States, it is supposable that the fear of an undue or preponderating influence in certain parts of this Union must have had great weight in the minds of those who might apprehend that such an influence might ultimately injure the interests of the States to which they belonged; and although they might consent to become parties to the Union, as it was then formed, it is highly probable that they would never have consented to such a connection if a new world was to be thrown into the scale to weigh down the influence which they might otherwise possess in the national councils.

From this view of the subject I have been persuaded that the framers of the Constitution never intended that a power should reside in the President and Senate to form a treaty by which a foreign nation and people shall be incorporated into the Union, and that this treaty, so far as it stipulates for such an incorporation, is void.

A new territory and new subjects 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. (Annals of Congress, 1803, pp. 461–462. )

In response to this assault, the supporters of President Jefferson's Administration cheerfully and fully admitted that the President and Senate could not incorporate foreign territory into the United States, nor confer citizenship and the right to participate in the Government of the United States upon the inhabitants of Louisiana; nor could the President and Senate confer the privileges and immunities, the political rights and powers created by the Constitution, upon the territory or its inhabitants. But they insisted that the President and Senate had not attempted to do these things, and the ratification of the treaty did not accomplish them.

Mr. Randolph, of Virginia, replying to Mr. Griswold, of New York, said:

Granting that the United States are not destitute of capacity to acquire territory, he (Griswold) denies that this acquisition has been made in a regular way. Congress, says he, alone is competent to perform such an act. In this transaction he scents at a distance Executive encroachment, and we are called upon to assert our rights and to repel it. If any usurpation of the privileges of Congress or of this House be made to appear I pledge myself to join him in resisting it. But let us inquire into the fact. No gentleman will deny the right of the President to initiate business here by message, recommending particular subjects to our attention. If the Government of the United States possess the constitutional power to acquire territory from foreign states the Executive, as the organ by which we communicate with such states, must be the prime agent in negotiating such an acquisition. Conceding, then, that the power of confirming this act and annexing to the United States the territory thus acquired ultimately rests with Congress, where has been the invasion of the privileges of that body? Does not the President of the United States submit this subject to Congress for their sanction? Does he not recognize the principle, which I trust we will never give up, that no treaty is binding until we pass the laws for executing it; that the powers conferred by the Constitution on Congress can not be modified or abridged by any treaty whatever; that the subjects of which they have cognizance can not be taken in any way out of their jurisdiction? In this procedure nothing is to be seen but a respect on the part of the Executive for our rights--a recognition of a discretion on our part to accord or refuse our sanction. Where, then, is the violation of our rights? As to the initiative in a matter like this, it necessarily devolved on the Executive. (Annals of Congress, 1803, pp. 436-437.)

Mr. Nicholson, of Maryland, replying to Mr. Griswold, of Connecticut, said:

With that gentleman I am unwilling to set the Constitution at defiance. I trust we shall maintain it in all its vigor. The third article of the treaty, he says, either admits the ceded territory into the Union immediately or pledges us to do it hereafter. It can not be contended that the territory is ipso facto admitted, but the objection is that the President and Senate have no right to pledge the Government for anything not immediately within their own powers. This objection is not solid. (Annals of Congress, 1803, p. 469.)

Mr. Mitchill, of New York, replying to his colleague, Mr. G. Griswold, said:

But the gentleman from Connecticut, Mr. Chairman (Mr. Griswold), contends that even if we had a right to purchase soil, we have no business with the inhabitants. His words, however, are very select; for he said, and often repeated it, that the treaty-making power did not extend to the admission of foreign nations into this confederacy. To this it may be replied that the President and Senate have not attempted to admit foreign nations into our confederacy. They have bought a tract of land, out of their regard to the good of our people and their welfare. And this land Congress are called upon to pay for. Unfortunately for the bargain, this region contains civilized and Christian inhabitants; and their existence there, it is alleged, nullifies the treaty.

