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people of Louisiana to make laws. This extension, so far from being an act of despotism, will be an important privilege. If the laws of the United States were founded in injustice they might have some right to complain, but we only apply to them laws by which we ourselves consent to be governed. Gentlemen say if we deny the right of self-government we deny everything. But before they are permitted to make laws ought they not to understand what law is? If we give power to the people, will they not choose persons as ignorant as themselves? It is a fact that many of the most respectable characters in the country conceive the principle of self-government a mere bubble, and they will not consider themselves aggrieved if it is not extended to them. Does the history of nations show that all men are capable of self-government? No such thing. It shows that none but an enlightened and virtuous people are capable of it; and if the people of Louisiana are not sufficiently enlightened, they are not yet prepared to receive it. If this be the case, the arguments of gentlemen are inconclusive. They are not prepared for self-government. For what are they prepared? To remain in a passive state and to receive the blessings of good laws; and receiving these, they have no reason to complain.
When the people understand the value of laws equally and impartially administered, and begin to feel an attachment to the United States, and to inquire into the principles of free government, it will be time enough to give them the elective franchise. (Annals of Congress, 1803, pp. 1072-1073.)
A majority of the House refused to support the President's bill, and amended it so as to authorize the inhabitants of Louisiana to elect the members of the legislative council. The Senate refused to concur, and the outcome, as stated in the Annals, was:
It may not be unsatisfactory here to state that the bill, as finally passed, is limited in duration to one year from the 1st day of October next (when it is to take effect) and thence to the end of the next session of Congress. It directs the appointment by the President of a governor, to hold his office for four years; the appointment annually of a legislative council, composed of inhabitants of Louisiana, and the appointment of judges. It will be perceived that the principle of the Senate, withholding for the present the right of suffrage from the people of Louisiana, prevailed, subject, however, to the limitation of time introduced in the bill by the House of Representatives. (Annals of Congress, 1803, p. 1230.)
In 1804 Jefferson was a candidate for reelection to the Presidency. The course pursued by his Administration in the acquisition and government of Louisiana was submitted to the people. Jefferson received 162 electoral votes out of 176, while in 1801 he received but 73 out of 138.
In the Ninth Congress (1805) the opposition to Jefferson could muster only 7 Senators out of 34, and 25 Representatives out of 141. The extent of his triumph is thus described:
From the St. Marys to the Potomac and the Ohio every electoral voice was given to Jefferson. With some surprise the public learned that Maryland gave 2 of 11 votes to C. C. Pinckney, who received also the 3 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.
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. (Adams's History, vol. 2, p. 201.)
The Eighth Congress, in which occurred the two debates on Louisiana, was composed of Federalists and State rights men, strict constructionists and liberal constructionists, extremists and conservatives of both parties and schools. Yet all agreed that the newly acquired territory could not become incorporated into the United States or bound and benefited by the Constitution except by legislative action of Congress. As to the government of such territory little doubt was expressed as to the right of Congress to govern it as a colony. The serious doubt arose as to the right of the nation to ever govern it in any other way.
THE CONTROVERSY BETWEEN ANDREW JACKSON, MILITARY GOVERNOR OF FLORIDA, AND JUDGE FROMENTIN, UNITED STATES JUDGE FOR THAT TERRITORY, AS TO THE CORRECTNESS OF THE DOCTRINE OF EX PROPRIO VIGORE.
When the United States acquired East and West Florida the Louisiana law was taken for a model and the government of Florida was the same as had been that of Louisiana Monroe was President, and he followed Jefferson's example and acted upon Jefferson's advice. When the Florida bill was pending in Congress an amendment was offered providing as follows:
That all the principles of the United States Constitution, for the security of civil and religious freedom, and for the security of property, and the sacredness of rights to things in action; and all the prohibitions to legislation, as well as with respect to Congress as the legislatures of the States, be, and the same are hereby declared to be, applicable to the said Territory, as paramount acts. (Annals of Cong., 1st sess., 17th Cong., vol. 2, p. 1374.)
