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Although democracy of government was the very political life of Jefferson, yet not for a moment was he led astray by the ideals which he worshipped as the right basis of such a government. The Constitution was framed to cover existing exigencies. These were the settlement, organization and control of this unsettled territory. There was not perfect harmony among the thirteen original States as to the disposition of this territory and the adoption of the articles of the Constitution was long delayed in consequence, as we have seen.

victories which his military genius had made posible, with all continental Europe at his feet, forced his Catholic majesty of Spain to restore to him the vast territory of Louisiana, which had been gained for the honor and dominion of France by the intrepid La Salle and his followers. to be lost to Spain at the same time that New France, established by the valor of Frontenac, was lost forever to the English. Years before this happened the settlers along the lower Mississippi and the gulf had laid the foundation of what is now a large and prosperous city. An important trading post was the Port of Orleans at Jefferson knew that no popular government could this time. So much so that certain rights of traders be based upon a system which is not properly adto enter at this port for deposit and cargo were men-justed to the needs, intelligence and sentiments of the tioned in treaty relations between Spain and the new States.

The vanishing glory of Spain, as a nation among the nations of the world, was keenly felt by her nobility of the Hapsburg line, and it was only after promise of secrecy and the retention by France that they yielded to the exactions of the master of Europe and passed over to France a large portion of the territory, the discovery and acquisition of which is to be placed to the credit of the Hapsburg line of princes beginning with the brilliant reign of Ferdinand and Isabella, and is the chief glory of Spanish history.

The granting to France of this vast territory, the limits of which were then unknown, was but the prelude to what soon followed in the loss of Florida, and culminated three-quarters of a century later in the loss of the Queen of the Antilles" and the faraway Philippines.

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As before mentioned, in framing and adopting the Constitution the matter of the disposition of the territory to the north and west, ceded to the States by Great Britain very much as it had been turned over to her by France after the fall of French dominion on the north bank of the St. Lawrence, was of very great consequence and presented a serious obstacle to the ratification of the articles by the States. This point being settled by adopting it as common property of the then United States, an ordinance for its government was adopted. Herein began our experience with colonial government, so called, and from this time began the incipient growth of distinctions in constitutional stipulations which blossomed in the political philosophy of Jefferson and Madison and bore the fruit of the Louisiana Purchase.

Hereafter, the distinction between State and territory, and the power of the Constitution on one hand and congress on the other, were to become momentous questions. As the distinction between State and territory was understood by the great apostle of human freedom and democracy, Thomas Jefferson, and as now settled, perhaps, for all time, by the recent decisions of the Supreme Court of the United States, in the cases of De Lima v. Bidwell and Downes v. Bidwell, there is difference without doubt.

people governed. And from this knowledge he drew conclusions as to the relation of the territory to the Federal government, rather than from any interpretation of the constitutional stipulations. And in the ordinance adopted in 1787 for the regulation of this "contiguous territory," certain conditions were insisted upon by Jefferson and his party, which seemed entirely at variance with his democratic ideas, and which plainly indicated that a representative government was not to be given to this organized territory during the period of its political and industrial development.

There must be at least five thousand free white males who had the necessary residence, and who owned fifty acres of land. These were worthy of the franchise and might vote for members of a local house of representatives, the members of which should absolutely own two hundred acres of land. This house of representatives, when assembled, was authorized to nominate ten men, each possessed of a freehold title to five hundred acres. And of these the president was to choose five as councillors of the territory. These two legislative bodies were to choose a delegate to represent the territory in the federal house in all deliberations, but not to vote. Thus with this oligarchical form of government was established the relation of this territory and the State, and dependent on this principle of relation is the present system.