In the case of Louisiana no injury is done, either to the nation or to any State belonging to that great body politic. There was nothing compulsory upon the inhabitants of Louisiana to make them stay and submit to our Government. But if they chose to remain it had been most kindly and wisely provided that until they should be admitted to the rights, advantages, and immunities of citizens of the United States they shall be maintained and protected in the enjoyment of their liberty, property, and the religion which they profess. What would the gentleman propose that we shall do with them? Send them away to the Spanish provinces, or turn them loose in the wilderness? No, sir; it is our purpose to pursue a much more dignified system of measures. It is intended, first, to extend to this newly acquired people the blessings of law and social order. To protect them from rapacity, violence, and anarchy. To make them secure in their lives, limbs, and property, reputation, and civil privileges. To make them safe in the rights of conscience. In this way they are to be trained up in a knowledge of our own laws and institutions. They are thus to serve an apprenticeship to liberty; they are to be taught the lessons of freedom; and by degrees they are to be raised to the enjoyment and practice of independence. All this is to be done as soon as possible; that is, as soon as the nature of the case will permit, and according to the principles of the Federal Constitution. Strange that proceedings declared on the face of them to be constitutional should be inveighed against as violations of the Constitution! Secondly, after they shall have been a sufficient length of time in this probationary condition they shall, as soon as the principles of the Constitution permit, and conformably thereto, be declared citizens of the United States. Congress will judge of the time, manner, and expediency of this. The act we are now about to perform will not confer on them this elevated character. They will thereby gain no admission into this House, nor into the other House of Congress. There will be no alien influence thereby introduced into our councils. By degrees, however, they will pass on from the childhood of republicanism, through the improving period of youth, and arrive at the mature experience of manhood. And then they may be admitted to the full privileges which

their merit and station will entitle them to. At that time a general law of naturalization may be passed. For I do not venture to affirm that, by the mere act of cession, the inhabitants of a ceded country become, of course, citizens of the country to which they are annexed. It seems not to be the case, unless specially provided for. By the third article it is stipulated that the inhabitants of Louisiana shall hereafter be made citizens; ergo, they are not made citizens of the United States by mere operation of treaty.

In the treaty respecting Louisiana there is happily no cause for alarm. This power of making citizens has not been exercised by the President and Senate, but at a future day may be used by Congress. (Annals of Congress, 1803, pp. 479, 480, 481.)

In closing the debate Mr. Randolph, of Virginia, is reported as follows:

When he spoke of their acquiring the rights of citizens he did not mean in the full extent in which they were enjoyed by citizens of any one of the particular States, since they possessed not the right of self-government, but those rights of personal liberty, of personal security, and of property, which were among the dearest privileges of our citizens. (Annals of Congress, 1803, p. 486.)

In Jefferson's time no one believed that the President and Senate could extend the boundaries of the United States by treaty stipulations, or incorporate foreign territory into the United States, which is the same thing. Therefore the opponents of his Administration were eager to convict him of attempting to do so. The people understood thoroughly that additions to the realm and the privilege of participating in the Government were matters to be determined by the sovereign, and that in the United States the sovereign was the people and not the President or the Senate. In Europe the king was sovereign, and therefore could do as he liked, or as his military forces enabled him to do. A king could extend his kingdom to the four corners of the earth if he had the requisite military force, and having conquered a province he could allow the conquered inhabitants to participate in his government as much or as little as he saw fit. But this great power of the sovereign was vested, under our form of government, in the people, and not in the Chief Executive nor the Commander in Chief of the Army and Navy. To permit the exercise of this power by a military officer, of however high degree, is to establish "militarism" in its worst and most obnoxious form. The most a President could do by treaty stipulations, or a military commander could do by conquest, was to give the sovereign people an opportunity to say what should be done with territory and its inhabitants. The will of the sovereign people in regard thereto was to be declared by the legis lative department of the Government.

It was this difference between the President of the United States and the King of England to which the Supreme Court of the United States referred when, in speaking of the effect of the conquest of Mexico by the United States, it said:

In the distribution of political power between the great departments of this Government there is such a wide difference between the power conferred on the President of the United States and the authority and sovereignty which belong to the English Crown that it would be altogether unsafe to reason from any supposed resemblance between them, either as regards conquest in war or in any other subject where the rights and powers of the executive arm of the Government are brought in question. (Fleming . Page, 9 How., 618.)

