. Cf. John Quincy 
 Adams, Memoirs, I, 293-294, for February 1, 
 
 ^i Annals of Congress, 8 Cong., 1 Sess. (1803-1804), 244; Plumer, 
 "Memorandum," Wednesday, Februarv 1; John Quincy Adams, Memoirs, 
 I, 293-294. 
 
Debate in Senate on the Louisiana, Government BUI 121 
 
 The slavery question having been settled for the time being, 
 the Senate turned its attention to other provisions of the Louis- 
 iana Government Bill. Anderson moved to strike out the eighth 
 section which concerned the government of the upper district, 
 known specifically as the District of Louisiana.*^ 
 
 Jackson argued against the establishment of a regular gov- 
 ernment and the opening of Upper Louisiana to settlement 
 because it would destroy the western states. It was too soon to 
 settle Upper Louisiana. The placing of large uncultivated tracts 
 on sale would open the way for bribery as it had done in Georgia, 
 where he had been offered half a million acres to keep still, an 
 offer he had refused.*^ Not only would the value of the lands 
 be greatly lowered by the settlement of Louisiana but a separa- 
 tion of the Union would result. Worthington of Ohio answered 
 that the western states would not separate unless the eastern 
 states by their conduct rendered it absolutely necessary.^* 
 
 The debate on striking out the eighth section of the bill 
 continued. The principal provisions of this section, as now 
 amended, pertained to the trapsfer of the form of government 
 of Upper Louisiana which existed previous to the cession to 
 one under the direction of the United States Government. This 
 district was to retain its name and government except that the 
 executive and judicial powers of the former government should 
 be exercised by a governor, appointed by the President. The 
 
 42 Adams, Memoirs, I, 294, under date of February 1. No mention of 
 Anderson's motion is made in the Annals of Congress, nor does Plumer 
 state the exact question which came up but his report of a debate following 
 the passage of the amendment on the slave trade corroborates Mr. Adams's 
 statement. 
 
 43 In 1796 Jactson had been the leader of the "Anti- Yazoo Party" in 
 the Georgia house of representatives. Jackson's reference to his own 
 honesty brought forth the rather sarcastic rejoinder from Cocke: "I am 
 glad Georgia has one uncorrupt man, and I rejoice that he is a senator. 
 I trust we may have many such in the nation. ' ' 
 
 44 Plumer, "Memorandum," Wednesday, February 1; John Quiney 
 Adams, Memoirs, I, 294, February 2 [Louisiana Government Bill] "Debate 
 until four o 'clock, and the question not taken. ' ' 
 
122 Constitutional History of the Louisiana Purchase 
 
 powers of the former commandants of posts or districts were 
 to be vested in civil officers, to be appointed by the President in 
 the recess of the Senate, but at the next meeting thereof to be 
 nominated for their advice and consent. Salaries for these 
 officers were provided for in the bill.*^ 
 
 The question now before the Senate allowed free expression 
 of theories as to the government of acquired territory. Abstract 
 theories in general, expediency, treaty rights and obligations, 
 and constitutional restrictions were all enunciated. The estab- 
 lishment of an arbitrary government in order to prevent the 
 settlement of Louisiana was opposed by Hillhouse. He con- 
 tended that under the treaty this could not be done, for much of 
 the land had been granted to Spaniards, and they must be given 
 such a government as they could live under; otherwise they 
 would not be protected in the enjoyment of their rights as stipu- 
 lated in the treaty. A practical government was necessary, not 
 one like that of the United States, with which the people of the 
 territory were unacquainted. Nor would a military form do, 
 for tliat would be too arbitrarj'-. Trial by jury ought not to be 
 extended to the inhabitants until they were able to express their 
 desire for it by their own legislature, and to make laws regulat- 
 ing that form of trial. 
 
 John Smith considered a military government at variance 
 not only with the third article of the treaty but also with the 
 letter and spirit of the Constitution. Furthermore, now that the 
 country was ours it would be impossible, by any law that could 
 be passed, to prevent people from emigrating and settling there. 
 Cocke believed the people of the territory would be more satis- 
 fied with their old government than with a new one, even though 
 the latter might, theoretically, be better. He was in favor of 
 allowing them their old laws and customs with the addition, 
 however, of trial by jury. Boldness and resolution were neces- 
 
 *5 Annals of Congress, 8 Cong., 1 Sess. (1803-1804), 245. 
 
Debate in Senate on the Louisiana Government Bill 123 
 
 sary in the government of the inhabitants. **Tell that people 
 you shall have justice, but you shall obey the laws," represents 
 Cocke's stand in the matter. The people, he said, were not so 
 ignorant as senators considered them to be. Jackson, as before, 
 opposed western settlement because of the resulting depreciation 
 of public lands already held. He never wished to see our people 
 go beyond the Mississippi. Anderson bluntly described the 
 eighth section as a military despotism ; unconstitutional ; opposed 
 to the spirit and genius of our country. The only power to 
 legislate for the new country was derived from the Constitution 
 and that required the grant of a republican form of government 
 and no other. Even though this injured his own state, Tennessee, 
 and all the western states, yet a constitutional government must 
 be established. According to Anderson, there were about eight 
 thousand inhabitants in Upper Louisiana, more than two-thirds 
 of whom were Americans, most of them emigrants from Virginia, 
 who understood and would demand their rights. Dayton wanted 
 to know in what part of the Constitution Mr. Anderson found 
 any authority to legislate for Upper Louisiana. He denied that 
 any such authority was granted by the Constitution. Going 
 beyond the Constitution he said, "We derive our power and 
 right from the nature of government. That Country is a pur-, 
 chased territory and we may govern it as a conquered one. ' ' To 
 Dayton the only safe government to establish in Upper Louis- 
 iana was a military one. He hoped the settlement of that country 
 might be prevented forever. If settled it would separate from 
 the Union, form a new empire and become the enemy of the 
 United States. Dayton then alluded to a favorite proposal of 
 the time when he said he believed the Indians on the eastern side 
 of the Mississippi could be induced to move to the other side.*® 
 He favored the retention of the eighth section of the bill. 
 
 *e See Miss Abel, * ' History of Events resulting in Indian Consolidation 
 West of the Mississippi," in American Historical Association, Annual 
 Beport, 1906, I, 249- Miss Abel did not use Plumer's "Memorandum." 
 
124 Constitutio'iial History of the Louisiatia Purchase 
 
 The distinction, under the Constitution, between states and 
 territories was brought out by Wright, another advocate of the 
 eighth section. Alluding to the opposition of the section on con- 
 stitutional grounds, "Wright claimed that while the Constitution 
 required that the governments of the states should be republican, 
 this was not true of territories. He added that to extend jury 
 trial to that country would, in reality, be a denial of justice 
 because the people lived too remote from each other to derive 
 any benefit from the jury system. 
 
 A rather new and novel interpretation of republican govern- 
 ment was laid down by Samuel Smith who considered the eighth 
 section of the bill republican in principle, Congress being the 
 people's legislators and the commandants only the agents of 
 Congress. This view certainly would have found little favor 
 in colonial times, substituting Parliament for Congress and the 
 American colonists for the inhabitants of Upper Louisiana. It 
 had been essentialh^ the British point of view and one bitterly 
 opposed by the colonists. Theory and practice could thus vary 
 greatly in the space of a few short years, according as the parties 
 to the action shifted. 
 
 Pickering considered it an error to apply the Constitution to 
 Upper Louisiana: it did not extend there. The Senate was 
 bound, however, by the treaty to extend protection to the people 
 of that country and secure to them their rights and privileges. 
 He held that they must be considered and governed as a colony. 
 Once more Pickering advanced the futility of attempts to pre- 
 vent settlement of the new country by legislation: if the people 
 found it to their interest to settle it, prohibition would be 
 unavailing. 
 
 Pickering's statements are interesting to us as we look back 
 over the rapid expansion of the United States. Not yet is it 
 settled in the minds of scholars whether, theoretically, the Con- 
 stitution extends to the territories or not, although there is little 
 
Debate in Setiate oii the Lomsiaiia Government Bill 125 
 
 doubt that they are governed as colonies. The utter futility of 
 attempting to prevent settlement by legislation has been seen 
 time and again. Interest has predominated and the resistless 
 tide of American expansion has moved westward, despite treaties 
 with Indians to the contrary, and despite Spanish and Mexican 
 attempts to stem it. "When one bird flies and goes ahead, com- 
 monly more will follow," w£is the picturesque statement of one 
 of the Indian chiefs in the early days of the Republic in his 
 complaint to the United States Government against American 
 encroachment on the lands of his tribe, in violation of treaty 
 agreements. The tide might be temporarily halted but it found 
 its way around, if not through, the immediate barrier, and 
 moved onward- 
 After a few more brief remarks for and against the eighth 
 section, the question was taken and the section struck out.*^ 
 
 The section providing for the government of Upper Louisiana 
 having been struck out, the way was open for further legislation 
 and discussion on that point; and accordingly the Senate took 
 the matter up on February 3. Jackson opposed the establish- 
 ment of a civil government in that country because of the pro- 
 posed plan of the Government to induce the Indians to move 
 across the Mississippi, exchanging their present lands for lands 
 in Upper Louisiana. He maintained that the Indians would 
 already have moved there if the Spaniards had not prevented 
 them. The establishment of a civil government would lead to 
 settlement by whites and, as a result, to expensive and dangerous 
 Indian wars. 
 
 Nicholas expressed the hope that Upper Louisiana would not 
 for many years be admitted as a state or states: New Orleans, 
 
 *7 Plumer, ' ' Memorandum, ' ' Thursday, February 2, Cf . John Quincy 
 Adams, Memoirs, I, 294, February 2: ''The debate on Mr. Anderson's 
 motion was continued this day in Senate until four o'clock. The eighth 
 section was struck out ; yeas sixteen, nays nine. ' ' For the vote, see Annals 
 of Congress, 8 Cong., 1 Sess. (1803-1804), 245. 
 
126 Co}istitutio')ial History of the Louisiatia Purcluise 
 
 perhaps, must soon be admitted as such. Jackson then brought 
 the question to an issue by moving to annex Upper Louisiana to 
 the Indiana Territory. Breckinridge immediately agreed. Hill- 
 house, however, pointed to difficulties in effecting an immediate 
 change; namely, the difference in governments, laws, customs, 
 manners, and habits of the countries. Samuel Smith approved 
 the measure as a means of lessening the number of officers 
 required and, consequently, the expense; and also because it 
 would stop slavery there.^^ Wright agreed to unite the two 
 territories governmentally but not territorially. Hillhouse 
 desired to know how the separate rights of each territory could 
 be guaranteed. Who was to legislate for them? Were they to 
 be governed by different laws ? Such a union, he thought, would 
 make one of the territories a mere colonj" of the other. Wright 
 answered part of the query by saying that the territories must 
 be governed by different laws. Wliile expressing a willingness 
 to accord with the majority, John Smith preferred to have a 
 part of Upper Louisiana annexed to the Mississippi Territory. 
 While approving, Venable saw a difficulty in the fact that it 
 was not yet settled that Louisiana was a part of the United 
 States. He would not therefore join the two territories together 
 but would extend the authority of the government of the Indiana 
 Territory to the territory of Upper Louisiana.'*^ 
 
 On February 7, the debate on the Louisiana Government Bill 
 was over the disqualification and exclusion of people of color 
 from serving on juries. It was decided to exclude them.^° 
 
 4S By provision of the Ordinance of 1787. 
 
 49 Plumer, ' ' Memorandum, ' ' Friday, February 3, Cf . John Quincy 
 Adams, Memoirs, I, 294, February 3: "The debate on Mr. Anderson's 
 motion was renewed, and General Jackson proposed, by way of substitute, 
 that the government of Upper Louisiana should be annexed to the Indiana 
 Territory. The question was not finally taken, but will doubtless finally 
 prevail. ' ' 
 
 50 Plumer, "Memorandum," Tuesday, February 7. Plumer adds. 
 "Democrats in general voted in favor of exclusion." See Annals of 
 Congress, 8 Cong., 1 Sess. (1803-1804), 247-248; John Quincy Adams, 
 Memoirs, I, 294, February 7. 
 
Debate in Senate on the Louisiana Government Bill 127 
 
 The same bill was before the Senate the next day and the 
 amendment to annex Upper Louisiana to Indiana was with- 
 drawn. Nicholas then offered an amendment authorizing the 
 officers of the Indiana Territory to govern the Upper District 
 of Louisiana and establishing the existing laws of Louisiana in 
 that district. This was adopted and the act as amended was 
 ordered to be printed. The principles of the bill had been settled 
 by the Democratic senators in caucus on the preceding night, 
 according to Plumer, and they agreed to it in the Senate without 
 debate.^^ 
 
 The Senate discussion of the Breckinridge Bill was rapidly 
 drawing to a close. An amendment was offered, February 10, 
 by Anderson, providing for the election of representatives when 
 a certain number (left blank) of free white male inhabitants 
 had been reached. The number of representatives was to 
 increase in proportion to the increase of population; but a limit 
 was to be set. The manner of electing the legislative council 
 by the representatives and the President was also stipulated. 
 Qualifications and terms of office for each body were laid down.^^ 
 The amendment failed, receiving only five votes in its favor.^^ 
 
 Three days later, February 13, another attempt at amend- 
 ment was made. It was proposed to change the fourth section, 
 so as to provide for the laying off of the territory by the governor 
 into twenty-four districts, from each of which the free male 
 householders were annually to elect one person to compose the 
 legislative council. This amendment failed by the narrow mar- 
 gin of one vote, the final count being thirteen yeas to thirteen 
 najs. The bill then passed to the third reading.^* 
 
 51 Plumer, "Memorandum," Wednesday, February 8. Cf. Annals of 
 Congress, 8 Cong., 1 Sess. (1803-1804), 248. John Quincy Adams, Memoirs 
 of this date have no information on the subject. 
 
 52 Annals of Congress, 8 Cong., 1 Sess. (1803-1804), 250-251. 
 
 53 Ihid., 251. 
 
 54 76wZ., 251-252; John Quincy Adams, Memoirs, I, 294-295. 
 
128 ConstiUdional History of the Louisiana Purchase 
 
 While the Senate was busy on the third reading the question 
 of salaries for the officers of the territorial government arose. 
 There was quite a divergence of opinion over the amount to be 
 paid. On the salary of the governor of Orleans Territory, Jack- 
 son, Dayton, Samuel Smith and Logan spoke for $8000 per 
 annum, but only seven voted for it. Breckinridge and John 
 Smith favored $6000. Twelve senators voted for this sum. 
 Olcott, Franklin and Cocke argued for $5000, and eighteen votes 
 being cast in favor of it, the motion was carried. The salary of 
 secretary was set at $2000; that of the three judges at $2000 
 each ; district judge, $2000 ; attorney, $600, and marshall, $200. 
 The members of the legislative council were each to have four 
 dollars per diem while attending the council.^^ 
 
 One final attempt to amend the bill with regard to the slave 
 trade was made in a motion to strike out of the tenth section, 
 the words : ' ' And no slave or slaves shall directly or indirectly, 
 be introduced into said Territory except by a citizen of the 
 United States removing into said Territory for actual settle- 
 ment, and being at the time of such removal hona fide owner 
 of such slave or slaves." The amendment failed.^® Two other 
 proposed amendments to the same section suffered the same fate. 
 The last proposed favored the extension of the prohibition of 
 the importation of slaves into Louisiana "from any State 
 authorizing the importation of slaves from anj'^ foreign port or 
 place."" 
 
 This attempted amendment was the cause o£ a- further 
 enunciation of opinion on the slavery question. Stone of North 
 
 53 Plumer, "Memorandum," Thursday, February 16. During the course 
 of this debate, Plumer says that Jackson and Samuel Smith observed * ' That 
 the people must be governed more by pomp, parade, and shew than by 
 reason — that splendid retinue and armed men are more convincing than 
 arguments." Cf. Adams, Memoirs, I, 295, February 16, "In Senate they 
 were engaged in the Louisiana bill. ' ' 
 
 5e Annals of Congress, 8 Cong., 1 Sess. (1803-1804), 255. 
 
 57 Ibid. 
 
Debate in Senate on the Louisiana Government Bill 129 
 
 Carolina summed up the position of the slaveholder and his 
 rights in language which might have been quoted verbatim in 
 the majority decision in the Dred Scott case. "Slaves," he 
 held, "are property. The rights of property are by the Consti- 
 tution guaranteed and why should the holders of this kind of 
 property be prohibited from sending and selling their slaves in 
 Louisiana?" Maclay said that the country was purchased as an 
 outlet for the United States, and to admit slaves there would 
 defeat that object. Jackson hinted at disastrous results if South 
 Carolina were prohibited from sending slaves into Louisiana 
 because she imported them from Africa. To put it plainly, South 
 Carolina, if offended, would reject the Twelfth Amendment of 
 the Constitution, then under consideration, and her rejection 
 would prevent its ratification. Jackson also defended the plan 
 of the Administration to exchange lands in Louisiana with, the 
 Indians for their lands on the eastern side of the Mississippi. 
 He had been assured by the President that this was a favorite 
 measure of his; furthermore, sixteen of the Cherokee chiefs had 
 already consented to make the exchange.^* 
 
 The Louisiana Government Bill was finally passed on Feb- 
 ruary 18, 1804, with only five votes — those of Adams, Hillhouse, 
 Olcott, Plumer, and Stone, all New Englanders except Stone — 
 against it.^® The last speech in opposition to the bill was that 
 of John Quincy Adams, who, true to his principles throughout, 
 based his opposition on the ground that a government was being 
 formed for a people without their consent; a principle contrary 
 to republican government in which all power is derived from the 
 people. 
 
 The people of that country [Louisiana] have given no power or author- 
 ity to us to legislate for them. The people of the United States could 
 
 58 Plumer, "Memorandum," Friday, February 17. 
 
 59 Annals of Congress, 8 Cong., 1 Sess. (1803-1804), 256. The passage 
 of the bill was reported in the National Intelligencer, and Washington 
 Advertiser, February 22, 1804. 
 
130 Constitutional History of the Louisiaim Purchase 
 
 give us none, because they had none themselves. The treaty has given us 
 none, because they were not parties to it — it was made without their 
 knowledge. To pass this bill is an encroachment on their rights — it's a 
 commencement of assured power — it's establishing a precedent for after 
 
 Congresses destructive of the essential principles of genuine liberty 
 
 This bill contains arbitrary principles — principles repugnant to our Con- 
 stitution. The Legislative Council are to be appointed by the Governor, 
 who is a creature of the President's — not elected by the people. 
 
 The judges are to legislate — make laws and expound them — this is the 
 essence of tyranny. 
 
 In the other territorial governments, even in the departure from liberty, 
 there is a reverence for it — for it provides that Avhen its inhabitants are 
 increased to a certain number they shall elect a representative. 
 
 This bin provides that the officers shall be appointed by the President 
 alone in the recess of the Senate — Why this departure from the Constitu- 
 tion. 
 
 The Judicial officers are to be appointed for a term of years only, and 
 3'et the bill is not limited. The constitutional tenure for judicial officers is 
 during good heluxviorfi^ 
 
 The proper procedure in such a case is next laid- down \iy 
 Adams : 
 
 The first thing Congress ought to have done in relation to that country, 
 should have been to propose an amendment to the Constitution, to the sev- 
 eral States to authorize Congress to receive that Country into the Union. 
 We ought to have applied to the inhabitants of Louisiana to recognize 
 our right to govern them. This we ought to have done, and. there is no 
 doubt that the United States and that territory would have given the 
 authority before the next session. 
 
 Adams advanced objections to legislating for the territory'' 
 because of ignorance of conditions there. The bill itself con- 
 tained certain incongruous articles. The governor's appointing 
 and proroguing the council he branded as tyranny. The people 
 were not ready for trial hy ]\x.y\. The importance of precedent 
 
 00 This was not, however, the interpretation adopted later by the 
 Supreme Court. In Airverican Insurance Co. vs. Canter (I Peters, 546), it 
 was held that courts in the territory of Florida were legislative courts 
 created by Congress and did not come under the restrictions of the third 
 article of the Constitution. It was not required, therefore, that the judges 
 presiding over those courts should hold office during good behavior. 
 
Debate in Senate on the Louisiana Government Bill 131 
 
 was not overlooked. ''This," he argued, *'is a Colonial system 
 of government. It is the first the United States have established. 
 It is a bad precedent — the U. S. in time will have manj'^ colonies 
 — precedents are therefore important."*^ 
 
 Adams's plea for the republican theory of government was 
 unavailing as against the doctrine of practical expediency. For 
 good or ill, the latter policy was adopted, to serve as the prece- 
 dent, as Adams said it would, on later occasions. So far as 
 Louisiana was concerned it only remained to see what action the 
 House of Representatives would take. 
 
 61 Plumer, "Memorandum," Saturday, February 18. On tliis important 
 speech John Quiney Adams in his Memoirs, I, 295, merely states: "I spoke 
 against it, alone, and was very shortly answered by Mr. Wright, alone. 
 On the question, the yeas were twenty, the nays five. Messrs. Dayton, Pick- 
 ering, Tracy, Wells, and White absent. Mr, Stone alone of the major party 
 voted against the bill, and thus terminates the introductory system for the 
 government of Louisiana. I have thought it placed upon wrong founda- 
 tions. It is for time to show the result. ' ' 
 
CHAPTER VIII 
 THE LOUISIANA GOVERNMENT BILL IN THE HOUSE 
 
 Closely connected with the problem of a frame of government 
 for Louisiana, bills were introduced in the House for the regula- 
 tion of affairs in the newly-acquired territory-. During the 
 debate on them many novel interpretations of the Constitution 
 were advanced. It was proposed by one of these bills to allow 
 all citizens of the United States and all inhabitants of Louisiana 
 who had been resident there on the thirtieth of April, 1803, on 
 taking an oath of allegiance to the United States, to obtain 
 registry for their vessels. Varnum of Massachusetts, George W. 
 Campbell of Tennessee, Bedinger of Kentucky, Dennis of Mary- 
 land, Sloan of New Jersey, and Holland of North Carolina 
 supported this measure, while Nicholson of INIarj'land, Dana of 
 Connecticut, and Hastings of Massachusetts opposed it. Those 
 favoring the bill cited the rights and privileges guaranteed to 
 the inhabitants of the territory under the third article of the 
 treaty, which included the ''enjoyment of their liberty, property 
 and religion. ' ' Vessels being propertj^ it was argued, all rights 
 attached to them were guaranteed to all those who were inhab- 
 itants at the time of cession, without discrimination. To allow 
 residents of five years standing to register their vessels, while 
 those who had resided in the territory a shorter period were 
 prohibited — a distinction which had been suggested — would be 
 an invasion of rights of the latter. The treaty was the supreme 
 law of the land, and Congress could not violate it. To do so 
 would not only cause dissatisfaction in the territory but might 
 afford a pretext on the part of the. ceding power to obstruct the 
 execution of the treaty.^ 
 
 ■^Annals of Congress, 8 Cong., 1 Sess. (1803-1804), 977-978. 
 
Louisiana Government Bill in the House 133 
 
 The opponents of the measure stated that Congress was 
 authorized by the Constitution to fix one uniform rule of natural- 
 ization, and that Congress had passed a law requiring five years' 
 residence previous to the naturalization of an alien ;^ further- 
 more, by the revenue laws of the United States only citizens were 
 permitted to register their vessels.^ The extension of this privi- 
 lege to all the inhabitants of Louisiana would be to grant them 
 an unconstitutional preference over the inhabitants of the 
 United States who were not citizens. "When the inhabitants of 
 the ceded territory should be admitted into the Union, they 
 would be entitled to all the rights of citizens of the United States ; 
 until that time ''they must be viewed in the light of colonists, 
 subject to the discretionary government of the United States." 
 It would be unjust to extend priv^ileges to the inhabitants of 
 Louisiana which were denied by law to some of the citizens of 
 the United States. A citizen could not "naturalize" a foreign 
 bottom, yet this measure would permit the people of Louisiana 
 to "naturalize" their ships, which must be considered foreign 
 bottoms. The claim that the right must be granted because of 
 a treaty stipulation, was a reason for the rejection of the motion 
 because, if agreed to, it would establish the principle that the 
 President and Senate in the exercise of the treaty-making power, 
 could make citizens of as many foreigners as they pleased.* 
 
 To this last statement it was replied that, 
 
 the treaty-making power was unquestionably under the constitutional con- 
 trol of Congress, who might, or might not, carry a treaty into effect; but 
 that, after having carried it generally into effect, as had been the case with 
 the Louisiana Convention, it became the supreme law of the, land, and a 
 discretion ceased to exist in the Government to fulfil it. 
 
 The motion was agreed to by the House by a vote of fifty-five 
 to forty-eight.^ 
 
 2 Act approved April 2, 1802; Laws of U. States, III, 475-i78. 
 
 3 Act of December 31, 1792; Laws of U. States, II, 313; Act of February 
 18, 1793, ibid., 332. 
 
 * Annals of Congress, 8 Cong., 1 Sess. (1803-1804), 978. 
 5 Ibid., 979. 
 
134 Constitutional History of the Louisiana Purchase 
 
 Ou February 20, 1804, a message from the Senate informed 
 the House that the Senate had passed a bill entitled, ''An act 
 erecting Louisiana into two Territories, and providing for the 
 temporarj^ government thereof"; to which the concurrence of 
 the House was desired.^ 
 
 On the same day a memorial from the merchants of New 
 Orleans was read begging for relief from the existing state of 
 affairs. They asked for the extension to them of the laws of 
 the United States and for proper documents which would enable 
 them to use their ships. This memorial was referred to the 
 Committee of the Whole. '^ Two days later the House took up 
 the discussion of a bill from the Senate providing for the record- 
 ing, registering, and enrolling of ships, or vessels in the District 
 of Orleans. By the bill, all who had been inhabitants of Louis- 
 iana on the thirtieth of April, 1803, and all citizens of the United 
 States residing therein, were authorized to register their vessels. 
 A motion to strike out the part of the provision extending the 
 right of registry to citizens of the United States was made by 
 Roger Griswold, and caused considerable debate. Those advo- 
 cating the amendment did not consider it just to extend sucli a 
 right to citizens of the United States in the ceded territory while 
 the same right was refused to citizens in the Atlantic states. 
 Citizens of Louisiana would be enabled to "naturalize" foreign 
 bottoms which they had purchased and to trade with them in 
 the ports of the United States as well as in those of Louisiana, 
 thus affecting the rights of shipowners who had obtained regis- 
 ters under the existing navigation system. The opponents of 
 the amendment declared that citizens of the United States in 
 general ought to be placed on an equal footing with the inhab- 
 itants of Louisiana; otherwise great dissatisfaction would result.^ 
 
 <i Annals of Congress, 8 Cong., 1 Sess. (1803-1804), 1038. 
 
 7 Ibid. 
 
 8 Ihid., 1044-1046. 
 
Louisiana Government Bill in the House 135 
 
 The amendment was lost, and the Senate bill was passed on 
 February 23.» 
 
 The House next proceeded to take up the bill from the 
 Senate making plans for the erection of Louisiana into two 
 territories and providing for their government.^" The fourth 
 section, which provided for the legislative powers, aroused imme- 
 diate opposition. Under this section, the legislative powers were 
 to be vested in the governor and. thirteen persons of the territory, 
 to be called the legislative council, who were to be appointed 
 annually by the President. Certain qualifications as to residence 
 and the holding of real estate were to be required. The gover- 
 nor, with the advice and consent of the council, was given power 
 to alter, modify or repeal the laws in force at the commencement 
 of this act. The legislative powers were to extend also to all 
 rightful powers of legislation, with the usual restrictions requir- 
 ing consistency with the Constitution and laws of the United 
 States, and guaranteeing religious freedom. The governor must 
 have the laws published throughout the territorj"- and report 
 them to the President, to be laid before Congress for approval 
 or disapproval. The governor and legislative council were to 
 have no power over the primary disposal of the soil ; nor could 
 they tax the lands of the United States, nor interfere with claims 
 to land within the territory. The governor could convene or 
 prorogue the legislative council whenever he should deem it 
 expedient. It was also his duty to keep the President informed 
 of matters pertaining to the inhabitants of the territory.^^ 
 
 Leib and Gregg, both from Pennsylvania, were opposed to 
 the power granted to the govemor,^^ Varnum of Massachusetts 
 believed that provision ought to be made for the election of a 
 
 9 Ibid., 1048-1049. 
 
 10 For the Senate debate see the preceding chapter. 
 
 1^ Annals of Congress, 8 Cong., 1 Sess. (1803-1804), 1054. 
 ^2 Ibid., 1055. 
 
136 ConstiUitimial History of the Louisvatm Purchase 
 
 legislative body by the people. Elliott of Vermont thought that 
 the section under consideration was not consistent with the spirit 
 of the Constitution but that a small amendment might make it 
 so." Eustis of Massachusetts declared it to be very difficult 
 to form a system of government for the territory in question, 
 conformable with the ideas of civil liberty under the Constitu- 
 tion. Quoting the third article of the treaty he said that the 
 real difficulty lay in determining whether this article had or had 
 not admitted the people of Louisiana into the Union with all the 
 rights of citizens of the United States. He thought that the 
 people of the territory were unprepared for exercising electoral 
 power, and the first object of the Government would be to pro- 
 tect them in their rights. It was necessary that the Government 
 of the United States should assert its authority until the admis- 
 sion of the territory into the Union admitted the people to the 
 enjoyment of state rights. The government laid down in the 
 bill Eustis considered as a new thing in the United States, but 
 so were the people of the country different from the citizens of 
 the United States. He continued with the statement: 
 
 I am one of those who believe that the principles of civU liberty cannot 
 suddenly be engrafted on a people accustomed to a. regimen of a directly 
 opposite hue. The approach of such a people to liberty must be gradual. 
 I believe them at present totally unqualified to exercise it. ... I consider 
 them as standing in nearly the same relation to us as if they Tvere a, con- 
 quered country. By the treaty they are entitled to the enjoyment of all 
 the rights advantages and immunities of citizens of the United States, and 
 to be incorporated into the Union as soon as possible according to the 
 principles of the Federal Constitution — but can they be admitted now? 
 Are they at this minute so admitted? If not, they are not entitled to these 
 rights; but if they were, I should doubt the propriety of extending them 
 to them. 14 
 
 Lucas of Pennsylvania agreed with Eustis,^^ while Lyon of 
 Kentucky thought the people should have at least a certain 
 
 ■i-^ Annals of Congress, 8 Cong., 1 Sess. (1803-1804), 1056. 
 •i.4.lhid., 1057-1059. 
 15 Ibid., 1061. 
 
Louisiana Government Bill in the House 137 
 
 amount of participation in government." Speaker Macon of 
 North Carolina moved that the fourth section be struck out. 
 He was opposed to the establishment of a species of government 
 unknown to the laws of the United States. Macon recognized 
 three descriptions of government in the United States: that of 
 the Union, that of the states, and territorial governments. In his 
 estimation, the territorial government established by the Ordi- 
 nance of 1787 was the best adapted to the circumstances of the 
 people of Louisiana, and he believed that it could be modified 
 so as best to promote their convenience.^^ 
 
 George W. Campbell of Tennessee, bitterly denounced the 
 form of government contemplated. He declared that: 
 
 It really establishes a complete despotism, that it does not evince a 
 single trait of liberty; that it does not confer one single right to which 
 they are entitled under the treaty; that it does not extend to them the 
 benefits of the Federal Constitution or declare when, hereafter, they shall 
 receive them, I believe it will, on investigation, be found difficult to sep- 
 arate liberty from the right of self-government, and hence arises the ques- 
 tion, now to be decided, whether we shall countenance the principle of 
 government by despotic systems of government, or support the principle 
 that they are entitled to be governed by laws- made by themselves, and to 
 expect that they shall, in due time, receive all the benefits of citizens of the 
 United States under the Constitution, 
 
 He was opposed to the establishment of a despotic form of 
 government in Louisiana and favored a territorial government 
 similar to that of Mississippi Territory,^^ 
 
 Another opponent of the measure was Jackson of Virginia. 
 He held that since the guarantee of incorporation of the inhab- 
 itants of Louisiana into the Union could be made under the 
 Constitution, Congress was bound to admit them to the rights 
 guaranteed by the treaty. Both policy and moral obligation 
 dictated the establishment of a system of government different 
 from that contained in this section of the bill, Holland of North 
 
 16 Ibid., 1059-1060, 
 
 nibid., 1062, 
 
 18 Ibid., 1063-1067. 
 
138 Constitutional History of the Louisiana Purchase 
 
 Carolina, on the other hand, said the object of the bill was to 
 extend the laws of the United States over Louisiana, not to enable 
 the people of Louisiana to make laws. The people there were 
 not prepared for self-governnient. Sloan of New Jersey was 
 desirous of allowing the people of Louisiana the elective fran- 
 chise, which he considered **not only as their inherent and 
 inalienable right, but as a right we are bound to give them to 
 fulfill the treaty of cession." Smilie of Pennsylvania favored 
 giving the people of Louisiana more of a voice in their govern- 
 ment, "of bestowing every blessing consistent with the pro- 
 visions of the Federal Constitution," Boyle of Kentucky was 
 against granting such great powers to the President, for he 
 considered it to be a dangerous precedent. Reverting to his- 
 tory, he compared the American objection to the Declaratory 
 Act of Great Britain with the present bill.^^ 
 
 In the face of so general an objection to this section of the 
 bill it was clear that it could not pass. By a vote of eighty to 
 fifteen it was struck out.^" A substitute was offered by George 
 W. Campbell. This provided that the governor and judges 
 should adopt and publish in the territory such laws of the orig- 
 inal states as were suitable to the needs of the territorj'. They 
 could also make laws, which of course must be submitted to 
 Congress. Such laws, subject to the approval of Congress, were 
 to be in force until the organization of a territorial general 
 assembly, which could alter or repeal them. The governor and 
 judges were to divide the territory into counties in which the 
 governor should appoint the necessary officers. After the organ- 
 ization of the general assembly, the powers and duties of the 
 magistrates and other civil officers were to be regulated and 
 defined by the assembly. During the continuance of the tempo- 
 rary government, all magistrates not otherwise provided for 
 were to be appointed by the governor. 
 
 i9A7inals of Congress, 8 Cong., 1 Sess. (1803-1804), 1069-1076. 
 20 Ibid., 1078. 
 