It would seem from the above that Jefferson and his advisers although believers in the broad democratic principles of government which moved the colonists to violently sever their relation to the mother country, when it came to going outside the original thirteen States to share this beneficient plan with their dependent neighbors, could no more relish this idea than did Pericles of Athens relish the idea of extending the gracious privileges of democracy enjoyed by the Athenians to his neighbors of Lesbos or Chios, who were attracted by the democratic splendor of Athens under his rule and that of his friends, Phidias, Anaxagores and Aspasia, and eventually attached to the Greek Confederacy to the glory and prosperity of old Athens.

But, then, even Socrates did not know, at least he did not tell, of the true foundation of a stable democracy. Jefferson did know, for he was at the christen

ing of the young Democracy of the new world. And he knew that fair representation by the governed in the councils of the governors must of necessity fall within the spirit of a Constitution made for a government of the people, by the people and for the people."

But the status of this northwestern territory which came to the colonial States as an indirect result of the successful struggle of the colonies for liberty, from the tyranny and oppression of England, in relation to the organized States of the Union, which had adopted a Constitution expressly made for them, did not present the difficulties which confronted Jefferson and his friends when the Louisiana Purchase was consummated.

did they contemplate the vast acquisitions to the United States made by the generations to follow. It seems reasonable to believe from this fact and from the public records and correspondence of those times, that when the Constitution was framed and adopted no serious intention existed to extend the territory of the United States beyond the limits laid down at the treaty of Paris in 1763. That it was believed by the statesmen of the times the Constitution only provided for the government of the territory then included within the limits of the thirteen original States and the territory contiguous thereto ceded by Great Britain.

On being confronted with this difficulty, and while negotiations were still on with the French government, Jefferson and his chief adviser, Madison, finding no express authority in the Constitution itself, justified their action to congress under the treatymaking clause and the broad principle of national

existing as a matter of public policy. At first Jefferson had grave doubts of the constitutionality of the proposed purchase of Louisiana. This he expressed in a letter to a friend of his in August, 1803:

The importance of the great waterway along the western boundary of the territory of the northwest was recognized at this time, with commerce only in its infancy. And to possess the fertile valley of the Mississippi river, with its large tributaries flow-growth and existence and the commercial authority ing from the east and the west, became the ambitious dream of both Jefferson and his friend and adviser, James Madison. But Spain controlled the entrance to this great water thoroughfare and regulated the traffic thereon. Secretly negotiating with France for the transfer back to her of the vast domain on both sides of the mouth of the river and extending back into the unknown wilds of the Rocky Mountains, the Spanish officials kept from the rest of the world the agreement with the First Consul of France. But some complications at the Port of Orleans revealed to Jefferson and his advisers the changed condition of affairs.

A denial of the right of citizens of the United States to entry and deposit of merchandise at Orleans by the officials stationed there nearly led to a rupture between the Spanish and this country. But Jefferson and his friends were equal to the occasion and with consummate tact and dispatch threatened the disheartened Spanish authorities on the one hand and cajoled and flattered the vanity of Napoleon on the other. Bonaparte's ambition was not to acquire more empire for France, but rather to put its revenues in subjection to his ambitious demands for supporting a great military State, with him at the head. Besides the ventures of France in the new world had resulted disastrously. He feared England's might on the water, as he had good cause to do. The continent of Europe was the arena most promising to his arms. He needed money to carry out his extensive and expensive campaigns. He obtained that which he most desired, fifteen millions of American money, and at the same time Jefferson's ambitious dream had become a reality.

A splendid achievement of statesmanship. Albeit to lead to the first questionable experiment with the Constitution.

It is inconceivable that the makers of the Constitution should have passed this vitally important subject of the future acquisition of territory, at least, that which was contiguous, with the simple provision contained in section 3 of article 4, above recited,

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'Our confederacy is certainly confined to the limits established by the Revolution. The general government has no power 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 to the Constitution seems necessary for this."

