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Title: History of the United States of America, Volume 2 (of 9)
During the first administration of Thomas Jefferson

Author: Henry Adams

Release date: December 24, 2023 [eBook #72499]

Language: English

Original publication: New York: Charles Scribner's Sons, 1889

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*** START OF THE PROJECT GUTENBERG EBOOK HISTORY OF
THE UNITED STATES OF AMERICA, VOLUME 2 (OF 9) ***

THE FIRST ADMINISTRATION

OF

THOMAS JEFFERSON
1801–1805

H I S TO RY

OF THE

UNITED STATES OF AMERICA
DURING THE FIRST ADMINISTRATION OF

THOMAS JEFFERSON

By HENRY ADAMS

Vol. II.

NEW YORK
CHARLES SCRIBNER’S SONS
1889

Copyright, 1889,
By Charles Scribner’s Sons.

University Press:
John Wilson and Son, Cambridge.

CONTENTS OF VOL. II.
CHAPTER PAGE
I. Rupture of the Peace of Amiens 1
II. The Louisiana Treaty 25
III. Claim to West Florida 51
IV. Constitutional Difficulties 74
V. The Louisiana Debate 94
VI. Louisiana Legislation 116
VII. Impeachments 135
VIII. Conspiracy 160
IX. The Yazoo Claims 192
X. Trial of Justice Chase 218
XI. Quarrel with Yrujo 245
XII. Pinckney’s Diplomacy 264
XIII. Monroe and Talleyrand 288
XIV. Relations with England 316
XV. Cordiality with England 342
XVI. Anthony Merry 360
XVII. Jefferson’s Enemies 389
XVIII. England and Tripoli 410

Index to Vols. I. and II. 439

THE COAST OF
WEST FLORIDA
AND
LOUISIANA
(From Jeffery’s American Atlas. London, 1800.)

HISTORY OF THE UNITED STATES.

CHAPTER I.
Congress expired; Monroe set sail March 8, 1803; Washington relapsed
into silence; and the President and his Cabinet waited alone in the empty
village, triumphing for the moment over their difficulties. Although a
French prefect was actually in New Orleans, and the delivery of Louisiana
to Bonaparte might from day to day be expected, not an additional soldier
stood on the banks of the Mississippi, and the States of Kentucky and
Tennessee were as quiet as though their flat-boats still floated down to New
Orleans. A month passed before Madison or Jefferson again moved. Then
the President asked his Cabinet[1] what Monroe should do in case France, as
he expressed it, “refused our rights.” He proposed an alliance with England,
and suggested three inducements which might be offered to Great Britain:
“1. Not to make a separate peace. 2. To let her take Louisiana. 3.
Commercial privileges.” The Cabinet unanimously rejected the second and
third concessions, but Dearborn and Lincoln were alone in opposing the
first; and a majority agreed to instruct Monroe and Livingston, “as soon as
they find that no arrangements can be made with France, to use all possible
procrastination with them, and in the mean time enter into conferences with
the British government, through their ambassador at Paris, to fix principles
of alliance, and leave us in peace till Congress meets; and prevent war till
next spring.”
Madison wrote the instructions. If the French government, he said,[2]
should meditate hostilities against the United States, or force a war by
closing the Mississippi, the two envoys were to invite England to an
alliance, and were to negotiate a treaty stipulating that neither party should
make peace or truce without consent of the other. Should France deny the
right of deposit without disputing the navigation, the envoys were to make
no positive engagement, but should let Congress decide between immediate
war or further procrastination.
At no time in Talleyrand’s negotiations had the idea of war against the
United States been suggested. Of his intentions in this respect alone he had
given positive assurances.[3] Above all things both he and the First Consul
feared a war with the United States. They had nothing to gain by it.

Madison’s instructions therefore rested on an idea which had no foundation,
and which in face of the latest news from Europe was not worth
considering; yet even if intended only for use at home, the instructions were
startling enough to warrant Virginians in doubting their authenticity. The
late Administration, British in feeling as it was supposed to be, had never
thought an alliance with England necessary even during actual hostilities
with France, and had not hesitated to risk the chances of independent
action. Had either of Jefferson’s predecessors instructed American ministers
abroad, in case of war with France, to bind the United States to make no
peace without England’s consent, the consequence would have been an
impeachment of the President, or direct steps by Virginia, Kentucky, and
North Carolina, as in 1798, tending to a dissolution of the Union. Such an
alliance, offensive and defensive, with England contradicted every principle
established by President Washington in power or professed by Jefferson in
opposition. If it was not finesse, it was an act such as the Republicans of
1798 would have charged as a crime.
While Madison was writing these instructions, he was interrupted by the
Marquis of Casa Yrujo,[4] who came in triumph to say that his Government
had sent out a brigantine especially to tell the President that the right of
deposit would be restored and continued till another agreement or
equivalent place could be fixed upon.[5] Yrujo was instructed to thank the
President for his friendly, prudent, and moderate conduct during the
excitement. He sent to New Orleans the positive order of King Charles IV.
to the Intendant Morales, that the right of deposit should be immediately
restored; the western people were told that their produce might go down the
river as before, and thus the last vestige of anxiety was removed. In face of
this action by Godoy, and of the war evidently at hand between France and
England, the success of the peace policy was assured. These events in some
degree explained the extraordinary nature of the new instructions of April,
1803.
Monroe was then already at Paris. In order to make clear the situation in
which he found himself, the sequence of events in Europe needs to be
understood.
Bonaparte’s expedition to Louisiana was to have sailed at the end of
September, 1802.[6] A general of division, three generals of brigade, five

battalions of infantry, two companies of artillery, sixteen pieces of cannon,
and three thousand muskets were to be collected at Dunkirk for shipment;
but as fast as regiments could be named they were consumed by the fiery
furnace of St. Domingo. Nevertheless, all the orders and arrangements were
gradually made. Victor was to command the forces in Louisiana; Laussat
was to be prefect, charged with the civil administration. Both received
elaborate written instructions; and although Victor could not sail without
ships or troops, Laussat was sent on his way.
These instructions, which were never published, had extreme value for
the decision of disputes which were to perturb American politics for the
next twenty years. Although Victor was forced to wait in Holland for the
expedition he commanded, a copy of his instructions was given to Laussat,
and served to regulate his conduct as long as he remained in office. Decrès,
the Minister of Marine, was the author of this paper, which unfolded the
purpose that had guided France in recovering, and was to control her in
administering, this vast possession. Nothing could be simpler, clearer, or
more consistent with French policy than this document, which embodied so
large a part of Talleyrand’s political system.
The instructions began, as was natural, by a careful definition of the
new province. After reciting the terms of the retrocession according to the
Third Article of Berthier’s Treaty, Decrès fixed the boundaries of the
territory which Victor, on the part of the French republic, was to receive
from the Marquis of Somoruelos, the Captain-General of Cuba.[7]
“The extent of Louisiana,” he said, “is well determined on the south by the Gulf of
Mexico. But bounded on the west by the river called Rio Bravo from its mouth to
about the 30° parallel, the line of demarcation stops after reaching this point, and
there seems never to have been any agreement in regard to this part of the frontier.
The farther we go northward, the more undecided is the boundary. This part of
America contains little more than uninhabited forests or Indian tribes, and the
necessity of fixing a boundary has never yet been felt there. There also exists none
between Louisiana and Canada.”

In this state of things the captain-general would have to relieve the most
remote Spanish garrisons, in order to establish possession; in other respects
he would be guided only by political and military interests. The western and
northern boundary was of less consequence than the little strip which
separated New Orleans from Mobile; and to this point the instructions
specially called Victor’s attention. Quoting the treaty of 1763 between

Spain, Great Britain, and France, when Florida was to become a British
possession, Decrès fixed its terms as still binding upon all the interested
parties.
“‘It is agreed,’” said the seventh article of this treaty, “‘that in future the
boundaries between the States of his Most Christian Majesty and those of his
Britannic Majesty shall be irrevocably fixed by a line drawn down the middle of the
Mississippi River from its source to the River Iberville, and from there by a line down
the middle of that river and of the lakes Maurepas and Pontchartrain to the sea. New
Orleans and the island on which it stands shall belong to France.’ Such is still to-day
the eastern limit of Louisiana. All to the east and north of this limit makes part of the
United States or of West Florida.”

Nothing could be clearer. Louisiana stretched from the Iberville to the
Rio Bravo; West Florida from the Iberville to the Appalachicola. The
retrocession of Louisiana by Spain to France could restore only what France
had ceded to Spain in 1762. West Florida had nothing to do with the cession
of 1762 or the retrocession of 1800, and being Spanish by a wholly different
title could not even be brought in question by the First Consul, much as he
wanted Baton Rouge, Mobile, and Pensacola. Victor’s orders were
emphatic:—
“There is therefore no obscurity as to our boundary on this side any more than as
to that of our allies; and although Florida belongs to Spain, Spain’s right of property
in this quarter will have as much interest for the Captain-General of Louisiana as
though Florida were a French possession.”

After thus establishing the boundary, as far as possible, in every
direction, the minister treated at some length of the English claim to
navigation on the Mississippi, and at last reached the general subject of the
relation between Louisiana and the world about it,—the subject in which
Jefferson would have found acute interest:—
“The system of this, as of all our other colonies, should be to concentrate its
commerce in the national commerce; it should have in particular the aim of
establishing its relations with our Antilles, so as to take the place, in these colonies, of
the American commerce for all the objects whose import and export is permitted to
them. The captain-general should especially abstain from every innovation favorable
to strangers, who should be restricted to such communications as are absolutely
indispensable to the prosperity of Louisiana and to such as are explicitly determined
by the treaties.”

Commercial relations with the Spanish colonies were to be encouraged
and extended as much as possible, while the utmost caution was to be
observed toward the United States:—

“From what has been said of Louisiana and the adjacent States, it is clear that the
republic of France, being master of both banks at the mouth of the Mississippi, holds
the key to its navigation. This navigation is nevertheless a matter of the highest
importance for the western States of the Federal Government.... This is enough to
show with what jealousy the Federal Government will see us take possession of
Louisiana. Whatever may be the events which this new part of the continent has to
expect, the arrival of the French forces should be marked there by the expression of
sentiments of great benevolence for these new neighbors.”

Expression of benevolent sentiments was a pleasing duty; but it was not
to interfere with practical measures, both defensive and offensive:—
“The greatest circumspection will be required in directing the colonial
administration. A little local experience will soon enable you to discern the sentiments
of the western provinces of the Federal Government. It will be well to maintain
sources of intelligence in that country, whose numerous, warlike, and sober
population may present you a redoubtable enemy. The inhabitants of Kentucky
especially should fix the attention of the captain-general.... He must also fortify
himself against them by alliance with the Indian nations scattered to the east of the
river. The Chibackas, Choctaws, Alabamas, Creeks, etc., are represented as being
entirely devoted to us.... He will not forget that the French government wishes peace;
but that if war takes place, Louisiana will certainly become the theatre of hostilities....
The intention of the First Consul is to raise Louisiana to a degree of strength which
will allow him in time of war to abandon it to its own resources without anxiety; so
that enemies may be forced to the greatest sacrifices merely in attempting to attack
it.”

In these instructions not a word could be found which clashed with
Jefferson’s pacific views; and partly for that reason they were more
dangerous to the United States than if they had ordered Victor to seize
American property on the Mississippi and occupy Natchez with his three
thousand men. Victor was instructed, in effect, to tamper with every
adventurer from Pittsburg to Natchez; buy up every Indian tribe in the
Georgia and Northwestern Territory; fortify every bluff on the western bank
from St. Louis to New Orleans; and in a few years create a series of French
settlements which would realize Madison’s “sound policy” of discouraging
the United States from colonizing the west bank.
Fortified by these instructions, the Citizen Laussat set sail Jan. 12, 1803,
and in due time arrived at New Orleans. Victor labored in Holland to put his
ships and supplies in a condition to follow. As Laussat sailed, another step
was taken by the French government. General Bernadotte, a very
distinguished republican officer, brother-in-law of Joseph Bonaparte, was
appointed minister at Washington.[8] The First Consul had his own reasons
for wishing to remove Bernadotte, as he meant to remove Moreau; and

Washington was a place of indirect banishment for a kinsman whose
character was to be feared. Bernadotte’s instructions[9] were signed by
Talleyrand Jan. 14, 1803, the day after Monroe was confirmed as special
envoy to France by the Senate at Washington, and while Laussat was still
on the French coast. Although Bonaparte had been obliged to withdraw a
part of Victor’s force, he still intended that the expedition should start at
once with two thousand men;[10] and its departure was to be so timed that
Bernadotte should reach Washington as Victor and his troops reached New
Orleans. Their instructions were on one point identical. News of the closure
of the Mississippi by Morales had reached Paris, and had already caused an
official protest by Livingston, when Talleyrand drew up the instructions to
Bernadotte:—
“Louisiana being soon to pass into our hands, with all the rights which have
belonged to Spain, we can only with pleasure see that a special circumstance has
obliged the Spanish Administration to declare formally [constater] its right to grant or
to refuse at will to the Americans the privilege of a commercial entrepôt at New
Orleans; the difficulty of maintaining this position will be less for us than that of
establishing it.... Yet in any discussion that may arise on this subject, and in every
discussion you may have to sustain, the First Consul wishes you to be informed of his
most positive and pronounced desire to live in good understanding with the American
government, to cultivate and to improve for the advantage of American commerce the
relations of friendship which unite the two peoples. No one in Europe wishes the
prosperity of that people more than he. In accrediting you to its Government he has
given it a peculiar mark of his good disposition; he doubts not that you will make
every effort to bind closer the ties which exist between the two nations. In
consequence of the firm intention which the First Consul has shown on this subject, I
must recommend you to take every care to avoid whatever might alter our relations
with that nation and its Government. The agents of the French republic in the United
States should forbid themselves whatever might even remotely lead to a rupture. In
ordinary communication, every step should show the benevolent disposition and
mutual friendship which animate the chiefs and all the members of the two
Governments; and when any unforeseen difficulty rises which may in any degree
whatever compromise their good understanding, the simplest and most effectual
means of preventing all danger is to refer its solution to the inquiry and direct
judgment of the two Governments.”

Talleyrand’s language was more elaborate, but not clearer, than that
which Bonaparte himself used to Victor.[11]
“I have no need to tell you,” the First Consul wrote, “with what impatience the
Government will wait for news from you in order to settle its ideas in regard to the
pretensions of the United States and their usurpations over the Spaniards. What the
Government may think proper to do must not be judged in advance until you have
rendered an account of the state of things. Every time you perceive that the United
States are raising pretensions, answer that no one has an idea of this at Paris (que l’on

n’a aucune idée de cela à Paris); but that you have written, and that you are expecting
orders.”

These were the ideas held by the government of France at the moment
when Jefferson nominated Monroe as a special envoy to buy New Orleans
and West Florida. Jefferson’s hopes of his success were small; and
Livingston, although on the spot and eager to try the experiment, could only
write:[12] “Do not absolutely despair.” Whatever chance existed of obtaining
New Orleans seemed to lie in the possibility that Addington’s peaceful
administration in England might be driven into some act contrary to its vital
interests; and even this chance was worth little, for so long as Bonaparte
wanted peace, he could always keep it. England was thoroughly weary of
war; and proved it by patiently looking on while Bonaparte, during the year,
committed one arbitrary act after another, which at any previous time would
have been followed by an instant withdrawal of the British minister from
Paris.
On the other hand, the world could see that Bonaparte was already tired
of peace; his rôle of beneficent shopkeeper disgusted him, and a new war in
Europe was only a question of months. In such a case the blow might fall
on the east bank of the Rhine, on Spain, or on England. Yet Bonaparte was
in any case bound to keep Louisiana, or return it to Spain. Florida was not
his to sell. The chance that Jefferson could buy either of these countries,
even in case of a European war, seemed so small as hardly to be worth
considering; but it existed, because Bonaparte was not a man like other
men, and his action could never be calculated in advance.
The news that Leclerc was dead, that his army was annihilated, St.
Domingo ruined, and the negroes more than ever beyond control, reached
Paris and was printed in the “Moniteur” Jan. 7, 1803, in the same active
week when Bernadette, Laussat, and Victor were ordered from France to
America, and Monroe was ordered from America to France. Of all the
events of the time, Leclerc’s death was the most decisive. The colonial
system of France centred in St. Domingo. Without that island the system
had hands, feet, and even a head, but no body. Of what use was Louisiana,
when France had clearly lost the main colony which Louisiana was meant
to feed and fortify? The new ruler of France was not unused to failure.
More than once he had suddenly given up his dearest plans and deserted his
oldest companions when their success was hopeless. He had abandoned

Paoli and Corsica with as little compunction as afterward he abandoned the
army and the officers whom he led to Egypt. Obstinate in pursuing any
object which led to his own advancement, he was quick to see the moment
when pursuit became useless; and the difficulties that rose in his path
toward colonial empire were quite as great as those which had driven him to
abandon Corsica and Egypt. Not only had the island of St. Domingo been
ruined by the war, its plantations destroyed, its labor paralyzed, and its
population reduced to barbarism, so that the task of restoring its commercial
value had become extremely difficult; but other and greater objections
existed to a renewal of the struggle. The army dreaded service in St.
Domingo, where certain death awaited every soldier; the expense was
frightful; a year of war had consumed fifty thousand men and money in vast
amounts, with no other result than to prove that at least as many men and as
much money would be still needed before any return could be expected for
so lavish an expenditure. In Europe war could be made to support war; in
St. Domingo peace alone could but slowly repair some part of this frightful
waste.
Leclerc was succeeded at St. Domingo by General Rochambeau, a son
of the Comte de Rochambeau, who twenty years before had commanded
the French corps which enabled Washington to capture Cornwallis at
Yorktown. A brave officer, but known to be little fit for administration,
Rochambeau was incompetent for the task that fell on him. Leclerc had
warned the Government that in case of his own retirement he had no officer
fit to replace him,—least of all Rochambeau, who was next in rank.
Rochambeau wrote to inform the First Consul that thirty-five thousand men
must be sent to save the island.[13] Without a new commander-in-chief of
the highest ability, a new army was useless; and meanwhile Rochambeau
was certain to waste the few thousand acclimated soldiers who should form
its nucleus.
The First Consul found himself in a difficult and even dangerous
situation. Probably the colonial scheme had never suited his tastes, and
perhaps he had waited only until he should be firm in power in order to
throw off the tutelage of Talleyrand; but the moment had arrived when his
tastes coincided with policy. A second failure at St. Domingo would destroy
his own credit, and disgust both the army and the public. Abandonment of
the island was equally hazardous; for it required the abandonment of French

traditions and a confession of failure. Retirement from St. Domingo was
impossible, except under cover of some new enterprise; and as Europe
stood, no other enterprise remained for France to undertake which would
not lead her armies across the Rhine or the Pyrenees. For this undertaking
Bonaparte was not yet ready; but even had he been so, it would have
offered no excuse for abandoning the colonies. The ocean would still have
been open, and St. Domingo within easy reach.
Only one resource remained. Bonaparte told no one his plans; but he
was not a man to hesitate when decision was needed. From the day when
news of Leclerc’s death arrived, during the first week of January, 1803, the
First Consul brooded over the means of abandoning St. Domingo without
appearing to desert intentionally a policy dear to France. Talleyrand and
Decrès were allowed to go on as before; they gave instructions to
Bernadotte, and hurried the preparations of Victor, whom the ice and snow
of Holland and the slowness of the workmen held motionless; they prepared
a reinforcement of fifteen thousand men for Rochambeau, and Bonaparte
gave all the necessary orders for hastening the departure of both
expeditions. As late as February 5, he wrote to Decrès that fifteen thousand
men had been, or were about to be, sent to St. Domingo, and that fifteen
thousand more must be ready to sail by the middle of August.[14] Yet his
policy of abandoning the colonial system had been already decided; for on
January 30 the “Moniteur” produced Sebastiani’s famous Report on the
military condition of the East,—a publication which could have no other
object than to alarm England.[15]
Livingston was quick to see the change of policy; but although he
understood as much as was known to any one, he could not count with
certainty on the result.[16] Not even Joseph and Lucien knew what was in
their brother’s mind. Talleyrand seems to have been elaborately deceived;
even as late as February 19 he was allowed to instruct General
Beurnonville, the French ambassador at Madrid, to express “the warm
satisfaction which the last acts of sovereignty exercised by the King of
Spain in Louisiana have given to the First Consul.”[17] The last act of
sovereignty exercised by Spain in Louisiana had been the closure of the
Mississippi. Before Beurnonville could obey this order, Godoy, hastening to
anticipate possible interference from France, promised Pinckney, February
28, that the entrepôt should be restored. King Charles’s order of restitution

bore date March 1, 1803; Beurnonville’s note, urging the King to sustain
Morales, bore date March 4, and March 10 Don Pedro Cevallos replied to
Talleyrand’s congratulation in a tone so evasive as to show that Godoy was
again deceiving the First Consul.[18] Cevallos did not say that the right of
deposit had ten days before been restored; he contented himself with
mentioning the reasons alleged by Morales for his act, adding at the close
the empty assurance that “in every way his Majesty prizes highly the
applause of the French government.” In January, only a few weeks before,
Godoy had told Beurnonville, with unconcealed satisfaction, that Bonaparte
should not have Florida,—although without Florida the town of New
Orleans was supposed to be of little value. In February he snatched away
what he could of New Orleans by replacing the Americans in all their
privileges there.
Livingston plied the French officials with arguments and memorials; but
he might have spared himself the trouble, for Bonaparte’s policy was
already fixed. The First Consul acted with the rapidity which marked all his
great measures. England at once took Sebastiani’s Report as a warning, and
began to arm. February 20 Bonaparte sent to the Corps Législatif his
Annual Report, or Message, which spoke of Great Britain in language that
could not be disregarded; finally, March 12, Livingston saw a melodramatic
spectacle which transfixed him with surprise and excitement.[19] The scene
was at Madame Bonaparte’s drawing-room; the actors were Bonaparte and
Lord Whitworth, the British ambassador. “I find, my Lord, your nation want
war again!” said the First Consul. “No, sir,” replied Whitworth; “we are
very desirous of peace.” “I must either have Malta or war!” rejoined
Bonaparte. Livingston received these words from Lord Whitworth himself
on the spot; and returning at once to his cabinet, wrote to warn Madison.
Within a few days the alarm spread through Europe, and the affairs of St.
Domingo were forgotten.
Bonaparte loved long-prepared transformation-scenes. Such a scene he
was preparing, and the early days of April, 1803, found the actors eagerly
waiting it. All the struggles and passions of the last two years were crowded
into the explosion of April. At St. Domingo, horror followed fast on horror.
Rochambeau, shut in Port au Prince,—drunken, reckless, surrounded by
worthless men and by women more abandoned still, wallowing in the dregs
of the former English occupation and of a half-civilized negro empire,—

waged as he best could a guerrilla war, hanging, shooting, drowning,
burning all the negroes he could catch; hunting them with fifteen hundred
bloodhounds bought in Jamaica for something more than one hundred
dollars each; wasting money, squandering men; while Dessalines and
Christophe massacred every white being within their reach. To complete
Bonaparte’s work, from which he wished to turn the world’s attention, high
among the Jura Mountains, where the ice and snow had not yet relaxed their
grip upon the desolate little Fortress and its sunless casemate, in which for
months nothing but Toussaint’s cough had been heard, Commander Amiot
wrote a brief military Report to the Minister of Marine:[20] “On the 17th
[April 7], at half-past eleven o’clock of the morning, on taking him his
food, I found him dead, seated on his chair near his fire.” According to
Tavernier, doctor of medicine and chirurgien of Pontarlier, who performed
the autopsy, pleuro-pneumonia was the cause of Toussaint’s death.
Toussaint never knew that St. Domingo had successfully resisted the
whole power of France, and that had he been truer to himself and his color
he might have worn the crown that became the plaything of Christophe and
Dessalines; but even when shivering in the frosts of the Jura, his last
moments would have glowed with gratified revenge, had he known that at
the same instant Bonaparte was turning into a path which the negroes of St.
Domingo had driven him to take, and which was to lead him to parallel at
St. Helena the fate of Toussaint himself at the Château de Joux. In these
days of passion, men had little time for thought; and the last subject on
which Bonaparte thereafter cared to fix his mind was the fate of Toussaint
and Leclerc. That the “miserable negro,” as Bonaparte called him, should
have been forgotten so soon was not surprising; but the prejudice of race
alone blinded the American people to the debt they owed to the desperate
courage of five hundred thousand Haytian negroes who would not be
enslaved.
If this debt was due chiefly to the negroes, it was also in a degree due to
Godoy and to Spain. In the new shifting of scenes, Godoy suddenly found
himself, like Toussaint eighteen months before, face to face with Bonaparte
bent on revenge. No one knew better than Godoy the dangers that hung
over him and his country. Aware of his perils, he tried, as in 1795, to
conciliate the United States by a course offensive to France. Not only did he
restore the entrepôt at New Orleans, but he also admitted the claims for

damages sustained by American citizens from Spanish subjects in the late
war, and through Don Pedro Cevallos negotiated with Pinckney a
convention which provided for a settlement of these claims.[21] Although he
refused to recognize in this convention the spoliations made by Frenchmen
within Spanish jurisdiction, and insisted that these were in their nature
claims against France which Spain was not morally bound to admit, he
consented to insert an article copied from the expunged Article II. of the
treaty of Morfontaine, reserving to the United States the right to press these
demands at a future time.
So well pleased was Jefferson with the conduct of Spain and the
Spanish ministers, that not a complaint was made of ill treatment; and even
the conduct of Morales did not shake the President’s faith in the friendliness
of King Charles. No doubt he mistook the motives of this friendliness, for
Spain had no other object than to protect her colonies and commerce on the
Gulf of Mexico, and hoped to prevent attack by conciliation; while Madison
imagined that Spain might be induced by money to part with her colonies
and admit the United States to the Gulf. In this hope he instructed Pinckney,
[22]
in case he should find that Louisiana had not been retroceded to France,
to offer a guaranty of Spanish territory west of the Mississippi as part of the
consideration for New Orleans and the Floridas. The offer was made with a
degree of cordiality very unlike the similar offer to France, and was pressed
by Pinckney so zealously that at last Cevallos evaded his earnestness by a
civil equivocation.
“The system adopted by his Majesty,” said he,[23] “not to dispossess himself of
any portion of his States, deprives him of the pleasure of assenting to the cessions
which the United States wish to obtain by purchase.... The United States can address
themselves to the French government to negotiate the acquisition of territories which
may suit their interest.”

Cevallos knew that Bonaparte had bound himself formally never to
alienate Louisiana, and in referring Pinckney to France he supposed himself
safe. Pinckney, on the other hand, prided himself on having helped to
prevent France from gaining Florida as well as Louisiana, and was anxious
to secure West Florida for his own credit; while he had no idea that
Louisiana could be obtained at all.
Yet nearly a week before this note was written Louisiana had become
American property. So completely was Godoy deceived, that when April

arrived and he saw Spain again about to be dragged into unknown perils, he
never divined that he was to be struck in America; his anxieties rose from
fear that Spain might be dragged into a new war in Europe, in subservience
to France. He could expect to escape such a war only by a quarrel with
Napoleon, and he knew that a war with Napoleon was a desperate resource.
In London statesmanship had an easier game, and played it at first
simply and coolly. Rufus King watched it with anxious eyes. He wished to
escape from the duty of expressing a diplomatic policy which he might not
approve, to a Government which had other and heavier tasks than that of
listening to his advice or warnings. The British Ministry behaved well to
America; for their advices from Thornton led them to hope that the United
States would, if properly supported, seize Louisiana and accept war with
Bonaparte. “If you can obtain Louisiana,—well!” said Addington to Rufus
King;[24] “if not, we ought to prevent its going into the hands of France.”

CHAPTER II.
Monroe arrived in sight of the French coast April 7, 1803; but while he
was still on the ocean, Bonaparte without reference to him or his mission,
opened his mind to Talleyrand in regard to ceding Louisiana to the United
States. The First Consul a few days afterward repeated to his Finance
Minister, Barbé Marbois,[25] a part of the conversation with Talleyrand; and
his words implied that Talleyrand opposed Bonaparte’s scheme, less
because it sacrificed Louisiana than because its true object was not a war
with England, but conquest of Germany. “He alone knows my intentions,”
said Bonaparte to Marbois. “If I attended to his advice, France would
confine her ambition to the left bank of the Rhine, and would make war
only to protect the weak States and to prevent any dismemberment of her
possessions; but he also admits that the cession of Louisiana is not a
dismemberment of France.” In reality, the cession of Louisiana meant the
overthrow of Talleyrand’s influence and the failure of those hopes which
had led to the coalition of the 18th Brumaire.
Easter Sunday, April 10, 1803, arrived, and Monroe was leaving Havre
for Paris, when Bonaparte, after the religious ceremonies of the day at St.
Cloud, called to him two of his ministers, of whom Barbé Marbois was one.
[26]
He wished to explain his intention of selling Louisiana to the United
States; and he did so in his peculiar way. He began by expressing the fear
that England would seize Louisiana as her first act of war. “I think of ceding
it to the United States. I can scarcely say that I cede it to them, for it is not
yet in our possession. If, however, I leave the least time to our enemies, I
shall only transmit an empty title to those republicans whose friendship I
seek. They ask of me only one town in Louisiana; but I already consider the
colony as entirely lost; and it appears to me that in the hands of this
growing Power it will be more useful to the policy, and even to the
commerce, of France than if I should attempt to keep it.”
To this appeal the two ministers replied by giving two opposite
opinions. Marbois favored the cession, as the First Consul probably
expected him to do; for Marbois was a republican who had learned
republicanism in the United States, and whose attachment to that country
was secured by marriage to an American wife. His colleague, with equal

decision, opposed the scheme. Their arguments were waste of breath. The
First Consul said no more, and dismissed them; but the next morning,
Monday, April 11, at daybreak, summoning Marbois, he made a short
oration of the kind for which he was so famous:[27]—
“Irresolution and deliberation are no longer in season; I renounce Louisiana. It is
not only New Orleans that I cede; it is the whole colony, without reserve. I know the
price of what I abandon. I have proved the importance I attach to this province, since
my first diplomatic act with Spain had the object of recovering it. I renounce it with
the greatest regret; to attempt obstinately to retain it would be folly. I direct you to
negotiate the affair. Have an interview this very day with Mr. Livingston.”

The order so peremptorily given was instantly carried out; but not by
Marbois. Talleyrand, in an interview a few hours afterward, startled
Livingston with the new offer.[28]
“M. Talleyrand asked me this day, when pressing the subject, whether we wished
to have the whole of Louisiana. I told him no; that our wishes extended only to New
Orleans and the Floridas; that the policy of France, however, should dictate (as I had
shown in an official note) to give us the country above the River Arkansas, in order to
place a barrier between them and Canada. He said that if they gave New Orleans the
rest would be of little value, and that he would wish to know ‘what we would give for
the whole.’ I told him it was a subject I had not thought of, but that I supposed we
should not object to twenty millions [francs], provided our citizens were paid. He told
me that this was too low an offer, and that he would be glad if I would reflect upon it
and tell him to-morrow. I told him that as Mr. Monroe would be in town in two days, I
would delay my further offer until I had the pleasure of introducing him. He added
that he did not speak from authority, but that the idea had struck him.”

The suddenness of Bonaparte’s change disconcerted Livingston. For
months he had wearied the First Consul with written and verbal arguments,
remonstrances, threats,—all intended to prove that there was nothing
grasping or ambitious in the American character; that France should invite
the Americans to protect Louisiana from the Canadians; that the United
States cared nothing for Louisiana, but wanted only West Florida and New
Orleans,—“barren sands and sunken marshes,” he said; “a small town built
of wood; ... about seven thousand souls;” a territory important to the United
States because it contained “the mouths of some of their rivers,” but a mere
drain of resources to France.[29] To this rhapsody, repeated day after day for
weeks and months, Talleyrand had listened with his imperturbable silence,
the stillness of a sceptical mind into which such professions fell
meaningless; until he suddenly looked into Livingston’s face and asked:
“What will you give for the whole?” Naturally Livingston for a moment
lost countenance.

The next day, Tuesday, April 12, Livingston, partly recovered from his
surprise, hung about Talleyrand persistently, for his chance of reaping alone
the fruit of his labors vanished with every minute that passed. Monroe had
reached St. Germain late Monday night, and at one o’clock Tuesday
afternoon descended from his postchaise at the door of his Paris hotel.[30]
From the moment of his arrival he was sure to seize public attention at
home and abroad. Livingston used the interval to make one more effort with
Talleyrand:[31]—
“He then thought proper to declare that his proposition was only personal, but still
requested me to make an offer; and upon my declining to do so, as I expected Mr.
Monroe the next day, he shrugged up his shoulders and changed the conversation. Not
willing, however, to lose sight of it, I told him I had been long endeavoring to bring
him to some point, but unfortunately without effect; and with that view had written
him a note which contained that request.... He told me he would answer my note, but
that he must do it evasively, because Louisiana was not theirs. I smiled at this
assertion, and told him that I had seen the treaty recognizing it.... He still persisted
that they had it in contemplation to obtain it, but had it not.”

An hour or two afterward came a note from Monroe announcing that he
would wait upon Livingston in the evening. The two American ministers
passed the next day together,[32] examining papers and preparing to act
whenever Monroe could be officially presented. They entertained a party at
dinner that afternoon in Livingston’s apartments, and while sitting at table
Livingston saw Barbé Marbois strolling in the garden outside. Livingston
sent to invite Marbois to join the party at table. While coffee was served,
Marbois came in and entered into conversation with Livingston, who began
at once to tell him of Talleyrand’s “extraordinary conduct.” Marbois hinted
that he knew something of the matter, and that Livingston had better come
to his house as soon as the dinner company departed. The moment Monroe
took leave, Livingston acted on Marbois’s hint, and in a midnight
conversation the bargain was practically made. Marbois told a story, largely
of his own invention, in regard to the First Consul’s conduct on Easter
Sunday, three days before. Bonaparte mentioned fifty million francs as his
price for Louisiana; but as Marbois reported the offer to Livingston,
Bonaparte said: “Well! you have charge of the Treasury. Let them give you
one hundred millions of francs, and pay their own claims, and take the
whole country.” The American claims were estimated at about twenty-five
millions, and therefore Marbois’s price amounted to at least one hundred
and twenty-five million francs.

Yet twenty-four or twenty-five million dollars for the whole west bank
of the Mississippi, from the Lake of the Woods to the Gulf of Mexico, and
indefinitely westward, was not an extortionate price, especially since New
Orleans was thrown into the bargain, and indirect political advantages
which could not be valued at less than the cost of a war, whatever it might
be. Five million dollars were to be paid in America to American citizens, so
that less than twenty millions would come to France. Livingston could
hardly have been blamed for closing with Marbois on the spot, especially as
his instructions warranted him in offering ten millions for New Orleans and
the Floridas alone; but Livingston still professed that he did not want the
west bank. “I told him that the United States were anxious to preserve peace
with France; that for that reason they wished to remove them to the west
side of the Mississippi; that we would be perfectly satisfied with New
Orleans and the Floridas, and had no disposition to extend across the river;
that of course we would not give any great sum for the purchase.... He then
pressed me to name the sum.” After a little more fencing, Marbois dropped
at once from one hundred millions to sixty, with estimated claims to the
amount of twenty millions more. “I told him that it was vain to ask anything
that was so greatly beyond our means; that true policy would dictate to the
First Consul not to press such a demand; that he must know it would render
the present government unpopular.” The conversation closed by
Livingston’s departure at midnight with a final protest: “I told him that I
would consult Mr. Monroe, but that neither he nor I could accede to his
ideas on the subject.” Then he went home; and sitting down to his desk
wrote a long despatch to Madison, to record that without Monroe’s help he
had won Louisiana. The letter closed with some reflections:—
“As to the quantum, I have yet made up no opinion. The field open to us is
infinitely larger than our instructions contemplated, the revenue increasing, and the
land more than adequate to sink the capital, should we even go the sum proposed by
Marbois,—nay, I persuade myself that the whole sum may be raised by the sale of the
territory west of the Mississippi, with the right of sovereignty, to some Power in
Europe whose vicinity we should not fear. I speak now without reflection and without
having seen Mr. Monroe, as it was midnight when I left the Treasury Office, and it is
now near three o’clock. It is so very important that you should be apprised that a
negotiation is actually opened, even before Mr. Monroe has been presented, in order
to calm the tumult which the news of war will renew, that I have lost no time in
communicating it. We shall do all we can to cheapen the purchase; but my present
sentiment is that we shall buy.”

A week was next passed in haggling over the price.[33] Livingston did
his utmost to beat Marbois down, but without success. Meanwhile he ran
some risk of losing everything; for when Bonaparte offered a favor suitors
did well to waste no time in acceptance. A slight weight might have turned
the scale; a divulgence of the secret, a protest from Spain, a moment of
irritation at Jefferson’s coquetry with England or at the vaporings of the
American press, a sudden perception of the disgust which every true
Frenchman was sure sooner or later to feel at this squandering of French
territory and enterprise,—any remonstrance that should stir the First
Consul’s pride or startle his fear of posterity, might have cut short the thread
of negotiation. Livingston did not know the secrets of the Tuileries, or he
would not have passed time in cheapening the price of his purchase. The
voice of opposition was silenced in the French people, but was still so high
in Bonaparte’s family as to make the Louisiana scheme an occasion for
scenes so violent as to sound like the prelude to a tragedy.
One evening when Talma was to appear in a new rôle, Lucien
Bonaparte, coming home to dress for the theatre, found his brother Joseph
waiting for him.[34] “Here you are at last!” cried Joseph; “I was afraid you
might not come. This is no time for theatre-going; I have news for you that
will give you no fancy for amusement. The General wants to sell
Louisiana.”
Lucien, proud of having made the treaty which secured the retrocession,
was for a moment thunderstruck; then recovering confidence, he said,
“Come, now! if he were capable of wishing it, the Chambers would never
consent.”
“So he means to do without their consent,” replied Joseph. “This is what
he answered me, when I said to him, like you, that the Chambers would not
consent. What is more, he added that this sale would supply him the first
funds for the war. Do you know that I am beginning to think he is much too
fond of war?”
History is not often able to penetrate the private lives of famous men,
and catch their words as they were uttered. Although Lucien Bonaparte’s
veracity was not greatly superior to that of his brother Napoleon, his story
agreed with the known facts. If his imagination here and there filled in the
gaps of memory,—if he was embittered and angry when he wrote, and

hated his brother Napoleon with Corsican passion, these circumstances did
not discredit his story, for he would certainly have told the truth against his
brother under no other conditions. The story was not libellous, but
Napoleonic; it told nothing new of the First Consul’s character, but it was
honorable to Joseph, who proposed to Lucien that they should go together
and prevent their brother from committing a fault which would rouse the
indignation of France, and endanger his own safety as well as theirs.
The next morning Lucien went to the Tuileries; by his brother’s order he
was admitted, and found Napoleon in his bath, the water of which was
opaque with mixture of eau de Cologne. They talked for some time on
indifferent matters. Lucien was timid, and dared not speak until Joseph
came. Then Napoleon announced his decision to sell Louisiana, and invited
Lucien to say what he thought of it.
“I flatter myself,” replied Lucien, “that the Chambers will not give their
consent.”
“You flatter yourself!” repeated Napoleon in a tone of surprise; then
murmuring in a lower voice, “that is precious, in truth!” (c’est précieux, en
vérité!)
“And I too flatter myself, as I have already told the First Consul,” cried
Joseph.
“And what did I answer?” said Napoleon warmly, glaring from his bath
at the two men.
“That you would do without the Chambers.”
“Precisely! That is what I have taken the great liberty to tell Mr. Joseph,
and what I now repeat to the Citizen Lucien,—begging him at the same
time to give me his opinion about it, without taking into consideration his
paternal tenderness for his diplomatic conquest.” Then, not satisfied with
irony, he continued in a tone of exasperating contempt: “And now,
gentlemen, think of it what you will; but both of you go into mourning
about this affair,—you, Lucien, for the sale itself; you, Joseph, because I
shall do without the consent of any one whomsoever. Do you understand?”
At this Joseph came close to the bath, and rejoined in a vehement tone:
“And you will do well, my dear brother, not to expose your project to
parliamentary discussion; for I declare to you that if necessary I will put

myself first at the head of the opposition which will not fail to be made
against you.”
The First Consul burst into a peal of forced laughter, while Joseph,
crimson with anger and almost stammering his words, went on: “Laugh,
laugh, laugh, then! I will act up to my promise; and though I am not fond of
mounting the tribune, this time you will see me there!”
Napoleon, half rising from the bath, rejoined in a serious tone: “You
will have no need to lead the opposition, for I repeat that there will be no
debate, for the reason that the project which has not the fortune to meet
your approval, conceived by me, negotiated by me, shall be ratified and
executed by me alone, do you comprehend?—by me, who laugh at your
opposition!”
Hereupon Joseph wholly lost his self-control, and with flashing eyes
shouted: “Good! I tell you, General, that you, I, and all of us, if you do what
you threaten, may prepare ourselves soon to go and join the poor innocent
devils whom you so legally, humanely, and especially with such justice,
have transported to Sinnamary.”
At this terrible rejoinder Napoleon half started up, crying out: “You are
insolent! I ought—” then threw himself violently back in the bath with a
force which sent a mass of perfumed water into Joseph’s flushed face,
drenching him and Lucien, who had the wit to quote, in a theatrical tone,
the words which Virgil put into the mouth of Neptune reproving the waves,
—
“Quos ego....”
Between the water and the wit the three Bonapartes recovered their
tempers, while the valet who was present, overcome by fear, fainted and fell
on the floor. Joseph went home to change his clothes, while Lucien
remained to pass through another scene almost equally amusing. A long
conversation followed after the First Consul’s toilet was finished. Napoleon
spoke of St. Domingo. “Do you want me to tell you the truth?” said he. “I
am to-day more sorry than I like to confess for the expedition to St.
Domingo. Our national glory will never come from our marine.” He
justified what he called, in jest at Lucien, his “Louisianicide,” by the same
reasons he gave to Marbois and Talleyrand, but especially by the necessity

of providing funds for the war not yet declared. Lucien combated his
arguments as Joseph had done, until at last he reached the same point. “If,
like Joseph, I thought that this alienation of Louisiana without the assent of
the Chambers might be fatal to me,—to me alone,—I would consent to run
all risks in order to prove the devotion you doubt; but it is really too
unconstitutional and—”
“Ah, indeed!” burst out Napoleon with another prolonged, forced laugh
of derisive anger. “You lay it on handsomely! Unconstitutional is droll from
you. Come now, let me alone! How have I hurt your Constitution?
Answer!” Lucien replied that the intent to alienate any portion whatever of
territory belonging to the Republic without the consent of the Chambers
was an unconstitutional project. “In a word, the Constitution—”
“Go about your business!” broke in the guardian of the Constitution and
of the national territory. Then he quickly and vehemently went on:
“Constitution! unconstitutional! republic! national sovereignty!—big
words! great phrases! Do you think yourself still in the club of St.
Maximin? We are no longer there, mind that! Ah, it becomes you well, Sir
Knight of the Constitution, to talk so to me! You had not the same respect
for the Chambers on the 18th Brumaire!”
Nothing exasperated Lucien more than any allusion to the part he took
in the coup d’état of the 18th Brumaire, when he betrayed the Chamber
over which he presided. He commanded himself for the moment; but when
Napoleon went on to say with still more contempt, “I laugh at you and your
national representation,” Lucien answered coldly, “I do not laugh at you,
Citizen Consul, but I know well what I think about it.”
“Parbleu!” said Napoleon, “I am curious to know what you think of me:
say it, quick!”
“I think, Citizen Consul, that having given your oath to the Constitution
of the 18th Brumaire into my own hands as President of the Council of Five
Hundred, seeing you despise it thus, if I were not your brother I would be
your enemy.”
“My enemy! ah, I would advise you! My enemy! That is a trifle strong!”
cried Napoleon, advancing as though to strike his younger brother. “You my

enemy! I would break you, look, like this box!” And so saying he flung his
snuff-box violently on the floor.
In these angry scenes both parties knew that Napoleon’s bravado was
not altogether honest. For once, Lucien was in earnest; and had his brother
left a few other men in France as determined as he and his friend
Bernadotte, the First Consul would have defied public opinion less boldly.
Joseph, too, although less obstinate than his brothers, was not easily
managed. According to Lucien there were further scenes between them, at
one of which Joseph burst into such violence that the First Consul took
refuge in Josephine’s room. These stories contained nothing incredible. The
sale of Louisiana was the turning-point in Napoleon’s career; no true
Frenchman forgave it. A second betrayal of France, it announced to his
fellow conspirators that henceforward he alone was to profit by the treason
of the 18th Brumaire.
Livingston and Monroe knew nothing of all this; they even depended
upon Joseph to help their negotiation. Monroe fell ill and could not act.
Over the negotiation of the treaty has always hung a cloud of mystery such
as belonged to no other measure of equal importance in American history.
No official report showed that the commissioners ever met in formal
conference; no protocol of their proceedings, no account of their
discussions, no date when their agreement was made, was left on record.
Both the treaty itself and the avowals of Livingston gave evidence that at
the end all parties acted in haste. If it were not for a private memorandum
by Monroe,—not sent to the Government, but preserved among his private
papers,—the course of negotiation could not be followed.
A fortnight passed after Monroe’s arrival without advancing matters a
step. This period of inaction seems to have been broken by the First Consul.
April 23 he drew up a “Projet of a Secret Convention,”[35] which he gave to
Marbois and which set forth that to prevent misunderstandings about the
matters of discussion mentioned in Articles II. and V. of the Morfontaine
treaty, and also to strengthen friendly relations, the French republic was to
cede its rights over Louisiana; and “in consequence of the said cession,
Louisiana, its territory, and its proper dependencies shall become part of the
American Union, and shall form successively one or more States on the
terms of the Federal Constitution;” in return the United States were to favor
French commerce in Louisiana, and give it all the rights of American

commerce, with perpetual entrepôts at six points on the Mississippi, and a
corresponding perpetual right of navigation; further, they were to assume all
debts due to American citizens under the treaty of Morfontaine; and, finally,
were to pay a hundred million francs to France. With this projet Marbois
went by appointment, at two o’clock, April 27, to Monroe’s lodgings, where
the three gentlemen had an informal meeting, of which no other record is
known to exist than Monroe’s memoranda.[36] Monroe himself was too
unwell to sit at the table, and reclined on a sofa throughout the discussion.
Marbois produced Bonaparte’s projet, and after admitting that it was hard
and unreasonable, presented a substitute of his own which he thought the
First Consul would accept.
Livingston tried to give precedence to the claims; he wanted to dispose
of them first, in case the cession should fail; but after pressing the point as
far as he could, he was overruled by Monroe, and Livingston took
Marbois’s project for consideration. The two American commissioners
passed a day in working over it. Livingston drafted a claims convention,
and it was drawn, as he thought, “with particular attention.”[37] Monroe
thought differently. “My colleague took Mr. Marbois’s project with him,
and brought me one, very loosely drawn, founded on it.”[38] Monroe made a
draft of his own which was certainly not creditable to his legal or
diplomatic skill, and which began by adopting an oversight contained in
Bonaparte’s draft, according to which the cancelled Article II. of the treaty
of Morfontaine was made a foundation of the new convention.[39] “We
called on Mr. Marbois the 29th, and gave him our project, which was read
to him and discussed. We proposed to offer fifty millions to France, and
twenty millions on account of her debt to the citizens of the United States,
making seventy in the whole.” Marbois replied that he would proceed only
on the condition that eighty millions were accepted as the price. Then at last
the American commissioners gave way; and with this change Marbois took
their projet for reference to the First Consul the next morning.
The 30th of April was taken by Marbois for consultation with the First
Consul. May 1 Monroe was presented at the Tuileries, and dined there with
Livingston; but Bonaparte said nothing of their business, except that it
should be settled. The same evening the two envoys had a final discussion
with Marbois. “May 2, we actually signed the treaty and convention for the
sixty million francs to France, in the French language; but our copies in

English not being made out, we could not sign in our language. They were
however prepared, and signed in two or three days afterward. The
convention respecting American claims took more time, and was not signed
till about the 8th or 9th.” All these documents were antedated to the 30th
April.[40]
The first object of remark in this treaty was the absence of any attempt
to define the property thus bought and sold. “Louisiana with the same
extent that is now in the hands of Spain, and that it had when France
possessed it, and such as it should be after the treaties subsequently entered
into between Spain and other States,”—these words, taken from Berthier’s
original treaty of retrocession, were convenient for France and Spain,
whose governments might be supposed to know their own boundaries; but
all that the United States government knew upon the subject was that
Louisiana, as France possessed it, had included a part of Florida and the
whole Ohio Valley as far as the Alleghany Mountains and Lake Erie. The
American commissioners at first insisted upon defining the boundaries, and
Marbois went to the First Consul with their request. He refused.[41] “If an
obscurity did not already exist, it would perhaps be good policy to put one
there.” He intentionally concealed the boundary he had himself defined, a
knowledge of which would have prevented a long and mortifying dispute.
Livingston went to Talleyrand for the orders given by Spain to the Marquis
of Somoruelo, by France to Victor and Laussat. “What are the eastern
bounds of Louisiana?” asked Livingston. “I do not know,” replied
Talleyrand; “you must take it as we received it.” “But what did you mean to
take?” urged Livingston. “I do not know,” repeated Talleyrand. “Then you
mean that we shall construe it our own way?” “I can give you no direction.
You have made a noble bargain for yourselves, and I suppose you will make
the most of it,” was the final reply of Talleyrand. Had Livingston known
that Victor’s instructions, which began by fixing the boundaries in question,
were still in Talleyrand’s desk, the answer would have been the same.
One point alone was fixed,—the Floridas were not included in the sale;
this was conceded on both sides. In his first conversation with Marbois,
Livingston made a condition that France should aid him in procuring these
territories from Spain.[42] “I asked him, in case of purchase, whether they
would stipulate that France would never possess the Floridas, and that she
would aid us to procure them, and relinquish all right that she might have to

them. He told me that she would go thus far.” Several days later, Marbois
repeated this assurance to Monroe, saying that the First Consul authorized
him, besides offering Louisiana, “to engage his support of our claim to the
Floridas with Spain.”[43] Yet when the American commissioners tried to
insert this pledge into the treaty, they failed. Bonaparte would give nothing
but a verbal promise to use his good offices with Spain.
Besides the failure to dispose of these two points, which were in reality
but one, the treaty contained a positive provision, Article III., taken from
Bonaparte’s projet, with slight alteration, 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 all the rights, advantages, and immunities
of citizens of the United States.” On republican principles of the Virginian
school, only the States themselves could by a new grant of power authorize
such an incorporation. Article III. violated Madison’s instructions, which
forbade the promise.[44] “To incorporate the inhabitants of the hereby-ceded
territory with the citizens of the United States,” said these instructions,
“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.” The provision, which Madison said could
not be made, was nevertheless made by Livingston and Monroe.
Embarrassing as these omissions or provisions were, they proved not so
much that the treaty was carelessly drawn, as that the American negotiators
were ready to stipulate whatever was needed for their purpose. Other
portions of the treaty were not to be defended on that excuse. The price
stipulated for Louisiana was sixty million francs, in the form of United
States six-per-cent bonds, representing a capital of $11,250,000. Besides
this sum of eleven and a quarter million dollars, the United States
government was to assume and pay the debts due by France to American
citizens, estimated at twenty million francs, or, at the same rate of
exchange, $3,750,000,—making fifteen million dollars in all as the price to
be paid. Livingston himself drew the claims convention with what he
supposed to be particular attention; but it was modified by Monroe, and still
further altered by Marbois. “The moment was critical; the question of peace
or war was in the balance; and it was important to come to a conclusion
before either scale preponderated. I considered the convention as a trifle

compared with the other great object,” avowed Livingston; “and as it had
already delayed us many days, I was ready to take it under any form.”[45]
The claims convention was not signed till nearly a week after the signature
of the treaty of cession. The form in which Livingston took it showed that
neither he nor Monroe could have given careful attention to the subject; for
not only did the preamble declare that the parties were acting in compliance
with Article II. of the treaty of Morfontaine,—an Article which had been
formally struck out by the Senate, cancelled by Bonaparte, and the omission
ratified by the Senate and President since Livingston’s residence at Paris;
not only did the claims specified fail to embrace all the cases provided for
by the treaty of 1800, which this convention was framed to execute; not
only were the specifications arbitrary, and even self-contradictory,—but the
estimate of twenty million francs was far below the amount of the claims
admitted in principle; no rule of apportionment was provided, and, worst of
all, the right of final decision in every case was reserved to the French
government. The meaning of this last provision might be guessed from the
notorious corruption of Talleyrand and his band of confidential or secret
agents.
Doubtless Livingston was right in securing his main object at any cost;
but could he have given more time to his claims convention, he would
perhaps have saved his own reputation and that of his successor from much
stain, although he might have gained no more than he did for his
Government. In the two conventions of 1800 and 1803 the United States
obtained two objects of the utmost value,—by the first, a release from treaty
obligations which, if carried out, required war with England; by the second,
the whole west bank of the Mississippi River and the island of New
Orleans, with all the incidental advantages attached. In return for these
gains the United States government promised not to press the claims of its
citizens against the French government beyond the amount of three million
seven hundred and fifty thousand dollars, which was one fourth part of the
price paid for Louisiana. The legitimate claims of American citizens against
France amounted to many million dollars; in the result, certain favored
claimants received three million seven hundred and fifty thousand dollars
less their expenses, which reduced the sum about one half.
The impression of diplomatic oversight was deepened by the scandals
which grew out of the distribution of the three million seven hundred and

fifty thousand dollars which the favored claimants were to receive.
Livingston’s diplomatic career was poisoned by quarrels over this money.
[46]
That the French government acted with little concealment of venality
was no matter of surprise; but that Livingston should be officially charged
by his own associates with favoritism and corruption,—“imbecility of mind
and a childish vanity, mixed with a considerable portion of duplicity,”—
injured the credit of his Government; and the matter was not bettered when
he threw back similar charges on the Board of Commissioners, or when at
last General Armstrong, coming to succeed him, was discredited by similar
suspicions. Considering how small was the amount of money distributed,
the scandal and corruption surpassed any other experience of the national
government.
Livingston’s troubles did not end there. He could afford to suffer some
deduction from his triumph; for he had achieved the greatest diplomatic
success recorded in American history. Neither Franklin, Jay, Gallatin, nor
any other American diplomatist was so fortunate as Livingston for the
immensity of his results compared with the paucity of his means. Other
treaties of immense consequence have been signed by American
representatives,—the treaty of alliance with France; the treaty of peace with
England which recognized independence; the treaty of Ghent; the treaty
which ceded Florida; the Ashburton treaty; the treaty of Guadeloupe
Hidalgo,—but in none of these did the United States government get so
much for so little. The annexation of Louisiana was an event so portentous
as to defy measurement; it gave a new face to politics, and ranked in
historical importance next to the Declaration of Independence and the
adoption of the Constitution,—events of which it was the logical outcome;
but as a matter of diplomacy it was unparalleled, because it cost almost
nothing.
The scandalous failure of the claims convention was a trifling drawback
to the enjoyment of this unique success; but the success was further
embittered by the conviction that America would give the honor to Monroe.
Virginia was all-powerful. Livingston was unpopular, distrusted, not liked
even by Madison; while Monroe, for political reasons, had been made a
prominent figure. Public attention had been artificially drawn upon his
mission; and in consequence, Monroe’s name grew great, so as almost to
overshadow that of Madison, while Livingston heard few voices

proclaiming his services to the country. In a few weeks Livingston began to
see his laurels wither, and was forced to claim the credit that he thought his
due. Monroe treated him less generously than he might have done,
considering that Monroe gained the political profit of the success.[47]
Acknowledging that his own share was next to nothing in the negotiation,
he still encouraged the idea that Livingston’s influence had been equally
null. This view was doubtless correct, but if universally applied in history,
would deprive many great men of their laurels. Monroe’s criticism helped
only to diminish the political chances of a possible rival who had no
Virginia behind him to press his preferment and cover his mistakes.