Louisiana Government Bill in the House 139 
 
 The general assembly, or legislature, was to consist of a 
 legislative council and a house of representatives, the latter to 
 consist of members chosen from the counties. Only free white 
 males, owners of two hundred acres of land, were eligible to 
 election as representatives, certain residence qualifications being 
 also required. No property qualification was required of voters, 
 nor were the words "white" and *'male" used, although perhaps 
 understood. Representatives were to serve for one year. The 
 number of members of the legislative council was left blank. 
 Their term was one year. The governor was to select them from 
 a list submitted by the representatives. The general assembly 
 was to be the law-making body. All laws had to receive the 
 governor's signature. Restrictions of power over the primary 
 disposal of the soil, taxing the lands of the United States, and 
 interference with claims to land, were made.-^ 
 
 The fifth section of the Senate bill for the government of 
 Louisiana was the next one to receive attention. This section 
 stipulated that, ' ' The judicial power shall be vested in a superior 
 court, and in such inferior courts, and justices of the peace, as 
 the Legislature of the Territory may, from time to time, estab- 
 lish." All judges and justices were to hold office for the term' 
 of four years. The superior court was to consist of three judges, 
 any one of whom should constitute a court. They were to have 
 jurisdiction in all criminal cases, and exclusive jurisdiction in 
 capital ones ; and original and appellate jurisdiction in all civil 
 cases of the value of one Iwindred dollars. An important clause 
 read: ''In all criminal prosecutions which are capital, the trial 
 shall be by jury of twelve good and lawful men of the vicinage ; 
 and in all cases criminal and civil, in the superior court, trial 
 shall be by a jury, if either of the parties require it." Then 
 follows another provision important in its bearing on territorial 
 government and the power of Congress thereover. Once more 
 
 21 Ihid., 1078-1079. For further action on this section, see below. 
 
140 Constitutional History of the Louisiana Purchase 
 
 assuming that all rights and privileges must be legislated into 
 the territories and that no part of the Constitution, by the mere 
 act of acquisition, took effect in the territory, the section pro- 
 vided that : 
 
 The inhabitants of the said Territory shall be entitled to the benefits 
 of the writ of habeas corpus; they shall be bailable, unless for capital 
 offences, where the proof shall be evident or the presumption great; and 
 no cruel and unusual punishments be inflicted.22 
 
 ' George W, Campbell moved to strike out the clause contain- 
 ing a restriction of the rights of jury trial to capital cases and 
 to insert ''the trial shall be by jury, and in all civil cases above 
 the value of twenty dollars." He claimed that in legislating 
 for Louisiana, Congress was bound by the Constitution and did 
 not have the right to establish courts in that territory on any 
 other terms than it could in any of the states. ''Whenever 
 courts were established in a Territory, they must be considered 
 as courts of the United States."-^ After quoting the Constitu- 
 tion on the right of jury trial, Campbell concluded with the 
 remark that the bill did not secure that right as contemplated 
 by that instrument.^* 
 
 The motion was lost. The report for the rest of the debate 
 is not given because at this juncture the reporter left to attend 
 the trial of impeachment of Judge Pickering in the Senate.^^ 
 However, it is noted that Campbell offered a new section of the 
 
 ^^ Annals of Congress, 8 Cong., 1 Sess. (1803-1804), 1128-1129. 
 
 23 Compare Marshall 's decision in American Insurance Co. vs. Canter, 
 I Peters, 546, where territorial courts are considered not as constitutional 
 but as legislative courts, created in virtue of the right of sovereignty exist- 
 ing in the Government, or in virtue of the power granted to Congress . to 
 make all needful rules and regulations respecting the territory of the United 
 States. A distinction between state and territorial courts was here recog- 
 nized. 
 
 2i Annals of Congress, 8 Cong., 1 Sess. (1803-1804), 1129. Cf. Callan 
 vs. Wilson, 127 U. S. 540; Hawaii vs. ManMchi, 190 U. S. 197; Dorr vs. 
 U. S., 195 U. S. 138; J. W. Garner, "The Eight of Jury Trial in the 
 Dependencies," in American Law Review, XL, 340-355. 
 
 ^5 Annals of Congress, 8 Cong., 1 Sess. (1803-1804), 1129. 
 
Louisiana Government Bill in the Honse 141 
 
 bill providing for the election of a legislature by the people of 
 Louisiana instead of a council appointed by the President as 
 provided for in the Senate bill. This amendment suffered the 
 same fate as his previous one.^* 
 
 The Senate bill which had reached the House on February 20, 
 was discussed at intervals through the early weeks of March. ^^ 
 Various were the interpretations as to the extent of the power 
 of Congress to legislate for the territories. For instance, Leib 
 of Pennsylvania moved an amendment extending to the inhab- 
 itants of Louisiana the Naturalization Act of the United States.^^ 
 Such extension was opposed by Roger Griswold, who deemed it 
 inexpedient to vest the courts of Louisiana with the power of 
 naturalization. Joseph Clay of Pennsylvania supported the 
 amendment on the ground that it extended to the inhabitants of 
 the territory the privileges promised them by the treaty. How- 
 ever, a residence of five years would be required, since the 
 privileges promised were to be received under the Constitution. 
 There was a wide difference, he declared, between naturalizing 
 the inhabitants of Louisiana, and admitting them into the Union. 
 
 The amendment failed to pass.^^ 
 
 On March 14, Sloan of New Jersey introduced an amendment 
 
 to prohibit the admission of slaves into Louisiana, both from 
 
 the United States and from foreign parts. No detailed report 
 
 on this question is given, the record containing the bare state- 
 
 26 Ibid., 1130. 
 
 27 These difficulties -were expressed by Manasseh Cutler in a letter to 
 the Eev. Dr. Dana, March 3, 1804. ''The Democrats of both Houses are 
 much perplexed about establishing a system of government in Louisiana. 
 A biU has long been before the Senate, and has at length come to the 
 House. It has been repeatedly taken up and as often laid down, without 
 making any progress.'' Governor Claiborne's letter stating the difficulties 
 of forming a government on the principles of the Constitution is referred 
 to, **His sentiments and opinions have extremely embarrassed our wor- 
 shipers of the idol of Democracy, and what is to be done in this case is 
 difficult to conjecture." Cutler and Cutler, Life, Journals and Corre- 
 spondence of jRev. Manasseh Cutler, II, 165-166. 
 
 28 Act of April 14, 1802, Laws of Z7. States, III, 475-478. 
 
 29 Annals of Congress, 8 Cong., 1 Sess. (1803-1804), 1185-1186. 
 
142 Constitutional History of the Louisiaim Purchase 
 
 ment that "Mr. S. concisely stated his reasons in favor of this 
 provision, when the question was taken, and the amendment 
 agreed to — ayes 40, noes 36. ' '^** 
 
 The fourth section of the bill was again taken up on March 
 14, when Early of Georgia moved a substitute for this section.'^ 
 On the next day Early's substitute was agreed to. The House 
 then voted to strike out the fourth section of the original bill and 
 insert the new section. By it, the legislative power was to be 
 vested in the governor and thirteen persons of the territory, to 
 be called the legislative council. Members of the council were 
 to be appointed by the President of the United States from 
 holders of real estate, resident at least one year in the territory 
 and holding no office of profit under the territory, or the United 
 States. Their term of service was set at one year. The territory 
 was to be divided into convenient counties by the legislative 
 council. After the first year members of the legislative council 
 were to be chosen annually by persons qualified to vote. Those 
 entitled to vote were: (1) Free white male persons twenty-one 
 years of age, resident in the territory on April 30, 1803, and 
 resident therein one whole year next before election, provided 
 they could produce satisfactory proof that they had taken an 
 oath of allegiance to the United States, agreeably to the Natural- 
 ization Act of April 4, 1802; (2) citizens of the United States, 
 who had become residents in the territory since April 30, or who 
 should thereafter become residents, or who had resided there a 
 year, six mouths of which previous to the election must be in the 
 district or county voted in. 
 
 The legislative council was to make all necessary regulations 
 concerning elections. If no one should be elected, the governor 
 and council were to appoint a person to serve for the district. 
 The governor, with the consent of the legislative council, could 
 
 30 Ibid. The lack of information on this particular topic in the House 
 renders all the more valuable Plumer's report of the Senate debate on the 
 slave question. 
 
 SI Annals of Congress, 8 Cong., 1 Sess. (1803-1804), 1188. 
 
Louisiana Government Bill in the House 143 
 
 alter, modify or repeal the laws in force at the commencement 
 of the act. Their legislative powers were to extend to all right- 
 ful objects of legislation, restricted only by conformity with the 
 Constitution of the United States and the prohibition of inter- 
 ference with the religious freedom of the inhabitants. The 
 governor was to publish the laws throughout the territory and 
 also to report them to the President to be laid before Congress. 
 Restrictions of legislation over the primary disposal of soil, 
 taxing of lands of the United States, and interference of claims 
 to land were made. The governor could convene or prorogue 
 the legislative council whenever he deemed it expedient. It was 
 also to be his duty to inform the President as to the customs, 
 habits, and dispositions of the inhabitants of the territory.^^ 
 
 Certain minor changes in the bill led to conferences between 
 managers appointed by the Senate and the House for this pur- 
 pose^^ and the bill was finally passed. It was limited in duration 
 to one year from October 1 following and thence to the end of 
 the next session of Congress. The President was to appoint a 
 governor, to hold office for four years, an annual legislative 
 council, composed of inhabitants of Louisiana, and judges. The 
 principle introduced by the Senate, of withholding for the pres- 
 ent the right of suffrage from the people of Louisiana prevailed, 
 subject to the time limitation introduced in the bill by the 
 House of Representatives.^* 
 
 Whether the differences of opinion in Congress over Louis- »/ 
 iana could be sufficiently harmonized to allow the establishment 
 of a more permanent form of government for that territory was 
 a question in which Jefferson professed interest. He expressed 
 his fear that because of these differences the present government 
 would be continued another year, but hoped this would not be 
 
 32j6id., 1191-1193. 
 
 33 Ibid., 1206, 1208, 1229, 1230. 
 
 s^Ihid., 1230. 
 
144 Constitutio'nal History of the Loumaiia Purchase 
 
 the case; and that a government would be established in Louis- 
 iana capable of meeting its own emergencies.^^ 
 
 While the Breckinridge Bill was still under discussion in the 
 House, Nahum Mitchell of Massachusetts wrote an interesting 
 letter to Edward H. Robbins, in which he reviewed the whole 
 Louisiana question, and, incidentally, looked into the future 
 with more or less prophetic insight. Although possessing a great 
 deal of printed information respecting Louisiana, Mitchell said 
 he had little knowledge as to the disposition of the lands. He 
 had heard that Spain, previous to putting Louisiana into the 
 hands of France, had made grants of most of the valuable parts 
 to individuals and companies. "Whether this should prove to be 
 the case or not, Mitchell believed the intention of the Admini- 
 tration was to take no measures for the immediate settlement of 
 the country. On this matter, however, there was a difference of 
 opinion. One group, whom Mitchell considered visionary, hoped 
 to induce the Indians on the eastern side of the Mississippi to 
 exchange their land for lands across the river ; and to persuade 
 the white inhabitants on the western side to cross to the eastern. 
 Mitchell said this plan would fail because the whites would not 
 move back.^*^ 
 
 Another scheme, according to Mitchell, was to send all the 
 negro slaves from the southern states into Louisiana, as soon 
 as practicable. Again, Mitchell considered the plan visionary, 
 for he was persuaded that the New England states would sooner 
 become black than the southern states white; in other words, 
 that slavery would rather increase and extend itself all over the 
 Union, than be diminished and limited, much less extinguished. 
 He expressed surprise at the zeal with which the right to hold 
 slaves was guarded in the South. Slaves were increasing in 
 numbers faster than the whites. Then, too, South Carolina was 
 
 35 Jefferson to William Dunbar, March 13, 1804, in Jefferson, Writinas 
 (Memorial ed.), XI, 23. 
 
 3<5 See the correspondence between Jefferson and Breckinridge, above. 
 
Louisiaim Government Bill in the House 145 
 
 importing slaves, and many more were imported surreptitiously 
 against the law in other parts of the Union. Petitions from the 
 western part of the country for the admission of slaves served, 
 in Mitchell's opinion, to show the disposition of the people. 
 
 Land jobbers and speculators on the eastern side of the 
 Mississippi were in favor of preventing the settlement and sale 
 of lands in Louisiana for the present- Jackson, of Georgia, 
 whom Mitchell considered as an index to the intentions of the 
 partj^ in power, said it would be ruinous to the southern states 
 to open the sale of lands of that country and it must not be 
 done." Mitchell did not doubt that it would be postponed for 
 the present. Many of the politicians of the South also opposed 
 the settlement of Louisiana, fearing it would draw off inhab- 
 itants of their states. Many others, on the other hand, were 
 anxious for an immediate settlement, because of the opportunity 
 for speculation. Mitchell thought the purchase a foolish and 
 unconstitutional bargain, which instead of a source of revenue 
 would become a drain on the population and money of the 
 Union ; and would create no end of trouble. 
 
 Mitchell then turned to another phase of the question in 
 
 which he showed much keener immediate insight than many of 
 
 his friends. He stated it as his sincere belief that the purchase 
 
 would have a beneficial influence on the ''Eastern and Northern 
 
 States. ' ' On this point he wrote : 
 
 The "Western section of this Union have hitherto been altogether under 
 the eontroul of Virginia and the Carolinas, because to them thev looked 
 for aid and protection, while they were the frontier of the U. States. Now 
 while they are no longer a frontier people and all fears for their security, 
 which is the first object, are at an end, they will no longer consider their 
 neighbours as their natural protectors; and vrill be left in future to attend 
 to their private interest and prosperity. In viewing them in this situation 
 we shall see that their trade and intercourse wUl be altogether with the 
 commercial states. They are dependent on their neighbours for no single 
 article of life, and whatever they may receive of them will be through the 
 hands of merchants and the navigation of the Mississippi, Ohio, and other 
 
 37 Compare Jackson's speeches in the Senate on the Breckinridge Bill, 
 Chapter VII. 
 
146 Constitutional History of the Louisiana Purchase 
 
 rivers leading into it. This will render them more acquainted Avith the 
 Eastern States. Besides they are the natural competitors and rivals of 
 the Southern States in the market. While I am penning this sentence I 
 overhear several members talking of a Northern and Western coalition. 
 This language is already in vogue, and whether there will be any weight 
 in my observations on this subject, you can judge better than 1.38 
 
 The importance of a "Northern and Western coalition" cer- 
 tainly came to be recognized and was to play a great political 
 role in the years following the War of 1812 when New England 
 and western interests were linked together on the platform of 
 protection and internal improvements. 
 
 The form of government for Louisiana established by the 
 law of March 26, 1804, did not escape the attacks of Jefferson's 
 critics. The New England Repertory declared the source of that 
 government novel in the political progress of the United States, 
 because not one of the people to be governed would have a voice 
 in the government. It was a despotism, with the President of 
 the United States as the fountain of all power. ''Louisiana is 
 a part of the empire of the United States or it is not. If it is 
 not, we have nothing to do with it. If it is, the establishment 
 of a monarchy over a large country appertaining to the United 
 States, is a gross violation of the spirit of the Constitution."^^ 
 
 The New York Herald stated that a perusal of the sketch of 
 the debates in Congress would show that the ''friends to the 
 equal rights of man" were considerably hampered by the diffi- 
 culties presented in the Breckinridge Bill. The proposal of the 
 President "to erect a government about as despotic as that of 
 Turkey in Asia," had the approval of his friends, but they were 
 afraid of consequences ; while the Herald said they might well be, 
 "unless they can contrive to silence all the presses in the 
 nation. "*« 
 
 asNahum Mitchell to Edw. H. Bobbins, Washington, March 12 1804 
 in Roblin^ Papers, 1800-1838, VII. ' 
 
 39iVew England Repertory, Tuesday, March 6, 1804. Copied in Thomas's 
 Massachusetts Spy, or Worcester Gazette, Wednesday, March 14. 
 40 New York Herald, Wednesday, March 7, 1804. 
 
CHAPTER IX 
 PROBLEMS OF TERRITORIAL GOVERNMENT 
 
 The inhabitants of Louisiana had expected a more liberal 
 form of government and were greatly disappointed in the one 
 provided. The report of the passage of a law by the Senate 
 prohibiting the importation of foreign slaves into Louisiana 
 caused great agitation, according to Governor Claiborne. The 
 people considered it a serious blow at the commercial and agri- 
 cultural interests of the province. Importation of slaves into 
 South Carolina served to increase discontent. The people gen- 
 erally could not be made to understand the present power of the 
 state authorities with regard to the importation of such persons. 
 Many thought Congress connived at this.^ A mass meeting was 
 held to protest to Congress on the question of the slave trade, 
 commercial restrictions, and government in general, and a com- 
 mittee was appointed to draw up a memorial.^ 
 
 Prohibition of the iinportation of foreign slaves was a griev- 
 ance which was raised continually, and will be referred to again. 
 
 Whether the governor's voice was final in judicial matters 
 in the new territory was a question Jefferson was called upon 
 to answer. Under the Spanish Government the Louisianians had 
 been allowed an appeal from their governor to the governor 
 general in Cuba. Such an appeal from a decision of Governor 
 Claiborne came to the President. Jefferson did not believe that 
 Congress when it authorized him to give any person all the 
 power of the officers of the "then existing government," had 
 intended to include the governor general of Cuba or the King 
 of Spain. After asking the advice of Attorney General Levi 
 
 1 Claiborne to Madison, March 10, 1804, in Claiborne Papers, "Clai- 
 borne's Correspondence relative to Louisiana," I. 
 
 2 Claiborne to Madison, March 16, 1804, ihid. 
 
148 Constitutio'iml History of the Louisiana Purchase 
 
 Lincoln on this point,^ Jefferson informed Claiborne that it was 
 an error to presume that there was an appeal to the President. 
 No authority had jet been created paramount to that of the 
 governor. Such being the case, Jefferson remanded such matters 
 to Claiborne for a second consideration, the remanding "to be 
 considered as a measure of course, and not conveying in the 
 slightest degree an opinion or even a suspicion that there is or 
 is not error in the first proceedings."* 
 
 The course of territorial government did not run as smoothly 
 as might have been desired by those in authority. The corre- 
 spondence which passed between Governor Claiborne and the 
 President and Secretary of State in Washington is filled with 
 various opinions and recommendations. After the passage of 
 the Breckinridge Bill, Jefferson asked Claiborne to communicate 
 to him the names of the men best fitted to be appointed members 
 of the legislative council. Jefferson thought a mere majority 
 of them ought to be Americans and the rest French or Spanish.^ 
 Desirous of placating the native inhabitants though he might be, 
 Jefferson nevertheless wanted to keep the control in American 
 hands. 
 
 Claiborne kept the federal authorities well informed on con- 
 ditions in the territory under his control, at least so far as 
 frequent letters could do it. The extension of registry to vessels 
 owned by Louisianians gave general satisfaction and removed 
 one cause of discontent. The prohibition of the importation of 
 foreign slaves was still viewed bj' the citizens as a great griev- 
 ance,^ yet quiet prevailed and Claiborne expressed the opinion 
 
 3 Jefferson to the Atty. Genl., March 14, [18]04, in Jefferson Papers. 
 "Letters from Jefferson, 1st Series, 1802-1803," IX, (39). 
 
 4 Jefferson to Governor Claiborne, March 18, [18]0-i, in ibid., (44). 
 Quoted in part in J. F. H. Claiborne, Mississippi as a Province, Territory 
 and State, I, 251-252. 
 
 5 Jefferson to Governor Claiborne, April 17, 1804, in Jefferson Papers, 
 "Letters from Jefferson, 1st Series," IX, (67). 
 
 6 Claiborne to Jefferson, April 15, 1804, in Jefferson Papers, "Letters 
 received at Washington, 2d Series," XIX, (3). 
 
Problems of Territorial Government 149 
 
 that unless the natives of the United States should excite dis- 
 content, the Louisianians would become well pleased with the 
 temporary government/ 
 
 Only four daj^s after the writing of this letter the Mayor of 
 New Orleans, Etienne de Bore, resigned. The municipal body, 
 composed of a mayor, a council of twelve, and a clerk, which 
 had been established by Laussat in place of the abolished cabildo, 
 had been carried over under the government of the United States. 
 Bore, in an address to the council, May 16, 1804, asked that a 
 formal protest be made against the form of government on the 
 ground that it annihilated the rights of the Louisianians. He 
 held it to be a departure from the principles of American gov- 
 ernment and an infringement of the natural rights of the people 
 of the territorj^ and of the third article of the treaty of cession. 
 The council declining to make such a protest because it believed 
 this to be the province of the people at large and not the 
 municipal council, Bore resigned.® 
 
 Other evidences of discontent led Claiborne to write that as 
 soon as the state of society would permit, he ' ' would like to see 
 the representative system in its fullest latitude extended to this 
 territory." However, he thought Congress had been wise in 
 not immediately conferring the privilege of self-government on 
 the people, as this would probably have proved a misfortune to 
 Louisiana. The natives of Louisiana he considered a pacific, 
 amiable people. Adventurers from outside were the ones who 
 caused trouble among a credulous people.^ Who some of these 
 "adventurers" were Claiborne also informed Madison. Among 
 the most distinguished and active of those who disapproved of 
 the measures of the Government in relation to Louisiana was 
 
 7 Claiborne to Madison, May 12, 1804, in Madison Papers, XXVI, 
 "Writings to Madison, Nov, 6, 1803- Aug. 21, 1804." 
 
 8 Fortier, History of Louisiana, III, 14-15. 
 
 9 Claiborne to Jefferson, May 29, 1804, in Jefferson Papers, "Letters 
 received at Washington, 2d Series," XIX, (7). 
 
150 Constitutioiud History of the Louismim Purchase 
 
 Edward Livingston.^" Another of the discontents was Daniel 
 Clark, whom Claiborne considered disgruntled because he had 
 expected a greater reward for his services than he received.^^ 
 
 Livingston busied himself with a draft of a memorial to 
 Congress protesting against the government of Louisiana. He 
 took the stand that, under the treaty, Louisiana was entitled to 
 immediate admission into the Union as a state. Claiborne sus- 
 pected Livingston of ulterior motives because it seemed to him 
 impossible ''that a man of reflection, can suppose the people of 
 Louisiana at this time, prepared for a complete Representative 
 Sj-stem."" Claiborne did favor, however, the introduction of 
 representative government as soon as possible. He expressed a 
 desire to see the legislative council elected by the people.^^ 
 
 The troublesome third article of the treaty on which the 
 Louisianians were to base their grounds for complaint in their 
 memorial to Congress, needed interpretation from other stand- 
 points. One of these led to a further enunciation by Jefferson 
 of the meaning of the article. Among other claims under it were 
 those of a monopoly of Indian commerce.^* Jefferson considered 
 the third article to have been worded with * * remarkable caution ' ' 
 
 10 Livingston had moved to New Orleans in 1804 and was destined to 
 play an important part in the history of the state of Louisiana. Aside from 
 his connection with the famous Batture Case he was the author of a legal 
 code for Louisiana, acted as its representative in Congress in the Eighteenth, 
 Nineteenth and Twentieth Congresses, and served as United States senator 
 from Louisiana from December 7, 1829, until his resignation, May 24, 1831. 
 Livingston was secretary of state from May 24, 1831, to May 29, 1833, 
 under President Jackson, and Minister Plenipotentiary to Prance May 29 
 to April, 1835. He died May 23, 1836. 
 
 11 Claiborne to Madison, June 3, 1804 (Private), in Madison Papers, 
 "Writings to Madison," XXVL Clark was an old resident of Louisiana, 
 having been a subject of Spain there previous to the American occupation. 
 Jefferson had appealed to him for information concerning the territory. 
 Jefferson to Clark, July 17, 1803, in Jefferson, Writings (Memorial ed.), X, 
 406-407. Clark was selected as delegate from the territory of Orleans to 
 the Ninth Congress. 
 
 12 Claiborne to Madison, June 29, 1804 (Private and confidential), in 
 Madison Papers, "Writings to Madison," XXVL 
 
 13 Claiborne to Jefferson, July 1, 1804, in Jefferson Papers, "Letters 
 received at Washington, 2d Series," XIX, (10). 
 
 14 The reclamations of Girod & Chote against the claims of Bastrop. 
 
Problems of Territorial Government 151 
 
 on the part of the American negotiators. The people of Louis- 
 iana according to him, 
 
 shall continue under the protection of the treaty, until the principles of our 
 constitution shall be extended to them, when the protection of the treaty 
 is to cease, and that of our own principles to take its place. But as this 
 could not be done at once, it has been provided to be as soon as our rules 
 will admit. Accordingly Congress has begun by extending about 20 par- 
 ticular laws by their titles, to Louisiana. Among these is the act concern- 
 ing intercourse with the Indians, which establishes a system of commerce 
 with them admitting no monopoly. That class of rights therefore are now 
 taken from under the treaty & placed under the principles of our laws.i' 
 
 That definite acts of legislation were necessary to bring about 
 a change in the laws of the territory acquired was emphasized 
 in another letter of Jefferson's at a later date, when he wrote: 
 "Louis XIV having established the Constumes de Paris as the 
 law of Louisiana, this was not changed bj'' the mere act of trans- 
 fer ; on the contrary, the laws of France continued and continues 
 to be the law of the land, except where specially altered by some 
 subsequent edict of Spain or act of Congress."" 
 
 The doubt which existed in the minds of the government 
 officials over the real status of the Louisianians found vent in 
 hostile newspaper comment of which the following is typical: 
 
 Mr. Jefferson gave us first to expect they were immediately to be in- 
 ducted to the blessings of self-government, and were to be made citizens, 
 as soon as convenient, implying a short time. Vice Boy Claiborne talked to 
 them sometime as citizens, sometimes as aliens; but in his official letter, 
 gave Government to understand that the people we had been buying must 
 be subjects, (not citizens) for fifty years to come. But in a Baltimore 
 paper we are again bewildered by the following toast — 'the people of Louis- 
 iana — no longer subjects but citizens.' "i^ 
 
 Claiborne's appointment as governor of Louisiana was a 
 temporary one. He, himself, thought that the office would be 
 
 15 Jefferson to Secretary of State Madison, July 14, [18] 04, in Jefferson, 
 Writings (Ford, ed.), VIII, 313. 
 
 16 Jefferson to the Secretary of State, May 19, 1808, in Jefferson, Writ- 
 ings (Memorial ed.), XII, 58-59. 
 
 17 The Repertory (Boston), Tuesday, May 29, 1804. 
 
152 Constitutional History of the Louisiana Purchase 
 
 bestowed later on someone else. A report that Monroe would 
 probably be the permanent governor of Orleans Territory reached 
 Claiborne and he expressed his belief that this would be very 
 pleasing to the Louisianians.^^ Monroe was offered the position 
 but declined.^* 
 
 In sending to Claiborne his commission as governor of 
 Orleans Territory'', Jefferson stated frankly that the office was 
 "originally destined for a person (LaFayette) whose great ser- 
 vices and established fame would have rendered him peculiarl^^ 
 acceptable to the nation at large. Circumstances however exist 
 which do not now permit his nomination, & perhaps may not at 
 any time hereafter."^*' Claiborne acknowledged receipt of his 
 commission, October 3, 1804.^^ John Quincy Adams expected 
 that some opposition would be made to the reappointment of 
 Claiborne but when the vote was taken in the Senate only one 
 voice answered in the negative. ^- 
 
 is Claiborne to Madison, June 9, 1804, in Claiborne Papers, "Claiborne's 
 Correspondence relative to Louisiana, ' ' II. 
 
 19 Jefferson. Writings (Ford, ed.), VIII, 288, 290; IX, 37. Monroe, 
 Writings (Hamilton, ed.), IV, 153, 156, 477^78; V, 109-111. 
 
 Andrew Jaekson hoped that he might be appointed to this position. His 
 ambitions in this respect are revealed in a letter to his friend Eepresenta- 
 tive G. W. Campbell, AprU 28, 1804. This letter is printed in full in James 
 Parton, Life of Andrew Jackson, I, 237-238. It is mentioned in Parton, 
 Life of Thomas Jefferson, 656. 
 
 20 Jefferson to Claiborne, August, 30, 1804, in Jefferson Papers, "Letters 
 from Jefferson, 1st Series," IX, (153). J. F. H. Claiborne, Mississippi 
 as a Province, Territory and State, I, 251. In his "Memorandum of the 
 Eighth Congress," under date of December 10, 1804, Plumer -^vrote: "The 
 fact was I did not then know it — president originally intend the Marquis 
 La Fayette for that office." 
 
 Although wishing to appoint Lafayette to the governorship, Jefferson, 
 according to Parton, "demed it best not to gratify a sentiment by an act 
 which might be construed as a reflection upon the seller [Napoleon]." 
 James Parton, Life of Thomas Jefferson, 656. 
 
 21 Claiborne to Madison, October 3. 1804, in Claiborne Papers, "Clai- 
 borne's Correspodence relative to Louisiana," II. 
 
 22 John Quincy Adams, Memoirs, I, 321. December 12. 1804. John 
 Handolph referred to Claiborne as a "pompous nothing." News of com- 
 plaint from Louisiana called from Randolph the expression of a wish to 
 send some thousands of troops into that territory "who can speak a lan- 
 guag'e perfectly intelligible to the people of Louisiana, whatever that of 
 their Governor may be." Henry Adams, John Randolph, 117-118. 
 
Problems of Territorial Government 153 
 
 Attacks on Governor Claiborne and the administration of his 
 power became so bitter that he felt it necessary to send a lengthy, 
 refutation and explanation to Madison. One political pamphlet 
 in particular,^^ seemed to demand an answer. Admitting that 
 some of the statements made against him were true, Claiborne 
 said others were not. For instance, it was untrue that Americans 
 held all the lucrative positions under the temporary government ; 
 many were held by native Louisianians. After a defense of his 
 government, he declared that the third article of the treaty 
 rendered changes in the old system necessary to prepare the 
 people for statehood. He said he was forced by conditions to 
 assume great judicial powers against his own wishes.^* 
 
 Meanwhile the memorial to Congress had been put in circula- 
 tion. Claiborne, after seeing one sheet of the original, stated 
 that it was in the handwriting of Edward Livingston. He did 
 not doubt that all of it had been written by Livingston, with the 
 aid of Daniel Clark and Evan Jones. ^^ 
 
 If Claiborne's information was correct, there were not many 
 people present at the meeting held for the drawing up of the 
 memorial. It was afterwards carried through the territory and 
 many signed without reading it, while others did so with no 
 understanding of its contents. The names of others were affixed 
 without their seeing it. Louisianians, continued Claiborne, had 
 never before been called upon to sign a political paper. Some 
 thought their grievances were real, others were made to think so. 
 
 23 Esquisse de la situation politique et civile de la Louisiane, depuis 
 le 30 Novertibre 1803 jusqu' au !<"" Octobre 1804. Par vn Louisianais a la 
 Nouvelle-Orleans. This pamphlet was translated into English. 
 
 24 Claiborne to Madison, October 16, 1804, in Claiborne Papers, "Clai- 
 borne's Correspondence relative to Louisiana," II; Robertson, Louisiana 
 under the JRule of Spain, France, and the United States, II, 268-278, 
 
 25 Claiborne to Madison, July 13, 1804 (Private), in Madison Papers, 
 ** Writings to Madison," XXVI; also Claiborne to Madison, July 26, 1804, 
 in Claiborne Papers, "Claiborne's Correspondence relative to Louisiana," 
 II, wherein Claiborne enclosed a paper containing a copy of the memorial, 
 and added that Livingston acknowledged being the author. 
 
154 Constitutimml History of the Louisiatm Purchase 
 
 Few were really interested in the fate of the memorial, except 
 as it related to the African slave trade. He did not expect any 
 disturbance if the petition were denied.^^ 
 
 Despite their anxiety over the question of the African slave 
 trade, it cannot be said that the political situation of the inhab- 
 itants of Louisiana was altogether lost sight of. For instance, 
 "Fellow Citizen" opposed the interpretation of the words **as 
 soon as possible" to mean never or a time so indefinite that it 
 might never arrive. He declared that the government was more 
 oppressive than that which the United States had spurned in 
 1776, and asked the citizens to unite in a respectful demand 
 upon the Government of the United States for those privileges 
 to which they were entitled by nature and compact.^' 
 
 A committee which met in New Orleans, August 9, 1804, 
 adopted a report laying before the citizens 6i Louisiana the 
 address which the United States in Congress assembled sent to 
 Canada, October 26, 1774 ; and asking the citizens what relation 
 there was between the present situation of the inhabitants of 
 Louisiana and that of Canada at the time when Congress put 
 the Canadians in mind of their rights and privileges, which the 
 agents of England would not allow them. The report bore the 
 signatures of Bore, president, and Robelot, secretary of the com- 
 mittee.-^^ 
 
 Interspersed among general criticisms of the system of gov- 
 ernment were personal attacks on the governor. The latter led 
 to a defense of Claiborne by James Workman who wrote under 
 the nom. de plume of ''Laelius." In answering charges brought 
 against Claiborne, **Laelius" admitted that it was to be re- 
 
 26 Claiborne to Jefferson, October 27, 1804, in Jefferson Papers, "Let- 
 ters received at Washington, 2d Series," XIX, (14). Also, Claiborne to 
 Madison, November 5, 1804 (Private), in Madison Papers, "Writings to 
 Madison," XXVI. 
 
 27 Louisicna Gazette, August 7, 1804. 
 
 28 Ihid., August 14, 1804. 
 
Problems of Territorial Governnieiit 155 
 
 gretted that Congress had not immediately established some 
 temporary legislative and judicial authorities, composed of the 
 best informed men who could have been secured. Claiborne, 
 however, had no power to bring this about, so could not be 
 blamed.^® 
 
 This called forth a lengthy reply in which all the complaints 
 against the governor and the government were reiterated.^*' 
 
 The memorial to Congress having been duly circulated and 
 signed, three agents were selected to bear it to Congress. They 
 were Messrs. Pierre Derbigny, Jean Noel Destrehan and Pierre 
 Sauve, all natives of France. Derbigny, Claiborne described as 
 "a man of good information, and I believe of strict integrity; 
 pleased with the principles of our Government but much attached 
 to his native country." Destrehan, he characterized as "a 
 Frenchman in politics and affection," "one of the tools of M. 
 Laussat and greatly mortified at the cession of Louisiana to the 
 United States." He would endeavor to be the most prominent 
 man in the mission. Sauve was "an able good man, a wealthy 
 planter universally esteemed by his neighbors and will be a good 
 citizen under our Government; but I fear he Avill take little 
 part in the agency." All were warm advocates of the slave 
 trade.^^ 
 
 29 Ibid., November 9, 1804. 
 
 30 Ibid., January 11, 15, 22, 29, 1805. We are indebted to Isaac Briggs 
 for information concerning the alignment of forces in this newspaper "war, 
 Claiborne's chief opponents were Livingston, I. B. Prevost, and Daniel 
 Clark, who appeared under various signatures, principally, "An Inhab- 
 itant," and "Public Accuser." The friends of the governor were Lewis 
 Kerr under the signature of "Curtius" and "Projector," and James 
 Workman as "Laelius. " Isaac Briggs to Jefferson, February 9, 1805, in 
 Jefferson Papers, "Letters received at Washington, 2nd Series," IX, (18). 
 
 Briggs had been appointed surveyor of lands south of Tennessee by 
 Jefferson, who characterized him as "a Quaker, a sound republican and 
 of a pure and unspotted character, ' ' highly qualified for his new task. 
 Jefferson to Claiborne, May 24, 1803, in Jefferson, Writings (Memorial 
 ed.), X, 394-395. 
 
 31 Claiborne to Madison, July 13, 1804 (Private), in Madison Papers, 
 "Writings to Madison," XXVI. 
 
156 Constitutional History of the Louisimia Purchase 
 
 An interesting picture of the memorialists in Washington is 
 given by Senator Plumer, who with Pickering and others. enter- 
 tained them at dinner. He describes them as all Frenchmen, 
 of whom Derbigny and Sauve could speak English fluently, 
 gentlemen of respectability, men of talents, literature and gen- 
 eral information, men of business, and well acquainted with the 
 world. They had little of ''French frippery" about them and 
 resembled New Englanders more than Virginians. Sauve had 
 one hundred and fifty acres of sugar cane, and Destrehan two 
 hundred. The latter claimed that it would take sixty negroes 
 to manage his crop. He stated that his ground generally pro- 
 duced on the average by the acre one hogshead of sugar weighing 
 twelve hundred pounds and a hogshead of molasses. 
 