This amendment was voted down. In opposing the amendment Mr. Rhea, speaking for the Administration, said:
The people of Florida (except citizens of the United States who may have removed there either temporarily or permanently) know little of our Constitution and laws; to these they are strangers. Many principles of the Constitution of the United States require laws of the United States to carry them into operation. * * *. That the Constitution of the United States shall obtain and have full force and effect in a territory not included within the bounds and limits of the territories of the old thirteen States, or either of them, but which has been acquired by treaty from any foreign power since the adoption of that Constitution, and that the inhabitants of such territory shall be entitled to all the rights, privileges, and immunities, sanctioned and confirmed by the Constitution to the citizens of the United States; it appears necessary and consistent with the Constitution of the United States that the sovereign people shall, by the Congress of the United States, enact laws preparatory to, and declaratory of, the armission of such territory to a participation of the rights, etc., derived from the Constitution, and afterwards to be admitted a State of this Union on the same footing as one of the original States; the people of such new State will then have their full representation in both Houses of the Congress of the United States, and then the Constitution of the United States is in full operation in and over such new States as it is in one of the original States. (Ib., p. 1375.)
Next an amendment was offered to authorize the people of Florida to elect their legislative council. This amendment received only 15 votes, and was lost. (Ib. p. 1377.)
The bill passed without amendment and was approved by President Monroe. The following is Benton's comment on the incident:
This prompt rejection of Mr. Montgomery's proposition shows what the Congress of 1822 thought of the right of Territories to the enjoyment of any part of the Constitution of the United States. * * * The only question between Mr. Montgomery's proposition and the clause already in the bill was as to the tenure by which these rights should be held—whether under the Constitution of the United States or under a law of Congress and the treaty of cession, and the decision was that they should be held under the law and the treaty. Thus a direct issue was made between constitutional rights on one hand and the discretion of Congress on the other in the government of this Territory, and decided promptly and without debate (for there was no speech after that of Mr. Rhea on either side) against the Constitution. It was tantamount to the express declaration: “You shall have these principles which are in the Constitution, but not as a constitutional right nor even as a grant under the Constitution, but as a justice flowing from our discretion and as an obligation imposed by the treaty which transferred you to our sovereignty." (Benton's Abridgment, vol. 7, p. 295, note.)
Andrew Jackson, then a major-general, was appointed governor of Florida under this bill and authorized by the President to exercise all the powers theretofore possessed by the Spanish governors of East and West Florida and in addition the powers of the captain-general of Cuba and the intendant of Cuba. Jackson went to Florida and proceeded to exercise these powers in the style for which he is still famous. As a legislature he enacted many laws, some of which were afterwards repealed by Congress; as the supreme court and chancellor of the Territory he heard and determined many cases both at law and in equity, and as the chief executive or governor he extended his authority to issuing orders expelling certain inhabitants from the Territory.
Shortly after Jackson assumed control, a matter arose which squarely raised the question as to whether the Constitution followed the flag into Florida.
Jackson learned that a Spanish military officer named Sousa had in his possession and refused to surrender certain documents relating to the claims of a private individual to an estate. Jackson issued an order requiring the delivery of these documents to the American authorities. Instead of complying with the order, Sousa consulted the commander of the Spanish forces, Colonel Callava, who instructed him to turn over the documents to the steward of the Colonel's household; which instruc
tion was obeyed. When Jackson learned of this, he caused the three Spanish officers to be seized and thrown into prison, searched the house of the Colonel, and found and retained the documents. This action created a sensation, and a great crowd of people marched to the residence of Judge Fromentin, the United States judge of the Territory, to whom application was made for a writ of habeas corpus. The United States judge issued the writ. When the writ was served on Jackson he refused to obey it, on the ground that Congress had not extended the Constitution and laws of the United States to Florida. He also ordered Judge Fromentin to appear before him for contempt. The judge insisted that the inhabitants of Florida were entitled to the writ of habeas corpus by virtue of the treaty which guaranteed them the privileges and immunities of American citizens, and also because he thought the Constitution and laws of the United States were in force in Florida. In reporting this to the President, Jackson says:
If it be not sufficient to strike him from the roll of judges, I must say that ignorance of law is no objection against anyone's holding a judicial station. Judge Fromentin was represented to me to be no lawyer, * * * but I could not have formed such an idea of his want of legal knowledge as this transaction displays. (Annals of Cong., 1st sess. 17th Cong., vol. 2, p. 2300.)