CHAPTER III.
When Marbois took the treaty to the First Consul, Bonaparte listened to
its provisions with lively interest; and on hearing that twenty millions were
to be employed in paying claims,—a use of money which he much disliked,
—he broke out: “Who authorized you to dispose of the money of the State?
I want to have these twenty millions paid into the Treasury. The claimants’
rights cannot come before our own.”[48] His own projet had required the
Americans to assume these claims,—which was, in fact, the better plan.
Marbois’s alteration turned the claims into a French job. Perhaps Bonaparte
was not averse to this; for when Marbois reminded him that he had himself
fixed the price at fifty millions, whereas the treaty gave him sixty, and
settled the claims besides,—“It is true,” he said; “the negotiation leaves me
nothing to wish. Sixty millions for an occupation that will not perhaps last a
day! I want France to have the good of this unexpected capital, and to
employ it in works of use to her marine.” On the spot he dictated a decree
for the construction of five canals. This excellent use of the money seemed
inconsistent with Lucien’s remark that it was wanted for war,—but the
canals were never built or begun; and the sixty millions were spent, to the
last centime, in preparations for an impracticable descent on England.
Yet money was not the inducement which caused Bonaparte to sell
Louisiana to the United States. The Prince of Peace would at any time have
given more money, and would perhaps have been willing, as he certainly
was able, to pay it from his private means rather than allow the United
States to own Louisiana. In other respects, the sale needed explanation,
since it contradicted the First Consul’s political theories and prejudices. He
had but two rooted hatreds. The deeper and fiercer of these was directed
against the republic,—the organized democracy, and what he called
ideology, which Americans knew in practice as Jeffersonian theories; the
second and steadier was his hatred of England as the chief barrier to his
military omnipotence. The cession of Louisiana to the United States
contradicted both these passions, making the ideologists supreme in the
New World, and necessarily tending in the end to strengthen England in the
Old. Bonaparte had been taught by Talleyrand that America and England,
whatever might be their mutual jealousies, hatreds, or wars, were socially

and economically one and indivisible. Barely ten years after the
Revolutionary War had closed, and at a time when the wounds it made were
still raw, Talleyrand remarked: “In every part of America through which I
have travelled, I have not found a single Englishman who did not feel
himself to be an American; not a single Frenchman who did not find
himself a stranger.” Bonaparte knew that England held the monopoly of
American trade, and that America held the monopoly of democratic
principles; yet he did an act which was certain to extend British trade and
fortify democratic principles.
This contradiction was due to no change in Bonaparte’s opinions; these
remained what they were. At the moment when talking to Marbois about
“those republicans whose friendship I seek,” he was calculating on the
chance that his gift would one day prove their ruin. “Perhaps it will also be
objected to me,” he said,[49] “that the Americans may in two or three
centuries be found too powerful for Europe; but my foresight does not
embrace such remote fears. Besides, we may hereafter expect rivalries
among the members of the Union. The confederations that are called
perpetual last only till one of the contracting parties finds it to its interest to
break them.... It is to prevent the danger to which the colossal power of
England exposes us that I would provide a remedy.” The colossal power of
England depended on her navy, her colonies, and her manufactures.
Bonaparte proposed to overthrow it by shattering beyond repair the colonial
system of France and Spain; and even this step was reasonable compared
with what followed. He expected to check the power of England by giving
Louisiana to the United States,—a measure which opened a new world to
English commerce and manufactures, and riveted England’s grasp on the
whole American continent, inviting her to do what she afterward did,—join
hands with the United States in revolutionizing Mexico and South America
in her own interests. As though to render these results certain, after
extending this invitation to English commerce and American democracy,
Bonaparte next invited a war with England, which was certain to drive from
the ocean every ship belonging to France or Spain,—a war which left even
the United States at England’s mercy.
Every detail that could explain Bonaparte’s motives becomes interesting
in a matter so important to American history. Certain points were clear.
Talleyrand’s colonial and peace policy failed. Resting on the maintenance

of order in Europe and the extension of French power in rivalry with the
United States and England in America, it was a statesmanlike and honorable
scheme, which claimed for the Latin races what Louis XIV. tried to gain for
them; but it had the disadvantage of rousing hostility in the United States,
and of throwing them into the arms of England. For this result Talleyrand
was prepared. He knew that he could keep peace with England, and that the
United States alone could not prevent him from carrying out his policy.
Indeed, Madison in his conversation with Pichon invited such action, and
Jefferson had no means of resisting it; but from the moment when St.
Domingo prevented the success of the scheme, and Bonaparte gained an
excuse for following his own military instincts, the hostility of the United
States became troublesome. President Jefferson had chiefly reckoned on
this possibility as his hope of getting Louisiana; and slight as the chance
seemed, he was right.
This was, in effect, the explanation which Talleyrand officially wrote to
his colleague Decrès, communicating a copy of the treaty, and requesting
him to take the necessary measures for executing it.[50]
“The wish to spare the North American continent the war with which it was
threatened, to dispose of different points in dispute between France and the United
States of America, and to remove all the new causes of misunderstanding which
competition and neighborhood might have produced between them; the position of the
French colonies; their want of men, cultivation, and assistance; in fine, the empire of
circumstances, foresight of the future, and the intention to compensate by an
advantageous arrangement for the inevitable loss of a country which war was going to
put at the mercy of another nation,—all these motives have determined the
Government to pass to the United States the rights it had acquired from Spain over the
sovereignty and property of Louisiana.”

Talleyrand’s words were always happily chosen, whether to reveal or to
conceal his thoughts. This display of reasons for an act which he probably
preferred to condemn, might explain some of the First Consul’s motives in
ceding Louisiana to the United States; but it only confused another more
perplexing question. Louisiana did not belong to France, but to Spain. The
retrocession had never been completed; the territory was still possessed,
garrisoned, and administered by Don Carlos IV.; until actual delivery was
made, Spain might yet require that the conditions of retrocession should be
rigorously performed. Her right in the present instance was complete,
because she held as one of the conditions precedent to the retrocession a
solemn pledge from the First Consul never to alienate Louisiana. The sale

of Louisiana to the United States was trebly invalid: if it were French
property, Bonaparte could not constitutionally alienate it without the
consent of the Chambers; if it were Spanish property, he could not alienate
it at all; if Spain had a right of reclamation, his sale was worthless. In spite
of all these objections the alienation took place; and the motives which led
the First Consul to conciliate America by violating the Constitution of
France were perhaps as simple as he represented them to be; but no one
explained what motives led Bonaparte to break his word of honor and
betray the monarchy of Spain.
Bonaparte’s evident inclination toward a new war with England greatly
distressed King Charles IV. Treaty stipulations bound Spain either to take
part with France in the war, or to pay a heavy annual subsidy; and Spain
was so weak that either alternative seemed fatal. The Prince of Peace would
have liked to join England or Austria in a coalition against Bonaparte; but
he knew that to this last desperate measure King Charles would never
assent until Bonaparte’s hand was actually on his crown; for no one could
reasonably doubt that within a year after Spain should declare an
unsuccessful war on France, the whole picturesque Spanish court—not only
Don Carlos IV. himself and Queen Luisa, but also the Prince of Peace, Don
Pedro Cevallos, the Infant Don Ferdinand, and the train of courtiers who
thronged La Granja and the Escorial—would be wandering in exile or
wearing out their lives in captivity. To increase the complication, the young
King of Etruria died May 27, 1803, leaving an infant seated upon the frail
throne which was sure soon to disappear at the bidding of some military
order countersigned by Berthier.
In the midst of such anxieties, Godoy heard a public rumor that
Bonaparte had sold Louisiana to the United States; and he felt it as the
death-knell of the Spanish empire. Between the energy of the American
democracy and the violence of Napoleon whom no oath bound, Spain could
hope for no escape. From New Orleans to Vera Cruz was but a step; from
Bayonne to Cadiz a winter campaign of some five or six hundred miles. Yet
Godoy would probably have risked everything, and would have thrown
Spain into England’s hands, had he been able to control the King and
Queen, over whom Bonaparte exercised the influence of a master. On
learning the sale of Louisiana, the Spanish government used language
almost equivalent to a rupture with France. The Spanish minister at Paris

was ordered to remonstrate in the strongest terms against the step which the
First Consul had taken behind the back of the King his ally.[51]
“This alienation,” wrote the Chevalier d’Azara to Talleyrand, “not only deranges
from top to bottom the whole colonial system of Spain, and even of Europe, but is
directly opposed to the compacts and formal stipulations agreed upon between France
and Spain, and to the terms of the cession in the treaty of Tuscany; and the King my
master brought himself to give up the colony only on condition that it should at no
time, under no pretext, and in no manner, be alienated or ceded to any other Power.”

Then, after reciting the words of Gouvion St.-Cyr’s pledge, the note
continued:—
“It is impossible to conceive more frankness or loyalty than the King has put into
his conduct toward France throughout this affair. His Majesty had therefore the right
to expect as much on the part of his ally, but unhappily finds himself deceived in his
hopes by the sale of the said colony. Yet trusting always in the straightforwardness
and justice of the First Consul, he has ordered me to make this representation, and to
protest against the alienation, hoping that it will be revoked, as manifestly contrary to
the treaties and to the most solemn anterior promises.”

Not stopping there, the note also insisted that Tuscany should be
evacuated by the French troops, who were not needed, and had become an
intolerable burden, so that the country was reduced to the utmost misery.
Next, King Charles demanded that Parma and Piacenza should be
surrendered to the King of Etruria, to whom they belonged as the heir of the
late Duke of Parma. Finally, the note closed with a complaint even more
grave in substance than any of the rest:—
“The King my master could have wished also a little more friendly frankness in
communicating the negotiations with England, and especially in regard to the
dispositions of the Northern courts, guarantors of the treaty of Amiens; but as this
affair belongs to negotiations of another kind, the undersigned abstains for the
moment from entering into them, reserving the right to do so on a better occasion.”

Beurnonville, the French minister at Madrid, tried to soothe or silence
the complaints of Cevallos; but found himself only silenced in return. The
views of the Spanish secretary were energetic, precise, and not to be met by
argument.[52] “I have not been able to bring M. Cevallos to any moderate,
conciliatory, or even calm expression,” wrote Beurnonville to Talleyrand;
“he has persistently shown himself inaccessible to all persuasion.” The
Prince of Peace was no more manageable than Cevallos: “While
substituting a soft and pliant tone for the sharpest expressions, and
presenting under the appearance of regret what had been advanced to me
with the bitterness of reproach, the difference between the Prince’s conduct

and that of M. Cevallos is one only in words.” Both of them said, what was
quite true, that the United States would not have objected to the continued
possession of Louisiana by Spain, and that France had greatly exaggerated
the dispute about the entrepôt.
“The whole matter reduces itself to a blunder (gaucherie) of the Intendant,” said
Cevallos; “it has been finally explained to Mr. Jefferson, and friendship is restored.
On both sides there has been irritation, but not a shadow of aggression; and from the
moment of coming to an understanding, both parties see that they are at bottom of one
mind, and mutually very well disposed toward each other. Moreover, it is quite
gratuitous to assume that Louisiana is so easy to take in the event of a war, either by
the Americans or by the English. The first have only militia,—very considerable, it is
true, but few troops of the line; while Louisiana, at least for the moment, has ten
thousand militia-men, and a body of three thousand five hundred regular troops. As
for the English, they cannot seriously have views on a province which is impregnable
to them; and all things considered, it would be no great calamity if they should take it.
The United States, having a much firmer hold on the American continent, should they
take a new enlargement, would end by becoming formidable, and would one day
disturb the Spanish possessions. As for the debts due to Americans, Spain has still
more claim to an arrangement of that kind; and in any case the King, as Bonaparte
must know, would have gladly discharged all the debts contracted by France, and
perhaps even a large instalment of the American claim, in order to recover an old
domain of the crown. Finally, the intention which led the King to give his consent to
the exchange of Louisiana was completely deceived. This intention had been to
interpose a strong dyke between the Spanish colonies and the American possessions;
now, on the contrary, the doors of Mexico are to stay open to them.”

To these allegations, which Beurnonville called “insincere, weak, and
ill-timed,” Cevallos added a piece of evidence which, strangely enough,
was altogether new to the French minister, and reduced him to confusion: it
was Gouvion St.-Cyr’s letter, pledging the First Consul never to alienate
Louisiana.
When Beurnonville’s despatch narrating these interviews reached Paris,
it stung Bonaparte to the quick, and called from him one of the angry
avowals with which he sometimes revealed a part of the motives that
influenced his strange mind. Talleyrand wrote back to Beurnonville, June
22, a letter which bore the mark of the First Consul’s hand.
“In one of my last letters,” he began,[53] “I made known to you the motives
which determined the Government to give up Louisiana to the United States. You will
not conceal from the Court of Madrid that one of the causes which had most influence
on this determination was discontent at learning that Spain, after having promised to
sustain the measures taken by the Intendant of New Orleans, had nevertheless
formally revoked them. These measures would have tended to free the capital of
Louisiana from subjection to a right of deposit which was becoming a source of
bickerings between the Louisianians and Americans. We should have afterward

assigned to the United States, in conformity to their treaty with Spain, another place
of deposit, less troublesome to the colony and less injurious to its commerce; but
Spain put to flight all these hopes by confirming the privileges of the Americans at
New Orleans,—thus granting them definitively local advantages which had been at
first only temporary. The French government, which had reason to count on the
contrary assurance given in this regard by that of Spain, had a right to feel surprise at
this determination; and seeing no way of reconciling it with the commercial
advantages of the colony and with a long peace between the colony and its neighbors,
took the only course which actual circumstances and wise prevision could suggest.”

These assertions contained no more truth than those which Cevallos had
answered. Spain had not promised to sustain the Intendant, nor had she
revoked the Intendant’s measures after, but before, the imagined promise;
she had not confirmed the American privileges at New Orleans, but had
expressly reserved them for future treatment. On the other hand, the
restoration of the deposit was not only reconcilable with peace between
Louisiana and the United States, but the whole world knew that the risk of
war rose from the threat of disturbing the right of deposit. The idea that the
colony had become less valuable on this account was new. France had
begged for the colony with its American privileges, and meaning to risk the
chances of American hostility; but if these privileges were the cause of
selling the colony to the Americans, and if, as Talleyrand implied, France
could and would have held Louisiana if the right of deposit at New Orleans
had been abolished and the Americans restricted to some other spot on the
river-bank, fear of England was not, as had been previously alleged, the
cause of the sale. Finally, if the act of Spain made the colony worthless,
why was Spain deprived of the chance to buy it back?
The answer was evident. The reason why Bonaparte did not keep his
word to Don Carlos IV. was that he looked on Spain as his own property,
and on himself as representing her sovereignty. The reasons for which he
refused to Spain the chance to redeem the colony, were probably far more
complicated. The only obvious explanation, assuming that he still
remembered his pledge, was a wish to punish Spain.
After all these questions were asked, one problem still remained.
Bonaparte had reasons for not returning the colony to Spain; he had
reasons, too, for giving it to the United States,—but why did he alienate the
territory from France? Fear of England was not the true cause. He had not
to learn how to reconquer Louisiana on the Danube and the Po. At one time
or another Great Britain had captured nearly all the French colonies in the

New World, and had been forced not only to disgorge conquests, but to
abandon possessions; until of the three great European Powers in America,
England was weakest. Any attempt to regain old ascendency by conquering
Louisiana would have thrown the United States into the hands of France;
and had Bonaparte anticipated such an act, he should have helped it. That
Great Britain should waste strength in conquering Louisiana in order to give
it to the United States, was an idea not to be gravely argued. Jefferson
might, indeed, be driven into an English alliance in order to take Louisiana
by force from France or Spain; but this danger was slight in itself, and
might have been removed by the simple measure of selling only the island
of New Orleans, and by retaining the west bank, which Jefferson was ready
to guarantee. This was the American plan; and the President offered for
New Orleans alone about half the price he paid for all Louisiana.[54] Still,
Bonaparte forced the west bank on Livingston. Every diplomatic object
would have been gained by accepting Jefferson’s projet of a treaty, and
signing it without the change of a word. Spain would have been still in
some degree protected; England would have been tempted to commit the
mistake of conquering the retained territory, and thereby the United States
would have been held in check; the United States would have gained all the
stimulus their ambition could require for many years to come; and what was
more important to Bonaparte, France could not justly say that he had
illegally and ignobly sold national territory except for a sufficient and
national object.
The real reasons which induced Bonaparte to alienate the territory from
France remained hidden in the mysterious processes of his mind. Perhaps
he could not himself have given the true explanation of his act. Anger with
Spain and Godoy had a share in it, as he avowed through Talleyrand’s letter
of June 22; disgust for the sacrifices he had made, and impatience to begin
his new campaigns on the Rhine,—possibly a wish to show Talleyrand that
his policy could never be revived, and that he had no choice but to follow
into Germany,—had still more to do with the act. Yet it is also reasonable to
believe that the depths of his nature concealed a wish to hide forever the
monument of a defeat. As he would have liked to blot Corsica, Egypt, and
St. Domingo from the map, and wipe from human memory the record of his
failures, he may have taken pleasure in flinging Louisiana far off, and
burying it forever from the sight of France in the bosom of the only
government which could absorb and conceal it.

For reasons of his own, which belonged rather to military and European
than to American history, Bonaparte preferred to deal with Germany before
crossing the Pyrenees; and he knew that meanwhile Spain could not escape.
Godoy on his side could neither drag King Charles into a war with France,
nor could he provide the means of carrying on such a war with success.
Where strong nations like Austria, Russia, and Prussia were forced to
crouch before Bonaparte, and even England would have been glad to accept
tolerable terms, Spain could not challenge attack. The violent anger that
followed the sale of Louisiana and the rupture of the peace of Amiens soon
subsided. Bonaparte, aware that he had outraged the rights of Spain,
became moderate. Anxious to prevent her from committing any act of
desperation, he did not require her to take part in the war, but even allowed
her stipulated subsidies to run in arrears; and although he might not perhaps
regret his sale of Louisiana to the United States, he felt that he had gone too
far in shaking the colonial system. At the moment when Cevallos made his
bitterest complaints, Bonaparte was least disposed to resent them by war.
Both parties knew that so far as Louisiana was concerned, the act was done
and could not be undone; that France was bound to carry out her pledge, or
the United States would take possession of Louisiana without her aid.
Bonaparte was willing to go far in the way of conciliation, if Spain would
consent to withdraw her protest.
Of this the American negotiators knew little. Through such
complications, of which Bonaparte alone understood the secret, the
Americans moved more or less blindly, not knowing enemies from friends.
The only public man who seemed ever to understand Napoleon’s methods
was Pozzo di Borgo, whose ways of thought belonged to the island society
in which both had grown to manhood; and Monroe was not skilled in the
diplomacy of Pozzo, or even of Godoy. Throughout life, Monroe was
greatly under the influence of other men. He came to Paris almost a stranger
to its new society, for his only relations of friendship had been with the
republicans, most of whom Bonaparte had sent to Cayenne. He found
Livingston master of the situation, and wisely interfered in no way with
what Livingston did. The treaty was no sooner signed than he showed his
readiness to follow Livingston further, without regard to embarrassments
which might result.

When Livingston set his name to the treaty of cession, May 2, 1803, he
was aware of the immense importance of the act. He rose and shook hands
with Monroe and Marbois. “We have lived long,” said he; “but this is the
noblest work of our lives.” This was said by the man who in the Continental
Congress had been a member of the committee appointed to draft the
Declaration of Independence; and it was said to Monroe, who had been
assured only three months before, by President Jefferson of the grandeur of
his destinies in words he could hardly have forgotten:[55] “Some men are
born for the public. Nature, by fitting them for the service of the human
race on a broad scale, has stamped them with the evidences of her
destination and their duty.” Monroe was born for the public, and knew what
destiny lay before him; while in Livingston’s mind New York had
thenceforward a candidate for the Presidency whose claims were better than
Monroe’s. In the cup of triumph of which these two men then drank deep,
was yet one drop of acid. They had been sent to buy the Floridas and New
Orleans. They had bought New Orleans; but instead of Florida, so much
wanted by the Southern people, they had paid ten or twelve million dollars
for the west bank of the Mississippi. The negotiators were annoyed to think
that having been sent to buy the east bank of the Mississippi, they had
bought the west bank instead; that the Floridas were not a part of their
purchase. Livingston especially felt the disappointment, and looked about
him for some way to retrieve it.
Hardly was the treaty signed, when Livingston found what he sought.
He discovered that France had actually bought West Florida without
knowing it, and had sold it to the United States without being paid for it.
This theory, which seemed at first sight preposterous, became a fixed idea
in Livingston’s mind. He knew that West Florida had not been included by
Spain in the retrocession, but that on the contrary Charles IV. had
repeatedly, obstinately, and almost publicly rejected Bonaparte’s tempting
bids for that province. Livingston’s own argument for the cession of
Louisiana had chiefly rested on this knowledge, and on the theory that
without Mobile New Orleans was worthless. He recounted this to Madison
in the same letter which announced Talleyrand’s offer to sell:[56]—
“I have used every exertion with the Spanish Ambassador and Lord Whitworth to
prevent the transfer of the Floridas, ... and unless they [the French] get Florida, I have
convinced them that Louisiana is worth little.”

In the preceding year one of the French ministers had applied to
Livingston “to know what we understand in America by Louisiana;” and
Livingston’s answer was on record in the State Department at Washington:
[57]
“Since the possession of the Floridas by Britain and the treaty of 1762, I
think there can be no doubt as to the precise meaning of the terms.” He had
himself drafted an article which he tried to insert in Marbois’s projet,
pledging the First Consul to interpose his good offices with the King of
Spain to obtain the country east of the Mississippi. As late as May 12,
Livingston wrote to Madison:[58] “I am satisfied that ... if they [the French]
could have concluded with Spain, we should also have had West Florida.”
In his next letter, only a week afterward, he insisted that West Florida was
his:[59]—
“Now, sir, the sum of this business is to recommend to you in the strongest terms,
after having obtained the possession that the French commissary will give you, to
insist upon this as a part of your right, and to take possession at all events to the River
Perdido. I pledge myself that your right is good.”

The reasoning on which he rested this change of opinion was in
substance the following: France had, in early days, owned nearly all the
North American continent, and her province of Louisiana had then included
Ohio and the watercourses between the Lakes and the Gulf, as well as West
Florida, or a part of it. This possession lasted until the treaty of peace, Nov.
3, 1762, when France ceded to England not only Canada, but also Florida
and all other possessions east of the Mississippi, except the Island of New
Orleans. Then West Florida by treaty first received its modern boundary at
the Iberville. On the same day France further ceded to Spain the Island of
New Orleans and all Louisiana west of the Mississippi. Not a foot of the
vast French possessions on the continent of North America remained in the
hands of the King of France; they were divided between England and Spain.
The retrocession of 1800 was made on the understanding that it referred
to this cession of 1762. The province of Louisiana which had been ceded
was retro-ceded, with its treaty-boundary at the Iberville. Livingston knew
that the understanding between France and Spain was complete; yet on
examination he found that it had not been expressed in words so clearly but
that these words could be made to bear a different meaning. Louisiana was
retroceded, he perceived, “with the same extent that it now has in the hands
of Spain, and that it had when France possessed it, and such as it should be

according to the treaties subsequently entered into between Spain and other
States.” When France possessed Louisiana it included Ohio and West
Florida: no one could deny that West Florida was in the hands of Spain;
therefore Bonaparte, in the absence of negative proof, might have claimed
West Florida, if he had been acute enough to know his own rights, or
willing to offend Spain,—and as all Bonaparte’s rights were vested in the
United States, President Jefferson was at liberty to avail himself of them.
The ingenuity of Livingston’s idea was not to be disputed; and as a
ground for a war of conquest it was as good as some of the claims which
Bonaparte made the world respect. As a diplomatic weapon, backed as
Napoleon would have backed it by a hundred thousand soldiers, it was as
effective an instrument as though it had every attribute of morality and good
faith; and all it wanted, as against Spain, was the approval of Bonaparte.
Livingston hoped that after the proof of friendship which Bonaparte had
already given in selling Louisiana to the United States, he might without
insuperable difficulty be induced to grant this favor. Both Marbois and
Talleyrand, under the First Consul’s express orders, led him on. Marbois did
not deny that Mobile might lie in Louisiana, and Talleyrand positively
denied knowledge that Laussat’s instructions contained a definition of
boundaries. Bonaparte stood behind both these agents, telling them that if
an obscurity did not exist about the boundary they should make one.
Talleyrand went so far as to encourage the pretensions which Livingston
hinted: “You have made a noble bargain for yourselves,” said he, “and I
suppose you will make the most of it.” This was said at the time when
Bonaparte was still intent on punishing Spain.
Livingston found no difficulty in convincing Monroe that they had
bought Florida as well as Louisiana.[60]
“We consider ourselves so strongly founded in this conclusion, that we are of
opinion the United States should act on it in all the measures relative to Louisiana in
the same manner as if West Florida was comprised within the Island of New Orleans,
or lay to the west of the River Iberville.”

Livingston expected that “a little force,”[61] as he expressed himself,
might be necessary.
“After the explanations that have been given here, you need apprehend nothing
from a decisive measure; your minister here and at Madrid can support your claim,
and the time is peculiarly favorable to enable you to do it without the smallest risk at
home.... The moment is so favorable for taking possession of that country that I hope

it has not been neglected, even though a little force should be necessary to effect it.
Your minister must find the means to justify it.”

A little violence added to a little diplomacy would answer the purpose.
To use the words which “Aristides” Van Ness was soon to utter with
striking effect, the United States ministers to France “practised with
unlimited success upon the Livingston maxim,—
‘Rem facias, rem
Si possis recte; si non, quocunque modo, rem.’”

CHAPTER IV.
In the excitement of this rapid and half-understood foreign drama,
domestic affairs seemed tame to the American people, who were busied
only with the routine of daily life. They had set their democratic house in
order. So short and easy was the task, that the work of a single year finished
it. When the President was about to meet Congress for the second time, he
had no new measures to offer.[62] “The path we have to pursue is so quiet
that we have nothing scarcely to propose to our legislature.” The session
was too short for severe labor. A quorum was not made until the middle of
December, 1802; the Seventh Congress expired March 4, 1803. Of these ten
weeks, a large part was consumed in discussions of Morales’s proclamation
and Bonaparte’s scheme of colonizing Louisiana.
On one plea the ruling party relied as an excuse for inactivity and as a
defence against attack. Their enemies had said and believed that the
democrats possessed neither virtue nor ability enough to carry on the
government; but after eighteen months of trial, as the year 1803 began, the
most severe Federalist could not with truth assert that the country had yet
suffered in material welfare from the change. Although the peace in Europe,
after October, 1801, checked the shipping interests of America, and
although France and Spain, returning to the strictness of their colonial
system, drove the American flag from their harbors in the Antilles, yet
Gallatin at the close of the first year of peace was able to tell Congress[63]
that the customs revenue, which he had estimated twelve months before at
$9,500,000, had brought into the Treasury $12,280,000, or much more than
had ever before been realized in a single year from all sources of revenue
united. That the Secretary of the Treasury should miscalculate by one third
the product of his own taxes was strange; but Gallatin liked to measure the
future, not by a probable mean, but by its lowest possible extreme, and his
chief aim was to check extravagance in appropriations for objects which he
thought bad. His caution increased the popular effect of his success.
Opposition became ridiculous when it persisted in grumbling at a system
which, beginning with a hazardous reduction of taxes, brought in a single
year an immense increase in revenue. The details of Gallatin’s finance
fretted the Federalists without helping them.

The Federalists were equally unlucky in finding other domestic
grievances. The removals from office did not shock the majority. The
Judiciary was not again molested. The overwhelming superiority of the
democrats was increased by the admission of Ohio, Nov. 29, 1802. No man
of sense could deny that the people were better satisfied with their new
Administration than they ever had been with the old. Loudly as New
England grumbled, the Federalists even there steadily declined in relative
strength; while elsewhere an organized body of opposition to the national
government hardly existed. From New York to Savannah, no one
complained of being forced to work for national objects; South Carolina as
well as Virginia was pleased with the power she helped to sway.
Here and there might be found districts in which Federalism tried to
hold its own; but the Federalism of Delaware and Maryland was not
dangerous, and even in Delaware the Federalist champion Bayard was
beaten by Cæsar A. Rodney in his contest for the House, and was driven to
take refuge in the Senate. Pennsylvania, New York, Virginia, and North
Carolina were nearly unanimous; and beyond the mountains democracy had
its own way without the trouble of a discussion. Federalism was already an
old-fashioned thing; a subject of ridicule to people who had no faith in
forms; a half-way house between the European past and the American
future. The mass of Americans had become democratic in thought as well as
act; not even another political revolution could undo what had been done.
As a democrat, Jefferson’s social success was sweeping and final; but he
was more than a democrat,—and in his other character, as a Virginia
republican of the State-rights school, he was not equally successful.
In the short session of 1802–1803 many signs proved that the revolution
of 1800 had spent its force, and that a reaction was at hand. Congress
showed no eagerness to adopt the President’s new economies, and
dismissed, with silence almost contemptuous, his scheme for building at
Washington a large dry-dock in which the navy should be stored for safety
and saving. The mint was continued by law for another five years, and
twenty thousand dollars were quietly appropriated for its support. Instead of
reducing the navy, Congress decided to build four sixteen-gun brigs and
fifteen gunboats, and appropriated ninety-six thousand dollars for the brigs
alone. The appropriation of two millions as a first instalment toward paying
for New Orleans and Florida was another and a longer stride in the old

Federalist path of confidence in the Executive and liberality for national
objects. The expenditure for 1802, excluding interest on debt, was
$3,737,000. Never afterward in United States history did the annual
expenditure fall below four millions. The navy, in 1802, cost $915,000;
never afterward did it cost less than a million.
The reaction toward Federalist practices was more marked in the
attitude of the Executive than in that of Congress. If Jefferson’s favorite
phrase was true,—that the Federalist differed from the Republican only in
the shade more or less of power to be given the Executive,—it was hard to
see how any President could be more Federalist than Jefferson himself. A
resolution to commit the nation without its knowledge to an indissoluble
British alliance, was more than Washington would have dared take; yet this
step was taken by the President, and was sustained by Madison, Gallatin,
and Robert Smith as fairly within the limits of the Constitution. In regard to
another stretch of the treaty-making power, they felt with reason the gravest
doubts. When the President and Cabinet decided early in January, 1803, to
send Monroe with two million dollars to buy New Orleans and Florida, a
question was instantly raised as to the form in which such a purchase could
be constitutionally made. Attorney-General Lincoln wished to frame the
treaty or convention in such language as to make France appear not as
adding new territory to the United States, but as extending already existing
territory by an alteration of its boundary. He urged this idea upon the
President in a letter written the day of Monroe’s nomination to the Senate.
[64]

“If the opinion is correct,” said he, “that the general government when formed was
predicated on the then existing United States, and such as could grow out of them, and
out of them only; and that its authority is constitutionally limited to the people
composing the several political State societies in that Union, and such as might be
formed out of them,—would not a direct independent purchase be extending the
executive power farther, and be more alarming, and improvable by the opposition and
the Eastern States, than the proposed indirect mode?”

Jefferson sent this letter to Gallatin, who treated it without favor.[65]
“If the acquisition of territory is not warranted by the Constitution,” said he, “it is
not more legal to acquire for one State than for the United States.... What could, on
his construction, prevent the President and Senate, by treaty, annexing Cuba to
Massachusetts, or Bengal to Rhode Island, if ever the acquirement of colonies should
become a favorite object with governments, and colonies should be acquired? But
does any constitutional objection really exist?... To me it would appear, (1) that the
United States, as a nation, have an inherent right to acquire territory; (2) 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.”

Gallatin not only advanced Federal doctrine, but used also what the
Virginians always denounced as Federalist play on words. “The United
States as a nation” had an inherent right to do whatever the States in union
cared to do; but the Republican party, with Jefferson, Madison, and Gallatin
at their head, had again and again maintained that the United States
government had the inherent right to do no act whatever, but was the
creature of the States in union; and its acts, if not resulting from an
expressly granted power, were no acts at all, but void, and not to be obeyed
or regarded by the States. No foreigner, not even Gallatin, could master the
theory of Virginia and New England, or distinguish between the nation of
States in union which granted certain powers, and the creature at
Washington to which these powers were granted, and which might be
strengthened, weakened, or abolished without necessarily affecting the
nation. Whether the inability to grasp this distinction was a result of clearer
insight or of coarser intelligence, the fact was the same; and on this point, in
spite of his speech on the Alien and Sedition Acts, Gallatin belonged to the
school of Hamilton, while both were of one mind with Dallas. The chief
avowed object of Jefferson’s election had been to overthrow the reign of
this school. No Virginian could be expected within two short years to adopt
the opinions of opponents who had been so often branded as “monocrats,”
because of acting on these opinions. Although the Attorney-General’s
advice was not followed, the negotiation for New Orleans was begun on the
understanding that the purchase, if made, would be an inchoate act which
would need express sanction from the States in the shape of an amendment
to the Constitution.
There the matter rested. At the moment of Monroe’s appointment, the
President, according to his letters, had little hope of quick success in the
purchase of territory. His plan was to “palliate and endure,” unless France
should force a war upon him; the constitutional question could wait, and it
was accordingly laid aside. Yet the chief ambition of Southern statesmen in
foreign affairs was to obtain the Floridas and New Orleans; and in effecting
this object they could hardly escape establishing a serious precedent.
Already Jefferson had ordered his ministers at Paris to buy this territory,
although he thought the Constitution gave him no power to do so; he was
willing to increase the national debt for this purpose, even though a national

debt was a “mortal canker;” and he ordered his minister, in case Bonaparte
should close the Mississippi, to make a permanent alliance with England, or
in his own words to “marry ourselves to the British fleet and nation,” as the
price of New Orleans and Florida. Jefferson foresaw and accepted the
consequences of the necessity; he repeatedly referred to them and
deprecated them in his letters; but the territory was a vital object, and
success there would, as he pointed out, secure forever the triumph of his
party even in New England.
“I believe we may consider the mass of the States south and west of
Connecticut and Massachusetts as now a consolidated body of
Republicanism,”—he wrote to Governor McKean in the midst of the
Mississippi excitement.[66] “In Connecticut, Massachusetts, and New
Hampshire there is still a Federal ascendency; but it is near its last. If we
can settle happily the difficulties of the Mississippi, I think we may promise
ourselves smooth seas during our time.” What he rightly feared more than
any other political disaster was the risk of falling back to the feelings of
1798 and 1799, “when a final dissolution of all bonds, civil and social,
appeared imminent.”[67] With zeal which never flagged, Jefferson kept up
his struggle with the New England oligarchy, whose last move alarmed him.
So sensitive was the President, that he joined personally in the fray that
distracted New England; and while waiting for news from Monroe, he
wrote a defence of his own use of patronage, showing, under the assumed
character of a Massachusetts man, that a proportionate division of offices
between the two parties would, since the Federalists had so much declined
in numbers, leave to them even a smaller share of Federal offices than they
still possessed. This paper he sent to Attorney-General Lincoln,[68] to be
published in the Boston “Chronicle;” and there, although never recognized,
it appeared.
Had the Federalists suspected the authorship, they would have fallen
without mercy upon its arguments and its modest compliment to “the tried
ability and patriotism of the present Executive;” but the essay was no
sooner published than it was forgotten. The “Chronicle” of June 27, 1803,
contained Jefferson’s argument founded on the rapid disappearance of the
Federalist party; the next issue of the “Chronicle,” June 30, contained a
single headline, which sounded the death-knell of Federalism altogether:
“Louisiana ceded to the United States!” The great news had arrived; and the

Federalist orators of July 4, 1803, set about their annual task of foreboding
the ruin of society amid the cheers and congratulations of the happiest
society the world then knew.
The President’s first thought was of the Constitution. Without delay he
drew up an amendment, which he sent at once to his Cabinet.[69] “The
province of Louisiana is incorporated with the United States and made part
thereof,” began this curious paper; “the rights of occupancy in the soil and
of self-government are confirmed to the Indian inhabitants as they now
exist.” Then, after creating a special Constitution for the territory north of
the 32d parallel, reserving it for the Indians until a new amendment to the
Constitution should give authority for white ownership, the draft provided
for erecting the portion south of latitude 32° into a territorial government,
and vesting the inhabitants with the rights of other territorial citizens.
Gallatin took no notice of this paper, except to acknowledge receiving
it.[70] Robert Smith wrote at some length, July 9, dissuading Jefferson from
grafting so strange a shoot upon the Constitution.[71]
“Your great object is to prevent emigrations,” said he, “excepting to a certain
portion of the ceded territory. This could be effectually accomplished by a
constitutional prohibition that Congress should not erect or establish in that portion of
the ceded territory situated north of latitude 32° any new state or territorial
government, and that they should not grant to any people excepting Indians any right
or title whatever to any part of the said portion of the said territory.”

Of any jealousy between North and South which could be sharpened by
such a restriction of northern and extension of southern territory, Jefferson
was unaware. He proposed his amendment in good faith as a means of
holding the Union together by stopping its too rapid extension into the
wilderness.
Coldly as his ideas were received in the Cabinet, Jefferson did not
abandon them. Another month passed, and a call was issued for a special
meeting of Congress October 17 to provide the necessary legislation for
carrying the treaty into effect. As the summer wore away, Jefferson
imparted his opinions to persons outside the Cabinet. He wrote, August 12,
to Breckenridge of Kentucky a long and genial letter. Congress, he
supposed,[72] after ratifying the treaty and paying for the country, “must
then appeal to the nation for an additional article to the Constitution
approving and confirming an act which the nation had not previously

authorized. 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 their country, have 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.”
Breckenridge—whose Kentucky Resolutions, hardly five years before,
declared that unconstitutional assumptions of power were the surrender of
the form of government the people had chosen, and the replacing it by a
government which derived its powers from its own will—might be annoyed
at finding his principles abandoned by the man who had led him to father
them; and surely no leader who had sent to his follower in one year the draft
of the Kentucky Resolutions could have expected to send in another the
draft of the Louisiana treaty. “I suppose they must then appeal to the
nation” were the President’s words; and he underscored this ominous
phrase. “We shall not be disavowed by the nation, and their act of
indemnity will confirm and not weaken the Constitution by more strongly
marking out its lines.” The Constitution, in dealing with the matter of
amendments, made no reference to the nation; the word itself was unknown
to the Constitution, which invariably spoke of the Union wherever such an
expression was needed; and on the Virginia theory Congress had no right to
appeal to the nation at all, except as a nation of States, for an amendment.
The language used by Jefferson was the language of centralization, and
would have been rejected by him and his party in 1798 or in 1820.
On the day of writing to Breckenridge the President wrote in a like
sense to Paine; but in the course of a week despatches arrived from Paris
which alarmed him. Livingston had reason to fear a sudden change of mind
in the First Consul, and was willing to hasten the movements of President
and Congress. Jefferson took the alarm, and wrote instantly to warn
Breckenridge and Paine that no whisper of constitutional difficulties must
be heard:[73]—
“I wrote you on the 12th instant on the subject of Louisiana and the constitutional
provision which might be necessary for it. A letter received yesterday shows that
nothing must be said on that subject which may give a pretext for retracting, but that

we should do sub silentio what shall be found necessary. Be so good, therefore, as to
consider that part of my letter as confidential.”

He gave the same warning to his Cabinet:[74] “I infer that the less we
say about constitutional difficulties the better; and that what is necessary for
surmounting them must be done sub silentio.”
He then drew up a new amendment, which he sent to the members of
his Cabinet.[75] The July draft was long, elaborate, and almost a new
Constitution in itself; the August draft was comparatively brief. “Louisiana
as ceded by France to the United States is made a part of the United States.
Its white inhabitants shall be citizens, and stand, as to their rights and
obligations, on the same footing with other citizens of the United States in
analogous situations.” The whole country north of the Arkansas River was
reserved for Indians until another amendment should be made; and as an
afterthought Florida was to be admitted as a part of the United States
“whenever it may be rightfully obtained.”
These persistent attempts to preserve his own consistency and that of his
party were coldly received. Jefferson found himself alone. Wilson Cary
Nicholas, a prominent supporter of the Virginia Resolutions in 1798 and a
senator of the United States in 1803, had a long conversation with the
President, and in the early days of September wrote him a letter which
might have come from Theodore Sedgwick or Roger Griswold in the days
of Jay’s treaty, when Federalist notions of prerogative ran highest.
“Upon an examination of the Constitution,” wrote Nicholas,[76] “I find the power
as broad as it could well be made (Sect. 3, Art. IV.), except that new 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 was not intended to confine the Congress in
the admission of new States to what was then the territory of the United States. Nor
do I see anything in the Constitution that limits the treaty-making power, except the
general limitations of the other powers given to the government, and the evident
objects for which the government was instituted.”

Had Nicholas reasoned thus in 1798 he would have been a Federalist, as
he seemed conscious, for he went on to say: “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.”
Nevertheless he argued that if this treaty was unconstitutional, all other
treaties were open to the same objection, and the United States government
in such a case could make no treaty at all. Finally, he begged the President

to avoid giving an opinion on the subject: “I should think it very probable if
the treaty should be declared by you to exceed the constitutional authority
of the treaty-making power, it would be rejected by the Senate, and if that
should not happen, that great use would be made with the people of a wilful
breach of the Constitution.”
Such reasoning in the mouths of Virginia Republicans, who had asked
and gained office by pledging themselves to their people against the use of
implied powers, marked a new epoch. From them the most dangerous of all
arguments, the reductio ad absurdum, was ominous. What right had they to
ask whether any constitutional grant was less complete than the people
might have wished or intended? If the Constitution were incomplete or
absurd, not the government, but the people of the States who had made it
were the only proper authority to correct it. Otherwise, as Nicholas had so
often pointed out, their creature would become their tyrant, as had been the
law of politics from the beginning.
Jefferson was distressed to find himself thus deserted by his closest
friends on an issue which he felt to be vital. The principle of strict
construction was the breath of his political life. The Pope could as safely
trifle with the doctrine of apostolic succession as Jefferson with the limits of
Executive power. If he and his friends were to interpret the treaty-making
power as they liked, the time was sure to come when their successors would
put so broad an interpretation on other powers of the government as to lead
from step to step, until at last Virginia might cower in blood and flames
before the shadowy terror called the war-power. With what face could
Jefferson then appear before the tribunal of history, and what position could
he expect to receive?
All this he felt in his kindly way; and with this weight on his mind he
wrote his reply to Nicholas.[77] Beginning with the warning that Bonaparte
could not be trusted, and that Congress must act with as little debate as
possible, particularly as respected the constitutional difficulty, he went on:
—
“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 do not
believe it was meant that [Congress] might receive England, Ireland, Holland, etc.,

into it,—which would be the case on your construction.... 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.”

From the Virginia standpoint nothing could be better said. Jefferson in
this letter made two points clear: the first was that the admission of
Louisiana into the Union without express authority from the States made
blank paper of the Constitution; the second was that if the treaty-making
power was equal to this act, it superseded the Constitution. He entertained
no doubts on either point, and time sustained his view; for whether he was
right or wrong in law, the Louisiana treaty gave a fatal wound to “strict
construction,” and the Jeffersonian theories never again received general
support. In thus giving them up, Jefferson did not lead the way, but he
allowed his friends to drag him in the path they chose. The leadership he
sought was one of sympathy and love, not of command; and there was
never a time when he thought that resistance to the will of his party would
serve the great ends he had in view. The evils which he foresaw were
remote: in the hands of true Republicans the Constitution, even though
violated, was on the whole safe; the precedent, though alarming, was
exceptional. So it happened that after declaring in one sentence the
Constitution at an end if Nicholas had his way, Jefferson in the next breath
offered his acquiescence in advance:—
“I confess 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.”

With these words Jefferson closed his mouth on this subject forever.
Although his future silence led many of his friends to think that he ended by
altering his opinion, and by admitting that his purchase of Louisiana was
constitutional, no evidence showed the change; but rather one is led to
believe that when in later life he saw what he called the evils of
construction grow until he cried against them with violence almost as shrill
as in 1798, he felt most strongly the fatal error which his friends had forced
him to commit, and which he could neither repudiate nor defend. He had
declared that he would acquiesce with satisfaction in making blank paper of
the Constitution.

A few weeks later, Oct. 17, 1803, Congress met. The President’s
Message had little to say of domestic affairs. The Kaskaskia Indians had
sold their territory to the United States, the revenue had again exceeded the
estimate, more than three millions of debt had been paid within the year.
Much was said about war in Europe and the rights and duties of neutrals,
about gunboats which were no longer needed, and about the unsettled
boundary in Maine and at the Lake of the Woods, but not a word about the
constitutional difficulties raised by the Louisiana treaty. “With the wisdom
of Congress it will rest,” said Jefferson, “to take those ulterior measures
which may be necessary for the immediate occupation and temporary
government of the country, for its incorporation into our Union, for
rendering the change of government a blessing to our newly adopted
brethren, for securing to them the rights of conscience and of property, for
confirming to the Indian inhabitants their occupancy and self-government.”
These were the points of his proposed amendment; but he gave no sign of
his opinion that Congress was incompetent to deal with them, and that the
Senate was equally incompetent to make the treaty valid.
There were good reasons for silence. Not only were Livingston’s letters
alarming, but the Marquis of Casa Yrujo, the friend and benefactor of the
Administration, sent to Madison one protest after another against the sale of
Louisiana.[78] He quoted St.-Cyr’s letter of July, 1802, which bound France
not to alienate the province, and he declared that France had never carried
out the conditions of contract in regard to Tuscany, and therefore could not
rightfully treat Louisiana as her own. A probable war with Spain stared
Jefferson in the face, even if Bonaparte should raise no new difficulties. The
responsibility for a mistake was great, and no one could blame Jefferson if
he threw his burden on Congress.