 The memorialists complained of the government which Con- 
 gress had established over them at the last session. Plumer 
 continues : 
 
 They say nothing will satisfy that people but an elective government. 
 That under the Spanish government they paid only six per cent duty upon 
 their imports & exports; & the whole charge of their religion & government 
 was then supported by the Crown. Tliat the duties they now paid are 
 greater than what they then paid — & are themselves beside obliged to sup- 
 port their religion & internal government. So that they now pay more 
 money for public uses than when they were subjects of a royal government, 
 & enjoy less real liberty. That Claiborne, the present governor, is unable 
 to speak a word of French, the language that is most generally used in 
 that country. That the proceedings in the courts of law are in a language 
 that most of the people do not understand — That they have in many 
 instances been convicted of breaches of laws of the existence of which they 
 were ignorant. That Claiborne is incompetent to discharge the duties of 
 Government. 
 
 That the President had selected some very respectable men whom he 
 has appointed members of the legislative Council. That out of these all 
 except three have positively declined the appointments. That no man who 
 wishes to enjoy the friendship & esteem of the people of that country can 
 accept of an office under the existing system of government. 
 
 They say that they have visited Mr. Jefferson — that he has not made 
 any enquiries of them relative either to their government, or the civil or 
 
Problems of Territorml Government 157 
 
 natural history of their country — That he studiously avoided conversing 
 with them upon every subject that had relation to their mission here. 
 
 They say that the city of New Orleans is situated on the banks of the 
 Mississippi — that those banks are from one hundred to 120 feet deep — And 
 that a considerable part of the city is in danger of being undermined by 
 the stream — the land being sandy — That it will require immense expence to 
 secure the town — that they must either sink rafts covered Avith the rocks on 
 the bank next to the city, or cut down the bank on the opposite side of 
 the river, That the country around the city & for a very considerable dis- 
 tance up the river is very good land for the -width, on an average, of 
 three quarters of a mile from the river — that beyond that distance from 
 the river much of the land is a sunken swamp. That there is in the 
 Country a considerable of good upland.32 
 
 The memorial was presented to the Senate, December 31, 
 1804, by Giles of Virginia. After an examination of the form 
 of government laid down for the territory of Orleans, which 
 showed that the people in the territory had no voice in their 
 government, the memorial proceeded to state more specific griev- 
 ances, using language which must have had a decidedly familiar 
 sound for those who remembered the statement of grievances of 
 the American colonists against the British Government. Objec- 
 tions were made to a governor whom the people had not chosen, 
 and who might be ignorant of the language and institutions of 
 the people. This government was vested with all executive and 
 almost unlimited legislative authority, because of the power of 
 the executive in the choice of members of the council and his 
 authority to prorogue them freely. The memorial continued: 
 
 Taxation without representation, an obligation to obey laws without 
 any voice in their formation, the undue influence of the executive upon 
 legislative proceedings, and a dependent judiciary, formed, we believe, very 
 important articles in the list of grievances complained of by the United 
 States, at the commencement of their glorious contest for freedom; the 
 opposition to them, even by force, Avas deemed meritorious and patriotic, 
 
 32 Plumer, "Memorandum," Saturday, December 15, 1804. Publication 
 of Plumer 's account at so great length seems justified because of the 
 amount of information it contains, and because it has never before appeared 
 in print. See my article on "The Louisiana Memorialists to Congress, 
 1804," in the Louisiana Historical Quarterly, I, 99-102. 
 
158 ConstituUoiial History of the Louisiana Purchase 
 
 and the rights on which that opposition was founded were termed funda- 
 mental, indefeasible, self-evident, and eternal; they formed as your country 
 then unanimously asserted, the only rational basis on which Government 
 could rest; they were so plain, it was added, as to be understood by the 
 weakest understanding; not capable of alienation, they might always be 
 reclaimed; unsusceptible of change, they were the same at all times, in 
 all climates, and under all circumstances; and the fairest inheritance for 
 our posterity, they should never, it was firmly asserted — be abandoned but 
 
 with life Are truths, then, so well founded, so universally acknowledged, 
 
 inapplicable only to us? Do political axioms on the Atlantic become prob- 
 lems when transferred to the shores of the Mississippi? 
 
 Referring to the third article of the treaty, the memorialists 
 interpreted it to mean that there should be no longer delay in 
 the incorporation of the inhabitants into the Union than was 
 required to pass the necessary laws and ascertain the represen- 
 tation to which they were entitled. The government act under 
 fire did not satisfy the requirement of this provision of the 
 treaty. On this point the memorial ran : 
 
 A Territory governed in the manner it directs may be a province of the 
 United States, but can by no construction be said to be incorporated into 
 the Union. To be incorporated into the Union must mean to form a com- 
 ponent part of it; but to every component part of the United States the 
 constitution has guaranteed a republican form of Government, and this 
 . . . has no one principle of republicanism in its composition ; it is therefore 
 not a compliance with the letter of the treaty, and is totally inconsistent 
 with its spirit, Avhich certainly intends some stipulations in our favor. For 
 if Congress may govern us as they please, how are we benefitted by its 
 introduction? If any doubt, however, could possibly arise on the first 
 member of the sentence, it must now vanish by a consideration of the 
 second, which provides for their admission to the rights, privileges, and 
 
 immunities of citizens of the United States. But this Government is 
 
 totally incompatible with those rights. Without any vote in the election 
 of our Legislature, without any check upon our executive, without any one 
 incident of self-government, what valuable 'privilege' of citizenship is 
 allowed us, what 'right' do we enjoy, of what 'immunity' can we boast, 
 except, indeed, the degrading exemption from the cares of legislation, and 
 the burden of public aifairs. . . .33 
 
 33 American State Papers, Miscellaneous, I, 396-398 ;.47maZs of Congress, 
 8 Cong., 2 Sess. (1804-1805), Appendix, 1597-1606. 
 
Problems of Territorial Government 159 
 
 In the next part of the memorial, that dealing with the pro- 
 hibition of the slave trade, a clear demand was made for the 
 very thing which at a later date was called *' popular sov- 
 ereignty." Reference was made to the fact that while the 
 African trade was absolutely prohibited in the new territory, it 
 was free to the Atlantic states and as far as related to procuring 
 slaves from other states, it was permitted even in the Territory 
 of Mississippi. * * We only ask, ' ' ran the memorial, * * the right of 
 deciding it ourselves, and of being placed in this respect on an 
 equal footing with other States." Slave labor was declared to 
 be peculiarly necessary for the species of cultivation carried on 
 and for the repair of the levees, the heat and moisture being 
 intolerable to whites. The prohibition of the slave traffic would 
 mean the cessation of cultivation.^* 
 
 A similar remonstrance against the form of government 
 established in the territory was communicated to the House of 
 Representatives, January 4, 1805. One of the grievances cited 
 was that of the division of Louisiana into two parts, because 
 without the division there would be sufficient population to 
 admit Louisiana into the Union as a state. This division, it was 
 argued, was authorized neither by the Constitution, nor in the 
 treaty with the French Republic. Endless divisions might post- 
 pone indefinitely the admission of a part of the territory into 
 the Union.^^ 
 
 Both the Senate and House took action as a result of the 
 memorial. The House referred the memorial received by it to 
 a committee of which John Randolph of Virginia was chairman. 
 Reporting for the committee, Randolph stated that the griev- 
 ances set forth were those inseparable from sudden transitions 
 of government. The committee recommended, however, "every 
 
 34 American State Papers, Miscellaneous, I, 399; Annals of Congress, 
 8 Cong., 2 Sess. (1804^1805), Appendix, 1606. 
 
 ^^ Ann<ils of Congress, 8 Cong., 2 Sess. (1804r-1805), Appendix, 1608- 
 1620. 
 
160 Constitutiotial History of the Louisiana Purchase 
 
 indulgence not incompatible with the interests of the union, to 
 be extended to the inhabitants of Louisiana." Previous forms 
 of government employed by the United States for remote terri- 
 tories were considered not to be worthj'^ of imitation in the 
 case of Louisiana. The object of the committee was to give 
 Louisiana a government of its own choice, administered by 
 officers of its own appointment. Certain restrictions would be 
 made, among them **a prohibition of the importation of foreign 
 slaves . . ., restrictions against the establishment of any form of 
 government, other than a representative Republic; against vio- 
 lations of the liberty of conscience, the freedom of the press, and 
 the trial by jury ; against the taxation of the lands of the United 
 States," to which was added the usual restriction of requiring 
 the approval of Congress to acts passed. A resolution was then 
 submitted for providing b^^ law for the extension to the inhab- 
 itants of Louisiana of the right of self-government.^^ 
 
 In the Senate the memorial was referred to a committee 
 composed of Giles of Virginia, Franklin of North Carolina, 
 Anderson of Tennessee, Tracy of Connecticut, and Baldwin of 
 Georgia, who reported a bill providing for the government of 
 the territory of Orleans. This bill authorized the President to 
 establish a government similar to that of the Mississippi Terri- 
 tory. The inhabitants were to be entitled to and enjoy all the 
 rights, privileges, and advantages, secured by the Ordinance of 
 1787, and enjoyed by the people of Mississippi. 
 
 There was to be a general assembly of twenty-five members 
 elected by the voters of the territory. Annual meetings were 
 provided for. Laws in force in the territory at the commence- 
 ment of this act, and not inconsistent with it, were to continue 
 in force until altered or repealed by the legislature. Whenever 
 the population should have reached a number to be determined 
 
 5^ Annals of Congress, 8 Cong., 2 Sess. (1804-1805), 1014-1017: Ameri- 
 can State Papers, Miscellaneous, I, 417-418. 
 
Problems of Territorial Government 161 
 
 [sixty thousand], arrangements should be made for the estab- 
 lishment of a state government and admission into the Union 
 upon the footing of the original states, conformably to the third 
 article of the treaty of cession. The constitution to be established 
 must be republican and not inconsistent with the Constitution 
 of the United States, nor with the Ordinance of 1787 so far as 
 it should be made applicable to the territorial government to be 
 established. Congress was to be at liberty at any time prior 
 to the admission of the inhabitants of the territory to the rights 
 of separate statehood, to alter the boundaries ; but no alteration 
 could be made which would delay admission as a state. So much 
 of the act for temporary government as was repugnant with this 
 act was to be repealed (time left blank) .^^ 
 
 This bill was rushed through in the closing hours of the 
 session. It was passed by the Senate March 1, 1805,^^ by the 
 House March 2,^^ and was approved by the President on the 
 same day.*** 
 
 Echoes of the compact theory were still to be heard, for at 
 least one senator gave as his reason for voting against the bill, 
 the provision that when the territory had sixty thousand inhab- 
 itants it was to be admitted into the Union, upon the footing of 
 the original states. This, in Plumer's opinion, was unconsti- 
 tutional. A new partner could not be admitted into the Union, 
 from without the original limits of the United States, without 
 the consent, first obtained, of each of the original partners to 
 the federal compact.*^ 
 
 Upon their return home, Derbigny, Destrehan and Sauve 
 reported, May 2, 1805, on their experience in Washington. They 
 
 S7 Annals of Congress, 8 Cong., 2 Sess, (1804-1805), 45^6; Laws of 
 V. States, III, 648-650. 
 
 Z9 Annals of Congress, 8 Cong., 2 Sess. (1804r-1805), 69. " 
 
 39J&W2., 1215. 
 
 ioihid., Appendix, 1674-1676. 
 
 41 Plumer, Life of William Plumer, 328, 
 
162 Constihitiotial History of the Louisiatm Purchase 
 
 admitted failure to get all they had asked for, and objected to 
 the arbitrary setting of the number required for statehood at 
 sixt}' thousand. However, the right to initiate laws had been 
 gained. The House of Representatives was willing to grant 
 unlimited right of self-government but the Senate was opposed ; 
 nevertheless, the attitude of the House was encouraging. The 
 term fixed for admission into the Union though arbitrary was 
 not irrevocable.*^ 
 
 Claiborne hoped that the people would be contented with the 
 new order of things. He was convinced that an early introduc- 
 tion of the entire representative system into Orleans Territory 
 would be a hazardous experiment. He expressed serious doubts 
 whether the second grade of territorial government would be 
 conducted with discretion.*^ 
 
 Rufus Easton had a short time previously to this written to 
 Gideon Granger that a representative form of government would 
 be advisable for the Orleans Territorj^, as it would attach the 
 people to the Federal Government. He suggested that one 
 branch of the legislature be composed of representatives from 
 districts, elected by the people. The rest of the government 
 might remain for the present the same or similar to that of terri- 
 tories of the first grade ; with the exception that the governor 's 
 veto would be operative only until the opinion of Congress 
 through the representation of a territorial delegate should be 
 known. 
 
 Easton took the opportunity to warn against prohibiting 
 settlement on the western bank of the Mississippi, a policy which 
 he declared had originated with the landed interests. If carried 
 into effect, ' ' it would be injurious to the United States — ruinous 
 to the western country and infringe the rights of the people." 
 Should trouble with the Indians occur, the navigation of the 
 
 *2 Louisiana Gazette, June 11, 1805. (Translated from the Moniteur.) 
 
 43 Claiborne to Madison, May 4, 1805, in Claiborne Papers, "Claiborne's 
 Correspondence, Orleans Territory, ' ' III. 
 
Problems of Territorial Government 163 
 
 Mississippi would be shut off, causing great loss and discomfort 
 to the people of the western country. He was willing to concede 
 that it might be a good policy to draw a frontier line some 
 distance beyond the Mississippi and halt settlers there. 
 
 Granger considered these suggestions of sufficient importance 
 to forward them to Jefferson.** 
 
 As Claiborne had inferred, there was little outward sign of 
 disappointment at the failure of Congress to grant to the people 
 of Orleans Territory everything for which they had asked. 
 After an excursion to Point Coupe, he reported that the citizens 
 were happy and apparently well disposed to the American Gov- 
 ernment.*^ He was persuaded that the great body of the citizens 
 could not be shaken in their allegiance, or be made to think that 
 they were not greatly benefited bj" their annexation to the United 
 States.*^ 
 
 On December 28, 1805, Jefferson wrote to the speaker and 
 the house of representatives of the territory, felicitating them 
 on their many blessings, among them that of being joined to the 
 United States. He praised their choice of representatives, which 
 augured well for their future political happiness.*^ 
 
 Yet Jefferson was not altogether satisfied with conditions as 
 they existed in the new territory. On April 2, 1806, he expressed 
 himself to Senator Plumer on a bill which provided that two 
 million acres of land in the territory of Orleans be surveyed and 
 divided into townships and lots, each alternate lot of one hun- 
 dred and sixty acres to be given to every free able-bodied male 
 not an inhabitant of the territor}- or of the Mississippi Territory 
 on condition that he would live there and cultivate the same 
 
 44 Gideon Granger to Jefferson, April 1, 1805, in Jefferson Papers, "Let- 
 ters received at Washington, 2nd Series," XXXVI, (74 and 75). Granger 
 was Postmaster General at this time. 
 
 45 Claiborne to Madison, May 31, 1805, in Claiborne Papers, "Clai- 
 borne's Correspondence, Orleans Territory," III. 
 
 4« Claiborne to Madison, June 6, ibid. 
 
 iT Jefferson Papers, "Letters from Jefferson, 1st Series," XI, 1805- 
 1806, (83), 
 
164 Constitutimial History of the Louisiana Purchase 
 
 years and render years of military service in the 
 
 militia of the United States. Jefferson declared the bill to be 
 the most important then pending in Congress, Louisiana was 
 exposed and it was necessary that provision be made for its 
 defense. Nearly half of its present inhabitants were such that 
 they could not be depended on in case of an invasion. It would 
 be impolitic and expensive to raise a standing army; and it 
 was doubtful if the militia from the states would consent to go 
 and stay there any great length of time. There weis no means 
 of compelling them to do it. If lands were given as bounties, 
 able-bodied men would go there and settle and have an interest 
 in defending the territory. 
 
 Plumer answered that he considered it as establishing a new 
 principle in our Government, a sort of feudal system, based on 
 military tenure. He required more time to satisfy himself how 
 far it would affect the Constitution and legal sj'stem. He feared 
 the danger of sudden innovations in government.** 
 
 The bill to which Jefferson referred was introduced March 6, 
 by Senator Worthington of Ohio. The tract of land was to be 
 located between the Achafalaya, the Red River and a meridian 
 line passing by the fort at Natchitoches.'*^ The bill was passed 
 to the third reading only by the deciding vote of the president 
 of the Senate.^*' On April 4, two- days after Jefferson's conver- 
 sation with Plumer, further consideration was postponed until 
 the next session.^^ This seemingly put an end to the bill for 
 although on February 6, 1806, Worthington gave notice that he 
 would on the next day, ' ' bring in a bill to encourage a settlement 
 in the western district of Orleans," presumably his former 
 measure, no further mention of it was made.^^ 
 
 4S" Plumer 's Eegister," 1, April 3, 1806. This is really the third 
 volume of Plumer, "Memorandum of the proceedings in Congress," but as 
 it is marked as above on the cover, it is so cited here. 
 
 '^^ Annals of Congress, 9 Cong., 1 Sess. (1805-1806), 164. 
 
 50 I6id., 207. 
 
 51 Ibid., 228. 
 
 52 Ibid., 9 Cong., 2 Sess., 62. 
 
Problems of Territorial Government 165 
 
 Jefferson, however, did not give up his idea immediately, 
 as is shown by a letter which he wrote to John Dickinson on 
 January 13, 1807. He said that discontent in the territory of 
 Orleans was due to the prohibition of the importation of foreign 
 slaves; to the administration of justice in forms foreign to the 
 people, and all the more abhorrent because of corruption of 
 lawyers ; and to the question of land titles.^^ Because of trouble 
 with the French element Jefferson proposed the enlistment of 
 thirty thousand native-born Americans, to be transported at 
 the public expense, and settled on bounties of one hundred acres 
 of land each, west of the Mississippi, on condition of two years 
 military service should that country be attacked within a period 
 of seven years. Besides providing on the spot for the defense 
 of the country, the addition to the population would entitle the 
 territory to become a state, with a majority of Americans, thus 
 making it an American rather than a French state. "This," 
 concluded Jefferson, "would not sweeten the pill to the French 
 but in making that acquisition we had some view to our own 
 good as well as theirs, and I believe the greatest good of both 
 will be promoted by whatever will amalgamate us together."'* 
 
 As a President confronted with practical problems to solve, 
 Jefferson could deviate far from the theories of the framer of 
 the Declaration of Independence, and salve his conscience with 
 the doctrine that "the greatest good of both will be promoted 
 by whatever will amalgamate us together." 
 
 This was not the only case in which Jefferson thought an 
 explanation of his action necessary. In a letter to General 
 William Smith, May 4, 1806, in stating his belief that his 
 appointment of General Wilkinson as military governor of 
 
 53 These are the chief causes of discontent enumerated in . a letter of 
 Claiborne's to Madison, May 16, 1806, in Claiborne Papers, "Claiborne's 
 Correspondence, Orleans Territory," IV, 
 
 5'i Jefferson, Writings (Memorial ed.), XI, 135-137. For the policy of 
 the United States Government on the holding of the Tvestem boundary 
 of Louisiana against Spain, see Marshall, A History of tlie Western 
 Boundary of the Louisiana Purcliase, 1819-1841. 
 
166 Constitutimval History of the Lo\dsian<i Purchase 
 
 Upper Louisiana, was as good as could have been made, he 
 nevertheless admitted a "qualm of principle" in the union of 
 the civil and militarj^ authority. He had refused to appoint 
 Wilkinson to the governorship of the Mississippi Territory for 
 that very reason. In the appointment to Upper Louisiana he 
 did not think himself departing from his principle because he 
 considered it "not as a civil government, but merely a military 
 station. ' ' That idea had been sanctioned by the legislative body 
 bv the establishment of the office of commandant, in which the 
 civil and military powers were blended. "It seemed therefore 
 that the governor should be in suit with them." At the very 
 time of passing the stricture on the union of authorities, the 
 House of Representatives had passed a bill making the governor 
 of Michigan commander of the regular troops which should at 
 anv time be within his government. ^° Bv the action of the 
 Legislature, rather than by strict adherence to theory, did Jeffer- 
 son thus defend his action. 
 
 There arose, also, certain questions incidental to the transfer 
 of jurisdiction over the territory from France to the United 
 States. A Spaniard residing in the territory' was arraigned on 
 a murder charge. His counsel demanded a jurj^ composed in 
 part of Spaniards. Wliile conceding that the prisoner was an 
 inhabitant of Louisiana at the time of cession to the United 
 States, and was still an inhabitant thereof, it was nevertheless 
 contended that since he had not taken an oath of allegiance to 
 the United States, he was an alien, and a subject of the King 
 of Spain. Some of the American lawyers settled in New Orleans 
 thought an oath of allegiance to the United States necessary 
 before the people could be considered American citizens. Clai- 
 borne did not agree ^vith them and, in this instance, was pleased 
 with the decision of the Superior Court, which held that all per- 
 sons who resided in the territory at the period of cession and had 
 not withdrawn with the Spanish or French authorities could not 
 
 55 Jefferson, Writings (Memorial ed.), XI, 112. 
 
Prohlenu of Territorial Government 167 
 
 be considered otherwise than as citizens of the United States.^^ 
 Another of these questions grew out of the excitement inci- 
 dent to the Burr Conspiracy. It is not necessary here to trace 
 the history of that conspiracy, which has been treated fuUj' 
 by various writers.^^ Apprehensive of danger, Claiborne, in a 
 message to the territorial legislature, recommended that it sus- 
 pend the writ of habeas corpus.^^ The answer of the house 
 of representatives of the territory was a resolution of February 
 17, 1807, refusing to suspend the writ, on the ground that after 
 an examination of the Constitution of the United States and 
 the ordinance of Congress by which the territory was governed, 
 they had reached the conclusion that to suspend the writ would 
 be a violation of the Constitution.^^ 
 
 Although the judges and the district attorney agreed with 
 the decision of the legislature, Claiborne held a contrary view. 
 He argued that although the Ordinance of 1787 provided, ' ' That 
 the people shall always be entitled to the privilege of the writ 
 of Habeas Corpus and the trial by jury,"^° and that therefore 
 the power nowhere existed to suspend the writ in the Northwest 
 Territory, yet this was changed when the Constitution became 
 the supreme law of the land. In the clause of the Constitution 
 declaring that "the Habeas Corpus shall not be suspended 
 except in times of rebellion, or danger of invasion, "^^ a power 
 to suspend was recognized. This power not being exclusively 
 delegated to Congress, or prohibited to the states, was reserved 
 
 56 Claiborne to Madison, June 25, 1806, in Claiborne Papers, "Clai- 
 borne 's Correspondence, Orleans Territory, " IV ; Gayarre, History of Louis- 
 iana, IV, 148-149. 
 
 57 See Walter F. McCaleb, Tlie Aaron Burr Conspiracy; Henry Adams, 
 History of the United States, III, 219-343, 441—471; James Parton, Life 
 and Times of Aaron Burr. 
 
 58 Gayarre, History of Louisiana, IV, 181. 
 
 59 Claiborne Papers, "Claiborne's Correspondence, Orleans Territory," 
 V, resolution signed by John Watkins, Speaker of the House of Eepresenta- 
 tives; Gayarre, History of Louisiana, IV, 182. 
 
 60 Art. II. 
 
 61 Art. I, see. 9, cl. 2. 
 
168 Constitutimial History of the Louisiana Purchase 
 
 by amendment ten of the Constitution to the states. Claiborne 
 contended that if a state could suspend the writ of habeas corpus, 
 so could a territorial legislature, because "their powers extend 
 to all the rightful subjects of legislation, and those are rightful 
 which the supreme law of the land in (the Constitution) recog- 
 nizes. "*- 
 
 If the opinion of the territorial legislature were correct, Clai- 
 borne saw the necessity of amending the Ordinance of Govern- 
 ment, Testing the right of suspension of the writ of habeas corpus 
 in all, or some oiie of the branches of the territorial legislature. 
 The experience of the Burr Conspiracy had shown the need of 
 this in time of rebellion.®^ 
 
 The Federal authorities were also experiencing difficulty over 
 the writ of habeas corpus. Following Jefferson's message of 
 January 22, 1807, giving information to Congress concerning 
 the Burr conspiracy,*'* the Senate, January 23, took up the 
 question of suspending the privilege. By unanimous consent 
 the rules were suspended, and a bill for the suspension of the 
 privilege of the writ of habeas corpus was rushed through its 
 three readings and passed, all in a single day.^^ The bill was 
 then sent to the House in the form of a confidential message. 
 The House was accordingly cleared, but when the bill had been 
 read and its nature ascertained, that body voted, one hundred 
 and twenty-three to three, to open the doors during the discus- 
 sion.^'^ 
 
 62 Gayarre, History of Louisiana, IV", 183-184. 
 
 esaaiborne to Madison, February 20, 1807, in Clmhorn^ Papers, "Clai- 
 borne's Correspondence; Orleans Territory," V. 
 
 64 Richardson, Messages and Papers of tlie Presidents, I, 412-417, Jef- 
 ferson did not ask for the action which the Senate proceeded to take. In 
 1788 when discussing with Madison the provisions of the Constitution, 
 Jefferson had opposed the suspension of the privilege of the writ of habeas 
 corpus on all occasions, even in cases of insurrections and rebellions. Jef- 
 ferson, Writings (Ford, ed.), V, 46-47. 
 
 G5 Annals of Congress, 9 Cong., 2 Sess. (1806-1807), 44. 
 66 Ihid., 402-403. 
 
Problems of Territorial Government 169 
 
 Tlie Senate bill was then taken up and received very little 
 support. The principle of the bill was vigorously denounced. 
 The action asked for was considered unnecessary. It was argued 
 that the public safety did not require the suspension and only 
 when that emergency arose could this great power be constitu- 
 tionally exercised. Furthermore, a dangerous precedent would 
 be established if the bill should pass. Such a precedent could 
 be used by a corrupt and vicious administration in a manner 
 destructive to the liberties of the people.®^ The bill was rejected 
 by a vote of one hundred and thirteen to nineteen.®^ 
 
 It is worth noting that during the debate on the measure, 
 Representative Eppes of Virginia made the statement, which 
 went unchallenged, that the Constitution had vested the power 
 of suspension of the privilege of the writ of habeas corpus in 
 Congress,^^ The same opinion was expressed by Chief Justice 
 Marshall in Ex parte Bollma/n,^° a case which grew out of this 
 same Burr conspiracj*. This seems to have been the accepted 
 view of the matter^^ until the Civil War when President Lincoln 
 assumed the power himself. With the opposition which this 
 action of the President aroused and the flood of literature which 
 it precipitated we are not here concerned.''^ 
 
 67 IMd., 403-424. 
 
 68 lUd., 424-425. 
 
 69 Ibid., 409-410. 
 
 70 4 Cranch 75. 
 
 71 As for instance by Story in his Commentaries on the Constitution of 
 the United States, par. 1342. 
 
 72 See for example, Horace Binney 's pamphlets on The Principles of 
 tlie Writ of Habeas Corpus; Joel Parker, "Habeas Corpus and Martial 
 Law," in North American Beview, XCIII, 471-518 (October, 1861) ; George 
 R. Curtis, Constitutional History of the United States, II, Appendix, 668- 
 686; S. G. Fisher, "The Suspension of Habaes Corpus during the War of the 
 Eebellion, " in Political Science Quarterly, III, 454-488. For further refer- 
 ences consult the list of pamphlets published during the Civil War appended 
 to Fisher's article. 
 
CHAPTER X 
 
 DEMANDS FOR STATEHOOD AND THE QUESTION 
 
 OF WEST FLORIDA 
 
 The people of Orleans Territory had shown their loyalty to 
 the Federal Government during the period of the Burr intrigues ; 
 and with a rapidly growing population and prosperity, looked 
 towards statehood. On May 19, 1809, Claiborne sent to Secre- 
 tary of State Robert Smith a copy of the memorial to Congress 
 which had been adopted by the legislative council and the house 
 of representatives of the territory at their last session, asking 
 for early admission into the Union as a state. Claiborne ex- 
 pressed his belief that a territorial government was still a neces- 
 sitj', for although the people were peaceable and amiable they 
 were not prepared for statehood. He furnished, also, some inter- 
 esting statistics on the condition of the territory. The census 
 of 1806, set the population at 52,998 people, of whom 23,574 
 were slaves, 3,355 free people of color, leaving 26,069 whites. 
 Of the latter at least 13,500 were natives of Louisiana, for the 
 most part descendants of the French ; about 3,500 natives of the 
 United States, and the rest Europeans, including native French, 
 Spaniards, English, Germans and Irish. Since 1806, there had 
 been onl}- about 3,000 or 4,000 free immigrants, two-thirds of 
 whom were native Americans. It was expected, however, that 
 mam' of the French people who had been banished from Cuba 
 would come to the territor3^^ 
 
 1 The European War had caused many Frenchmen to leave Cuba and 
 seek refuge in Louisiana. Claiborne did not relish this influx of foreign 
 blood and tried to stem the tide of immigration. At the same time he was 
 kind to the refugees "vvho did come. The fact that the French brought 
 their slaves with them caused him some anxiety because it was a violation 
 of the law. Het.thought best, however, not to be too severe on an unfor- 
 tunate people and allowed the owners to keep their slaves provided a bond, 
 
DenujAids for Statehood 171 
 
 The memorial had met with great opposition in the territorial 
 house of representatives, the final vote in its favor being eleven 
 to seven, and Claiborne doubted that a majority of the people 
 favored statehood. The rights of the citizens were little under- 
 stood and a general apathy prevailed at territorial elections. In 
 conclusion, Claiborne recommended changes in the government 
 as related to the supreme judiciary, and also an increase in 
 number of the members of the legislative council.^ On March 12 
 of the next year Giles, in the Senate, presented another memorial 
 of the legislature of the territory of Orleans, praying for the 
 admission of the territory into the Union.^ The memorial was 
 referred to a select committee* which reported a bill acceding to 
 the request of the memorialists.^ An attempt was made by Hill- 
 house to add to the bill the words : ^* Provided, That the several 
 States shall assent thereto, or an amendment to the Constitution 
 of the United States shall authorize Congress to admit said 
 Territory of Orleans into the Union, on the footing of the orig- 
 inal States," This was defeated,* and the bill was passed on 
 April 27.^ 
 
 Closely connected with the question of the admission of the 
 territory of Orleans into the Union as a state was that of the 
 status of West Florida. In 1810 an uprising took place in 
 which the people of West Florida threw off the control of Spain 
 
 sufficiently secured, was given that the negroes "would be produced on due 
 notice. If the owner could not give the necessary security the negroes were 
 hired out to citizens who could, and the money so obtained was turned over 
 to the owners. Gayarre, History of Louisiana, IV, 214-220, 
 
 2 Claiborne Papers, ** Claiborne 's Correspondence, Orleans Territory," 
 V; Gayarre, History of Louisiana, IV, 211-214. 
 
 3 Annals of Congress, 11 Cong., Part 1 (1809-1810), 596. The memorial 
 is given in full in the American State Papers, Miscellaneous, II, 51-52, and 
 in Aniwls of Congress, 11 Cong., Part 2 (1810), Appendix, 2269-2273. 
 
 * Annuls of Congress, 11 Cong,, Part I (1809-1810), 596. 
 
 5 Ibid., 646. 
 
 6 Ibid., 670. 
 f Ibid., 674. 
 
172 Constitutional History of the Louisiana Purchase 
 
 and declared themselves free and independent.^ The declaration 
 of independence was adopted September 26, 1810, and on Octo- 
 ber 10, John Rhea, president of the convention, wrote to Robert 
 Smith, secretary of state of the United States, asking for the 
 admission of West Florida as a ^tate into the Union. Should 
 it be thought best to annex West Florida to one of the neigh- 
 boring territories, or a part of one of them, a preference for 
 annexation to the island of Orleans was stipulated.® 
 
 The "legality" of the course pursued with regard to West 
 Florida had been carefully considered by Madison and had 
 troubled him somewhat. The crisis in West Florida, he confided 
 to Jefferson, October 19, 1810, presented ** serious questions, as 
 to the Authority of the Executive, and the adequecy of the exist- 
 ing laws of the U. S. for territorial administration, ' ' He feared, 
 also, that the short time intervening before the assembling of 
 Congress "might subject any intermediate interposition of the 
 Ex. to the charge of being premature & disrespectful, if not of 
 being illegal." On the other hand, considering the country to 
 the River Perdido as belonging to the United States, it "may be 
 fairly taken possession of, if it can be done without violence, 
 above all if there be danger of its passing into the hands of a 
 third & dangerous party, ' '" a contingency which Madison at that 
 moment greatly feared. A few days later, October 30, Madison, 
 writing to William Pinkney, said that his action was "under- 
 stood to be within the authority of the Executive. "^^ 
 
 8 For the text of the declaration see Annals of Congress, 11 Cong., 3 
 Sess. (1810-1811), Appendix, 1254-1255; also Gayarr§, History of Louis- 
 iana, IV, 231-233; Fuller, Purcliase of Florida, Chapters IV-VI, for an 
 extended account of the boundary dispute; Isaac J. Cox, "The American 
 Intervention in West Florida," in American Historical Review, XVII 
 290-311. ' 
 
 9 Annals of Congress, 11 Cong., 3 Sess. (1810-1811), Appendix, 1252- 
 1253; Gayarre, History of Louisiana, IV, 233-236. 
 
 10 Madison, Writings (Hunt, ed.), VIII, 110. 
 
 11 Ihid., VIII, 121. 
 
Demcmds for Statehood 173 
 
 What followed is best summed up in President Madison's 
 message to Congress, December 5, 1810 : 
 
 Among the events growing out of the state of the Spanish Monarchy, 
 our attention ■was imperiously attracted to the change developing itself in 
 that portion of West Florida which, though of right appertaining to the 
 United States, had remained in the possession of Spain, awaiting the 
 result of negotiations for its actual delivery to them.12 The Spanish 
 authority was subverted, and a situation produced exposing the country 
 to ulterior events which might essentially affect the rights and welfare of 
 the Union. In such a conjuncture I did not delay the interposition required 
 for the occupancy of the territory west of the river Perdido, to which the 
 title of the United States extends, and to which the laws provided for the 
 Territory of Orleans are applicable. With this view, the proclamation, of 
 which a copy is laid before you was confided to the Governor of that 
 Territory to be carried into effect. The legality and necessity of the course 
 pursued assure me of the favorable light in which it will present itself to 
 the Legislature, and of the promptitude with which they will supply what- 
 ever provisions may be due to the essential rights and equitable interests 
 of the people, thus brought into the bosom of the American family.is 
 
 An inkling of the attitude of the United States Government 
 towards the West Florida revolutionists was given in the state- 
 ment of Secretary of State Smith, ' * that the President could not 
 recognize in the Convention of West Florida any independent 
 authority whatever to propose, or to form a compact with the 
 United States."" 
 
 Claiborne, as ordered, marched with the militia to St. Fran- 
 cisville in West Florida and on December 7, 1810, hoisted the 
 flag of the United States and took possession of the country. 
 
 12 Tor a clear-cut statement of the basis for the claims of the United 
 States in the dispute over the eastern and western boundaries of Louisiana, 
 see Gallatin, Writings (Adiams, ed.), I, 241-24:Z (Letter to Jefferson, Sep- 
 tember 12, 1805). The weakness of the claims of the United States is 
 there shown. 
 