So clearly did the public comprehend that the President could not exercise this prerogative of an absolute monarch, that had he attempted it, the effort would have terminated his public career. Hence the effort to attach the odium to Jefferson. The opponents of Jefferson failed because article 3 of the Louisiana treaty did not permit the construction they gave it. Had said article read (as does the late treaty with Spain)

The civil rights and political status of the native inhabitants of the territories hereby ceded to the United States shall be determined by the Congress,

the attack on Jefferson would have been ridiculous as well as ineffective. Mr. Elliott, of Vermont, in closing his address in support of Jefferson and the Louisiana treaty, sarcastically referred to the attack as follows:

The friends of the present Administration can behold, with emotions only of pity mixed with contempt, the innumerable little muddy, murmuring rills of faction, folly, and slander, which, like spots upon the orb of day, are scattered upon the fair scenery of our far-extended country. But they are compelled to listen, with a loftiness of feeling bordering on sublimity and not unmingled with terror, to the awful roaring of that tremendous torrent of opposition eloquence which resounds within these walls, thunders around the Capitol, terrifies the Administration, and makes even the Republican system itself tremble to its center. (Annals of Congress, 1803, p. 453.)

A week later (November 2, 1803), when the subject was discussed in the Senate, the attack on the President, based on article 3 of the treaty, was not pressed. The Senate, having participated in the ratification, was not inclined to assail its own action.

Senator Nicholas, of Virginia, said:

If the third article of the treaty is an engagement to incorporate the Territory of Louisiana into the Union of the United States, and to make it a State, it can not 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. (Annals of Congress, 1803, pp. 70-71.)

Senator Tracy, of Connecticut, called attention to the difference between the treaty-making powers possessed by the President and Senate of the United States and those possessed by European monarchs. He said:

The obvious meaning of this article is, that the inhabitants of Louisiana are incorporated by it into the Union upon the same footing that the Territorial governments are, and, like them, the Territory, when the population is sufficiently numerous, must be admitted as a State, with every right of any other State.

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Have the President and Senate a constitutional right to do all this?

When we advert to the Constitution we shall find that the President, by and with the advice and consent of the Senate, may make treaties. Now, say gentlemen, this power is undefined, and one gentleman says it is unlimited.

True, there is no definition in words of the extent and nature of the treaty-making power. Two modes of ascertaining its extent have been mentioned; one is by ascertaining the extent of the same power among the monarchs of Europe and making that the standard of the treaty-making power here, and the other is to limit the power of the President and Senate in respect to treaties by the Constitution and the nature and principles of our Government.

Upon the first criterion it is obvious that we can not obtain any satisfactory definition for the treaty-making power, as applicable to our Government.

It is well known that in Europe any part of a country may be ceded by treaty, and the transfer is considered valid, without the consent of the inhabitants of the part thus transferred. Will it be said that the President and Senate can transfer Connecticut by treaty to France or to any other country? I know that a nation may be in war, and reduced to such necessitous circumstances as that giving up a part or half the territory to save the remainder may be inevitable. The United States may be in this condition, but necessity knows no law nor constitution either. Such a case might be the result of extreme necessity, but it would never make it constitutional. It is a state of things which can not, in its own nature, be governed by law or constitution. But if the President and Senate should, in ordinary peaceable times, transfer Connecticut against her consent, would the Government be bound to make laws to carry such a treaty into effect? Such a transfer of territory can certainly be made by the monarchs in Europe, under the head of the treaty-making power. I am convinced, sir, that only a cursory view of this subject will be sufficient to show every reasonable man that the treaty-making power in the United States can not be the same that it is in the European governments. (Annals of Congress, 1803, pp. 54–55.)

The men who fought to secure the independence of our country from monarchial institutions, who wrested sovereignty from a king and vested it in the people, who formed and adopted our Constitution, who laid the foundations of our Government, and worked out the principles on which it is established, placed a high value on the work they had performed. They believed that the great political powers, rights, and privileges which the Constitution created and conferred, were of priceless value, well worth the struggle by which they were secured, and were not to be hawked about the earth to be plucked by every man or nation whose interest or ambition might be advanced thereby. They were not the common property of mankind. They were the product and heritage of Americans, and to be kept as such. The man who undertook to cheapen them or bestow them on unworthy persons, laid impious hands upon the Ark and Covenant of our liberties, and his political standing was the forfeit of his sacrilege.

The outcome of the debate on the treaty in the Committee of the Whole House was a report to the House recommending the enactment of measures for the payment of the purchase price; to authorize the President to take possession of the territory and establish and maintain therein the sovereignty of the United States; and, as it was anticipated that the French and Spanish inhabitants would resist the new