CHAPTER V.
If President Jefferson and Secretary Madison, who wrote the
Resolutions of 1798, acquiesced, in 1803, in a course of conduct which as
Jefferson believed made blank paper of the Constitution, and which,
whether it did so or not, certainly made waste paper of the Virginia and
Kentucky Resolutions, no one could expect that their followers would be
more consistent or more rigid than themselves. Fortunately, all the more
prominent Republicans of 1798 had been placed in office by the people as a
result of popular approval, and were ready to explain their own views. In
the Senate sat John Breckenridge of Kentucky, supposed to be the author of
the Kentucky Resolutions, and known as their champion in the Kentucky
legislature. From Virginia came John Taylor of Caroline, the reputed father
of the Virginia Resolutions, and the soundest of strict constructionists.
Twenty years later, his “Construction Construed” and “New Views of the
Constitution” became the text-books of the State-rights school. His
colleague was Wilson Cary Nicholas, who had also taken a prominent part
in supporting the Virginia Resolutions, and whose devotion to the principles
of strict construction was beyond doubt. One of the South Carolina senators
was Pierce Butler; one of those from North Carolina was David Stone;
Georgia was represented by Abraham Baldwin and James Jackson,—stanch
State-rights Republicans all. In the House a small coterie of State-rights
Republicans controlled legislation. Speaker Macon was at their head; John
Randolph, chairman of the Ways and Means Committee, was their
mouthpiece. Joseph H. Nicholson of Maryland, and Cæsar A. Rodney of
Delaware, supported Randolph on the committee; while two of President
Jefferson’s sons-in-law, Thomas Mann Randolph and John W. Eppes, sat in
the Virginia delegation. Both in Senate and House the Southern
Republicans of the Virginia school held supremacy; their power was so
absolute as to admit no contest; they were at the flood of that tide which had
set in three years before. In the Senate they controlled twenty-five votes
against nine; in the House, one hundred and two against thirty-nine.
Virginia ruled the United States, and the Republicans of 1798 ruled
Virginia. The ideal moment of Republican principles had arrived.

This moment was big with the fate of theories. Other debates of more
practical importance may have frequently occurred,—for in truth whatever
the decision of Congress might have been, it would in no case have affected
the result that Louisiana was to enter the Union: and this inevitable result
overshadowed all theory,—but no debate ever took place in the Capitol
which better deserved recollection.
Of extraordinary ability Congress contained but little, and owing to the
meagre character of the reports, appeared to contain even less than it
actually possessed; but if no one rose to excellence either of logic or
rhetoric, the speakers still dealt with the whole subject, and rounded the
precedent with all the argument and illustration that a future nation could
need. Both actions and words spoke with decision and distinctness till that
time unknown in American politics.
The debate began first in the House, where Gaylord Griswold of New
York, Oct. 24, 1803, moved for such papers as the Government might
possess tending to show the value of the title to Louisiana as against Spain.
Under the lead of John Randolph the House refused the call. That this
decision clashed with the traditions of the Republican party was proved by
the vote. With a majority of three to one, Randolph succeeded in defeating
Griswold only by fifty-nine to fifty-seven; while Nicholson, Rodney,
Varnum of Massachusetts, and many other stanch Republicans voted with
the Federalists.
The next day the House took up the motion for carrying the treaty into
effect. Griswold began again, and without knowing it repeated Jefferson’s
reasoning. The framers of the Constitution, he said, “carried their ideas to
the time when there might be an extended population; but they did not carry
them forward to the time when an addition might be made to the Union of a
territory equal to the whole United States, which additional territory might
overbalance the existing territory, and thereby the rights of the present
citizens of the United States be swallowed up and lost.” The power to admit
new States referred only to the territory existing when the Constitution was
framed; but this right, whatever it might be, was vested in Congress, not in
the Executive. In promising to admit Louisiana as a State into the Union,
the treaty assumed for the President power which in any case could not
have been his. Finally, the treaty gave to French and Spanish ships special
privileges for twelve years in the port of New Orleans; while the

Constitution forbade any preference to be given, by any regulation of
commerce or revenue, to the ports of one State over those of another.
John Randolph next rose. Just thirty years old, with a sarcasm of tone
and manner that overbore remonstrance, and with an authority in the House
that no one contested, Randolph spoke the voice of Virginia with autocratic
distinctness. His past history was chiefly marked by the ardor with which,
from 1798 to 1800, he had supported the principles of his party and
encouraged resistance to the national government. He had gone beyond
Jefferson and Madison in willingness to back their theories by force, and to
fix by a display of Virginia power the limit beyond which neither Executive,
Congress, nor Judiciary should pass. Even then he probably cared little for
what he called the “parchment barriers” of the Constitution: in his mind
force was the real balance,—force of State against force of Union; and any
measure which threatened to increase the power of the national government
beyond that of the State, was sure of his enmity. A feather might turn the
balance, so nice was the adjustment; and Randolph again and again cried
with violence against feathers.
In the Louisiana debate, Randolph spoke in a different tone. The
Constitution, he said, could not restrict the country to particular limits,
because at the time of its adoption the boundary was unsettled on the
northeastern, northwestern, and southern frontiers. The power to settle
disputes as to limits was indispensable; it existed in the Constitution, had
been repeatedly exercised, and involved the power of extending boundaries.
This argument was startling in the mouth of one who had helped to arm
the State of Virginia against a moderate exercise of implied powers.
Randolph asserted that the right to annex Louisiana, Texas, Mexico, South
America, if need be, was involved in the right to run a doubtful boundary
line between the Georgia territory and Florida. If this power existed in the
government, it necessarily devolved on the Executive as the organ for
dealing with foreign States. Thus Griswold’s first objection was answered.
Griswold objected in the second place that the treaty made New Orleans
a favored port. “I regard this stipulation,” replied Randolph, “as a part of
the price of the territory. It was a condition which the party ceding had a
right to require, and to which we had a right to assent. The right to acquire

involves the right to give the equivalent demanded.” Randolph did not
further illustrate this sweeping principle of implied power.
After the subject had been treated by speakers of less weight, Roger
Griswold of Connecticut took the floor. So long as his party had been in
office, the vigor of the Constitution had found no warmer friend than he;
but believing New England to have fallen at the mercy of Virginia, he was
earnest to save her from the complete extinction which he thought near at
hand. Griswold could not deny that the Constitution gave the power to
acquire territory: his Federalist principles were too fresh to dispute such an
inherent right; and Gouverneur Morris, as extreme a Federalist as himself,
whose words had been used in the Constitution, averred that he knew in
1788 as well as he knew in 1803, that all North America must at length be
annexed, and that it would have been Utopian to restrain the movement.[79]
This was old Federalist doctrine, resting on “inherent rights,” on nationality
and broad construction,—the Federalism of President Washington, which
the Republican party from the beginning denounced as monarchical.
Griswold would not turn his back on it; he still took a liberal view of the
power, and even stretched it beyond reasonable shape to accord with
Morris’s idea. “A new territory and new subjects,” said he, “may
undoubtedly be obtained by conquest and by purchase; but neither the
conquest nor the purchase can incorporate them into the Union. They must
remain in the condition of colonies, and be governed accordingly.” This
claim gave the central government despotic power over its new purchase;
but it declared that a treaty which pledged the nation to admit the people of
Louisiana into the Union must be invalid, because it assumed that “the
President and Senate may admit at will any foreign nation into this
copartnership without the consent of the States,”—a power directly
repugnant to the principles of the compact. In substance, Griswold
maintained that either under the war power or under the treaty-making
power the government could acquire territory, and as a matter of course
could hold and govern that territory as it pleased,—despotically if
necessary, or for selfish objects; but that the President and Senate could not
admit a foreign people into the Union, as a State. Yet to this, the treaty
bound them.
To meet this attack the Republicans put forward their two best men,—
Joseph H. Nicholson of Maryland, and Cæsar A. Rodney of Delaware. The

task was difficult, and Nicholson showed his embarrassment at the outset.
“Whether the United States,” said he, “as a sovereign and independent
empire, has a right to acquire territory is one thing; but whether they can
admit that territory into the Union upon an equal footing with the other
States is a question of a very different nature.” He refused to discuss this
latter issue; in his opinion it was not before the House.
This flinching was neither candid nor courageous; but it was within the
fair limits of a lawyer’s if not of a statesman’s practice, and Nicholson at
least saved his consistency. On the simpler question, whether “a sovereign
nation,” as he next said, “had a right to acquire new territory,” he spoke
with as much emphasis as Roger Griswold and Gouverneur Morris, and he
took the same ground. The separate States had surrendered their sovereignty
by adopting the Constitution; “the right to declare war was given to
Congress; the right to make treaties, to the President and Senate. Conquest
and purchase alone are the means by which nations acquire territory.”
Griswold was right, then, in the ground he had taken; but Nicholson, not
satisfied with gaining his point through the treaty-making power, which was
at least express, added: “The right must exist somewhere: it is essential to
independent sovereignty.” As it was prohibited to the States, the power was
necessarily vested in the United States.
This general implication, that powers inherent in sovereignty which had
not been expressly reserved to the States were vested in the national
government, was not more radical centralization than Nicholson’s next
point. The treaty gave to the port of New Orleans a decided preference over
all other ports of the United States, although the Constitution said that no
preference should be given to the ports of one State over those of another.
To this objection Nicholson replied that Louisiana was not a State. “It is a
territory purchased by the United States in their confederate capacity, and
may be disposed of by them at pleasure. It is in the nature of a colony
whose commerce may be regulated without any reference to the
Constitution.” The new territory, therefore, was in the nature of a European
colony; the United States government might regulate its commerce without
regard to the Constitution, give its population whatever advantages
Congress might see fit, and use it to break down New England—or slavery.
With the fecund avowal that Louisiana must be governed by Congress
at pleasure without reference to the Constitution, Nicholson sat down; and

Cæsar Rodney took the floor,—an able and ingenious lawyer, who came to
the House with the prestige of defeating the Federalist champion Bayard. If
Randolph and Nicholson, like the mouse in the fable nibbling at the cords
which bound the lion of Power, had left one strand still unsevered, the lion
stood wholly free before Rodney ended. He began by appealing to the
“general welfare” clause,—a device which the Republican party and all
State-rights advocates once regarded as little short of treason. “I cannot
perceive,” said he, “why within the fair meaning of this general provision is
not included the power of increasing our territory, if necessary for the
general welfare or common defence.” This argument in such a mouth might
well have sent a chill to the marrow of every Republican of 1798; but this
was not the whole. He next invoked the “necessary and proper” clause,
even at that early time familiar to every strict constructionist as one of the
most dangerous instruments of centralization. “Have we not also vested in
us every power necessary for carrying such a treaty into effect, in the words
of the Constitution which give Congress the authority to ‘make all laws
which shall be necessary and proper for carrying into execution the
foregoing powers, and all other powers vested by this Constitution in the
government of the United States or in any department or officer thereof’?”
One more point was affirmed by Rodney. Gaylord Griswold had
maintained that the territory mentioned in the Constitution was the territory
existing in 1789. Rodney denied it. Congress, he said, had express power to
“make all needful rules and regulations” respecting any and all territory; it
had no need to infer this power from other grants. As for the special
privilege of trade accorded to New Orleans, it violated in no way the
Constitution; it was indirectly a benefit to all the States, and a preference to
none.
The Northern democrats also supported these views; but the opinions of
Northern democrats on constitutional questions carried little weight. Neither
among them nor among Southern Republicans did any member question
what Randolph, Nicholson, and Rodney had said. Macon sat silent in his
chair, while John Randolph closed the debate. As though he could not
satisfy himself with leaving a doubt as to the right of Government to
assume what powers it wanted, Randolph took this moment to meet Roger
Griswold’s assertion that the United States government could not lawfully
incorporate Great Britain or France into the Union. Randolph affirmed that,

so far as the Constitution was concerned, this might be done. “We cannot
because we cannot.”
The reply was disingenuous, but decisive. The question was not whether
the States in union could lawfully admit England or France into the Union,
for no one denied that the States could do what they pleased. Griswold only
affirmed that the people of the States had never delegated to John Randolph
or Thomas Jefferson, or to a majority of the United States Senate, the right
to make a political revolution by annexing a foreign State. Jefferson agreed
with Griswold that they had not; if they had, “then we have no
Constitution” was his comment. Yet not a voice was raised in the
Administration party against Randolph’s views. After one day’s debate,
ninety Republicans supported Randolph with their votes, and twenty-five
Federalists alone protested. Of these twenty-five, not less than seventeen
were from New England.
A week afterward, Nov. 2, 1803, the Senate took up the subject. After
several speeches had been made without touching deeply the constitutional
difficulty, Senator Pickering of Massachusetts took the floor, and in a few
words stated the extreme New England doctrine. Like Griswold and
Gouverneur Morris, he affirmed the right of conquest or of purchase, and
the right to govern the territory so acquired as a dependent province; but
neither the President nor Congress could incorporate this territory in the
Union, nor could the incorporation lawfully be effected even by an ordinary
amendment to the Constitution. “I believe 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.”
With his usual skill in saying what was calculated to annoy,—a skill in
which he had no superior,—he struck one truth which no other eyes would
see. “I believe that this whole transaction has been purposely wrapped in
obscurity by the French government. The boundary of Louisiana, for
instance, on the side of Florida is in the treaty really unintelligible; and yet
nothing was more easy to define.”
Pickering was followed by Dayton of New Jersey, and he by the
celebrated John Taylor of Caroline, the senator from Virginia, whose
Resolutions of 1798, with echoes which were to ring louder and louder for
sixty years to come, had declared “deep regret that a spirit has in sundry

instances been manifested by the federal government to enlarge its powers
by forced constructions of the constitutional charter which defines them;
and that indications have appeared of a design to expound certain general
phrases ... so as to consolidate the States by degrees into one sovereignty.”
In purchasing Louisiana, the United States government had done an act
identical with the despotic acts of consolidated European governments,—it
had bought a foreign people without their consent and without consulting
the States, and had pledged itself to incorporate this people in the Union.
Colonel Taylor’s argument, so far as it went, supported the act; and
although it evaded, or tried to evade, the most difficult points of objection,
it went as far as the farthest in the path of forced construction. On the right
to acquire territory, Taylor took the ground taken by Joseph Nicholson in
the House,—he inferred it from the war and treaty powers: “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 annexed to the treaty-making power and the power
of making war.” This part of the Federalist scheme he adopted without a
murmur; but when he came to the next inevitable step, he showed the want
of courage often felt by honest men trying to be untrue to themselves. This
territory which the Washington government could acquire by conquest or
treaty,—what was its status? Could the Washington government “dispose
of” it, as the government was expressly permitted to dispose of the territory
it already held under the Constitution; or must Louisiana be governed extra-
constitutionally by “inherent powers,” as Griswold maintained; or ought
Congress to ask for new and express authority from the States? Taylor took
the first position. The treaty-making power, he said, was not defined; it was
competent to acquire territory. This territory by the acquisition became a
part of the Union, a portion of the territories of the United States, and might
be “disposed of” by Congress without an amendment to the Constitution.
Although Taylor differed with Jefferson on this point, no objection could be
made to the justice of his opinion except that it left the true dispute to be
settled by mere implication. The power of the government over the territory
had no limits, so far as Colonel Taylor defined it; yet it either could or could
not admit the new territory as a State. If it could, the government could alter
the original compact by admitting a foreign country as a State; if it could
not, either the treaty was void, or government must apply to the people of
the States for new powers.

Uriah Tracy of Connecticut replied to Taylor in a speech which was
probably the best on his side of the question. His opposition to the purchase
was grounded on a party reason: “The relative strength which this
admission gives to a Southern and Western interest is contradictory to the
principles of our original Union.” The President and Senate had no power to
make States, and the treaty was void.
“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.”

Tracy’s speech was answered by Breckenridge of Kentucky, who had
induced the Kentucky legislature, only five years before, to declare itself
determined “tamely to submit to undelegated, and consequently unlimited,
powers in no man or body of men on earth;” and to assert further that
submission to the exercise of such powers “would be to surrender the form
of government we have chosen, and to live under one deriving its powers
from its own will, and not from our authority.” When he came to deal with
the same question in a new form, he glided with extreme delicacy over the
thin ice of the Constitution. His answer to Tracy was an admission. He
pointed out that the Federalist argument carried centralization further than it
was carried by this treaty. “By his construction,” said Breckenridge,
“territories and citizens are considered and held as the property of the
government of the United States, and may consequently be used as
dangerous engines in the hands of the government against the States and
people.” This was true. The Federalists maintained that such territory could
be held only as property, not as part of the Union; and the consequences of
this doctrine, if granted, were immense. Breckenridge argued that the
admission by treaty of a foreign State was less dangerous, and therefore
more constitutional, than such ownership of foreign territory. The
conclusion was not perfectly logical, and was the less so because he denied
the power in neither case. “Could we not,” he went on, quoting from
Tracy’s speech, “incorporate in the Union some foreign nation containing

ten millions of inhabitants,—Africa, for instance,—and thereby destroy our
government? Certainly the thing would be possible if Congress would do it
and the people consent to it.... The true construction must depend on the
manifest import of the instrument and the good sense of the community.”
What then had become of the old Republican principle that acts of
undelegated authority were no acts at all? Or had the States really delegated
to the President and two thirds of the Senate the right to “destroy our
government”? If Breckenridge had expressed these ideas in his Kentucky
Resolutions, American history would have contained less dispute as to the
meaning of State-rights and the powers of the central government; but
Breckenridge himself would have then led the Federalist, not the
Republican party.
Breckenridge’s speech was followed by one from Pickering’s colleague,
the young senator from Massachusetts, son of John Adams, the Federalist
President whom Jefferson had succeeded. The Federalist majority in
Massachusetts was divided; one portion followed the lead of the Essex
Junto, the other and larger part yielded unwillingly to the supremacy of
Alexander Hamilton and George Cabot. When in the spring of 1803 both
seats of Massachusetts in the United States Senate became by chance vacant
at once, the Essex Junto wished to choose Timothy Pickering for the long
term. The moderate Federalists set Pickering aside, elected John Quincy
Adams, then thirty-six years old, for the long term, and allowed Pickering
to enter the Senate only as junior senator to a man more than twenty years
younger than himself, whose father had but three years before dismissed
Pickering abruptly and without explanation from his Cabinet. Neither of the
senators owned a temper or character likely to allay strife. The feud
between them was bitter and life-long. From the moment of their
appearance in the Senate they took opposite sides.
Pickering held with Tracy, Griswold, and all the extreme Federalists that
the treaty was void, and that the admission of Louisiana as a State without
the separate consent of each State in the Union was a rupture of the
compact, which broke the tie and left each State free to act independently of
the rest. His colleague was as decided in favor of the Louisiana purchase as
Pickering and Tracy were opposed to it; but he too agreed that the treaty
was outside of the Constitution, and he urged the Senate to take this view.
He believed that even Connecticut would approve of admitting Louisiana if

the Southern majority had the courage to try the experiment. “I firmly
believe, if an amendment to the Constitution, amply sufficient for the
accomplishment of everything for which we have contracted, shall be
proposed, as I think it ought, it will be adopted by the legislature of every
State in the Union.” This was in effect the view which Jefferson had pressed
upon his Cabinet and friends.
Then came Wilson Cary Nicholas. Five years before, in the Virginia
legislature, Nicholas had spoken and voted for the Resolutions moved by
his colleague, John Taylor of Caroline. He then said that if the principle
were once established that Congress had a right to use powers not expressly
delegated, “the tenure by which we hold our liberty would be entirely
subverted: instead of rights independent of human control, we must be
content to hold by the courtesy and forbearance of those whom we have
heretofore considered as the servants of the people.” Instead of using the
same language in 1803, he accepted his colleague’s views as to the extent of
the treaty-making power, and added reasoning of his own. If the spirit of
New England Calvinism contained an element of self-deceit, Virginia
metaphysics occasionally ran into slippery evasion, as the argument of
Nicholas showed. He evaded a straightforward opinion on every point at
issue. The treaty-making power was undefined, he thought, but not
unlimited; the general limitations of the Constitution applied to it, not the
special limitations of power; and of course the treaty must be judged by its
conformity with the general meaning of the compact. He then explained
away the apparent difficulties in the case. “If the third article of the treaty,”
said he, “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 treaty-making power, for it will not be
asserted by any rational man that the territory is incorporated as a State by
the treaty itself.” This incorporation was stipulated to be done “according to
the principles of the Constitution,” and the States might do it or not, at their
discretion: if it could not be done constitutionally, it might be done by
amendment.
Nothing could be more interesting than to see the discomfort with which
the champions of State-rights tossed themselves from one horn to the other
of the Federalist dilemma. The Federalists cared little on which horn their
opponents might choose to impale themselves, for both were equally fatal.

Either Louisiana must be admitted as a State, or must be held as territory. In
the first case the old Union was at an end; in the second case the national
government was an empire, with “inherent sovereignty” derived from the
war and treaty-making powers,—in either case the Virginia theories were
exploded. The Virginians felt the embarrassment, and some of them, like
Nicholas, tried to hide it in a murmur of words and phrases; but the
Republicans of Kentucky and Tennessee were impatient of such restraint,
and slight as it was, thrust it away. The debate was closed by Senator Cocke
of Tennessee, who defied opposition. “I assert,” said he, “that the treaty-
making powers in this country are competent to the full and free exercise of
their best judgment in making treaties without limitation of power.”
On this issue the vote was taken without further discussion, and by
twenty-six to five the Senate passed the bill. Pickering of Massachusetts,
Tracy and Hillhouse of Connecticut, and the two senators Wells and White
from Delaware, were alone in opposition.
The result of these debates in the Senate and House decided only one
point. Every speaker, without distinction of party, agreed that the United
States government had the power to acquire new territory either by
conquest or by treaty; the only difference of opinion regarded the
disposition of this territory after it was acquired. Did Louisiana belong to
the central government at Washington, or to the States? The Federalists
maintained that the central government, representing the States in union,
might, if it pleased, as a consequence of its inherent sovereignty, hold the
rest of America in its possession and govern it as England governed
Jamaica or as Spain was governing Louisiana, but without the consent of
the States could not admit such new territory into the Union. The
Republicans seemed rather inclined to think that new territory acquired by
war or conquest would become at once a part of the general territory
mentioned in the Constitution, and as such might be admitted by Congress
as a State, or otherwise disposed of as the general welfare might require, but
that in either case neither the people nor the States had anything to do with
the matter. At bottom, both doctrines were equally fatal to the old status of
the Union. In one case the States, formed or to be formed, east of the
Mississippi had established a government which could hold the rest of the
world in despotic control, and which bought a foreign people as it might
buy cattle, to rule over them as their owner; in the other case, the

government was equally powerful, and might besides admit the purchased
or conquered territory into the Union as States. The Federalist theory was
one of empire, the Republican was one of assimilation; but both agreed that
the moment had come when the old Union must change its character.
Whether the government at Washington could possess Louisiana as a
colony or admit it as a State, was a difference of no great matter if the
cession were to hold good; the essential point was that for the first time in
the national history all parties agreed in admitting that the government
could govern.

CHAPTER VI.
Hardly was it decided that the government had an inherent right to
acquire territory and annex foreign States, when the next question forced
itself on Congress for settlement,—What were the powers of Congress over
the new territory?
Three paths were open. The safest was to adopt an amendment of the
Constitution admitting Louisiana into the Union and extending over it the
express powers of Congress as they had applied to the old territory of the
United States. The second course was to assume that the new territory
became, by the fact of acquisition, assimilated to the old, and might be
“disposed of” in the same way. The third was to hold it apart as a peculiar
estate, and govern it, subject to treaty stipulations, by an undefined power
implied in the right to acquire,—on the principle that government certainly
had the right to govern what it had the right to buy.
The first plan, which was in effect Jefferson’s original idea, preserved
the theory of the Constitution as far as was possible; but the Republicans
feared the consequences with France and Spain of throwing a doubt on the
legality of the treaty. Another reason for their activity lay in the peculiarities
of their character as a party. The Northern democrats, never strict
constructionists, knew and cared little for the dogmas of their Southern
allies. The Southern Republicans, especially those of the Virginia school,
were honest in their jealousy of the central government; but as a class they
were impatient of control and unused to self-restraint: they liked to do their
will, and counted so surely on their own strength and honesty of purpose
that they could not feel the need of a curb upon their power. None of them
moved. The only man in Congress who showed a sincere wish to save what
could be preserved of the old constitutional theory was Senator Adams of
Massachusetts, who called upon Madison October 28, before the debate, to
ask whether the Executive intended, through any member of either House,
to propose an amendment of the Constitution to carry the treaty into effect.
[80]
Madison talked to him openly, and expressed ideas which as far as they
went were the same with those of Jefferson. For his own part, said Madison,
had he been on the floor of Congress he should have seen no difficulty in
acknowledging that the Constitution had not provided for such a case as

this; that it must be estimated by the magnitude of the object; and that those
who had agreed to it must rely upon the candor of their country for
justification. Probably, when the immediate pressure of special legislation
was past, the matter would be attended to; and if he should have any agency
in concerting the measure, he would request its mover to consult Senator
Adams. There for a month the matter rested, while Congress adopted its
special legislation.
At length, November 25, Senator Adams, becoming impatient, called
again on the Secretary of State, with the draft of an amendment which he
meant to propose. Madison thought it too comprehensive, and suggested a
simple declaration to meet the special case: “Louisiana is hereby admitted
into this Union.” On the same day Adams accordingly moved for a
committee, but could not obtain a seconder. The Senate unanimously
refused even the usual civility of a reference. No more was ever heard of
amending the Constitution.
With almost unanimous consent Louisiana was taken into the Union by
the treaty-making power, without an amendment. This point being fixed,
Congress had also to determine whether the new territory should be
governed by authority drawn from the power of acquisition, or whether it
should be merged in the old territory which Congress had express right to
“dispose of” and regulate at will.
By an act of sovereignty as despotic as the corresponding acts of France
and Spain, Jefferson and his party had annexed to the Union a foreign
people and a vast territory, which profoundly altered the relations of the
States and the character of their nationality. By similar acts they governed
both. Jefferson, in his special Message of October 23, requested Congress to
make “such temporary provisions ... as the case may require.” A select
committee, Randolph being chairman, immediately reported a Bill,
emanating from the Executive.
“It was a startling Bill,” was the criticism[81] of a man who shared in much
legislation, “continuing the existing Spanish government; putting the President in the
place of the King of Spain; putting all the territorial officers in the place of the King’s
officers, and placing the appointment of all these officers in the President alone
without reference to the Senate. Nothing could be more incompatible with our
Constitution than such a government,—a mere emanation of Spanish despotism, in
which all powers, civil and military, legislative, executive, and judicial, were in the
Intendant General, representing the King; and where the people, far from possessing

political rights, were punishable arbitrarily for presuming to meddle with political
subjects.”

The Federalists immediately objected that the powers conferred on the
President by this bill were unconstitutional. The Republicans replied, in
effect, that the Constitution was made for States, not for territories. Rodney
explained the whole intent of his party in advocating the bill: “It shows that
Congress have a power in the territories which they cannot exercise in the
States, and that the limitations of power found in the Constitution are
applicable to States and not to territories.”[82] John Randolph defended the
assumption of power on the ground of necessity, and maintained that the
government of the United States, with respect to this territory, possessed the
powers of European sovereignty: “Gentlemen will see the necessity of the
United States taking possession of this country in the capacity of
sovereigns, in the same extent as that of the existing government of the
province.” The Bill passed Congress by a party vote, and was approved by
Jefferson, October 31,[83] without delay.
The Act of October 31 was a temporary measure rather for taking
possession of the territory than for governing it. Four weeks later, Senator
Breckenridge moved for a committee to prepare a territorial form of
government for Louisiana. Two senators of the State-rights school,—
Jackson and Baldwin of Georgia,—besides Breckenridge and J. Q. Adams,
were appointed on this committee; and they reported, December 30, a Bill
that settled the principle on which the new territory should be governed.
Breckenridge’s Bill divided the purchased country at the 33d parallel,
the line which afterward divided the State of Arkansas from the State of
Louisiana. The country north of that line was named the District of
Louisiana, and, after some dispute, was subjected to the territorial
government of the Indiana Territory, consisting of a governor, secretary, and
judges without a legislature, all controlled by the Ordinance of 1787. This
arrangement implied that Congress considered the new territory as
assimilated to the old, and “disposed of” it by the same constitutional
power.
The northern district contained few white inhabitants, and its
administrative arrangements chiefly concerned Indians; but the southern
district, which received the name “Territory of Orleans,” included an old
and established society, numbering fifty thousand persons. The territory of

Ohio numbered only forty-five thousand persons by the census of 1800,
while the States of Delaware and Rhode Island contained less than seventy
thousand. The treaty guaranteed 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 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.”
Breckenridge’s Bill, which was probably drawn by Madison in co-
operation with the President, created a territorial government in which the
people of Louisiana were to have no share. The governor and secretary
were to be appointed by the President for three years; the legislative council
consisted of thirteen members to be appointed by the President without
consulting the Senate, and was to be convened and prorogued by the
governor as he might think proper. The judicial officers, also appointed by
the President, were to hold office for four years, instead of the usual term of
good behavior. The right to a jury trial was restricted to cases where the
matter in controversy exceeded twenty dollars, and to capital cases in
criminal prosecutions. The slave-trade was restricted by threefold
prohibitions: 1. No slave could be imported from abroad; 2. No slave could
be brought into the territory from the Union who had been imported from
abroad since May 1, 1798; 3. No slave could be introduced into the
territory, “directly or indirectly,” except by an American citizen “removing
into said territory for actual settlement, and being, at the time of such
removal, bona fide owner of such slave,”—the penalty being three hundred
dollars fine and the slave’s freedom.
This Bill seemed to set the new Territory apart, as a peculiar estate, to
be governed by a power implied in the right to acquire it. The debate which
followed its introduction into the Senate was not reported, but the Journal
mentioned that Senator Adams, Jan. 10, 1804, moved three Resolutions, to
the effect that no constitutional power existed to tax the people of Louisiana
without their consent, and carried but three voices with him in support of
the principle.[84] Other attempts were made to arrest the exercise of
arbitrary power without better success, and the Bill passed the Senate, Feb.
18, 1804, after six weeks consideration, by a vote of twenty to five.

Few gaps in the parliamentary history of the Union left so serious a
want as was caused by the failure to report the Senate debate on this Bill;
but the report of the House debate partly supplied the loss, for the Bill
became there a target for attack from every quarter. Michael Leib, one of
the extreme Pennsylvania democrats, began by objecting to the power given
to the governor over the Louisiana legislature as “royal.” His colleague,
Andrew Gregg, objected altogether to the appointment of the council by the
President. Varnum of Massachusetts denounced the whole system, and
demanded an elective legislature. Matthew Lyon, who represented
Kentucky, compared Jefferson to Bonaparte. “Do we not owe something on
this score to principle?” he asked. Speaker Macon took the same ground.
George W. Campbell of Tennessee was more precise. “It really establishes a
complete despotism,” he said; “it does not evince a single trait of liberty; it
does not confer one single right to which they are entitled under the treaty;
it does not extend to them the benefits of the Federal Constitution, or
declare when, hereafter, they shall receive them.” On the other hand Dr.
Eustis, of Boston, took the ground that a despotism was necessary: “I am
one of those who believe that the principles of civil liberty cannot suddenly
be engrafted on a people accustomed to a regimen of a directly opposite
hue.” In contradiction to the language of the treaty and the principles of his
party, he went on to say that the people of Louisiana had no rights: “I
consider them as standing in nearly the same relation to us as if they were a
conquered country.” Other speakers supported him. The Louisianians, it
was said, had shed tears when they saw the American flag hoisted in place
of the French; they were not prepared for self-government. When the treaty
was under discussion, the speakers assumed that the people of Louisiana
were so eager for annexation as to make an appeal to them useless; when
they were annexed, they were so degraded as not to be worth consulting.
The House refused to tolerate such violation of principle, and by the
majority of seventy-four to twenty-three struck out the section which vested
legislative powers in the President’s nominees. John Randolph did not vote;
but his friend Nicholson and the President’s son-in-law, Thomas Mann
Randolph, were in the minority. By fifty-eight to forty-two the House then
adopted an amendment which vested legislative powers, after the first year,
in an elective council; by forty-four to thirty-seven the restriction on jury
trials was rejected; the Act was then limited to two years; and so altered it

passed the House March 17, 1804, several Republicans recording their
votes against it to the end.
When the Bill, thus amended, came back to the Senate, that body,
March 20, summarily disagreed with all the changes made by the House
except the limitation of time, which the Senate further reduced to one year.
This change reconciled the House, not very cheerfully, to recede, and March
23 the Bill, as it passed the Senate, became law by a vote of fifty-one to
forty-five. With the passage of this Act and its twin statute for collecting
duties in the ceded territory, the precedent was complete. Louisiana
received a government in which its people, who had been solemnly
promised all the rights of American citizens, were set apart, not as citizens,
but as subjects lower in the political scale than the meanest tribes of
Indians, whose right to self-government was never questioned.
By these measures the Executive and the Legislature recorded their
decision in regard to the powers of government over national territory. The
Judiciary was not then consulted; but twenty-five years afterward, in the
year 1828, Chief-Justice Marshall was in his turn required to give an
opinion, and he added the final authority of the Supreme Court to the
precedent. With characteristic wisdom he claimed for the government both
the constitutional and the extra-constitutional powers in question. The case
concerned the rights of inhabitants of Florida, who he said—
“Do not participate in political power; they do not share in the government till
Florida shall become a State. In the mean time Florida continues to be a territory of
the United States, governed by virtue of that clause in the Constitution which
empowers Congress ‘to make all needful rules and regulations respecting the territory
or other property belonging to the United States.’ Perhaps the power of governing a
territory belonging to the United States which has not, by becoming a State, acquired
the means of self-government, may result necessarily from the fact that it is not within
the jurisdiction of any particular State, and is within the power and jurisdiction of the
United States. The right to govern may be the inevitable consequence of the right to
acquire territory. Whichever may be the source whence the power is derived, the
possession of it is unquestioned.”[85]

The effect of such a precedent on constitutional principles was certain to
be great. A government competent to interpret its own powers so liberally in
one instance, could hardly resist any strong temptation to do so in others.
The doctrines of “strict construction” could not be considered as the
doctrines of the government after they had been abandoned in this leading
case by a government controlled by strict constructionists. The time came at

last when the opponents of centralization were obliged to review their acts
and to discover the source of their mistakes. In 1856 the Supreme Court
was again required to pronounce an opinion, and found itself confronted by
the legislation of 1803–1804 and the decision of Chief-Justice Marshall in
1828. Chief-Justice Taney and his associates, in the case of Dred Scott, then
reviewed the acts of Jefferson and his friends in 1803–1804, and
pronounced upon them the final judgment of the State-rights school.
Chief-Justice Taney affirmed the right of the government to buy
Louisiana and to govern it, but not to govern it as a part of the old territory
over which the Constitution gave Congress unlimited power. Louisiana was
governed, according to Marshall’s dictum, by a power which was “the
inevitable consequence of the right to acquire territory,”—a power limited
by the general purposes of the Constitution, and therefore not extending to a
colonial system like that of Europe. Territory might thus be acquired; but it
was acquired in order to become a State, and not to be held as a colony and
governed by Congress with absolute authority; citizens who migrated to it
“cannot be ruled as mere colonists dependent upon the will of the general
government, and to be governed by any laws it may think proper to
impose.” The chief-justice dwelt on this point at much length; the federal
government, he said, “cannot, when it enters a territory of the United States,
put off its character and assume discretionary or despotic powers which the
Constitution has denied it.”
Even this emphatic opinion, which implied that all the Louisiana
legislation was unconstitutional, did not satisfy Justice Campbell, a
Georgian, who represented the ultimate convictions of the strict
constructionists. Campbell reviewed the national history in search of
evidence “that a consolidated power had been inaugurated, whose subject
comprehended an empire, and which had no restriction but the discretion of
Congress.” He held that the Constitution had been plainly and repeatedly
violated; “and in reference to the precedent of 1804, the wisest statesmen
protested against it, and the President more than doubted its policy and the
power of the government.” The Court, he said, could not undertake to
conquer their scruples as the President and Congress had done. “They
acknowledge that our peculiar security is in the possession of a written
Constitution, and they cannot make it blank paper by construction.”

This sneer at President Jefferson was almost the last official expression
of strict-constructionist principles. Of its propriety the Court itself was the
best judge, but its historical interest could not be denied.
If Justice Campbell and Chief-Justice Taney were right, according to the
tenets of their school the legislation of 1803–1804 was plainly
unconstitutional. In that case, by stronger reasoning the treaty itself was
unconstitutional and void from the beginning; for not only did Jefferson’s
doubts to which Campbell alluded refer to the treaty and not to the
legislation, but the treaty was at least equally responsible with the laws for
making, in 1803, a situation which required what Campbell denounced,
—“the supreme and irresistible power which is now claimed for Congress
over boundless territories, the use of which cannot fail to react upon the
political system of the States to its subversion.”
With the law the story need not concern itself, but the view of American
history thus suggested was peculiarly interesting. If the chief-justice and his
associate expressed correctly the opinions of the strict-constructionist
school, the government had at some time been converted from a
government of delegated powers into a sovereignty. Such was the belief of
Campbell’s political friends. Four years after the Dred Scott decision was
declared, the State of South Carolina, in Convention, issued an “Address to
the People of the Slave-holding States,” justifying its act of secession from
the Union.
“The one great evil,” it declared, “from which all other evils have flowed, is the
overthrow of the Constitution of the United States. The government of the United
States is no longer the government of confederated republics, but of a consolidated
democracy. It is no longer a free government, but a despotism.”

If the strict constructionists held this opinion, they necessarily believed
that at some moment in the past the government must have changed its
character. The only event which had occurred in American history so large
in its proportions, so permanent in its influence, and so cumulative in its
effects as to represent such a revolution was the Louisiana purchase; and if
the Louisiana purchase was to be considered as having done what the
Federalists expected it to do,—if it had made a new constitution and a
government of sovereign powers,—the strict constructionists were not only
consenting parties to the change, they were its authors.

From every point of view, whether Justice Campbell and the secession
convention of South Carolina were right or wrong in their historical
judgment, the Louisiana purchase possessed an importance not to be
ignored. Even in 1804 the political consequences of the act were already too
striking to be overlooked. Within three years of his inauguration Jefferson
bought a foreign colony without its consent and against its will, annexed it
to the United States by an act which he said made blank paper of the
Constitution; and then he who had found his predecessors too monarchical,
and the Constitution too liberal in powers,—he who had nearly dissolved
the bonds of society rather than allow his predecessor to order a dangerous
alien out of the country in a time of threatened war,—made himself
monarch of the new territory, and wielded over it, against its protests, the
powers of its old kings. Such an experience was final; no century of slow
and half-understood experience could be needed to prove that the hopes of
humanity lay thenceforward, not in attempting to restrain the government
from doing whatever the majority should think necessary, but in raising the
people themselves till they should think nothing necessary but what was
good.
Jefferson took a different view. He regarded, or wished to regard, the
Louisiana treaty and legislation as exceptional and as forming no precedent.
While he signed the laws for governing the territory, he warmly objected to
the establishment of a branch bank of the United States at New Orleans.
“This institution is one of the most deadly hostility existing against the
principles and form of our Constitution,” he wrote to Gallatin;[86] “ought we
to give further growth to an institution so powerful, so hostile?” Gallatin
was clear that the business of the Treasury required such aid, and Jefferson
again acquiesced. Gallatin was also allowed and encouraged to enforce the
restrictions on the importation of slaves into Louisiana.[87] “It seems that
the whole Cabinet,” wrote the French chargé to his government, “put the
utmost weight on this prohibition. Mr. Jefferson is earnestly bent on
maintaining it, and his Secretary of the Treasury takes the severest measures
to insure its execution.”
As though the annexation of Louisiana alone made not enough change
in the old established balances of the Constitution, Congress took up
another matter which touched the mainspring of the compact. A new
Presidential election was at hand. The narrow escape of 1800 warned the

party in power not again to risk society by following the complicated
arrangements of 1788. In the convention which framed the Constitution no
single difficulty was more serious than that of compromising the question
of power between the large and small States. Delaware, New Jersey, Rhode
Island, Maryland, and Connecticut were well aware that the large States
would take the lion’s share of power and patronage; they knew that except
by accident no citizen of theirs could ever reach the Presidency; and as
accident alone could give the small States a chance, accident was to them a
thing of value. Whatever tended to make their votes decisive was an
additional inducement with them to accept the Constitution. The Vice-
presidency, as originally created, more than doubled their chance of getting
the Presidency, and was invented chiefly for this purpose; but this was not
all. As the number of electoral votes alone decided between President and
Vice-president, a tie-vote was likely often to occur; and such a tie was
decided by the House of Representatives, where another bribe was
intentionally offered to the small States by giving the election to the State
delegations voting as units, so that the vote of Delaware weighed as heavily
as the vote of Pennsylvania.
The alarm caused by Burr’s rivalry with Jefferson in February, 1801,
satisfied the Republican party that such a door to intrigue ought not to be
left open. Oct. 17, 1803, before the Louisiana treaty was taken up, an
amendment to the Constitution was moved by friends of the Administration
in the House. This, which took shape at length as the Twelfth Amendment,
obliged the members of the electoral college to distinguish in their ballots
the persons voted for as President and Vice-president.
Slight as this change might appear, it tended toward centralizing powers
hitherto jealously guarded. It swept away one of the checks on which the
framers had counted to resist majority rule by the great States. Lessening
the influence of the small States, and exaggerating the office of President by
lowering the dignity of Vice-president, it made the processes of election and
government smoother and more efficient,—a gain to politicians, but the
result most feared by the State-rights school. The change was such as
Pennsylvania or New York might naturally want; but it ran counter to the
theories of Virginia Republicans, whose jealousy of Executive influence
had been extreme.
Roger Griswold said with prophetic emphasis:[88]—

“The man voted for as Vice-president will be selected without any decisive view
to his qualifications to administer the government. The office will generally be carried
into the market to be exchanged for the votes of some large States for President; and
the only criterion which will be regarded as a qualification for the office of Vice-
president will be the temporary influence of the candidate over the electors of his
State.... The momentary views of party may perhaps be promoted by such
arrangements, but the permanent interests of the country are sacrificed.”

Griswold held that true reform required abolition of the office; and in
this opinion his old enemy John Randolph warmly agreed. In the Senate,
had the question risen as a new one, perhaps a majority might have favored
abolition, for the results of retaining the office were foreseen; but the
discussion was hampered by the supposed popular will and by express votes
of State legislatures, and Congress felt itself obliged to follow a prescribed
course. The amendment was adopted by the usual party vote; and the
Federalists thenceforward were able to charge Jefferson and his party with
responsibility not only for stripping the small States of an advantage which
had made part of their bargain, but also for putting in the office of
President, in case of vacancies, men whom no State and no elector intended
for the post.

CHAPTER VII.
The extraordinary success which marked Jefferson’s foreign relations in
the year 1803 was almost equally conspicuous in domestic affairs. The
Treasury was as fortunate as the Department of State. Gallatin silenced
opposition. Although the customs produced two millions less than in 1802,
yet when the Secretary in October, 1803, announced his financial
arrangements, which included the purchase-money of fifteen million dollars
for Louisiana, he was able to provide for all his needs without imposing a
new tax. The treaty required the issue of six-per-cent bonds for eleven
million two hundred and fifty thousand dollars, redeemable after fifteen
years. These were issued; and to meet the interest and sinking fund Gallatin
added from his surplus an annual appropriation of seven hundred thousand
dollars to his general fund; so that the discharge of the whole debt would
take place within the year 1818, instead of eighteen months earlier, as had
been intended. New Orleans was expected to provide two hundred thousand
dollars a year toward the interest. Of the remaining four millions, the
Treasury already held half, and Gallatin hoped to provide the whole from
future surplus, which he actually did.
This was ideal success. On a sudden call, to pay out four million dollars
in hard money, and add seven hundred thousand dollars to annual
expenditure, without imposing a tax, and with a total revenue of eleven
millions, was a feat that warranted congratulations. Yet Gallatin’s success
was not obtained without an effort. As usual, he drew a part of his estimated
surplus from the navy. He appealed to Jefferson to reduce the navy
estimates from nine hundred thousand to six hundred thousand dollars.[89]
“I find that the establishment now consists of the ‘Constitution,’ the
‘Philadelphia,’ each 44, and five small vessels, all of which are now out, and intended
to stay the whole year, as the crew is enlisted for two years. In my opinion one half of
the force,—namely, one frigate and two or three small vessels,—were amply
sufficient.”

Jefferson urged the reduction,[90] and Secretary Smith consented. The
navy estimates were reduced to six hundred and fifty thousand dollars, and
on the strength of this economy Gallatin made his calculation. As he
probably foresaw, the attempt failed. Whether in any case Smith could have

effected so great a retrenchment was doubtful; but an event occurred which
made retrenchment impossible.
The war with Tripoli dragged tediously along, and seemed no nearer its
end at the close of 1803 than eighteen months before. Commodore Morris,
whom the President sent to command the Mediterranean squadron, cruised
from port to port between May, 1802, and August, 1803, convoying
merchant vessels from Gibraltar to Leghorn and Malta, or lay in harbor and
repaired his ships, but neither blockaded nor molested Tripoli; until at
length, June 21, 1803, the President called him home and dismissed him
from the service. His successor was Commodore Preble, who Sept. 12,
1803, reached Gibraltar with the relief-squadron which Secretary Gallatin
thought unnecessarily strong. He had the “Constitution,” of 44 guns, and
the “Philadelphia,” of 38; the four new brigs just built,—the “Argus” and
the “Syren,” of 16 guns, the “Nautilus” and the “Vixen,” of 14 guns; and the
“Enterprise,” of 12. With this force Preble set energetically to work.
Tripoli was a feeble Power, and without much effort could be watched
and blockaded; but if the other governments on the coast should make
common cause against the United States, the task of dealing with them was
not so easy. Morocco was especially dangerous, because its ports lay on the
ocean, and could not be closed even by guarding the Straits. When Preble
arrived, he found Morocco taking part with Tripoli. Captain Bainbridge,
who reached Gibraltar in the “Philadelphia” August 24, some three weeks
before Preble arrived, caught in the neighborhood a Moorish cruiser of 22
guns with an American brig in its clutches. Another American brig had just
been seized at Mogador. Determined to stop this peril at the outset, Preble
united to his own squadron the ships which he had come to relieve, and
with this combined force,—the “Constitution,” 44; the “New York,” 36; the
“John Adams,” 28; and the “Nautilus,” 14,—sending the “Philadelphia” to
blockade Tripoli, he crossed to Tangiers October 6, and brought the
Emperor of Morocco to reason. On both sides prizes and prisoners were
restored, and the old treaty was renewed. This affair consumed time; and
when at length Preble got the “Constitution” under way for the Tripolitan
coast, he spoke a British frigate off the Island of Sardinia, which reported
that the “Philadelphia” had been captured October 21, more than three
weeks before.

The loss greatly embarrassed Preble. The “Philadelphia” was, next to
the “Constitution,” his strongest ship. Indeed he had nothing else but his
own frigate and small brigs of two and three hundred tons; but the accident
was such as could not fail sometimes to happen, especially to active
commanders. Bainbridge, cruising off Tripoli, had chased a Tripolitan
cruiser into shoal water, and was hauling off, when the frigate struck on a
reef at the mouth of the harbor. Every effort was made without success to
float her; but at last she was surrounded by Tripolitan gunboats, and
Bainbridge struck his flag. The Tripolitans, after a few days’ work, floated
the frigate, and brought her under the guns of the castle. The officers
became prisoners of war, and the crew, in number three hundred or more,
were put to hard labor.
The affair was in no way discreditable to the squadron. Morris had been
recalled in disgrace for over-caution, and Bainbridge was required to be
active. The Tripolitans gained nothing except the prisoners; for at
Bainbridge’s suggestion Preble, some time afterward, ordered Stephen
Decatur, a young lieutenant in command of the “Enterprise,” to take a
captured Tripolitan craft re-named the “Intrepid,” and with a crew of
seventy-five men to sail from Syracuse, enter the harbor of Tripoli by night,
board the “Philadelphia,” and burn her under the castle guns. The order was
literally obeyed. Decatur ran into the harbor at ten o’clock in the night of
Feb. 16, 1804, boarded the frigate within half gun-shot of the Pacha’s
castle, drove the Tripolitan crew overboard, set the ship on fire, remained
alongside until the flames were beyond control, and then withdrew without
losing a man, while the Tripolitan gunboats and batteries fired on him as
rapidly as want of discipline and training would allow. Gallant and
successful as the affair was, it proved only what was already well known,
that the Tripolitans were no match for men like Decatur and his
companions; and it left Preble, after losing in the “Philadelphia” nearly one
third of his force, still strong enough to do the work that needed to be done.
The frigate had been built by the citizens of Philadelphia, and given to
the government in 1799. So far as the ship was concerned, the loss was not
much regretted, for the Republicans when in opposition had strenuously
opposed the building of frigates, and still considered them a danger rather
than a defence. Although the “Philadelphia” was the newest ship in the
service, a companion to the “Constellation,” the “Congress,” and the

“Chesapeake,” she was never replaced; two 18-gun brigs, the “Hornet” and
the “Wasp,” were constructed instead of one 38-gun frigate; and these were
the last sea-going vessels built under Jefferson’s administration. The true
annoyance was not that a frigate had been lost, but that the captivity and
enslavement of the crew obliged Government to rescue them and to close
the war, by a kind of expenditure which the Republican party disliked.
Bainbridge’s report of his capture, which had happened at the end of
October, 1803, was sent to Congress March 20, 1804, in the last week of the
session. The President sent with it a brief Message recommending Congress
to increase the force and enlarge expenses in the Mediterranean. As Gallatin
never willingly allowed his own plans for the public service to be deranged,
Congress adopted a new means for meeting the new expense. Although the
Treasury held a balance of $1,700,000, Gallatin would not trench upon this
fund, but told Randolph, who was Chairman of the Ways and Means
Committee, that the specie in the Treasury could not be safely reduced
below that amount.[91] He informed Joseph Nicholson that $150,000 was
the utmost sum he could spare. The sum wanted was $750,000 per annum.
A Bill was introduced which imposed an additional duty of 2½ per cent on
all imports that paid duty ad valorem. These imports had been divided, for
purposes of revenue, into three classes, taxed respectively 12½, 15, and 20
per cent; the increase raised them to 15, 17½, and 22½ per cent. The
average ad valorem duty was before about 13½; the additional tax raised it
above 16 per cent; and the Republicans preferred this method of raising
money as in every way better than the system of internal taxation. After
imposing the additional duty of 2½ per cent,—a duty intended to produce
about $750,000,—the Bill made of it a separate Treasury account, to be
called the “Mediterranean Fund,” which was to last only as long as the
Mediterranean war should last, when the 2½ per cent duty was to cease
three months after a general peace.
The Mediterranean Fund was meant as a protest against loose
expenditure,—a dike against the impending flood of extravagance. The
Mediterranean war was the first failure of President Jefferson’s theory of
foreign relations, and the Mediterranean Fund was the measure of the error
in financial form. No reproach henceforward roused more ill temper among
Republicans than the common charge that their elaborate financial
precautions and formalities were a deception, and that the Mediterranean

Fund was meant to conceal a change of principle and a return to Federalist
practices. Even in the first words of the debate, Roger Griswold told them
that their plausible special fund was “perfectly deceptive,” and amounted to
nothing. John Randolph retaliated by declaring that the Republican
government consisted of men who never drew a cent from the people
except when necessity compelled it; and Griswold could not assert, though
he might even then foresee, that for ten years to come, Randolph would
denounce the extravagance and waste of the men whom he thus described.
The annexation of Louisiana, the constitutional amendment in regard to
the Vice-presidency, the change of financial practices foreshadowed by the
Mediterranean Fund, were signs of reaction toward nationality and energy
in government. Yet the old prejudices of the Republican party had not yet
wholly lost their force. Especially the extreme wing, consisting of men like
John Randolph and W. B. Giles, thought that a substantial reform should be
attempted. Increase of power encouraged them to act. The party, stimulated
by its splendid success and irresistible popularity, at length, after long
hesitation, prepared for a trial of strength with the last remnant of
Federalism,—the Supreme Court of the United States.
A year of truce between Congress and the Supreme Court had followed
the repeal of the Judiciary Act. To prevent Chief-Justice Marshall and his
associates from interfering with the new arrangements, Congress in
abolishing the circuit courts in 1801 took the strong measure of suspending
for more than a year the sessions of the Supreme Court itself. Between
December, 1801, and February, 1803, the court was not allowed to sit. Early
in February, 1803, a few days before the Supreme Court was to meet, after
fourteen months of separation, President Jefferson sent an ominous
Message to the House of Representatives.
“The enclosed letter and affidavits,” he said,[92] “exhibiting matter of complaint
against John Pickering, district judge of New Hampshire, which is not within
executive cognizance, I transmit them to the House of Representatives, to whom the
Constitution has confided a power of instituting proceedings of redress if they shall be
of opinion that the case calls for them.”