 13 Eichardson, Messages and Papers of the Presidents, I, 484; Annals 
 of Congress, 11 Cong., 3 Sess. (1810-1811), 12-13. For the text of the 
 proclamation referred to see ibid., Appendix, 1257-1258. For instructions 
 to Claiborne, ibid., 1256-1257. 
 
 14 Smith to Governor Holmes of Mississippi Territory, November 15, 
 1810, ibid., 1259; Gayarr^, History of Louisiana, IV, 240. 
 
174 Constituti(m<il History of the Louisiarui Purchase 
 
 The so-called State of West Florida was annexed to the territory 
 of Orleans, and organized into parishes.^^ 
 
 On December 10, 1810, the Senate took up the President's 
 message of December 5, and Senators Giles of Virginia, Pope of 
 Kentucky, Crawford of Georgia, Anderson of Tennessee, and 
 Bradley of Vermont were appointed a committee to examine and 
 report on the part of the President's message which referred to 
 West Florida." Giles for the committee reported, December 18, 
 on a bill declaring the laws in force in the territory of Orleans 
 to extend and to have full force and effect to the River Perdido, 
 pursuant to the treaty of April 30, 1803." The question came 
 up on the bill's passage to a third reading December 27, and 
 caused another debate which brought out further interpretation 
 of the constitutional functions of the various branches of the 
 Federal Government. 
 
 The issues under the bill were stated by Senator Horsey of 
 Delaware to be, first, in effect, the incorporation with the terri- 
 tory of Orleans of the province of West Florida east of the 
 Mississippi, as far as the Perdido; and, second, the extension to 
 that part of the province thus incorporated of the laws in force 
 in the territory of Orleans. Did the United States have a good 
 title to the province, and was it expedient for the Government to 
 take possession by force, were questions which Horsey proposed 
 for discussion. An examination of the authority of the President 
 to issue the proclamation and orders of August 27, 1810, direct- 
 ing the forcible occupation of West Florida introduced certain 
 constitutional problems. Horsey contended that if the procla- 
 mation had been unauthorized, Congress was not committed by 
 it, nor bound to sanction it. The President's authority must 
 have been derived either from the Constitution, or from some act 
 
 15 Gayarre, History of Louisiana, IV, 243, 
 
 ■ye j^nnals of Congress, 11 Cong., 3 Sess. (1810-1811), 17. 
 
 i7lbuZ., 25-26. 
 
Demands for Statehood 175 
 
 or acts of Congress. The Constitution gave to Congress the 
 exclusive power of declaring and making war; to the President 
 the power of executing the laws of the Union, The powers of 
 the former are legislative, of the latter executive. The President 
 in issuing his proclamation transcended the limits of his powers, 
 the proclamation being a matter of legislation and war — war 
 because it directed the occupation of the territory by a military 
 force. It was true that the troops were ordered not to molest 
 the Spaniards, but if they should be attacked by Spaniards a 
 conflict was inevitable.^^ The same would be true if the revo- 
 lutionists should attack the troops. 
 
 The proclamation was also an act of legislation, continued 
 Horsey, because it annexed the territory'' in question to the 
 territory of Orleans, created a governor, enacted laws and appro- 
 priated money. For all this there had been no authority under 
 the Constitution or by act of Congress. The act, therefore, was 
 an unwarrantable assumption of power and a violation of the 
 Constitution. 
 
 Horsey argued, also, that the title of the United States to 
 West Florida was not a good one, and even if it were, to assert 
 it by force was opposed to the equitable and pacific policy of 
 the United States.^^ 
 
 Henry Clay rose to answer Horsey. After asserting the 
 clear right of the United States to West Florida, he took up the 
 question of the constitutional powers of the Executive. By one 
 section of the Act of October, 1803, the President had been 
 authorized to occupy the territories ceded hy France to the 
 United States; by another, he had been empowered to establish 
 a provisional government there. The first was unlimited in 
 duration; the second was restricted to the expiration of the then 
 
 18 Just such a conflict actually occurred at a later date between Amer- 
 ican and Mexican troops and precipitated the Mexican War. 
 
 13 Annals of Congress, 11 Cong., 3 Sess. (1810-1811), 37-55. 
 
176 Constitutional History of the Louisiana Purchase 
 
 session of Congress. The Act of March, 1804 [the Breckinridge 
 Bill], which declared that the previous act of October should 
 continue in force until October 1, 1804, was applicable, said 
 Clay, to the second and not to the first section, and was intended 
 to continue the provisional government which had been estab- 
 lished by the President. By the Act of February 24, 1804, for 
 laj'^ing duties on goods imported into the ceded territories, the 
 President had been empowered wlienever he should deem it 
 expedient, to erect the bay and river Mobile, etc., into a separate 
 district, and to establish therein a port of entry and delivery. 
 By the same act Orleans Territory had been laid off and its 
 boundaries so defined as to include West Florida. By other acts 
 the President had been authorized to remove by force, under 
 certain circumstances, persons settling or taking possession of 
 lands ceded to the United States. These laws had vested in the 
 Executive an indisputable power to take possession of the 
 country whenever, in his opinion, it might be proper. There- 
 fore, held Cla3^, the President had not violated the Constitution 
 and usurped the war-making power; on the contrary, he would 
 have violated the Constitution had he neglected to see that the 
 laws of the land were faithfully executed. Nor was it any more 
 true that he had assumed powers belonging to Congress when 
 he undertook to annex "West Florida to the territorj- of Orleans, 
 inasmuch as Congress had already made this annexation the 
 limits of that territory. The President had not made law but 
 had merely declared to the people of West Florida what the 
 law was.^° 
 
 20Ann<jls of Congress, 11 Cong., 3 Sess. (1810-1811), 55-62. It is 
 interesting to note in this connection Clay's idea of the attitude the 
 Government should take toAvard a colony of another Power in disorder on 
 the American border: "I have no hesitation in saying, that if a parent 
 country vnll not or cannot maintain its authority in a colony adjacent to 
 us, and there exists in it a state of misrule and disorder, menacing our 
 peace, and if moreover such colony, by passing into the hands of any other 
 power, would become dangerous to the integrity of the Union, and mani- 
 festly tend to the subversion of our laws; we have a right, upon eternal 
 principles of self-preservation, to lay hold of it." Ibid., 63. 
 
Demands for Statehood 177 
 
 An interruption to the Senate debate on this particular 
 question came in the form of a message from the House of Repre- 
 sentatives on January 16, 1811, informing the Senate of the 
 passage by the House of a bill entitled, ''An act tg enable the 
 people of the Territory of Orleans to form a Constitution and 
 State Government, and for the admission of such State into the 
 Union on an equal footing with the original States, and for other 
 purposes"; in which bill they desired the concurrence of the 
 Senate.^^ 
 
 On January 25, the House bill, with amendments, was 
 reported by Charles Tait of Georgia, from the Senate committee 
 to whom this bill had been referred. Another discussion of the 
 West Florida question resulted- In arranging for the bound- 
 aries of the proposed state, the following stipulation was made: 
 "Provided nevertheless, that the Government of the United 
 States hereby retains the power of altering, in any manner it 
 may hereafter deem proper, the limits of all that portion of the 
 said prescribed territory, which lies east of the river Mississippi 
 and the island of New Orleans. ' '-^ 
 
 This proviso was struck out on January 29, after an attempt 
 to amend it had failed. The defeated amendment proposed the 
 retention of power by the United States to attach to the proposed 
 State any part of the territory lying east of the Mississippi 
 River, south of the Mississippi Territorj-, and west of the river 
 Mobile." 
 
 The old partnership-compact theory once more raised its 
 head when Dana of Connecticut proposed an amendment which 
 provided : 
 
 That this act shall not be understood to admit such State into the Union 
 as aforesaid, unless each of the original States shall consent to the same, 
 
 21 Ibid., 97. 
 
 22 Ibid., 103. 
 
 23 Ibid., 107. 
 
178 Constitutional History of the Louisiana Purchase 
 
 or there shall be a constitutional amendment empowering the Congress to 
 admit into the Union neAV States formed beyond the boundaries of the 
 United States, as known and understood at the time of establishing the 
 Constitution for the United States.24 
 
 "When this amendment was taken up, January 30, on motion 
 of Clay, it was divided. The first division, providing for the 
 consent of each state to the passage of the act admitting the new 
 state, was determined in the negative, naj's eighteen, yeas ten, 
 those voting in its favor being Bradley of Vermont, Champlin 
 of Rhode Island, Dana and Goodrich of Connecticut, German 
 of New York, Gilman of New Hampshire, Horsey of Delaware, 
 Lloyd and Pickering of Massachusetts, and Reed of Maryland. 
 The second division was then voted down, seventeen to eight. ^^ 
 
 After several other attempts at amendment and postpone- 
 ment the Enabling Act passed the Senate, February 7, by a 
 vote of twenty- two to ten.^^ The next day the Senate turned its 
 attention to the bill declaring the laws in force in the territory 
 of Orleans to extend to the River Perdido, and recommitted it 
 to the original committee to which this part of the President's 
 message had been first referred.-" 
 
 The petition of the legislature of Orleans Territory for 
 admission into the Union as a state, with the same privileges and 
 immunities enjoyed by the other states, was presented to the 
 House on December 17, 1810, by Julian Poj'^dras, delegate from 
 Orleans Territory.^® Being referred in the usual wa3^ to a 
 committee, it was reported December 27, and taken up in the 
 Committee of the Wliole, January 2, 1811. Poydras said that 
 the territory contained at least sixty thousand inhabitants and 
 
 2iAnn/ils of Congress, 11 Cong., 3 Sess. (1810-1811), 108. 
 
 25 Ihid., 110. 
 
 26 J&i<?., 127. 
 
 27 Ibid., 129. 
 
 28 Ibid., 413-414. 
 
Demands for Statehood 179 
 
 had a right to become a state. It was left to Congress, however, 
 to act as it saw fit. Troup of Georgia said the House was not 
 prepared to act on the subject. He also alluded to the difficulty 
 arising from including within a state the territory between the 
 Mississippi and the Perdido, which was still in dispute and sub- 
 ject to negotiation. "Willis Alston of North Carolina presented 
 the view occasionally heard, although it never had a large fol- 
 lowing, "that there was no question of the propriety of admit- 
 ting the Territory as a State, whilst it was in the power of 
 Congress to make conditions with them. After the population 
 was ascertained to amount to 60,000, they would become a State 
 without asking the leave of Congress. ' ' Bibb of Georgia favored 
 the bill but thought it wise to postpone decision because of the 
 pending negotiations over the eastern boundary of the territory. 
 "If it became a State," he inquired, "would not all right of 
 negotiation of the subject be taken from the President?" 
 
 Barry of Kentucky claimed the need for state government to 
 be urgent, and answered the objection respecting the boundary 
 question by saying that a modification of the bill could be made, 
 reserving to Congress the power of changing the boundary of 
 the territory. He urged action on the bill while Congress yet 
 had the power to impose conditions on the territory. He agreed 
 with Alston in declaring that if Congress should wait until the 
 population reached sixty thousand, the demands of the people 
 could not be refused. Passing this bill, however, would admit 
 of imposing conditions on them, 
 
 Barry appears -to have lost sight of the fact that an act of 
 one Congress was not necessarily binding. According to his 
 interpretation, Congress, having set at sixty thousand the num- 
 ber of inhabitants necessary for the admission of Orleans 
 Territory into the Union as a state, was bound as though by 
 compact to allow the admission. While this might be the fair 
 
180 Constitutimuil History of the Louisiuim Purchase 
 
 thing to do, there was nothing to prevent Congress from impos- 
 ing other conditions, even to the extent of delaying the admission 
 of the proposed state by increasing the number of inhabitants 
 required for that act. 
 
 Another possible dilemma was pointed out by Sheffey of 
 Virginia, who also took up the question of the extension of the 
 limits of the state to the Perdido. He called to mind the fact 
 that when the Executive had directed the occupation of West 
 JFlorida a pledge had been given that it should be subject to 
 future negotiation. "Would anyone say that the Executive could 
 convey away any part of a state? What would he be bound to 
 do if it should be proved that the territory was not ceded? 
 Would the doctrine be established that the treaty-making power 
 has a right to cede a state or any part of a state? Sheffey 
 thought it wise to move slowly in this affair. Bibb said that 
 when the bill came up again, he would move to strike out the 
 proviso relating to the inclusion of the territory east to the 
 Perdido. To make it a state would forever preclude negotiation 
 on the subject. A resolution, moved by him, providing for the 
 appointment of a committee to inquire into the expediency of 
 annexing to the Mississippi Territorj'^ or creating into a separate 
 territorial government, the territory under dispute, was being 
 discussed when a confidential message was received from the 
 President and further debate was postponed.^^ 
 
 The bill for admitting the territorj^ of Orleans into the Union 
 as a state was taken up in Committee of the Whole the next day, 
 January 4. Long and earnest interpretations of constitutional 
 rights were made. Wheaton of Massachusetts reiterated the 
 claim that the Constitution, as shown by its "enacting clause," 
 was ordained and established for the then United States of 
 America, implying the exclusion of all others. Failure to set 
 a boundary to extension would ultimately result in the relative 
 
 29Jnnals of Congress, 11 Cong.; 3 Sess. (1810-1811), 482-486. 
 
Demands for Statehood 181 
 
 unimportance of the original parties to the compact. He intro- 
 duced another novel interpretation by remarking that the admis- 
 sion of the people of the territory of Orleans into the Union as a 
 state would carry with it the right to send representatives and 
 senators to Congress; yet the Constitution had set as a quali- 
 fication for senators, citizenship in the United States for at 
 least nine years, a period longer than any of the people of the 
 territory had belonged to the United States, unless they hap- 
 pened to be emigrants and had not lost their citizenship. 
 
 Miller of Tennessee sided with those who opposed the bill 
 because it included extension of the limits of the territory to the 
 Perdido. There was no power, he said, to negotiate concerning 
 the territory of any state, and this problem would be presented 
 if the bill passed as drawn up. Miller's colleague, Rhea, favored 
 the bill, and protested against the doctrine that no territory 
 could be admitted into the Union as a state which did not belong 
 to the original states. The United States, a sovereign, had 
 power to purchase adjacent territory and to admit it into the 
 Union. In this theory, Gholson of Virginia and Macon of North 
 Carolina acquiesced.^** 
 
 When discussion of the bill was resumed on Januarj'- 9, 
 Sheffey moved to insert in place of the part of the bill which 
 prescribed the boundaries of the future state the words: "All 
 that territory now contained within the limits of the Territory 
 of Orleans, except that part lying east of the river Iberville and 
 a line drawn along the middle of the lakes Maurepas and Pont- 
 chartrain to the ocean." This amendment was opposed by 
 "Wright of Maryland and Rhea on the ground that the Treaty 
 of 1803 with France guaranteed to the undivided territory of 
 Orleans a right to become a state on the same conditions with 
 other states. Bibb and Ely of Massachusetts supported the 
 amendment, believing it expedient to leave that part of the 
 
 BO Ibid., 493-505. 
 
182 Constitutional History of the Louisiana Purchase 
 
 territory in such a position as would enable the United States 
 to negotiate respecting it. Sheffey's motion was agreed to, 
 sixty-three voting in favor of it.^^ 
 
 The bill was read the third time on Saturday, Januar3^ 10, 
 but discussion being interrupted by the receipt of a confidential 
 message from the Senate, it was postponed until the following 
 Monday.^^ The boundary question arose once more to plague 
 the House, but this time from a different angle, when Timothy 
 Pitkin of Connecticut rehearsed at length the problems of the 
 western boundary. The boundary could not be changed after 
 the admission of the territory as a state; therefore, declared 
 Pitkin, conditions ought to be attached giving the United States 
 control of the boundary question.^^ Johnson of Kentucky did 
 not recognize any insurmountable difficulty in the matter. First 
 asserting that "the principles of every State constitution in the 
 Union, the political creed so often professed on this floor, the 
 sentiments of freedom as often expressed, and the articles of the 
 Federal Constitution which circumscribed our powers, all unite 
 to enforce the claims of this Territory to State sovereignty," he 
 added that by the treaty the United States was bound to admit 
 the territory as soon as possible. The boundary question was not 
 a new one. A similar dispute over the northeastern boundary 
 had been settled peaceably with Great Britain, according to 
 provisions of the Jay Treaty of 1794. Similarly the boundary 
 between the state of Georgia and the Spanish provinces of East 
 and West Florida had been established by the Treaty of 1795 
 between the United States and Spain. There was no reason, 
 said Johnson, why the boundaries of the proposed state might 
 not be settled in the same way.^* 
 
 ^^ Annals of Congress, 11 Cong., 3 Sess. (1810-1811), 513. 
 
 32 Ibid., 516. 
 
 33 Ibid., 518-519. 
 
 34 Ibid., 520-524. 
 
Demands for Statehood 183 
 
 Josiah Quincy then took the floor, and assuming an extremely 
 radical point of view in opposition to the passage of the bill, 
 delivered what is perhaps the most widely known speech on the 
 entire subject, in the course of which he asserted : 
 
 ... I am compelled to declare it as my deliberate opinion, that, if this 
 bill passes, the bonds of this Union are virtually dissolved; that the States 
 which compose it' are free from their moral obligations, and that, as it will 
 be the right of all, so it will be the duty of some, to prepare definitely for 
 a separation — amicably if they can, violently if they must. 
 
 Quincy was here called to order by Poindexter, territorial 
 delegate from Mississippi. The Speaker upheld Poindexter but 
 the House, on appeal, voted against the Speaker's decision and 
 Quincy 's observations were declared to be in order. Quincy then 
 resumed his speech. He held it to be a usurpation of power, 
 without sanction of the Constitution, for the three branches of 
 the National Government, without recurrence to conventions of 
 the people, in the states, or to the legislatures of the states, to 
 authorize the admission of new partners to a share of the politi- 
 cal power, in countries outside the original limits of the United 
 States. The provision that "new States may be admitted, by 
 the Congress, into the Union," referred only to new political 
 sovereignties to be formed within the original limits of the 
 United States. No mention of new territory was to be found 
 in the debates in the period of the adoption of the Federal Con- 
 stitution. This fact, according to Quincy, would go to show that 
 the people had no idea of territorial expansion on the part of 
 their successors. One of the arguments used against the success 
 of the new Government of the United States had been that the 
 territory was too extensive for a republican form of government. 
 Yet ambitious hopes were already looking far beyond any limits. 
 Quincy pessimistically prophesied what has since come to pass 
 when he said : ' * We are now about to cross the Mississippi. The 
 Missouri and Red rivers are but roads on which our imagination 
 
184 Constitutional History of the Louisiana Purchase 
 
 travels to new lands and new States to be raised and admitted 
 (under the power, now first usurped) into this Union, among 
 undiscovered lands, in the west." In like vein a little later in 
 the same speech he added: ** There is no limit to men's imag- 
 inations, on this subject, short of California and Columbia 
 river. ' ' 
 
 The real motive back of Quincy's fierce denunciation of the 
 principles of the bill was stated clearly and emphatically — that 
 of the political balance of power: "Whether the proprietors of 
 the good old United States shall manage their own affairs in 
 their own way; or whether they, and their Constitution, and 
 their political rights, shall be trampled under foot by foreigners 
 introduced through a breach of the Constitution. ' ' The relation 
 between state and federal government was laid down by Quincy 
 in a manner to satisfy the most radical advocate of states ' rights : 
 
 I hold my life, liberty, and property, and the people of the State, from 
 which I have the honor to be a Itepresentative, hold theirs by a better 
 tenure than any this National Government can give. . . , We hold these by 
 the laws, customs, and principles of the Commonwealth of Massachusetts. 
 Behind her ample shield we find refuge, and feel safety. . . . Sir, I confess 
 it, the first public love of my heart is the Commonwealth of Massachusetts. 
 . . . The love of this Union grows out of this attachment to my native soil, 
 and is rooted in it. I cherish it, because it affords the best external hope 
 of her peace, her prosperity, her independence. 
 
 In conclusion, Quincy claimed that the bill, if passed, would 
 be a deathblow to the Constitution,^^ 
 
 35An7ials of Congress, 11 Cong., 3 Sess. (1810-1811), 524-542. An 
 idea of the impression made by Quiney's speech is found in William 
 Plumer's letter to John Quincy Adams, February 7, 1811, in which he -wrote: 
 "The Orleans territory is to be admitted as a State into the Union. On 
 this question Josiah Quincy made a long speech in the house, & avowed 
 sentiments more hostile to the integrity of the union of the States, than, I 
 believe, any federalist ever had the hardihood to avow. His political friends 
 in New England tax him Avith imprudence, & his enemies with folly and rash- 
 ness;" Plumer MSS. See also John Quincy Adams, Writings (Ford, ed.), 
 IV, 207-209, for Adams' opinion of Quincy's speech. 
 
 Compare the reply of the House committee of Massachusetts to which 
 was referred Governor Strong's speech at the opening of the spring session 
 
Denimids for Statehood 185 
 
 Poindexter's reply to Quincy is also of considerable interest 
 when viewed in the light of - constitutional interpretation. He 
 maintained that the provision of the Constitution authorizing 
 Congress "to dispose of and make all needful rules and regula- 
 tions respecting the territory of the United States" contained 
 an express recognition of the right to possess territory. The 
 right to acquire followed as an indispensable attribute of sover- 
 eignty. A nation may extend its territorial limits either by 
 conquest or treaty. No prohibition of the right to acquire 
 territory, either by war or compact, was contained in the Con- 
 stitution. 
 
 The treaty-making power, continued Poindexter, is composed 
 of the President and two-thirds of the senators present. When- 
 ever appropriations of money are necessary to carry a treaty 
 into effect, the House of Representatives has a check on the 
 other branches. A treatj^ once ratified by each coordinate 
 department of the Government becomes the supreme law of the 
 land, and is as binding on the House as an article in the Consti- 
 tution itself. A distinction existed between laws and treaties; 
 ■laws being made in pursuance of the Constitution, treaties 
 '* under the authority of the United States." If an article in a 
 treaty contravened an express provision of the Constitution it 
 would not be binding. Wlio is to be arbiter between the treaty- 
 making power and the Constitution? Poindexter considered it 
 ridiculous that this great power should be given to the Supreme 
 
 of 1813: "We are duly impressed by your Excellency's suggestion^ that the 
 extension of territorial limits was never contemplated by the framers of the 
 Constitution. If the President and Senate may purchase land, and Congress 
 may plant States in Louisiana, they may with equal right establish them on 
 the North-West Coast, or in South-America. It may be questioned here- 
 after, whether after this formation of new States, the adherence of the old 
 ones which dissented from the measure, is the result of obligation or expedi- 
 ency. And it is evident, that this multiplication of new States, not parties 
 to the original compact, must soon be regarded as fatal to the rights and 
 liberties of some of the present members of the confederacy, and conse- 
 quently as an insuperable grievance. " S. E. Morison, The Life and Letters 
 of Harrison Gray Otis, II, 68-69. 
 
186 Constitutional History of the Louisiatia Purchase 
 
 Court. Should the other three^^ branches of the General Gov- 
 ernment determine a treaty to be constitutional, by passing laws 
 to carry it into effect, it becomes at once the supreme law of the 
 land, and so far as its stipulations secure personal privileges 
 and the rights of property, they must be fulfilled. Such an 
 agreement he found in the third article of the treaty of cession 
 of Louisiana. 
 
 To Quincy's fear of loss of New England's political power 
 in the Union if the bill should pass, Poindexter gave a more 
 rational answer than his interpretation of the force of treaties: 
 
 It results from the very nature of our Government that political influence 
 fluctuates in proportion to the augmentation or diminution of population 
 in the various sections of the country. ... If as the gentleman [Quiney] has 
 alleged, the proportions of political power in the several States, is an 'in- 
 alienable, essential, intangible right,' it must forever remain the same, like 
 -a, chartered privilege, let the weight of population rest where it may. Such 
 a principle is inconsistent with the genius of a free Government, and incom- 
 patible with the sovereign authority of the people. 37 
 
 As might have been expected, Poindexter 's statement of the 
 binding force of treaties did not pass unchallenged. Thomas R. 
 Gold of New York denied that the treaty-making power was free 
 from all restriction of the Constitution. If it were true, as had 
 been asserted, said Gold, that since the admission of Louisiana 
 into the Union had been stipulated by the treaty of purchase, no 
 provision of the Constitution could arrest a bill providing for 
 the admission, the very foundations of the Constitution would be 
 subverted.^* 
 
 Bibb and Wright both spoke in favor of the bill, justifying 
 it on constitutional grounds. Kej^ of Maryland opposed it and 
 was answered by Macon. The indefinite postponement of the 
 
 36 Presumably counting the Senate and House as separate branches. 
 
 ST Annals of Congress, 11 Cong., 3 Sess. (1810-1811), 555-570. John 
 Adams thought Poindexter and others had offered arguments of "great 
 weight" in answer to Quiney (John Adams, Worlcs, IX, 632). 
 
 3» Annals of Congress, 11 Cong., 3 Sess. (1810-1811), 570. 
 
Demands for Statehood 187 
 
 bill which had been moved by Quincy was defeated, and the 
 main question that the bill do pass was taken, January 15, and 
 decided in the affirmative, seventy-seven to thirty-six.^^ 
 
 On February 9, the House took up the Senate amendment to 
 the bill to make the Sabine River the boundary from the ocean 
 to the thirty-second degree of north latitude and thence due 
 north until it intersected the northern boundary line of Orleans 
 Territory. It was agreed to without opposition. 
 
 Another amendment of the Senate proposing to change the 
 part of the bill declaring that the convention should be chosen 
 by free male inhabitants, by adding the word "white" so as to 
 exclude free colored people of mixed blood from voting, caused 
 some debate. Smilie of Pennsylvania opposed it. The bill, he 
 pointed out, provided only for the election of a convention to 
 form a constitution; after which the people could settle the 
 matter for themselves as to who should vote for members of 
 Congress, etc. Mitchill of New York thought the convention and 
 legislature better able to decide the question than the House. 
 The amendment was negatived,*" but the Senate adhering to it, 
 the House again took up the question and receded from its 
 determination to reject the amendment.*^ 
 
 The way was now open for Louisiana to enter the Union as 
 a state. 
 
 39 Ihid., 573-577. 
 ^oibid., 936-937. 
 41 Ibid., 963-964. 
 
CHAPTER XI 
 ADMISSION TO STATEHOOD 
 
 The act enabling the people of the territory of Orleans to 
 form a constitution and a state government, and providing for 
 the admission of the state into the Union was approved by the 
 President February 20, 1811. Section two authorized all free 
 white male citizens of the United States, twenty-one years of 
 age, residing within the territory at least one year previous 
 to the day of election and who had paid a territorial, county, 
 district, or parish tax; and all other persons having in other 
 respects the legal qualifications to vote for representatives in 
 the general assembly of the territory, to choose representatives 
 to form a convention. These representatives were to be appor- 
 tioned among the several counties, districts, and parishes in 
 such manner as the territorial legislature should direct. The 
 number of representatives was not to exceed sixty. The date 
 of elections for the representatives was set for the third Monday 
 in the September following. The elections were to be conducted 
 in the same manner as provided by the laws of the territory for 
 the election of members of the house of representatives. 
 
 Certain conditions were laid down in section three. The 
 convention, upon deciding to form a constitution and state gov- 
 ernment, must first declare, in behalf of the people, that it 
 adopted the Constitution of the United States ; which having 
 been done, the convention was authorized to proceed with the 
 formation of a constitution and state government. It was stipu- 
 lated that this constitution must be republican in character, and 
 consistent with the Federal Constitution; that it must contain 
 the fundamental principles of civil and religious liberty; that 
 it should secure to the citizens trial by jury in all criminal cases. 
 
Admission to Statehood 189 
 
 and the privilege of the writ of habeas corpus, conformable to 
 the Constitution of the United States; and that all legislative 
 and judicial proceedings and records must be in the English 
 language. All waste or unappropriated lands were to belong to 
 the United States; and all such tracts of land sold by Congress 
 were to be exempt from state taxation for the term of five years 
 following the sales. Lands belonging to citizens of the United 
 States, resident outside the state, were never to be taxed higher 
 than lands of persons residing therein. Lands of the United 
 States were not to be taxed. The Mississippi and navigable 
 waters leading into it or the Gulf of Mexico were to be common 
 highways to the inhabitants of the proposed state and all other 
 citizens of the United States, and free from state taxation. 
 
 Section four provided that if the convention should frame 
 a state constitution which was not disapproved by Congress at 
 its next session, the state should be admitted into the Union, 
 upon the same footing with the original states. 
 
 The last section enacted that five per cent of the net proceeds 
 from the sale of the lands of the United States, after January 1, 
 should be used as the state legislature might direct in the build- 
 ing of public roads and levees in the state.^ 
 
 The territorial legislature of Orleans Territory made the 
 necessary arrangements for the election of members of the con- 
 stitutional convention, leaving out of consideration, however, the 
 part of West Florida which had recently been taken possession 
 of, because Congress had not yet annexed this district to the 
 Territory of Orleans. 
 
 On May 31, 1811, Claiborne wrote to Secretary of State 
 Monroe, enclosing a copy of his proclamation directing the elec- 
 tion of members of a constitutional convention. He gave it as 
 his belief that the formation of a state government and admis- 
 
 ^ Annals of Congress, 11 Cong., 3 Sess. (1810-1811), Appendix, 1326- 
 1328; Laws of U. States, IV, 328-330. 
 
190 Constitutional History of the Louisiana Purchase 
 
 Bion into the Union would strengthen the Union. It would dis- 
 courage foreign intrigues and internal discontent. A state 
 government might not run smoothly at first but would improve 
 as the people gained experience.- 
 
 The convention met November 4, but its real work began on 
 November 18, 1811. A constitution was drawn up and adopted, 
 the stipulations made by the Federal Government having first 
 been assented to; and a memorial to Congress requesting the 
 annexation of West Florida to the new state about to be erected 
 was also adopted. The convention, after making all provisions 
 deemed necessary for the carrying of the constitution into effect 
 provided it received the approval of Congress, adjourned Janu- 
 ary 28, 1812.3 
 
 A letter from Claiborne to INIonroe on January 31, 1812, 
 introduced to him Messrs. E. Fromentin and Allan B. Magruder, 
 who had been appointed by the convention as agents to convey 
 to the President of the United States the constitution proposed 
 for the new state. Once again Claiborne remarked that the gen- 
 eral welfare seemed to require that the state government should 
 soon be established. A majority of the people were well disposed 
 toward the Government of the United States and admission as 
 a state would strengthen this feeling. 
 
 Claiborne reported also that the agents carried with them a 
 memorial to Congress asking for annexation of a part of West 
 Florida to the new state. The bearing such an act might have 
 on foreign relations Claiborne thought to be outside his province 
 to discuss. He felt that the interests of the new state strongly 
 advised an enlargement of its limits. The annexation would not 
 onh^ conduce to the convenience and prosperity of the people 
 more immediately interested, but to the national good.* 
 
 2 Claiborne Payers, "Claiborne's Correspondence, Orleans Territory," 
 VI, 1809-1812. 
 
 3 For a fuller account of local details, see Gayarre, History of Louis- 
 iana, IV, 266-275; Louisiana Gazette, November 19 and following issues. 
 
 * Claiborne Papers, "Orleans Territorj', Miscellaneous Papers." 
 
Admission Jo Statehood 191 
 
 The proceedings of the constitutional convention were trans- 
 mitted to Congress by President Madison in a special message 
 on March 4, 1812.^ The question of the admission of Louisiana 
 into the Union, and of the extension of the laws of the United 
 States thereto was taken up in both Houses of Congress. The 
 chief difficulty, as shown by the report of the debates in the 
 House on March 18 and March 19, was the disposal of West 
 Florida. Poindexter offered an amendment providing that as 
 soon as the consent of the state legislature should be given, this 
 area should be incorporated into, and made a part of the state, 
 and governed as if included within the original boundaries of 
 the state; provided, nevertheless, that the title of the United 
 States to the tract should remain subject to future negotiation. 
 A difficulty was here perceived by Johnson of Kentucky who 
 said that the people of the Florida district, although to be in- 
 cluded within the new state, would nevertheless be deprived of 
 a voice in the passage of the first laws, and in the choice of sen- 
 ators in Congress. He therefore moved an amendment to the 
 bill dividing the territory under question into two counties, each 
 to send one senator and one representative to the state legisla- 
 ture. Poindexter asked how Congress could saj' that those people 
 should form a part of the new state as soon as its consent could 
 be given, and then declare that though by the terms of the law 
 they were not a part of the people of the state, yet they were to 
 be represented in the legislature of the state. Clay cut this 
 Gordian knot temporarily by remarking that it being understood 
 that a memorial would be presented at the earliest opportunity 
 from the convention of Orleans asking for the annexation of the 
 West Florida territory, it would be wise to wait for it, as there 
 might then be a clearer understanding of the subject. His 
 suggestion was adopted.® 
 
 5 Eichardson, Messages and Papers of the Presidents, I, 498; Annals of 
 Congress, 12 Cong., Part I (1811-1812), 1155, message dated March 3. 
 e Annals of Congress, 12 Cong., Part 2 (1811-1812), 1216-1218. 
 
192 CoJistitntional History of the Louismna Piirchase 
 
 The memorial here referred to was presented to the House 
 on the next day.^ Johnson's amendment was then taken up. 
 Calhoun was not in favor of incorporating in the law a prin- 
 ciple of representation different from that feature in the consti- 
 tution of the new state which arranged for a different apportion- 
 ment. To do this the convention which alone could make the 
 change would have to be reassembled. During the same debate 
 he said that the people in question would be unrepresented only 
 until the organization of the state government. This interval 
 was unavoidable and not important because so short. The pro- 
 posed amendment, he declared, would be engrafting the principle 
 of territorial government on a state government, to which it was 
 wholly inapplicable. It was ''assuming to make a constitution 
 for the people of a State, whose inalienable right it was to form 
 a constitution for themselves. ' ' 
 
 Nelson of Virginia could not see that the proposed amend- 
 ment was incompatible with the Constitution, or inexpedient. 
 The error lay in considering Louisiana a state, which it would 
 not be until the bill before the House passed. Congress still 
 had the right to impose conditions in the instrument which was 
 to make Louisiana a state. He felt that the people of West 
 Florida could not be constitutionally deprived of representa- 
 tion in the state legislature. In answer to Poindexter's doubts 
 of how a territory could be represented in the first legislature 
 of the state to which it was not annexed until the consent of the 
 legislature should be obtained. Nelson replied that there was not 
 in existence a legislature of Louisiana, nor would there be until 
 the bill had passed raising the territory to statehood. In admit- 
 ting the state into the Union, having already imposed conditions, 
 Congress could impose the condition proposed by the amend- 
 ment. Gholson of Virginia considered the amendment, in its 
 present form, to be incompatible with the constitution offered 
 
 7 Aniials of Congress, 12 Cong,, Part 2 (1811-1812), 1219. 
 
Admission to Statehood 193 
 
 for the consideration of Congress. He read an amendment which 
 he proposed to offer if the' one under consideration was not 
 agreed to. Johnson's amendment was then negatived by the 
 close vote of thirty-nine to thirty-seven. 
 