Again, writing to Hon. John C. Breckenridge, in the same month, concerning this purchase, he says:

"The Constitution has made no provision for our holding foreign territory, still less for incorporating foreign nations into our Union. The executive, in seizing the fugitive occurrence, which so much advances the good of this country, has done an act beyond the Constitution. The legislature, in casting behind them metaphysical subtleties and risking themselves like faithful servants must ratify and pay for it. And throw themselves on their country for doing for them, unauthorized, what we know they would have done for themselves had they been in a situation to do it. It is the case of a guardian investing the money of his ward in purchasing an important adjacent territory, and saying to him when of age: 'I did this for your benefit; I pretend to no right to bind you; you may disown me and I may get out of the scrape as I can; I thought it my duty to risk myself for you.' But we shall not be disowned by the nation, and their act of indemnity will confirm and not weaken the Constitution by more strongly working out its lines."

By the "indemnity" referred to he meant the ratification of an amendment to the Constitution.

Writing again to Mr. Breckenridge, a few days later, he goes on to impress upon those in charge of

the matter in congress the advisability of suppressing the question of authority under the Constitution. He says:

"A letter received yesterday shows that nothing must be said on that subject which may furnish a pretext for retracting; but that we should do subsilentio what shall be found necessary." To James Madison this doubt was plainly expressed, and the two held frequent counsel about the proposed amendment to the Constitution.

This amendment was finally prepared by the two. and Jefferson, writing to the Hon. Levi Lincoln, thus explains some of his ideas on the powers of congress, to be exercised in this new territory:

"I have thought it better, instead of enumerating the powers which congress may exercise, to give them the same powers they have as to other portions of the Union generally and to enumerate the special exceptions.

The less that is said about any constitutional difficulty the better."

Whether this silence on the part of the administration was for political reasons at home, or that such discussions might not impede the progress of negotiations with France, is rather uncertain. But as the Federalist party was then making a strong bid for popularity and ascendancy a keen watch was kept on the policy of Jefferson and his party and the progress of this affair in particular. His caution to his political friends about raising doubts of the constitutionality of this measure was most likely that a strong front might be presented to his political enemies in the coming campaign.

Writing to Madison, just before action taken by congress to ratify the treaty which his diplomatic skill had brought about, he says:

"Whatever congress shall think it necessary to do, should be done with as little debate as possible, and particularly in 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 that the intention was 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, etc., into it, which would be the case on your construction.

nation, when 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." Thus did Jefferson argue for a limited application of constitutional stipulations and a close construction of the Constitution itself. He believed firmly in the lack of constitutional authority to expand the territory of the United States beyond the limits as fixed in 1783 without an amendment to that compact.

The opinions of Madison and finally Marshall changed his mind.

The Federalists went against Jefferson and his policy of expansion and were defeated and scattered to the winds, an experience from which a later-day political party might well profit.

Now, the difficulty with expansion of territory at this time, under the Constitution, was not so much the acquisition of the land itself as in the disposition of its probable inhabitants. Agreeing, at last, that no objection existed in the Constitution to the acquisition of new territory, what was to be its status with regard to the other parts of the Union and upon what terms were the inhabitants of the acquired territory to be received into the Union, if at all.

These questions, long agitated and debated in congress, quickened in sectional strife and mixed with the question of slavery, produced the war of

Rebellion.

As the treaty under which the territory of Louisiana was ceded by France to the United States specifically stated

"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," this became at once an important matter for the administration. Jefferson adhered to his former opinion that the Constitution did not contemplate such a condition and the inhabitants of this new territory could not be received into the Union of States. That the Constitution was not made for them. But for the States and territory in existence as part of the Union, when the Constitution was adopted. The Louisiana Purchase could be received by the government only as a dependency under the immediate control of congress.

Amid the whirl of conflicting opinions and doubts of the constitutionality of the measure, heightened by the open threats of Spain, Jefferson held firm in his course. The opportune moment had arrived for acquiring territory beyond his most sanguine expectations and the imagination of the framers of the Constitution. Thorough politician that he was he saw that to hesitate then might indefinitely delay, if not When an instrument admits two constructions, absolutely loose to his administration, this great pothe one safe, the other dangerous; the one pre-litical achievement, and he acquiesced in the plans of cise, the other indefinite, I prefer that which is his friend Madison, and accepted his theories of the safe and precise. Constitution.