The enclosed papers tended to show that Judge Pickering, owing to
habits of intoxication or other causes, had become a scandal to the bench,
and was unfit to perform his duties. At first sight the House of
Representatives might not understand what it had to do with such a matter;

but the President’s language admitted no doubt of his meaning. The
Constitution said that the House of Representatives “shall have the sole
power of impeachment;” and “all civil officers of the United States shall be
removed from office on impeachment for, and conviction of, treason,
bribery, or other high crimes and misdemeanors.” Jefferson’s Message
officially announced to the House the President’s opinion that Judge
Pickering’s conduct was a misdemeanor within the reach of impeachment.
The House referred the Message to a committee of five, controlled by
Joseph Nicholson and John Randolph. A fortnight later, Nicholson reported
a resolution ordering the impeachment; and before the session closed, the
House, by a vote of forty-five to eight, adopted his report, and sent
Nicholson and Randolph to the bar of the Senate to impeach Judge
Pickering of high crimes and misdemeanors. March 3, 1803, the last day of
the session, the two members delivered their message.
Precisely as the House, by the President’s invitation, was about to
impeach Judge Pickering, the Supreme Court, through the Chief-Justice’s
mouth, delivered an opinion which could be regarded in no other light than
as a defiance. Chief-Justice Marshall’s own appointment had been one of
those made by the last President between Dec. 12, 1800, and March 4,
1801, which Jefferson called an “outrage on decency,”[93] and which, except
as concerned life offices, he held to be “nullities.” His doctrine that all
appointments made by a retiring President were nullities, unless made with
the consent of the President elect, rested on the argument that the retiring
President was no longer selecting his own but his successor’s agents.
Perhaps it involved also the favorite idea that the election of 1800 was
something more than a change of Presidents,—that it was a real revolution
in the principle of government. Any theory was sufficient for the Executive,
but executive theories did not necessarily bind the Judiciary. Among the
nominations which, like the appointment of Marshall, were obnoxious to
Jefferson, was that of William Marbury as justice of the peace for five years
for the District of Columbia. The nomination was sent to the Senate March
2, 1801, and was approved the next day, a few hours before Jefferson took
his oath of office. The commission, regularly made out, signed by the
President, countersigned by John Marshall the acting Secretary of State, and
duly sealed, was left with other documents on the table in the State
Department, where it came into the possession of Attorney-General

Lincoln, acting as President Jefferson’s Secretary of State. Jefferson, having
decided that late appointments were nullities, retained Marbury’s
commission. Marbury, at the December term of 1801, moved the Supreme
Court for a Rule to Secretary Madison to show cause why a mandamus
should not issue commanding him to deliver the document. The Rule was
duly served, and the case argued in December, 1801; but the Judiciary Act
having suspended for fourteen months the sessions of the Supreme Court,
the Chief-Justice did not deliver his opinion until Feb. 24, 1803.[94]
The strongest admirers of Marshall admitted that his manner of dealing
with this case was unusual. Where a judgment was to turn on a question of
jurisdiction, the Court commonly considered that point as first and final. In
the case of Marbury the Court had no original jurisdiction, and so decided;
but instead of beginning at that point and dismissing the motion, the Court
began by discussing the merits of the case, and ruled that when a
commission had been duly signed and sealed the act was complete, and
delivery was not necessary to its validity. Marbury’s appointment was
complete; and as the law gave him the right to hold for five years,
independent of the Executive, his appointment was not revocable: “To
withhold his commission, therefore, is an act deemed by the Court not
warranted by law, but violative of a legal vested right.”
This part of the decision bore the stamp of Marshall’s character. The
first duty of law, as he understood it, was to maintain the sanctity of
pledged word. In his youth society had suffered severely from want of will
to enforce a contract. The national government, and especially the judiciary,
had been created to supply this want by compelling men to perform their
contracts. The essence of the opinion in Marbury’s case was that the
Executive should be held to the performance of a contract, all the more
because of his personal repugnance. Marshall ruled that Marbury had to his
commission a vested legal right of which the Executive could not deprive
him; and although the Court could not intermeddle with the prerogatives of
the Executive, it might and would command a head of department to
perform a duty not depending on Executive discretion, but on particular
Acts of Congress and the general principles of law. The mandamus might
issue, but not from the Supreme Court, which had appellate jurisdiction
only. In other words, if Marbury chose to apply for the mandamus to Judge

Cranch and the District Court, he might expect the success of his
application.
The decision in Marbury’s case naturally exasperated Jefferson; but the
chief-justice knew the point beyond which he could not go in asserting the
jurisdiction of his court, and was content to leave the matter as it stood.
Marbury never applied for the mandamus in the court below. The opinion in
the case of Marbury and Madison was allowed to sleep, and its language
was too guarded to furnish excuse for impeachment; but while the President
was still sore under the discourtesy of Marshall’s law, another member of
the Supreme Bench attacked him in a different way. If one judge in the
United States should have known the peril in which the judiciary stood, it
was Justice Samuel Chase of Maryland, who had done more than all the
other judges to exasperate the democratic majority. His overbearing
manners had twice driven from his court the most eminent counsel of the
circuit; he had left the bench without a quorum in order that he might make
political speeches for his party; and his contempt for the popular will was
loudly expressed. In the cases of Fries and Callender, in 1800, he had
strained the law in order to convict for the government; and inasmuch as his
energy was excess of zeal, for conviction was certain, he had exposed
himself to the charge of over-officiousness in order to obtain the chief-
justice’s chair, which was given to Marshall. That he was not impeached
after the change of administration proved the caution of the Republican
party; but by this neglect Congress seemed to have condoned his old
offences, or at least had tacitly consented to let their punishment depend on
the judge’s future good behavior.
Unluckily Chase’s temper knew no laws of caution. He belonged to the
old class of conservatives who thought that judges, clergymen, and all
others in authority should guide and warn the people. May 2, 1803, barely
two months after Marshall’s defiance of the President in Marbury’s case and
the impeachment of Pickering, Justice Chase addressed the grand jury at
Baltimore on the democratic tendencies of their local and national
government.[95]
“Where law is uncertain, partial, or arbitrary,” he said; “where justice is not
impartially administered to all; where property is insecure, and the person is liable to
insult and violence without redress by law,—the people are not free, whatever may be
their form of government. To this situation I greatly fear we are fast approaching....
The late alteration of the Federal judiciary by the abolition of the office of the sixteen

circuit judges, and the recent change in our State Constitution by the establishing of
universal suffrage, and the further alteration that is contemplated in our State judiciary
(if adopted) will in my judgment take away all security for property and personal
liberty. The independence of the national judiciary is already shaken to its foundation,
and the virtue of the people alone can restore it.... Our republican Constitution will
sink into a mobocracy,—the worst of all possible governments.... The modern
doctrines by our late reformers, that all men in a state of society are entitled to enjoy
equal liberty and equal rights, have brought this mighty mischief upon us; and I fear
that it will rapidly progress until peace and order, freedom and property, shall be
destroyed.”

At the moment of Justice Chase’s outburst to the Baltimore grand jury,
the President was at Washington deeply interested in the Louisiana
business, and unaware that on the day when Chase delivered his tirade
Livingston and Monroe in Paris were signing their names to a treaty which
put the Administration beyond danger from such attacks. When he saw in
the newspapers a report of what had been said from the bench at Baltimore,
he wrote to Joseph Nicholson, in whose hands already lay the management
of Pickering’s impeachment:[96]—
“You must have heard of the extraordinary charge of Chase to the grand jury at
Baltimore. Ought this seditious and official attack on the principles of our
Constitution and on the proceedings of a State to go unpunished; and to whom so
pointedly as yourself will the public look for the necessary measures? I ask these
questions for your consideration; for myself, it is better that I should not interfere.”

“Non-intervention,” according to Talleyrand, “is a word used in politics
and metaphysics, which means very nearly the same thing as intervention.”
The event proved that non-intervention was wise policy; but Jefferson was
somewhat apt to say that it was better he should not interfere in the same
breath with which he interfered. The warning that he could not officially
interfere seemed to imply that the quarrel was personal; for in the case of
Pickering he had interfered with decision. If this was his view, the success
of any attack upon Chase would be a gain to him, and he was so ordering as
to make failure a loss only to those who undertook it. Nicholson, hot-
headed though he was, did not enter readily into this hazardous venture. He
reflected upon it all summer, and consulted the friends on whose support he
depended. Macon wrote to him a letter of unusual length,[97] suggesting
grave doubts whether a judge ought to be impeached for expressing to a
grand jury political opinions which every man was at liberty to hold and
express elsewhere, and closed by announcing the conviction that if any
attempt were made to impeach, Nicholson ought not to be the leader. In this

opinion Macon was evidently right, for Chase’s friends could not fail to
suggest that Nicholson was to be rewarded by an appointment to Chase’s
vacant seat on the Supreme Bench; but the House of Representatives
contained no other leader whose authority, abilities, and experience
warranted him in taking so prominent a part, unless it were John Randolph.
A worse champion than Randolph for a difficult cause could not be
imagined. Between him and Jefferson little sympathy existed. Randolph had
quarrelled with the branch of his family to which Jefferson was closely
allied; and his private feelings stood in the way of personal attachment. His
intimates in Congress were not chiefly Virginians, but men like Macon of
North Carolina, Joseph Bryan of Georgia, and Nicholson of Maryland,—
independent followers of Virginia doctrine, who owned no personal
allegiance to Jefferson. That the President should have been willing to let
such a man take entire responsibility for an impeachment was natural; but
had Jefferson directed the step, he would never have selected Randolph to
manage a prosecution on which the fate of his principles closely depended.
Randolph was no lawyer; but this defect was a trifling objection compared
with his greater unfitness in other respects. Ill-balanced, impatient of
obstacles, incapable of sustained labor or of methodical arrangement,
illogical to excess, and egotistic to the verge of madness, he was sparkling
and formidable in debate or on the hustings, where he could follow the
wayward impulse of his fancy running in the accustomed channels of his
thought; but the qualities which helped him in debate were fatal to him at
the bar.
Such was the origin of a measure which did more to define the character
of the government than any other single event in Jefferson’s first
administration, except the purchase of Louisiana. Randolph threw himself
into the new undertaking; for he sincerely believed in the justice of his
cause, and was alive to the danger of leaving the Supreme Court in the
hands of Marshall and men of his stamp who were determined to
consolidate the government. Yet the chance of obtaining a conviction, on a
charge no stronger than that of the Baltimore address, was so slight as to
incline Randolph against risking it; and he decided to insure success by
putting the cases of Fries and Callender in the foreground.
This was not easily done. Pickering’s impeachment had been brought
before the House by a Message from the President; but in Chase’s case the

President preferred not to take part. Randolph was forced to escape the
difficulty by an awkward manœuvre. During the autumn and early winter of
1803 Congress was busy with Louisiana legislation, and had no leisure for
other matters; but soon after the new year Randolph rose and said[98] that in
the course of the last session Mr. Smilie of Pennsylvania had made some
statements in regard to Justice Chase’s conduct which seemed to call for
notice, but that want of time had precluded action. Finding his attention
thus drawn to the matter, Randolph gravely continued, he had felt it his duty
to investigate Smilie’s charges; and having convinced himself that ground
for impeachment existed, he asked the House to appoint a committee of
inquiry. Such an introduction of a great constitutional struggle was not
imposing; but party discipline was at its highest point, and after some
vigorous Federalist resistance Randolph carried his motion by a vote of
eighty-one to forty. Three Northern democrats voted with the Federalists;
and although the defection seemed not serious so far as concerned the
scientific Dr. Samuel L. Mitchill, whose political principles were liberal
enough at all times, some importance even then attached to the vote of John
Smith of New York, who was about to enter the Senate and to act as one of
Chase’s judges.
Meanwhile Judge Pickering’s trial began. The Senate, “sitting as a Court
of Impeachments,” listened while Nicholson, Randolph, Rodney, and six or
seven other Republican members “exhibited the grand inquest of the
nation.” The character of a court was taken in all the forms of summons.
The Secretary of the Senate signed, and the Sergeant-at-Arms served, the
summons to Judge Pickering, while the witnesses were regularly
subpœnaed by the Secretary, “to appear before the Senate of the United
States in their capacity of a Court of Impeachments,” and the subpœnas
were served by the marshals of the district courts.
Judge Pickering was ordered to appear on the 2d of March, 1804; but
when the day arrived, and the Senate was assembled, with the managers in
attendance, John Pickering’s name was three times called without an
answer. Vice-President Burr then submitted to the Senate a petition from
Jacob Pickering, son of the impeached judge, praying the court to postpone
the trial that he might have time to collect evidence with the view of
showing that when the alleged crimes were committed, and two years
before as well as ever since, the judge was wholly deranged, incapable of

transacting any kind of business which required the exercise of reason, and
therefore incapable of corruption of judgment, no subject of impeachment,
and amenable to no tribunal for his actions. With this petition a letter from
Robert G. Harper was laid before the court, requesting to be allowed to
appear on the part of the petitioner in support of the petition. Harper, having
been invited to a seat within the bar, asked whether he might be heard, not
as counsel for Judge Pickering, who being insane could give no authority
for the purpose, but as agent for the petitioner, to ask a postponement.
The question threw all parties into agitation. The managers instantly
protested that Harper in such a character could not be heard. The senators
retired for consultation, and debated all day without coming to a decision.
The impeaching party dreaded the alternative to which the proof of insanity
must force them,—of saying either that an insane man was responsible, or
that a man mentally irresponsible might still be guilty of “high crimes and
misdemeanors” for purposes of impeachment. Senator Jackson of Georgia,
who had always the merit of speaking with candor, avowed the fear that
presently Judge Chase’s friends would come and pretend that he too was
mad;[99] but he could not, even with Breckenridge’s help, carry his point.
The Northern democrats flinched. Six of them and three Southern senators
voted with the Federalists, and admitted Harper in his volunteer character.
Harper put in his testimony, which was decisive in regard to the
insanity; but when he rose to do so, the managers retired, saying that they
considered themselves under no obligation to discuss a preliminary question
raised by an unauthorized third party. The Senate went on with its session.
The managers were obliged to maintain that insanity was no bar to
impeachment, and the Northern democrats were forced to accept the
doctrine.[100]
This view of impeachment, so far as concerned the judiciary, had strong
arguments in its favor. Although the Constitution made judges’ tenure of
office dependent on their good behavior, it provided no other means than
that of impeachment for their removal. Even in England and in
Massachusetts, judges could be removed by the joint action of Legislature
and Executive; but this was not the case under the Constitution of the
United States. If insanity or any other misfortune was to bar impeachment,
the absurdity followed that unless a judge committed some indictable
offence the people were powerless to protect themselves. Even Federalists

might reasonably assume that the people had never placed themselves in
such a situation, but that in making their judges subject to impeachment for
misdemeanors they had meant to extend the scope of impeachment, and to
include within it all cases of misbehavior which might require a removal
from office for the good of the public service.
This ground was fairly taken by the impeachers, though not formally
expressed. When Harper had put in his evidence and retired, the Senate sent
again for the managers, who occupied one day in supplying evidence, and
then left their case without argument in the hands of the court. The Senate
found itself face to face with an issue beyond measure delicate, which had
never been discussed, but from which escape was impossible. Acquittal of
Pickering would probably be fatal to the impeachment of Chase, and would
also proclaim that the people could not protect themselves from
misbehavior in their judicial servants. On the other hand, conviction would
violate the deep principle of law and justice that an insane man was not
responsible for his acts, and not amenable to any earthly tribunal. Virginians
like Randolph and Wilson Cary Nicholas, or John Breckenridge, were ready
to make a precedent which should fix the rule that impeachment need not
imply criminality, and might be the equivalent to removal by address. The
Northern democrats were not unwilling to accept this view; but their
consciences revolted against saying “guilty” where no guilt was implied or
proved.
To escape this objection a compromise was proposed and adopted. The
Federalists would have forced senators to say in their final vote that Judge
Pickering was “guilty” or “not guilty” of high crimes and misdemeanors.
Senator Anderson of Tennessee eluded this challenge by moving for a yea-
and-nay vote on the question whether Pickering was guilty “as charged.”
The nine Federalists alone opposed his motion, which was at length adopted
by a majority of two to one. By a vote of nineteen to seven Judge Pickering
was declared “guilty as charged” in the articles of impeachment; and by a
vote of twenty to six the Senate resolved that he ought to be removed from
office.
Two of the Federalist senators refused to vote, on the ground that the
proceedings were irregular; Senator Bradley of Vermont, Senator
Armstrong of New York, and Senator Stone of North Carolina tacitly
protested by absenting themselves. In a Senate of thirty-four members only

twenty-six voted, and only nineteen voted for conviction. So confused,
contradictory, and irregular were these proceedings that Pickering’s trial
was never considered a sound precedent. That an insane man could be
guilty of crime, and could be punished on ex parte evidence, without a
hearing, with not even an attorney to act in his behalf, seemed such a
perversion of justice that the precedent fell dead on the spot. Perhaps, from
the constitutional point of view, a more fatal objection was that in doing
what the world was sure to consider an arbitrary and illegal act, the
Virginians failed to put on record the reasons which led them to think it
sound in principle. In the Louisiana purchase they had acted in a way
equally arbitrary, but they had given their reasons for thinking themselves
in the right. In Pickering’s case not a word was publicly spoken on either
side; a plainly extra-constitutional act was done without recording the
doctrine on which it rested.
The Republicans showed no hesitation. John Randolph’s orders were
obeyed without open protest. Senator Bradley of Vermont talked strongly in
private against them; Senator Armstrong of New York would not support
them; barely half the Senate voted in their favor; but Randolph forced his
party forward without stopping to see how well his steps were taken, or
how far he was likely to go. As though to intimidate the Senate, March 6,
the day after the managers were defeated on the vote to hear Harper,
Randolph reported to the House a resolution ordering the impeachment of
Justice Chase. March 12, the day when the Senate voted Pickering guilty,
the House took up Randolph’s report, and the majority, without debate,
voted by seventy-three to thirty-two that Chase should be impeached. Not a
Republican ventured to record a vote in the negative. The next morning
Randolph again appeared at the bar of the Senate, and announced that the
House of Representatives would in due time exhibit articles of
impeachment against Samuel Chase.

CHAPTER VIII.
As the year 1804 began, with Louisiana annexed, the Electoral
Amendment secured, and the impeachments in prospect, the Federalists in
Congress wrought themselves into a dangerous state of excitement. All
agreed that the crisis was at hand; democracy had nearly reached its limit;
and, as Justice Chase said from the bench, peace and order, freedom and
property, would soon be destroyed. They discussed in private what should
be done; and among the New Englanders almost all the men of weight were
found to favor the policy of at least saving New England. Of the six
Federalist senators from the Eastern States,—Plumer and Olcott of New
Hampshire, Pickering and Adams of Massachusetts, Tracy and Hillhouse of
Connecticut,—all but Olcott and Adams thought a dissolution of the Union
inevitable.[101] Among the Federalist members of the House, Roger
Griswold of Connecticut was the most active; he too was convinced that
New England must protect herself. Samuel Hunt of New Hampshire, and
Calvin Goddard of Connecticut held the same opinion. Indeed, Pickering
declared that he did not know “one reflecting Nov-Anglian” who held any
other.
In the month of January, 1804, despair turned into conspiracy.
Pickering, Tracy, Griswold, Plumer, and perhaps others of the New England
delegation, agreed to organize a movement in their States for a dissolution
of the Union. They wrote to their most influential constituents, and sketched
a plan of action. In a letter to George Cabot, Pickering recounted the
impending dangers[102]:—
“By the Philadelphia papers I see that the Supreme Court judges of Pennsylvania
are to be hurled from their seats, on the pretence that in punishing one Thomas
Passmore for a contempt they acted illegally and tyrannically. I presume that Shippen,
Yates, and Smith are to be removed by the Governor, on the representation of the
Legislature. And when such grounds are taken in the National and State legislatures to
destroy the rights of the judges, whose rights can be safe? Why destroy them, unless
as the prelude to the destruction of every influential Federalist and of every man of
considerable property who is not of the reigning sect? New judges, of characters and
tempers suited to the object, will be the selected ministers of vengeance.”

A separation, Pickering inferred, had become necessary; but when and
how was it to be effected?

“If Federalism is crumbling away in New England, there is no time to be lost, lest
it should be overwhelmed and become unable to attempt its own relief; its last refuge
is New England, and immediate exertion perhaps its only hope. It must begin in
Massachusetts. The proposition would be welcomed in Connecticut; and could we
doubt of New Hampshire? But New York must be associated; and how is her
concurrence to be obtained? She must be made the centre of the confederacy. Vermont
and New Jersey would follow of course, and Rhode Island of necessity. Who can be
consulted, and who will take the lead? The legislatures of Massachusetts and
Connecticut meet in May, and of New Hampshire in the same month, or June. The
subject has engaged the contemplation of many. The Connecticut gentlemen have
seriously meditated upon it.... Tracy has written to several of his most distinguished
friends in Connecticut, and may soon receive their answers. R. Griswold, examining
the finances, has found that the States above mentioned, to be embraced by the
Northern confederacy, now pay as much or more of the public revenues as would
discharge their share of the public debts due those States and abroad, leaving out the
millions given for Louisiana.”

Roger Griswold wrote a few weeks afterward to Oliver Wolcott in
similar terms:[103]—
“The project which we had formed was to induce, if possible, the legislatures of
the three New England States who remain Federal to commence measures which
should call for a reunion of the Northern States. The extent of those measures, and the
rapidity with which they shall be followed up, must be governed by circumstances.
The magnitude and jealousy of Massachusetts would render it necessary that the
operation should be commenced there. If any hope can be created that New York will
ultimately support the plan, it may perhaps be supported.”

The first action, said he, must come from the Legislature of
Massachusetts, which was not yet elected, but would meet early in June.
Connecticut and New Hampshire were to follow; and to Pickering’s
sanguine mind the Northern Confederacy seemed already established. “The
people of the East,” he said, “cannot reconcile their habits, views, and
interests with those of the South and West. The latter are beginning to rule
with a rod of iron.”
Pickering knew that the Federalist majority in Massachusetts was none
too great. The election in May, four months later, showed a Federalist vote
of 30,000 against a Republican minority of 24,000, while in the Legislature
Harrison Gray Otis was chosen Speaker by 129 votes to 103. Pickering
knew also that his colleague, Senator Adams, was watching his movements
with increasing ill-will, which Pickering lost no chance to exasperate.
Nothing could be more certain than that at the first suggestion of disunion
Senator Adams and the moderate Federalists would attack the Essex Junto
with the bitterness of long-suppressed hatred; and if they could not

command fourteen votes in the Legislature and three thousand in the State,
a great change must have occurred since the year before, when they elected
Adams to the Senate for the long term over Pickering’s head. Pickering
concealed his doings from his colleague; but Tracy was not so cautious.
Adams learned the secret from Tracy; and the two senators from
Massachusetts drew farther and farther apart, in spite of the impeachments,
which tended to force them together.
The Essex Junto, which sent Pickering to Washington, and to which he
appealed for support, read his letter with evident astonishment. George
Cabot, Chief-Justice Parsons, Fisher Ames, and Stephen Higginson, who
were the leaders consulted,[104] agreed that the scheme was impracticable;
and Cabot, as gently as possible, put their common decision into words.
“All the evils you describe,” he said,[105] “and many more, are to be
apprehended; but I greatly fear that a separation would be no remedy, because the
source of them is in the political theories of our country and in ourselves. A separation
at some period not very remote may probably take place,—the first impression of it is
even now favorably received by many; but I cannot flatter myself with the expectation
of essential good to proceed from it while we retain maxims and principles which all
experience, and I may add reason too, pronounce to be impracticable and absurd.
Even in New England, where there is among the body of the people more wisdom and
virtue than in any other part of the United States, we are full of errors which no
reasoning could eradicate if there were a Lycurgus in every village. We are democratic
altogether; and I hold democracy in its natural operation to be the government of the
worst.
“There is no energy in the Federal party, and there could be none manifested
without great hazard of losing the State government. Some of our best men in high
stations are kept in office because they forbear to exert any influence, and not because
they possess right principles. They are permitted to have power if they will not use
it.... I incline to the opinion that the essential alterations which may in future be made
to amend our form of government will be the consequences only of great suffering or
the immediate effects of violence. If we should be made to feel a very great calamity
from the abuse of power by the National Administration, we might do almost
anything; but it would be idle to talk to the deaf, to warn the people of distant evils.
By this time you will suppose I am willing to do nothing but submit to fate. I would
not be so understood. I am convinced we cannot do what is wished; but we can do
much, if we work with Nature (or the course of things), and not against her. A
separation is now impracticable, because we do not feel the necessity or utility of it.
The same separation then will be unavoidable when our loyalty to the Union is
generally perceived to be the instrument of debasement and impoverishment. If it is
prematurely attempted, those few only will promote it who discern what is hidden
from the multitude.”

Cabot’s letter, more clearly than any writing of Alexander Hamilton
himself, expressed the philosophy and marked the tactics of their school.

Neither Cabot nor Hamilton was a lively writer, and the dust which has
gathered deep on their doctrines dulls whatever brilliancy they once
possessed; but this letter showed why Cabot was considered the wisest head
in his party, to whose rebuke even Hamilton was forced to bow. For patient
and willing students who have groped in search of the idea which, used by
Hamilton and Jefferson, caused bitterer feeling and roused deeper terrors
than civil war itself, Cabot’s long and perhaps pedantic letter on the policy
of disunion was full of meaning. “We shall go the way of all governments
wholly popular,—from bad to worse,—until the evils, no longer tolerable,
shall generate their own remedies.” Democracy must end in a crisis,
experience and reason pronounced it impracticable and absurd, Nature
would in due time vindicate her own laws; and when the inevitable chaos
should come, then conservative statesmanship could set society on a sound
footing by limiting the suffrage to those citizens who might hold in their
own right two thousand dollars value in land. Meanwhile disunion would be
useless, and the attempt to bring it about would break up the Federalist
party. “A war with Great Britain manifestly provoked by our rulers” was the
only chance which Cabot foresaw of bringing the people of New England to
a dissolution of the Union.
Pickering was not so intelligent as Cabot, Parsons, and Ames; his
temper was harsher than theirs; he was impatient of control, and never
forgot or wholly forgave those who forced him to follow another course
than the one he chose. Cabot’s letter showed a sense of these traits; for
though it was in the nature of a command or entreaty to cease discussing
disunion, if the Federalist party in Massachusetts were to be saved, it was
couched in gentle language, and without affecting a tone of advice
suggested ideas which ought to guide Federalists in Congress. Pickering
was to wait for the crisis. Inaction was easy; and even though the crisis
should be delayed five or ten years,—a case hardly to be supposed,—no
step could be taken without a blunder before the public should be ready for
it. With this simple and sound principle to guide them, conservatives could
not go wrong. Cabot there left the matter.
Such gentleness toward a man of Pickering’s temper was a mistake,
which helped to cost the life of one whom conservatives regarded as their
future leader in the crisis. Pickering was restive under the sense that his
friends preferred other counsellors; whereas his experience and high offices,

to say nothing of his ability, entitled him, as he thought, to greater weight in
the party than Hamilton, Cabot, or Rufus King. Backed by Tracy, Griswold,
and other men of standing, Pickering felt able to cope with opposition. His
rough sense and democratic instincts warned him that the fine-drawn
political theories of George Cabot and Theophilus Parsons might end in
impotence. He could see no reason why Massachusetts, once corrupted,
might not wallow in democratic iniquities with as much pleasure as New
York or Pennsylvania; and all that was worth saving might be lost before
her democracy would consent to eat the husks of repentance and ask
forgiveness from the wise and good. Cabot wanted to wait a few months or
years until democracy should work out its own fate; and whenever the
public should yearn for repose, America would find her Pitt and Bonaparte
combined in the political grasp and military genius of Alexander Hamilton.
Pickering, as a practical politician, felt that if democracy were suffered to
pull down the hierarchy of New England, neither disunion nor foreign war,
nor “a very great calamity” of any kind, could with certainty restore what
had once been destroyed.
Cabot’s argument shook none of Pickering’s convictions; but the
practical difficulty on which the home Junto relied was fatal unless some
way of removing it could be invented. During the month of February, 1804,
when the impeachment panic was at its height in Congress, Pickering,
Tracy, and Plumer received letter after letter from New England, all telling
the same story. The eminent Judge Tapping Reeve, of Connecticut, wrote to
Tracy:[106] “I have seen many of our friends; and all that I have seen and
most that I have heard from believe that we must separate, and that this is
the most favorable moment.” He had heard only one objection,—that the
country was not prepared; but this objection, which meant that the
disunionists were a minority, was echoed from all New England. The
conspirators dared not openly discuss the project. “There are few among my
acquaintance,” wrote Pickering’s nephew, Theodore Lyman,[107] “with
whom I could on that subject freely converse; there may be more ready than
I am aware of.” Plumer found a great majority of the New Hampshire
Federalists decidedly opposed. Roger Griswold, toward the end of the
session, summed up the result in his letter to Oliver Wolcott:—
“We have endeavored during this session to rouse our friends in New England to
make some bold exertions in that quarter. They generally tell us that they are sensible
of the danger, that the Northern States must unite; but they think the time has not yet

arrived. Prudence is undoubtedly necessary; but when it degenerates into
procrastination it becomes fatal. Whilst we are waiting for the time to arrive in New
England, it is certain the democracy is making daily inroads upon us, and our means
of resistance are lessening every day. Yet it appears impossible to induce our friends
to make any decisive exertions. Under these circumstances I have been induced to
look to New York.”

The representatives of the wise and good looked at politics with eyes
which saw no farther than those of the most profligate democrat into the
morality of the game. Pickering enjoyed hearing himself called “honest Tim
Pickering,” as though he were willing to imply a tinge of dishonesty in
others, even in the Puritan society of Wenham and Salem. Griswold was to
the end of his life a highly respected citizen of Connecticut, and died while
governor of the State. That both these worthy men should conspire to break
up the Union implied to their minds no dishonesty, because they both held
that the Republican majority had by its illegal measures already destroyed
the Constitution which they had sworn to support; but although such
casuistry might excuse in their own consciences the act of conspiracy,
neither this reasoning nor any other consistent with self-respect warranted
their next step. Griswold’s remark that the procrastination of New England
had led him to look to New York was not quite candid; his plan had from
the first depended on New York. Pickering had written to Cabot at the
outset, “She must be made the centre of the confederacy.” New York
seemed, more than New England, unfit to be made the centre of a Northern
confederacy, because there the Federalist party was a relatively small
minority. If Massachusetts and Connecticut showed fatal apathy, in New
York actual repulsion existed; the extreme Federalists had no following. To
bring New York to the Federalism of Pickering and Griswold, the Federalist
party needed to recover power under a leader willing to do its work. The
idea implied a bargain and an intrigue on terms such as in the Middle Ages
the Devil was believed to impose upon the ambitious and reckless.
Pickering and Griswold could win their game only by bartering their souls;
they must invoke the Mephistopheles of politics, Aaron Burr.
To this they had made up their minds from the beginning. Burr’s four
years of office were drawing to a close. The Virginians had paid him the
price he asked for replacing them in power; and had it been Shylock’s
pound of flesh, they could not have looked with greater care to see that Burr
should get neither more nor less, even in the estimation of a hair, than the
exact price they had covenanted to pay. In another year the debt would be

discharged, and the Virginians would be free. Burr had not a chance of
regaining a commanding place among Republicans, for he was bankrupt in
private and public character. In New York the Clintons never ceased their
attacks, with the evident wish to drive him from the party. Cheetham, after
publishing in 1802 two heavy pamphlets, a “Narrative” and a “View,”
attempted in 1803 to crush him under the weight of a still heavier volume,
containing “Nine Letters on the Subject of Aaron Burr’s Political
Defection.” Nov. 16, 1803, the “Albany Register” at length followed
Cheetham’s lead; and nearly all the other democratic newspapers followed
the “Register,” abandoning Burr as a man who no longer deserved
confidence.
Till near the close of 1803 the Vice-President held his peace. The first
sign that he meant energetic retaliation was given by an anonymous
pamphlet,[108] which won the rare double triumph of political and literary
success, in which ability and ill temper seemed to have equal shares. The
unexpected appearance of “Aristides” startled New York. This attack
recalled the scandal which Alexander Hamilton had created four years
before by his pamphlet against his own President. “Aristides” wrote with
even more bitterness than Hamilton, and the ferocity of his assault on the
personal and political characters of the Republican leaders made the
invectives of Hamilton and Cheetham somewhat tame; but the scandal in
each case was due not so much to personalities of abuse as to breaches of
confidence. “Aristides” furnished to the enemies of the Clintons and
Livingstons an arsenal of poisoned weapons; but what was more to the
purpose, his defence of Burr was strong. That it came directly from the
Vice-President was clear; but the pamphlet showed more literary ability
than Burr claimed, and the world was at a loss to discover who could be
held responsible for its severities. Cheetham tried in vain to pierce the
incognito. Not till long afterward was “Aristides” acknowledged by Burr’s
most intimate friend, William Peter Van Ness.
An attempt to separate what was just from what was undeserved in Van
Ness’s reproaches of the Clintons and Livingstons would be useless. The
Clintons and Livingstons, however unprincipled they might be, could say
that they were more respectable than Burr; but though this were true so far
as social standing was concerned, they could not easily show that as a
politician the Vice-President was worse than his neighbors. The New

England Federalists knew well that Burr was not to be trusted, but they did
not think much worse of him than they thought of De Witt Clinton, or John
Armstrong, or Edward Livingston, at this moment removed from office by
Jefferson for failing to account for thirty thousand dollars due to the United
States Treasury. As a politician Burr had played fast and loose with all
parties; but so had most of his enemies. Seeing that he was about to try
another cast of the dice, all the political gamblers gathered round to help or
hurt his further fortunes; and Van Ness might fairly have said that in the
matter of principle or political morality, none of them could show clean
hands.
Although Vice-President until March, 1805, Burr announced that he
meant to offer himself as a candidate for the post of governor of New York
in April, 1804. At the same time Governor Clinton privately gave warning
of his own retirement. De Witt Clinton was annoyed at his uncle’s conduct,
and tried to prevent the withdrawal by again calling Jefferson to his aid and
alarming him with fear of Burr.
“A certain gentleman was to leave this place yesterday morning,” wrote De Witt to
the President.[109] “He has been very active in procuring information as to his
probable success for governor at the next election. This, I believe, is his intention at
present, although it is certain that if the present Governor will consent to be a
candidate, he will prevail by an immense majority.... Perhaps a letter from you may be
of singular service.”

Jefferson declined to interfere, putting his refusal on the ground of
Burr’s candidacy.
“I should think it indeed a serious misfortune,” was his reply,[110] “should a
change in the administration of your government be hazarded before its present
principles be well established through all its parts; yet on reflection you will be
sensible that the delicacy of my situation, considering who may be competitors,
forbids my intermeddling even so far as to write the letter you suggest. I can therefore
only brood in silence over my secret wishes.”

No real confidence ever existed between Jefferson and the Clintons. A
few days after these letters were written, “Aristides” betrayed the secret that
Governor Clinton, in the spring of 1800, declared Jefferson to be “an
accommodating trimmer, who would change with times and bend to
circumstances for the purposes of personal promotion.” This revelation by
“Aristides,” supported by the names of persons who heard the remark,
forced Governor Clinton into an awkward denial of the charge, and led to

an exchange of letters[111] and to professions of confidence between him
and Jefferson; but time showed that neither the Governor nor his nephew
loved the Virginians more than they were loved by Burr.
The threads of intrigue drew together, as they were apt to do before a
general election. The last week in January came. Three days before Senator
Pickering wrote his conspiracy letter to George Cabot, a letter which
implied co-operation with Burr in making him governor of New York, Burr
asked for a private interview with Jefferson, and formally offered him the
choice between friendship or enmity. The President thought the
conversation so curious that he made a note of it.
“He began,” said Jefferson,[112] “by recapitulating summarily that he had come
to New York a stranger, some years ago; that he found the country in possession of
two rich families,—the Livingstons and Clintons; ... that since, those great families
had become hostile to him and had excited the calumnies which I had seen published;
that in this Hamilton had joined, and had even written some of the pieces against
him.... He observed, he believed it would be for the interest of the Republican cause
for him to retire,—that a disadvantageous schism would otherwise take place; but that
were he to retire, it would be said he shrank from the public sentence, which he would
never do; that his enemies were using my name to destroy him, and something was
necessary from me to prevent and deprive them of that weapon,—some mark of favor
from me which would declare to the world that he retired with my confidence.”

Jefferson, with many words but with his usual courtesy, intimated that
he could not appoint the Vice-President to an Executive office; and Burr
then united his intrigues with those of Pickering and Griswold. Thenceforth
his chance of retaining power depended on the New York election; and his
success in this election depended on the Federalists. Before George Cabot
had yet written his answer to Pickering’s questions, Pickering could no
longer resist the temptation to act.
The effect of what passed at Washington was instantly felt at Albany.
Toward the middle of February, about three weeks after Jefferson had
civilly rejected the Vice-President’s advances, Burr’s friends in the New
York legislature announced that they should hold a caucus February 18, and
nominate him as candidate for governor. The Federalists at once called a
preliminary caucus to decide whether they should support Burr. Alexander
Hamilton, who happened to be engaged in law business at Albany, Feb. 16,
1804, attended the Federal caucus, and used his influence in favor of the
regular Clinton candidate against Burr’s pretensions. The drift of his
argument was given in an abstract of reasons which he drew up for the

occasion.[113] Unfortunately the strongest of these reasons was evidently
personal; the leadership of Hamilton would not tolerate rivalry from Burr.
Hamilton pointed out that Burr’s elevation by the Federalists of New York
would present him as their leader to the Federalists of New England, and
would assist him to disorganize New England if so disposed; that there “the
ill-opinion of Jefferson, and jealousy of the ambition of Virginia, is no
inconsiderable prop of good opinions; but these causes are leading to an
opinion that a dismemberment of the Union is expedient. It would probably
suit Mr. Burr’s views to promote this result,—to be the chief of the
Northern portion; and placed at the head of the State of New York, no man
would be more likely to succeed.”
If the Union was to be severed, Hamilton was the intended chief of the
Northern portion; but he wanted no severance that should leave the germs
of the democratic disease. His philosophy was that of George Cabot,
William Pitt, and Talleyrand; he waited for the whole country to come to its
senses and restore sound principles, that democracy might everywhere die
out or be stifled. Burr’s methods were democratic, and would perpetuate in
a Northern confederacy the vices of the Union; they would break up the
conservative strength without weakening democracy. Within a few days the
danger which Hamilton foresaw came to pass. Burr’s little band of friends
in the Legislature, Feb. 18, 1804, set him in nomination; and a large
majority of Federalists, in defiance of Hamilton’s entreaties, meant to vote
for him.
As the situation became clearer, Hamilton’s personal feeling became
public. While at Albany, February 16, he dined with Judge Taylor, and at
table talked of the political prospect. One of the company, Dr. Charles D.
Cooper, an active partisan, wrote an account of the conversation to a certain
Mr. Brown near Albany: “General Hamilton and Judge Kent have declared,
in substance, that they looked upon Mr. Burr to be a dangerous man, and
one who ought not to be trusted with the reins of government.” The letter
was printed, and went the rounds of the press. As it roused some question
and dispute, Cooper wrote again: “I could detail to you a still more
despicable opinion which General Hamilton has expressed of Mr. Burr.”
This letter also was printed; the “Albany Register” of April 24 contained the
correspondence.

The news of Burr’s nomination reached Washington at the moment
when Pickering and Tracy received answers to their disunion scheme; and it
served to keep them steady to their plan. The Federalists, who professed to
consider Hamilton their leader, seldom followed his advice; but on this
occasion they set him somewhat unkindly aside. Too much in awe of
Hamilton to say directly to his face that he must be content with the place of
Burr’s lieutenant, they wrote letters to that effect which were intended for
his eye.
Of all Federalist leaders, moderate and extreme, Rufus King, who had
recently returned from London, stood highest in the confidence of his party.
He was to be the Federalist candidate for Vice-President; he had mixed in
none of the feuds which made Hamilton obnoxious to many of his former
friends; and while King’s manners were more conciliatory, his opinions
were more moderate, than those of other party leaders. To him Pickering
wrote, March 4, 1804, in a tone of entreaty:—
“I am disgusted with the men who now rule, and with their measures. At some
manifestations of their malignancy I am shocked. The cowardly wretch at their head,
while like a Parisian revolutionary monster prating about humanity, would feel an
infernal pleasure in the utter destruction of his opponents.”

After avowing his hopes of disunion, Pickering next touched the New
York election:[114]—
“The Federalists here in general anxiously desire the election of Mr. Burr to the
chair of New York, for they despair of a present ascendency of the Federalist party.
Mr. Burr alone, we think, can break your democratic phalanx, and we anticipate much
good from his success. Were New York detached, as under his administration it would
be, from the Virginia influence, the whole Union would be benefited. Jefferson would
then be forced to observe some caution and forbearance in his measures. And if a
separation should be deemed proper, the five New England States, New York, and
New Jersey would naturally be united.”

Rufus King was as cautious as Pickering was indiscreet. He
acknowledged this letter in vague terms of compliment,[115] saying that
Pickering’s views “ought to fix the attention of the real friends of liberty in
this quarter of the Union, and the more so as things seem to be fast
advancing to a crisis.” Even King’s cool head was possessed with the
thought which tormented Hamilton, Cabot, Ames, Pickering, Griswold, and
Tracy,—the crisis which was always coming, and which, in the midst of
peace, plenty, and contentment such as a tortured world had seldom known,
overhung these wise and virtuous men like the gloom of death.

A week later Roger Griswold followed Pickering’s example by writing
to another of Hamilton’s friends, Oliver Wolcott, who apparently sent the
letter to Hamilton.[116] A Congressional caucus, February 25, nominated
George Clinton as the Republican candidate for Vice-President by sixty-five
votes against forty-one,—Burr’s friends absenting themselves. This
nomination showed some division between the Northern and Southern
democrats; but Griswold rightly argued that nothing could be done in
Congress,—the formation of a Northern interest must begin at home, and
must find its centre of union in Burr. The arguments for this course were set
forth with entire candor.
“I have wished to ascertain,” wrote Griswold, “the views of Colonel Burr in
relation to the general government; but having had no intimacy with him myself, and
finding no one on the spot calculated, or indeed authorized, to require an explanation,
I have obtained but little information. He speaks in the most bitter terms of the
Virginia faction, and of the necessity of a union at the northward to resist it; but what
the ultimate objects are which he would propose, I do not know. It is apparent that his
election is supported in New York on the principle of resisting Virginia and uniting the
North; and it may be presumed that the support given to him by Federal men would
tend to reconcile the feelings of those democrats who are becoming dissatisfied with
their Southern masters. But it is worthy of great consideration whether the advantage
gained in this manner will not be more than counterbalanced by fixing on the
Northern States a man in whom the most eminent of our friends will not repose
confidence. If Colonel Burr is elevated in New York to the office of governor by the
votes of Federalism, will he not be considered, and must he not in fact become, the
head of the Northern interest? His ambition will not suffer him to be second, and his
office will give him a claim to the first rank.”

Having proposed this question, Griswold argued it as one in which the
interests of New York must yield to the larger interests behind, and decided
that “unpleasant as the thing may be,” Burr’s election and consequent
leadership of the Federalist party was “the only hope which at this time
presents itself of rallying in defence of the Northern States.... What else can
we do? If we remain inactive, our ruin is certain. Our friends will make no
attempts alone. By supporting Mr. Burr we gain some support, although it is
of a doubtful nature, and of which, God knows, we have cause enough to be
jealous. In short, I see nothing else left for us.”
Had this been all, though it was a rude blow to Hamilton, it might have
passed as a difference of opinion on a point of party policy; but Griswold’s
object in writing these excuses was to explain that he had already done
more, and had even entered into personal relations with Colonel Burr in
view of a bargain. What this bargain was to be, Griswold explained:—

“I have engaged to call on the Vice-President as I pass through New York. The
manner in which he gave me the invitation appeared to indicate a wish to enter upon
some explanation. He said he wished very much to see me, and to converse, but his
situation in this place did not admit of it, and he begged me to call on him at New
York. This took place yesterday in the library. Indeed, I do not see how he can avoid a
full explanation with Federal men. His prospects must depend on the union of the
Federalists with his friends, and it is certain that his views must extend much beyond
the office of governor of New York. He has the spirit of ambition and revenge to
gratify, and can do but little with his ‘little band’ alone.”

Even George Cabot deserted Hamilton, and wrote from Boston to Rufus
King a long letter, in the tone of indolent speculation which irritated restless
fighters like Pickering and Griswold:[117]—
“An experiment has been suggested by some of our friends, to which I object that
it is impracticable, and if practicable would be ineffectual. The thing proposed is
obvious and natural; but it would now be thought too bold, and would be fatal to its
advocates as public men; yet the time may soon come when it will be demanded by
the people of the North and East, and then it will unavoidably take place.”

He explained his favorite thesis,—the last resource of failing
protestants,—that things must be worse before they were better; but closed
by wishing success to Burr. “I should rejoice to see Burr win the race in
your State, but I cannot approve of aid being given him by any of the
leading Federalists.”
Ten days later, March 27, Congress adjourned; and thenceforward the
intrigue centred about Burr and Hamilton in New York. No sooner did
Griswold reach that city, a week afterward, on his way from Washington to
Connecticut, than he kept his engagement with Burr, and the conversation
strengthened him in his policy.[118] Burr was cautious, but said that in his
present canvass “he must go on democratically to obtain the government;
that if he succeeded, he should administer it in a manner that would be
satisfactory to the Federalists. In respect to the affairs of the nation, Burr
said that the Northern States must be governed by Virginia, or govern
Virginia, and that there was no middle course; that the democratic members
of Congress from the East were in this sentiment,—some of those from
New York, some of the leaders in Jersey, and likewise in Pennsylvania.”
Further than this he would not go; and Griswold contented himself with
such vague allurements.
On the other hand, Rufus King’s library was the scene of grave
dissensions. There Pickering went, April 8, to urge his scheme of disunion,

and retired on the appearance of his colleague, Senator Adams, who for the
first and last time in his life found himself fighting the battle of Alexander
Hamilton, whom he disliked as decidedly as Pickering professed to love
him. As the older senator left the house at his colleague’s entrance, King
said to Adams:[119] “Colonel Pickering has been talking to me about a
project they have for a separation of the States and a Northern Confederacy;
and he has also been this day talking of it with General Hamilton. Have you
heard anything of it at Washington?” Adams replied that he had heard
much, but not from Colonel Pickering. “I disapprove entirely of the
project,” said King; “and so, I am happy to tell you, does General
Hamilton.”
The struggle for control between Hamilton and the conspirators lasted
to the eve of the election,—secret, stifled, mysterious; the intrigue of men
afraid to avow their aims, and seeming rather driven by their own passions
than guided by the lofty and unselfish motives which ought to inspire those
whom George Cabot emphatically called the best! The result was a drawn
battle. Hamilton prevented leading Federalists from open committal of the
party, but he could not prevent the party itself from voting for Burr. The
election took place April 25, 1804; and although Burr succeeded in carrying
to the Federalists a few hundred voters in the city of New York, where his
strength lay, giving him there a majority of about one hundred in a total
vote of less than three thousand, he polled but about twenty-eight thousand
votes in the State against thirty-five thousand for the Clinton candidate. The
Federalists gained nothing by supporting him; but only a small portion of
the party refused him their aid.
The obstinacy of Pickering and Griswold in pressing Burr on the party
forced Hamilton to strain his strength in order to prevent what he
considered his own humiliation. That all Hamilton’s doings were known to
Burr could hardly be doubted. When the election closed, a new era in Burr’s
life began. He was not a vindictive man, but this was the second time
Hamilton had stood in his way and vilified his character. Burr could have
no reason to suppose that Hamilton was deeply loved; for he knew that four
fifths of the Federal party had adopted his own leadership when pitted
against Hamilton’s in the late election, and he knew too that Pickering,
Griswold, and other leading Federalists had separated from Hamilton in the
hope of making Burr himself the chief of a Northern confederacy. Burr

never cared for the past,—the present and future were his only thought; but
his future in politics depended on his breaking somewhere through the line
of his personal enemies; and Hamilton stood first in his path, for Hamilton
would certainly renew at every critical moment the tactics which had twice
cost Burr his prize.
Pickering and Griswold saw their hopes shattered by the result of the
New York election. They gained at the utmost only an agreement to hold a
private meeting of leading Federalists at Boston in the following autumn;
[120]
and as Hamilton was to be present, he probably intended to take part
only in order to stop once for all the intrigues of these two men. Such an
assemblage, under the combined authority of Cabot, King, and Hamilton,
could not have failed to restore discipline.
Nearly two months passed after the New York election, when, on the
morning of June 18, William P. Van Ness, not yet known as “Aristides,”
appeared in Hamilton’s office. He brought a note from Vice-President Burr,
which enclosed newspaper-cuttings containing Dr. Cooper’s report of
Hamilton’s “despicable” opinion of Burr’s character. The paragraph, Burr
said, had but very recently come to his knowledge. “You must perceive, sir,
the necessity of a prompt and unqualified acknowledgment or denial of the
use of any expression which would warrant the assertions of Dr. Cooper.”
General Hamilton took two days to consider the subject; and then replied in
what Burr thought an evasive manner, but closed with two lines of defiance:
“I trust on more reflection you will see the matter in the same light with me;
if not, I can only regret the circumstance, and must abide the
consequences.”[121]
These concluding words were the usual form in which men expressed
themselves when they intended to accept a challenge to a duel. At first
sight, no sufficient reason for accepting a challenge was shown by
Hamilton’s letter, which disavowed Dr. Cooper’s report so far as Burr was
warranted in claiming disavowal. Hamilton might without impropriety have
declined to give further satisfaction. In truth, not the personal but the
political quarrel drew him into the field; he knew that Burr meant to
challenge, not the man, but the future political chief, and that an enemy so
bent on rule must be met in the same spirit. Hamilton fought to maintain his
own right to leadership, so rudely disputed by Burr, Pickering, and
Griswold. He devoted some of his moments before the duel to the task of

explaining, in a formal document, that he fought only to save his political
influence.[122] “The ability to be in future useful, whether in resisting
mischief or effecting good, in those crises of our public affairs which seem
likely to happen, would probably be inseparable from a conformity with
public prejudice in this particular.”
Always the crisis! Yet this crisis which brought Hamilton in July to the
duelling-ground at Weehawken was not the same as that which Pickering
and Griswold had so lately tried to create. Pickering’s disunion scheme
came to a natural end on Burr’s defeat in April. The legislatures of the three
Federalist States had met and done nothing; all chance of immediate action
was lost, and all parties, including even Pickering and Griswold, had fallen
back on their faith in the “crisis”; but the difference of opinion between
Hamilton and the New Englanders was still well defined. Hamilton thought
that disunion, from a conservative standpoint, was a mistake; nearly all the
New Englanders, on the contrary, looked to ultimate disunion as a
conservative necessity. The last letter which Hamilton wrote, a few hours
before he left his house for the duelling-ground, was a short and earnest
warning against disunion, addressed to Theodore Sedgwick, one of the
sternest Massachusetts Federalists of Pickering’s class.[123]
“Dismemberment of our empire,” said Hamilton, “will be a clear sacrifice of great
positive advantages, without any counterbalancing good; administering no relief to
our real disease, which is democracy,—the poison of which, by a subdivision, will
only be the more concentred in each part, and consequently the more virulent.”