 The amendment which Gholson offered provided : 
 
 That the people of that portion of West Florida hereby proposed to 
 be made a part of the State of Louisiana shall, before the election of 
 Senators and a Representative to the Congress of the United States, be 
 invested with, and enjoy equal rights of representation and equal privileges 
 in every respect, with the people of the residue of the said Stated 
 
 After a brief debate the amendment was agreed to without a 
 division.® 
 
 The next day, March 20, the bill for the admission of the 
 state of Louisiana into the Union, and for the extension of the 
 laws of the United States thereto was read a third time and 
 parsed without debate by a vote of seventy-nine to twenty-three.^ 
 
 The Senate had taken up the same question,^" but on March 
 30, had turned to a consideration of the bill passed by the 
 House.^^ The Senate did not accept the House bill as framed,^- 
 and. offered amendments to it, the principal one being that which 
 separated from the bill the provision for extending the limits 
 of the new state to include a portion of the Florida territory. 
 To this the House agreed.^^ Having passed both Houses, the 
 bill was approved by the President April 8. After specifying 
 the territory included within the limits of the new state, and 
 stating that the conditions stipulated by Congress had been 
 fulfilled, it was enacted that the new state was admitted into the 
 Union on an equal footing with the original states, under the 
 name of the- state of Louisiana. As a condition of incorporation 
 
 8 Ibid., 1224-1226. 
 
 9 Ibid., 1227. 
 
 10 Ibid., Part I, 171. 
 
 11 Ibid., 176. 
 
 12 Ibid., 179, 184, 186. 
 
194 Constitutimial History of the Louisiana Purchase 
 
 into the Union it was further enacted that the Mississippi and 
 the navigable waters leading into it and into the Gulf of Mexico 
 must remain free open highways to the citizens of the United 
 States. The other conditions of the Enabling Act were consid- 
 ered binding in like manner. 
 
 Section two provided that until the next census and appor- 
 tionment of representatives, Louisiana was entitled to one repre- 
 sentative; and all laws of the United States not locally inap- 
 plicable were extended to the state with the same force and 
 effect as in the rest of the United States. 
 
 The third section made arrangements for a judicial district, 
 and the fourth for an United States attorney and a marshal. 
 
 Section five laid down customs regulations; and by the last 
 section it was enacted that the act should be in force from and 
 after April 30, 1812." 
 
 Although the Senate had refused to pass a bill combining 
 with the admission of Louisiana into the Union, a provision to 
 annex to that state the disputed district of West Florida, this 
 did not mean that the Senate was opposed to the annexation. 
 "Wliile the discussion over the Statehood Bill was going on, 
 another bill was reported in the Senate, March 27, to enlarge the 
 limits of the state of Louisiana to include the territory afore- 
 mentioned.^^ Having passed the Senate,^^ it was sent to the 
 House,^^ and passed.^^ 
 
 This act, approved by the President, April 14, 1812, provided, 
 in case the legislature of the state of Louisiana should consent, 
 for the inclusion, as if within the original boundaries of the 
 state, of the territory bounded as follows: 
 
 13 Aiui-als of Congress, 12 Cong., Part 2, 1254. 
 
 14 /bid., Part 2, Appendix, 2264-2265; Laws of U. States, IV, 402^03. 
 
 ^5 Antwls of Congress, 12 Cong., Part 1 (1811-1812), 186. 
 
 ^^Ibid., 194. 
 
 ^1 Ibid., Part 2, 1278. 
 
 i&Ihid., 1298. 
 
Admission to Statehood 195 
 
 Beginning at the junction of the Iberville with the river Mississippi; 
 thence, along the middle of the Iberville, the river Amite, and of the lakes 
 Maiirepas and Pontchartrain to the eastern mouth of the Pearl river; 
 thence, up the eastern branch of Pearl river to the thirty-first degree of 
 north latitude; thence along the said degree of latitude to the river Mis- 
 sissippi; thence, down the said river to the place of beginning. 
 
 i 
 
 It was further enacted that it should be incumbent upon the 
 legislature of the state, having consented to the incorporation, 
 to make provision by law at their first session for the representa- 
 tion of the territory in the state legislature, upon principles of 
 the Constitution, and for securing to the people of the territory, 
 equal rights, privileges, benefits, and advantages, with those 
 enjoyed by the people of the other parts of the state. The law 
 so providing would be liable to revision, modification or amend- 
 ment by Congress but not by the legislature of the state.^^ 
 
 These provisions were assented to by the legislature of Louis- 
 iana, August 4, 1812.2° 
 
 On July 30, Claiborne had entered upon the duties of the 
 ofi&ce of governor of the state of Louisiana ;2^ with the pass- 
 age of the law above referred to annexing West Florida to 
 Louisiana, the immediate constitutional questions arising from 
 the Louisiana Purchase came to an end. What those questions 
 were and in what manner they were decided has been pointed 
 out. Although no definite authority to do so was contained in 
 the Constitution, the United States had acquired territory. That 
 territory had been divided and governed as Congress and the 
 President dictated, and part of it had after a lapse of years been 
 received into the union of the states by act of Congress and the 
 President, without the consent of the individual states. The 
 
 i9 76id., Appendix, 2270; Laws of TJ. States, IV, 409. 
 
 20 Grayarre, History of Louisiana, IV, 281. Por the annexation question, 
 see ibid., IV, 276-281 ; Henry Adams, History of the United States, V, 319- 
 326. 
 
 21 Claiborne to Madison, August 2, 1812, in Madison Papers, "Writings 
 to Madison," XLVI. 
 
196 Constitutimial History of the Louisiana Purcluise 
 
 significance of all these constitutional precedents can only be 
 realized by a study of the debates in Congress over each new 
 acquisition of territory, and by a careful survey of the cases 
 decided by the Supreme Court where the rights of the inhab- 
 itants of the acquired territories have been at issue. With each 
 new extension of the limits of the United States, the interpreta- 
 tions of the Constitution made at the time of the Louisiana Pur- 
 chase have been reviewed in argument for and against various 
 provisions of the new annexations. During the controversy over 
 Texas, and, a little later, over the territory acquired from Mexico, 
 opposing statesmen like Webster and Calhoun found support 
 for their arguments in the Louisiana precedents ; while a survey 
 of the voluminous report of the Insular Cases of 1900 discloses 
 the fact that so numerous are the references to the contemporary 
 writings and debates on the acquisition of Louisiana that the 
 report might almost serve as a source book of constitutional 
 documents for that subject. 
 
 The Louisiana Purchase is not a dead issue, therefore, but 
 lives on in the constitutional history of the present day. It 
 serves as the corner stone for all interpretations of the constitu- 
 tional right of the United States to acquire and govern foreign 
 territory; and such acquisitions have been one of the most sig- 
 nificant features in the history of the United States. 
 
BIBLIOGRAPHY 
 
 Makusceipts 
 
 Claiborne Papers. Bureau of Bolls and Library of the State Department, 
 Washington, D. C. 
 
 ** Claiborne's Correspondence relative to Louisiana." 6 vols. 
 "Claiborne's Correspondence, Orleans Territory, Miscellaneous." 1 
 vol. 
 
 Jefferson Papers. Manuscripts Division, Library of Congress, Washington, 
 D. C. 
 
 "Letters from Jefferson, 1st Series." Vols. IX, XL 
 
 "Letters received at Washington, 2d Series." Vols. XVII, XIX, 
 
 XXVI, LII, LXXVI. 
 "Letters received at Paris and Philadelphia, 2d Series." Vol. 
 
 LXV. 
 "Letters to Jefferson, 2d Series." Vol. LXIII. 
 
 Jefferson Papers. Massachusetts Historical Society Library, Boston, Massa- 
 chusetts. 
 
 **The Coolidge Collection." This collection pertains almost exclu- 
 sively to private matters and contains little of direct political 
 importance. A selection of letters from this collection is printed 
 in the Massachusetts Historical Society, Collections, Seventh 
 series, I (Jefferson Papers). 
 
 Madison Papers. Manuscripts Division, Library of Congress, Washington, 
 D. C. 
 
 "Writings to Madison." Vols. XXVI, XLVL 
 
 Monroe Papers. Manuscripts Division, Library of Congress, Washington, 
 D. C. 
 
 "Writings to Monroe." Vol. IX. 
 "Writings of Monroe." Vol. II. 
 
 Pickering Papers. Massachusetts Historical Society Library, Boston, Massa- 
 chusetts. 
 
 "Letters from Correspondents, 1800-1803." Vol. XXVI. 
 "Letters to his Correspondents, 1801-1813." Vol. XIV. 
 
 Plumer Manuscripts. Manuscripts Division, Library of Congress, Washing- 
 ton, D. C; State Library, Concord, New Hampshire. 
 
 A large collection of the letters and papers of Senator William 
 Plumer of New Hampshire. Part of this collection is in the 
 Library of Congress, and part in the State Library, Concord, New 
 
198 Constitutional History of the Louisiana Purchase 
 
 Hampshire. Of Plumer's writings, the most valuable for the 
 purposes of this monograph "were the three volumes of a journal 
 of the debates in the Senate from October, 1803, to April, 1807. 
 The first volume is entitled, "Memorandum of the Proceedings 
 of Congress, Particularly of the Senate, from October 17, 1803, 
 to March 27, 1804"; the second, "Memorandum of the Proceed- 
 ings of the second Session of the Eight Congress commencing 
 Nov. 5th 1804 and ending March 3d 1805"; and the third, 
 "■William Plumer's Register, Vol. 1," which, despite its title, is 
 merely a continuation of the two former volumes, extending the 
 journal from May 2, 1805, to April 21, 1807. All of these volumes 
 are now in the Manuscripts Division of the Library of Congress. 
 
 Bohtins Papers. Massachusetts Historical Society Library, Boston, Massa- 
 chusetts. 
 
 Vol. VIII, 1800-1838. 
 
 CONTEMPOKAKT PAMPHLETS, 1803-1812 
 
 An Address to the Government of the United States, on th-e Cession of 
 Louisiana to tlw French; and on the Late Breach of Treaty by the 
 Spaniards: including tlie translation of a Memorial, on the war of 
 St. Domingo, and cession of tlie Mississippi to France, drawn up by a 
 French Counsellor of State. Philadelphia, Baltimore, and Washington 
 City, 1803. 
 
 AnoJysis of the third article of the treaty of cession of Louisian<j. [Wash- 
 ington? 1803?] 
 
 Appendix to an Account of Louisiana, being an abstract of Documents in 
 the Offices of the Departments of State, and of tlie Treasury. Phila- 
 delphia, 1803. 
 
 Bishop, Abraham. 
 
 Oration, in Jioncr of the election of President Jefferson, and the peace- 
 able acquisition of Louisiana, delivered at the National Festival, in 
 Hartford, on the 11th of May, 1804. [Hartford.] For the General 
 Committee of Republicans, 1804. 
 Bra2er, Samuel, Jr. 
 
 Address, pronounced at Worcester, on May ISth, 1804, in commemo- 
 ration of the Cession of Louisiana to the United States. Worcester, 
 1804. 
 
 Brown, Jeremlah. 
 
 A Slwrt Letter to a Member of Congress concerning the Territory of 
 Orleans. Washington City, 1806. 
 
Bibliography 199 
 
 C!oLviN, John B. 
 
 Sepuhlican Policy; or, The Superiority of the Principles of the present 
 Administration over those of its enemies, who call themselves Fed- 
 eralists; exemplified in the late Cession of Louisiana. Frederick- 
 town, Md., 1802. 
 
 Common Sense [Thomas Paine]. 
 
 To the French Inhabitants of Louisiana, September 24, 1804, in. The 
 Writings of Thomas Paine (Moneure Daniel Conway, ed., New York, 
 1894r-1896), III, 430-436. 
 
 Dtiane, William. 
 
 Mississippi Question. A Debate in the Senate of the United States on 
 the 23rd, 24th, and 25th February, 1803, on certain resolutions con- 
 cerning the Violation of tlie Bight of Deposit. Philadelphia, 1803, 
 [Cf. Annals of Congress, 7 Cong,, 2 Sess. (1803-1804), 105-256.] 
 
 Esquisse de la situation politique et civile de la Louisiane depuis le 30 
 Novembre 1803 jusqu'au i«*" Octobre 1804. Par un Louisianais a 
 la Nouvelle-Orleans. New Orleans, 1804. 
 
 Fessenden, William. 
 
 The Political Farrago, or a Miscellaneous Review of Politics in the 
 United States; from the Administration of Washington to tluxt of 
 Mr. Jefferson, in 1806. Brattleboro, January, 1807, 
 
 Freeman, Thomas, and Custis, Petee. 
 
 -471 account of the Bed Biver, in Louisiana, drawn up from the returns 
 of Messrs. Freeman 4" Custis to tlie War Office of the United States, 
 wlw explored tlie Same, in the year 1806. [Washington, 18061] 
 
 Jeffeeson, Thomas. 
 
 An account of Louisiana, being an al}stra^t of documents in the office 
 of the Departments of State, and of the Treasury. [Washington?] 
 Duane, printer [1803?]. [Cf. Am. State Papers, Misc., I, 344-356]. 
 
 Leonard, David A. 
 
 An Oration, delivered at Baynham {Massachusetts), Friday, May 11th, 
 1804, on the late acquisition of Louisiana, at the un<mimous request 
 of the Bepublican Citizens of tlie County of Bristol. Newport 
 (E. I.), 1804. 
 
 Lois Decreties par le Congres des Etats-Unis d'Ameriqu^, pour le Gouverne- 
 ment, pro tempore, de la Province de la Louisiane. Nouvelle-Orleans, 
 1804- 
 
 Magruder, Allan Bowie. 
 
 Political, Commercial and Moral Beflections, on the late cession of Louis- 
 iana to the United States. Lexington, Ky., 1803. 
 
200 Constitutional History of the Louisiaim Purchase 
 
 Pike, Zebulon Montgomery. 
 
 An Account of a Voyage up the Mississippi River, from St. Louis to its 
 Source; made under the orders of the War Department, by Lieut. 
 Pike, of the United States Army, in the years 1805 and 1806. Com- 
 piled from Mr. Pike's Journal. [Washington, 1807?] 
 
 Ramsay, David. 
 
 An Oration on tlie Cession of Louisiana to the United States, delivered 
 on the 12th May, 1804, in St. Michael's Church, Charleston, South 
 Carolina, at tlie request of a number of the inhabitants, and pub- 
 lished by their desire. Charleston, 1804. 
 
 Randolph, Thomas Mann. 
 
 Letter of Thomas M. Randolph to his Constituents. (Dated) City of 
 Washington, April 27, 1806. 
 
 Representation and petition of tlie representatives elected by the freemen 
 of the territory of Louisiana, 4th January, 1805. Washington, 1805. 
 
 Sibley, John, Dr. 
 
 A Letter from Br. John Sibley of Fayetteville (now of Louisiana) to 
 J. Gales, printer, w Raleigh, Louisiana, August 15, 1803. Published, 
 December 14, 1803. 
 
 Sylvestris, pseud. 
 
 Reflections on the Cession of Louisiana to the United States. Washing- 
 ton City, 1803. 
 
 View of ths political and civil situation of Louisiana from November 30, 
 1803 to tlie first of October, 1804; by A native. Translated from 
 the French, Philadelphia, 1804. 
 
 Contemporary Ne-wspapers, 1803-1812 
 
 Aurora, Philadelphia. 
 
 Charleston Courier. 
 
 Columbian Sentinel, Boston. 
 
 Federal Gazette 4" Baltimore Daily Advertiser. 
 
 The Independent Chronicle, Boston, 
 
 Louisiana Gazette, New Orleans. 
 
 National Intelligencer, and Washington Advertiser, Washington. 
 
 New England Repertory, Newburyport (Boston from 1804). 
 
 New York Evening Post. 
 
 New York Serald. 
 
 NUes' Weekly Register, Baltimore. 
 
 Relfs Philadelphia Gazette and Daily Advertiser. 
 
 The Spectator, New York. 
 
 TTwmas's Massachusetts Spy, or Worcester Gazette. 
 
Bibliography 201 
 
 Contemporary Liteeatuee, 1803-1812 
 
 Beequin-Duvallon. 
 
 Travels in Louisiana and tlie Floridas, in the year, 1802, giving a cor- 
 rect picture of those countries. Translated from the French, with 
 notes.... by John Davis. New York, 1806. 
 Vue de la colonic espagnole du Mississippi, ou des provinces de Loui3- 
 iane et Floride Occidentale ; en I'annee 1802, par un observauteur 
 resident sur les lieux . . . B Duvallon, editeur. Paris, 1803. 
 
 Beeckinridge, Heney Marie. 
 
 Views of Louisiana; together ivith a journal of a voyage up tlie Mis- 
 souri River, in 1811. Pittsburgh, 1814, 
 
 Cramer, Zadok. 
 
 The navigator ; or, The traders'* useful guide in navigating the Mononga- 
 hela, Allegheny, Ohio, and Mississippi rivers; containing an ample 
 account of these much admired waters . . .a concise description of 
 their towns, villages, liarhours, settlements, etc.; with particular 
 direction how to navigate them, in all stages of the water . . . 5th 
 edition, much improved and enlarged. To which is added, an acc&unt 
 of Louisiana. Pittsburgh, 1806. 
 
 Jacquemin [Nicholas]. 
 
 Memoire sur la Louisiane, contenant la description du sol et des pro- 
 ductions de cette Ue, et les moyens de la rendre florissante en peu de 
 temps; avec un vooahulaire et un abrege de la grammaire de la langne 
 des sauvages. Paris, 1803. 
 Memoires sur la Louisiane et la Nouvelle-Orleans, a^ccompagnes d'une 
 dissertation sur les avantages que le commerce de I' empire doit tirer 
 d^ la stipulation faite par I 'article VII du traite de cession, du 30 
 avril 1803, par M . . .; suivis d'une traduction de diverses notes sur 
 cette colonic publices aux Etats-Unis peu de temps aprds la ratifica- 
 tion du traite; termines par un ecrit traitant cette question: Est-il 
 avantageux d, la France de prendre possession de la Louisiane? Paris, 
 1804. 
 
 Morse, Jedediah [Compiler]. 
 
 The American gaseteer, exhibiting a full account of the civil divisions, 
 rivers, harbors, Indian tribes, etc., of the American continent . . . 
 with a particular description of Louisiana. 3d edition, revised and 
 corrected. Boston, 1810. 
 
 Ore, George. 
 
 The possession of Louisiana by the French, considered as it affects the 
 interests of those nations more immediately concerned, viz. Great 
 Britain, America, Spain, and Portugal. London, 1803. 
 
202 Constitutional History of the Louisiana Purchase 
 
 Pendergast, Gareuett Elliott. 
 
 A physical and topographical sketch of the Mississippi territory^ lower 
 Louisiana, and a part of West Florida. Philadelphia, 1803. 
 
 Perrin du Lac, Franqois Marie. 
 
 Travels through the two Louisianas, and among tlie savage nations of 
 the Missouri; also in tlie United States, along the Ohio, and the 
 adjacent provinces, in 1801, 1802, and 1803. Translated from the 
 French, London, 1807. 
 Voyage dans les devjs Louisianes et cliez les nations sauvages du Mis- 
 souri, par les Etats-Unis, I'Ohio et les provinces qui le bordent, 
 en 1801, 180S et 1803. Paris, 1805. 
 
 EoBiN, Claude C. 
 
 Voyages dans I'interieur de la Louisiane de la Floride Ocddentale, et 
 dans les iles de la Martinique et de Saint-Domingue, pendant les 
 annees 1802, 1803, 1804, 1805 et 1806. 3 vols. Paris, 1807. 
 
 Stoddakd, Amos, Major. 
 
 Sketches, historical and descriptive of Louisiana. Philadelphia, 1812. 
 
 United States Government Publications 
 
 American State Papers, Foreign Eelations. 6 vols. Washington, 1833- 
 1859. 
 
 American State Papers, Miscellaneous. 2 vols. "Washington, 1834. 
 
 Ann<iJs of Congress. 7 Cong., 2 Sess. (1802-1803), to 12 Cong., 1 Sess., II 
 (1811-1812). Washington, 1851-1853. 
 
 Iiisular Ca^es, comprising the records, briefs, and arguments of counsel in 
 the Insular Cases of the October term, 1900, in the Supreme Court of 
 the United States, including tlie Appendix tJiereto. Washington, 1901. 
 
 Laws of the United States. Laws from 4th of March, 1789, to 4th March, 
 1815 5 vols. Philadelphia and Washington, 1815. 
 
 Magoon, Charles E. 
 
 Report on th-e Legal Status of the Territory and inliabitants of tlie 
 islands acquired by the United States during tlie war with Spain, 
 considered with reference to the territorial boundaries, the constitu- 
 tion, and luws of the United States, in Seno.te Documents, 56 Cong., 
 1 Sess., XVI (serial no. 3858), Doc. 234. Washington, 1900. 
 
 Mallot, William M., Compiler. 
 
 Treaties, Conventions, Intemationol Acts, Protocols, and Agreements 
 between tlie United States and Other Powers, 1776-1902. 2 vols. 
 Washington, 1910. 
 
Bibliography 203 
 
 Organic Acts for the Territories of tlie United States, with notes thereon. 
 . . . Also appendixes comprising other matters relating to tJie govern- 
 ment of tJie territories, in Senate Documents, 56 Cong., 1 Seas., X 
 (serial no. 3852), Doc. 148. Washington, 1900. 
 
 EiCHARDSON, James Daniel, Compiler. 
 
 Compilation of tlie Messages and Papers of the Presidents, 1789-1897, 
 10 vols. Washington, 1896-1899. 
 
 State Papers and Corresponden^je bearing upon tlie Purcliase of the Terri- 
 tory of Louisiana, in House Documents, 57 Cong., 2 Sess., XCII (serial 
 no. 4531), Doe. 431. Washington, 1903. 
 
 Statutes at Large of the United States of America. Boston and Washing- 
 ton, 1850- 
 
 United States Supreme Court Reports. Reports of Cases argued and 
 adjudged in the Supreme Court of tlie United States. New York, 1882- 
 1916. 
 
 General Authorities 
 
 Primary 
 
 Adams, Henry, ed. 
 
 Documents relating to New England Federalism, 1800-1815. Boston, 
 1877. 
 
 Adams, John. 
 
 The Works of. 10 vols. Boston, 1850-1856. Charles Francis Adams, ed. 
 
 Adams, John Quinct. 
 
 Memoirs of. 12 vols. Philadelphia, 1874-1877. Charles Francis Adams, 
 
 ed. 
 Writings of. 6 vols. New York, 1913-1916. Worthington Chauncey 
 Ford, ed. 
 
 Ames, Fisher. 
 
 Works of. 2 vols. Boston, 1854. Seth Ames, ed. 
 
 BarbS-Makbois, FRANgois, Marquis de. 
 
 Histoire de la Louisiane et de la cession de cette colonic, par la France 
 aux £:tats-Unis de l'Am,erique septrionale; precedee d'un discours 
 sur la constitution et le gouvemement des &tats-Unis. Paris, 1829. 
 The History of Louisiana, particularly of the Cession of that Colony 
 to tlie United States of America. Translated from French by an 
 American Citizen. Philadelphia, 1830. 
 
204 Constitutional History of the Louisiaim Purchase 
 
 Cutler, William Parkee, and Cutler, Julia Perkins. 
 
 Life, Journals and Correspondence of Bev. Manasseh Cutler. 2 vols. 
 Cineinnati, 1888. 
 
 Elliot, Jonathan, ed. 
 
 The De1)ates in the several State Conventions on the adoption of the 
 Federal Constitution. 2d ed. 5 vols. Philadelphia, 1888. 
 
 Farrand, Max, ed. 
 
 Becords of the Federal Convention of 1787. 3 vols. New Haven, 1911. 
 
 The Federalist. New York, 1898. Paul Leicester Ford, ed. 
 
 Gallatin, Albert. 
 
 The Writings of. 3 vols. Philadelphia, 1879. Henry Adams, ed. 
 
 Jefferson, Thomas. 
 
 Memoirs, Correspondence, and Miscellaneous. 4 vols. Charlottesville, 
 
 1829. Thomas Jefferson Kandolph, ed. 
 Tlie Writings of. 9 vols. Washington, 1853-1854. H. A. Washington, 
 
 ed. 
 Tlie Writings of. 10 vols. New York, 1892-1899. Paul Leicester Ford, 
 
 ed. 
 Tlie Writings of. 20 vols. Washington, 1903-1904. Memorial ed. 
 
 [Andrew A. Lipscomb, ed.] 
 The Worl-s of. 12 vols. New York and London, 1904-1905. Federal 
 
 ed. [Paul Leicester Ford, ed.] 
 
 "King, Rufus. 
 
 The Life and^ Correspondence of. 6 vols. New York, 1894-1900. 
 Charles E. King, ed. 
 
 Madison, James. 
 
 Letters and otlier Writings of. 4 vols. Philadelphia, 1865. Published 
 
 by order of Congress. 
 The Writings of. 9 vols. New York, 1900-1910. Gaillard Hunt, ed. 
 
 Monroe, James. 
 
 Writings of. 7 vols. New York, 1898-1903. Stanislaus Murray Ham- 
 ilton, ed. 
 
 Morris, Gouterneur. 
 
 The Diary and Letters of. 2 vols. New York, 188. Anne Gary Mor- 
 ris, ed. 
 
 Robertson, James Alexander. 
 
 Louisiana under the Bule of Spain, France, and the United States, 
 1785-1807. 2 vols. Cleveland, 1911. 
 
 Sparks, Jared. 
 
 The Life of Gouverneur Morris. 3 vols. Boston, 1832. 
 
Bibliography 205 
 
 Secondary Authorities 
 
 Abel, Annie Heloise. 
 
 **The History of Events resulting in Indian Consolidation West of the 
 Mississippi," in American Historical Association, Annual Beport, 
 1906, I, 233-450. Washington, 1908. 
 
 Adams, Henry. 
 
 History of the United States [1801-1817]. 9 vols. New York, 1909- 
 
 1911. 
 John Randolph. Boston, 1882. 
 Life of Albert Gallatin. Philadelphia, 1879. 
 
 Ames, Herman Vaktdenburg. 
 
 TJte Proposed Amendments to the Constitution of the United States 
 during the First Century of its History. American Historical Asso- 
 ciation, Annual Beport, 1896, II. Washington, 1897. 
 
 BiKLfi, Henry Wolf. 
 
 Tlie Constitutional Power of Congress over the Territory of the United 
 States. University of Pennsylvania, Publications of the Depart- 
 ment of Law [1901]. Philadelphia, 1901. 
 
 Butler, Charles Henry. 
 
 TJie Treaty-Making Power of the United States. 2 vols. New York, 
 1902. 
 
 Chambers, Henry E. 
 
 "West Florida and its Relation to the Historical Cartography of the 
 United States," in Johns Hopkins University, Studies in Historical 
 and Political Science, XVI, no. 5, pp. 201-259. Baltimore, 1898. 
 
 Channing, Edward. 
 
 The Jeffersonian System, 1801-1811. Ncav York, 1906. 
 A History of the United States, Volume IV: Federalists and Republi- 
 cans, 1789-1815. New York, 1917. 
 
 Claiborne, John Francis Hamtramck. 
 
 Mississippi as a Province, Territory and State. Jackson, Miss., 1880. 
 
 CooLEY, Thomas McIntyre. 
 
 "The Acquisition of Louisiana," in Indiana Historical Society, Publi- 
 cations, II, no. 3. Indianapolis, 1887. 
 
 Cox, Isaac Joslin. 
 
 "The American Intervention in West Florida," in American Historical 
 Review, XVII, 290-311. New York, 1912. 
 
 CRAin>ALL, Samuel Benjamin. 
 
 Treaties, Their Making and Enforcement. 2d ed. Washington, 1916. 
 
206 Constitutional History of the Louisiana Purchase 
 
 Curtis, George Ticknor. 
 
 Constitutional History of the United States. 2 vols. New York, 1896- 
 1897. 
 
 Davis, Samuel M. 
 
 "Some of the Consequences of the Louisiana Purchase," in American 
 Historical Association, Annual Eeport, 1897, 151-160. Washington, 
 1898. 
 
 Documents relating to the Purcliase and Exploration of Louisiana. I. 
 The Limits and Bounds of Louisiana. By Thomas Jefferson. II. The 
 Exploration of the Red, the Black, and tlie Washita Bivers. By William 
 Dunbar. Printed by direction of the Committee on Historical Docu- 
 ments of the American Philosophical Society. Boston and New York, 
 1904. 
 
 DuBois, William Edward Burghardt. 
 
 The Suppression of the African Slave-Trade to the United States of 
 America, 1638-1879. New York, 1896. 
 
 Farrakd, Max. 
 
 **The Commercial Privileges of the Treaty of 1803," in American His- 
 torical Review, VII, 494-499. New York, 1902. 
 
 The Legislation of Congress for the Government of the Organized Ter- 
 ritories of the United States, 1789-1895. Newark, N. J., 1896. 
 
 "Territory and District," in American Historical Review, V, 676-681. 
 New York, 1900. 
 
 FoRMAN, Samuel Eagle. 
 
 The Life and Writings of Thomas Jefferson. 2d ed. Indianapolis, 1900. 
 
 FORTIER, AlC^E. 
 
 History of Louisiana. 4 vols. New York, 1904. 
 
 Fuller, Hubert Bruce. 
 
 The Purchase of Florida. Cleveland, 1906. 
 
 Gayarr^, Charles. 
 
 History of Louisiana. 4th ed. 4 vols. New Orleans, 1903. 
 Geer, Curtis Manning. 
 
 The Louisiana Purchase and the Westward Movement. Philadelphia, 
 1904. 
 
 GiLMAN, Daniel Coit. 
 
 James Monroe in his relations to the public service during Iwlf a cen- 
 tury, 1776-1826. Boston, 1883. 
 
 Hamilton, John Church. 
 
 History of tlie Republic of the United States of America. 7 vols. Phila- 
 delphia, 1857-1864. 
 
Bibliography 207 
 
 Hermann, Binoer. 
 
 T<he Louisiana Purchase and our Title west of the Rocky Mountains, 
 with a Review of Annexation by the United States. Washington, 
 1900. Reprinted in House Documents, 56 Cong,, 1 Sess., CV (serial 
 no. 4002), Doc. 708. 
 
 HiLDRETH, BiCHARD. 
 
 History of the United States of America from tlie discovery of the con- 
 tinent to the end of the sixteenth congress, 1497-18Z1. 6 vols. New 
 York, 1863. 
 
 HoLST, Hermann Eduard von. 
 
 The Constitutional and Political History of tlie United States. Trans- 
 lated from the German by John J, Lalor ... 8 vols. Chicago, 1876- 
 1892. 
 
 Hunt, Gaillard. 
 
 The American Passport. Washington, 1898. 
 
 King, Grace. 
 
 New Orleans, the Place and the People. New York, 1907. 
 
 Locke, Mart S. 
 
 Anti-Slavery in America, 1619-1808. Boston, 1901. 
 
 Lodge, Henry Cabot. 
 
 Life and Letters of George Cabot. Boston, 1877. 
 
 McCaleb, Walter Flavius. 
 
 The Aaron Burr Conspiracy. New York, 1903. 
 
 McMaster, John Bach. 
 
 A History of the People of tlie United States from the Revolution to 
 the Ci/vil War. 8 vols. New York, 1907-1913. 
 
 Marshall, John. 
 
 John Marsliall, Complete Constitutional Decisions, edited with Annota- 
 tions Historical, Critical and Legal, by John Dillon. Chicago, 1903. 
 
 Marshall, Thomas Maitland. 
 
 A History of the Western Boundary of the Louisiana Purchase, 1819- 
 1841. Berkeley, 1914. 
 
 MaBTIN, FRANgOIS-XAVIER. 
 
 History of Louisiana from the Earliest Period. New Orleans, 1882. 
 
 Meyerholz, Charles. 
 
 Federal Supervision over the Territories of the United States. Beitrage 
 zur Kultur- und Universalgesehichte, herausgegeben von Karl Lam- 
 precht. Heft 5-7. Leipzig, 1908. 
 
208 Constitutimial History of the Louisiana PurcJiase 
 
 MoNETTE, John W. 
 
 History of tlie Discovery and Settlement of tlie Valley of the Missis- 
 sippi, hy the three great European powers, France, Spain, and Great 
 Britain, and the subsequent occupation, settlement, and extension of 
 civil government hy the United States, uiitil the year 1846. 2 vols. 
 New York, 1848. 
 
 Moore, John Bassett. 
 
 Digest of International Law. 8 vols. Washington, 1906. 
 
 MoRisoN, Samuel Eliot. 
 
 The Life and Letters of Harrison Gray Otis. 2 vols. Boston and 
 New York, 1913. 
 
 Morse, John Torrey, Jr. 
 
 Thomas Jefferson. Boston, 1898. 
 
 Ogg, Frederick Austin. 
 
 The Opening of the Mississippi. New York, 1904. 
 
 Parton, James. 
 
 Life of Andrew Jackson. 3 vols. Boston, 1870. 
 Life of Thomas Jefferson. Boston, 1874. 
 
 Phelps, Albert. 
 
 Louisiana. Boston and New York, 1905. 
 
 Plumer, William, Jr. 
 
 Life of Wiiliam Plumer. Boston, 1857. 
 
 QuiNCY, Edmund. 
 
 Life of Josiah Quinsy. Boston, 1867. 
 
 QuiNCY, Josiah Phillips. 
 
 Tlie Louisiana purchase and the appeal to posterity, in Massachusetts 
 Historical Society, Froceedihgs, second series, XVIII, 48-59. Cam- 
 bridge, 1903. 
 
 Eanball, Henry Stephens. 
 
 The Life of Tlwrnas Jefferson. 3 vols. Philadelphia, 1888. 
 
 KOBERTSON, C. F. 
 
 The Louisiana Purchase and its Influ-ence upon the American System, in 
 American Historical Association, Papers, I, no. 4, pp. 249-290. New 
 York, 1886. 
 
 Robinson, William A. 
 
 Jeffersonian DcTnocracy in New England. New Haven, 1916. 
 
 EoosEVELT, Theodore. 
 
 The Winning of the West. 6 vols. New York and London, 1900. 
 
Bibliography 209 
 
 ScHOTJLEE, James. 
 
 History of the United States under the Constitution. 7 vols. New 
 York, 1880-1913. 
 
 Sloane, William Milligan, 
 
 "The World Aspects of the Louisiana Purchase," in American His- 
 torical Association, Annv/il Beport, 1903, I, 87-103, Washington, 
 1904. 
 
 Story, Joseph. 
 
 Commentaries on the Constitution of the United States. 5th ed. 2 vols. 
 Boston, 1891. 
 
 Thayer, James Bradley. 
 
 Cases on Constitutional Law. 2 vols. Cambridge, 1895. 
 
 Thomas, David Yancey. 
 
 A History of Military Government in Newly Acquired Territory of the 
 United States, in Columbia University Studies in History, Economics 
 and Public Law, XX, no. 2. New York, 1904. 
 
 Thorpe, Francis Newton. 
 
 The Constitutional History of the United States. 3 vols. Chicago, 1901. 
 
 Tucker, George. 
 
 The Life of TlwThas Jefferson, third president of the United States. 
 2 vols. London, 1837. 
 
 Turner, Frederick Jackson. 
 
 "Significance of the Frontier in American History," in American His- 
 torical Association, Annual Eepart, 1893, 199-227. Washington, 
 1894. 
 
 "Significance of the Louisiana Purchase," in Review of Reviews, 
 XXVII, 578-584. New York, 1903. 
 