I had rather risk an enlargement from the

We heard a great deal said about the Constitution

following the flag in the recent national campaign the United States to acquire the territory in quesand much of it came from the remnant of Democ- tion, claimed that the stipulation in the treaty racy. But this sentiment or theory of the beneficient influence of that instrument, was not in accord with the settled policy of the father of Democracy.

The debates in congress over the ratification of the treaty with France were interesting indeed. The pride and jealousy of State power in the Union predominated over all other questions. The lines of political parties were then only forming. The ties that had bound them together through the struggle for existence as colonies of the American world, and later welded together in the fire of revolution, were still strong to bind. Love of justice and equality tempered these debates into the counsel of statesmen. Mr. Taylor, of Virginia, in the Senate, speaking on the question especially pertinent to the origin of the right of the United States to acquire Louisiana by purchase, said, among other things:

'Before a confederation each State in the Union possessed a right as attached to sovereignty of acquiring territory by war, purchase or treaty. This right must be either still possessed or forbidden both to each State and to the general government or transferred to the general government. It is not possessed by the States separately, because war and compacts with foreign powers had with each other are prohibited to a separate State, and no other means of acquiring territory exist.

By depriving every State of the means of exercising the right of acquiring territory the Constitution has deprived each separate State of the right itself. Neither the means nor the right of acquiring territory are forbidden to the United States. On the contrary, in the fourth article of the Constitution congress is empowered to dispose of and regulate the territory belonging to the United States.' This recognizes the right of the United States to hold territory. The means of acquiring it consist of war and compact; both are expressly surrendered to congress and forbidden to the several States; and no right in a separate State to hold territory without its limits is recognized by the Constitution, nor any mode effecting it possible consistent with it. The means of acquiring and the right of holding territory being both given to the United States and prohibited to each State, it follows that these attributes of

sovereignty once held by each State are thus transferred to the United States, and that if the means of acquiring and the right of holding are equivalent to the right of acquiring territory, then this right merged from the separate States to the United States as indispensably connected with the treaty-making power and the power of declaring war, or, indeed, is literally given to the general government by the Constitution." Mr. Pickering, of Massachusetts, while conceding the soundness of this argument as to the right of

"That the inhabitants of the ceded territory shall be incorporated in the Union of the United States"

conflicted with the express terms of the Constitution, and that there was no authority vested in the executive through treaty regulations, nor in congress under the Constitution, as it then stood, ever to receive the inhabitants of the ceded territory into

this Union. That the clause in the Constitution making

"This Constitution and the laws of the United States, made in pursuance thereof, and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land,"

did not give power to the president to make a treaty or to congress to pass a law in violation of the Constitution. This new territory might be acquired and held as a dependent possession of the United States, but never received into the Union of the States.

Mr. Tracy, of Connecticut, was of the opinion that the constitutional stipulation permitting new States to enter the Union referred rather to what were termed domestic States or such as were members of the confederation and interested in the result of the revolution and that covered by the limits established in 1783. He said, in addition thereto :

"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 amendments to our Constitution can legalize such measures. If done at all, they must be done by universal consent of all the States or the partners to Our political association."

It was shown in this debate that goods to the value of more than two millions of dollars had been carried into the western country through the port of Orleans and a revenue of $300,000 paid into the

treasury.

In the house Mr. Elliott, of Vermont, swept aside the argument of the opposition to the treaty by asserting that the American people in adopting the Constitution had an eye to the law of nations, which, by natural reason and common consent, provides for emergencies. In this sense the treaty-making power was constituted a part of the machinery of government, and by virtue of this power the United States, in common with all other nations, possess the right of making acquisitions of territory by conquest, cession or purchase.