The New Englanders thought this argument unsound, as it certainly
was; for a dissolution of the American Union would have struck a blow
more nearly fatal to democracy throughout the world than any other “crisis”
that man could have compassed. Yet the argument showed that had
Hamilton survived, he would probably have separated from his New
England allies, and at last, like his friends Rufus King and Oliver Wolcott,
would have accepted the American world as it was.
The tragedy that actually happened was a fitter ending to this dark
chapter than any tamer close could have been. Early on the morning of July
11, in the brilliant sunlight of a hot summer, the two men were rowed to the
duelling-ground across the river, under the rocky heights of Weehawken,
and were placed by their seconds face to face. Had Hamilton acted with the
energy of conviction, he would have met Burr in his own spirit; but

throughout this affair Hamilton showed want of will. He allowed himself to
be drawn into a duel, but instead of killing Burr he invited Burr to kill him.
In the paper Hamilton left for his justification, he declared the intention to
throw away his first fire. He did so. Burr’s bullet passed through Hamilton’s
body. The next day he was dead.
As the news spread, it carried a wave of emotion over New England,
and roused everywhere sensations strangely mixed. In New York the
Clinton interest, guided by Cheetham, seized the moment to destroy Burr’s
influence forever. Cheetham affected to think the duel a murder, procured
Burr’s indictment, and drove him from the State. Charges were invented to
support this theory, and were even accepted as history. In the South and
West, on the other hand, the duel was considered as a simple “affair of
honor,” in which Burr appeared to better advantage than his opponent. In
New England a wail of despair arose. Even the clergy, though shocked that
Hamilton should have offered the evil example of duelling, felt that they
had lost their champion and sword of defence. “In those crises of our public
affairs which seemed likely to happen,” Hamilton’s genius in council and in
the field had been their main reliance; he was to be their Washington, with
more than Washington’s genius,—their Bonaparte, with Washington’s
virtues. The whole body of Federalists, who had paid little regard to
Hamilton’s wishes in life, went into mourning for his death, and held
funeral services such as had been granted to no man of New England birth.
Orators, ministers, and newspapers exhausted themselves in execration of
Burr. During the whole summer and autumn, undisturbed by a breath of
discord or danger, except such as their own fears created, they bewailed
their loss as the most fatal blow yet given to the hopes of society.
The death of Hamilton cleared for a time the murky atmosphere of New
York and New England politics. Pickering and Griswold, Tracy and Plumer,
and their associates retired into the background. Burr disappeared from
New York, and left a field for De Witt Clinton to sacrifice in his turn the
public good to private ambition. The bloody feuds of Burr’s time never
again recurred. The death of Hamilton and the Vice-President’s flight, with
their accessories of summer-morning sunlight on rocky and wooded
heights, tranquil river, and distant city, and behind all, their dark
background of moral gloom, double treason, and political despair, still stand
as the most dramatic moment in the early politics of the Union.

CHAPTER IX.
President Jefferson was told from day to day of the communications that
passed between Burr and the Connecticut Federalists. Of all members of the
Government, the most active politician was Gideon Granger, the
Postmaster-General, whose “intimacy with some of those in the secret,” as
Jefferson afterward testified, gave him “opportunities of searching into their
proceedings.”[124] Every day during this period Granger made a confidential
report to the President; and at the President’s request Granger warned De
Witt Clinton of Burr’s intrigues with the Federalists. What passed in Rufus
King’s library and in Burr’s private room seemed known at once by
Granger, and was reported within a few days to Jefferson, who received the
news with his innate optimism, warranted by experience.[125]
“It will be found in this, as in all other similar cases, that crooked schemes will
end by overwhelming their authors and coadjutors in disgrace, and that he alone who
walks strict and upright, and who in matters of opinion will be contented that others
should be as free as himself, and acquiesce when his opinion is fairly overruled, will
attain his object in the end.”

If Jefferson and his Virginia friends in 1798, when their own opinions
were overruled, had expressed the idea of acquiescence as strongly, the
nation might perhaps have been saved the necessity of proving later the
truth of his words; but Jefferson could afford to treat with contempt the
coalition between Burr and Pickering, because, as he wisely said, it had no
cohesive force to hold it together, no common principle on which to rest.
When Burr’s defeat in April and Hamilton’s death in July dissolved the
unnatural connection, Jefferson let the secret die; he wanted no scandal. He
stood a little in awe of the extreme Federalists, whom he called incurables,
and was unwilling to exasperate them without an object.
The Administration had every reason to rejoice that Burr’s factious
influence in the State of New York was at an end; for other causes of
anxiety gave the President more personal annoyance. The strength of the
Republican party lay in the alliance between Virginia and Pennsylvania. So
long as these two central States, with their forty members of Congress,
remained harmonious, nothing could shake Jefferson’s power; but any
discord which threatened his control of Pennsylvania caused him anxiety.

Hardly had Burr’s schism been checked in New York by a succession of
measures as energetic as De Witt Clinton could persuade Jefferson to adopt,
when a schism, that threatened greater mischief, broke out in Pennsylvania.
In this State no social hierarchy existed such as governed New England,
nor were rich families with political followings to be found there, as in New
York; but instead, Duane’s “Aurora” shone without break or bar over one
broad democratic level. Duane was represented in Congress by Michael
Leib; while over the State Legislature his influence was complete. In
Jefferson’s Cabinet Pennsylvania was represented by Gallatin, who had
little sympathy with the “Aurora,” and began his administration of the
finances by resisting Duane’s demand for Federal patronage.
“The thirst for offices,” to use Gallatin’s own words,[126] “too much encouraged
by Governor McKean’s first measures, created a schism in Philadelphia as early as
1802. Leib, ambitious, avaricious, envious, and disappointed, blew up the flame, and
watched the first opportunity to make his cause a general one. The vanity, the
nepotism, and the indiscretion of Governor McKean afforded the opportunity. Want of
mutual forbearance among the best-intentioned and most respectable Republicans has
completed the schism. Duane, intoxicated by the persuasion that he alone had
overthrown Federalism, thought himself neither sufficiently rewarded nor respected;
and possessed of an engine which gives him an irresistible control over public
opinion, he easily gained the victory for his friends.”

In the spring of 1803 the “Aurora” began to attack Gallatin and
Madison, under cover of devotion to the President; and from this beginning
Duane went on to quarrel with Governor McKean and Alexander J. Dallas,
the district attorney.
The impeachment of Judge Pickering in Congress followed and in some
degree imitated an impeachment by the Pennsylvania Legislature of Judge
Addison, one of the five president judges of the Common Pleas. With the
help of Dallas and Governor McKean, the Legislature in January, 1803,
removed Judge Addison; then, inspired by Randolph’s attack on Justice
Chase, they turned against their Supreme Court,—at one sweep impeaching
three of the judges, and addressing the Governor for the removal of H. H.
Brackenridge, the fourth, because he insisted on making common cause
with his associates. The alleged ground of impeachment was the arbitrary
committal of a suitor for contempt of court; the real motive seemed rather to
be a wish for legal reforms such as society was too unskilful to make for
itself, and lawyers were slow to begin. Throughout America the bar was a
sort of aristocracy, conservative to a degree that annoyed reformers of every

class. Jefferson and his party raised one Republican lawyer after another to
the bench, only to find that when their professions of political opinion were
tested in legal form, the Republican judge rivalled Marshall in the
Federalist and English tendencies of his law. The bar chose to consider the
prejudice of society against their caste unreasonable; but the bar was itself
somewhat unreasonable to require that an untrained and ill-led body of
country farmers and local politicians should say precisely what legal reform
they wanted, or know exactly what was practicable.
No sooner did the Pennsylvania Legislature begin to pull in pieces the
judicial system of the State, and persecute the legal profession, than Dallas,
McKean, and all the educated leaders of the Republican party broke from
the mass of their followers, and attempted to check their violence. Governor
McKean stopped with his veto certain measures which the Legislature had
approved, and he declined to remove Judge Breckenridge when the
Legislature asked him to do so. Dallas became counsel for the impeached
judges. Duane and Leib raged against McKean and Dallas; a large majority
of Pennsylvania Republicans followed the “Aurora;” Gallatin lost control
over his State, and saw himself threatened, like his friend Dallas, with
ostracism; while the outside world, roused by the noise of this faction-fight,
asked what it meant, and could not understand the answer. The Federalists
alone professed to explain the mystery which perplexed people less wise
than themselves; they had said from the beginning that the democrats had
neither virtue nor understanding to carry on the government, and must bring
about a crisis at last.
After the excitement of Burr’s intrigues and Hamilton’s death subsided,
leaving the politics of New York in comparative repose, the autumn
elections in Pennsylvania began to disturb Jefferson’s temper.
“Thank Heaven!” wrote Dallas to Gallatin, in October,[127] “our election is over!
The violence of Duane has produced a fatal division. He seems determined to destroy
the Republican standing and usefulness of every man who does not bend to his will.
He has attacked me as the author of an address which I never saw till it was in the
press. He menaces the Governor; you have already felt his lash; and I think there is
reason for Mr. Jefferson himself to apprehend that the spirit of Callender survives.”

A struggle took place over the re-election of Leib to Congress, which
the “Aurora” carried by a few hundred votes. Republicans of Dallas’s kind,
who would not support Leib, were nicknamed “Quids” by Duane, after the
tertium quid, which was worth not even a name. At least three fourths of the

Republican party followed the “Aurora,” and left the “Quids” in the
solitude of deserted leaders.
Jefferson’s social relations were wholly with Gallatin, McKean, and
Dallas, but his political strength depended on the popular vote, which
followed Duane and Leib. At one moment he wanted to reason with Duane,
but by Gallatin’s advice gave up this idea. At length he temporized, became
neutral, and left Gallatin and Dallas to their own resources.
“I see with infinite pain,” he wrote to Dr. Logan,[128] “the bloody schism which
has taken place among our friends in Pennsylvania and New York, and will probably
take place in other States. The main body of both sections mean well, but their good
intentions will produce great public evil. The minority, whichever section shall be the
minority, will end in coalition with the Federalists and some compromise of principle.
Republicanism will thus lose, and royalism gain, some portion of that ground which
we thought we had rescued to good government.”

The idea that “royalism” could in any case gain support among the
factions of Pennsylvania democrats was one which could have occurred
only to Jefferson, who saw monarchy, as the New Englanders saw
Antichrist, in every man who opposed him in politics. Apart from this trick
of words, Jefferson’s theory of his own duties failed to satisfy his followers.
Dallas was disgusted at the situation in which he found himself left.
“It is obvious to me,”[129] he wrote to Gallatin soon after the schism broke out,
“that unless our Administration take decisive measures to discountenance the factious
spirit that has appeared; unless some principle of political cohesion can be introduced
into our public councils as well as at our elections; and unless men of character and
talents can be drawn from professional and private pursuits into the legislative bodies
of our governments, Federal and State,—the empire of Republicanism will moulder
into anarchy, and the labor and hope of our lives will terminate in disappointment and
wretchedness.... At present we are the slaves of men whose passions are the object of
all their actions,—I mean your Duanes, Cheethams, Leibs, etc. They have the press in
their power; and though we may have virtue to assert the liberty of the press, it is too
plain that we have not spirit enough to resist the tyranny of the printers.”

This last sharp sentence aimed at the President, who displeased Dallas
by showing too evident a wish not to offend Duane. “The duty of an upright
Administration,” Jefferson told Dr. Logan,[130] “is to pursue its course
steadily, to know nothing of these family dissensions, and to cherish the
good principles of both parties.” Had the President followed this duty in the
case of Burr, the triumph of De Witt Clinton and Cheetham would have
been more difficult than it was; but the President feared Burr the less
because Burr’s newspaper, the “Morning Chronicle,” was respectable, while

the “Aurora” was unscrupulous, and to cherish Duane’s principles, whether
good or bad, was the only way of escaping the lash of his tongue. Jefferson
chose the path of caution in refusing to sustain Dallas and the “Quids”
against the party and the Legislature; but during the rest of his term he was
forced to endure Duane’s attachment, and to feel that Madison and Gallatin
were sacrificed to his own safety. Duane never hesitated to assert that he
was in Jefferson’s confidence and was acting in his interests,[131] and
commonly he or some of his friends could show a recent letter in the
President’s handwriting which gave color to their assertion.
The Pennsylvania schism was not serious. Governor McKean and
Dallas were alarmed when they saw the democratic system blundering in its
rude way, without taking sound advice or heeding trained lawyers; but only
the Federalists believed in a crisis. Society went undisturbed to its daily
duties in spite of Duane’s outcries and Dallas’s grumbling. The only result
of the Pennsylvania schism was to check the aggressive energy of the
democratic movement by alarming a few of the older leaders and causing
them to halt. From the day of Jefferson’s inauguration this tendency toward
reaction had begun, and it developed in party schisms which could not fail
to hurry the process. The symptom, however unpleasant to old political
leaders such as Jefferson, McKean, and Dallas, who liked the quiet
enjoyment of power, was healthy for society at large; but no one could fail
to be struck by the contrast which in this respect was offered by the two
great sections of the country. While the mobile, many-sided, restless
democracy of New England, New York, and Pennsylvania exhibited its
faults, and succeeded, with much personal abuse, in thrusting out the
elements foreign to its character which retarded its movement, the society
of the Southern States was classically calm. Not a breath disturbed the quiet
which brooded over the tobacco and cotton fields between the Potomac and
Florida. A Presidential election was taking place, but the South saw only
one candidate. The State legislatures quietly chose electors to vote for
Jefferson and Clinton. From the St. Mary’s to the Potomac and the Ohio,
every electoral voice was given to Jefferson. With some surprise the public
learned that Maryland gave two of eleven votes to C. C. Pinckney, who
received also the three votes of Delaware. This little State even went back
on its path, repudiated Cæsar A. Rodney, and returned to its favorite
Bayard, who was sent by a handsome majority to his old seat in the House
of Representatives. Broken for an instant only by this slight check, the tide

of democratic triumph swept over the States of Pennsylvania, New Jersey,
and New York, and burst upon Connecticut as though Jefferson’s hope of
dragging even that State from its moorings were at length to be realized.
With difficulty the Connecticut hierarchy held its own; and with despair
after the torrent passed by, it looked about and found itself alone. Even
Massachusetts cast 29,310 votes for Jefferson, against 25,777 for Pinckney.
Rarely was a Presidential election better calculated to turn the head of a
President, and never was a President elected who felt more keenly the
pleasure of his personal triumph. At the close of four years of
administration, all Jefferson’s hopes were fulfilled. He had annihilated
opposition. The slanders of the Federalist press helped to show that he was
the idol of four fifths of the nation. He received one hundred and sixty-two
of one hundred and seventy-six electoral votes, while in 1801 he had but
seventy-three in one hundred and thirty-eight; and in the Ninth Congress,
which was to meet in December, 1805, barely seven out of thirty-four
senators, and twenty-five out of one hundred and forty-one representatives,
would oppose his will. He described his triumph, in language studiously
modest, in a letter to Volney:[132]—
“The two parties which prevailed with so much violence when you were here are
almost wholly melted into one. At the late Presidential election I have received one
hundred and sixty-two votes against fourteen only. Connecticut is still Federalist by a
small majority, and Delaware on a poise, as she has been since 1775, and will be till
Anglomany with her yields to Americanism. Connecticut will be with us in a short
time. Though the people in mass have joined us, their leaders had committed
themselves too far to retract. Pride keeps them hostile; they brood over their angry
passions, and give them vent in the newspapers which they maintain. They still make
as much noise as if they were the whole nation.”

Such success might have turned the head of any philosopher that ever
sat on a throne. Easily elated, unwilling to forebode trouble, devoid of
humor, and unable to see himself in any but the heroic light, President
Jefferson basked in the sunshine of popularity and power as though it were
no passing warmth such as had led scores of kings into disaster, but shone
by virtue of some democratic law which rested on truth that could never
change. The White House was filled with an atmosphere of adulation.
Flattery, gross as any that man could ask, was poured into the President’s
ear, but was as nothing compared with the more subtle flattery of the
popular vote. No friend stopped him to ask how such a miraculous success
had been brought about. Four years had not passed since Jefferson and his

party had clamored against attempts to give energy to government; and no
one could ever forget that they claimed and received power from the people
in order to defend State-rights, restrict Executive influence, and correct
strained constructions of the Constitution. Who upheld State-rights in 1804,
and complained of Executive influence and strained constructions?
Certainly not Jefferson or his friends, but the monarchical Federalists, who
were fit inmates for an asylum. Whenever Jefferson had occasion to discuss
the aims and opinions of the two parties, he did not allude to the principles
set forth in 1798; not a word was said of “strict construction.” The only
theories opposed to his own which he could see in the political horizon
were those of a few hundred conservatives of the colonial epoch.
“What, in fact,” he wrote,[133] “is the difference of principle between the two
parties here? The one desires to preserve an entire independence of the executive and
legislative branches on each other and the dependence of both on the same source,—
the free election of the people. The other party wishes to lessen the dependence of the
Executive and of one branch of the Legislature on the people, some by making them
hold for life, some hereditary, and some even for giving the Executive an influence by
patronage or corruption over the remaining popular branch, so as to reduce the
elective franchise to its minimum.”

After nearly four years of Executive authority more complete than had
ever before been known in American history, Jefferson could see in himself
and in his principles only a negation of Executive influence. What had
become of the old radical division of parties,—the line between men who
wished the national government to exercise inherent powers of sovereignty
and those who held to a strict observance of powers expressly delegated by
the people of the States?
Jefferson said with truth that the two old parties were almost wholly
melted into one; but in this fusion his own party had shown even more
willingness than its opponents to mix its principles in a useful, but not
noble, amalgam. His own protests in regard to the Louisiana purchase and
the branch bank at New Orleans were recorded. With such evidence on their
side, the moderate Federalists who in the election of 1804 gave to Jefferson
the nineteen electoral votes of Massachusetts and the seven of New
Hampshire, could claim that they had altered no opinion they ever held; that
the government had suffered no change in principle from what it had been
under President Washington; that not a Federalist measure, not even the
Alien and Sedition laws, had been expressly repudiated; that the national
debt was larger than it had ever been before, the navy maintained and

energetically employed, the national bank preserved and its operations
extended; that the powers of the national government had been increased to
a point that made blank paper of the Constitution as heretofore interpreted
by Jefferson, while the national territory, vastly more than doubled in
extent, was despotically enlarged and still more despotically ruled by the
President and Congress, in the teeth of every political profession the
Republican party had ever made. Had this been the work of Federalists, it
would have been claimed as a splendid triumph of Federalist principles; and
the good sense of New England was never better shown than when
Massachusetts and New Hampshire flung aside their prejudices and told
Jefferson that they accepted his inaugural pledge to be a Federalist as they
were Republicans.
Every Federalist who came over and every State that joined the majority
weakened the relative influence of Virginia, and helped to dilute the
principles of the pure Virginia school. The new democrats in New England,
New York, and Ohio were Federalists in disguise, and cared nothing for
fine-spun constitutional theories of what government might or might not do,
provided government did what they wanted. They feared no corruption in
which they were to have a part. They were in secret jealous of Virginia, and
as devoted as George Cabot and Stephen Higginson to the interests of
commerce and manufactures. A majority of the Northern democrats were
men of this kind. Their dislike of Federalists was a social rather than
political feeling, for Federalist manners seemed to them a wilful
impertinence; but the Varnums and Crowninshields of Massachusetts cared
as little as De Witt Clinton or Aaron Burr for the notions of Speaker Macon
and John Randolph. As orators and leaders the Northern democrats made a
poor figure beside the Virginians; but their votes weighed more and more
heavily with every succeeding Congress, and both Randolph and Macon
were becoming suspicious that these votes were too apt to be cast against
the wishes of Virginia.
The second session of the Eighth Congress met on the first Monday in
November, as provided by a law passed in view of Judge Chase’s
impeachment. The President’s Message, sent to Congress Nov. 8, 1804, was
as usual toned to cheerful harmony. The income had reached eleven
millions and a half of dollars; more than three million six hundred thousand
dollars of the public debt had been discharged within the year, more than

twelve millions since 1801; and the revenue was still increasing.
Difficulties had risen with foreign nations, but no disturbance of the peace
was to be expected. The Indians were quiet. Gunboats were in course of
construction. No increase of the army was called for. Congress had only to
inquire whether anything remained to be done for the public good.
The Federalists were reduced to showing that Jefferson’s political
success had not chastened his style; for the Message contained a number of
sentences that exaggerated his peculiar faults of expression:—
“The war which was lighted up in Europe a little before our last meeting has not
yet extended its flames to other nations, nor been marked by the calamities which
sometimes stain the footsteps of war.”

The Federalists reasonably objected to the figure of a war which not
only extended flames but also made footsteps and marked them by
calamities which stained. Jefferson went on to say that he had bought from
the Delaware Indians the country between the Wabash and the Ohio:—
“This acquisition is important not only for its extent and fertility, but as fronting
three hundred miles on the Ohio, and near half that on the Wabash. The produce of the
settled country descending those rivers will no longer pass in view of the Indian
frontier but in a small portion, and with the cession heretofore made by the
Kaskaskias nearly consolidates our possessions north of the Ohio in a very respectable
breadth from Lake Erie to the Mississippi.”

Produce passing in view of a frontier in a portion and consolidating
possessions in a breadth did not suit fastidious Federalists; nor were they
satisfied with the President’s closing exhortation, requesting the Legislature
to inquire “whether laws are provided in all cases where they are wanting.”
They enjoyed their jests at Jefferson’s literary style; but with the public the
matter of the Message was more weighty than its manner. No kind of
criticism had less political value than that wasted on the style of a public
document.
Yet one thing was certainly wanting in this Message. No hint was given
that Congress stood in danger of overstepping the limits of its powers, or
would do well to return within them. This silence was not accidental; it
marked the moment of separation between Jefferson and the old
Republicans of 1798. Speaker Macon, John Randolph, and Joseph
Nicholson soon showed that they meant to take no such view of their duties.

Hardly had legislation begun, when Randolph, November 26, made a
report against the remission of duties on books imported for the use of
schools and colleges. The Constitution, he said, was a grant of limited
powers for general objects; its leading feature was an abhorrence of
exclusive privileges; impost must be uniform; if Congress could exempt
one class of the people from taxes, they might exempt other classes; and
although the practice had been different, and philosophical apparatus for the
use of schools was actually exempt by law, he believed that law to be
unconstitutional. The doctrine, which if carried to its ultimate conclusions
would have left hardly a tax on the statute-book, was accepted by the same
House which had supported Randolph in defending the Louisiana purchase
by arguments that, in President Jefferson’s opinion, left no Constitution at
all. Two days afterward Randolph repeated the lesson, and his friends
Macon and Nicholson came to his support. A Bill was before the House
authorizing the corporation of Georgetown to construct a dam or causeway
from Mason’s Island to the shore of the Potomac, in order to scour the
channel and improve navigation. Randolph affirmed that the Potomac was
the joint property of Maryland and Virginia, over which Congress had no
right to legislate; that the Bill authorized the corporation of Georgetown to
lay a tax which would be unequal and oppressive, because all Georgetown
property would not be equally benefited by deepening the harbor; and
finally, “he hoped a prompt rejection of the Bill would serve as a general
notice to the inhabitants of the District to desist from their daily and
frivolous applications to Congress.” Macon, Nicholson, and a number of the
Virginians spoke earnestly in the same sense. “So long as I have the honor
of a seat in the House,” said Nicholson, “I will hold up my hands against
any measure like the present, which would go to affect the rights of any of
the States. If Congress have a right to interfere in the least with the free
navigation of the Potomac, they have a right to stop it altogether.” In reply
to these exhortations the House passed the Bill by a vote of sixty-six to
thirty-eight; and more than enough Republicans voted for it to have passed
it without Federalist help.
The reason for this sudden decline of Randolph’s influence was not far
to seek. He was undertaking to act without concert with the President.
While he and his friends argued on the State-rights theory at one end of
Pennsylvania Avenue, Jefferson at the other end said openly, to Federalists
and Republicans alike, that such arguments were mere metaphysical

subtleties which ought to have no weight.[134] The next subject in debate
left no longer a doubt of the cleft opening between the old Republicans of
1798 and the Republicans of the future, with Jefferson and Madison at their
head. That Randolph had determined to fight for control of the party and for
the principles upon which it had come into office was clear; but the reason
for the suddenness and violence of his emotion was found in the once
famous story of the Yazoo Claims, which from his youth acted on his
passionate temper with the force of a point of honor.
As already told, Congress seemed about to settle these claims as early as
April, 1802, when the six commissioners made their Report.[135] John
Randolph and his friends were then supreme. Dec. 30, 1803, a few days
before the Federalists were startled by Randolph’s demand for the
impeachment of Judge Chase, the Northern democrats and the friends of
Madison were surprised by a Resolution offered by Randolph excluding
claimants under the Georgia grants of 1795 from any share in the proposed
settlement. A few weeks later, Feb. 20, 1804, Randolph withdrew this
Resolution, in order to introduce a series of declaratory Resolves, which,
after reciting the story of the Georgia grants, affirmed the right of Georgia
to rescind them, and forbade the appropriation of money to the settlement of
claims derived from them. March 7, 1804, he made a long and earnest
speech on the subject; and after a sharp struggle in a House nearly equally
divided, he succeeded in defeating action on the Bill. On the final vote of
postponement, March 12, 1804, he carried fifteen members of the Virginia
delegation with him. Of the three Republicans from Virginia who rejected
his lead, one was John G. Jackson, brother-in-law of the Secretary of State.
From that moment Randolph’s energies quickened in sympathy with old
Republican principles; and when he returned to Congress in November,
1804, he and his friends began at once to take extreme ground as champions
of State-rights. He lost no chance of enforcing his theories, whether in
regard to exemptions from taxes, or in denying to government power to
improve navigation within the District of Columbia, or in reproving the
people of Georgetown for proposing to lay a general tax on their property
for the betterment of their river front. He found the Administration opposed
to him. “Mere metaphysical subtleties,” said Jefferson. The influence of
Madison was strong in favor of the Yazoo Compromise, and the Northern
democrats supported the Secretary. A struggle for supremacy was imminent,

and its consequences were soon felt. The impeachment of Judge Chase was
Randolph’s measure, and received no support from Madison. The Yazoo
Compromise was Madison’s measure, and its defeat was Randolph’s
passionate wish.
The three branches of government were likely to be at variance on a
point of deep concern. No one who knew Chief-Justice Marshall could
doubt that he, and the Supreme Bench with him, would hold that the State
of Georgia was bound by its contract with the Land Companies. The
Administration had taken the ground that the State was not bound in law,
but that the United States should nevertheless make an equitable
compromise with the claimants. Randolph was bent on forcing Congress to
assert that a State had the right to repudiate its own acts where it was
evident that these acts were against common morality or public interest; and
that its decision in such a case should be final. The conflict was embittered
by the peculiarities of Randolph’s character. In his eyes, when such
questions of honor were involved, every man who opposed him seemed
base. Unfortunately the New England Mississippi Company secured the
services of Gideon Granger, the Postmaster-General, as their agent; and
Randolph’s anger became intense when, at the close of the year 1804, he
saw the Postmaster-General on the floor of the House openly lobbying for
the passage of the Bill.
At length, at the end of January, 1805, the House went into committee
on the Georgia claims, and Randolph for the first time displayed the full
violence of his temper. Hitherto as a leader he had been at times arrogant;
but from this moment he began the long series of personal assaults which
made him famous, as though he were the bully of a race course, dispensed
from regarding ordinary rules of the ring, and ready at any sudden impulse
to spring at his enemies, gouging, biting, tearing, and rending his victims
with the ferocity of a rough-and-tumble fight. The spectacle was revolting,
but terrific; and until these tactics lost their force by repetition, few men had
the nerve and quickness to resist them with success.
“Past experience has shown,” he cried, “that this is one of those subjects
which pollution has sanctified.” He treated the majority of the House as
corruptionists, “As if animated by one spirit, they perform all their
evolutions with the most exact discipline, and march in a firm phalanx
directly up to their object. Is it that men combined to effect some evil

purpose, acting on previous pledge to each other, are ever more in unison
than those who, seeking only to discover truth, obey the impulse of that
conscience which God has placed in their bosoms?” He fell upon Granger:
“Millions of acres are easily digested by such stomachs. Goaded by avarice,
they buy only to sell, and sell only to buy. The retail trade of fraud and
imposture yields too small and slow a profit to gratify their cupidity. They
buy and sell corruption in the gross.” He hinted that the Administration was
to blame: “Is it come to this? Are heads of executive departments to be
brought into this House, with all the influence and patronage attached to
them, to extort from us now what was refused at the last session of
Congress?” He closed by asserting that this was the spirit of Federalism,
and that Republicans who yielded to it were false to their party: “Of what
consequence is it that a man smiles in your face, holds out his hand, and
declare himself the advocate of those political principles to which you are
also attached, when you see him acting with your adversaries upon other
principles which the voice of the nation has put down, and which I did hope
were buried, never to rise again in this section of the globe?” He maintained
that the Federalist administrations had done no act so corrupt: “If Congress
shall determine to sanction this fraud upon the public, I trust in God we
shall hear no more of the crimes and follies of the former Administration.
For one, I promise that my lips upon this subject shall be closed in eternal
silence. I should disdain to prate about the petty larcenies of our
predecessors after having given my sanction to this atrocious public
robbery.”
The tirade could have no other result than a personal quarrel and a party
schism. Madison and the Administration had done nothing to deserve the
attack, and of course could not trust Randolph again. The question whether
the claimants had rights which the government would do well to
compromise was for the law to decide, and was ultimately settled by Chief-
Justice Marshall in their favor. The question of morality, in regard to
sanctioning fraud, though a much wider issue, was not to be settled ex
parte, but must abide by the answer to the question of law. Only the State-
rights difficulty remained; and even on that delicate ground, although the
right of Georgia to repudiate her own pledges under the plea of her own
corruption were conceded, the State-rights theory could not insist that this
act must bind other States, or affect any sovereignty except that which was
directly involved. After the property in question had been sold to the United

States government, Georgia need not prevent the purchaser from doing
what it would with its own. Randolph could not make State-rights serve his
whole purpose in the argument, and was obliged to rely on the charge of
sanctioning corruption and fraud,—a charge irrelevant to the claim of
innocent third parties like the New Englanders, unless he could prove their
complicity, which was not in his power.
Randolph’s harangue struck at the credit of Madison; and the conduct of
the Postmaster-General in acting as claim-agent cast a shadow of corruption
over the whole government. Madison’s friends were obliged to take up the
challenge; and his brother-in-law, John G. Jackson of Virginia, replied to
Randolph in a speech which was thought to bear evident marks of
Madison’s hand. Some of Jackson’s retorts carried a sting. Randolph had
dwelt much on the silence and discipline of the majority. “When
unprincipled men,” said he, “acquire the ascendency, they act in concert and
are silent.” “Silence and concert, then,” retorted Jackson, “are to him proofs
of corrupt motive. Is this always a correct position? Does the gentleman
recollect that measures were adopted a few years past without discussion,
by my political friends in conjunction with him, who were silent and
united?” Throughout Jackson’s speech ran a tone of irritating disregard for
his colleague, “whose influence in this House is equal to the rapacity of the
speculator whose gigantic grasp has been described by him as extending
from the shores of Lake Erie to the mouth of the Mobile.” Whether
Madison meant it or not, an impression prevailed in the House that in
Jackson’s speech the Secretary of State took up Randolph’s challenge with a
defiance equally strong.
Randolph returned to his charges, attacking Granger bitterly, but not yet
venturing to take the single step that remained to create a Virginia feud; he
left Jackson and Madison alone. He bore with something like patience the
retorts which his violence drew upon him, and his self-esteem made him
proof to the insults of democrats like Matthew Lyon, who thanked his
Creator “that he gave me the face of a man, not that of an ape or a monkey,
and that he gave me the heart of a man also.” After a long and ill-tempered
debate, Feb. 2, 1805, Randolph closed by an allusion to Madison and
Gallatin which implied hesitation. “When I first read their Report, I was
filled with unutterable astonishment, finding men in whom I had and still
have the highest confidence recommend a measure which all the facts and

all the reasons they had collected opposed and unequivocally condemned.”
Prudence restrained him from making a final breach with Madison; and
perhaps he was the more cautious because he felt the danger of pressing too
far his influence over Virginia sentiment which to this point supported his
opposition. When the House divided, a majority of sixty-three to fifty-eight
sustained the compromise, and ordered the committee of claims to report a
Bill; but in the minority Randolph found by his side every Republican
member of the Virginia delegation except two, one of whom was Jackson.
Even the two sons-in-law of President Jefferson voted against the Yazoo
claims. So strong was the current of opinion in Virginia, that Senator Giles
went about Washington[136] asserting that Jefferson himself would lose an
election there if he were known to favor the compromise, and that Jackson
would certainly be defeated. For the moment Randolph might fairly
suppose that in a contest for supremacy with the Secretary of State, his own
hold on Virginia was stronger than Madison’s. In spite of the majority
against him, he succeeded in postponing action on the Bill.
Perhaps his temper was further restrained by another motive. The trial
of Judge Chase was near at hand. Within a few days after the close of the
Yazoo debate, Randolph was to open the case for the managers before the
Senate; and he had reason to fear that the Northern democrats were
beginning to doubt the wisdom of this Virginia scheme.

CHAPTER X.
The schisms which characterized the last year of President Jefferson’s
first term increased the difficulty of convicting Justice Chase. Burr was still
Vice-President, and was sure not only to preside at the trial, but also, unless
conciliated, to encourage rebellion against the Virginians. He had warm
friends even in the Senate; and he was observed to cultivate close social
relations with John Smith, the senator from Ohio, whose vote was likely to
be necessary for conviction. Although the two senators from New York
were no friends of Burr, one of them, Dr. Samuel L. Mitchill, was known to
oppose impeachment; and not only he, but also his colleague, another John
Smith, when members of the House, voted against Randolph’s motion for a
committee of inquiry. Senator Bradley of Vermont privately talked with
earnestness against the Pickering impeachment, and never favored that of
Chase. His colleague, Israel Smith, shared his doubts. Twenty-three votes
were required to convict, and the Republicans had but twenty-five senators
against nine Federalists. A defection of three Republican senators would be
fatal; but the votes of at least five were in doubt.
Randolph’s attack on the Yazoo Republicans and on the friends of
Madison took from them all desire to strengthen his influence; while, as
though to complicate confusion, his assault on his own party was cheered
by Duane and the “Aurora,” until the Pennsylvania schism seemed about to
join with a Virginia schism for the overthrow of the judiciary in the first
place, and of Madison and Gallatin afterward. A collapse of the Republican
party was to be feared. In the success of impeachment, the interests of
Duane and Randolph were closely connected, and Duane controlled
Pennsylvania as Randolph ruled Virginia. Everything tended to show that
Chase’s conviction would add to the power already in the hands of these
two men; and hands less fitted to guide a government or less trusted by
moderate Republicans could hardly be found in either party.
Duane’s support of Randolph was the warmer because his own attack on
the judiciary failed. The Pennsylvania judges were brought to trial in
January, 1805. The managers for the Legislature, knowing no law
themselves and unable to persuade any competent Pennsylvania lawyer to
act as counsel, sent for Cæsar A. Rodney from Delaware to conduct the

case. So important did Randolph and Nicholson at Washington think the
success of the Pennsylvania impeachment, that at the end of December,
1804, they allowed Rodney to drop his work as member of Congress and
manager of Chase’s trial, in order to hurry to Lancaster and do battle with
Dallas, Jefferson’s district attorney, who was defending the judges. After a
long struggle, Jan. 28, 1805, the Senate at Lancaster came to a vote, and
Rodney was beaten. Thirteen senators declared the judges guilty,—three
less than the required two thirds.
This defeat of the impeachers occurred the day before Randolph
attacked Granger and the Yazoo claims in Congress. During the week that
preceded Chase’s trial, Randolph’s bad management or ill-luck seemed
accumulating disasters on his head. He roused needless hatred against
himself in Congress; his alliance with Duane was unsuccessful; he
exhausted his strength in fighting the Yazoo Bill, and was in no condition of
mind or body to meet the counsel of Judge Chase.
Neither the Administration nor his Virginia friends failed to support
Randolph. They made efforts to conciliate Burr, whose opposition to the
impeachment was most feared. Jefferson appointed J. B. Prevost of New
York, Burr’s stepson, a judge of the Superior Court at New Orleans; James
Brown, who married Mrs. Burr’s sister, was made secretary to the
Louisiana Territory and sent to govern St. Louis, solely on Burr’s
recommendation; James Wilkinson, one of Burr’s most intimate friends and
general-in-chief of the army, was made governor of the Louisiana Territory,
—an appointment directly opposed to Jefferson’s theories about the union
of civil and military authority.[137] Besides these conciliatory compliments
the President repeatedly invited Burr to dinner, and treated him with more
attention than ever before;[138] both Madison and Gallatin kept up friendly
relations with him; while Senator Giles of Virginia drew an Address to
Governor Bloomfield of New Jersey, and caused it to be signed by all the
senators who could be induced to let their names be used, requesting that a
nolle prosequi should be entered on the indictment against Burr found by
the grand jury of Bergen county.
The Virginians closed their quarrels for the moment in order to support
the impeachment. William B. Giles, who came to the Senate in place of
Wilson Cary Nicholas, acted as Randolph’s representative in shaping the

Senate’s rules.[139] He canvassed its members, and dealt with those who
doubted, laboring earnestly and openly to bring senators to the Virginia
standpoint, as fixed by him in a speech intended to serve as guide in
framing rules for the proceedings about to begin. This speech, made Dec.
20, 1804,[140] maintained that the Constitution put no limit on
impeachment, but said only that the Senate should try all impeachments;
and therefore, while any civil officer convicted of treason, bribery, or other
high crimes and misdemeanors should be removed from office, in all other
cases not enumerated the Senate might at its discretion remove, disqualify,
or suspend the officer. Thus Judge Pickering had been removed, said Giles,
though undoubtedly insane and incapable of committing any crime or of
making his defence. “So the assumption of power on the part of the
Supreme Court in issuing their process to the office of the Secretary of
State, directing the Executive how a law of the United States should be
executed, and the right which the courts have assumed to themselves of
reviewing and passing upon the Acts of the Legislature in other cases,”
were matter of impeachment. In arguing this thesis Giles was obliged to
take the ground that the Senate was not a court, and ought to discard all
analogy with a court of justice;[141] impeachment need imply no criminality
or corruption, and removal was nothing more than a notice to the
impeached officer that he held opinions dangerous to the State, and that his
office must be put in better hands. He induced the Senate to strike out the
word “court” where it occurred in the proposed rules;[142] and at length
went so far as to deny that the secretary of the Senate could administer the
oath to witnesses, or that the Senate had power to authorize the secretary to
administer such an oath, but must send for a magistrate competent for the
purpose. Unfortunately for him, the impeachment of Judge Pickering was a
precedent directly opposed to this doctrine. He was compelled to submit
while the Senate unwillingly took the forms of a court.
Giles’s view of impeachment, which was the same with that of
Randolph, had the advantage of being clear and consistent. The opposite
extreme, afterward pressed by Luther Martin and his associate counsel for
the defence, restricted impeachment to misdemeanors indictable at law,—a
conclusion not to be resisted if the words of the Constitution were to be
understood in a legal sense. Such a rule would have made impeachment
worthless for many cases where it was likely to be most needed; for

comparatively few violations of official duty, however fatal to the State,
could be brought within this definition. Giles might have quoted Madison in
support of the broader view; and if Madison did not understand the
Constitution, any other Virginian might be excused for error. So far back as
the year 1789, when Congress began to discuss the President’s powers,
Madison said: “I contend that the wanton removal of meritorious officers
would subject him to impeachment and removal from his own high trust.”
Such a misdemeanor was certainly not indictable, and could not technically
be brought within the words of the Constitution; it was impeachable only on
Giles’s theory.
The Senate became confused between these two views, and never knew
on what theory it acted. Giles failed to take from its proceedings the
character of a court of justice; but though calling itself a court of justice, it
would not follow strict rules of law. The result was a nondescript court,
neither legal nor political, making law and voting misdemeanors for itself
as it went, and stumbling from one inconsistency to another.
The managers added to the confusion. They put forward no steady
theory of their own as to the nature of impeachment; possibly differing in
opinion, they intentionally allotted different lines of argument to each. In
opening the case, Feb. 20, 1805, one of the managers, George W. Campbell
of Tennessee, took the ground that “misdemeanor” in the Constitution need
imply no criminality. “Impeachment,” said he, “according to the meaning of
the Constitution, may fairly be considered a kind of inquest into the conduct
of an officer merely as it regards his office.... It is more in the nature of a
civil investigation than of a criminal prosecution.” Such seemed to be the
theory of the managers and of the House; for although the articles of
impeachment reported by Randolph in March, 1804, had in each case
alleged acts which were inspired by an evil intent to oppress the victim or to
excite odium against the Government, and were at least misdemeanors in
the sense of misbehavior, Randolph at the last moment slipped into the
indictment two new articles, one of which alleged no evil intent at all, while
both alleged, at worst, errors in law such as every judge in the United States
had committed. Article V. charged that Chase had issued a capias against
Callender, when the law of Virginia required a summons to appear at the
next court. Article VI. charged that he had, “with intent to oppress,” held
Callender for trial at once, contrary to the law of Virginia. Every judge on

the Supreme Bench had ruled that United States courts were not bound to
follow the processes of the State courts; Chief-Justice Marshall himself, as
Giles threatened, must be the first victim if such an offence were a
misdemeanor in constitutional law.
That a judge was impeachable for a mistake in declaring the law seemed
therefore to be settled, so far as the House and its managers could decide
the point. Judge Chase’s counsel assumed that this principle, which had
been so publicly proclaimed, was seriously meant; and one after another
dwelt on the extravagance of the doctrine that a civil officer should be
punished for mere error of judgment. In reply, Joseph H. Nicholson,
Randolph’s closest ally, repudiated the theory on which he had himself
acted in Pickering’s case, and which Giles, Randolph, and Campbell
pressed; he even denied having heard such ground taken as that an
impeachment was a mere inquest of office:—
“For myself, I am free to declare that I heard no such position taken. If
declarations of this kind have been made, in the name of the managers I here disclaim
them. We do contend that this is a criminal prosecution for offences committed in the
discharge of high official duties, and we now support it,—not merely for the purpose
of removing an individual from office, but in order that the punishment inflicted on
him may deter others from pursuing the baneful example which has been set them.”

The impeachment, then, was a criminal prosecution, and the Senate was
a criminal court; yet no offence was charged which the law considered a
misdemeanor, while error of judgment, with no imputed ill-intent, was
alleged as a crime.
Staggering under this load of inconsistencies, uncertain what line of
argument to pursue, and ignorant whether the Senate would be ruled by
existing law or invent a system of law of its own, the managers, Feb. 9,
1805, appeared in the Senate chamber to open their case and produce their
witnesses. Upon the popular imagination of the day the impeachment of
Warren Hastings had taken deep hold. Barely ten years had passed since the
House of Lords rendered its judgment in that famous case; and men’s minds
were still full of associations with Westminster Hall. The impeachment of
Judge Chase was a cold and colorless performance beside the melodramatic
splendor of Hastings’s trial; but in the infinite possibilities of American
democracy, the questions to be decided in the Senate chamber had a weight
for future ages beyond any that were then settled in the House of Lords.
Whether Judge Chase should be removed from the bench was a trifling

matter; whether Chief-Justice Marshall and the Supreme Court should hold
their power and principles against this combination of State-rights
conservatives and Pennsylvania democrats was a subject for grave
reflection. Men who did not see that the tide of political innovation had
long since turned, and that the French revolution was no longer raging,
were consumed with anxiety for the fate of Chase, and not wholly without
reason; for had Marshall been a man of less calm and certain judgment, a
single mistake by him might easily have prostrated the judiciary at the feet
of partisans.
By order of the Vice-President the Senate chamber was arranged in
accordance with his ideas of what suited so grave an occasion. His own
chair stood, like that of the chief-justice in the court-room, against the wall,
and on its right and left crimson benches extended like the seats of associate
judges, to accommodate the thirty-four senators, who were all present. In
front of the Vice-President, on the right, a box was assigned to the
managers; on the left, a similar box was occupied by Justice Chase and his
counsel. The rest of the floor was given to members of the House, foreign
ministers, and other official persons. Behind these a new gallery was
erected especially for ladies, and at each end of this temporary gallery
boxes were reserved for the wives and families of public officers. The upper
and permanent gallery was public. The arrangement was a mimic
reproduction of the famous scene in Westminster Hall; and the little society
of Washington went to the spectacle with the same interest and passion
which had brought the larger society of London to hear the orations of
Sheridan and Burke.
Before this audience Justice Chase at last appeared with his array of
counsel at his side,—Luther Martin, Robert Goodloe Harper, Charles Lee,
Philip Barton Key, and Joseph Hopkinson. In such a contest weakness of
numbers was one element of strength; for the mere numbers of
Congressmen served only to rouse sympathy for the accused. The contest
was unequal in another sense, for the intellectual power of the House was
quite unable on the field of law to cope with the half-dozen picked and
trained champions who stood at the bar. Justice Chase alone was a better
lawyer than any in Congress; Luther Martin could easily deal with the
whole box of managers; Harper and Lee were not only lawyers, but
politicians; and young Hopkinson’s genius was beyond his years.

In the managers’ box stood no lawyer of corresponding weight. John
Randolph, who looked upon the impeachment as his personal act, was not
only ignorant of law, but could not work by legal methods. Joseph H.
Nicholson and Cæsar A. Rodney were more formidable; but neither of them
would have outweighed any single member of Chase’s counsel. The four
remaining managers, all Southern men, added little to the strength of their
associates. John Boyle of Kentucky lived to become chief-justice of that
State, and was made district judge of the United States by a President who
was one of the Federalist senators warmly opposed to the impeachment.
George Washington Campbell of Tennessee lived to be a senator, Secretary
of the Treasury, and minister to Russia. Peter Early of Georgia became a
judge on the Supreme Bench of his own State. Christopher Clark of
Virginia was chosen only at the last moment to take the place of Roger
Nelson of Maryland, who retired. None of them rose much above the
average level of Congress; and Chase’s counsel grappled with them so
closely, and shut them within a field so narrow, that no genius could have
found room to move. From the moment that the legal and criminal character
of impeachment was conceded, Chase’s counsel dragged them hither and
thither at will.
Feb. 9, 1805, the case was opened by John Randolph. Randolph claimed
to have drawn all the articles of impeachment with his own hand. If any one
understood their character, it was he; and the respondent’s counsel naturally
listened with interest for Randolph’s explanation or theory of impeachment,
and for the connection he should establish between his theory and his
charges. These charges were numerous, but fell under few heads. Of the
eight articles which Randolph presented, the first concerned the judge’s
conduct at the trial of John Fries for treason in Philadelphia in 1800; the
five following articles alleged a number of offences committed during the
trial of James Thompson Callender for libel at Richmond in that year;
Article VII. charged as a misdemeanor the judge’s refusal, in the same year,
to dismiss the grand jury in Delaware before indicting a seditious printer;
finally, Article VIII. complained of the judge’s harangue to the grand jury at
Baltimore in May, 1803, which it characterized as “highly indecent,
extrajudicial, and tending to prostitute the high judicial character with
which he was invested to the low purpose of an electioneering partisan.”