 Villers du Terrace, Marc de, Baron. 
 
 Les demiers annees de la Louisiane frangaise. Paris, 1903. 
 
 Webster, Sidney. 
 
 Two Treaties of Paris and tlie Supreme Court. New York and London, 
 
 1901. 
 
 Willoughby, Westel Woodbury. 
 
 The Constitutional Law of the United States. 2 vols. New York, 1910. 
 
 WiNSOR, Justin, ed. 
 
 Narrative and Critical History of America. 8 vols. Boston, 1889. 
 
APPENDIX^ 
 
 THE SENATE DEBATE ON THE BRECKINEIDGE BILL FOR THE 
 
 GOVERNMENT OF LOUISIANA, 1804, AS REPORTED BY 
 
 SENATOR WILLIAM PLUMER OF NEW HAMPSHIRE 
 
 ISOdy Mmid-ay, Jmiy. 16th. 
 
 The Bill Erecting Louisiana into Two Territories 
 
 Mr. Worthington.^ Moved to amend the 4th section so as that the 
 Legislative Council should be authorized to elect a delegate to Congress with 
 the right to debate but not vote.s 
 
 Mr. Braclcenridge.* I approve of the motion — it will be the means of 
 conveying useful knowledge to Congress. 
 
 Mr. Saml. Smith.^ This is going as far as we can at present to satisfy 
 the third article of the treaty.s This will be placing that country on the 
 same footing as the other territorial governments^ — and from this delegate 
 Ave shall derive much information. 
 
 Mr. Dayton-.^ I am opposed. The legislative Council itself Avill be better 
 able by their memorials to represent the actual state and wants of that 
 country than their agent. 
 
 Mr. Jn. Smith.^ I think the amendment is necessary and important. 
 
 1 Reprinted from The American Historical Eeview, vol. XXII, no. 2, 
 January, 1917, through the courtesy of Dr. J. Franklin Jameson, managing 
 editor. 
 
 2 Thomas Worthington, senator from Ohio. 
 
 3 The fourth section of the bill was that providing as to the appointment 
 and powers of the legislative council. It is quoted in the Journal of the 
 Senate for this day (III, 340 of the reprint of 1821). It is in almost every 
 particular identical Avith the fourth section of the act as finally passed. The 
 act made no provision for a territorial delegate. 
 
 4 John Breckinridge, senator from Kentucky. 
 
 5 Samuel Smith, senator from Maryland. 
 
 <5 The third article of the Louisiana Treaty provided that the inhabitants 
 of the ceded territory should be incorporated in the Union of the United 
 States and admitted as soon as possible to the enjoyment of the privileges 
 of citizenship, and that in the meantime they should be protected in the free 
 enjoyment of their liberty, property, and religion. 
 
 i At this time there was statutory provision for delegates from the 
 Mississippi and Indiana territories. 
 
 s Jonathan Dayton, senator from New Jersey. 
 
 8 John Smith, senator from Ohio. 
 
Appendix 211 
 
 Mr. PiclceringAo No man will undertake to say, Louisiana is incorpo- 
 rated into the Union, it is therefore absurd to admit a delegate from that 
 country to debate in our national councils. That is a purchased province 
 and as such we must govern it. 
 
 Mr. White.^'i^ I cannot consider that territory as a part of the Union. 
 The legislative council are to be created by the President and shall they be 
 vested with the power of choosing a delegate to Congress, and who will in 
 fact be the representative of the President. 'Tis wrong. 
 
 Mr. Jackson.^2 I am opposed to the motion. The people of that country 
 ought not to be represented in Congress. It is too soon. 
 
 Mr. Atiderson.^^ If this amendment does not obtain, I must vote agt. the 
 section. What, tax that people without their being represented! 
 
 Mr. Worthington. What danger can arise from this measure — the dele- 
 gat« can only debate not vote. 
 
 Mr. JBradley.^4: This delegate mil be the representative of your Presi- 
 dent not of that people. I am surprised to find an advocate for such 
 doctrine. Is the Executive to be represented in the other House? If he 
 can have one delegate to represent him, why not fifty? 
 
 Mr. Dayton. The motion is unconstitutional. The constitution has pro- 
 vided only for the representation of States, and no man will pretend that 
 Louisiana is a State. It is true by the confederation's provision was made 
 for delegates from territories — and our constitution has provided tluit all 
 contracts and engagements entered into before its adoption shall be valid 
 (Art. 6th) but no man will have the hardihood to say that Louisiana was 
 included in that engagement. 
 
 Mr. Adams.^^ I was pleased with this motion — but the objections aris- 
 ing from the Constitution, and from the Delegate's being the representative 
 of the Executive and not of that people — compels me reluctantly to decide 
 against it. 
 
 Mr. Codke.^'' Gentlemen confound things — this man will not be a 
 representative but a delegate. The government of Louisiana has been com- 
 pared to other territorial governments, as Mississippi — but this is wrong. 
 
 10 Timothy Pickering, senator from Massachusetts. 
 
 11 Samuel White, senator from Delaware. 
 
 12 James Jackson, senator from Georgia. 
 
 13 Joseph Anderson, senator from Tennessee. 
 
 14 Stephen E. Bradley, senator from Vermont 
 
 15 Eather, by the ordinance for the government of the Northwest Terri- 
 tory, sec. 12. 
 
 16 John Quincy Adams, senator from Massachusetts. Some account of 
 the proceedings and debates upon this bill will be found in his Memoirs, I, 
 290-295. 
 
 17 William Cocke, senator from Tennessee. 
 
212 Constitutimial History of the Louisimm Purchase 
 
 This is an original system, founded on new principles — it is unlike anything 
 in Heaven, in earth or under it-^— we must therefore reason from itself and 
 not compare it with others — for myself I admire it. Wliat part of the 
 Constitution shall we violate by this amendment — none. This delegate will 
 not be a constitutional representative, the objection therefore is not solid, 
 I know tluit people are ignorant, but ignorant people will always elect 
 learned and wise men to represent them, they know the necessity of it. I 
 love and venerate these people — tliey live in tlie west. 
 
 Mr. Brack en ridge. This amendment is no infringement of the constitu- 
 tion. This officer will not be a representative, for he cannot vote — he will 
 be a delegate, and can only deliberate. He will have no legislative power. 
 
 Mr. S. Smitli. There is nothing in the constitution that precludes the 
 senate from admitting delegates on this floor from the old territories and 
 what is there that can restrain us from admitting Louisiana to send a 
 delegate to the other House? There can be no danger that the delegate will 
 mislead or impose upon the House. 
 
 The motion failed yeas 12 nays 18. 
 
 1804, Tuesday, Jany. 17th. 
 
 The motion to extend the trial by jury in all criminal prosecutions in that 
 territoryis was lost yeas 11, nays 16. 
 
 1804, Tuesday, 24th. Jany. 
 
 The Bill for the Government of Louisiana 
 
 Mr. Jackson. The inhabitants of Liouisiana are not citizens of the 
 United States — they are now in a state of probation. They are too ignorant 
 to elect a legislature's — they would consider jurors as a curse to thenru 
 
 Mr. McClay.^o Those people are men and capable of happiness — they 
 ought to elect a legislature and have jurors. 
 
 Mr. Saml Smith. Those people are absolutely incapable of governing 
 themselves, of electing their rulers oi appointing jurors. As soon as they 
 are capable and fit to enjoy liberty and a free government I shall be for 
 giving it to them. 
 
 IS The bUl provided for trial by jury "in all cases which are capital"; 
 the motion was to strike out the words ' ' which are capital. ' ' Journal, III, 
 343-344. 
 
 19 The amendment under discussion provided for popular election of the 
 legislative council. 
 
 20 Samuel Maelay, senator from Pennsylvania. 
 
Appendix 213 
 
 Mr. Cocke. The people of that country are free — ^let them have liberty 
 and a free government. This bill I hope vnll not pass — it is tyrannical. 
 
 Mr. Nicholas.^^ I approve of the bill as it is. I am opposed to giving 
 them the rights of election, or the power of having jurors. We ought not 
 yet to give that people self-government. As soon as it is necessary I vrill 
 give my assent to that Country's being admitted as a state into the Union. 
 
 Mr. Anderson. Several gentlemen of the Senate, I am sorry to say it, 
 appear to have no regard for the third article of the treaty — they seem 
 opposed to freedom. This bill has not a single feature of our government 
 in it — it is a system of tyranny, destructive of elective rights. We are bound 
 by treaty, and must give that people a free elective government. 
 
 Mr. Pickering. That people are incapable of performing the duties or 
 enjoying the blessings of a free government. They are too ignorant t-o 
 elect suitable men. 
 
 Mr. Jackson.^^ Slaves must be admitted into that territory, it cannot 
 be cultivated "without them. 
 
 Mr. Brackenridge. I am against slavery. I hope the time is not far 
 distant when not a slave ■will exist in this Union. I fear our slaves in the 
 south -will produce another St. Domingo. 
 
 Mr. Franklin.^^ I am wholly opposed to slavery. 
 
 Mr. Dayton. Slaveiy must be tolerated, it must be established in that 
 country, or it can never be inhabited. White people cannot cultivate it — 
 your men cannot bear the burning sun and the damp dews of that country 
 — I have traversed a large portion of it. If you permit slaves to go there 
 only from your States, you Avill soon find there the very worst species of 
 slaves. The slave holders in the United States "wOl collect and send into 
 that country their slaves of the worst description. 
 
 Mr. John Smith. I know that country. I have spent considerable time 
 there — ^white men can cultivate it. And if you introduce slaves from foreign 
 Countries into that territory, they will soon become so nxmierous as to 
 endanger the government and ruin that country. I wish slaves may be 
 admitted there from the United States. I wish our negroes were scattered 
 more equally, not only through the United States, but through our terri- 
 tories — that their power might be lost. I can never too much admire the 
 deep policy of New England in excluding slavery. I thank God we have 
 no slaves in Ohio. 
 
 21 William Cary Nicholas, senator from Virginia. 
 
 22 Comparison of the original bill, amendments, and amended bills pre- 
 served in the Senate files shows that the Senate at this point began the con- 
 sideration of an amendment which extended to the new territory the act of 
 February 28, 1803, forbidding importation of slaves into states which pro- 
 hibited their importation. 
 
 23 Jesse Franklin, senator from' North Carolina; 
 
214 Constitutional History of the Louisi<in<i Purchase 
 
 Mr. Franklin, Slavery is in every respect an evil to the States in the 
 south and in the west, it will, I fear, soon become a dreadful one — negro 
 insurrections have already been frequent — they are alarming. Look in the 
 laAvs of Virginia and North Carolina made for the purpose of guarding 
 against and suppressing these rebellions, and you •will learn our dangers.24 
 
 1804j WediiesdoAj, Jany. 25. 
 
 Bill for the GtOvernment of Louisiana. 
 Question Eelative to Slavery 
 
 Mr. Bradley. I am in favor of extending slavery to that country, 
 because it is a right they claim, and by the treaty we are bound to grant it 
 to them — ^but I think that in this bill we had better say nothing on that 
 subject. 
 
 Mr. HUlhouse.^^ Negroes are rapidly increasing in this country — there 
 enerease for the ten years ending with the last census was near two hundred 
 thousand. I consider slavery as a serious evil, and wish to check it wherever 
 I have authority. Will not your slaves, even in the southern states, in ease 
 of a war, endanger the peace and security of those states? Enerease the 
 number of slaves in Louisiana, they vrill in due time rebel — their numbers 
 in the district of Orleans, are now equal to the whites2<5 — ^why add fuel to 
 this tinder box, which when it takes fire will assuredly extend to some of 
 your states. Why enerease the evil at a distant part of your territory — 
 which must necessarily require a standing army to protect it? If that 
 country cannot be cultivated without slaves, it will instead of being a para- 
 dise prove a curse to this country, partieiilarly to some of the states in its 
 vicinity. 
 
 Mr. Bradley. I am in favor of establishing a form of a general, not 
 particular, government — ^we ought not to descend to particulars. We are 
 incompetent to that — ^they are too distant from us, and we are ignorant of 
 their wants, their habits and manners. Congress is an improper body to 
 make municipal laws — ^we have abundant proof of this in our legislation 
 for this district in which we sit — our laws here are very imperfect and 
 insufficient. 
 
 24 Here Senator Plumer gives a summary of a letter of Governor Clai- 
 borne, describing conditions in New Orleans, which the Senate at this point 
 received from President Jefferson, covered by his brief message of this date, 
 given in the Journal and in Richardson, I, 367. 
 
 25 James Hillhouse, senator from Connecticut. 
 
 26 Hillhouse probably meant the district consisting of the island of New 
 Orleans with its immediate dependencies. In that case the numbers, accord- 
 ing to the statistics which had been furnished by Jefferson {American State 
 Papers, Miscellaneous, I, 384), were, 25,000 whites, 25,000 blacks. 
 
App&iidix . 215 
 
 Mr. Adams. Slavery in a normal sense is an evil ; but as connected with 
 commerce it has important usea The regulations offered to prevent slavery 
 are insufficient, I shall therefore vote against them. 
 
 Mr. Dayton. I do not wonder at the sentiments of the gentleman from 
 CJonnecticut (Mr. Hillhouse), for he has been opposed to everything that 
 relates to Louisiana — he appears to me to wish to render this bill as bad as 
 possible ; but I am surprised that gentlemen who are friendly to that country, 
 •wish to prohibit slavery — it will barr the cultivation and improvement of 
 that extensive territory. The lives of white people are shorter there than 
 in any of our states, and the labour of slaves more necessary. An elective 
 government and trial by jury would be a curse to that people j but slavery 
 is essential to tbeir existence. 
 
 Mr. SiXlhouse. I do not understand the doctrine nor censures of the 
 gentleman from New Jersey (Mr. Dayton). The constitution is by him 
 winiked out of sight — that admits of a republican government and no other. 
 We must apply the constitution to that people in all cases or in none. We 
 must consider that country as being Avithin the Union or without it — there 
 is no alternative. I think myself they are not a part or parcel of the 
 United States. 
 
 Mr. John Smith. I have traversed many of the settlements in that 
 country. I know that white men labour there — they are capable of cultivat- 
 ing it. Slaves ought not to be permitted to set their feet there. Introduce 
 slaves there, and they will rebel. That country is full of swamps — negroes 
 can retire to them after they have slain their masters. This was in fact 
 the case not eighteen years since — they rose, slew many, and fled to the 
 morasses.27 Will you enerease there number, and lay the necessary foun- 
 dation for the horrors of another St. Domingo? If slaves are admitted 
 there, I fear, we shall have cause to lament the acquisition of that country — 
 it will prove a curse. 
 
 Mr. Jackson. The treaty forbids this regulation. It will depreciate 
 your lands there fifty pr cent. I am a Rice-planter — my negroes tend three 
 acres each pr man — I never work them hard, they finish their stint by one 
 or two o'clock, and then make three shillings pr diem to themselves. I 
 know that a white man cannot cultivate three acres of rice, and yet Georgia 
 is not so warm as Louisiana. You cannot prevent slavery — neither laws 
 moral or human can do it. Men will be governed by their interest, not the 
 law. We must keep the third article of the treaty always in view. 
 
 Mr. Anderson. On the ground of the interest of the western states, the 
 admission of slaves into Louisiana ought to be opposed — it "will prove a 
 
 27 Possibly the reference is to the abortive attempt at insurrection in 
 Pointe Coupee parish in 1795, eight years before. 
 
216 Constitutioiwl History of the Louisimw, Purchase 
 
 curse to us. By the constitution slavery is criminal. All the States, except 
 South Carolina, have passed laws against the importation of slaves.28 
 
 Mr. White. I think it unfortunate that whenever this question is stirred, 
 feelings should be excited that are calculated to lead us astray. I have 
 entertained the hope that Congress would on all occasions avail themselves 
 of every mean in their power to prevent this disgraceful traffick in human 
 fieslh. There is nothing in the treaty that guarantees to the people of that 
 Country the power, I will not say right, of holding slaves. 'Tis our duty 
 to prevent, as far as possible, the horrid evil of slavery — and thereby avoid 
 the fate of St. Domingo. Nothing but the interposition of Heaven, an 
 unusual thunder-storm, prevented the slaves, only two years since, from 
 destroying Eichmond in Virg^nia.29 That, and other states are obliged 
 annually to make many severe and expensive provisions to protect and 
 guard the lives of the masters and their families against the violence of 
 the slaves. 
 
 It is said that Louisiana cannot be cultivated by white men. May not 
 this proceed from the very circumstance of their having slaves. Let white 
 men be accustomexi to the culture of that country, and they will, I believe, 
 find they are able to bear the fatigue of it. We may by use, by long habit, 
 be brought to bear heat and fatigue as well as blacks. We boast of liberty 
 and yet in the very bosom of our Country, establish slavery by law. Exam- 
 ine the state of this Union. In the Eastern States where slavery is not 
 suffered, their lands are highly cultivated — their buildings neat, useful and 
 elegant — and the people are strong, powerful and wealthy. But as you 
 travel south, the instant you arrive to where slavery is, you find the lands 
 uncultivated, the building decaying and falling into ruins and the people 
 poor weak, and feeble. This is not the effect of climate — for our southern 
 climates are more favorable than the eastern and the northern. 
 
 Mr. Bradley. I am opposed to slavery in the eastern states; but the 
 resolution under consideration admits the principle of slavery, and there- 
 fore I shall vote against it. 
 
 Mr. White. I shall vote for it not because I wholly approve of it, but 
 because I think it as favorable toward peo^jle of colour as anything we can 
 now obtain. 
 
 Mr. Saml Strdth. I am at a loss to know why the gentleman from 
 Massachusetts (Mr. Adams) has so often considered and declared himself 
 as the exclusive advocate for constitutional rights. I am against this motion. 
 The people of that country wish for African slaves, and we ought to let them 
 have a supply — we have a constitutional right to prohibit slavery in that 
 
 28 By successive enactments, from 1787 to 1803, South Carolina had, like 
 -the other states, forbidden the importation of slaves, but these laws had 
 just been repealed, December 17, 1803, and the trade reopened, 
 
 29 The reference is to Gabriel 's Insurrection, September, 1800. 
 
Appendix 21T 
 
 country, but I doubt as to the policy of it — I shall vote against the motion. 
 We are bound to provide for the support of the clergy of that country. 
 
 Mr. HUlhouse. The gentleman from Vermont (Mr. Bradley) is opposed 
 to slavery. To prove his opposition he declares he will vote against this 
 resolution, which is designed to limit slavery to those who are in the country 
 — and if he prevails in his opposition, the consequence will be that the 
 people of Louisiana will have the liberty of importing slaves not only from 
 the United States, but also directly from Africa. If that country cannot be 
 cultivated without slaves, let slaves hold it — or let it remain a wilderness 
 forever. Those are the real friends of liberty w-ho extend it to others, as 
 well as to themselves. 
 
 Mr. Israel Smith.30 The provision proposed, is insufficient — it will 
 rather encrease than prevent slavery. I am opposed to slavery but as 
 Congress cannot prohibit it effectually till 1808 — and as there are many 
 slaves in Louisiana I think the change proposed will be too sudden — that it 
 will operate as an encouragement to South Carolina to import slaves.^i I 
 am therefore opposed to doing anything upon the subject at the present. 
 
 No vote taken on the subject. 
 
 1804, Thursday, Jany. 26. 
 
 Government op Louisiana — Slavery 
 
 Mr. Hillhoitse. I have been accused of being unfriendly to this territory 
 — and of having made the motion now under discussion not from a regard 
 to that country or its inhabitants but to embarrass the measures of govern- 
 ment. I was opposed to the ratification of the treaty, but as that is past, 
 I am bound to act in relation to that country upon such principles as to me 
 appear correct and calculated to promote the general interest of the Nation. 
 And I hope I shall never find it necessary to adduce evidence to prove the 
 sincerity of my disposition or the truth of my declaration. It has been 
 said on this floor that I am an Eastern man. I am so, but while 1 am the 
 representative of a State which is yet a member of the Union, 1 h^e I 
 shall have as much influenee as if I was a soutliern man. I did not expect 
 so soon to hear on this floor the distinction of eastern and nortliem, and 
 southern, m^n. Has it indeed come to this — are Ave to be designated by a 
 geographical line? 
 
 The question was on the following motion, to "wit. 
 
 "That it shall not be lawful for any persons or persons, to import or 
 bring into the said territory, from any port or place without the limits of 
 the United -States, or to cause or procure to be so imported or brought, or 
 
 30 Israel Smith, senator from Vermont. 
 
 31 See note 28 above. 
 
218 Constitutional History of the Louisiana Purchase 
 
 knowingly to aid or assist in so importing or bringing, any slave or slaves; 
 and every person so offending and being thereof convicted, before any court 
 within the said territory, having competent jurisdiction, shall forfeit and 
 
 pay, for each and every slave, so imported or brought the sum of 
 
 dollars, one moiety for the use of the' United States, and the other moiety, 
 for the use of the person or persons who shall sue for the same; and every 
 slave so imported or brought, shall thereupon become entitled to and receive 
 his or her freedom." 
 
 Kote, This amendment was presented by Mr. Hillhouse.32 
 
 Mr. Jackson. Slavery must be established in that country or it must 
 be abandoned. Without the aid of slaves neither coffee or cotton can be 
 raised. My interest is to prevent slavery in that country, because that will 
 prevent its settlement, and thereby raise the value of estates in Georgia — 
 but my duty is in this opposed to my interest, and that of my State. 
 
 I think it would be for the real interest of the United States to have an 
 end to slavery in this country; but we cannot get rid of them, 
 
 I am against the prohibition — let those people judge for themselves — 
 the treaty is obligatory upon us. 
 
 I dislike the traffic in human flesh — but Ave must decide not on the 
 morality but policy of the ease. 
 
 The present time is an improper time to prohibit the importation of 
 slaves into that country — our government is not yet established there. 
 
 Slaves in America are generally well fed clothed and taken care of — our 
 interest obliges us to do it — they live better than if they were free — they 
 are incapable of liberty. 
 
 Mr. Dayton. These very debates will encrease the Iwpes of slaves. You 
 are about to prohibit African slaves from that country — and to admit the 
 worst of slaves — such as the southern planters wish to sell: — I say admit 
 slaves for slaves must cultivate Louisiana — white people cannot subsist 
 there without them. 
 
 The faith of the nation, is by the treaty, pledged to that people, that their 
 right* shall be secured to them — one of ther rights is slavery. 
 
 It is of importance that we should raise our OAvn sugar — that we can do 
 if we have slaves. 
 
 Mr. Bradley. The prohibiting slaves in that territory from Africa, and 
 admitting them from the States, will encrease, not lessen, slavery. Each 
 State can till 180S import slaves from Africa, and by this law the slave 
 states may send their vicious slaves to Louisiana. 
 
 Mr. Bra^Tcenridge. I have no hesitation in saying, That the treaty does 
 not in the smallest degree authorize that people to hold slaves — much less 
 
 32 This amendment of Hillhouse, preserved in manuscript in the Senate 
 files, is that which appears in the printed Journal, III, 345. 
 
Appendix 219 
 
 does it pledge the faith of the Union to support this unjust, unnatural 
 traffic. "When I look at the Census, I am alarmed at the enerease of slaves 
 in the southern states. I consider slavery as an evil — and am for confining 
 it within as small a compass as possible. 
 
 Mr. Bradley. I am against slavery — but this provision is insufficient, 
 and I shall vote against it. If the States holding slaves, require it, I will 
 go as far as they wish in abolishing slavery, for I am an enemy to it. But 
 that time is not yet come — the public mind is not ready for it — and I think 
 we had now better do nothing upon the subject. 
 
 Mr. Samuel Smith. I am sorry this proposition is brought before the 
 Senate — I am against slavery — ^but I shall vote against this proposition — 
 and I fear it will thereby appear that I am in favor of slavery. Yet let 
 it be remembered, that although I am a slave holder, I declare I disapprove 
 of slavery. 
 
 Mr. Franhlin. My wish is to prohibit slaves altogether from that coun- 
 try, except those carried thither by actual settlers from the United States — 
 but I dispair of obtaining such a vot« in Senate — I will vote for such a 
 prohibition as I can obtain. 
 
 I have no objection to sending a frigate to Charlestown to prevent the 
 landing of slaves from Africa imported by South Carolina — and frittering 
 those nefarious traders to pieces. 
 
 Mr. Jackson. Grentlemen from the north and the east do not know that 
 white irten cannot indure the heat of a vertical sun — they cannot cultivate 
 and raise a crop of rice — negroes are necessary for that country. It is as 
 impossible to prevent the importation of them into that country as to move 
 the sun into the moon. Human power and invention cannot prevent it. 
 Within less than a year 10,000 slaves have against law been imported into 
 South Carolina and Georgia.33 'Tis in vain to make laws upon this subject. 
 Slaves directly from Africa are preferable to those who have been long in 
 this country or even to those born here. I am sorry that the constitution of 
 Georgia prohibits slavery.34 
 
 Mr. Pickering. When this subject was first brought up I was favorably 
 inclined to the admission of slavery in that territory — ^but the discussion has 
 convinced me that it "will be bad policy indeed to admit slaves there — that 
 it will entail upon their, posterity a burthen they will be unable to bear or 
 remove — and that slaves are unnecessary there — ^white people can cultivate 
 it, I therefore approve of the resolution. 
 
 33 See the statements of Lowndes of South Carolina and Mitchell of New 
 York in the House debate of February 14, 1804. Annals of Congress, 
 8 Cong., 1 Sess., pp. 992, 1000. 
 
 34 The constitution of Georgia, 1798, art IV, sec. 11, prohibited, not 
 slavery, but the future importation of slaves into that state from Africa 
 or any foreign place. 
 
220 • ConstituUmml History of the Louismna Purchase 
 
 Mr. Bradley. This resolution supports slavery. I shall therefore vote 
 against it, although it is bro 't f or\\-ard by those who wish to destroy slavery. 
 The Constitution of Vermont declares all men free — I have sworn to support 
 it, and I wilL 
 
 Mr. Israel Smith. I am opposed to this resolution, because it will not 
 prevent slavery — I am opposed to slavery; but I think no law can prevent 
 or destroy it — the law will be useless and therefore I shall vote against it. 
 If a law was made to prohibit the use of cyder in New England, where it 
 is now being used in every family, could you carry it into effect. This is 
 the case of slaves in that country. We cannot till 1808 pass any effectual 
 law against slavery. South Carolina has opened its ports for the importa- 
 tion of slaves from Africa, and this she has a right t-o do. 
 
 The people of Louisiana ought not to be subject to much change in 
 government, laws, or habits at present. They are not yet bound to us by 
 any ties. This resolution will estrange them from us — it will oppress 
 them. It cannot be carried into effect. It will give encouragement to the 
 States in 1808 to resist any laws that we may then constitutionally make 
 to abolish slavery. I therefore hope we shall now do nothing relative to 
 slavery. 
 
 Mr. Samuel Sm-ith. 1 wish I could prevent the taking of the yeas and 
 nays Avhen the Senate are sitting in Committee of the whole — I dislike it — 
 it is absurd. 
 
 Mr. Jackson. It is now more than half past three P.M. and I move for 
 an adjournment. Befused. He then said. It is unfair for a majority thus 
 to press the subject. 
 
 The question was then taken on the amendment (page 316)36 and pre- 
 vailed, yeas 21, nays 6. 
 
 Mr. Bradley. As tomorrow is to be a day of festivity on account of 
 the acquisition of Louisiana,37 I move that the Senate adjourn to Monday 
 next. 
 
 Negatived. 
 
 After the Senate was adjourned, he said with great passion that he 
 would not on the morrow either attend the Senate or the feast. He kept 
 his word. 
 
 1804, Monday, Jany. 30. 
 
 Mr. EilUwuse moved the following amendment, to the Louisiana bill. 
 
 *'That no male person bro't into said territory of Louisiana, from any 
 part of the United States, or territories thereof, or from any province or 
 
 35 See J. Q. Adams, Memoirs, I, 292-293. 
 
 36 Of the manuscript. Hillhouse 's amendment, see note 36. 
 3T J. Q. Adams, Memoirs, I, 293, 
 
Appe^ndix 221 
 
 colony in America belonging to any foreign prince or state, after the 
 
 day of next, ought or can be holden by law to serve for more than 
 
 the term of one year, any person as a servant, slave, or apprentice, after 
 he attains the age of 21 years; nor female in like manner, after she attains 
 the age of 18 years, unless they are bound by their own voluntary act, after 
 they arrive to such age, or bound by law for the payment of debts, damages, 
 fines, or costs. Provided, that no person held to service or labor in either 
 of the States or territories aforesaid, under the laws thereof, escaping into 
 said territory of Louisiana, shall by anything contained herein, be discharged 
 from such service or labor, but shall be delivered up in the manner pre- 
 scribed by law. "38 
 
 Mr. HUlluyase. I am in favor of excluding slavery from that Country 
 altogether. Every slave increases the necessity of a standing army. Every 
 slave weakens the power of the militia. The distance from the States 
 encreases the necessity of excluding slavery there. 
 
 Mr. Bradley, made a few observations in support of the amendment. 
 
 It was rejected yeas 11, nays 17. 
 
 Mr. Hilllwuse then offered the following amendment, 
 
 "That it shall not be lawful for any person or persons, to import or 
 bring into the said territory, from any port or place within the limits of 
 the United States, or cause to, or procure to be so imported or bro't, or 
 knowingly to aid or assist in so importing or bringing, any slave or slaves, 
 
 which shall have been imported, since the day into any port or 
 
 place within the limits of the United States, from any port or place without 
 the limits of the United States; and every person so offending and being 
 thereof convicted, before any court within the said territory, having com- 
 petent jurisdiction, shall forfeit and pay for each and every such slave, so 
 
 imported or bro't, the sum of dollars: one moiety for the 
 
 use of the person or persons who shall sue for the sama ' '39 
 
 Mr. Hilllwuse, observed this was but a part of the system necessary to 
 be adopted. 
 
 Mr. Dayton. South Carolina has now a, constitutional right to import 
 slaves from Africa — she is in the exercise of that right — and this amendment 
 impairs it. 
 
 Mr. Hilllwuse. It does, and justly. 
 
 Mr. Jackson. It is unfortunate that we have slaves; but having them 
 we cannot with safety or policy free them. A very few free negroes in 
 Louisiana would revolutionize that country. In Georgia we prohibit men 
 
 ss Journal, III, 346-347. 
 
 39 The amendment presented at this time by Hillhouse {Journal, III, 
 347) embraces both this text and that which appears at the beginning of 
 the next day's proceedings in this record, and of p. 353. 
 
222 Constitutianal History of the Louisiatia Purchase 
 
 from manumitting their slaves^o — one free negro is more dangerous where 
 there are slaves than a 100 slaves. I ■\vill join to export all the slaves. 
 
 Mr. SUlhouse. I believe slavery is a real evil; but I am sensible Ave 
 must extinguish it by degrees. It will not do to attempt to manumit all the 
 slaves at once. Such a measure would be attended with serious evils. These 
 slaves are men — they have the passions and feelings of men. And I believe 
 if we were slaves, we should not be more docile, more submissive, or virtuou.s 
 than the negroes are. 
 
 Mr. Niclwl^s. Free men of colour have a very ill effect upon slaves — 
 they do much more mischief than strangers conceive of. 
 
 Mr. Adams. The general complaint against gentlemen from the eastern 
 States has been that they have discovered too much opposition to slavery. 
 I am opposed to slavery; but I have in this bill voted against the provisions 
 introduced to prohibit and lessen it. I have done this upon two principles, 
 1. That I am opposed to legislating at all for that country. 2. I think we 
 are proceeding with too much haste on such an important question. 
 
 Mr. Bradley. I abhor slavery. I am opposed to it in every shape. 
 He that steals a man and sells him ought to <2i>.4i I will on every occasion 
 vote against slavery. I am very sorry the question is now called up. I have 
 done everything I could to prevent it — but since gentlemen, (and many of 
 them from Slave States) will stir the question, I am prepared and will on 
 all occasions vote against slavery. 
 
 The amendment Avas adopted, yeas 21, nays 7. 
 
 1804, Tuesday, J any. 31. 
 
 Bill Eelating to Louisiana 
 
 Motion to strike out the folloAving words, from the amendment to the 
 bUl. 
 
 "And no slave or slaves shall directly or indirectly be introduced into 
 said territory, except by a person or persons removing into said territory for 
 actual settlement, and being at the same time of such removal "bona fide 
 OAvner of such slave or slaves; and every slave imported or bro't into the 
 said territory, contrary to the provisions of this act, shall thereupon be 
 entitled to, and receive his or her freedom. "'*2 
 
 Mr. Bradley. I am opposed to this paragraph, because it admits the 
 doctrine of slavery to be just — it is like a law regulating theft or any other 
 crime, I shall therefore vote to expunge it. I really consider slavery as a 
 moral evil — as a violation of the laAvs of God — of nature — of Vermont. 
 
 *o A Georgia act of 1801 made manumission illegal unless accomplished 
 by act of the legislature. Cobb, Digest, p. 983. 
 
 "Exodus XXI, 16. 
 
 42 See note 39 above. The motion also provided a substitute with slight 
 modifications. Journal, I, 348. 
 
Appendix 223 
 
 Mr. NicJwlas. The gentleman from Vermont (Mr. Bradley) has sur- 
 prised me by his extraordinary conduct — for several days he spoke and 
 voted with his friends who advocated slavery — but yesterday and today he 
 has avowed other sentiments and changed his vote. He is now become 
 vociferous for emancipation. Is he apprehensive the restriction will pre- 
 vail. Is he afraid of finding his name on the journal against the vote. Why 
 this unaccountable change? 
 
 Mr. Bradley. I have not changed my sentiments. I am unwilling to 
 have the question stirred, I was desirous of shutting my eyes against the 
 subject — but since I am compelled to act, I will vote in favor of liberty. 
 
 Mr. Jackson. If this law ■wi.th these amendments passes you destroy 
 that country — ^you render it useless — ^you will excite alarms in the mind of 
 Frenchmen — you will render a standing army necessary. I again say that 
 country cannot be cultivated without slaves — it never wUl. 
 
 Mr. John Smith. I am willing to admit slaves into that covintry from 
 the U.S., because slaves are already there, but I am unwilling to admit them 
 from Africa. You cannot prevent slaves going there from the United States. 
 I know this is an evil, but it is an evil they will have. 
 
 Mr. Saml Smith. When the prohibition of slavery was first introduced 
 into this bOl I was much alarmed. I foresaw it would take up time — that 
 it would create alarm and even endanger the peace and security of these 
 States holding slaves — especially when the subject is debated in the other 
 House — and those debates published in Newspapers. God knows that I 
 am not friendly to slavery, although I own slaves and live in a state where 
 slavery is established by law. I am unwilling to think much less to speak 
 on this subject. This bUl if passed into a law cannot be carried into efEect 
 — the people of that country will not submit to it. I will render a standing 
 army necessary. In the year 1808 we may then effectually legislate on the 
 subject — the constitution will then admit of it, and our navy will then enable 
 us to carry it into effect. American slaves carried to Louisiana will prove 
 adders that will sting that people to the heart. The report of your debate 
 in this Senate on this subject Avill reach that country in twelve days, and 
 I fear "will produce a rebellion — our troops there are few and feeble, and 
 vnU be unable to prevent it. 
 
