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consent of the larger States, claiming the Western lands, necessary to the establishment of new States within their limits.” The motion was agreed to, six to five. The article coming before the House as amended, Mr. Sherman thought it unnecessary. The Union could not dismember a State without its consent. Dr. Johnson suggested, that as the clause stood, Vermont would be subjected to New York, contrary to the faith pledged by Congress. Mr. Sherman moved to postpone, to take up this amendment, and moved as an amendment, “The legislature shall have power to admit other States into the Union; and new States to be formed by the division or junction of States now in the Union, with the consent of the legislature of such States.” Mr. Madison adds, [“The first part was meant for Vermont, to secure its admission,”] which shows clearly that the general language used did not refer to foreign territory; as is shown in fact by the whole of the debate. Mr. Gouverneur Morris's substitute, after being amended, was agreed to, 8 to 3, − New Jersey, Delaware, Maryland in the negative. An amendment by Mr. Dickinson was adopted without count, and the article was thus framed substantially as it now stands in Art. IV. sect. 3 of the Constitution, “Congress” being substituted for “legislature,” with some change in the arrangement of the sentence. In all this long debate, and among the various propositions to amend, I find nothing indicating a supposition on the part of any member, that provision was to be made for the admission of a State formed from territory not then within the Jimits of the United States. The general clause providing that new States may be admitted into the Union, passed, as we have seen, without dissent, which it could not have done had there been a supposition that it contemplated the possibility of the addition of foreign territory. That was intended to provide for the admission of Vermont, and perhaps to cover the admission of the States to be formed from the territory northwest of the Ohio, although it would seem to have been understood that the ordinance adopted by Congress July 13, 1787, (about six weeks prior to these proceedings in the Convention,) had settled the affairs of that territory by a fundamental law and compact, so that no provision in the Constitution was necessary in reference to that territory. The residue of the article related to cases of new States to be formed from the territory of the existing States, by division, and perhaps by the junction of parts of States, – a main part of the controversy being, whether Congress should have power to do this without the consent of the States to be affected. No mention was made of Canada, for whose admission into the Confederation provision was made in the Articles of Confederation. It was quite proper to give her an opportunity to join in the Revolution. As she had not done so, the Constitution was not made for her. It appears that the provision for the admission of new States, extended only to the territory then embraced in the United States; not only from the preamble, but because it was framed with reference to the existing state of things; because all its language is satisfied without extending it to foreign territory; because it would have been regarded as indecorous, if not hostile, toward Great Britain and Spain, had provision been made for a contingent admission, founded on anticipated dismemberments of their territory; because Canada, for the admission of which provision was made in the Articles of Confederation, is left out; because the debates show conclusively that no foreign territory was within the contemplation of the Convention, — and it is believed that no suggestion of a construction which would include such territory, is to be found in the debates in the State conventions; and because any provision for admitting foreign territory would have been fatal to the Constitution. No one conversant with the history of the Constitution can doubt it. The jealousy of the Western States which were to be admitted shows this. But this is not all upon this point. The construction of the Constitution nearest to a contemporaneous one, clearly held the provision not to extend to foreign territory. Upon the adoption of the Constitution, the settlement of the Western country was more rapid, and the importance of the navigation of the Mississippi became more and more apparent. An arrangement was had with Spain respecting the navigation through her territory, and for a deposit of merchandise at New Orleans. Difficulties, and jealousy, and excitement arose, and there was a proclamation by the Intendant at New Orleans, that the right of deposit no longer existed ; whether with or without the direction of his government is now immaterial. Spain about that time ceded Louisiana to France by the treaty of St. Ildefonso, and a negotiation was opened with France for the purchase of the Island of Orleans and the territory eastward. Mr. Madison, then Secretary of State, sent to Mr. Livingston, our minister to France, the project of a treaty, the 7th article of which is as follows: —
“Art. 7. 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 mean time they shall be secure in their persons and property, and in the enjoyment of their religion.”
While this matter was under consideration, the danger of a war between France and England became imminent; and Bonaparte, probably convinced that he could not hold Louisiana if war was declared, proposed to sell the whole of it, and no less.
Mr. Livingston, and Mr. Monroe who joined him about that time, were not authorized to make such a purchase. But the matter admitted of no delay; an answer to the proposition must be given forthwith ; and they took the responsibility, and negotiated a treaty, April 30, 1803, for the purchase, which contained this as its third article, namely:
“Art. 3. The inhabitants of the ceded territory shall be incorporated in the Union of the United States, and admitted as soon as possible, according to the principles of the Federal Constitution, to the enjoyment of all the rights, advantages, and immunities of citizens of the United States; and in the mean time they shall be maintained and protected in the free enjoyment of their liberty, property, and the religion which they profess.”
The article, it is perceived, is somewhat more definite than that contained in Mr. Madison's draft of a treaty for the smaller cession. It is not, perhaps, to be inferred with certainty from the article prepared by Mr. Madison, that he entertained a decided opinion that Louisiana could not be admitted into the Union as a State without an amendment of the Constitution; but upon the conclusion of the treaty, Mr. Jefferson's opinion to that effect was distinctly ex
pressed. In a letter to Wilson C. Nicholas, Sept. 7, 1803, he said:
" Whatever Congress shall think it necessary to do, should be done with as little debate as possible, and particularly so far as respects the constitutional difficulty. I am aware of the force of the observations you make on the power given by the Constitution to Congress, to admit new States into the Union, without restraining the subject to the territory then constituting the United States. But when I consider that the limits of the United States are precisely fixed by the treaty of 1783, that the Constitution expressly declares itself to be made for the United States, I cannot help believing the intention was not to permit Congress to admit into the Union new States, which should be formed out of the territory for which, and under whose authority alone, they were then acting. I do not believe it was meant that they might receive England, Ireland, Holland, &c. into it, which would be the case on your construction. When an instrument admits two constructions, the one safe, the other dangerous, the one precise, the other indefinite, I prefer that which is safe and precise. I had rather ask an enlargement of power from the nation, where it is found necessary, than to assume it by a construction which would make our powers boundless. Our peculiar security is in the possession of a written Constitution. Let us not make it a blank paper by construction. I say the same as to the opinion of those who consider the grant of the treaty-making power as boundless. If it is, then we have no Constitution. 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.
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. If, however, our friends shall think differently, certainly I shall acquiesce with satisfaction; confiding, that the good sense of our country will correct the evil of construction when it shall produce ill effects.”
Other letters written by him are to the same effect.
The treaty was ratified by the Senate, at a special session of Congress, Oct. 20, 1803. The ratification was in executive session, and I have found no sketch of the debate. The