To which Mr. Griswold, of New York, replied:

"The government of this country is formed by a union of the States, and the people have declared that the Constitution was established 'to form a more perfect union of the States.' The United States here mentioned cannot be mistaken. They were the States then in existence and such other new States as should be formed within the then limits of the Union conformably to the provisions of the Constitution. Every measure, therefore, which tends to infringe on the perfect union of the States herein described is a violation of the first sentiment expressed in the Constitution.

The incorporation of a foreign nation into the Union, so far from tending to preserve the Union is a direct inroad upon it; it destroys the perfect union intended between the original parties by interposing an alien and stranger to share the powers of government with them. The government of the United States was not formed for the purpose of distributing its principles and advantages to foreign nations. It was formed with the sole view of securing those blessings to ourselves and our posterity.

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It follows from these principles that power can reside in any public functionary to contract any engagement or to pursue any measure which shall change the union of the States.

Nor was it necessary that any restriction clause should have been inserted in the Constitution to restrain the public agents from exercising the extraordinary powers, because the restriction grows out of the nature of the government."

The quotations from debates in congress over the ratification of this measure above given, are merely for the purpose of showing how strong the sentiment was at this time against expansion in any form or direction, and thus to show the growth of the doctrine as it is now understood and its contradistinction to the Monroe doctrine.

As to the provision in the treaty relating to the disposition of the inhabitants of this territory and their ultimate admission into the Union, it had been claimed that this stipulation does not, in fact, incorporate the people of the ceded territory into the union of the States, but provides that they shall be so incorporated and admitted

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'According to the principles of the federal Constitution."

That the treaty only pledges the faith of the nation that such an incorporation shall take place. Speaking to this point, Mr. Griswold argued that there was no difference in principle between a direct incorporation by the words of a treaty and the stipulation that the incorporation shall take place under the terms of the Constitution. Since, if the faith of the nation is pledged, the incorporation must take place at some time. If, as contended by some members of that body that while, perhaps, no power ex

isted under the Constitution, as it then stood, an amendment would give such authority, the reply was that it still could not be claimed that the stipulations for this incorporation are constitutional and valid, because it is declared that the inhabitants of the ceded territory are to be admitted to the rights of citizenship

"According to the principles of the Constitu

tion,"

because if, as admitted, there is no principle existing in the present Constitution by which they can be incorporated, the stipulation in the treaty is void and would amount to an absurdity.

The intention of the government towards the inhabitants of the newly acquired territory, as outlined by Mr. Mitchell, of New York, was:

"To extend to this newly acquired people the blessings of law and social order. To protect them from rapacity, violence and anarchy. To make them secure in their lives, limbs and property, reputation and civil privileges. To make them safe in the rights of conscience. In this way they are to be trained up in a knowledge of our own laws and institutions. They are thus to serve an apprenticeship to liberty; they are 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 admit, and according to the principles of the Constitution."

And it is to be assumed that it was the intention of Mr. Mitchell and his party, after keeping this territory in a transitory state for a due length of time, to admit it into the Union of States. Or, very aptly, although most sarcastically put by the present Chief Justice of the United States Supreme Court in his dissenting opinion in Downes v. Bidwell:

as

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That if an organized and settled province of another sovereignty is acquired by the United States, congress has the power to keep it, like a disembodied shade, in an intermediate state of ambiguous existence for an indefinite period; and more than that, that after it has been called from that limbo, commerce with it is absolutely subject to the will of congress, irrespective of constitutional provisions."

The simple right to acquire territory must exist somewhere in the organic law of every nation, either in spirit or the letter. It is essential to independent sovereignty and growth of nations. Perhaps, a more cogent reason might be urged if we take proper measure of the observation of the lawyer and philosopher, Montesquieu :

"It is happy for the trading powers that God has permitted Turks and Spaniards to be in the world, since of all nations they are the most proper to possess a great empire with insignificance."

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