In the same report Jackson also says: The lecture I gave the judge when he came before me will I trust for the future cause him to obey the spirit of his commission, aid in the execution of the laws and administration of the Government instead of attempting to oppose me.
Judge Fromentin appealed the controversy to Washington. This is what he wrote to Secretary Adams:
The American flag, it is true—the flag of liberty-waves on our forts; a treacherous sign in Florida. Sir, the bohun upas tree of slavery overshadows us. (Ib., p. 2381.)
The question now to be decided is not the insignificant and unimportant question of the difficulty between General Jackson and myself. It is a question of country or no country, Constitution or no Constitution, liberty or slavery. The despotism which attacks the liberty of one of the meanest of the inhabitants of this country makes an attack upon the liberty of all. * * * I speak not this now with reference only to the present occasion; but, sir, tyrants beget tyrants. Beware! (Ibid., p. 2472.)
In spite of this distracted appeal President Monroe and his Secretary of State, John Quincy Adams, sustained Jackson. Their decision was communicated to Judge Fromentin hy a letter wherein Secretary Adams says he is directed by the President
To inform you that the laws of the United States relative to the revenue and its collection, and those relating to the slave trade, having been the only ones extended by act of Congress to the Territories of Florida, it was to the execution only of them that your commission as judge of the United States was considered and intended to
For all the documents in the case, see Folio State Papers, 2 Miscellaneous, 799. The important papers are in 21 Niles Register. For Fromentin's theory of his action, 21 Niles, 252.
apply. The President thought the authority of Congress alone competent to extend other laws of the United States to newly acquired territory. (Annals of Cong., 1st sess., 17th Cong., vol. 2, p. 2412.)
Attention is called to the fact that in 1821 three American statesmen, James Monroe, John Quincy Adams, and Andrew Jackson, each of whom was elected President of the United States, officially declared that the Constitution and laws of the United States do not extend over newly acquired territory, ex proprio vigore, and that such extension, if made, must be by act of Congress.
The action of the Monroe Administration was not taken until after deliberate consideration. The matter was discussed at three meetings of the Cabinet, and the form of the letter was not decided upon until several days thereafter. (Memoirs of John Quincy Adams, vol. 5, pp. 366–380.) At the time this incident arose (October, 1821) John C. Calhoun was Secretary of War. It is interesting to note that he participated in the Cabinet consideration of this question, as then presented, and that in the Cabinet:
The opinion was unanimous that as the only laws extended to the territory were those of the revenue and against the slave trade, Fromentin's jurisdiction was confined to them, and he had no right to issue the writ of habeas corpus. (5 Adams's Memoirs, pp. 367, 368.)
The view finally accepted by the Cabinet was as follows: We have acquired a Spanish province, heretofore governed by arbitrary principles and by military rule. Congress had not time at their last session to introduce our checked and balanced system of government there. They continued, therefore, until their next session, the ancient system of government; and all the powers formerly exercised by the supreme rulers of the province were vested in the governor. The military was their only executive. To deny the governor the right to command the soldiers was to strip him of all effective power. If citizens of the United States went into the province, they must go and abide there conformably to the law of the time and the place. They can not carry the Constitution or the laws of the United States there with them. To this the authority of Congress is alone competent. (5 Adams's Memoirs, pp. 369, 370.)
THE DEBATE IN THE SENATE OF THE UNITED STATES IN 1849, LED BY
WEBSTER AND CALHOUN, ON THE PROPOSITIONS INVOLVED IN THE TWO QUESTIONS
1. Do the Constitution and the body of laws of the United States, ex proprio vigore, extend over territory newly acquired by the United States?
2. Can the Constitution be extended over territory newly acquired by the United States, either ex proprio vigore or by act of Congress, prior to the creation of a State in said territory?
The doctrine of the extension of the Constitution and laws of the United States over newly acquired territory was originally promulgated by John C. Calhoun, at the time a Senator from South Carolina,