of the Mississippi and of the other rivers entering the Gulf of Mexico as ought to prove satisfactory to France.23

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:

Resolved, that a sum of two millions of dollars, in addition to the provision 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 President 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 negotiation 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 forward to the free use of the Mississippi, 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 resolution.24

On February 15, 1803, a confidential message from the House was received by the Senate, transmitting a bill which had

23 Annals of Congress, 7 Cong., 2 Sess. (1802-1803), Appendix, 10631064.

24 Ibid., 370-374.

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.25

There were those in the Senate who believed in forcible occupation of the desired territory. Ross of Pennsylvania claimed 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 carrying into effect of these resolutions.2

26

Although Ross' resolutions were struck out, the constitutional questions involved were not so quickly passed by. 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 giving extensive powers to the Executive: it was an inevitable consequence of war in free countries that the power which wielded the force always rose above the power that expressed the will of the people. The state governments would be greatly weakened. "Those stately pillars which support the magnificent dome of our National Government will totter under the increased weight of the superincumbent pressure.

25 Ibid., 90.

9727

26 Ibid., 95-96. By friends of the administration Ross 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.

Gouverneur Morris of New York expressed the opinion that the western regions were peculiarly 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. 28 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 invasions,' but nothing further.... Gentlemen tell us that they are willing to entrust to the 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, without 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 Gouverneur 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. "Presently 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.

7730

The House bill "making further provision for the expenses attending the intercourse between the United States and foreign nations" passed the Senate by the close vote of fourteen to

28 Annals of Congress, 7 Cong., 2 Sess. (1802-1803), 195.

29 Ibid., 216.

30 Ibid., 218-219. The movement 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 Americans. Jefferson Papers, Letters received at Washington, 2d Series,'' LXXVI (46).

twelve.31 When 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 passage of an important act of Congress in secret session.32

It does not fall within the province of this discussion to follow in detail the story of the purchase of Louisiana.33 It is the history of the constitutional problems arising out of that acquisition which will be taken up. Livingston and Monroe wrote from Paris, May 13, 1803, announcing the purchase.34 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.35

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 greatly reduced that they counted for little.36 Writing to Captain Meriwether Lewis, November 16, Jefferson said, "The votes of both Houses on ratifying and carrying 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.

1937

33 See Henry Adams, History of the United States, I, 423-446, II, 25-50. 34 Annals of Congress, 7 Cong., 2 Sess. (1802-1803), Appendix, 11451150.

35 Ibid., 1166, Letter of July 29, 1803.

36 Jefferson, 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 was 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: did a constitutional right to acquire territory exist?

No specific grant of such power was to be found in the Constitution. Article four, section three, declares :

New 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 concerned as well as of Congress.

The Congress shall have power to dispose of and make all needful Rules 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 provision: "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.

772

In Edmund Randolph's "Propositions" in the Federal Convention, commonly known as the Virginia Plan, 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 Elliot, Debates on the Federal Constitution, I, 84.