Serious as some of these charges certainly were,—for in the case of
Callender, even more than in that of Fries, Chase’s temper had led him to
strain, if not to violate, the law,—none of the articles alleged an offence
known to the statute-books or the common law; and Randolph’s first task
was to show that they could be made the subject of impeachment, that they
were high crimes and misdemeanors in the sense of the Constitution, or that
in some sense they were impeachable. Instead of arguing this point, he
contented himself by declaring the theory of the defence to be monstrous.
His speech touched the articles, one by one, adding little to their force, but
piling one mistake on another in its assertions of fact and assumptions of
law.
Ten days passed in taking evidence before the field was cleared and the
discussion began. Then, Feb. 20, 1805, Early and Campbell led for the
managers in arguments which followed more or less closely in Randolph’s
steps, inferring criminality in the accused from the manifest tenor of his
acts. Campbell ventured to add that he was not obliged to prove the accused
to have committed any crime known to the law,—it was enough that he had
transgressed the line of official duty with corrupt motives; but this timid
incursion into the field of the Constitution was supported by no attempt at
argument. “I lay it down as a settled rule of decision,” said he, “that when a
man violates a law or commits a manifest breach of his duty, an evil intent
or corrupt motive must be presumed to have actuated his conduct.”
Joseph Hopkinson opened for the defence. Friends and enemies joined
in applauding the vigor of this young man’s attack. The whole effort of
Chase’s counsel was to drive the impeachers within the limits of law, and
compel them to submit to the restrictions of legal methods. Hopkinson
struck into the heart of the question. He maintained that under the
Constitution no judge could be lawfully impeached or removed from office
for any act or offence for which he could not be indicted; “misdemeanor,”
he argued, was a technical term well understood and defined, which meant
the violation of a public law, and which, when occurring in a legal
instrument like the Constitution, must be given its legal meaning. After
stating this proposition with irresistible force, he dealt with Article I. of the
impeachment, which covered the case of Fries, and shook it to pieces with
skill very unlike the treatment of Early and Campbell. Barton Key next
rose, and dealt with Articles II., III., and IV., covering part of Callender’s

case; he was followed by Charles Lee, who succeeded in breaking down
Randolph’s interpolated Articles V. and VI. Then Luther Martin appeared on
the scene, and the audience felt that the managers were helpless in his
hands.
This extraordinary man—“unprincipled and impudent Federalist
bulldog,” as Jefferson called him—revelled in the pleasure of a fight with
democrats. The bar of Maryland felt a curious mixture of pride and shame
in owning that his genius and vices were equally remarkable. Rough and
coarse in manner and expression, verbose, often ungrammatical, commonly
more or less drunk, passionate, vituperative, gross, he still had a mastery of
legal principles and a memory that overbalanced his faults, an audacity and
humor that conquered ill-will. In the practice of his profession he had
learned to curb his passions until his ample knowledge had time to give the
utmost weight to his assaults. His argument at Chase’s trial was the climax
of his career; but such an argument cannot be condensed in a paragraph. Its
length and variety defied analysis within the limits of a page, though its
force made other efforts seem unsubstantial.
Martin covered the same ground that his associates had taken before
him, dwelling earnestly on the contention that an impeachable offence must
be also indictable. Harper followed, concluding the argument for the
defence, and seeming to go beyond his associates in narrowing the field of
impeachment; for he argued that it was a criminal prosecution, which must
be founded on some wilful violation of a known law of the land,—a line of
reasoning which could end only in requiring the violation of an Act of
Congress. This theory did not necessarily clash with that of Martin. No
hesitation or inconsistency was shown on the side of the defence; every
resource of the profession was used with energy and skill.
The managers then put forward their best pleaders; for they had need of
all their strength. Nicholson began by disavowing the idea that
impeachment was a mere inquest of office; this impeachment was, he said,
a criminal prosecution intended not merely to remove, but to punish, the
offender. On the other hand, he maintained that since judges held their
commissions during good behavior, and could be removed only by
impeachment, the Constitution must have intended that any act of
misbehavior should be considered a misdemeanor. He showed the
absurdities which would rise from construing the Constitution in a legal

sense. His argument, though vigorous and earnest, and offering the
advantages of a plausible compromise between two extreme and
impracticable doctrines, yet evidently strained the language of the
Constitution and disregarded law. As Nicholson himself said, he discarded
legal usage: “In my judgment the Constitution of the United States ought to
be expounded upon its own principles, and foreign aid ought never to be
called in. Our Constitution was fashioned after none other in the known
world; and if we understand the language in which it is written, we require
no assistance in giving it a true exposition.” He wanted a construction
“purely and entirely American.” In the mouth of a strict constructionist this
substitution of the will of Congress for the settled rules of law had as
strange a sound as Luther Martin could have wished, and offered another
example of the instinct, so striking in the Louisiana debate, which not even
Nicholson, Randolph, or Jefferson himself could always resist.
Rodney, the same day, followed Nicholson; and as though not satisfied
with his colleague’s theory, did what Nicholson, in the name of all the
managers, had a few hours before expressly disclaimed,—he adopted and
pressed Giles’s theory of impeachment with all the precision of language he
could command. Nicholson seemed content to assume impeachment as
limited to “treason, bribery, or other high crimes and misdemeanors;” but in
his view misbehavior might be construed as a misdemeanor in a “purely
and entirely American” sense. Rodney was not satisfied with this argument,
and insisted that the Constitution imposed no limit on impeachment.
“Is there a word in the whole sentence,” he asked, “which expresses an idea, or
from which any fair inference can be drawn, that no person shall be impeached but for
‘treason, bribery, or other high crimes and misdemeanors?’... From the most cursory
and transient view of this passage I submit with due deference that it must appear very
manifest that there are other cases than those here specified for which an
impeachment will lie and is the proper remedy.”

The judges held their offices during good behavior; the instant a judge
should behave ill his office became forfeited. To ascertain the fact
“officially, or rather judicially,” impeachment was provided; the authority
of the Senate was therefore coextensive with the complaint.
Rodney stated this principle broadly, but did not rest upon it; on the
contrary, he accepted the respondent’s challenge, and undertook to show
that Chase had been guilty of crimes and misdemeanors in the technical
sense of the term. Probably he was wise in choosing this alternative; for no

one could doubt that his constitutional doctrine was one into which Chase’s
counsel were sedulously trying to drive him. If Rodney was right, the
Senate was not a court of justice, and should discard judicial forms. Giles
had seen this consequence of the argument, and had acted upon it, until
beaten by its inevitable inconsistencies; at least sixteen senators were
willing to accept the principle, and to make of impeachment an “official, or
rather judicial,” inquest of office. Judge Chase’s counsel knew also that
some half-dozen Republican senators feared to allow a partisan majority in
the Senate to decide, after the fact, that such or such a judicial opinion had
forfeited the judge’s seat on the bench. This practice could end only in
making the Senate, like the House of Lords, a court of last appeal. Giles
threatened to impeach Marshall and the whole Supreme Court on Rodney’s
theory; and such a threat was as alarming to Dr. Mitchill of New York, or
Senator Bradley of Vermont, as it was to Pickering and Tracy.
When Rodney finished, the theory of impeachment was more perplexed
than ever, and but one chance remained to clear it. All the respondent’s
counsel had spoken in their turn; all the managers had expounded their
theories: John Randolph was to close. Randolph was an invalid,
overwhelmed by work and excitement, nervous, irritable, and not to be
controlled. When he appeared in the box, Feb. 27, 1805, he was unprepared;
and as he spoke, he not only made his usual long pauses for recollection,
but continually complained of having lost his notes, of his weakness, want
of ability, and physical as well as moral incompetence. Such expressions in
the mouths of other men might have passed for rhetoric; but Randolph’s
speech showed that he meant all he said. He too undertook to answer the
argument of Luther Martin, Harper, and Hopkinson on the nature of
impeachment; but he answered without understanding it,—calling it
“almost too absurd for argument,” “a monstrous pretension,” “a miserable
quibble,” but advancing no theory of his own, and supporting neither
Campbell’s, Nicholson’s, nor Rodney’s opinion. After a number of
arguments which were in no sense answers, he said he would no longer
worry the good sense of the Court by combating such a claim,—a claim
which the best lawyers in America affirmed to be sound, and the two ablest
of the managers had exhausted themselves in refuting.
Randolph’s closing speech was overcharged with vituperation and with
misstatements of fact and law, but was chiefly remarkable on account of the

strange and almost irrational behavior of the speaker. Randolph’s tall, thin
figure, his penetrating eyes and shrill voice, were familiar to the society of
Washington, and his violence of manner in the House only a short time
before, in denouncing Granger and the Yazoo men, had prepared his
audience for some eccentric outburst; but no one expected to see him, “with
much distortion of face and contortion of body, tears, groans, and sobs,”
break down in the middle of his self-appointed task, and congratulate the
Senate that this was “the last day of my sufferings and of yours.”[143]
The next day the Senate debated the form of its final judgment.[144]
Bayard moved that the question should be put: “Is Samuel Chase guilty or
not guilty of a high crime or misdemeanor as charged in the article just
read?” The point was vital; for if this form should be adopted, the Senate
returned to the ground it had deserted in the case of Judge Pickering, and
every senator would be obliged to assert that Chase’s acts were crimes. At
this crisis Giles abandoned the extreme impeachers. He made a speech
repeating his old argument, and insisting that the House might impeach and
the Senate convict not only for other than indictable offences, but for other
than high crimes and misdemeanors; yet since in the present case the
charges were avowedly for high crimes and misdemeanors, he was willing
to take the question as Bayard proposed it, protesting meanwhile against its
establishment as a precedent. Bayard’s Resolution was adopted March 1, a
few moments before the hour of half-past twelve, which had been appointed
for pronouncing judgment.
The Senate chamber was crowded with spectators when Vice-President
Burr took the chair and directed the secretary to read the first article of
impeachment. Every member of the Senate answered to his name. Tracy of
Connecticut, prostrated by recent illness, was brought on a couch and
supported to his seat, where his pale face added to the serious effect of the
scene. The first article, which concerned the trial of Fries, was that on
which Randolph had founded the impeachment, and on which the managers
had thrown perhaps the greatest weight. As the roll was called, Senator
Bradley of Vermont, first of the Republican members, startled the audience
by saying “Not Guilty.” Gaillard of South Carolina, and, to the
astonishment of every one, Giles, the most ardent of impeachers, repeated
the same verdict. These three defections decided the result; but they were
only the beginning. Jackson of Georgia, another hot impeacher, came next;

then Dr. Mitchill, Samuel Smith of Maryland, and in quick succession all
the three Smiths of New York, Ohio, and Vermont. A majority of the Senate
declared against the article, and the overthrow of the impeachers was
beyond expectation complete.
On the second article the acquittal was still more emphatic; but on the
third the impeachers rallied,—Giles, Jackson, and Samuel Smith returned to
their party, and for the first time a majority appeared for conviction. Yet
even with this support, the impeachers were far from obtaining the required
twenty-three votes; the five recalcitrant Northern democrats stood firm;
Gaillard was not to be moved, and Stone of North Carolina joined him:—
the impeachers could muster but eighteen votes. They did no better on the
fourth article. On the fifth,—Randolph’s interpolated charge, which alleged
no evil intent,—every member of the Senate voted “Not Guilty;” on the
sixth, which was little more than a repetition of the fifth, only four senators
could be found to condemn, and on the seventh, only ten. One chance of
conviction remained, the eighth article, which covered the judge’s charge to
the grand jury at Baltimore in 1803. There lay the true cause of
impeachment; yet this charge had been least pressed and least defended.
The impeachers brought out their whole strength in its support; Giles,
Jackson, Samuel Smith, and Stone united in pronouncing the judge guilty:
but the five Northern democrats and Gaillard held out to the last, and the
managers saw themselves deserted by nearly one fourth of the Republican
senators. Nineteen voices were the utmost that could be induced to sustain
impeachment.
The sensation was naturally intense; and yet the overwhelming nature of
the defeat would have warranted an excitement still greater. No one
understood better the meaning of Chase’s acquittal than John Randolph,
whose authority it overthrew. His anger showed itself in an act which at
first alarmed and then amused his enemies. Hurrying from the Senate
chamber to the House, he offered a Resolution for submitting to the States
an amendment to the Constitution: “The judges of the Supreme and all
other courts of the United States shall be removed by the President on the
joint address of both Houses of Congress.” His friend Nicholson, as though
still angrier than Randolph, moved another amendment,—that the
legislature of any State might, whenever it thought proper, recall a senator

and vacate his seat. These resolutions were by a party vote referred to the
next Congress.
Randolph threatened in vain; the rod was no longer in his hands. His
overthrow before the Senate was the smallest of his failures. The Northern
democrats talked of him with disgust; and Senator Cocke of Tennessee, who
had voted “Guilty” on every article of impeachment except the fifth, told
his Federalist colleagues in the Senate that Randolph’s vanity, ambition,
insolence, and dishonesty, not only in the impeachment but in other matters,
were such as to make the acquittal no subject for regret.[145] Madison did
not attempt to hide his amusement at Randolph’s defeat. Jefferson held
himself studiously aloof. To Jefferson and men of his class Randolph seems
to have alluded, in a letter written a few weeks later, as “whimsicals,” who
“advocated the leading measures of their party until they were nearly ripe
for execution, when they hung back, condemned the step after it was taken,
and on most occasions affected a glorious neutrality.”[146] Even Giles turned
hostile. He not only yielded to the enemies of Randolph in regard to the
form of vote to be taken on the impeachment, and fairly joined them in the
vote on the first article, but he also aided in offering Randolph a rebuke on
another point connected with the impeachment.
In the middle of the trial, February 15, Randolph reported to the House,
and the House quickly passed, a Bill appropriating five thousand dollars for
the payment of the witnesses summoned by the managers. When this Bill
came before the Senate, Bayard moved to amend it by extending its
provisions to the witnesses summoned by Judge Chase. The point was
delicate; for if the Senate was a court, and impeachment a criminal
procedure, this court should follow the rules that guided other judicial
bodies; and every one knew that no court in America or in Christendom
obliged the State, as a prosecutor, to pay the witnesses of the accused. After
the acquittal, such a rule was either equivalent to telling the House that its
charges against Chase were frivolous and should never have been
presented, or it suggested that the trial had been an official inquiry into the
conduct of an officer, and not a criminal procedure at law. The Republicans
might properly reject the first assumption, the Federalists ought to resist the
second; yet when Bayard’s amendment came to a vote, it was unanimously
adopted.[147] The House disagreed; the Senate insisted, and Giles led the
Senate, affirming that he had drawn the form of summons, and that this

form made no distinction between the witnesses for one party and the other.
The argument was not decisive, for the court records showed at once by
whom each witness was called; but Giles’s reasoning satisfied the Senate,
and led to his appointment, March 3, with Bradley, an enemy of
impeachment, as conferrees to meet Randolph, Nicholson, and Early on the
part of the House. They disagreed; and Randolph, with his friends, felt that
Giles and the Senate had inflicted on them a grievous insult. The Report of
the conference committee was received by the House at about seven o’clock
on the evening of March 3, when the Eighth Congress was drawing its last
breath. Randolph, who reported the disagreement, moved that the House
adhere; and having thus destroyed the Bill, he next moved that the Clerk of
the House should be directed to pay the witnesses, or any other expense
certified by the managers, from the contingent fund. He would have carried
his point, although it violated every financial profession of the Republican
party, but that the House was thin, and the Federalists, by refusing to vote,
prevented a quorum. At half-past nine o’clock on Sunday night, the 3d of
March, 1805, the Eighth Congress came to an end in a scene of total
confusion and factiousness.
The failure of Chase’s impeachment was a blow to the Republican party
from which it never wholly recovered. Chief-Justice Marshall at length was
safe; he might henceforward at his leisure fix the principles of
Constitutional law. Jefferson resigned himself for the moment to
Randolph’s overthrow; but the momentary consolations passed away, and a
life-long disappointment remained. Fifteen years later his regret was
strongly expressed:—
“The Judiciary of the United States,” mourned the old ex-President,[148] “is the
subtle corps of sappers and miners constantly working underground to undermine the
foundations of our confederated fabric. They are construing our Constitution from a
co-ordination of a general and special government to a general and supreme one
alone.... Having found from experience that impeachment is an impracticable thing, a
mere scarecrow, they consider themselves secure for life; they skulk from
responsibility; ... an opinion is huddled up in conclave, perhaps by a majority of one,
delivered as if unanimous, and with the silent acquiescence of lazy or timid
associates, by a crafty chief-judge who sophisticates the law to his mind by the turn of
his own reasoning.”

The acquittal of Chase proved that impeachment was a scarecrow; but
its effect on impeachment as a principle of law was less evident. No point
was decided. The theory of Giles, Randolph, and Rodney was still intact,

for it was not avowedly applied to the case. The theory of Judge Chase’s
counsel—that an impeachable offence must be also indictable, or even a
violation of some known statute of the United States—was overthrown
neither by the argument nor by the judgment. So far as Constitutional law
was concerned, President Jefferson himself might still be impeached,
according to the dictum of Madison, for the arbitrary removal of a useful
tide-waiter, and Chief-Justice Marshall might be driven from the bench, as
Giles wished, for declaring the Constitution to be above the authority of a
statute; but although the acquittal of Chase decided no point of law except
his innocence of high crimes or misdemeanors, as charged in the
indictment, it proved impeachment to be “an impracticable thing” for
partisan purposes, and it decided the permanence of those lines of
Constitutional development which were a reflection of the common law.
Henceforward the legal profession had its own way in expounding the
principles and expanding the powers of the central government through the
Judiciary.

CHAPTER XI.
The Louisiana treaty, signed in May, 1803, was followed by two years
of diplomatic activity. The necessary secrecy of diplomacy gave to every
President the power to involve the country without its knowledge in dangers
which could not be afterward escaped, and the Republican party neither
invented nor suggested means by which this old evil of irresponsible
politics could be cured; but of all Presidents, none used these arbitrary
powers with more freedom and secrecy than Jefferson. His ideas of
Presidential authority in foreign affairs were little short of royal. He loved
the sense of power and the freedom from oversight which diplomacy gave,
and thought with reason that as his knowledge of Europe was greater than
that of other Americans, so he should be left to carry out his policy
undisturbed.
Jefferson’s overmastering passion was to obtain West Florida. To this
end two paths seemed open. If he chose to conciliate, Yrujo was still ready
to aid; and Spain stood in such danger between England and France that
Godoy could not afford to throw the United States into the hands of either.
If Jefferson wished the friendship of Spain, he had every reason to feel sure
that the Prince of Peace would act in the same spirit in which he had
negotiated the treaty of 1795 and restored the right of deposit in 1802. In
this case Florida must be let alone until Spain should be willing to cede, or
the United States be ready for war.
On the other hand, the President might alienate Spain and grasp at
Florida. Livingston and Monroe warmly urged this policy, and were in fact
its authors. Livingston’s advice would by itself have had no great weight
with Jefferson or Madison, but they believed strongly in Monroe; and when
he made Livingston’s idea his own, he gave it weight. Monroe had been
sent abroad to buy Florida; he had bought Louisiana. From the Potomac to
the Mississippi, every Southern man expected and required that by peace or
war Florida should be annexed to the Union; and the annexation of
Louisiana made that of Florida seem easy. Neither Monroe, Madison, nor
Jefferson could resist the impulse to seize it.

Livingston’s plan has been described. He did not assert that Spain had
intended to retrocede Florida to France, or that France had claimed it as
included in the retrocession. He knew the contrary; and tried in vain to find
some one willing to say that the country to the Perdido ought to be included
in the purchase. He made much of Marbois’s cautious encouragement and
Talleyrand’s transparent manœuvres; but he was forced at last to maintain
that Spain had retroceded West Florida to France without knowing it, that
France had sold it to the United States without suspecting it, that the United
States had bought it without paying for it, and that neither France nor Spain,
although the original contracting parties, were competent to decide the
meaning of their own contract. Believing that Bonaparte was pledged to
support the United States in their effort to obtain West Florida, Livingston
was anxious only to push Spain to the utmost. Talleyrand allowed him to
indulge in these dreams. “I have obtained from him,” wrote Livingston to
Madison,[149] “a positive promise that this government shall aid any
negotiation that shall be set on foot” for the purchase of East Florida; while
as for Florida west of the Perdido, “the moment is so favorable for taking
possession of that country, that I hope it has not been neglected, even
though a little force should be necessary to effect it. Your minister must find
the means to justify it.”
When the letters written by Livingston and Monroe in May, 1803,
reached Washington, they were carefully studied by the President, fully
understood, and a policy quickly settled. When Jefferson wrote to Senator
Breckenridge his ideas on the unconstitutionality of the purchase, he spoke
with equal clearness on the course he meant to pursue toward Spain in order
to obtain Florida:[150]—
“We have some claims to extend on the sea-coast westwardly to the Rio Norte or
Bravo, and, better, to go eastwardly to the Rio Perdido, between Mobile and
Pensacola, the ancient boundary of Louisiana. These claims will be a subject of
negotiation with Spain; and if as soon as she is at war we push them strongly with one
hand, holding out a price with the other, we shall certainly obtain the Floridas, and all
in good time.”

This was not Livingston’s plan, but something quite distinct from it.
Livingston and Monroe wanted the President to seize West Florida, and
negotiate for East Florida. Jefferson preferred to negotiate for West Florida
and to leave East Florida alone for the time.

Madison had already instructed[151] the minister at Madrid that the
Floridas were not included in the treaty, “being, it appears, still held by
Spain,” and that the negotiation for their purchase would be conducted by
Monroe at Madrid. Instructions of the same date were instantly sent to
Monroe,[152] urging him to pursue the negotiation for Florida, although
owing to the large drain made on the Treasury, and to the “manifest course
of events,” the government was not disposed to make sacrifices for the sake
of obtaining that country. “Your inquiries may also be directed,” wrote
Madison, “to the question whether any, and how much, of what passes for
West Florida be fairly included in the territory ceded to us by France.”
The idea that West Florida could be claimed as a part of the Louisiana
purchase was a turning-point in the second Administration of Jefferson.
Originating in Minister Livingston’s mind, it passed from him to Monroe;
and in a few weeks the President declared the claim substantial.[153] As the
summer of 1803 closed, Jefferson’s plan became clear. He meant to push
this claim, in connection with other claims, and to wait the moment when
Spain should be dragged into the war between France and England.
These other claims were of various degrees of merit, and involved
France as well as Spain. During the quasi war between the United States
and France, before Jefferson came into power, American commerce in
Spanish waters suffered severely from two causes. The first consisted in
captures made by Spanish cruisers, and condemnations decided in Spanish
courts; the second was due to captures made by French cruisers, and
condemned by French consuls in Spanish ports, or by courts of appeal in
France, without regard to the rights or dignity of Spain. With much trouble,
in August, 1802, at the time when Europe and America were waiting for the
end of Leclerc’s struggle with the negroes and fevers of St. Domingo,
Pinckney succeeded in persuading the Prince of Peace to let the claims for
Spanish depredations go before a commission for settlement; but Godoy
obstinately refused to recognize the claims for French depredations, taking
the ground that Spain was in no way responsible for them, had never in any
way profited by them, and had no power at the time they occurred to
prevent them; that France, and France alone, had committed the offence,
and should pay for it.

Pinckney resisted this reasoning as energetically as possible; but when
Cevallos offered to sign a convention covering the Spanish depredations,
and reserving the Franco-Spanish claims for future discussion, Pinckney
properly decided to accept an offer which secured for his fellow-citizens
five or ten millions of money, and which left the other claim still open.[154]
The convention of Aug. 11, 1802, was sent to the Senate Jan. 11, 1803, in
the excitement that followed Morales’s withdrawal of the entrepôt at New
Orleans. The Senate deferred action until the last moment of the session;
and then, March 3, 1803, after Nicholson and Randolph had appeared at the
bar to impeach Judge Pickering, Pinckney’s claims convention was taken
up, and the nine Federalists were allowed to defeat it by the absence of
Republican senators. The majority reconsidered the vote and postponed the
whole subject till the next session. Thus, owing to the action of Federalist
senators, when Jefferson in the following summer, after buying Louisiana,
looked about for the means of buying Florida, he found these classes of
claims, aggregating as he supposed between five and ten million dollars,
ready to his hand. Monroe was promptly ordered to insist upon treating both
classes alike, and setting both of them against the proposed purchase of
Florida. “On the subject of these claims you will hold a strong language,”
said Madison.[155]
A third class of claims could be made useful for the same purpose.
Damages had been sustained by individuals in the violation of their right of
deposit at New Orleans in the autumn of 1802.
“A distinction, however, is to be made,” wrote Madison, “between the positive
and specific damages sustained by individuals and the general injuries accruing from
that breach of treaty. The latter could be provided for by a gross and vague estimate
only, and need not be pressed as an indispensable condition. The claim however may
be represented as strictly just, and a forbearance to insist on it as an item in the
valuable considerations for which the cession [of Florida] is made. Greater stress may
be laid on the positive and specific damages capable of being formally verified by
individuals; but there is a point beyond which it may be prudent not to insist, even
here, especially as the incalculable advantage accruing from the acquisition of New
Orleans will diffuse a joy throughout the western country that will drown the sense of
these little sacrifices. Should no bargain be made on the subject of the Floridas, our
claims of every sort are to be kept in force.”

The President had not then decided to claim West Florida as included in
the Louisiana purchase, and he conceived of no reason which should make
Spain cling the more closely to Florida on account of the loss of New
Orleans.

The news of the Louisiana purchase reached Washington early in July,
1803; Madison wrote his instructions to Monroe at the end of the same
month; Jefferson announced his policy to Breckenridge in August. This was
the harvest season of his life. His theories were proved sound; his system of
government stood in successful rivalry with that of Bonaparte and Pitt; and
he felt no doubt that his friendship was as vital to England, France, and
Spain as all the armies and navies of the world. In the midst of this
enjoyment, September 4, he was suddenly told by the Marquis of Casa
Yrujo that he had bought stolen goods, and that Spain as the rightful owner
protested against the sale.[156]
Notwithstanding this strong measure, doubtless taken in obedience to
orders, Yrujo was still true to his old friendship. On hearing of the cession,
he did again what he had done eight months before, in the excitement about
the entrepôt at New Orleans,—he tried to smooth difficulties and quiet
alarms.
“The ports of Florida,” he wrote to Don Pedro Cevallos,[157] “as they would
make it easy for us to annoy greatly the American commerce in case of a war, would
in like degree furnish the Americans, if the Americans should possess them, the same
means of annoying ours, and of carrying on an immense contraband trade from them,
especially from Pensacola and Mobile, with our provinces in the Gulf of Mexico. This
last is the chief evil which in my opinion will result from the acquisition of Louisiana
by the Americans, and can only be diminished by numerous, watchful, and active
revenue-cutters. For the rest I do not look on the alienation of Louisiana as a loss for
Spain. That colony cost us much, and produced us very little.”

In short, Louisiana could not be defended by Spain, while as a part of
the United States it would certainly weaken, and probably dissolve, the
Union. As for the protest, he told[158] his Government, even before he
received Madison’s reply, that nothing would come of it.
As late as Nov. 5, 1803, Yrujo continued to write in the same tone to his
Government.
“The information I have received from trustworthy persons,” he said,[159] “in
regard to the disposition in which General Victor was coming here, and the spirit of
restlessness and almost of rapine which reigned among many of the officials in his
army, leave me no doubt that the military colony of the French in Louisiana would
have been in reality a worse neighbor than the Americans for us. Things have now
taken such a turn, that in my humble opinion if we are to lose Louisiana, the choice
whether that colony shall fall into the power of one nation rather than another is not
worth the expense and trouble of a war, provided we preserve the Floridas.... I am
convinced that this Government knows perfectly the national interests, and to promote

them will follow in this respect a course of conduct which in proportion as it better
suits our own, should inspire us with greater confidence.”

Yrujo acted the part of a true friend to both countries, in trying by such
arguments to reconcile his Government to the loss of Louisiana; but there
were limits to his good-will. He held that Spain could not afford to part with
Florida. Yrujo went to the extreme of concession when he reconciled his
Government to the loss of New Orleans, and nothing would reconcile him
to the further loss of Mobile and Pensacola. Only on the theory that Spanish
America was already ruined by the cession of Louisiana could Yrujo argue
in favor of selling Florida.
On receiving Yrujo’s protests of September 4 and 27, Jefferson’s first
feeling was of anger. He sent a strong body of troops to Natchez. “The
Government of Spain,” he wrote to Dupont de Nemours,[160] “has protested
against the right of France to transfer, and it is possible she may refuse
possession, and that may bring on acts of force; but against such neighbors
as France there and the United States here, what she can expect from so
gross a compound of folly and false faith is not to be sought in the book of
wisdom.” The folly of such conduct might be clear, but the charge of false
faith against Spain for protesting against being deprived of her rights,
seemed unjust, especially in the mouth of Jefferson, who meant to claim
West Florida under a Franco-Spanish treaty which was acknowledged by all
parties to have transferred Louisiana alone.
Only a week before this letter was written, the scheme of seizing West
Florida had been publicly avowed by John Randolph on the floor of the
House. Randolph’s speech of October 24, in language as offensive to Spain
as was possible in the mouth of a responsible leader, asserted, as a fact
admitting no doubt, that West Florida belonged to the United States.[161]
“We have not only obtained the command of the mouth of the Mississippi,
but of the Mobile, with its widely extended branches; and there is not now a
single stream of note rising within the United States and falling into the
Gulf of Mexico which is not entirely our own, the Appalachicola excepted.”
In a second speech the next day, he reiterated the statement even more
explicitly and in greater detail.[162] The Republican press echoed the claim.
Jefferson and Madison encouraged the manœuvre until they could no longer
recede, and pushed inquiries in every direction,[163] without obtaining
evidence that West Florida was, or ever had been, a part of the government

of Louisiana. They even applied to Laussat,[164] the mortified and angry
French commissioner whom Bonaparte had sent to receive possession of
New Orleans; and Laussat, to the annoyance of Talleyrand and Godoy, told
the truth,—that the Iberville and the Rio Bravo were the boundaries fixed
by his instructions, and therefore that West Florida was not a part of the
purchase, but that Texas was.
Notwithstanding John Randolph’s official declaration, when the time
came for the delivery of Louisiana the Spanish governor, Dec. 20, 1803,
peacefully surrendered the province to Laussat; Laussat handed it in due
form to Claiborne; and Claiborne received it without asking for West
Florida, or even recording a claim for it. That this silence was accidental no
one pretended. The acquiescence in Spanish authority was so implicit that
Madison three months afterward, at a time when both Executive and
Legislature were acting on the theory that West Florida was in Louisiana,
found himself obliged to explain the cause of conduct and contradictions so
extraordinary. He wrote[165] to Livingston at Paris that the President had for
several reasons preferred to make no demand for West Florida,—
“First, because it was foreseen that the demand would not only be rejected by the
Spanish authority at New Orleans, which had in an official publication limited the
cession westwardly by the Mississippi and the Island of New Orleans, but it was
apprehended, as has turned out, that the French commissioner might not be ready to
support the demand, and might even be disposed to second the Spanish opposition to
it; secondly, because in the latter of these cases a serious check would be given to our
title, and in either of them a premature dilemma would result between an overt
submission to the refusal and a resort to force; thirdly, because mere silence would be
no bar to a plea at any time that a delivery of a part, particularly of the seat of the
government, was a virtual delivery of the whole.”

The President’s silence at New Orleans was the more conspicuous
because, at the moment when the province of Louisiana was thus delivered
with such boundaries as Spain chose to define, Congress was legislating for
Florida as an integral part of the Union. John Randolph’s official assertion
that Mobile belonged to the United States under the treaty of cession, was
made in the last part of October, 1803, soon after Congress met. About a
month later, November 30, he introduced a Bill nominally for giving effect
to the laws of the United States within the ceded territory. After much
debate and disagreement this Bill at length passed both Houses, and Feb.
24, 1804, received the President’s signature. The fourth section directed that
the territories ceded to the United States by the treaty, “and also all the

navigable waters, rivers, creeks, bays, and inlets lying within the United
States, which empty into the Gulf of Mexico east of the River Mississippi,
shall be annexed to the Mississippi district, and shall, together with the
same, constitute one district, to be called the ‘District of Mississippi.’” This
provision was remarkable, because, as every one knew, no creeks, bays, or
inlets lying within the United States emptied into the Gulf. The Act by its
eleventh section authorized the President, “whenever he shall deem it
expedient, to erect the shores, waters, and inlets of the Bay and River of
Mobile, and of the other rivers, creeks, inlets, and bays emptying into the
Gulf of Mexico east of the said River Mobile, and west thereof to the
Pascagoula, inclusive, into a separate district, and to establish such place
within the same as he shall deem expedient, to be the port of entry and
delivery for such district.” This section gave the President power of peace
and war, for had he exercised it, the exercise must have been an act of war;
and John Randolph’s previous declarations left no doubt as to the meaning
in which he, who reported the Bill, meant it to be understood.
By this time Yrujo was boiling with such wrath as a Spaniard alone
could imagine or express. His good-will vanished from the moment he saw
that to save Florida he must do battle with President, Secretary of State,
Congress, and people. One insult had followed another with startling
rapidity. The President’s pêle-mêle, of which the story will be told hereafter,
wounded him personally. The cold reception of his protest against the
Louisiana cession; the captiousness of Madison’s replies to his
remonstrances; the armed seizure of New Orleans with which he was
threatened; the sudden disregard of his friendship and great services; the
open eagerness of the Government to incite Bonaparte to plunder and
dismember Spain; the rejection of the claims convention in March, and its
sudden approval by the Senate in January, as though to obtain all the money
Spain was willing to give before taking by force territory vital to her
empire; and above all, the passage of this law annexing the Floridas without
excuse or explanation,—all these causes combined to change Yrujo’s
ancient friendship into hatred.
In the midst of the complicated legislation about Louisiana, while the
Mobile Act was under discussion, Jefferson sent to the Senate, Dec. 21,
1803, the correspondence about the Spanish claims, and among the rest an
adverse opinion which Yrujo had obtained from five prominent American

lawyers on an abstract case in regard to the Franco-Spanish spoliations.
Madison was particularly annoyed by this legal opinion, and thought it
should bring these five gentlemen within the penalties of the law passed
Jan. 30, 1799, commonly known as Logan’s Act. Senator Bradley of
Vermont moved for a committee, which reported in favor of directing the
President to institute proceedings against Jared Ingersoll, William Rawle, J.
B. McKean, Peter S. Duponceau, and Edward Livingston,—five lawyers
whose legal, social, and political character made a prosecution as unwise in
politics as it was doubtful in law. The Senate having at the moment too
many prosecutions already on its hands, let Senator Bradley’s Report lie
unnoticed, and soon afterward confirmed the claims convention by a vote of
eighteen to eight,[166]—barely two thirds, the least factious of the
Federalists joining the majority, and by this unpartisan act causing in the
end more embarrassment to the party in power than the most ingenious
factiousness could have plotted. Madison, in the midst of his measures for
pressing the acquisition of Florida, sent the ratified claims convention to
Madrid. The period fixed for ratification had long since expired, and the
attitude of the United States toward Florida had altered the feelings and
interests of Spain; but either Madison was unaware of the change, or he
wished to embarrass Godoy. He added in his letter to Pinckney,[167] “It was
judged best, on the whole, no longer to deprive that class of our citizens
who are comprehended in the convention of the benefit of its provisions;”
but although consenting to take what Spain was willing to give, he spoke
with contempt of the Spanish argument against the Franco-Spanish claims,
and insisted that these should be pressed without relaxation. He even
complained that Yrujo, in taking the opinion of American lawyers, had
failed in respect to the United States government and his own.[168]
Madison seemed unconscious that Yrujo could have any just cause of
complaint, or that his Government could resent the tone and temper of
President and Congress. The passage of the Bill which made Mobile a
collection district and a part of the Mississippi territory gave Yrujo the
chance to retaliate. About a fortnight after the President had signed this law,
Yrujo one morning entered the State Department with the printed Act in his
hand, and overwhelmed Madison with reproaches, which he immediately
afterward supported by a note[169] so severe as to require punishment, and
so able as to admit of none. He had at first, he said, regarded as “an

atrocious libel” on the United States government the assertion that it had
made a law which usurped the rights of Spanish sovereignty; yet such was
the case. He gave a short and clear abstract of the evidence which refuted
the claim to West Florida, and closed by requesting that the law be annulled.
Madison could neither maintain the law nor annul it; he could not even
explain it away. Gallatin told the President six months afterward,[170] that
“the public mind is altogether unprepared for a declaration that the terms
and object of the Mobile Act had been misunderstood by Spain; for every
writer, without a single exception, who has written on the subject seems to
have understood the Act as Spain did; it has been justified by our friends on
that ground.” Yet Jefferson was not prepared to maintain and defend the Act
in its full assertions of authority, after accepting Louisiana without asking
for West Florida. Madison wrote a letter of complaint to Livingston at Paris,
[171]
explaining, as already quoted, the reasons which had induced the
President to make no demand for West Florida before ascertaining the views
and claiming the interposition of the French government.
“In this state of things,” said he, “it was deemed proper by Congress, in making
the regulations necessary for the collection of revenue in the ceded territory, and
guarding against the new danger of smuggling into the United States through the
channels opened by it, to include a provision for the case of West Florida by vesting in
the President a power which his discretion might accommodate to events.”

This interpretation of the law was not in harmony with the law itself or
with Randolph’s speeches; but Madison hastened to turn from this delicate
subject in order to bring another complaint against Yrujo.
“The Act had been many weeks depending in Congress with these sections, word
for word, in it; ... it must in all probability have been known to the Marquis d’Yrujo in
an early stage of its progress; if it was not, it marks much less of that zealous
vigilance over the concerns of his sovereign than he now makes the plea for his
intemperate conduct. For some days, even after the Act was published in the Gazette
of this city, he was silent. At length, however, he called at the office of State, with the
Gazette in his hand, and entered into a very angry comment.”

The Spanish minister’s subsequent notes had been written with “a
rudeness which no government can tolerate;” but his conduct was chiefly of
importance “as it urges the expediency of cultivating the disposition of the
French government to take our side of the question.”
The President came to Madison’s relief. By a proclamation issued a few
weeks afterward, reciting the terms of the Act of Congress in regard to the

Bay and River of Mobile, he declared all these “shores, waters, inlets,
creeks, and rivers, lying within the boundaries of the United States,” to be a
collection district, with Fort Stoddert for its port of entry.[172] The italics
were a part of the proclamation, and suggested that such could not have
been the intent of Congress, because no part of the shores or waters of
Mobile Bay, or of the other bays east of Mobile, lay within the boundaries
of the United States. The evasion was a divergence from the words of the
Act unwarranted by anything in the context; and to give it authority,
Jefferson, in spite of Gallatin’s remonstrance, declared in his next Annual
Message that the Mobile Act had been misunderstood on the part of Spain.
[173]

CHAPTER XII.
Though Yrujo’s language was strong, and his anonymous writings in the
press were indiscreet, he had, down to the summer of 1804, laid himself
open to no just official censure; for whatever the Secretary of State might
think, no one could seriously blame a foreign minister for obtaining the best
legal advice in America on an abstract question of international law. The
protests with which Yrujo contented himself, vigorous as they were, could
neither be disavowed by his Government nor answered by Madison. Had he
stopped there, his triumph would have been signal; but fortunately for
Madison, the Spaniard, with all the high qualities of his nation, had also its
weaknesses, besides having the love of intrigue inherent in diplomacy.
Yrujo was in his political training more American than Spanish. At home in
Philadelphia, son-in-law to Governor McKean, and well acquainted with
the methods of party politics, he burned to counteract the influence of the
Administration press, and had no other means of doing so than by acting on
Federalist editors. As no one but himself knew even a part of the truth about
the Spanish imbroglio, he was obliged to be the channel for conveying his
own information to the public; and from time to time Madison read in
opposition newspapers anonymous letters which bore plain marks of
Yrujo’s peculiar style. He had already published a pamphlet on the
Louisiana cession. After his hot protest against the Mobile Act, in March,
1804, the Spanish minister left Washington, without taking leave of the
Secretary of State. At length his indiscretions enabled Madison to enjoy the
pleasure of seeing him keenly mortified.
Among other Federalist newspapers in Philadelphia was one called the
“Political Register,” edited by a man named Jackson. In September, 1804,
six months after the passage-at-arms over the Mobile Act, Yrujo, then in
Philadelphia, asked for an interview with Jackson, and urged him to oppose
the course which the President had taken against Spain. “If you will
consent,” he said, “to take elucidations on the subject from me, I will
furnish them, and I will make you any acknowledgment.” He charged the
Administration with wishing for war, and with intriguing for a rebellion
among the Spaniards of West Florida.

That Yrujo or any other diplomatic agent was quite ready to use money,
if by doing so he could obtain objects necessary for his purposes, need not
be doubted,—although corruption of this kind in the affairs of the United
States has left few traces even on the most secret diplomatic records of
England, France, and Spain. In the ethical code of diplomacy the offer of
money to an editor for inserting information was no offence, but discovery
was fatal; and for this reason perhaps Yrujo told the truth when he
afterward said that the use of money was not in his mind. Had he meant to
bribe, he would not have exposed himself to detection, or put himself,
without need, in the hands of a person over whom he held no power.
Nevertheless, his blunder deserved the punishment which quickly followed.
A few days after his interview with Jackson, Yrujo left Philadelphia to
visit Jefferson at Monticello. Sept. 20, 1804, immediately after his
departure, Jackson printed an affidavit narrating the attempt which Yrujo
had made upon his virtue, and detailing every expression of the minister
which could do him most injury. As though to make Yrujo’s position still
more mortifying, Jackson sent this affidavit to President Jefferson ten days
or more before publishing it; and when Yrujo, ignorant of the betrayal, after
passing Madison’s door at Montpelier without the courtesy of stopping to
inquire for the Secretary’s health,[174] at last reached Monticello, not only
his host, but every one except himself, had heard of the diplomatic scandal
to which he was a party.
Jefferson received his visitor with the usual hospitality, and said not a
word on the subject. Being obliged to return to Washington, the President
left Yrujo, two days later, under the protection of his daughter Mrs.
Randolph, and set out to meet his Cabinet on the last day of the month at
the Federal city. Madison was delayed at Montpelier, and could not attend
the Cabinet meeting, but wrote a few days afterward:[175]—
“Jackson, I find, has lost no time in giving publicity to the affair between him and
Yrujo. What course the latter will take, remains to be seen. Should circumstances of
any kind be thought to urge a close of the business with him, or any other
arrangement with respect to it, why might not one of the other secretaries, or even Mr.
Wagner, be made a channel of your sentiments and determinations?... Should the door
be shut against further communication [through] Yrujo, and Pinckney’s situation at
Madrid not be contradicted, a direct communication with Cevallos appears to be the
next resource.”

Already Madison flattered himself with the hope that he was to be
relieved from relations with the Spaniard, whose continuance at Washington
he had asked as a favor from Don Carlos IV. only three years before.
Jefferson’s delicacy and hospitality were worthy of a great lord of
Spain, and did honor to his innate kindliness; but they put Yrujo in an
attitude so mortifying, that when he returned to Washington and learned
what had taken place in his absence, he was overcome with shame at
finding himself charged with calumniating his host at the moment of
claiming his hospitality. He immediately prepared a counter-statement and
took it to the President, who replied that the matter was one which should
properly belong to Madison. Yrujo then printed his letter in the “National
Intelligencer,” where Madison first saw it. For the moment the matter went
no further; but Madison was fixed in his purpose of effecting Yrujo’s recall,
and when in the following spring he instructed his minister at Madrid to ask
this favor, he alleged the affair of Jackson among the reasons which
justified his request.
Pichon, who was in charge of the French legation, cordially disliked
Yrujo, and did nothing to help him against Madison, although the relations
between Spain and France were those of close alliance; but Madison next
suffered a severe loss in the removal of Pichon, and in the arrival, Nov. 23,
1804, of the first minister sent by France to the United States since the
departure of Adet in President Washington’s time. The new appointment
was not a happy one. Pichon had carried friendliness so far as on several
serious questions to take sides with the United States government against
his own, and had fallen into disfavor with Napoleon in consequence. The
new minister was little likely to repeat this blunder. Napoleon liked military
discipline in all things; and he sent as his minister to Washington a former
general of the Republic, Louis Marie Turreau, best known for the extreme
severities he was charged with having inflicted on the Vendeans in 1794.
Like most of the republican generals, including even Moreau and
Bernadotte, Turreau accepted the coup d’état of the 18th Brumaire, and was
for private reasons anxious to obtain some position far removed from
France. According to his own story, he had during the Vendean war been so
unfortunate as to be saved from death, in a moment of extreme danger, by a
woman’s self-sacrifice. In token of his gratitude he married his preserver;
but from that time his life became a long regret. His wife’s temper was

terrible; his own was querulous and morbidly depressed. Although he could
speak no English, had no diplomatic experience and little taste for general
society, he sought the post of minister resident at Washington in order to
escape his wife. To his extreme annoyance, she followed him to America;
and Washington resounded with the scandal of their quarrels, which reached
the extremity of pitched battles. He wrote to his friends in the French
Foreign Office that he was almost mad with mortification and despair.
Such a minister was not happily chosen for the difficult task on hand;
but Bonaparte loaded him with other burdens, of a kind even more
embarrassing to a diplomatist. At best, the position of a French minister in
America was not agreeable. The mere difference in habits, manners,
amusements, and the want of a thousand luxuries and pleasures such as
made Paris dear to every Frenchman, rendered Washington a place of exile.
Perhaps nothing but fear of the guillotine could have reconciled even
republican Frenchmen to staying in a country where, in the words of
Talleyrand, there was no Frenchman who did not feel himself a stranger;
but if this were true while France was a republic fighting the battles of
American democracy, it became doubly true after Bonaparte had crushed
French liberties and made himself the foremost enemy of republican ideas.
Turreau arrived at Washington about six months before Bonaparte took the
title of Emperor; and he found that as representative of Napoleon I. he
could never hope for a friend in the United States, unless it were among a
few bankrupt adventurers, who to retrieve their broken fortunes would have
liked to see an 18th Brumaire at New Orleans, which should give an
imperial crown and the mines of Mexico to Aaron Burr and his troop of
embryo dukes and marshals.
As though to embarrass his representative to the utmost, Bonaparte
deprived him of the only means by which he could win even the venal
respect of a money-making people. At one stroke the First Consul had
annulled and sent to protest all the drafts drawn under Rochambeau’s orders
by the fiscal administrator of St. Domingo.[176] His avowed reason was that
every bill of exchange or draft on the public treasury which did not purport
to rest on the authority of a letter from the minister authorizing the
expenditure, should not be paid. The true reason was that he had determined
to waste no more money on St. Domingo, but to sacrifice his army there
under cover of a war with England, which required all the means then at his

disposal. Rochambeau’s expenditures were becoming wild; but thus far his
drafts on the Treasury were regularly drawn. They had been taken in good
faith throughout the West Indies and in every commercial city on the
American seaboard; they rested on the national credit of France, and their
repudiation destroyed French credit in America, public and private. Before
Turreau sailed for his post, the credit of his Government was at an end in
the United States. Not only had the drafts drawn in St. Domingo been
refused payment, but Pichon’s had also suffered the same fate; and neither
the new minister nor his consuls could find a man in Baltimore,
Philadelphia, or New York to advance money on their official signatures.
Turreau complained bitterly to Talleyrand of the penury and mortification to
which he was condemned. In one of his despatches[177] he reported that at a
tavern in Baltimore one of the French agents, not known to be such, was
offered French government paper at fifty per cent discount, and at the same
time five per cent premium for drafts on the British government. “In short,
we are brought to such a state of affairs that private discredit follows the
discredit of the nation, and I experience it for my own individual drafts.”
Owing to these circumstances, Turreau declared that his position was
hardly tolerable; but even apart from such matters, he found a formidable
legacy of diplomatic difficulties left by Pichon to be settled. The question of
trade with St. Domingo, of boundary on both sides of Louisiana, the
Spanish imbroglio, the unpaid claims on France, and the repudiated drafts
negotiated by Pichon in the United States, were all matters which Turreau
was required to master and manage; but none of them gave him more
trouble than the personal quarrel between his colleague Yrujo and the
Secretary of State.
Yrujo’s affair with Major Jackson occurred in September, 1804, and
Turreau, reaching Washington in the following November, was soon
obliged to take part in Yrujo’s feuds. Not only the tone of his instructions,
but the increasing certainty that Spain must side with France in the war
against England, obliged him to make common cause with the Spanish
minister, who came from Philadelphia to Washington in order to invoke his
services. The result was told in a despatch to Talleyrand:[178]—
“Following your instructions and the request of M. d’Yrujo, I consented to an
interview with him at Mr. Madison’s.... I had no trouble in perceiving from the outset
of the conversation that Mr. Madison and M. d’Yrujo cordially detested each other,
and in the discussion that their passions took the place of reason and law.”

This discussion naturally turned on the question of West Florida; and
unfortunately for Madison, Turreau’s instructions on that point were
emphatic in support of Spain. Turreau was obliged to enter the lists in
defence of Yrujo’s position.
“I mixed in the discussion only in order to represent to Mr. Madison, who is
unwilling to stop at the treaty of 1762, that in general the last conventions were those
which ought to guide in negotiations; otherwise, if each party invoked the antecedent
ones in favor of his system, we should be forced to go back to the Deluge to find the
primitive title. ‘But, General!’ replied Mr. Madison, ‘we have a map which probably
carries to the Perdido the eastern limit of Louisiana!’—‘I should be curious to see it,
sir; the more, because I have one which includes Tennessee and Kentucky in
Louisiana. You will agree that maps are not titles.’ The Secretary of State closed this
session, which lasted two long hours, by saying that if Spain had always conducted
herself toward the United States as well as France had done, the difficulties would not
have taken place. I did not think myself called upon to appear very grateful for this
kind of cajolery.”

Turreau did not want keenness of insight; and this early experience gave
him no high respect either for Madison or for the American system of
government. His despatch explained that the dispute was in great part due to
the fact that the Louisiana purchase had been made a battle-ground in the
Presidential election just ended; that the opposition, by depreciating its
importance, had driven the party in power to exaggerate its value; and that
the Administration, to assure itself of victory, had committed itself to the
policy of obtaining Florida by one means or another, till it could no longer
recede. Yrujo’s indiscretions had helped to make it impossible for Jefferson
to withdraw with dignity from his position.
“For the rest,” continued Turreau, “I have made every effort to reconcile M.
d’Yrujo with the Secretary of State, and if I have not succeeded, it is the fault of the
latter. He is dry (sec), spiteful (haineux), passionate; and his private resentments, still
more than political difference, will long keep him apart from M. d’Yrujo.
Nevertheless, as I am on very good terms with Mr. Madison, whom I was about to ask
to dine with me, I sent my first aide-de-camp to ask him whether he would be pleased
to meet the Spanish minister at dinner; and in consequence of his very civil and even
obliging answer, I had them together at my table, where I again attempted a
reconciliation. M. d’Yrujo would have agreed to it; but the Secretary of State cannot
forgive.”

Finally, Turreau called Talleyrand’s attention to the question whether it
was for the interest of France and Spain that Yrujo should be kept at
Washington:—
“Doubtless the Government here wishes for his recall, and regards this step as the
duty of the Court at Madrid, the more because Mr. Pinckney has been recalled; but

ought the Spanish minister to be changed because the American government wishes
it? This point deserves attention. These people here have been well spoiled; it is time
to send them back to their proper place.”

