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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 sorce 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 sale, 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
subject came before the Senate soon after, on a bill to authorize a creation of stock, for the purpose of carrying the treaty into effect. A few extracts from that debate will show the opinion upon this subject.
Mr. Pickering said:—
“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 without an amendment of the Constitution; and he conceived that this necessary amendment could not be made in the ordinary mode by the concurrence of two thirds of both Houses of Congress, and the ratification by the legislatures of three fourths of the several States. He believed the assent of each individual State to be necessary for the admission of a foreign country as an associate in the Union; in like manner as in a commercial house, the consent of each member would be necessary to admit a new partner into the company; and whether the assent of every State to such an indispensable amendment were attainable, was uncertain.”
Mr. Tracy: —
“Congress have no power to admit new foreign States into the Union, without the consent of the old partners. The article of the Constitution, if any person will take the trouble to examine it, refers to domestic States only, and not at all to foreign States; and it is 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 words of the Constitution are completely satisfied, by a construction which shall include only the admission of domestic States, who were all parties to the Revolutionary war, and to the compact; and the spirit of the association seems to embrace no other. . . . .
“But it is said, that this third article of the treaty only promises an introduction of the inhabitants of Louisiana into this Union, as soon as the principles of the federal government will admit; and that, if it is unconstitutional, it is void; and, in that case, we ought to carry into effect the
“I shall be asked, sir, what can be done? To this question I have two answers; one is, that nothing unconstitutional can or ought to be done; and if it be ever so desirable that we acquire foreign States, and the navigation of the Mississippi, &c., no excuse can be formed for violating the Constitution; and if all those desirable effects cannot take place without violating it, they must be given up. But another and more satisfactory answer can be given. I have no doubt but we can obtain territory either by conquest or compact, and hold it, even all Louisiana, and a thousand times more if you please, without violating the Constitution. We can hold territory; but to admit the inhabitants into the Union, to make citizens of them, and States, by treaty, we cannot constitutionally do; and no subsequent act of legislation, or even ordinary amendment to our Constitution, can legalize such measures. If done at all, they must be done by universal consent of all the States or partners to our political association. And this universal consent, I am positive, can never be obtained to such a pernicious measure as the admission of Louisiana, of a world, and such a world, into our Union. This would be absorbing the Northern States, and rendering them as insignificant in the Union as they ought to be, if, by their own consent, the measure should be adopted.”
Mr. John Quincy Adams : —
“For my own part, I am free to confess that the third article, and more especially the seventh, contain engagements placing us in a dilemma, from which I see no possible mode of extricating ourselves but by an amendment, or rather an addition to the Constitution. The gentleman from Connecticut (Mr. Tracy), both on a former occasion, and in this day's debate, appears to me to have shown this to demonstration. But what is this more than saying that the President and Senate have bound the nation to engagements which require the coöperation of more extensive powers than theirs, to carry them into execution ? Nothing is more common in the negotiations between nation and nation, than for a minister to agree to and sign articles beyond the extent of his powers. This is what your ministers, in the very tase before you, have confessedly done. It is well known that their powers did not authorize them to conclude this treaty; but they acted for the benefit of their country; and this House, by a large majority, has advised to the ratification of their proceedings.”