 Mr. John Smith. If the slaves now in the southern States continue to 
 enerease, in 20 or 30 years those States wUl be compelled to call on the 
 eastern and western states to aid them against their rebellious slaves. 
 
 Mr. FranMin. We cannot wink this subject out of sight — if we leave 
 it, it will follow us. We must make laws against slavery, unless we mean 
 to aid the destruction of our southern States, by laying the foundation for 
 another St. Domingo. Slavery is a dredful evil — ^we feel it in North Caro- 
 lina — ^we can emancipate. I am for restraining foreign importation, but 
 to proceed no further. 
 
224 Constitutional History of the Louisiaiw. Purchase 
 
 Mr. Brackenridge. We can make laws to prevent slaves, and we can 
 carry those laws into effect — if we cannot do this our power is too feeble 
 to govern this nation. We must not despair — Ave must act. We are legis- 
 lating for a great country — for an important section of the nation. In 
 doing this I will not for a moment attend to its inmiediate effects, Avhether 
 it Avill lessen or encrease sugar, or other articles. No Sir, I extend my views 
 to posterity. It is of importance that our first acts of Legislation should 
 be correct. Can it be right to extend and foister slavery into that country? 
 
 I think it good policy to permit slaves to be sent there from the United 
 States. This will disperse and weaken that race — and free the southern 
 states from a part of its black population, and of its danger. If you do 
 not permit slaves from the United States to go there, you will thereby 
 prohibit men of wealth from the southern States going to settle in that 
 country. 
 
 It has been said by the gentleman from Vermont (Mr. Bradley) that 
 liberty cannot exist with slavery. This is not correct — it exists in these 
 states who have slaves. Our constitution recognizes slavery — it does more — 
 it expresly protects it. 
 
 Mr. Nicholas. One State only, South Carolina, can now import Slaves — 
 and that is a ri-ght derived not from Congress, but from the constitution — 
 it is a mere temporary right. The people of Louisiana cannot therefore 
 complain of partiality in Congress because we deny them the liberty of 
 importing foreign slaves. It is no more than what we long since denied 
 to the Mississippi and Ohio territories. We are now making a form of gov- 
 ernment for Louisiana, not establishing a common and ordinary law. I am 
 for prohibiting the people of that country from importing slaves from 
 foreign countries, and leave it optional AATith the government of Louisiana, 
 when they have one, to prohibit it from the United States also, if they 
 should think best. 
 
 Mr. Adams. I do not like either of the amendments that have been 
 offered, but if I must vote for either it will be to retain the word moved 
 to be struck out. If I must vote it will be in favor of liberty. The Con- 
 stitution does not recognize slavery — it contains no such tvord—a great cir- 
 cumlocution of words is used merely to avoid the term slaves. 
 
 Mr. Venahle.^^ I know the constitution does not contain the word slave 
 — but it admits the thing and protects it — and Congress have uniformly 
 acted accordingly. 
 
 The question for striking out was lost, yeas 13, nays 15.* 
 
 43 Abraham B. Venable, senator from Virginia. 
 
 * It is obvious that the zeal displayed by the Senators from the Slave 
 States, to prohibit the foreign importation of Slaves into Louisiana, pro- 
 ceeds from the motive to raise the price of their own slaves in the market — 
 and to encrease the means of dispersing of those who are most turbulent and 
 dangerous to them. 
 
Appendix 225 
 
 1804, Wednesdcuy, Feby. 1. 
 
 Bill fob the Government or Louisiana 
 
 It was moved by Mr. Rillhouse to amend it by adding tiie following, — 
 
 '*And no slave or slaves shall directly or indirectly be introduced into 
 the said territory, except by a citizen of ilie United States,** removing into 
 said territory, for actual settlement, and being at the time of such removal 
 bona fide owner of such slave or slaves ; and every slave imported or brought 
 wto the said territory, contrary to the provisions of this act, shall thereupon 
 be enttle'd to, and receive his or her freedom.*' 
 
 Mr. JacTcson. I move to postpone the further consideration of this 
 amendment to September. 
 
 Mr. Siilhouse. This being an amendment to a bill it cannot be post- 
 poned unless the bill is postponed with it. 
 
 The President.*^ The motion is not in order — it cannot be reed. 
 
 Mr. Wright.*^ The owners of land in that country who do not live 
 there ought to have liberty of sending their slaves to cultivate their own 
 land but not to sell their slaves there. 
 
 It is wrong to reproach us with the immorality of slavery — that is a 
 crime we must answer at the bar of God — ^we ought not therefore to 
 answer it here — for it would be unjust that we should be punished twice for 
 the same offence. 
 
 I am against admitting foreign slaves, because the State of Maryland 
 has declared it wrong.*"^ 
 
 Mr. Jackson. This amendment does not authorize foreigners , who may 
 go to settle in that country to carry their slaves with them, I am therefore 
 on this ground opposed to the amendment. The great object we should have 
 in view should be the settlement of that country. Our interest is to admit 
 Englishmen there as soon and as fast as possible. 
 
 Mr. Millliouse. I hope foreigners will not be permitted to settle in that 
 distant country. It is seldom, that any but the worst of men leave their 
 own to settle in a foreign country. 
 
 Mr. Jaclcson. I am not afraid of such evils. The friends of libeHy 
 only wUl come — let us encourage the settlement of that country as much 
 
 44 The words which Plumer has underlined are the new matter, substi- 
 tuted for ' * person or persons, " as is shown by the amendments in the Senate 
 files, as well as by the Journal. 
 
 45 On January 23, Vice-president Burr being absent on account of illness. 
 Senator John Brown of Kentucky had been chosen president of the Senate 
 pro tempore. 
 
 46 Robert Wright, senator from Maryland. 
 
 47 Maryland act of 1796, c. 67. 
 
226 Constitutional History of the Louisiana Purchase 
 
 as possible. It is dangerous to exclude foreigners. The very best of men 
 will flee from Europe — ^for liberty exists only in this country. Bad men 
 are afraid to come here — they are encouraged to stay at home. / trust the 
 present Congress are 7wt apprehensive of h-aving too m-any Jacobins in this 
 country. The government and the Congress were five years ago afraid of 
 Jacobins — I hope we are not like them. 
 
 Mr. Pickering. I am very willing that foreigners should be admitted to 
 settle in that country — for I believe before we purchased that we had 
 territory in the United States sufficient for us and our posterity to the 
 thousandth generation. I am willing that in Louisiana oppressed humanity 
 should find an assylum, and that the patriots of no country should there 
 find a country in which no restraints should be imposed upon them. 
 
 It was then moved to strike out of the amendment the words citizen of 
 the United States and insert persoTk. 
 
 The motion was lost yeas 13 nays 14.48 
 
 The question was then carried on the amendment, yeas 18, nays 11. 
 
 Mr. Jackson. If you establish a regular government there, you will 
 destroy the western States, by the strong inducements you 'v\'ill hold out to 
 people to settle Louisiana. The cession -will prove a, curse — why invite 
 people to settle it now — it is too soon — 50 or 100 years hence will be soon 
 enough- By exposing these immense tracts of uncultivated lands to sale 
 you will encourage bribery. I was offered half a million of acres to hold 
 my tongue in the Georgia speculation- I had virtue to resist the tempta- 
 tion.*9 
 
 The settlement of Louisiana will destroy the value of our lands. It 
 will effect what I very much deprecate, a separation of this Union. 
 
 How great, how powerful, was Spain before she acquired South America. 
 Her wealth has debased and enervated her strength. If you establish a 
 regular government in Louisiana, that will be settled — you cannot then 
 prevent it — and if settled, such is the enterprizing spirit and avaricious 
 disposition of Americans that they will then soon conquer South America, 
 and the rich mines of that country will prove our ruin. A military govern- 
 ment ought to be established in upper Louisiana — ^that would prevent set- 
 tlement. I would pay those Americans who are now there for their lands 
 if they would quit them. 
 
 Mr. Cocke. I am glad Georgia has one uncorrupt man, 'and I rejoice 
 that he is a senator. I trust we have many such in the nation. I am ready 
 to vote. The debate on this bill has been so long that I have already lost 
 
 4S This motion does not appear in the Joui-naZ. 
 
 49 In 1796 Jackson was the leader of the "Anti- Yazoo Party" in the 
 Georgia House of Representatives, having resigned his seat in the United 
 States Senate in order to conduct the contest. 
 
Appendix 227 
 
 the benefit of much of it, for I have really forgotten it. I can throw no 
 new light. I call for the question. We must give that people a rational 
 government. 
 
 Mr. WortHngton. The government contemplated by this bill is a 
 military despotism, and I am surprised that it finds an advocate in this 
 enlightened Senate. The gentleman from Georgia (Mr. Jackson) talks of 
 a separation — Sir, the western states will not separate unless the eastern 
 States by their conduct render it absolutely necessary, 
 
 1804, Thursday, Feby. 3nd. 
 
 Government of Louisiana. Motion to Strike Out the 8th Section 
 
 or THE BiLL.SO 
 
 Mr. SUlhouse. I am against the establishment of an arbitrary gov- 
 ernment in that country. It has been said it is best to establish- such a 
 government in that country as will prevent its settlement. I wish gentle- 
 men to consider, that by the treaty the rights of the inhabitants of that 
 country are guaranteed to them. Look at documents now on your tables, by 
 them it appears that much of those vacant or uncultivated lands are granted 
 to Spaniards. And you must give to them such a government as they can 
 live under, or you will not protect them in the enjoyment of their rights as 
 you have by your treaty stipulated. You must give that people a practical 
 government — not like our own, for they are unacquainted with it — a military 
 government would be too arbitrary. I would not give them a trial by jury, 
 because they are not used to it — but I would give them the liberty of having 
 trials by jury whenever they are able to express their desire of it by 
 their own legis[la]ture and to make laws regulating that mode of trial. 
 
 Mr. John Smith. The establishment of a military government is at war 
 with the third article of the treaty — with the letter and spirit of your con- 
 stitution — which knows no other government than that of republicanism. 
 That country is now ours — and it will be utterly impossible, by any law 
 you can pass, to prevent people from emigrating to and settling in that 
 country. Eeference is frequently made to the documents that the President 
 has sent us respecting that country. Those documents are incorrect. I know 
 of three large settlements in that country that are not even named in these 
 papers. We know but little of that Country. 
 
 50 The eight section of the original bill, with slight modifications, is 
 quoted in the Journal, III, 349. It relates to the government of the portion 
 of the Louisiana cession north of the territory of Orleans, and provides for 
 rule by a governor having the executive and judicial powers ("paramount 
 powers" in the original bill) exercised by the former governors of the 
 province. 
 
228 Constitutional History of the Louisiana Purchase 
 
 Mr. Cocke. Give that country a Jury. I know we can prevent its 
 settlement. I would not give them a good government. I prefer a bad one 
 to a good one for tliem — because a bad one will make them contented, they 
 have been used to it. The only way to govern that country safely is to 
 govern it justly. Let them have their old laAvs and ancient customs, except 
 a trial by jury and that they should Jutve. Too much wisdom is painful — 
 it conjures up too many evils. I fear we are too wise to do good. Our 
 way is plain, it is the old way — but I am really afraid we are fond of 
 projects — novelties. Our fears are chimerical. We should be bold and 
 resolute. Tell that people you shall have justice, but you shall obey the 
 laws. I have taken up much of your time, but coming from the westward, 
 I have frequently been urged to tell my opinion — no arbitrary — no military 
 government will do — we must give them a free government. We talk too 
 much of the ignorance of that people they know more than what you think 
 they do — they are not so plagay ignorant. 
 
 Mr. Jackson. Eome flourished while she confined herself within proper 
 bounds — but she extended her limits too far — when she gratified her 
 insatiable thirst for lands — the northern hordes overwhelmed and destroyed 
 her. I fear this will be our case in the soutlK I never wish to see our people 
 go beyond the Mississippi. We ought not to give them such a government 
 as will afford them protection in their settlements. If you permit the settle- 
 ment of that country, you will depreciate the value of your public lands 
 and destroy the western states. I know the President approves of this 
 eight[h] section. 
 
 Mr. Anderson-. This 8th. section is a military despotism — its unconsti- 
 titional — its opposed to the spirit and genius of our constitution. The only 
 power we have to legislate for that country is derived from the constitution 
 — and we must give them a republican government — we can g^ve them no 
 other. 
 
 There never existed on earth a free Republican Government untill the 
 present government of the United States. 
 
 This section establishes the former laws and government of Spain in that 
 Country — and what those are we know not. 
 
 I know the settlement of Louisiana will materially injure Tennessee — it 
 will injure all tlie western states — still we must give them a constitutional 
 government. I am for preventing the settlement of that country by law, 
 and I think our laws may be executed. 
 
 There is now about 8000 inhabitants in upper Louisiana — more than 
 two thirds of them are Americans — most of them have emigrated from 
 Virginia. They understand and will demand their rights. 
 
 If the President of the United States now approves of this 8th section — 
 and should it be adopted, I will venture to say he will soon have cause to 
 repent of it. 
 
Appe'iuUx 229 
 
 Mr. Dayton. I ask the gentleman (Mr. Anderson) Where, and in what 
 part of the Constitution does he find any authority to legislate for that 
 Country. The constitution g^ves us no authority on the subject. We derive 
 our power and right from the nature of government. That Country is a 
 purchased territory and we may govern it as a conquered one. 
 
 A military government is the best and the only government you can 
 prudently and safely establish in Upper Louisiana. A strong efficient gov- 
 ernment is essential. I hope we shall prevent the settlement of Upper 
 Louisiana, not only for the present, but forever. If that country is settled, 
 the people will separate from us — ^they will form a new empire — and become 
 our enemies, 
 
 I believe we may induce the Indians on this side to remove to the other 
 side of the Mississippi — ^and this will be a great and useful thing to us.si 
 
 This section of the bill is important and will I hope be retained- 
 
 Mr. Wright. I am in favor of the section. The constitution requires 
 that the governments of States should be republican, but not so of terri- 
 torial governments. The Territorial governments in this Country are not, 
 or is it necessary they should be, republican — none of them have the power 
 to elect representatives. To extend the trial by jury to that country would 
 be a denial of Justice — ^they live too remote from each other to derive any 
 benefit from it. 
 
 Mr. Samuel SmAtli. This 8th section embraces a country in which there 
 are settlements 800 mUes distant from each other. A governor and three 
 Judges cannot regular their affairs. This section of the bill is in principle 
 republican — ^we our serves are their Legislators and the Commandants are 
 only our agents. 
 
 Mr. Pickering. I think we are in an error in applying the Constitution 
 to that country — ^it does not extend there. But we are bound by the treaty 
 to extend protection to the people of that country, and secure io them their 
 rights and priveledges. We must consider and govern them as a colony. 
 
 Laws will never be sufficient to prevent the settlement of that country. 
 If people find their interest in settling it, your prohibitions will prove 
 unavailing. 
 
 Mr. Brackenridge. I do not feel any constitutional difficulty as to the 
 form of government. I am for giving them such a system as to me appears 
 best. The provisions contained in this 8th section are arbitary. There is 
 no legislative authority given to that people. I am opposed to the section. 
 
 Mr. Nicholas. I am glad the section gives no legislative authority — that 
 country needs none. I am inimical to change. Do as little for that people 
 as possible. Let them have and enjoy their old laws and customs. 
 
 51 See Miss Abel in Annual Report of the American Historical Associa- 
 tion for 1906, I, 241-249. Sec, 9 of the original bill in Breckinridge's 
 manuscript provides for exchange of land by Indian tribes. 
 
230 Constituti^ynal History of the Louisiaiia Purchase 
 
 Mr. Wright. I would have such a despotic government in the territory 
 of Upper Louisiana as should absolutely prevent people from settling it. I 
 would remove those who are now settled there, if I could — but at all events 
 I would let no more go there. 
 
 Mr. Cocke. I will always give a good government when I can, I will 
 not do evil meerly because I have the power of doing so. The question. 
 
 The question was then taken and the 8th section was struck out — ^yeas 
 
 16, nays 9. 
 
 See Journal of Senate, p. 174.^- 
 
 1804, Friday, Fehy. 3d. 
 The Bill for the Government of Louisiana Under Considerations^ 
 
 Mr. Jackson. I have high authority for saying it is the intention of 
 our government to take effectual measures to induce all the Indians on this 
 side of the Mississippi to exchange their lands for lands in upper Louis- 
 iana.5* I think it a prudent and practicable measure — and that is one reason 
 why I wish to prevent the establishment of a civil government in that terri- 
 tory. In the name of God have we not land enough for a settlement without 
 this! I would buy up the title of those who have already gone there. The 
 Indians would have gone there before this had not the Spaniards have pre- 
 vented them. The Indian wars have cost us millions of dollars — and much 
 blood. They are bad dangerous neighbors. There are already many Indians 
 there — if you establish a ci\Tl government — if you permit settlers — you will 
 find the expense of that government immense — it will render the purchase 
 a curse. 
 
 Mr. Worthington. The Indiana Territory is as good soil and situation 
 as Upper Louisiana. There have been settlers in the former for 100 years, 
 and a civil government established for sometime — that government has not 
 encreased settlers — and in all the Indiana Territory there are not now 
 more 7000 souls. 
 
 Mr. Nicliolas. I hope the Upper Louisiana Avill not for many, very 
 many years, be admitted as a State or States — New Orleans, perhaps must 
 soon be admitted as such. 
 
 Mr. Jackson. 1 move to annex Upper Louisiana to the Indiana Territory. 
 
 Mr. Brackenridge. I have little objections to this. 
 
 52 Page 174 of the original edition; page 349 of vol. Ill of the reprint 
 of 1821. 
 
 53 Debate was apparently on an amendment not mentioned in the Journal 
 but preserved in manuscript in the Senate files, giving Upper Louisiana a 
 territorial government of the simplest form, with its own governor, secretary, 
 and judges, and Avith legislative power vested in the governor and judges. 
 This amendment is endorsed "Breckinridge." 
 
 54 For Jefferson's course in this matter see Miss Abel, loc. cit. 
 
Appendix 231 
 
 Mr. KiLlhouse. The government, laws, customs, manners and habits of 
 the two countries are in direct opposition to each other. The regulations of 
 the one cannot be established in the other. You cannot immediately effect 
 such a change. 
 
 Mr. Saml. Smith. I approve of the measure. It will lessen the number 
 of offices and of course expence. I know it will estop slavery there, and to 
 that I agree. 
 
 Mr. Wright. This is a new proposition, but I am in favor of it — it 
 will lessen expence. I would unite the two territories governmentally but 
 not territorially. 
 
 Mr. Hillhouse. Both of those Countries have separate rights, and by 
 this regulation you vdll impair them both. The ordinance establishing the 
 Indiana Territory created certain rights which are vested in the inhabitants 
 of that territory. The people in Louisiana have their rights and we have 
 by treaty guaranteed to them the enjoyment of those rights. If these terri- 
 tories are united who will legislate for them — ^must they be governed by 
 different laws. This union will make one of the territories a mere colony 
 to the other. 
 
 Mr. Wright. They must be governed by different laws. 
 
 Mr. John Smith. I cannot wholly approve of the motion. I think there 
 is weight in the argument of the gentleman from Connecticut (Mr. Hill- 
 house). But I will accord with the majority. I should be better pleased 
 if a part of Upper Louisiana was annexed to the Mississippi Territory. 
 
 Mr. V enable. I approve of the principle, but wash it modified. It is not 
 3'et settled that Louisiana is a part of the United States. I would not 
 therefore annex the two territories together; but I would extend the author- 
 ity of the government of the Indiana territory to the territory of Upper 
 Louisiana. 
 
 1804, Tuesda/y, Feby. 7th 
 
 The Bill for the Government of Louisiana 
 
 The debate on this bill was principally confined to the question whether 
 people of colour should be necessarily disqualified and excluded from 
 serving on juries. Excluded. Democrats in general voted in favor of 
 exclusion. 
 
 1804, Wednesday, Fehy. 8th. 
 
 Same Bill 
 
 The amendment to annex the upper Territory of Louisiana to Indiana, 
 was withdrawn. Mr. Nicholas offered an amendment authorizing the 
 officers of the Indiana Territory to govern the Upper District of Louisiana 
 
232 Constitutional History of the Louisiana Purchase 
 
 — and establishing the existing laws of Louisiana in that district.ss Adopted. 
 Act as amended ordered to be printed. 
 
 The democratic senators held a Caucus last evening in which they settled 
 the principles of the bill — and agreed to the same in the Senate without any 
 debate. 5 6 
 
 1804, Thursday, Fehy. 16. 
 
 Louisiana Bill. Salaries to the Officers 
 
 Governor Orleans 
 
 Mr. Jackson, Mr. Dayton ) reasoned in favor of $8000 pr 
 
 Mr. Saml Smith and Mr. Logan57( annum — 7 only voted for it. 
 Mr. Braekenridge and John Smith for $6000. 12 voted for it. 
 Mr. 01cott,58 Franklin and Cocke for $5000. 18 voted for it — carried. 
 
 The salary to the Secretary : $2000 
 
 Three Judges each 2000 
 
 District Judge 2000 
 
 Attorney 600 
 
 Marshall 200 
 
 The members of the Legislative Council each to have four dollars per 
 diem while attending the Council. 
 
 In the course of this debate, Jackson and Samuel Smith observed * ' That 
 the people must be governed more by pomp, parade and shew than by reason 
 - — that splendid retinues and armed men are more convincing than arguments. 
 
 1804; Friday, Fehy. 17. 
 
 L0UISIA.NA Bill 
 
 Mr. Stone.^^ There are near 900,000 slaves in the U.S. and they are 
 worth $200,000,000. Slaves are property. The riglits of property are by 
 the Constitution guaranteed and why should the holders of this kind of 
 property be prohibited from sending and selling their slaves in Louisiana? 
 
 Mr. McClay. That country was purchased to serve as an outlet for the 
 U.S. — to admit slaves there will defeat that object. 
 
 Mr. Jaclcson. It has been proposed to prohibit South Carolina from 
 sending slaves into Louisiana, because she imports slaves from Africa. She 
 
 55 This amendment, in manuscript, is in the Senate files, and also appears 
 in the bill as amended (and in the statute) as sec. 12. 
 
 56 Some amendments offered on subsequent days appear in the Journal, 
 but Plumer records no debates respecting them. 
 
 57 George Logan, senator from Pennsylvania. 
 
 58 Simeon Olcott, senator from New Hampshire. 
 
 59 David Stone, senator from North Carolina. 
 
Appendix 233 
 
 has a right to do it. If you pass this prohibition you will offend that State 
 — and I •will venture to say very serious consequences will follow. I will 
 speak plain — offend her and she will reject the amendment to the Constitu- 
 tion — and if she rejects it, it will never be ratified. 
 
 Some people laugh at the provision that the bill contains authorizing the 
 Presidint to make an exchange of lands in Louisiana with the Indians for 
 their lands on this side of the Mississippi. Let me tell such. That this is a 
 favorite measure of the President's — he has assured me so. He has, this 
 week, informed me that sixteen of the Cherokee Chiefs have already agreed 
 to pass over to Louisiana and relinquish their lands on this side of the 
 Mississippi 
 
 1804, Saturday, Feby. 18. 
 
 Bill poe the Goveenment of Louisiana 
 
 Mr. Adams. This bill is to establish a form of government for the 
 extensive country of Louisiana. I have from the beginning been opposed 
 to it — ^and I still am. It is forming a government for that people without 
 their consent and against their -will. 
 
 •AH power in a republican government is derived from the people. We 
 sit here under their authority. 
 
 The people of that country have g^ven no power or authority to us to 
 legislate for them. The people of the United States could give us none, 
 because they had none themselves. The treaty has given us none, for they 
 were not parties to it — it was made -tvithout their knowledge. To pass this 
 bill is an encroachment on their rights — its a commencement of assumed 
 power — its establishing a precedent for after Congresses destructive of the 
 essential principles of genuine liberty. 
 
 The first territorial ordinance under the Confederation was made by the 
 then Congress without any legal authority — but the Constitution afterwards 
 sanctioned it. 
 
 This bill contains arbitary principles — principles repugnant to our Con- 
 stitution. The legislative Council are to be appointed by the Governor, who 
 is a creature of the President 's — not elected by the people. 
 
 The judges are to legislate — make laws and expound them — this is of the 
 essence of tyranny. 
 
 In the other territorial governments, even in the departure from liberty, 
 there is a reverence for it — for it provides that Avhen its inhabitants are 
 encreased to a certain number they shall elect a representative. 
 
 This bill provides that the officers shall be appointed by the President 
 aloiie in the recess of the Senate — why this departure from the Constitution. 
 
234 Constitutional History of the Louisiana Purchase 
 
 The Judicial officers are to be appointed for a term of years only, and 
 yet the bill is not limited. The constitutional tenure for judicial officers is 
 during good behavior. 
 
 The first thing Congress ought to have done in relation to that Country, 
 should have been to propose an amendment to the Constitution, to the 
 several States to authorize Congress to receive that Country into the Union 
 — ^we ought to have applied to the inhabitants of Louisiana to recognize 
 our right to govern them. This we ought to have done, and there is no 
 doubt that the States and that territory would have given the authority 
 before the next session. 
 
 The 3d article of the treaty pledges the faith of the Nation to the 
 inhabitants of that country that we will protect their persons, religion 
 property and rights; but we have taken no measures to ascertain there num- 
 bers, religion or rights. 
 
 We have not the necessary information to pass a law containing the 
 great fundamental principles of government. We know little of that 
 people or Country. In thus passing this bill we commit an act of practical 
 tyranny. 
 
 The bill contains incongruous articles — establishment of courts — juries — . 
 numerous laws — prohibition of slavery etc. This is a Colonial system of 
 government. It is the fii'st the United States have established. It is a bad 
 precedent — the U.S. in time will have many colonies — precedents are there- 
 fore important. 
 
 The governor's appointing and proroguing the Council is an act of 
 tyranny. 
 
 Tis too soon to extend the trial by jury to that Country. There are 
 serious inconveniences attending this mode of trial— and those people have 
 not laws, customs or habits to correct those evils. Extending juries to them 
 in their present condition, Avill, I fear, excite opposition to the institution 
 itself. There present mode of trial is summary — no jury — a single judge 
 decides. Trial by jury and delay are synonymous — by introducing it you 
 establish new principles. What is meant by vicitxxige in that country? In 
 law books it has a definite and precise meaning — it is confined to a County. 
 There you have no Counties. Is it to extend thro' the whole country. Will 
 it not give too much power to the judge — and will it not be burthensome 
 and even oppressive to compel people from distant parts of that extended 
 world (for such I may call it) to attend Courts .of law as grand and petit 
 jurors! The District court is to sit once in tliree months, and the Supremo 
 Court once every month — the call for jurors will therefore be frequent. 
 
 The governor and judges of the Indiana territory are to govern Louisiana 
 — will they not govern it in an arbitrary manner — ^will they not consider it 
 as a colony to them? 
 
 The bill passed yeas 20 nays 5. 
 
INDEX 
 
 Adams, Jolin, defends Louisiana 
 purchase, 34r-35. 
 
 Adams, J. Q., opinion on need of 
 constitutional amendment for 
 Louisiana purchase, 30-31, 45- 
 47, and for fulfilling engage- 
 ments of Art. 7 of Louisiana 
 treaty, 75,- motion to pass 
 Breckinridge bill, 102; opposi- 
 tion to delegate to Congress 
 from Louisiana Territory, 104; 
 opinion on slavery, 110, 117; 
 comments on slavery provisions 
 in Louisiana government bill, 
 115, n^te 27, 117, 121, note 42; 
 interpretation of constitution on 
 slavery, 119; vote against Louis- 
 iana government bUl and reasons 
 therefor, 129-131. 
 
 Alston, W., of North Carolina, on 
 admission of Orleans Territory 
 to statehood, 179. 
 
 Ames, F., denunciation of Louis- 
 iana Purchase, 29. 
 
 American Insurance Co. vs. Canter, 
 interpretation by Supreme Court 
 of status of territorial courts, 
 130, note 60, 140, note 23. 
 
 Anderson, of Tennessee, opinion 
 on government for Louisiana, 
 107, on slavery, 111; motion 
 against prescribing a govern- 
 ment for Upper Louisiana, 121, 
 126, note 49; opposition to sec- 
 tion 8 of Louisiana government 
 bill, 123; amendment to Louis- 
 iana government bill, 127. 
 
 "Anti- Yazoo Party," 121, note 
 43. 
 
 Articles of Confederation, article 
 11, bearing on constitutional 
 right to acquire territory, 14. 
 
 Bedinger, of Kentucky, support of 
 bill providing for registry of 
 vessels, 132. 
 
 Barry, of Kentucky, on admission 
 of Orleans Territory, 179. 
 
 Bibb, of Georgia, on admission of 
 Orleans Territory, 179, 180, 186, 
 on division of Orleans Territory, 
 18L 
 
 Bor^, E. de, resignation as mayor 
 of New Orleans, 149; report 
 against Claiborne, 154. 
 
 Boyle, of Kentucky, opposed to 
 Breckinridge bUl, 138. 
 
 Bradley, of Vermont, opposition to 
 delegate to Congress from Louis- 
 iana Territory, 103; opinion on 
 slavery, 109, 112, 114, 119, ou 
 form of government for Louis- 
 iana, 110, on government of Dis- 
 trict of Columbia, 110; opposed 
 first Hillhouse amendment, 114, 
 favored second Hillhouse amend- 
 ment, 116. 
 
 Breckinridge, J., opinion on limi- 
 tation of area of a republic, 62; 
 denial of unconstitutionality of 
 Art. 3 of Louisiana Treaty, 69, 
 70 ; cited on confining Americans 
 to east side of Mississippi, 99 ; 
 opinion on slavery, 108, 114, 
 118-119, on annexation of Upper 
 Louisiana to Indiana Territory, 
 126. See also Breckinridge Bill. 
 
 [235] 
 
Index 
 
 Breckinridge Bill (Louisiana Gov- 
 ernment Bill) : 
 In the Senate, 101-131; Commit- 
 tee, 101 ; provisions, 101-102 ; 
 debate on, 102-131; passage, 
 102, 104, 129; amendments to: 
 authorizing delegate to Con- 
 gress from Louisiana, 103— 
 105; authorizing trial by jury 
 in all criminal eases, 105 ; con- 
 cerning legislative rights and 
 procedure, 105-107 ; concern- 
 ing slavery, 107-120, 128-129 ; 
 concerning government of the 
 upper district, 121-125; con- 
 cerning annexation of Upper 
 Louisiana to Indiana, 125- 
 127; concerning colored people 
 serving on juries, 126; con- 
 cerning election of represen- 
 tatives and of legislative coun- 
 cil, 127 ; concerning election of 
 legislative council, 127; mo- 
 tion regarding salaries, 128. 
 In the House, 134^145; debate 
 on section 4 (legislative pow- 
 ers), 135-138; section substi- 
 tuted, 138-139; naturalization 
 amendment, 131; provisions of 
 section 4 as finally adopted, 
 142-143; debate on section 5 
 (judicial procedure), 139-141; 
 passage of bill, 143 ; duration 
 of, 143; suffrage right with- 
 held, 143. 
 
 Briggs, Isaac, 155, note 30. 
 
 British Treaty of 1794 (Jay's 
 Treaty), precedents cited from, 
 5-7, 50, 73, 182. 
 
 Burr Conspiracy, 167. 
 
 Cabildo, abolishment of, in New 
 Orleans, 92; establishment of, 
 92, note 35. 
 
 Cabot, G., opinion on Louisiana 
 Purchase, 32. 
 
 Calhoun, John C, 196; opinion on 
 Johnson amendment to Louisiana 
 Statehood biU, 192. 
 
 Campbell, G. W., of Tennessee, 
 support of bill providing for 
 registry of vessels, 132; opinion 
 on form of government for Louis- 
 iana, 137; submits substitute for 
 section 4 of Breckinridge bill, 
 138, and amendments to section 
 5, 140-141. 
 
 Canada, admission into the Union, 
 intent of framers of Constitu- 
 tion regarding, 34, 46; address 
 to, of October 26, 1774, 155, 
 
 Civil War, The, issues of, 113. 
 
 Claiborne, governor of Mississippi, 
 instructions from Grallatin on 
 export and import duties in 
 Louisiana, 40; appointed to 
 receive the ceded territory, 90. 
 Acting Governor of Louisiana, 
 92, 151, 152; opinions on gov- 
 ernment and people of Louis- 
 iana, 91, 93-94, 95; powers as 
 governor, 93, 147-148; admin- 
 istrator of justice, 95-96, 153; 
 suggestions and recommenda- 
 tions, 147-152, 162, 170-171; 
 attacks on him as governor: 
 memorial against, 153, 162; 
 report against, of committee, 
 154—155; opinion on status of 
 citizenship, 166, on suspension 
 of "writ of habeas corpus, 167- 
 168, on statehood for Orleans 
 Territory, 189, 190; letter of 
 introduction to President Mon- 
 roe of bearers of Louisiana 
 
 [236] 
 
Index 
 
 State Constitution, 190; date 
 of assumption of duties as 
 governor of Louisiana, 195. 
 
 Clark, D., 150, 150, note 11; co- 
 author of memorial against Clai- 
 borne, 153. 
 
 Clay, Henry, of Kentucky, reply 
 to Horsey on question of con- 
 stitutional powers of Executive, 
 175-17fi; suggestion on West 
 Florida difficulty in Louisiana 
 statehood matter, 191. 
 
 Clay, J., of Pennsylvania, opinion 
 on naturalization amendment to 
 Breckinridge bill, 141. 
 
 Clinton, of New York, points out 
 danger of armed action on part 
 of Executive, 11. 
 
 Cocke, of Tennessee, cited on the 
 treaty -making power, 59; opin- 
 ion on delegate to Congress from 
 Louisiana Territory, 104, on for- 
 mation of legislative council for 
 Louisiana, 107, on government 
 of Upper Louisiana, 122-123. 
 
 Committee of Detail, bearing of 
 report on constitutional right to 
 acquire territory, 15. 
 
 Committee of Five, bearing of 
 draft to a Constitution on right 
 to acquire territory, 15. 
 
 "Compact theory, '^ 69, 161, 177- 
 178. 
 
 Constitution of the Confederate 
 States, 16, note 10. 
 
 Constitution of the United States, 
 limitations of, 1 ; the right under, 
 to acquire territory, 14r-35; pro- 
 visions of Art. 4, Sec. 3, 14; in- 
 terpretations of other provisions, 
 16-35; powers of Executive un- 
 
 der, 174—176; precedents under, 
 made in Louisiana purchase, 
 195-196. See also Articles of 
 Confederation ; Committee of 
 Detail; Committee of Five; New 
 Jersey Plan; Virginia Plan; 
 West Florida, etc., etc. 
 
 Cooley, opinion on the Louisiana 
 purchase, 2, note 4; on practical 
 settlement of constitutional 
 poAver, 25, note 27. 
 
 Court of Pleas, established in 
 Louisiana Territory, 95; organ- 
 ization and jurisdiction, 95. 
 
 Crandall, S. B., 49, note 1. 
 
 Crowninshield, of Massachusetts, 
 opinion on Art. 7 of Louisiana 
 Treaty, 77. 
 
 Cuba, 170. 
 
 Cutler, M., comment on purchase 
 of New Orleans, 9, note 21 ; opin- 
 ion on Louisiana purchase, 33; 
 comment on Louisiana govern- 
 ment bill, 141, note 27. 
 