The quarrel with Yrujo was the more unfortunate because it happened at
a moment when Charles Pinckney, the American minister at Madrid,
showed extreme want of discretion. The President had not intended to leave
Pinckney unassisted. After the conclusion of the Louisiana treaty, in May,
1803, Madison supposed that Monroe, in obedience to his instructions,
would go at once to Madrid and take the negotiation from Pinckney’s
hands.[179] For reasons that will hereafter appear, Monroe decided against
this step, and went to London instead. On learning the change of plan,
Madison warned Pinckney[180] to make no propositions to the Spanish
government, which was not yet in a humor to receive them with favor.
Pinckney, restive under restraint, managed to keep up an appearance of
diplomatic activity that greatly vexed the Secretary of State. Madison
complained[181] to the President that his minister at Madrid teased the
Spanish government on the subject of Florida, which he had been ordered
not to touch without the presence or the advice of Monroe; forbidden to
make but permitted to accept offers, he was continually offering to accept;
while Livingston at Paris, equally restive under the imposed authority of
Monroe, could not resist the temptation to stimulate Pinckney and offer
advice both to France and Spain. Madison’s complaints were well founded;
but when he wrote in this sense to Jefferson, he had not begun to appreciate
the full measure of diplomatic activity which his minister at Madrid was
capable of displaying.
Yrujo always managed to embarrass the American government without
seriously committing his own; but Pinckney showed no such forbearance,
and by the close of the year 1804 drew Madison into a mortifying position.
He began his activity in July, 1803, immediately after hearing that Monroe
had given up the proposed visit to Madrid, and had gone to London.
Without waiting to learn how this change of plan and the purchase of
Louisiana might affect the President’s views toward Spain, Pinckney, to use
his own words,[182] “pushed the new propositions respecting our claims in
that positive and decided manner which the circumstances of Europe and
the particular situation of Spain seemed to me to warrant.” Cevallos
contented himself with parrying this attack by giving to Pinckney the
written opinion obtained by Yrujo from the five American lawyers in

support of his argument that the United States, by their treaty with France of
Sept. 30, 1800, had renounced their right to demand indemnity for losses
sustained from French cruisers.[183]
Both parties next appealed to the French ambassador at Madrid. The
Prince of Peace, though irritated by the sale of Louisiana, quickly saw that
his only chance of retaining Florida was to conciliate Bonaparte; and
Pinckney, who knew that the French ambassador at Madrid had been
instructed to support Monroe in negotiating for Florida, counted on the
same aid in order to maintain a threatening attitude. The result was soon
seen. Pinckney, disturbed by the news of Yrujo’s protest against the sale of
Louisiana, turned to the French ambassador for advice.[184] Beurnonville
accordingly wrote to Talleyrand for instructions; but Talleyrand had already
sent to the Spanish embassy at Paris a note of sharp remonstrance against
the protest.[185] Beurnonville, learning this, asked the Prince of Peace for
explanations; and Godoy hastened to assure him that Bonaparte might be at
ease on this score, for orders had been sent to New Orleans to surrender the
province without opposition, and already Yrujo had been instructed to
change his tone at Washington.[186] Soon afterward Cevallos formally
notified Pinckney that the King renounced his opposition to the cession of
Louisiana.[187] In due time Yrujo sent to the State Department a formal note
to the same effect.[188]
At the cost of recognizing the Louisiana cession, Godoy pacified
Bonaparte, who stood in need of Spanish support. From that moment
Pinckney begged in vain for help from the French ambassador at Madrid,
although the need of aid increased from day to day. Just as his first and least
important point, the withdrawal of Yrujo’s protest, was gained at Madrid,
the Government at Washington created new difficulties about his path. At
the moment when Beurnonville, Talleyrand, and Pinckney wrung from
King Charles his adhesion to the Louisiana treaty, the Senate at Washington,
Jan. 9, 1804, ratified the Spanish claims convention, which had been
negotiated by Pinckney nearly eighteen months before, and had been held
an entire year under consideration by the Senate. The last article of this
convention provided, as usual with such instruments, that it should have no
effect until ratified by both parties, and that the ratifications should be
exchanged as soon as possible. So far from performing its part of the

contract, the Senate had at one moment refused to ratify at all, and after
reconsidering this refusal, had delayed ratification an entire year, until the
relations of the two parties had been wholly changed. The idea that the King
of Spain was bound to ratify in his turn, implied excessive confidence in his
good-nature; but Madison, in sending the ratified treaty to Pinckney,
suggested no suspicion that Charles IV. might have changed his mind, and
gave not a hint to Pinckney of the course to be followed in such a
contingency. The Mobile Act had not yet become law, and Yrujo was
waiting for its signature by the President before waking Madison from his
dreams of doing what he pleased with Spanish property.
Early in February, 1804, Madison sent these new instructions to
Pinckney, inclosing the ratified treaty, and instructing him in effect to press
the reserved claims for French spoliations in Spanish ports. The despatch
reached Pinckney in May, and he went at once to Cevallos for the
ratification. To his great annoyance Cevallos made difficulties. During the
discussion, Cevallos received from Yrujo a copy of the Mobile Act, which
he sent to Pinckney May 31, with a demand for explanations. Pinckney
replied in a tone little short of dictatorial.[189]
“Permit me on this subject to remind your Excellency,” said he, “that on the first
intelligence being received of the cession of Louisiana, I communicated verbally to
your Excellency and the Prince of Peace the contents of an official letter I had
received from Mr. Livingston and Mr. Monroe, informing me that they considered a
great part of West Florida, as so called by the English, as included. Such letter could
not have been written officially to me by them without their having been so informed
by the French plenipotentiary and government.”

Pinckney urged that the two subjects should be kept separate. “Do not
show the United States that you have no confidence either in their honor or
justice,—qualities on which they value themselves more than on power or
wealth.”
Unfortunately Pinckney’s note obliged Spain to show want of
confidence in the “honor or justice” of the United States, unless indeed she
meant to acquiesce in losing Florida as well as Louisiana. Pinckney next
appealed to the French ambassador for help.[190] “I took the course of
giving Mr. Pinckney an obliging but vague answer,” said Beurnonville,
writing for instructions to Talleyrand. Cevallos, on his side, wrote to
Admiral Gravina, the Spanish ambassador at Paris, instructing him to
remonstrate with Talleyrand against Pinckney’s conduct. After a month’s

delay, Cevallos, in answer to Pinckney’s letters, sent a sharp note,[191]
offering to ratify the convention on three conditions,—one being that the
reserved claim for French spoliations should be abandoned, and another that
the Mobile Act should be revoked.
Without waiting for further instructions, or even consulting Monroe at
London, Pinckney next wrote to Cevallos a letter which surpassed all
indiscretions that Madison could have imagined. Requesting Cevallos
“merely to answer this question,” whether ratification was refused except
on the conditions specified, he added:[192]—
“I wish to have your Excellency’s answer as quickly as possible, as on Tuesday I
send a courier with circular letters to all our consuls in the ports of Spain, stating to
them the critical situation of things between Spain and the United States, the
probability of a speedy and serious misunderstanding, and directing them to give
notice thereof to all our citizens; advising them so to arrange and prepare their affairs
as to be able to move off within the time limited by the treaty, should things end as I
now expect. I am also preparing the same information for the commander of our
squadron in the Mediterranean, for his own notice and government, and that of all the
American merchant-vessels he may meet.”

Cevallos immediately answered[193] that as he could not comprehend
the motive for “breaking out in the decisions, not to say threats,” of this
letter, or how it was possible that Pinckney could have the authority of his
government for such conduct, he should by the King’s order transfer the
negotiation to Washington. Pinckney rejoined by despatching his circular
letter, which created a panic in the Mediterranean. He then informed
Cevallos that so soon as his affairs could be arranged, he should send for his
passports and quit Madrid.[194]
Although this step was in the highest degree improper, Pinckney had
some excuse for his conduct. Left without instructions in the face of an
emergency which might have been foreseen at Washington, he argued that
his government, which had officially annexed West Florida, meant to
support its acts with a strong hand. He thought that the issue presented by
Cevallos was such as the President was bound to take up, and he knew that
the only chance of carrying the points which the President had at heart was
in energetic action. For three years he had watched the peremptory tone of
France and England at Madrid, and had been assured by the common voice
of his diplomatic colleagues that threats alone could extort action from the
Spanish government. He had seen the Prince of Peace, after resorting to one

subterfuge after another, repeatedly forced to cower before the two great
robbers who were plundering Spain, and he explained to Madison the
necessity of imitating their example if the President meant that Spain should
cower before the United States. Perhaps he felt that Godoy looked on the
President at Washington as the jackal of Bonaparte, and he may have
wished to prove that America could act alone. His eager ambition to make
himself as important as the representatives of France and England in the
eyes of Europe might imply vanity, but rested also on logic.
The first result of this energetic tone was not what Pinckney had hoped.
Cevallos was outwardly unmoved; Pinckney’s violence only caused him to
lay aside that courtesy which was the usual mark of Spanish manners. His
official notes were in outward form still civil enough, but in two or three
conversations Pinckney listened to a series of remarks as blunt as though
Lord Harrowby were the speaker. Pinckney reported to Madison the tenor
of these rough rejoinders.[195] Cevallos told him that the Americans, ever
since their independence, had been receiving the most pointed proofs of
friendship and generosity from Spain, who, as was well known, received no
benefit from them,—on the contrary, their commerce was extremely
injurious to Spain; the Spanish government had ten times more trouble with
them than with any other nation, and for his part, he did not wish to see the
trade with the United States extended. Spain had nothing to fear from the
United States, and had heard with contempt the threats of senators like Ross
and Gouverneur Morris. The Americans had no right to expect much
kindness from the King; in the purchase of Louisiana they had paid no
attention to his repeated remonstrances against the injustice and nullity of
that transaction, whereas if they had felt the least friendship they would
have done so. They were well known to be a nation of calculators, bent on
making money and nothing else; the French, and probably in the result all
the nations having possessions in the West Indies, would be materially
injured by them, for without a doubt it was entirely owing to the United
States that St. Domingo was in its present situation.
Pinckney received[196] at the same time what he called secret
intelligence on which he could implicitly rely, that Cevallos meant to create
indefinite delays to the ratification, for Yrujo had written that neither these
nor the French spoliation claims, nor West Florida, would induce the
American government to depart from its pacific system. France had indeed

gone to the point of advising and even commanding Spain to relinquish her
claim on Louisiana, and this was the reason why Spain had so quietly given
it up; but in regard to the spoliations, France preferred not to see them paid,
as the more money Spain paid America the less she could pay France, and
France knew as well as Spain how little serious was the American
government in the idea of abandoning its neutrality.
Pinckney having done his worst, found himself in a position extremely
awkward. Although he threatened to leave Spain, and proclaimed that he
meant soon to demand his passports, he did not venture to take this last step
without instructions. Cevallos, excessively perplexed by his conduct, could
not conceive that he should act thus without some definite authority. Boldly
as Cevallos talked, he was in truth greatly alarmed by the idea of war. The
French representative at Madrid wrote to Talleyrand that Pinckney had
terrified the secretary beyond reason:[197]—
“The difficulty of making himself understood by M. de Cevallos in a language
with which he is not familiar, excites Mr. Pinckney to fly out in terms beyond
moderation and proper civility. He positively threatens war, and loudly announces his
resolution shortly to demand his passports. The truth is that he is preparing to depart,
and finds himself almost deprived of power to remain, not only in consequence of his
personal altercation with the minister, but also of the care with which he has taken the
public into his confidence.... M. de Cevallos seems to me to be quite seriously
alarmed at the results this may have.”

Ten days later the Frenchman reported that Cevallos was more uneasy
than ever.[198]
“‘If the Emperor,’ added M. de Cevallos, ‘would but say a word, and let the
United States understand that he is not pleased at seeing them abuse the advantages
which they owe to their strength and to the nearness of their resources over an ally of
France, this would reconcile all difficulties, and save his Majesty the necessity of
exacting satisfaction for an insult which is as good as inflicted.’”

The Frenchman, having no instructions, contented himself with
suggesting that the Emperor had more pressing matters on hand. “‘So,’ said
M. de Cevallos, ‘France will have caused our actual misunderstanding with
our neighbors, and we are to expect no service from her influence!’”
While Cevallos thus invoked the aid of France, the news of Pinckney’s
war slowly crossed the Atlantic. No sooner did it arrive than Yrujo in the
middle of October, shortly after his attempt to seduce the patriotism of
Major Jackson, wrote to the Secretary of State a formal letter,[199] repeating

what had already been said to Pinckney at Madrid. Madison’s reply was
studiously moderate and conciliatory.[200] He explained as best he could the
offensive language of the Mobile Act, and announced that a special minister
would soon reach Madrid, to hasten the adjustment of all territorial
disputes; he deprecated the demand for an abandonment of the French
claims, and argued that such a condition of ratification was not supported
by international law; he urged Yrujo to give assurances of an unqualified
ratification, but he said not a word about Pinckney’s performances, and
gave it to be understood that Pinckney would be recalled. A few days
afterward he wrote to Monroe, ordering him in haste to Spain. “The turn
which our affairs at Madrid have taken renders it expedient in the judgment
of the President that you should proceed thither without delay.”[201] In
another letter, written at nearly the same time, he was more explicit:[202]—
“Pinckney’s recall has been asked by the Spanish government, and a letter of leave
goes to him. I suspect he will not return in good humor. I could not permit myself to
flatter him, and truth would not permit me to praise him. He is well off in escaping
reproof, for his agency has been very faulty as well as feeble.”

The first attempts to overawe Spain had failed. Pinckney, not disavowed
but ignored, fell into the background; and once more Monroe stepped
forward to rescue the Administration. When these instructions were written,
he had already reached Paris on his way to Madrid; but Madison,
undeterred by Pinckney’s disaster, still persisted in advising him to place his
main reliance “in a skilful appeal to the fears of Spain.”[203]

CHAPTER XIII.
Hardly was the Louisiana treaty sent to America in May, 1803, when
Monroe began preparations for a journey to Madrid. The outbreak of temper
with which Godoy and Cevallos received the news that Spain had been
secretly deprived of Louisiana, caused Bonaparte to feel that further
maltreatment of his ally was for the moment unwise; and he interposed a
sudden veto on Monroe’s journey. “With respect to Florida, this is not the
time to pursue that object,” said he, when Monroe came to take leave.[204]
The Consul Cambacérès echoed the warning: “You must not go to Spain at
present; it is not the time; you had better defer it.” The Third Consul Lebrun
spoke in the same tone. Monroe took the advice, and abandoned the journey
to Madrid. In July he crossed the Channel to London, and Aug. 17, 1803,
was duly presented to George III. as the successor of Rufus King, who had
already returned to America. Livingston remained at Paris to manage the
relations with Napoleon.
In spite of success that should have filled his cup of ambition to
overflowing, Livingston was far from satisfied. Neither the President nor
the Secretary of State liked him; and to the latter he was a possible rival,
who might become dangerous if the authority of President Jefferson, which
was Madison’s great support, should wane, and should New York claim the
presidency from Virginia. Monroe distrusted Livingston, believing him to
grasp at the whole credit of the Louisiana treaty, and to be intriguing to
withdraw the Florida negotiation from Monroe’s hands by causing its
transfer from Madrid to Paris.[205] The Secretary of State was perpetually
annoyed by his minister. Sometimes Livingston experimented on Spain,
sometimes on England. At one moment he sent to the First Consul an
indiscreet memorial that brought a remonstrance from the British
government; at another he fell into a virulent quarrel with the American
claims commissioners under the Louisiana treaty. His claims convention
was admitted to be full of mistakes which he did not himself attempt to
defend, while the American consul at Paris declared that his conduct in
regard to certain claims was dictated by blind and insatiable vanity, if not
by corrupt and criminal motives.[206]

Mistakes cost Livingston little serious annoyance; but although he could
afford to disregard British complaints or Consul Skipwith’s abuse, or even
the severe criticisms of the claims commissioners, he must have had more
than human patience to sit quiet under the superiority of Monroe. He knew
that whatever diplomatic credit was due for the Louisiana negotiation
rightly belonged to him, and that Monroe had no claim to any part of it,
except that of supporting and approving what was already accomplished;
yet he saw the Administration and the public attribute the chief honor to his
rival. He showed his wounded self-esteem in protests and statements to
which the world was deaf. His old Federalist friends took malicious
pleasure in telling him that his triumph had offended the vanity of Jefferson.
[207]

Consoling himself with the reflection that he should insist on returning
to America in the autumn of 1804, Livingston endured these annoyances as
he best could, and found in the society of Robert Fulton and Joel Barlow the
hope of greater fame and profit than political distinctions could possibly
bring. While he watched and encouraged Fulton’s experiments with the
steamboat, clouds gathered more and more thickly round his diplomatic
path. The First Consul had never inspired him with much confidence; but
after the rupture of the Peace of Amiens, in May, 1803, Bonaparte’s acts
became more and more alarming to every Republican. He passed the
autumn of 1803 in preparations for a descent on England. He next effected,
in February, 1804, the arrest, trial, and banishment of Moreau. The seizure
and arbitrary execution of the Duc d’Enghien followed a month afterward,
and finally, in May, 1804, the proclamation of the Empire.
In the midst of these events Livingston received from home the letter
already quoted, in which Madison told the story of the Mobile Act, and
complained of Yrujo’s violent conduct. “The correspondence is chiefly of
importance,” said the Secretary of State, “as it urges the expediency of
cultivating the disposition of the French government to take our side of the
question.” Livingston was personally rather inclined to the opposite course.
He had little faith in obtaining favors from the Emperor, and no disposition
to place the United States in the attitude of begging for them; but he had not
the chief share in shaping action. A few weeks after receiving these
instructions, when he heard of the quasi war which Pinckney in July

declared at Madrid, Livingston was already expecting the arrival of his
successor, General Armstrong, in the autumn.
The news from Spain reaching London, startled Monroe from his
repose. As soon as he could make ready, Oct. 8, 1804, placing his legation
in charge of a secretary, Monroe left London. While he waited in Paris to
sound the disposition of Talleyrand, General Armstrong arrived to relieve
Livingston. Thus it happened that three American ministers—Monroe,
Livingston, and Armstrong—met at Paris in November, 1804, to cope with
Talleyrand, in whose hands lay the decision of Jefferson’s quarrel with
Spain.
The question to be decided was whether the United States government
should disregard its obligations to Napoleon and act independently, or
whether the President should defer to the opinion of Talleyrand and to the
Emperor’s will. The story of diplomatic adventure, which has so often an
interest beyond what could be supposed possible from the contact of three
or four quiet and elderly gentlemen meeting about a green table, or writing
letters inordinately long, owes that interest in most cases to a hope or a
despair, to a mystery or an elucidation; but Monroe’s labors at that time
offered little mystery, and less hope. Although he did not know all that was
happening behind the diplomatic curtain, he knew enough to be aware that
his negotiation for Florida, on the ground chosen by the President, was
hopeless.
Three months had passed since Cevallos made his appeal to Talleyrand
for help. “If the Emperor would but say a word,” Cevallos urged;[208] “if he
would make the United States understand that he will not be pleased at
seeing them abuse their advantages,”—this would put an end to insults like
the Mobile Act and Pinckney’s threats. Talleyrand’s answer could not be
doubtful. Angry with Jefferson, Madison, Monroe, and Livingston for their
attack on West Florida, into which his own and his master’s finessing had
drawn them; still angrier with Pinckney for the burlesque of Napoleonic
manners with which he alarmed the government of Spain; hostile at heart to
Bonaparte’s ultimate schemes against the Spanish empire, but determined
that if Spain were to be plundered France should have the booty; willing to
repay a part of the humiliation and disappointment which the United States
had twice inflicted upon him,—the instant the Spanish ambassador at Paris
brought the Mobile Act to his notice, Talleyrand assured him with emphasis

that the Emperor would formally oppose such pretensions on the part of the
United States;[209] and when Pinckney’s conduct was reported to him, with
the request that the Emperor would instruct his minister at Washington to
act in concert with Yrujo in order to prevent a rupture, Talleyrand hastened
to meet the wish of the Spanish government.
Cevallos made other requests. After narrating the history of Pinckney’s
claims convention, he touched briefly on the claim for French spoliations
which the Americans so warmly urged against Spain, and he asserted that
Lucien Bonaparte had given an assurance that these claims were covered by
the Franco-American treaty of 1800, and therefore could not be pressed
against Spain. He complained that Pinckney had used “language the most
gross, the most insulting, and, so to speak, the most audacious and
menacing.” He called attention to the dangers which would result from
allowing the boundary of Louisiana to be extended toward either Florida or
Mexico; and he begged “that orders might be sent to the French
commissioner Laussat in Louisiana, enjoining him to restrain the
pretensions of the Americans regarding the limits of that province, and not
to show himself favorable to the wishes of the Americans, as there is reason
to suspect him of doing, according to his correspondence with the Spanish
commissioner.”
Laussat’s offence consisted in telling the American commissioners that
his instructions fixed the Rio Bravo as the western boundary of Louisiana.
Cevallos made no protest to Talleyrand against the truth of Laussat’s
statement. He tacitly admitted that Laussat was right; but he invited
Talleyrand to join in depriving the United States of Texas, which the United
States had bought, and the price of which they had paid to France. That
Godoy should conspire for this purpose was natural, for he had no reason to
respect the Louisiana cession, and he had pledged his honor in no way to
the United States; but that he should ask Napoleon to deprive the United
States of property which Napoleon himself had bought from Spain and sold
to the United States, and for which he had received some millions of coin
for his personal objects and ambitions, showed that the Prince of Peace
understood the characters of Bonaparte and Talleyrand.
Talleyrand, who held that Bonaparte had made a mistake in selling
Louisiana to the United States, and who looked upon himself as having no
responsibility for the transaction, was glad to restrict what he thought the

evil that had been done. Taking the complaints of Spain to the Emperor, he
received permission to do what Spain requested; and during the month of
August he sent from the Foreign Office a series of documents that disposed
for the time of any hopes still nourished by Jefferson’s diplomacy.
These three papers were too important to be forgotten. French
diplomatic writings were models of concise, impassive clearness,
contrasting with the diffuse and argumentative, if not disputatious, style
which sometimes characterized American and Spanish official
correspondence. These three short letters offered examples of French
methods. The first was addressed to General Turreau at Washington, and
concerned the boundaries of Louisiana toward the west:[210]—
“If the Mississippi and the Iberville trace with precision the eastern boundary of
that colony, it has less precise limits to the westward. No river, no chain of mountains,
separates it from the Spanish possessions; and between the last settlements of
Louisiana and the first of those in the Spanish colonies are frequently to be found
intervals so great as to make a line of demarcation difficult to agree upon. So Spain
already appears to fear that the United States, who show an intention of forcing back
the western limits of Louisiana, may propose to advance in this direction to the ocean,
and establish themselves on that part of the American coast which lies north of
California.”

Turreau was directed to divert the United States government from the
idea of extension toward the west and northwest in any manner that might
annoy Spain. He was to employ means of persuasion and friendly influence
for this purpose, rather than to act officially; all official action being
reserved for objects directly interesting France.
The second document[211] was also addressed to Turreau, but was more
decided in tone, as though the Emperor himself had dictated its language.
After a brief allusion to Pinckney’s claims convention and the American
theory that Spain was responsible for French spoliations which she had not
prevented, Talleyrand continued:—
“That convention, made under date of Aug. 11, 1802, is posterior by—months to
that which France concluded with the United States, the 8th Vendemiaire, An ix. (30
Sept. 1800), and which declared that no indemnity should be given for prizes made by
either of the two Powers. This Article ought to leave the Americans no hope that
prizes made against them on Spanish shores would be excepted and paid for; it would
be useless for them to suppose that it is Spain from whom they seek these
indemnities: Spain, who would have only the advances to pay, would afterward recur
to France for reimbursement. It is, then, upon France that this charge would ultimately
fall; and as we are relieved by the convention of Sept. 30, 1800, from every kind of
debt relating to prizes, we can only with some surprise see the United States seeking

to obtain from another government a part of the indemnities which they had decidedly
renounced in their convention with France. Spain had doubtless lost sight of these
considerations, and had not in view this convention of ours, when her plenipotentiary
signed that of Aug. 11, 1802, which the United States now require her to ratify.
Circumstances which have since taken place have, fortunately, furnished Spain with
an occasion for retracing the false step she took in signing this convention. The
Federal government, which by different acts relative to the Floridas has violated the
sovereign rights of Spain, and which for more than eighteen months has refused to
ratify its convention with her, has lost the right to complain because the Court of
Madrid now imitates its refusal, and insists upon making such modifications in this
treaty as the lapse of time may make it think necessary and better suited to its rights
and dignity.”

After sending these instructions to Turreau, the French Minister for
Foreign Relations next turned to Spain, and wrote a note intended to
reassure Cevallos. The peculiar interest of this document lay in the spirit it
showed toward the United States. Cevallos had invited an understanding as
to the boundaries of Louisiana to be alleged against the United States.
These boundaries, defined eighteen months before in the secret instructions
for Victor, a copy of which was given to Laussat, declared the Rio Bravo to
be the western limit of Louisiana:[212] “Bounded on the west by the river
called Rio Bravo, from the mouth of this stream up to the 30th parallel,
beyond this point the line of demarcation ceases to be traced, and it seems
that there has never been an agreement as to this part of the frontier.” That
Laussat meant to act on these instructions was proved by his language to
Governor Claiborne and General Wilkinson.[213] “M. Laussat confidentially
signified” to these two American commissioners that the territory “did not
comprehend any part of West Florida; adding at the same time that it
extended westwardly to the Rio Bravo, otherwise called Rio del Norte.”
Although Cevallos had remonstrated against the indiscretion of this
statement, he had not suggested that Laussat was in error;[214] he merely
invited Talleyrand to check a subordinate officer, in order to limit American
pretensions. In accordance with this hint, Talleyrand marked for the Spanish
government the line it was to take in resisting the American claim to
territory for which France had received the purchase money.
After defining the western boundary of Florida as fixed by treaty at the
Iberville and the Mississippi rivers, the French minister instructed the
Spanish government as follows:[215]—
“The western limit of Louisiana not having been fixed in a manner equally precise
by the treaties which preceded that of March 21, 1801, nor by that treaty itself, the

uncertainty which prevailed in regard to the direction of its frontiers has necessarily
continued since the cession made to the United States. France could not even take
upon herself to indicate to the United States what ought to be that precise limit, for
fear of wounding on this point the pretensions of one or the other Power directly
interested in this question. It would have become the object of negotiation between his
Imperial and his Catholic Majesties. To-day it can be treated only between Spain and
the United States. Nevertheless, as the Americans derive their rights from France, I
have been enabled to express to his Imperial Majesty’s minister plenipotentiary near
the United States the chief bases on which the Emperor would have planted himself in
the demand for a demarcation of boundaries. Starting from the Gulf of Mexico, we
should have sought to distinguish between settlements that belong to the kingdom of
Mexico, and settlements that had been formed by the French or by those who
succeeded them in this colony. This distinction between settlements formed by the
French or by the Spaniards would have been made equally in ascending northwards.
All those which are of French foundation would have belonged to Louisiana; and
since European settlements in the interior are rare and scattered, we might have
imagined direct lines drawn from one to the other to connect them; and it is to the
west of this imaginary line that the boundary between Louisiana and the Spanish
possessions would have been traced at such distance and in such direction as France
and Spain should have agreed. The great spaces which sometimes exist between the
last French settlements and the last Spanish missions might have left still some doubts
on the direction of the boundary to be traced between them, but with the views of
friendship and conciliation which animate their Majesties, these difficulties would
have been soon smoothed away.”

Such were, according to Talleyrand, the conciliatory intentions which
should have animated his Imperial Majesty. They were widely different
from the positive instructions formally approved by the First Consul Nov.
26, 1802, which ordered Victor and Laussat to consider the Rio Bravo as
the boundary of their command. The difference was the whole province of
Texas.
On another point Talleyrand reassured the Spanish government.
“In any case,” said he, “the Court of Madrid would appear to have no ground for
the fear it shows that the United States may make use of their possession of Louisiana
in order to form settlements on the northwest coast of America. Whatever boundary
may be agreed upon between Spain and the United States, the line will necessarily be
so far removed from the western coast of America as to relieve the Court of Madrid
from any anxiety on that score.”

Yet no one knew better than Talleyrand the instincts of the American
people, and their ambition to use the entire continent for their experiments!
He knew that the First Consul, by his instructions to Laussat, had given, so
far as he could, the authority of both French and Spanish governments to
the claim of the United States that Louisiana stretched westwardly to the
Rio Bravo, and on the northwest indefinitely to a line yet to be fixed. He

knew that Laussat, who hated the Spaniards more than he did the
Americans, had betrayed the secret. If Talleyrand hoped to repress
American ambition, he must have calculated on the effects of force or fear,
or he must have been overwhelmed by the immensity of the scale on which
the Americans were acting. The doctrine of contiguity, on which the United
States could rest their most plausible claim to Oregon, was as valid then as
it ever afterward became; and if Talleyrand did not appreciate it, Godoy
proved himself the more sagacious statesman.
By Sept. 1, 1804, these precautionary measures were completed, and
Talleyrand could wait for the coming of Monroe and Armstrong. About the
middle of October Monroe appeared in Paris. His instructions, sent from
Washington before the news of Pinckney’s extravagances had reached
America, obliged him to insist upon the right to West Florida as “a sine quâ
non, and no price to be given for it;”[216] to insist, also, upon the right to
Texas, but with a border-land to be kept unsettled for thirty years; and to
offer two million dollars for East Florida beyond the Perdido. The Cabinet
then for the first time decided to commit itself to the doctrine that West
Florida was a part of the Louisiana purchase,[217] alleging as its ostensible
reason, not so much the abstract justice of the title, as the wish to avoid
acknowledging Spanish land-grants made in Florida since the Louisiana
cession.
“It is indispensable,” wrote Madison, April 15, 1804, “that the United States be
not precluded from such a construction [of the treaty],—first, because they consider
the right as well founded; secondly and principally, because it is known that a great
proportion of the most valuable lands between the Mississippi and the Perdido have
been granted by Spanish officers since the cession was made by Spain. These illicit
speculations cannot otherwise be frustrated than by considering the territory as
included in the cession made by Spain.”

The hope that Spain might submit to these concessions rested on the
belief that she could not afford to quarrel with the United States. Foreseeing
that she must soon be drawn into the war with England, the President from
the first looked forward to that event, believing that the same reasons which
as he supposed had forced Bonaparte to cede Louisiana, must reconcile
Spain to the cession of Florida.
“Should she be engaged in the war,” wrote Madison to Monroe, “or manifestly
threatened with that situation, she cannot fail to be the more anxious for a solid
accommodation on all points with the United States, and the more willing to yield, for

that purpose, to terms which, however proper in themselves, might otherwise be
rejected by her pride and misapplied jealousy.”

The first part of this calculation was realized even before Monroe
quitted London. Oct. 1, 1804, a British squadron seized the Spanish
treasure-ships on their voyage from America; and no one doubted that Spain
must declare war. She did so a few weeks later, December 12, before
Monroe reached Madrid. The effect of this new disaster on what Madison
called her “misapplied jealousy” remained to be seen.
The only published record of Monroe’s stay in Paris is contained in a
note dated Nov. 8, 1804, which he persuaded Livingston to convey to
Talleyrand. Although Livingston’s temper was peculiar, and his diplomacy
under ordinary circumstances restless, he was well acquainted with the men
who governed France; and he had little faith in another man’s ability to do
what he had himself attempted in vain. That Livingston should be jealous of
Monroe’s presence in Paris was natural; for the American minister at
London was not accredited to the Emperor, and his interference could do
nothing but harm to the actual minister at Paris. When asked to act as
medium for Monroe’s proposed communications with Talleyrand,
Livingston made objections. Not until Armstrong arrived, about November
1, did the ministers agree upon the terms of the note, and send it to its
address. Monroe had then been one month absent from London.
Nothing could be more courteous than the tone of Monroe’s letter,
which ignored Pinckney’s conduct, and breathed a spirit of benevolence.
[218]
The object of writing was to ask the Emperor’s good offices in support
of the negotiation to be opened at Madrid; and in order to reach this end,
Monroe touched on the story of his present mission, recounting the causes
of the previous quarrel with Spain, and alluding to West Florida, the
spoliation claims, the claims for damages rising from Morales’s occlusion
of the Mississippi, and to the Mobile Act, which, as Monroe admitted, was
intended to authorize the taking immediate possession of Florida. The only
offensive idea suggested in the note was that the Spanish occupation of
Florida implied an aggression against the United States, “which tends to
provoke hostility and lead to war.”
The note combining the diplomacy of three ministers was sent; and the
three diplomatists waited in fear of what would follow, dreading nothing so
much as Talleyrand’s answer. They had reason to know that it would be

unfavorable, and that at least on the question of West Florida Talleyrand had
already committed himself against the United States. They were told, too,
that on reading their note Napoleon showed great irritation. Besides this,
they had other causes of alarm. Within three days after Monroe’s arrival at
Paris, Marbois, his best friend among Napoleon’s ministers, told him that
the question was one of money:[219] “Such was the situation of Spain at this
time, that he was persuaded if we would make her suitable pecuniary
accommodations we might succeed.” M. Hauterive, another gentleman
within the circle of government, soon afterward repeated the remark: “Spain
must cede territory; the United States must pay money.” Care was taken to
let Monroe understand that once this principle should be agreed upon,
France would cause the negotiation to be transferred to Paris. Armstrong
soon afterward wrote to Madison, alluding to the story in regard to the
Emperor:[220]—
“This country has determined to convert the negotiation into a job, and to draw
from it advantages merely pecuniary to herself, or, in other language, to her agents. It
is this venality that explains her present reserve, the degree of excitement displayed
by the Emperor on reading the note, and the marked incivility with which Mr. Monroe
was treated by Talleyrand. Since his departure, repeated intimations have been given
to me that if certain persons could be sufficiently gratified, the negotiation should be
transferred hither, and brought to a close with which we should have no reason to find
fault.”

Monroe, though honest as any man in public life, and more courageous
in great emergencies than some of his friends or rivals, was commonly not
quick at catching an idea, nor did he see it at last from a great elevation; but
in this instance the idea was thrust so persistently into his face, that had he
been blind he could not have missed it. Nothing could more clearly explain
his situation than the language of the diary in which he recorded, for the
President’s benefit, the daily course of his conduct.
“No other alternative,” he explained,[221] “presented itself to me than to abandon
the object and return to London, or to submit to the terms which it was sufficiently
well understood France was willing to accept, and seemed in some measure to dictate,
which amounted to this: that we should create a new loan of about seventy millions of
livres, and transfer the same to Spain, who would immediately pass them over to
France, in consideration of which we should be put in possession of the disputed
territory, under stipulations which should provide for the adjustment of the ultimate
right there, and reimbursement of the money by instalment in seven years.”

“To submit to the terms proposed was altogether out of the question,”
continued Monroe. Having led his Government to take the ground that West

Florida had already been bought, he could not enter into a negotiation to
buy it a second time. His instructions made this point a sine quâ non of
negotiation. Recognizing that under these circumstances further effort was
useless, or in his own words that no other alternative presented itself but to
abandon the object and return to London, Monroe intimated to Talleyrand
that he meant not only to pay no money, but also to negotiate in spite of
Napoleon; and started for Madrid.
“I did not hesitate,” he wrote home,[222] “in many informal communications, the
substance of which I was persuaded were made known to those in power, to declare
most solemnly that I would sanction no measure which contemplated a payment of
money to Spain in any transaction we might have with her in the affair,—by which
was meant, by creation of stock or otherwise which took the money from our people;
that neither the state of things between the parties, the example of France in a similar
case, or my instructions, permitted it. These conversations were with a person who
possessed the confidence of certain persons in power, as well as my own, though they
were not of a nature to compromit either party. That circumstance enabled me to
speak with the utmost freedom, and perhaps to say things which it might have been
difficult to press directly in the same manner to the parties themselves.”

In thus defying France, Monroe, if he resembled European diplomatists,
must have aimed at giving his Government an opportunity to break with the
Emperor and to proceed against Florida by means of force. That he should
have still hoped for success in negotiating at Madrid was hardly possible.
Armstrong thought his chance desperate.[223]
“Mr. Monroe has no doubt communicated to you,” he wrote to the Secretary of
State, “the motives which induced him to leave England in prosecution of his mission
to Spain, and while here to attempt to draw from this Government some new
declaration in support of our construction of the late treaty. With this view a note was
prepared and transmitted through Livingston, the receipt of which was acknowledged
by Mr. Talleyrand with a promise that ‘an answer should be given to it as soon as the
Emperor should have signified his will on the subject.’ Having waited nearly a month,
and no answer being given, having some reason to believe that any declaration from
this Court now would be less favorable than those already made, and fearful lest
something might be lost at Madrid, while nothing could be gained here, he set out on
the 8th instant for Spain. I have but little hope, however, that he will be able to do
more than fulfil the forms of his mission.”

Armstrong preferred, as he expressed it, “an effort (which cannot fail) to
do the business at home.” He had already discovered that the Emperor was
personally irritated with the Americans, that he took no pains to conceal it,
and that this irritation was a cause of his reserve.
“I have employed every means in my power to ascertain the cause of this cause,
and have learned from a person sufficiently near him to know the fact, that this temper

originated in representations made by Leclerc and others from St. Domingo; that it
has since been kept alive by the incident of the war in that country, the trade carried
on between it and the United States, the freedom with which he is treated in our press,
the matrimonial connection of Jerome, and, above all, the support which principles he
wishes to extinguish in France receive from the progressing prosperity of the United
States.”

With Napoleon in this frame of mind; with Godoy and Cevallos in a
humor far worse; and with Talleyrand in such a temper as not to allow of
his treating Monroe with civility,—the American plenipotentiary departed
to Madrid, hoping that something might occur to overcome his difficulties.
During his journey, Charles IV. declared war against England. This long-
foreseen event, which should have brought Spain to terms with the United
States, in fact threw her only at the feet of Napoleon. Henceforward every
offence to Spain was an offence to France, which the Emperor was the more
bound to resent because by treaty he must regard a war upon Charles IV. as
a war upon himself.
Talleyrand was not vindictive, but he had been twice mortified by the
failure of his policy toward America. If his callous cheek could burn, it was
still red with the blow which the last President of the United States had
struck it; and no waters of oblivion could drown in his memory the cry of
distress with which he had then begged for mercy. He had been again
overthrown by the present President, and obliged to sell Louisiana, turn his
back on the traditions of France, and shut up his far-reaching mind within
the limit of his master’s artillery politics. Day by day he saw more clearly
that soldiership, and not statecraft, was to guide the destinies of France, and
that the new régime was but revolution without ideas. He had probably
begun already to feel that the presence of his coldly silent face was
becoming irksome to a will which revolted at the memory of a
remonstrance. Talleyrand was corrupt,—perhaps he thought himself more
corrupt than he was; but his political instincts were sounder than his private
morality. He was incarnate conservatism; but he was wider-minded and
more elevated in purpose than Napoleon. He had no faith in Napoleon’s
methods, and was particularly hostile to his projects against Spain; but in
respect to Monroe and his mission, Talleyrand’s ideas coincided with those
of the Emperor; and when two such men marked out a victim, his chance of
escape was small.

Talleyrand was not to blame that Monroe’s note remained unanswered
before Monroe left Paris. About ten days after receiving it Talleyrand made
to the Emperor a report on the subject, so cool and clear as to read like a
mathematical demonstration.[224]
“The United States,” he began, “who wish to negotiate at Madrid under the
auspices of France for the acquisition of Florida, have acquired little title to the good
offices of the Emperor by the sharpness of tone and the want of civility (égards) with
which they have conducted themselves toward Spain.”

After enumerating the threats and aggressions of the United States
government against Spain during the last three years, the report disposed of
the American claims, one by one, in few words. First, the spoliations, which
had been formally abandoned by treaty; second, the claim for losses rising
from the interruption of entrepôt at New Orleans, which “should be
terminated by the treaty of cession,—the acquisition of an immense country
might throw out of view some anterior losses;” finally, the claim to West
Florida,—a species of attack on the Emperor’s dignity and good faith which
merited some expression of his displeasure. To support this view, Talleyrand
related the history of the French negotiation for West Florida and its failure,
commenting on the manner in which the Americans had fabricated their
claim, and coming at last to a conclusion studiously moderate, and
evidently in harmony with the views of Hauterive as expressed to Monroe.
Talleyrand rarely wrote such papers with his own hand; probably they were
drawn up under his directions by Hauterive, or some other subordinate of
the Office, in the form of suggestions rather than advice.
“According to such evidence, no one can suppose the United States to be
convinced of the justice of their rights; and we are warranted in thinking that the
Federal government, as a result of confidence in its own strength, of its ambition, and
its ascendency in America, raises pretensions to a part of Florida in order to show
itself afterward more exacting toward Spain. The Emperor will feel that justice
requires him not to recognize such pretensions. If he should assist by his good offices
an arrangement between the United States and Spain, he would wish good faith and
impartiality for its base.
Only in case the United States should desist from their unjust pretensions to West
Florida, and return to the forms of civility and decorum,—from which in their
relations with each other governments should never depart,—could the Emperor allow
himself to second at the Court of Madrid the project of acquisition of the two Floridas.
Then perhaps the Emperor might think that this country is less suited to Spain now
that it is separated from her other colonies, and that it is better suited to the United
States because a part of their Western rivers cross the Floridas before flowing into the
Gulf of Mexico; and finally, that Spain may see in her actual situation, and in the

expenses entailed on her by the war, some motives for listening to the offers of the
Federal government.”

Talleyrand had great need to insist on “the forms of civility and
decorum from which governments should never depart”! Perhaps
Talleyrand already foresaw the scene, said to have occurred some two years
later, when Napoleon violently denounced him to his face as “a silk
stocking stuffed with filth,” and the minister coldly retaliated by the famous
phrase, “Pity that so great a man should be so ill brought up!” The task of
teaching manners to Jefferson was not Napoleon’s view of his own
functions in the world. He probably gave more attention to the concluding
lines of the report, which suggested that he should decide whether a Spanish
colony, made worthless by an arbitrary act of his own, could be usefully
employed in sustaining his wars.
This report, dated Nov. 19, 1804, lay some weeks in the Emperor’s
hands. Monroe left Paris for Madrid December 8, and still no answer had
been sent to his note. He wrote from Bordeaux, December 16, a long and
interesting letter to Madison, and resumed his journey. He could hardly
have crossed the Bidassoa when Armstrong received from Talleyrand,
December 21, the long-expected answer,[225] which by declaring the claim
to West Florida emphatically unfounded struck the ground from under
Monroe’s feet, and left him to repent at leisure his defiance of Talleyrand’s
advice. Under the forms of perfect courtesy, this letter contained both
sarcasm and menace. Talleyrand expressed curiosity to learn the result of
Monroe’s negotiation:—
“This result his Imperial Majesty will learn with real interest. He saw with pain
the United States commence their difficulties with Spain in an unusual manner, and
conduct themselves toward the Floridas by acts of violence which, not being founded
in right, could have no other effect but to injure the lawful owner. Such an aggression
gave the more surprise to his Majesty because the United States seemed in this
measure to avail themselves of their treaty with France as an authority for their
proceedings, and because he could scarcely reconcile with the just opinion which he
entertains of the wisdom and fidelity of the Federal government a course of
proceedings which nothing can authorize toward a Power which has long occupied,
and still occupies, one of the first ranks in Europe.”

Madison and Monroe, as well as Jefferson, in the course of their
diplomacy had many mortifications to suffer; but they rarely received a
reprimand more keen than this. Yet its sharpness was so delicately covered
by the habitual forms of Talleyrand’s diplomacy that Americans, who were

accustomed to hear and to use strong language, hardly felt the wound it was
intended to inflict. After hearing Yrujo denounce an act of their government
as an “atrocious libel,” they were not shocked to hear Talleyrand denounce
the same act as one of violence which nothing could authorize. The force of
Talleyrand’s language was more apparent to Godoy than to Madison, for it
bore out every expression of Yrujo and Cevallos. The Prince of Peace
received a copy of Talleyrand’s note at the moment when Monroe, after
almost a month of weary winter travel, joined Pinckney, who had for six
months been employed only in writing letter after letter begging for succor
and support. Don Pedro Cevallos, with this public pledge in his hand, and
with secret French pledges covering every point of the negotiation in his
desk, could afford to meet with good humor the first visit of the new
American plenipotentiary.
Pinckney’s humiliation was extreme. After breaking off relations with
Cevallos and pledging himself to demand his passports and to leave Spain,
he had been reduced to admit that his Government disavowed him; and not
only was he obliged to remain at Madrid, but also to sue for permission to
resume relations with Cevallos. The Spanish government good-naturedly
and somewhat contemptuously permitted him to do so; and he was only
distressed by the fear that Monroe might refuse to let him take part in the
new negotiation, for he was with reason confident that Monroe would be
obliged to follow in his own footsteps,—that the United States could save
its dignity and influence only by war.
At the beginning of the new year, Jan. 2, 1805, Monroe entered Madrid
to snatch Florida from the grasp of Spain and France. The negotiation fell
chiefly within Jefferson’s second term, upon which it had serious results.
But while Monroe, busy at Madrid with a quarrel which could lead only to
disappointment or war, thus left the legation at London for eight months to
take care of itself, events were occurring which warned President Jefferson
that the supreme test of his principles was near at hand, and that a storm
was threatening from the shores of Great Britain compared with which all
other dangers were trivial.

CHAPTER XIV.
For eighteen years after 1783 William Pitt guided England through
peace and war with authority almost as absolute as that of Don Carlos IV. or
Napoleon himself. From him and from his country President Jefferson had
much to fear and nothing to gain beyond a continuance of the good relations
which President Washington, with extreme difficulty, had succeeded in
establishing between the two peoples. So far as England was concerned,
this understanding had been the work of Pitt and Lord Grenville, who rather
imposed it on their party than accepted it as the result of any public will.
The extreme perils in which England then stood inspired caution; and of
this caution the treaty of 1794 was one happy result. So long as the British
government remained in a cautious spirit, America was safe; but should Pitt
or his successors throw off the self-imposed restraints on England’s power,
America could at the utmost, even by a successful war, gain nothing
materially better than a return to the arrangements of 1794.
The War of Independence, which ended in the definitive treaty of 1783,
naturally left the English people in a state of irritation and disgust toward
America; and the long interregnum of the Confederation, from 1783 to
1789, allowed this disgust to ripen into contempt. When at length the
Constitution of 1789 restored order in the American chaos, England felt
little faith in the success of the experiment. She waited for time to throw
light on her interests.
This delay was natural; for American independence had shattered into
fragments the commercial system of Great Britain, and powerful interests
were combined to resist further concession. Before 1776 the colonies of
England stretched from the St. Lawrence to the Mississippi, and across the
Gulf of Mexico to the coast of South America, mutually supporting and
strengthening each other. Jamaica and the other British islands of the West
Indies drew their most necessary supplies from the Delaware and the
Hudson. Boston and New York were in some respects more important to
them than London itself. The timber, live-stock, and provisions which came
from the neighboring continent were essential to the existence of the West
Indian planters and negroes. When war cut off these supplies, famine and
pestilence followed. After the peace of 1783 even the most conservative

English statesmen were obliged to admit that the strictness of their old
colonial system could not be maintained, and that the United States, though
independent, must be admitted to some of the privileges of a British colony.
The government unwillingly conceded what could not be refused, and the
West Indian colonists compelled Parliament to relax the colonial system so
far as to allow a restricted intercourse between their islands and the ports of
the United States. The relaxation was not a favor to the United States,—it
was a condition of existence to the West Indies; not a boon, but a right
which the colonists claimed and an Act of Parliament defined.[226]
The right was dearly paid for. The islands might buy American timber
and grain, but they were allowed to make return only in molasses and rum.
Payment in sugar would have been cheaper for the colonists, and the
planters wished for nothing more earnestly than to be allowed this privilege;
but as often as they raised the prayer, English shipowners cried that the
navigation laws were in peril, and a chorus of familiar phrases filled the air,
all carrying a deep meaning to the English people. “Nursery of seamen”
was one favorite expression; “Neutral frauds” another; and all agreed in
assuming that at whatever cost, and by means however extravagant, the
navy must be fed and strengthened. Under the cover of supporting the navy
any absurdity could be defended; and in the case of the West Indian trade,
the British shipowner enjoyed the right to absurdities sanctioned by a
century and a half of law and custom. The freight on British sugars
belonged of right to British shippers, who could not be expected to
surrender of their own accord, in obedience to any laws of political
economy, a property which was the source of their incomes. The colonists
asked permission to refine their own sugar; but their request not only roused
strong opposition from the shipowners who wanted the bulkier freight, but
started the home sugar-refiners to their feet, who proved by Acts of
Parliament that sugar-refining was a British and not a colonial right. The
colonist then begged a reduction of the heavy duty on sugar; but English
country gentlemen cried against a measure which might lead to an increase
of the income-tax or the imposition of some new burden on agriculture. In
this dilemma the colonists frankly said that only their weakness, not their
will, prevented them from declaring themselves independent, like their
neighbors at Charleston and Philadelphia.