 Dana of Connecticut, cited on duty 
 of House to ask information of 
 President, 7, on power of the 
 Executive, 87; opposed to bill 
 providing for registry of ves- 
 sels, 132; revives partnership- 
 compact theory in amendment 
 to West Florida bill, 177-178. 
 
 Dayton, of New Jersey, opinion on 
 delegat-e to Congress from Louis- 
 iana Territory, 103, 104, on slav- 
 ery, 108, 110, 113, on elective 
 government and trial by jury for 
 Louisiana, 110, on third HUl- 
 house amendment, 116, on gov- 
 ernment and settlement of Upper 
 Louisiana, 123. 
 
 [237] 
 
Index 
 
 Dayton, General, vote on the Louis- 
 iana purchase treaties, 13; opin- 
 ion on Adams' motion to pass 
 Breckinridge bill, 103. 
 
 Dennis, of Maryland, support of 
 
 bm providing for registry of 
 
 vessels, 132. 
 Derbigny, P., bearer of Louisiana 
 
 memorial to Congress, 155, 156, 
 
 161-162. 
 
 Destrehan, J. N., bearer of Louis- 
 iana memorial to Congress, 155, 
 161-162. 
 
 District of Louisiana. See Upper 
 Louisiana. 
 
 District of Orleans. See Orleans, 
 Territory of. 
 
 Dred Scott case, 68, Tiote 13. 
 
 Easton, R., suggestion on form of 
 government for Orleans Terri- 
 tory, 162, on settlement on "west 
 side of Mississippi, 162—163. 
 
 Elliot, of Vermont, opposes reso- 
 lution requesting documents from 
 President, 50-51; cited on right 
 to acquire territory, 63; defense 
 of Art. 7 . of Louisiana Treaty, 
 76, 80; opposition to grant of 
 power to Executive, 86, 88; 
 opinion on section 4 of Breckin- 
 ridge bill, 136. 
 
 Ely, of Massachusetts, on boundary 
 amendment to Orleans Territory 
 statehood bUl, 182. 
 
 England (Great Britain), recip- 
 rocity relations with, 81. 
 
 Eppes, of Virginia, statement re- 
 garding writ of habeas corpus, 
 169. 
 
 Eustis, of Massachusetts, cit«d on 
 bill granting power to Executive, 
 88, on Breckinridge bill, 136, 
 
 "Fellow-Citizen," 154. 
 
 Floridas, negotiations regarding, 
 in connection Avith Louisiana pur- 
 chase, 3—4, 9-10; Jefferson's 
 opinion on settlement of, 17. 
 See also Eoss, of Pennsylvania; 
 West Florida. 
 
 France, negotiations with, in re- 
 gard to the Floridas, 3—4, 17, in 
 regard to rights of Americans on 
 the Mississippi, 9-11; complaint 
 of discrimination against her 
 ships, 81-83. 
 
 Franklin, of North Carolina, opin- 
 ion on slavery, 108, 109, 114, 
 118; stand on Hillhouse amend- 
 ment, 114. 
 
 Fromentin, E., agent bearing 
 Louisiana Stat^ Constitution and 
 West Florida memorial to Presi- 
 dent, 190. 
 
 Gallatin, A., interpretation of Con- 
 stitution, Art. 3, Sec 4, on 
 acquisition of territory, 20-22, 
 29, note 35; consideration of the 
 revenue problems of Louisiana, 
 39—41 ; • opinion on withholding 
 treaty from House until ratifica- 
 tion by President and Senate, 
 49-50. 
 
 Gholson, of Virginia, opinion on 
 admission of new states to 
 Union, 181, on Johnson 's amend- 
 ment to Louisiana statehood bill 
 and his proposed amendment, 
 192-193. 
 
 Giles, of Virginia, presented memo- 
 rial against Claiborne to Senate, 
 157; presented memorial for ad- 
 mission of Orleans Territory into 
 the Union, 171. 
 
 [238] 
 
Index 
 
 Goddard, of Connectieut, upholds 
 G. Griswold's resolution request- 
 ing documents from the Presi- 
 dent, 50. 
 
 Granger, G., 162-163. 
 
 Gregg, of Pennsylvania, opposed to 
 section 4 of Breckinridge bill, 
 135. 
 
 Griffin, of Virginia, objections to 
 Art. 7 of Louisiana Treaty, 76. 
 
 Griswold, G., of NeAv York, resolu- 
 tion requesting documents from 
 President, 50—51; cited on 
 treaty-making power, and on 
 Article 7 of treaty of cession, 
 51-52; 75-76. 
 
 Griswold, B., of Connecticut, mo- 
 tion requesting documents on the 
 Louisiana cession, 4-7; opinion 
 on constitutional conditions 
 necessary to ratification of Louis- 
 iana Treaty, 53-54; opposition 
 to incorporation of inhabitants 
 of acquired territory into the 
 Union, 71-72, to granting Louis- 
 iana commercial privileges, 77, 
 to granting power to Executive, 
 86-87; motion on right of reg- 
 istry of vessels, 134; opinion 
 on extension of naturalization 
 power, 141. 
 
 Habeas Corpus writ, suspension of, 
 167-169; incorporation of in 
 state constitution of Orleans 
 Territory, 189. 
 
 Hamilton's plan, bearing on con- 
 stitutional right to acquire terri- 
 tory, 15. 
 
 Hanseatic cities, reciprocity rela- 
 tions "with, 81. 
 
 Hastings, of Massachusetts, oppo- 
 sition to bill providing for regis- 
 try of vessels, 132. 
 
 Hillhouse, of Connecticut, opinion 
 on slavery, 109-110, on form of 
 government for Louisiana, 110, 
 on effect on slave trade of sup- 
 port of Louisiana government 
 bill, 112 ; first amendment to Lou- 
 isiana government bill, 112-113, 
 second amendment, 116, third 
 amendment, 116-120 ; voted 
 against Louisiana government 
 bill, 129; opinion on annexation 
 of Upper Louisiana to Indiana 
 Territory, 126; amendment to 
 bill admitting Orleans Territory 
 to statehood, 171. 
 
 Holland, of North Carolina, sup- 
 port of bill providing for regis- 
 try of vessels, 132; opinion on 
 Breckinridge bill, 137-138. 
 
 Horsey, of Delaware, statement of 
 issues in bill incorporating West 
 Florida and Orleans, and extend- 
 ing laws to, 174-175. 
 
 Huger, D. E., cited in debate on 
 Griswold's resolution, 6. 
 
 Indian question, in connection with 
 Louisiana purchase, 39 ; proposal 
 that Indians on east side move 
 to west side of Mississippi, 123. 
 125, 129, 144; commercial inter- 
 course with under the treaty, 150- 
 151. 
 
 Indiana Territory, proposals of an- 
 nexation to, of Upper Louisiana, 
 126-127; officers of, authorized 
 to govern Upper District of 
 Louisiana, 127. 
 
 [239] 
 
Index 
 
 Insular Cases (Decisions), influ- 
 ence of Louisiana purchase, 40, 
 66, 68, note 13, 78, note 37, 110, 
 note 23. 
 
 Jackson, Andrew, 152, note 19. 
 
 Jackson, of Georgia, opinion on 
 delegate to CJongress from Louis- 
 iana Territory, 103-104, on slav- 
 ery, 107-108, 111, 114, 116-117, 
 on first HiUhouse amendment to 
 Louisiana government bill, 113, 
 114, on third HiUhouse amend- 
 ment, 120; opposition to western 
 settlement, 123, to civil govern- 
 ment of Upper Louisiana, 125 ; 
 motion to annex Upper Louis- 
 iana to Indian Territory, 126; 
 approval of plan to have Indians 
 on west side of Mississippi, 129 ; 
 opinion on settlement of Louis- 
 iana, 145. 
 
 Jackson, of Virginia, opposed to 
 biU granting poAver to the Execu- 
 tive, 88; opinion on Adams' mo- 
 tion to pass Breckinridge bill, 
 103; opposed to Breckinridge 
 biU, 137. 
 
 Jay, John, cited on treaty-making, 
 49, Tiote 1. 
 
 Jay Treaty. See British Treaty of 
 1794. 
 
 Jefferson, T., opinion on treaty- 
 making power, 7, note 17 ; ap- 
 pointment of Livingstone and 
 Monroe as ministers to France, 
 of Pinekney and Monroe as min- 
 isters to Spain, 8-9, purpose of 
 appointment, 8, 9 ; views on 
 American westAvard expansion, 
 17, 24; perplexity and final de- 
 cision on constitutionality of 
 Louisiana purchase, 23-29; ac- 
 
 cused of planning for more slave 
 states, 32, note 44; plan for con- 
 trol of Louisiana Territory after 
 its acceptance, 37—39, 41; special 
 message to Congress on ratifica- 
 tion of Louisiana Treaty, 42—43 ; 
 intentions regarding rights of in- 
 habitants of acquired territory, 
 66-67; plans for government of, 
 84, 90, 91-92, 97-99; hope for 
 early permanent government in 
 Louisiana, 143—144; decision as 
 to judicial powers of governor 
 of Louisiana, 147-148; opinion 
 as to the laws that should pre- 
 vail in Louisiana, 151 ; concern 
 for defense of Louisiana, 163- 
 164, 165; appoints Wilkinson 
 military governor of Upper 
 Louisiana, 165-166. 
 
 Johnson, of Kentucky, on admis- 
 sion of Orleans Territory, 182 ; 
 amendment regarding annexa- 
 tion of West Florida to Orleans 
 Territory, 191. 
 
 Jones, E., co-author of memorial 
 against Claiborne, 153. 
 
 Key, of Maryland, on Orleans Ter- 
 ritory statehood bill, 186. 
 
 King, R., raises question as to ad- 
 mission of new states, 43. 
 
 "Laelius, " defender of Claiborne, 
 ■ 154-155. 
 
 LaFayette, considered for governor 
 of Louisiana, 152, and note 20. 
 
 Laussat, representative of French 
 Government at transfer of Louis- 
 iana, 92. 
 
 Leib, of Pennsylvania, opposed to 
 section 4 of Breckinridge bill, 
 135; motion to extend Natural- 
 ization Act, 141. 
 
 [240] 
 
Index 
 
 Leonard, D. A., cited on Louisiana 
 purchase, 37, note 3, 62, note 2. 
 
 Lewis, J., of Virginia, opinion on 
 effect of carrying out Art. 7 of 
 Louisiana Treaty, 76. 
 
 Lincoln, L., Attorney General, 
 scheme to avert opposition to 
 purchase of Floridas and New 
 Orleans, 18; decision on judicial 
 authority of governor of a ter- 
 ritory, 147-148. 
 
 Lincoln, President, 169. 
 
 Livingston, E., opinion on govern- 
 ment of Louisiana, 149-150, 150, 
 Tiote 10; author of memorial 
 against Claiborne, 153, and note 
 25. 
 
 Livingston, R., appointed as min- 
 ister plenipotentiary to France, 
 9; statement of position of 
 United States as to acquisition 
 of foreign territory, 33. 
 
 Lodge, H. C, opinion on Jeffer- 
 son's Louisiana purchase, 32, 
 note, 44. 
 
 Louisiana, size, 1; advantages of 
 purchase of, 2; effect of pur- 
 chase upon Constitution, 2, 3, 
 upon later American history, 2; 
 events leading to purchase, 3-13, 
 consumxuation of, 13, 17; recep- 
 tion of treaty in Congress, 13; 
 ratification of treaty, 22-29, 39, 
 40, 41-43 ; Senate vote providing 
 payment for, 60; State of, 77, 
 80; division into two parts, 98. 
 See also Breckinridge Bill; Lou- 
 isiana Purchase; Orleans Terri- 
 tory, etc., etc. 
 
 Louisiana, District of. See Upper 
 Louisiana. 
 
 Louisiana, Upper. See Upper Lou- 
 isiana. 
 
 Louisiana Government Bill. See 
 Breckinridge Bill. 
 
 Louisiana Purchase, constitutional 
 points raised: 
 Ttelations of branches of Govern- 
 ment to one another, and in- 
 terpretation and extent of 
 power of Executive, 7-8, 42, 
 note 14, 85-89 ; right of House 
 of Representatives to demand 
 information of Executive, 4r-7, 
 to share in treaty-making, 6, 
 43; danger of armed action 
 on part of Executive, 11; his 
 power to admit new states by 
 treaty, and power of Congress 
 to attach conditions to such 
 treaties, 43-44; power of Con- 
 gress over territories, 42, 141. 
 
 The treaty-making power, 43, 44, 
 49-61, 63, 64, 79, 133, 185- 
 186. 
 
 Right to acquire territory, 14- 
 35, 62-65 ; various proposals 
 based on: Constitution, Art. 4, 
 Sec. 3, 14, Articles of Con- 
 federation, Art. 11, 14, Ran- 
 dolph's "Propositions" (Vir- 
 ginia Plan), 14-15, Patter- 
 son's proposals (New Jersey 
 Plan), 15, Hamilton's plan, 
 15, the Cliarles Pinckney draft, 
 15, report of the Committee of 
 Detail, 15, draft of Committee 
 of Five, 15-16, other provis- 
 ions of the Constitution, 16, 
 the generally accepted ground, 
 16 ; Attorney General Lincoln 's 
 scheme, 18-20, and Gallatin's 
 reply, 20-22; Jefferson's per- 
 plexity and final decision, 23- 
 29 ; miscellaneous opinions, 29- 
 
 [241] 
 
Index 
 
 35; declaration of Chief Jus- 
 tice Marshall, 35; doctrine of 
 limitation of area of a repub- 
 lic, 62; bearing on, of the law 
 of nations, 63 ; historical basis 
 for, 63-64. 
 Status of acquired territory, 36- 
 48, 65-74; relation of Louis- 
 iana to rest of United States, 
 36-37; plan of " Sylvestris, " 
 37; plan of federal compact 
 for Louisiana, 37; Jefferson's 
 plan, 37-39, 41; revenue prob- 
 lems, 39—41; power of Con- 
 gress over territories, 42; tax- 
 ation of inhabitants, 45; con- 
 sent of people of United 
 States and Louisiana neces- 
 sary to make Louisiana part 
 of American Union, 46; inter- 
 pretation of Art. 3 of Louis- 
 iana Treaty, 65-66 ; rights and 
 privileges of inhabitants, 6&- 
 74, 122, 132-133, 138, 139- 
 140; status of inhabitants, 96, 
 103, 107, 151; the "compact 
 theory," 69, 161. 
 
 Government of acquired terri- 
 tory, temporary, 84-100, per- 
 manent, 101-107; Jefferson's 
 message, 84, 91-92, and action 
 of Congress, 84-85; discus- 
 sion of extent of Executive's 
 power, 85-89; passage of bill 
 authorizing temporary govern- 
 ment by Executive, 89, and of 
 act making effective laAvs of 
 the United States, 89 ; Paine 's 
 suggestion as to form of gov- 
 ernmeht, 90-91 ; Claiborne, 
 acting governor, 92; causes of 
 friction, 93, 95, 96; establish- 
 
 ment of Court of Pleas, 95; 
 plans for permanent govern- 
 ment, 97-100; obligations un- 
 der the treaty, 113, 114, 122, 
 132; right of trial by jury, 
 122; registry of vessels, 132- 
 
 133, 148, memorial regarding, 
 to House of Representatives, 
 
 134, Senate bill, 134r-135. 
 
 Commercial privileges, port pref- 
 erence, 74^83; distinction be- 
 tween state and territory, 75, 
 77, 79, 80; controversy regard- 
 ing, with Trance, 81-83. 
 
 States and territories, distinction 
 between, 124; extension of 
 Constitution to territories, 124- 
 125; extent of power of Con- 
 gress to legislate for terri- 
 tories, 141. 
 
 Problems of territorial govern- 
 ment, 147-169; discontent of 
 inhabitants, 147, 148-149, 163 ; 
 question of final authority in 
 judicial matters, 147-148; per- 
 sonnel of legislative council, 
 148; interpretation of Art. 3 
 of treaty, 150, 153, 158; de- 
 fense of colony, 163-164; 
 union of civil and military au- 
 thority in Upper Louisiana, 
 165-166; questions of juris- 
 diction (status of citizenship, 
 etc.), 16&-167, of suspension 
 of writ of habeas corpus, 167- 
 169. 
 
 Smnmary of constitutional prece- 
 dents made, 195; their signifi- 
 cance and importance, 110, 
 nMe 23, 196. 
 
 Louisiana Statehood Bill, 178-194. 
 See also Orleans, Territory of. 
 
 [242] 
 
Index 
 
 Lucas, of Pennsylvania, opinion on 
 Breckinridge bill, 136. 
 
 Lyon, of Kentucky, opinion on 
 Breckinridge bill, 136-137. 
 
 McKinley, President, 42, note 14. 
 
 Maelay, of Pennsylvania, opinion 
 on formation of legislative coun- 
 cil for Louisiana, 107, on slavery 
 in Louisiana, 129. 
 
 McLemore resolutions, 5, note 13. 
 
 Macon, of North Carolina, opinion 
 on form of government for Lou- 
 isiana, 137; on admission of new 
 territory to Union, 181, on Or- 
 leans Territory statehood bill, 
 186. 
 
 Madison, James, cited on admis- 
 sion of Missouri into the Union, 
 48; comment on President's 
 message announcing ratification 
 of the treaty, 49; instructions 
 regarding rights of inhabitants 
 of acqiiired territory, 66-67; 
 quoted on provision concerning 
 commercial privileges in Louis- 
 iana Treaty, 79-80, on form of 
 government for Louisiana, 100; 
 action - regarding West Florida, 
 172-173. 
 
 Magruder, A. B., opinion on expan- 
 sion of territory, 37, note 1, 62, 
 note 2; agent bearing Louisiana 
 State Constitution and West 
 Florida memorial to President, 
 190. 
 
 Marbois, B., expression of French 
 apprehension for French West 
 Indies, 33. 
 
 Marhury vs. Madison, significance 
 of decision of Supreme Court, 
 61. 
 
 Marshall, Chief Justice, approval 
 of Constitutional right to acquire 
 
 territory, 35; opinion concern- 
 ing writ of habeas corpus, 169. 
 
 Mason, S. T., cited on Boss resolu- 
 tions, 12. 
 
 Memorial to Congress against Clai- 
 borne, 153-162; bearers of, to 
 Washington, 155, 156, 161, 162; 
 resolution submitted in the 
 House, 160; bill passed in the 
 Senate, 160-161. 
 
 Mexican War, 175, note 18. 
 
 Mexico, 196. 
 
 Miller, of Tennessee, opposed to 
 admission of Orleans Territory, 
 18L 
 
 Mississippi, The, efforts ot Execu- 
 tive and Congress toward secur- 
 ing of rights of Americans on, 
 and of establishment of as boun- 
 dary line between United States 
 and Louisiana, 9-11; the Ross 
 resolutions, 11; plan of Attor- 
 ney General Lincoln, 17. 
 
 Mississippi Territory, introduction 
 of slaves forbidden, from with- 
 out the United States, 102, note 
 6; annexation to, of Upper Lou- 
 isiana, 126. 
 
 Mitchell, N., of Massachusetts, re- 
 view of the Louisiana question, 
 144-146. 
 
 Mitchell, of New York, opinion on 
 resolution requesting documents 
 from President, 51, on right to 
 acquire territory, 64-65; on 
 preparation of people of terri- 
 tories for statehood, 72, on power 
 to make citizens under Louisiana 
 Treaty, 73, on constitutionality 
 of Art. 7 of Louisiana Treaty, 
 78, on power of the Executive, 
 87; on amendment of Orleans 
 Territory Statehood bill, 187. 
 
 [243] 
 
Index 
 
 Mobile, establishment of district 
 and port of entry, 41. 
 
 Monroe, J., appointed as minister 
 extraordinary and plenipoten- 
 tiary to France and to Spain, 9; 
 offered position as governor of 
 Orleans Territory, 152. 
 
 Moore, quoted on status of ports in 
 acquired territory, 40, note 9. 
 
 Morris, G., opinion in connection 
 Avith Ross resolutions, 12; reply 
 to H. W. Livingston as to intent 
 of framers of the Constitution 
 on acquisition of territory, 31- 
 32, 44, 45. 
 
 Napoleon, 25. 
 
 Naturalization, law of, 133, 141. 
 
 Nelson, of Virginia, opinion on 
 Johnson's amendment to Louis- 
 iana statehood bill, 192. 
 
 Netherlands, reciprocity relations 
 Avith, 81. 
 
 Neuville, H. de, French minister to 
 United States, complaint of dis- 
 crimination against ships of 
 France, 81-83. 
 
 New England, hostility to Louis- 
 iana purchase, 32, 33, 70, 75, 77, 
 80, 129, 184, 186; champion of 
 the "compact theory," 178. 
 
 New England Repertory,, cited on 
 form of government for Louis- 
 iana, 146. 
 
 New Jersey Plan, bearing on con- 
 stitutional right to acquire terri- 
 tory, 15. 
 
 New Orleans, purchase of, object 
 of negotiation with France, 9, 
 10, 18; merchants' memorial to 
 House of Representatives, 134; 
 resignation of French mayor, 
 149. 
 
 New York Herald, cited on the 
 Breckinridge bill, 146. 
 
 Nicholas, W. C, opinion on acqui- 
 sition of territory, 26-27; Jeffer- 
 son ''s reply, 27-28; opinion on 
 treaty-making power, 58, on 
 Adams' resolutions on Breckin- 
 ridge bill, 103, on inhabitants of 
 Louisiana, 107, on slavery in 
 Louisiana, 119-120, on admis- 
 sion of Upper Louisiana, 125. 
 
 Nicholson, of Maryland, opinion 
 on resolution requesting docu- 
 ments from President, 51; opin- 
 ion on treaty-making power of 
 President and Senate, 54, and 
 on invalidity of treaty, 54-55; 
 traces historical support of right 
 to acquire territory, 63-64; 
 makes distinction between state 
 and territory, 77-78; supports 
 grant of power to Executive, 86 ; 
 opposed to bill providing for 
 registry of vessels, 132. 
 
 ** Northern and "Western Coali- 
 tion," 146. 
 
 Northwest Territory, 167. 
 
 Olcott, S., voted against Louisiana 
 government bill, 129. 
 
 Ordnance of 1787, cited as prece- 
 dent for extension of power of 
 Executive, 86. 
 
 Orleans, Territory of, name given 
 southern area of Lomsiana Ter- 
 ritory, 102; form of govern- 
 ment, 102; salary of governor, 
 128; bill providing government 
 of, 160-161; population, 170; 
 applic-ations for statehood, 170- 
 171; petition for admission as a 
 state, 178; discussion of the bill 
 
 [244] 
 
Index 
 
 enabling formation of state gov- 
 ernment and framing of consti- 
 tution, 178-187; approval of, by 
 President, 188; details regard- 
 ing the electorate, and represen- 
 tatives, 188; conditions regard- 
 ing the state constitution, 188- 
 189; election of members of con- 
 stitutional convention, 189 ; West 
 Florida not yet considered a part 
 of Orleans Territory, 189; adop- 
 tion of constitution and of me- 
 morial on annexation of West 
 Florida, 190; adjournment of 
 convention, 190 ; constitution 
 and memorial taken to President 
 Monroe, 190; President's mes- 
 sage to Congress regarding, 191 ; 
 difBieulty over West Florida, 191- 
 193; passage of bill for admis- 
 sion of State of Louisiana, 193 ; 
 President's approval, 193; some 
 details of biU, 193-194. 
 
 Paine, T., suggestions concerning 
 government of Louisiana, 90-91. 
 
 Patterson, New Jersey Plan, bear- 
 ing on constitutional right to 
 acquire territory, 15. 
 
 Pickering, of Massachusetts, opin- 
 ion on status of Louisianians 
 and on constitutional power of 
 the Government, 43-44, 47, 56, 
 opinion on delegate to Congress 
 from Louisiana Territory, 103, 
 on inhabitants of Louisiana, 107, 
 and our treaty obligation to- 
 wards, 124, on settlement of 
 Louisiana, 124. 
 
 Pinekney, C, appointed as minister 
 plenipotentiary to Spain, 9; 
 bearing of draft on constitu- 
 tional right to acquire territory, 
 15. 
 
 Pitkin, T., of Connecticut, on boun- 
 dary problems of Orleans Terri- 
 tory, 182. 
 
 Plumer, William, opinion on Mon- 
 roe's appointment as minister 
 to France and to Spain, 9; his 
 justification of his vote against 
 Louisiana Treaty, 13, note 37; 
 criticism of President's antici- 
 pation of congressional action, 
 42, note 14; in favor of biU pro- 
 viding for payment for Louis- 
 iana, 60; views on constitution- 
 ality of treaty, 60-61; criticism 
 of bill providing for temporary 
 government of Louisiana, 89; 
 opinion on Adams' motion to 
 pass Breckinridge bill, 103 ; com- 
 ment on importation of slaves 
 into Louisiana, 120, iiote 38; 
 voted against Louisiana govern- 
 ment biU, 129; description of 
 French memorialists in Wash- 
 ington, 156; opinion on admis- 
 sion of new states into Union, 
 161, on military tenure policy, 
 164. 
 
 Poindexter, interpretation of Con- 
 stitution in reply to Quiney, 185— 
 186, 186, note 37; amendment on 
 annexation of West Florida to 
 Orleans Territory, 191. 
 
 Popular sovereignty doctrine, 113, 
 159. 
 
 Poydras, J., delegate to House 
 from Orleans Territory, 178. 
 
 Prussia, reciprocity relations "vvith, 
 81. 
 
 Quesada, governor of Florida, 17. 
 
 Quiney, Josiah, charge against Jef- 
 ferson, 32, Ttote 4:4:; speech 
 against Louisiana statehood bill, 
 183-184, 184, note 35. 
 
 [245] 
 
Index 
 
 Ramsay, D., opinion of the Louis- 
 iana purchase, 2, note 2, 62, 
 note 2. 
 
 Randolph, E., * ' Propositions ' ' 
 (Virginia Plan), number ten, 
 bearing on Constitutional right 
 to acquire territory, 14-15. 
 
 Randolph, J., of Virginia, motion 
 on Griswold's resolution, 5, car- 
 ried, 7; cited on powers of the 
 Executive, 7-8; description of 
 the man, 8; resolution providing 
 for carrying into effect the 
 treaty of cession and its con- 
 ventions, 50; opposes G. Gris- 
 Tvold's resolution requesting doc- 
 uments from President, 50; re- 
 plies to G. Griswold's objections 
 to treaty-making power exercised 
 by President, 53 ; champions 
 right to acquire territory, 63; 
 opinion on rights of inhabitants 
 of acquired territories, 73-74; 
 cit-es Treaty of London, Art. 3, 
 on port preferences, 79; opinion 
 on extent of Executive's power, 
 85-86, and amendment proposed, 
 88; report on memorial against 
 Claiborne, 159-160. 
 
 Republic, doctrine as to limitation 
 of area, 62. 
 
 Rhea, J., president of West Florida 
 convention, 172; favored admis- 
 sion of Orleans Territory, 181; 
 opinion on division of Orleans 
 Territory, 181. 
 
 Robelot, report against Claiborne, 
 
 154. 
 Rodney, of Delaware, opinion on 
 
 right to acquire territory, 64, on 
 
 granting of power to Executive, 
 
 88. 
 
 Ross, of Pennsylvania, resolutions 
 on forcible acquisition of terri- 
 tory desired, 11-12; suspicion 
 regarding, 11, note 26. 
 
 Rutledge, of South Carolina, cited 
 on Griswold's resolution, 5. 
 
 San Domingo, slave revolt in, 108, 
 and note 18. 
 
 Sauve, P., bearer of memorial to 
 Congress, 155, 156, 161-162. 
 
 Secret Session,- act of Congress 
 passed in, 13. 
 
 Shackleford, of Missouri, on the 
 McLemore resolutions, 5, note 13. 
 
 Sheffey, of Virginia, on admission 
 of Orleans Territory, 180, 181. 
 
 Slavery, status of, in Louisiana 
 Territory, 94, 102, in Ohio, 109, 
 in Georgia, 114, 117, in South 
 Carolina, 112, and note 24, 116; 
 in the Constitution, 119; debate 
 and provisions concerning, 107- 
 120, 141-142; opinion of 
 Mitchell regarding, 144r-145; as 
 treated in memorial to Congress, 
 159; slaves brought in by French 
 immigrants, 170, Tiote 1. 
 
 Sloan, of New Jersey, support of 
 bill providing for registry of 
 vessels, 132; on right of Louis- 
 ianians to elective franchise, 138 ; 
 amendment prohibiting admis- 
 sion of slaves. 
 
 Smilie, of Pennsylvania, cites de- 
 bate on British Treaty, 6, 50; 
 opinion on right to acquire ter- 
 ritory, 70, on obligation towards 
 inhabitants of Louisiana, 70-71, 
 138, on amendment to Orleans 
 
 . Territory statehood bill, 187. 
 
 Smith, I., of Vermont, stand on 
 slavery provision in Louisiana 
 government bill, 112, 115. 
 
 [246] 
 
Index 
 
 Smith, J., opinion on movement of 
 Americans into Spanish terri- 
 tory, and advice regarding Flor- 
 ida, 12, note 30. 
 
 Smith, J., of Ohio, favored dele- 
 gate to Congress from Louisiana 
 Territory, 103; opinion on slav- 
 ery, 108-109, 110, on government 
 of Upper Louisiana, 122; sug- 
 gestion to annex Upper Louis- 
 iana to Mississippi Territory, 
 126. 
 
 Smith, E., Secretary of the Navy, 
 opinion on control of emigration 
 to ceded territory, 24, note 24; 
 opinion on Jefferson's plan for 
 Louisiana, 39. 
 
 Smith, S., of Maryland, cites Brit- 
 ish Treaty of 1794 as precedent 
 for approval of Griswold's mo- 
 tion, 5; favored a delegate to 
 Congress from Louisiana Terri- 
 tory, 103; opinion regarding in- 
 habitants of Louisiana, 107, on 
 slavery, 112, 114, 118, on first 
 Hillhouse amendment to Louis- 
 iana government bill, 114, on 
 Sec. 8 of the bill, 124, on annex- 
 ation to Indiana Territory, 126. 
 
 South Carolina, slaves in, 112, and 
 note 24, 116. 
 
 Spain, claim to the Ploridas, 4. 
 
 Spanish- American War, 59. 
 
 State and territory, distinction be- 
 tween, basis of constitutional 
 controversy, 75, 77, 80. 
 
 Statehood, preparation of people 
 of territories for, 72. 
 
 States' rights, doctrine of, 63, 64. 
 
 Stone, of North Carolina, opinion 
 on slavery, 129; voted against 
 Louisiana government bill, 129. 
 
 Sumter ("Sumpter''), T., of 
 South Carolina, considered by 
 Jefferson for appointment as 
 governor of Louisiana, 90, note 
 29. 
 
 Sweden, reciprocity relations with, 
 81. 
 
 Tait, G., of Georgia, reports House 
 bill on West Florida, 177. 
 
 Taylor, J., interpretation of Con- 
 stitution on Government's right 
 and means of acquiring territory, 
 57; opinion as to obligation 
 toward inhabitants of acquired 
 territory, 67-68, and note 13. 
 
 Territory of Orleans, name given 
 southern area of Louisiana Ter- 
 ritory, 102. See Orleans, Terri- 
 tory of. 
 
 Texas, 196. 
 
 Thacher, of Massachusetts, ap- 
 proves resolution requesting doc- 
 uments from President, 51, 
 
 Tracy, of Connecticut, opinion on 
 rights of inhabitants of acquired 
 territory, 68-69, on matter of 
 commercial privileges in Louis- 
 iana Treaty, 75. 
 
 Treaty of London, cited by John 
 Kandolph in regard to port privi- 
 leges, 79. 
 
 Treaty of Peace with Great Brit- 
 ian, in 1783, Art. 4, cited as 
 precedent, 54, 55. 
 
 Treaty of 1794 with Great Britain, 
 Art. 2 cited as precedent for ad- 
 mitting aliens to citizenship by 
 treaty stipulation, 73. 
 
 Treaty of 1795, precedent in, for 
 boundary decision, 182. 
 
 Turner, F. J., cited on effect of 
 Louisiana purchase on the Con- 
 stitution, 2. 
 
 [247] 
 
Index 
 
 Upper Louisiana (District of Lou- 
 isiana), settlement of, opinions 
 thereon, 98-99, 121, 122, 123, 
 124, 144, 145; debate on Sec. 8 
 providing form of government 
 for, 121-126; principal provis- 
 ions of Sec. 8, 121-122; number 
 and character of inhabitants, 
 123 ; proposals of annexation of, 
 to Indiana Territory, 126-127, to 
 Mississippi Territory, 127; au- 
 thority of government of Indiana 
 Territory extended to, 127. 
 
 Varnum, of Massachusetts, cited 
 on Sec. 2 of Breckinridge bill, 
 87, on bill providing for registry 
 of vessels, 132, on See. 4 of 
 Breckinridge bill, 135-136. 
 
 Veuable, A. B., interpretation of 
 Constitution on slavery, 119; 
 suggestion as to government of 
 Upper Louisiana, 126. 
 
 Virginia Plan. See Randolph, E., 
 ' ' Propositions. ' ' 
 
 Washington, President, 7, note 17. 
 
 Webster, D., 196. 
 
 West Florida, independence of, 
 and application for admission 
 to Union, 171-172; possession 
 taken by United States, 173 ; an- 
 nexation to Orleans Territory, 
 174; bill on extension of laws of 
 Orleans to River Perdido, 174; 
 constitutional issues, 174-176; 
 passage of Enabling Act, 178; 
 not represented in constitutional 
 convention of Orleans Territory, 
 189; memorial regarding annex- 
 ation to Orleans Territory, pre- 
 sented to House, 192; Johnson 
 and Gliolson amendments, 191, 
 192-193 ; Gholson amendment 
 passed, 193; passage of bill pro- 
 
 viding for inclusion of, in State 
 of Louisiana, 194; provisions of 
 bill, 194-195, accepted by Louis- 
 iana State Legislature, 195. 
 
 Wheaton, of Massachusetts, on ad- 
 mission of Orleans Territory, 
 180. 
 
 White, of Delaware, argument on 
 constitutional right to acquire 
 by treaty, 55-56; opposition to 
 delegate to Congress from Louis- 
 iana Territory, 103 ; opinion oii 
 slavery, 111. 
 
 Willoughby, W. W., 49, note 1; 
 criticism of President McKinley, 
 42, note 14. 
 
 Wilkinson, J., General, appointed 
 commissioner to receive ceded 
 territory, 92; a^point-ed military 
 governor of Upper Louisiana, 
 165-166. 
 
 Wirt, Attorney General, statement 
 on the Louisiana purchase, 30. 
 
 Workman, J. 5ee "Laelius. " 
 
 Worthington, of Ohio, amendment 
 authorizing election of delegate 
 to Congress from Louisiana, 103, 
 104; comment on separation of 
 western from eastern states, 121; 
 introduces bill for settlement of 
 Orleans Territory based on mili- 
 tary tenure, 164. 
 
 Wright, of Maryland, opinion on 
 slavery, 120; claim of constitu- 
 tional distinction between states 
 and territories, 124; advocate of 
 Sec. 8 of Louisiana government 
 bill, 124; approval of union of 
 Upper Louisiana and Indiana 
 Territory, 126; opinion on divi- 
 sion of territory of Orleans, 181, 
 on Orleans Territory statehood 
 bill, 186. 
 
 [248]