Even when the qualified right of trade was conceded, the colonists were
not satisfied; and the concession itself laid the foundation of more serious
changes. From the moment that American produce was admitted to be a
necessity for the colonists, it was clear that the Americans must be allowed
a voice in the British system. Discussion whether the Americans had or had
not a right to the colonial trade was already a long step toward revolution.
One British minister after another resented the idea that the Americans had
any rights in the matter; yet when they came to practical arrangements the
British statesmen were obliged to concede that they were mistaken. From
the necessity of the case, the Americans had rights which never could be
successfully denied. Parliament struggled to prevent the rebel Americans
from sharing in the advantages of the colonial system from which they had
rebelled; but unreasonable as it was that the United States should be
rewarded for rebellion by retaining the privileges of subjects, this was the
inevitable result. Geography and Nature were stronger than Parliament and
the British navy.
At first Pitt hoped that the concession to the colonists might entail no
concession to the United States; while admitting a certain hiatus in the
colonial system, he tried to maintain the navigation laws in their integrity.
The admission of American produce into the West Indies was no doubt an
infraction of the protectionist principle on which all the civilized world,
except America, founded its economical ideas; but in itself it was not
serious. To allow the flour, potatoes, tobacco, timber, and horses of the
American continent to enter the harbors of Barbadoes and Jamaica; to allow
in turn the molasses and rum of the islands to be sent directly to New York
and Boston,—harmed no one, and was advantageous to all parties, so long
as British ships were employed to carry on the trade. At first this was the
case. The Act of Parliament allowed only British subjects, in British-built
ships, to enter colonial ports with American produce. Whether the United
States government would long tolerate such legislation without
countervailing measures was a question which remained open for a time,
while the system itself had a chance to prove its own weakness. The British
shipping did not answer colonial objects. Again and again the colonists
found themselves on the verge of starvation; and always in this emergency
the colonial governors threw open their ports by proclamation to American
shipping, while with equal regularity Parliament protected the governors by
Acts of Indemnity. To this extent the navigation system suffered together

with the colonial system, but in theory it was intact. Ministry, Parliament,
and people clung to the navigation laws as their ark of safety; and even the
colonists conceded that although they had a right to eat American wheat and
potatoes, they had no right to eat those which came to them in the hold of a
Marblehead schooner.
Such a principle, however convenient to Great Britain, was not suited to
the interests of New England shippers. In peace their chances were
comparatively few, and the chief diplomatic difficulties between European
governments and the United States had their source in the American attempt
to obtain legal recognition of trade which America wished to maintain with
the colonies; but in war the situation changed, and more serious disputes
occurred. Then the French and Spanish West Indian ports were necessarily
thrown open to neutral commerce, because their own ships were driven
from the ocean by the superiority of the British navy. Besides the standing
controversy about the admission of American produce to British islands, the
British government found itself harassed by doubts to what extent it might
safely admit the Americans into the French or Spanish West Indies, and
allow them to carry French property, as though their flag were competent to
protect whatever was under it. Granting that an article like French sugar
might be carried in a neutral vessel, there were still other articles, called
contraband, which ought not to be made objects of neutral commerce; and
England was obliged to define the nature of contraband. She was also
forced to make free use of the right of blockade. These delicate questions
were embittered by another and more serious quarrel. The European
belligerents claimed the right to the military service of their subjects, and
there was no doubt that their right was perfect. In pursuance of the claim
they insisted upon taking their seamen from American merchant-vessels
wherever met on the high seas. So far as France was concerned, the
annoyance was slight; but the identity of race made the practice extremely
troublesome as concerned England.
At the outbreak of the French wars, Nov. 6, 1793, the British
government issued instructions directing all British armed vessels to seize
every neutral ship they should meet, loaded with the produce of a French
colony or carrying supplies for its use.[227] These orders were kept secret for
several weeks, until the whole American commerce with the Antilles, and
all American ships found on the ocean, laden in whole or in part with

articles of French colonial produce or for French colonial use, were
surprised and swept into British harbors, where they were condemned by
British admiralty courts, on the ground known as the “Rule of the War of
1756,”—that because trade between the French colonies and the United
States was illegal in peace, it was illegal in war. From the point of view in
which European Powers regarded their colonies, much could be said in
support of this rule. A colony was almost as much the property of its home
government as a dockyard or a military station. France and Spain could
hardly complain if England chose to treat the commerce of such
governmentstations as contraband; but a rule which might perhaps be
applied by European governments to each other worked with great injustice
when applied to the United States, who had no colonies, and made no
attempt to build up a navy or support an army by such means. Taken in its
broadest sense, the European colonial system might be defined by the
description which the best of British commentators gave to that of England,
[228]
—a “policy pursued for rendering the foreign trade of the whole world
subservient to the increase of her shipping and navigation.” American
Independence was a protest against this practice; and the first great task of
the United States was to overthrow and destroy the principle, in order to
substitute freedom of trade. America naturally objected to becoming a
martyr to the rules of a system which she was trying to revolutionize.
When these British instructions of Nov. 26, 1793, became known in the
United States, the Government of President Washington imposed an
embargo, threatened retaliation, and sent Chief-Justice Jay to London as a
last chance of maintaining peace. On arriving there, Jay found that Pitt had
already voluntarily retreated from his ground, and that new Orders, dated
Jan. 8, 1794, had been issued, exempting from seizure American vessels
engaged in the direct trade from the United States to the French West
Indies. In the end, the British government paid the value of the confiscated
vessels. The trade from the United States to Europe was not interfered with;
and thus American ships were allowed to carry French colonial produce
through an American port to France, while Russian or Danish ships were
forbidden by England to carry such produce to Europe at all, although their
flags and harbors were as neutral as those of the United States. America
became suddenly a much favored nation, and the enemies of England
attributed this unexpected kindness to fear. In truth it was due to a natural
mistake. The British Treasury calculated that the expense and trouble of

carrying sugar and coffee from Martinique or St. Domingo to Boston, of
landing it, paying duties, re-embarking it, receiving the drawback, and then
carrying it to Bordeaux or Brest, would be such as to give ample advantages
to English vessels which could transship more conveniently at London. The
mistake soon became apparent. The Americans quickly proved that they
could under these restrictions carry West Indian produce to Europe not only
more cheaply than British ships could do it, but almost as quickly; while it
was a positive advantage on the return voyage to make double freight by
stopping at an American port. The consequence of this discovery was seen
in the sudden increase of American shipping, and was largely due to the aid
of British seamen, who found in the new service better pay, food, and
treatment than in their own, and comparative safety from the press-gang
and the lash. At the close of the century the British flag seemed in danger of
complete exclusion from the harbors of the United States. In 1790 more
than 550 British ships, with a capacity of more than 115,000 tons, had
entered inward and outward, representing about half that number of actual
vessels; in 1799 the custom-house returns showed not 100 entries, and in
1800 about 140, representing a capacity of 40,000 tons. In the three years
1790–1792, the returns showed an average of some 280 outward and
inward entries of American ships with a capacity of 54,000 tons; in 1800
the entries were 1,057, with a capacity of 236,000 tons. The Americans
were not only beginning to engross the direct trade between their own ports
and Europe, but were also rapidly obtaining the indirect carrying-trade
between the West Indies and the European continent, and even between one
European country and another. The British government began to feel
seriously uneasy. At a frightful cost the people of England were striving to
crush the navies and commerce of France and Spain, only to build up the
power of a dangerous rival beyond the ocean.
Doubtless the British government would have taken measures to correct
its mistake, if the political situation had not hampered its energies. Chief-
Justice Jay, in 1794, negotiated a treaty with Lord Grenville which was in
some respects very hard upon the United States, but was inestimably
valuable to them, because it tied Pitt’s hands and gave time for the new
American Constitution to acquire strength. Ten years of steady progress
were well worth any temporary concessions, even though these concessions
exasperated France, and roused irritation between her and the United States
which in 1798 became actual hostility. The prospect that the United States

would become the ally of England was so fair that Pitt dared not disturb it.
His government was in a manner forced to give American interests free
play, and to let American shipping gain a sudden and unnatural
enlargement. His liberality was well paid. For a moment France drove the
United States to reprisals; and as the immediate consequence, St. Domingo
became practically independent, owing to the support given by the United
States to Toussaint. Even the reconciliation of France with America effected
by Bonaparte and Talleyrand in 1800 did not at first redress the balance.
Not till the Peace of Amiens, in 1802, did France recover her colonies; and
not till a year later did Bonaparte succeed, by the sacrifice of Louisiana, in
bringing the United States back to their old attitude of jealousy toward
England.
Nevertheless, indications had not been wanting that England was aware
of the advantage she had given to American commerce, and still better of
the advantages which had been given it by Nature. All the Acts of
Parliament on the statute-book could not prevent the West Indies from being
largely dependent on the United States; yet the United States need not be
allowed the right to carry West Indian produce to France,—a right which
depended only on so-called international law, and was worthless unless
supported by the stronger force. A new Order was issued, Jan. 25, 1798,
which admitted European neutrals to enemies’ colonies, and allowed them
to bring French colonial produce to England or to their own ports. This
Order was looked upon as a side-blow at American shipping, which was not
allowed the same privilege of sailing direct from the Antilles to Europe. The
new Order was justified on the ground that the old rule discriminated in
favor of American merchants, whose competition might be injurious to the
commercial interests of England.[229]
Further than this the British government did not then go; on the
contrary, it officially confirmed the existing arrangement. The British courts
of admiralty conformed closely to the rules of their political chiefs. Sir
William Scott, better known as Lord Stowell, whose great reputation as a
judge was due to the remarkable series of judgments in which he created a
new system of admiralty law, announced with his usual clearness the rules
by which he meant to be guided. In the case of the “Emmanuel,” in
November, 1799, he explained the principle on which the law permitted
neutrals to carry French produce from their own country to France. “By

importation,” he said, “the produce became part of the national stock of the
neutral country; the inconveniences of aggravated delay and expense were a
safeguard against this right becoming a special convenience to France or a
serious abridgement of belligerent rights.” Soon afterward, in the case of
the “Polly,” April 29, 1800, he took occasion to define what he meant by
importation into a neutral country. He said it was not his business to decide
what was universally the test of a bona fide importation; but he was
strongly disposed to hold that it would be sufficient if the goods were
proved to have been landed and the duties paid; and he did accordingly rule
that such proof was sufficient to answer the fair demands of his court.
Rufus King, then American minister in London, succeeded in obtaining
from Pitt an express acceptance of this rule as binding on the government.
On the strength of a report[230] from the King’s Advocate, dated March 16,
1801, the British Secretary of State notified the American minister that what
Great Britain considered as the general principle of colonial trade had been
relaxed in a certain degree in consideration of the present state of
commerce. Neutrals might import French colonial produce, and convey it
by re-exportation to France. Landing the goods and paying the duties in
America legalized the trade, even though these goods were at once re-
shipped and forwarded to France on account of the same owners.
With this double guaranty Jefferson began his administration, and the
American merchants continued their profitable business. Not only did they
build and buy large numbers of vessels, and borrow all the capital they
could obtain, but doubtless some French and Spanish merchants, besides a
much greater number of English, made use of the convenient American
flag. The Yankees exulted loudly over the decline of British shipping in
their harbors; the British masters groaned to see themselves sacrificed by
their own government; and the British admirals complained bitterly that
their prize-money was cut off, and that they were wearing out their lives in
the hardest service, in order to foster a commerce of smugglers and
perjurers, whose only protection was the flag of a country that had not a
single line-of-battle ship to fly it.
Yet President Jefferson had reason to weigh long and soberly the
pointed remark with which the King’s Advocate began his report,—that the
general principle with respect to the colonial trade had been to a certain
extent relaxed in consideration of the present state of commerce. No doubt

the British pretension, as a matter of international law, was outrageous. The
so-called rule of 1756 was neither more nor less than a rule of force; but
when was international law itself anything more than a law of force? The
moment a nation found itself unable to show some kind of physical defence
for its protection, the wisdom of Grotius and Bynkershoek could not
prevent it from being plundered; and how could President Jefferson
complain merely because American ships were forbidden by England to
carry French sugars to France, when he looked on without a protest while
England and France committed much greater outrages on every other
country within their reach?
President Jefferson believed that the United States had ample means to
resist any British pretension. As his letters to Paine and Logan showed, he
felt that European Powers could be controlled through the interests of
commerce.[231] He was the more firmly convinced by the extraordinary
concessions which Pitt had made, and by the steady encouragement he gave
to the American merchant. Jefferson felt sure that England could not afford
to sacrifice a trade of some forty million dollars, and that her colonies could
not exist without access to the American market. What need to spend
millions on a navy, when Congress, as Jefferson believed, already grasped
England by the throat, and could suffocate her by a mere turn of the wrist!
This reasoning had much in its favor. To Pitt the value of the American
trade at a time of war with France and Spain was immense; and when taken
in connection with the dependence of the West Indian colonies on America,
it made a combination of British interests centring in the United States
which much exceeded the entire value of all England’s other branches of
foreign commerce. Its prospective value was still greater if things should
remain as they were, and if England should continue to undersell all rivals
in articles of general manufacture. England could well afford to lose great
sums of money in the form of neutral freights rather than drive Congress to
a protective system which should create manufactures of cotton, woollen,
and iron. These were motives which had their share in the civility with
which England treated America; and year by year their influence should
naturally have increased.
Of all British markets the American was the most valuable; but next to
the American market was that of the West Indies. In some respects the West
Indian was of the two the better worth preserving. From head to foot the

planters and their half-million negroes were always clad in cottons or linens
made by the clothiers of Yorkshire, Wiltshire, or Belfast. Every cask and
hoop, every implement and utensil, was supplied from the British Islands.
The sailing of a West Indian convoy was “an epoch in the diary of every
shop and warehouse throughout the Kingdom.”[232] The West Indian
colonies employed, including the fisheries, above a thousand sail of
shipping and twenty-five thousand seamen. While America might, and one
day certainly would, manufacture for herself, the West Indies could not
even dream of it; there the only profitable or practicable industry was
cultivation of the soil, and the chief article of cultivation was the sugar-
cane. Rival industries to those of Great Britain were impossible; the only
danger that threatened British control was the loss of naval supremacy or
the revolt of the negroes.
A great majority of British electors would certainly have felt no
hesitation in deciding, as between the markets of the United States and of
the West Indies, that if a choice must be made, good policy required the
government to save at all hazards the West Indies. Both as a permanent
market for manufactures and as a steady support for shipping, the West
Indian commerce held the first place in British interests. This fact needed to
be taken into account by the United States government before relying with
certainty on the extent to which Great Britain could be controlled by the
interests involved in the American trade. At the most critical moment all
Jefferson’s calculations might be upset by the growth of a conviction in
England that the colonial system was in serious danger; and to make this
chance stronger, another anxiety was so closely connected with it as to
cause incessant alarm in the British mind.
The carrying-trade between the French West Indies and Europe which
had thus fallen into American hands, added to the natural increase of
national exports and imports, required a large amount of additional
shipping; and what was more directly hostile to English interests, it drew
great numbers of British sailors into the American merchant-service. The
desertion of British seamen and the systematic encouragement offered to
deserters in every seaport of the Union were serious annoyances, which the
American government was unable to excuse or correct. Between 1793 and
1801 they reached the proportions of a grave danger to the British service.
Every British government packet which entered the port of New York

during the winter before Jefferson’s accession to power lost almost every
seaman in its crew; and neither people nor magistrates often lent help to
recover them. At Norfolk the crew of a British ship deserted to an American
sloop-of-war, whose commander, while admitting the fact, refused to
restore the men, alleging his construction of official orders in his excuse.
[233]
In most American harbors such protection as the British shipmaster
obtained sprang from the personal good-will of magistrates, who without
strict legal authority consented to apply, for the benefit of the foreign
master, the merchant-shipping law of the United States; but in one serious
case even this voluntary assistance was stopped by the authority of a State
government.
This interference was due to the once famous dispute over Jonathan
Robbins, which convulsed party politics in America during the heated
election of 1800. Thomas Nash, a boatswain on the British frigate
“Hermione,” having been ringleader in conspiracy and murder on the high
seas, was afterward identified in the United States under the name and with
the papers of Jonathan Robbins of Danbury, in Connecticut. On a
requisition from the British minister, dated June 3, 1799, he was delivered
under the extradition clause of Jay’s treaty, and was hung. The Republican
party, then in opposition, declared that Robbins, or Nash, was in their belief
an American citizen whose surrender was an act of base subservience to
Great Britain. An effigy of Robbins hanging to a gibbet was a favorite
electioneering device at public meetings. The State of Virginia, having a
similar grievance of its own, went so far as to enact a law[234] which
forbade, under the severest penalties, any magistrate who acted under
authority of the State to be instrumental in transporting any person out of its
jurisdiction. As citizens of the Union, sworn to support the Constitution,
such magistrates were equally bound with the Federal judges to grant
warrants of commitment, under the Twenty-seventh Article of Jay’s treaty,
against persons accused of specified crimes. The Virginia Act directly
contravened the treaty; while indirectly it prevented magistrates from
granting warrants against deserters and holding them in custody, so that
every English vessel which entered a Virginia port was at once abandoned
by her crew, who hastened to enter the public or private ships of the United
States.[235]

The captain of any British frigate which might happen to run into the
harbor of New York, if he went ashore, was likely to meet on his return to
the wharf some of his boat’s crew strolling about the town, every man
supplied with papers of American citizenship. This was the more annoying,
because American agents in British ports habitually claimed and received
the benefit of the British law; while so far as American papers were
concerned, no pretence was made of concealing the fraud, but they were
issued in any required quantity, and were transferred for a few dollars from
hand to hand.
Not only had the encouragement to desertion a share in the decline of
British shipping in American harbors, but it also warranted, and seemed
almost to render necessary, the only countervailing measure the British
government could employ. Whatever happened to the merchant-service, the
British navy could not be allowed to suffer. England knew no conscription
for her armies, because for centuries she had felt no need of general military
service; but at any moment she might compel her subjects to bear arms, if
circumstances required it. Her necessities were greater on the ocean. There,
from time immemorial, a barbarous sort of conscription, known as
impressment, had been the ordinary means of supplying the royal navy in
emergencies; and every seafaring man was liable to be dragged at any
moment from his beer-cellar or coasting-vessel to man the guns of a frigate
on its way to a three-years’ cruise in the West Indies or the Mediterranean.
Mere engagement in a foreign merchant-service did not release the British
sailor from his duty. When the captain of a British frigate overhauled an
American merchant-vessel for enemy’s property or contraband of war, he
sent an officer on board who mustered the crew, and took out any seamen
whom he believed to be British. The measure, as the British navy regarded
it, was one of self-protection. If the American government could not or
would not discourage desertion, the naval commander would recover his
men in the only way he could. Thus a circle of grievances was established
on each side. Pitt’s concessions to the United States irritated the British
navy and merchant-marine, while they gave great profits to American
shipping; the growth of American shipping stimulated desertions from the
British service to the extent of injuring its efficiency; and these desertions in
their turn led to a rigorous exercise of the right of impressment. To find
some point at which this vicious circle could be broken was a matter of

serious consequence to both countries, but most so to the one which avowed
that it did not mean to protect its interests by force.
Great Britain could have broken the circle by increasing the pay and
improving the condition of her seamen; but she was excessively
conservative, and the burdens already imposed on her commerce were so
great that she could afford to risk nothing. In the face of a combined navy
like that of Spain and France, her control of the seas at any given point,
such as the West Indies, was still doubtful; and in the face of American
competition, her huge convoys suffered under great disadvantage.
Conscious of her own power, she thought that the United States should be
first to give way. Had the American government been willing to perform its
neutral obligations strictly, the circle might have been broken without much
trouble; but the United States wished to retain their advantage, and
preferred to risk whatever England might do rather than discourage
desertion, or enact and enforce a strict naturalization law, or punish fraud.
The national government was too weak to compel the States to respect
neutral obligations, even if it had been disposed to make the attempt.
The practice of impressment brought the two governments to a deadlock
on an issue of law. No one denied that every government had the right to
command the services of its native subjects, and as yet no one ventured to
maintain that a merchant-ship on the high seas could lawfully resist the
exercise of this right; but the law had done nothing to define the rights of
naturalized subjects or citizens. The British government might, no doubt,
impress its own subjects; but almost every British sailor in the American
service carried papers of American citizenship, and although some of these
were fraudulent, many were genuine. The law of England, as declared from
time out of mind by every generation of her judges, held that the allegiance
of a subject was indefeasible, and therefore that naturalization was
worthless. The law of the United States, as declared by Chief-Justice
Ellsworth in 1799, was in effect the same;[236] he held that no citizen could
dissolve the compact of protection and defence between himself and society
without the consent or default of the community. On both sides the law was
emphatic to the point that naturalization could not bind the government
which did not consent to it; and the United States could hardly require
England to respect naturalization papers which the Supreme Court of the
United States declared itself unable to respect in a similar case.

Nevertheless, while courts and judges declare what the law is or ought to
be, they bind only themselves, and their decisions have no necessary effect
on the co-ordinate branches of government. While the judges laid down one
doctrine in Westminster Hall, Parliament laid down another in St. Stephen’s
chapel; and no one could say whether the law or the statute was final. The
British statute-book contained Acts of Parliament as old as the reign of
Queen Anne[237] to encourage the admission of foreign seamen into the
British navy, offering them naturalization as an inducement. American
legislation went not quite so far, but by making naturalization easy it
produced worse results. A little perjury, in no wise unsafe, was alone
required in order to transform British seamen into American citizens; and
perjury was the commonest commodity in a seaport. The British
government was forced to decide whether papers so easily obtained and
transferred should be allowed to bar its claims on the services of its
subjects, and whether it could afford to become a party to the destruction of
its own marine, even though the United States should join with France and
carry on endless war.
That there were some points which not even the loss of American trade
would bring England to concede was well known to Jefferson; and on these
points he did not mean to insist. Setting the matter of impressment aside,
the relations between England and America had never been better than
when the new President took office March 4, 1801. The British government
seemed earnest in conciliation, and lost no opportunity of showing its good-
will. Under the Sixth Article of Jay’s treaty, a commission had been
appointed to settle long-standing debts due to British subjects, but held in
abeyance by State legislation in contravention of the treaty of 1783. After
long delays the commission met at Philadelphia and set to work, but had
made little progress when the two American commissioners, with the
President’s approval, in the teeth of the treaty which created the Board,
refused to accept its decisions, and seceded. This violent measure was not
taken by the Administration without uneasiness, for England might
reasonably have resented it; but after some further delay the British
government consented to negotiate again, and at last accepted a round sum
of three million dollars in full discharge of the British claim. This was a
case in which England was the aggrieved party; she behaved equally well in
other cases where the United States were aggrieved. Rufus King
complained that her admiralty courts in the West Indies and at Halifax were

a scandal; in deference to his remonstrances these courts were thoroughly
reformed by Act of Parliament. The vice-admiralty court at Nassau
condemned the American brigantine “Leopard,” engaged in carrying
Malaga wine from the United States to the Spanish West Indies. The
American minister complained of the decision, and within three days the
King’s Advocate reported in his favor.[238] The report was itself founded on
Sir William Scott’s favorable decision in the case of the “Polly.” Soon
afterward the American minister complained that Captain Pellew, of the
“Cleopatra,” and Admiral Parker had not effectually restrained their
subordinates on the American station; both officers were promptly recalled.
Although the Ministry had not yet consented to make any arrangement on
the practice of impressment, Rufus King felt much hope that they might
consent even to this reform; meanwhile Lord Grenville checked the
practice, and professed a strong wish to find some expedient that should
take its place.
There was no reason to doubt the sincerity of the British Foreign Office
in wishing friendship. Its policy was well expressed in a despatch written
from Philadelphia by Robert Liston, the British minister, shortly before he
left the United States to return home:[239]—
“The advantages to be ultimately reaped from a perseverance in the line of
conduct which Great Britain has adopted for the last four years appear to my mind to
be infallible and of infinite magnitude; the profitable consequences of a state of
hostility, small and uncertain. I have been pleasing my imagination with looking
forward to the distant spectacle of all the northern continent of America covered with
friendly though not subject States, consuming our manufactures, speaking our
language, proud of their parent State, attached to her prosperity. War must bring with
it extensive damage to our navigation, the probable loss of Canada, and the world
behind it, the propagation of enmity and prejudices which it may be impossible to
eradicate. The system of the American government does not strike me, with the near
view I have of it, as being in so perilous a situation as is imagined in Europe. I am
willing to avoid political prophecies, but I confess I think it will get on well enough if
the country remains in peace; and if they go to war, the fabric may acquire strength.
God forbid that it should be to our detriment, and to the triumph of our enemies!”

CHAPTER XV.
February 4, 1801, one month before the inauguration of President
Jefferson, Pitt suddenly retired from office, and was succeeded by a weak
ministry, in which Mr. Addington, afterward Lord Sidmouth, took the post
vacated by Pitt. No event could have been happier for the prospects of
President Jefferson, who might fairly count upon Addington’s weakness to
prevent his interference in American affairs.
Knowing himself to be universally regarded as the friend and admirer of
France, Jefferson was the more anxious not to be classed by the British
government among the enemies of England. Even before he was
inaugurated, he took occasion to request Edward Thornton, the British
chargé,—
“With great earnestness, to assure his Majesty’s government that it should
experience during his administration as cordial and sincere acts of friendship as had
ever been received under that of his predecessors. I am aware,” said the President
elect, “that I have been represented as hostile to Great Britain; but this has been done
only for electioneering purposes, and I hope henceforward such language will be used
no longer. I can appeal to all my past conduct that in everything in which I have been
engaged relatively to England, I have always been guided by a liberal policy. I wish to
be at the head of affairs no longer than while I am influenced by such sentiments of
equal liberality toward all nations. There is nothing to which I have a greater
repugnance than to establish distinctions in favor of one nation against another.”

The day after his inauguration he returned to the subject:—
“There is nothing I have more, or I may say so much, at heart as to adjust happily
all differences between us, and to cultivate the most cordial harmony and good
understanding. The English government is too just, I am persuaded, to regard
newspaper trash, and the assertions contained in them that I am a creature of France
and an enemy of Great Britain. For republican France I may have felt some interest;
but that is long over; and there is assuredly nothing in the present government of that
country which could naturally incline me to show the smallest undue partiality to it at
the expense of Great Britain, or indeed of any other country.”[240]

Thornton felt no great confidence in the new President’s protests, and
thought it possible that Jefferson had “on this, as he seems to have done on
many late public occasions, taxed his imagination to supply the deficiency
of his feelings.” All Englishmen were attached to the Federalist and New
England interest; they could not understand that Virginia should be a safer
friend than Massachusetts. Yet in truth Jefferson never was more serious

than when he made these professions. The Southern republicans had
nothing to gain from a quarrel with England; they neither wished for
Canada, nor aspired to create shipping or manufactures: their chief
antagonist was not England, but Spain. The only Power which could
seriously injure them was Great Britain; and the only injury they could
inflict in return was by conquering Canada for the benefit of Northern
influence, or by building up manufactures which they disliked, or by cutting
off their own markets for tobacco and cotton. Nothing warranted a belief
that men like Jefferson, Madison, and Gallatin would ever seek a quarrel
with England.
The British Ministry soon laid aside any doubts they might have felt on
the subject. Lord Grenville, who retired with Pitt, was succeeded as Foreign
Secretary by Lord Hawkesbury, afterward better known as Lord Liverpool.
The new Ministry negotiated for peace with Bonaparte. Oct. 1, 1801, the
preliminaries were signed, and the world found itself again in a sort of
repose, broken only by the bloody doings at St. Domingo and Guadeloupe.
England returned, like France and Spain, to the rigor of the colonial system.
The customs entries of New York, Boston, and Philadelphia rapidly
diminished in number; American shipping declined; but Madison was
relieved from the burden of belligerent disputes, which had been the chief
anxiety of his predecessors in the State Department.
Yet peace did not put an end to all difficulties. Rufus King continued to
negotiate in London in regard to the outstanding British debts, twice
recognized by treaty, yet still unpaid by the United States; in regard to the
boundary of Maine and that of the extreme northwest territory at the source
of the Mississippi; and finally, in regard to impressments; while Edward
Thornton at Washington complained that, in spite of peace and the decline
of American shipping, encouragement was still offered to the desertion of
British seamen in every port of the United States,—in fact that this means
was systematically used to prevent British shipping from entering American
ports in competition with the shipping of America. When Madison alleged
that the national government had no share in such unfriendly conduct,
Thornton thrust under his eyes the law of Virginia,—a law enacted by
President Jefferson’s political friends in his political interests,—which
forbade, under penalty of death, any magistrate of Virginia to be
instrumental in surrendering deserters or criminals, even in cases where

they were bound by treaty to do so. Madison could not deny that this
legislation was contrary to a treaty right which the United States
government was bound to enforce. He admitted that American shipmasters
and consuls in British ports habitually asked the benefit of the British law,
and received it; but he could hold out only a remote hope that mutual
legislation might solve the difficulty by applying the merchant-seamen laws
of the two countries reciprocally. In conversation with Thornton he
lamented, with every appearance of sincerity and candor, the deficiency of
the existing laws, and did not dispute that Great Britain could hardly be
blamed for refusing the surrender of seamen on her side; but when Thornton
asked him to order the return of a man who under aggravated circumstances
had deserted from the British ship-of-war “Andromache” in the port of
Norfolk, and had been immediately engaged on the United States revenue
cutter there, Madison replied in a note coldly reiterating the fact, with
which both parties were already acquainted, that neither the law of nations
nor the provisions of any treaty enjoined the mutual restitution of seamen.
This recognized formula, under which governments commonly express a
refusal to act, was understood by Thornton as equivalent to an avowal that
the new Administration, controlled by Virginians, would not venture, even
in the future emergency of a demand for extradition under treaty, to risk the
displeasure of Virginia.[241] Desertion, therefore, received no
discouragement from the United States government; on the contrary,
deserters, known to be such, were received at once into the national service,
and their surrender refused. Under such circumstances the British
government was not likely to be more accommodating than the American.
As the summer of 1802 approached, President Jefferson drew into
closer and more confidential relations with Thornton. During the Federalist
rule the two countries were never on more affectionate terms. At London
Rufus King and Christopher Gore received courteous attention from Lord
Hawkesbury. At Washington, Thornton’s intimacy at the White House
roused the jealousy and alarm of Pichon. As Bonaparte’s projects against
Louisiana disclosed themselves, and as Leclerc’s first successes at St.
Domingo opened the French path to New Orleans, Jefferson began to pay
sudden and almost eager court to Thornton, who was a little embarrassed by
the freedom with which the President denounced the First Consul. The
preliminary articles of peace between France and England had been signed
Oct. 1, 1801; but the treaty of Amiens, which made these articles definitive,

was signed only March 25, 1802. Addington was naturally anxious that the
peace should be maintained; indeed, no one could doubt that the existence
of his Ministry depended on maintaining it. Thornton had no instructions
which warranted him in intriguing against the First Consul, or in making
preparations for a new war; and yet hardly was the treaty of Amiens made
public, when President Jefferson began to talk as though England were still
at war, and it were only a question of time when the United States must
become her ally. The Louisiana question excited him. In April he wrote his
letters to Dupont and Livingston. At about the same time he took Thornton
into his confidence.
“I have had many occasions since it was first started,” wrote Thornton,[242] “of
conversing freely with Mr. Jefferson on this topic, which is indeed peculiarly
interesting to him, and his reflections on which he utters with perhaps too little
caution to persons who are not disposed to think very favorably of any change of
sentiments with respect to France. He not only regards the cession of Louisiana and
New Orleans as a certain cause of future war between the two countries, but makes no
scruple to say that if the force of the United States should be unable to expel the
French from those settlements, they must have recourse to the assistance of other
Powers, meaning unquestionably Great Britain. With regard to France and the person
who is at the head of its government, whether in consequence of the projected cession
of Louisiana or of the little account which seems to be made of the United States as
well at Paris as by French officers in other parts of the world, Mr. Jefferson speaks in
very unqualified terms of the usurpation of Bonaparte, of the arbitrary nature and
spirit of his government, of his love of flattery and vain pomp,—features, according to
Mr. Jefferson, which indicate the frivolous character of his mind rather than a
condescension to the taste of the French people. The presses in America devoted to
the President’s Administration make use of the same language; and without
pretending to say that this party is cured of its bitterness against Great Britain, I can
safely venture to assure your Lordship that its predilection for France scarcely exists
even in name.”

After the stoppage of the entrepôt at New Orleans, when public opinion
seemed intent on driving Jefferson into the war with France which he had
predicted, Thornton found himself and his government in favor at
Washington. The Republicans were even better disposed than the
Federalists. Jefferson was willing to abolish between England and America
the discriminating duties on shipping which the New England Federalists
had imposed, and which they still wished to maintain for use in the disputed
West Indian trade. He told Thornton that he could no doubt carry the repeal
of these countervailing duties through Congress over the heads of the
opposition,[243] “but he wished it to be adopted in consequence of their own
conviction, rather than by a contrary conduct to afford them the least

ground for asserting that the Southern States were carrying into execution
their scheme of ruin against the navigation and commerce of their Eastern
brethren.” Jefferson was rapidly becoming the friend and confidant of
England. Thornton, naturally delighted with his own success, and with the
mortifications and anxieties of Yrujo and Pichon, went so far as to urge his
government to help the views of the United States against Louisiana:[244]—
“I should hope, my Lord, that by having some share in the delivery of this Island
of New Orleans to the United States, which it will be impossible to keep from them
whenever they choose to employ force, his Majesty’s government may hereafter
attach still more this country to our interests, and derive all the advantage possible
from the intercourse with that important part of the world. A very great change has
gradually taken place in the opinions of all ranks in this government in favor of Great
Britain, which has struck observers more likely to be impartial than myself. A sense of
a common interest has a great share in the change; but the conduct of France in all her
relations has not failed to produce its full effect; and I find men, formerly the most
vehement in their politics, asserting in the most unqualified terms the necessity of a
union among all the members of the civilized world to check her encroachments and
to assure the general tranquillity.”

A few days later the President nominated Monroe to act with Livingston
and Pinckney in an attempt to purchase New Orleans. This step, which was
openly avowed to be the alternative and perhaps the antecedent of war with
France, brought Thornton into still more confidential relations with the
Government. Finding that the Secretary of State was as cautious as the
President was talkative, Thornton carried on an active intercourse with the
latter. He first offered to detain the British government packet for Monroe’s
use; but it was found that a month or two of delay would be necessary.
Then, without instructions from his Government, Thornton took a bolder
step:[245]—
“This state of things has naturally excited a sentiment of common interest, and has
encouraged me to enter with more freedom into the subject, as well with the President
as with Mr. Madison, than I should otherwise have thought right, without being
acquainted with the views of his Majesty’s government. Under this impression, I
ventured, immediately after the nomination and before the first arrival of Mr. Monroe,
to inquire of the President whether it was his intention to let him pass over to
England, and hold any conversation with his Majesty’s ministers upon the general
question of the free navigation of the Mississippi. The inquiry was somewhat
premature, and I made it with some apology. Mr. Jefferson replied, however,
unaffectedly, that at so early a stage of the business he had scarcely thought himself
what it might be proper to do; ... that, on the whole, he thought it very probable that
Mr. Monroe might cross the Channel.... Some time after Mr. Monroe’s arrival,
actuated by the same view, I mentioned to Mr. Jefferson that it would give me
pleasure to furnish the former with an introduction to his Majesty’s ambassador at
Paris, as it would afford me the occasion of making Lord Whitworth acquainted with

the nature of the object in dispute between this country, France, and Spain, and would
give to Mr. Monroe, if he were disposed of himself, or were instructed by his
Government to seek it, a more ready pretext for opening himself to his Lordship, and
of keeping him apprised of the progress and turn of the negotiation. Mr. Jefferson
seemed pleased with this offer, and said he was sure Mr. Monroe would accept it with
great thankfulness.”

Madison talked less freely than his chief, and contented himself with
explaining to the British representative that the views of the Government in
sending Monroe to France were limited to the hope of inducing the First
Consul by money, or other means of persuasion, to cede in Louisiana a
place of deposit over which the United States might have absolute
jurisdiction. He did not tell Thornton of the decision made by the Cabinet,
and the instructions given to Monroe, April 18, 1803, to offer terms of
alliance with England in case the First Consul should make war;[246] but the
tone of cordiality in Government and people, both in public and private, in
New York, Boston, and Philadelphia, as in the South and West, was
gratifying to British pride, and would have been still more so had not the
community somewhat too openly avowed the intention of leaving England,
if possible, to fight alone. At the first news of the approaching rupture
between France and England, this wish began to appear so plainly that
Thornton was staggered by it. The Americans took no trouble to conceal the
hope that England would have to fight their battles for them.[247]
“The manifest advantage that such a state of things is calculated to give to their
negotiation with France, and which is already sensibly felt in the altered tone and
conduct of the French government, ... will sufficiently account for their wishes and for
this belief. But possessing the same opinion of the encroachments of France, and of
the barrier which Great Britain alone places between her and the United States, and
actuated, as I really believe they are, by sincere wishes for our success, I am afraid
they begin to see more clearly that in a state of war we are effectually fighting their
battles, without the necessity of their active interference; and they recur once more to
the flattering prospect of peace and a lucrative neutrality.”

In this state of doubt President Jefferson continued his intimate relations
with Thornton.
“He expressed himself very freely,” wrote Thornton, May 30, 1803, “on the
contemptible and frivolous conduct, as he termed it, of a Government that could alter
its language so entirely on the prospect of an approaching rupture with another nation,
—which he acknowledged instantly, on my mention of it, had been the case toward
Mr. Livingston.”

Jefferson attributed Bonaparte’s returning courtesy to fear rather than to
foresight. Thornton himself began to feel the danger that Bonaparte, after

all, might outwit him. He revised his opinion about Louisiana. England, he
saw, had the strongest motives for wishing France to keep that province.
“The most desirable state of things,” he wrote, “seems to be that France should
become mistress of Louisiana, because her influence in the United States would be by
that event lost forever, and she could only be dispossessed by a concert between Great
Britain and America in a common cause, which would produce an indissoluble bond
of union and amity between the two countries.”

This cordiality between England and the United States lasted without
interruption until midsummer. Pichon complained, as has been shown, of
the attentions paid to Thornton by the President.[248] “I remarked at table
that he redoubled his courtesies and attentions toward the British chargé.”
The dinner was in the month of January; in the following June Pichon wrote
that the President had begun to accept the idea of seeing the British at New
Orleans:[249]—
“Mr. Jefferson told me a few days ago that he was engaged in letting that Power
know that her presence there would be seen with regret; but I perceive that, little by
little, people are familiarizing themselves with this eventuality, as their fears increase
in regard to us. They are so convinced that England sees more and more her true
interests in relation to the United States, and is resolved to conciliate them, that they
have no doubt of her lending herself to some arrangement. What they fear most is
that, as the price of this accommodation, she may require the United States to take an
active part in the indispensable war; and this is what they ardently wish to avoid.”

Until July 3, 1803, the relations between President Jefferson’s
government and that of Great Britain were so cordial as to raise a doubt
whether the United States could avoid becoming an ally of England, and
taking part in the war with France. Suddenly came the new convulsion of
Europe.
“It was on the third of this month,” wrote Pichon July 7, 1803, “the eve of the
anniversary of Independence, that we received two pieces of news of the deepest
interest for this country,—that of the rupture between France and England, proclaimed
by the latter on May 16, and that of the cession of Louisiana and New Orleans, made
by us on April 30.”[250]

The next day, when Pichon attended the usual reception at the White
House, he found himself received in a manner very different from that to
which he had been of late accustomed.
The two events, thus coming together, were sure to affect seriously the
attitude of the United States toward England. Not only did Jefferson no
longer need British aid, but he found himself in a position where he could

afford with comparative freedom to insist upon his own terms of neutrality.
He had always felt that Great Britain did not sufficiently respect this
neutrality; he never failed to speak of Jay’s treaty in terms of vehement
dislike; and he freely avowed his intention of allowing all commercial
treaties to expire. The relation between these treaties and the rights of
neutrality was simple. Jefferson wanted no treaties which would prevent
him from using commercial weapons against nations that violated American
neutrality; and therefore he reserved to Congress the right to direct
commerce in whatever paths the Government might prefer.
“On the subject of treaties,” he wrote,[251] “our system is to have none with any
nation, as far as can be avoided. The treaty with England has therefore not been
renewed, and all overtures for treaty with other nations have been declined. We
believe that with nations, as with individuals, dealings may be carried on as
advantageously, perhaps more so, while their continuance depends on a voluntary
good treatment, as if fixed by a contract, which, when it becomes injurious to either, is
made by forced constructions to mean what suits them, and becomes a cause of war
instead of a bond of peace.”

Such a system was best suited to the strongest nations, and to those
which could control their dealings to most advantage. The Administration
believed that the United States stood in this position.
The President and Secretary Madison were inclined to assert authority
in their relations with foreign Powers. Even so early as the preceding
February, before Monroe sailed for Europe, Madison told Pichon of this
intention.[252] “He added,” wrote Pichon to Talleyrand, “that if war should
be renewed, as seemed probable, the United States would be disposed to
take a higher tone than heretofore, that Europe had put their spirit of
moderation to proofs that would be no longer endured.” Immediately after
hearing of the Louisiana cession, Pichon wrote that the same spirit
continued to animate the Government.[253] “It is certain that they propose to
cause the neutrality of the United States to be more exactly respected by the
belligerent Powers than in the last war. The Government has often shown its
intentions in this respect, from the time when everything pointed to an
infallible rupture between us and England.” President Jefferson, while
avowing a pacific policy, explained that his hopes of peace were founded on
his power to affect the interests of the belligerents. At the same moment
when Pichon wrote thus to Talleyrand, the President wrote to the Earl of
Buchan:[254]—

“My hope of preserving peace for our country is not founded in the Quaker
principle of non-resistance under every wrong, but in the belief that a just and friendly
conduct on our part will procure justice and friendship from others. In the existing
contest, each of the combatants will find an interest in our friendship.”

He was confident that he could control France and England:[255] “I do
not believe we shall have as much to swallow from them as our
predecessors had.”
The Louisiana question being settled, the field was clear for the United
States to take high ground in behalf of neutral rights; and inevitably the first
step must be taken against England. No one denied that thus far the
administration of Addington had behaved well toward the United States.
Rufus King brought to America at the same time with news of the Louisiana
treaty, or had sent shortly before, two conventions by which long-standing
differences were settled. One of these conventions disposed of the old
subject of British debts,—the British government accepting a round sum of
six hundred thousand pounds on behalf of the creditors.[256] The other
created two commissions for running the boundary line between Maine and
Nova Scotia, and between the Lake of the Woods and the Mississippi River.
[257]
King went so far as to express the opinion that had he not been on the
eve of his departure, he might have succeeded in making some arrangement
about impressments; and he assured Gallatin that the actual Administration
in England was the most favorable that had existed or could exist for the
interests of the United States; its only misfortune was its weakness.[258] The
conduct of the British government in regard to Louisiana proved the truth of
King’s assertion. Not only did it offer no opposition to the sale, but it lent
every possible assistance to the transfer; and under its eye, with its consent,
Alexander Baring made the financial arrangements which were to furnish
Bonaparte with ten million American dollars to pay the preliminary
expenses of an invasion of England.
Nevertheless, if the United States government intended to take a high
tone in regard to neutral rights, it must do so from the beginning of the war.
Aware that success in regard to England, as in regard to Spain, depended on
asserting at the outset, and maintaining with obstinacy, the principles
intended to be established, the President and Secretary Madison lost no time
in causing their attitude to be clearly understood. An opportunity of
asserting this authoritative tone was given by the appearance of a new

British minister at Washington; and thus it happened that at the time when
the Secretary of State was preparing for his collision with the Marquis of
Casa Yrujo and the Spanish empire, he took on his hands the more serious
task of curbing the pretensions of Anthony Merry and the King of England.

CHAPTER XVI.
One of Addington’s friendly acts was the appointment of Anthony
Merry as British minister to the United States. For this selection Rufus King
was directly responsible. Two names were mentioned to him by the Foreign
Office as those of the persons entitled to claim the place; one was that of
Merry, the other was that of Francis James Jackson.
“As I have had the opportunity of knowing both these gentlemen during my
residence here,” wrote Minister King to Secretary Madison,[259] “it was not without
some regret that I heard of the intention to appoint Mr. Jackson in lieu of Mr. Merry.
From this information I have been led to make further inquiry concerning their
reputations, and the result has proved rather to increase than to lessen my solicitude.
Mr. Jackson is said to be positive, vain, and intolerant. He is moreover filled with
English prejudices in respect to all other countries, and as far as his opinions
concerning the United States are known, seems more likely to disserve than to benefit
a liberal intercourse between them and his own country. On the other hand, Mr. Merry
appears to be a plain, unassuming, and amiable man, who having lived for many years
in Spain is in almost every point of character the reverse of Mr. Jackson, who were he
to go to America would go for the sake of present employment and with the hope of
leaving it as soon as he could receive a similar appointment in Europe; while Mr.
Merry wishes for the mission with the view of obtaining what he believes will prove
to be an agreeable and permanent residence.”

In deference to Rufus King’s wishes or for some other reason Merry
received the appointment. Doubtless he came to America in the hope of
finding a “permanent residence,” as King remarked; but it could hardly be
agreeable, as he hoped. He was a thorough Englishman, with a wife more
English than himself. He was not prepared for the isolation of the so-called
Federal City, and he did not expect to arrive at a moment when the United
States government, pleased with having curbed Bonaparte, was preparing to
chasten Spain and to discipline England.
Landing at Norfolk from a ship of war Nov. 4, 1803, Merry was obliged
to hire a vessel to carry himself and his belongings to Washington, where,
after a tempestuous voyage, he at last arrived, November 26. Possibly Mr.
and Mrs. Merry, like other travellers, would have grumbled even though
Washington had supplied them with Aladdin’s palace and Aladdin’s lamp to
furnish it; but the truth was not to be denied that the Federal City offered
few conveniences, and was better suited for members of Congress, who
lived without wives in boarding-houses, than for foreign ministers, with

complaining wives, who were required to set up large establishments and to
entertain on a European scale.
“I cannot describe to you,” wrote Merry privately,[260] “the difficulty and
expense which I have to encounter in fixing myself in a habitation. By dint of money I
have just secured two small houses on the common which is meant to become in time
the city of Washington. They are mere shells of houses, with bare walls and without
fixtures of any kind, even without a pump or well, all which I must provide at my own
cost. Provisions of any kind, especially vegetables, are frequently hardly to be
obtained at any price. So miserable is our situation.”

Had these been the worst trials that awaited the new British minister, he
might have been glad to meet them; for when once surmounted, they
favored him by preventing social rivalry. Unfortunately he met more serious
annoyances. Until his arrival, Yrujo was the only minister of full rank in the
United States; and Yrujo’s intimate relations at the White House had given
him family privileges. For this reason the Spanish minister made no
struggle to maintain etiquette, but living mostly in Philadelphia disregarded
the want of what he considered good manners at Washington, according to
which he was placed on the same social footing with his own secretary of
legation. Yet Yrujo, American in many respects, belonged to the school of
Spanish diplomacy which had for centuries studied points of honor. He
might well have made with his own mouth the celebrated retort which one
of his predecessors made to Philip II., who reproached him with sacrificing
an interest to a ceremony: “How a ceremony? Your Majesty’s self is but a
ceremony!” Although Yrujo submitted to Jefferson, he quarrelled with
Pichon on this point, for Pichon was only a secretary in charge of the
French legation. In November, 1803, Yrujo’s friendship for Jefferson was
cooling, and he waited the arrival of Merry in the hope of finding a
champion of diplomatic rights. Jefferson, on the other hand, waited Merry’s
arrival in order to establish, once for all, a new social code; and that there
might be no misunderstanding, he drafted with his own hand the rules
which were to control Executive society,—rules intended to correct a
tendency toward monarchical habits introduced by President Washington.
In 1801 on coming into power Jefferson announced that he would admit
not the smallest distinction that might separate him from the mass of his
fellow-citizens. He dispensed with the habit of setting apart certain days
and hours for receiving visits of business or curiosity, announcing that he
would on any day and at any hour receive in a friendly and hospitable

manner those who should call upon him.[261] He evidently wished to place
the White House on the footing of easy and generous hospitality which was
the pride of every Virginia gentleman. No man should be turned away from
its doors; its table, liberal and excellent, should be filled with equal guests,
whose self-respect should be hurt by no artificial rules of precedence. Such
hospitality cost both time and money; but Washington was a petty village,
society was very small, and Jefferson was a poor economist. He entertained
freely and handsomely.
“Yesterday I dined with the President,” wrote Senator Plumer of New Hampshire,
Dec. 25, 1802.[262] “His rule is to have about ten members of Congress at a time. We
sat down to the table at four, rose at six, and walked immediately into another room
and drank coffee. We had a very good dinner, with a profusion of fruits and
sweetmeats. The wine was the best I ever drank, particularly the champagne, which
was indeed delicious. I wish his French politics were as good as his French wines.”

So long as this manner of life concerned only the few Americans who
were then residents or visitors at Washington, Jefferson found no great
difficulty in mixing his company and disregarding precedence. Guests
accommodated themselves to the ways of the house, took care of their own
comfort, went to table without special request, and sat wherever they found
a vacant chair; but foreigners could hardly be expected at first to understand
what Jefferson called the rule of pell-mell. Thornton and Pichon, being only
secretaries of legation, rather gained than lost by it; but Yrujo resented it in
secret; and all eyes were turned to see how the new British minister would
conduct himself in the scramble.
Either before or soon after Merry’s arrival the President wrote the rules,
which he called “Canons of Etiquette to be observed by the Executive;”[263]
and these canons ultimately received the approval of the Cabinet. Foreign
ministers, he said, were to pay the first visit to the “ministers of the nation;”
their wives were to receive the first visit from the wives of “national
ministers.” No grades among diplomatic members were to give precedence;
“all are perfectly equal, whether foreign or domestic, titled or untitled, in or
out of office.” Finally, “to maintain the principle of equality, or of pêle-
mêle, and prevent the growth of precedence out of courtesy, the members of
the Executive will practise at their own houses, and recommend an
adherence to, the ancient usage of the country,—of gentlemen in mass
giving precedence to the ladies in mass in passing from one apartment

where they are assembled into another.” Such, according to Rufus King,
whose aid was invoked on this occasion, was the usage in London.
Merry duly arrived in Washington, and was told by Madison that the
President would receive his letter of credence Nov. 29, according to the
usual formality. At the appointed hour the British minister, in diplomatic
uniform, as was required in the absence of any hint to the contrary, called
upon Madison, and was taken to the White House, where he was received
by the President. Jefferson’s manner of receiving guests was well known,
although this was the first occasion on which he had given audience to a
new foreign minister. Among several accounts of his appearance at such
times, that of Senator Plumer was one of the best.
“In a few moments after our arrival,” said the senator, writing two years before
Merry’s mishap,[264] “a tall, high-boned man came into the room. He was dressed, or
rather undressed, in an old brown coat, red waistcoat, old corduroy small-clothes
much soiled, woollen hose, and slippers without heels. I thought him a servant, when
General Varnum surprised me by announcing that it was the President.”

The “Evening Post,” about a year later, described him as habitually
appearing in public “dressed in long boots with tops turned down about the
ankles like a Virginia buck; overalls of corduroy faded, by frequent
immersions in soap suds, from yellow to a dull white; a red single-breasted
waistcoat; a light brown coat with brass buttons, both coat and waistcoat
quite threadbare; linen very considerably soiled; hair uncombed and beard
unshaven.” In truth the Virginia republicans cared little for dress. “You
know that the Virginians have some pride in appearing in simple
habiliments,” wrote Joseph Story in regard to Jefferson, “and are willing to
rest their claim to attention upon their force of mind and suavity of
manners.” Indeed, “Virginia carelessness” was almost a proverb.[265]
On the occasion of Merry’s reception, the President’s chief offence in
etiquette consisted in the slippers without heels. No law of the United States
or treaty stipulation forbade Jefferson to receive Merry in heelless slippers,
or for that matter in bare feet, if he thought proper to do so. Yet Virginia
gentlemen did not intentionally mortify their guests; and perhaps Madison
would have done better to relieve the President of such a suspicion by
notifying Merry beforehand that he would not be expected to wear full
dress. In that case the British minister might have complimented Jefferson
by himself appearing in slippers without heels.

A card of invitation was next sent, asking Mr. and Mrs. Merry to dine at
the White House, December 2. Such an invitation was in diplomatic usage
equivalent to a command, and Merry at once accepted it. The new minister
was then told that he must call on the heads of departments. He
remonstrated, saying that Liston, his predecessor, had been required to
make the first visit only to the Secretary of State; but he was told, in effect,
that what had been done under the last Administration was no rule for the
present one. Merry acquiesced, and made his calls. These pin-thrusts
irritated him; but he was more seriously inconvenienced by the sudden
withdrawal of diplomatic privileges by the Senate, although Vice-President
Burr took occasion to explain that the Senate’s action was quite
unconnected with the President’s “canons of etiquette,” and was in truth due
to some indiscretion of Yrujo in the House of Representatives.
Meanwhile the President took an unusual step. When two countries
were at war, neutral governments commonly refrained from inviting the
representative of one belligerent to meet the representative of the other,
unless on formal occasions where the entire diplomatic body was invited, or
in crowds where contact was not necessary. Still more rarely were such
incongruous guests invited to an entertainment supposed to be given in
honor of either individual. No one knew this rule better than Jefferson, who
had been himself four years in diplomatic service at Paris, besides being
three years Secretary of State to President Washington at Philadelphia. He
knew that the last person whom Merry would care to meet was Pichon, the
French chargé; yet he not only invited Pichon, but pressed him to attend.
The Frenchman, aware that Merry was to be mortified by the etiquette of
the dinner, and watching with delight the process by which Jefferson, day
after day, took a higher tone toward England, wrote an account of the affair
to Talleyrand.[266] He said:—
“I was invited to this dinner. I had learned from the President what was the matter
(ce qui en était), when I went to tell him that I was going for some days to Baltimore,
where I was called by the affairs of the frigate ‘La Poursuivante.’ The President was
so obliging as to urge my return in order to be present with Mme. Pichon at the dinner
(Le Président eut l’honnêteté de me presser de revenir pour être au diner). I came
back here, although business required a longer stay at Baltimore. Apart from the
reason of respect due to the President, I had that of witnessing what might happen
(j’avais celle de connaître ce qui se passerait).”

Pichon accordingly hurried back from Baltimore, especially at the
President’s request, in order to have the pleasure of seeing Jefferson