would have a copy of the treaty of 1800 ceding Louisiana to France; a copy of the deed of cession executed in accordance with that treaty; all letters showing the assent or dissent of Spain to the purchase of the province by the United States; and all other documents tending to show whether the United States really had acquired any title by the treaty with France.

By the treaty of San Ildefonso, said Mr. Griswold and those who supported him, His Catholic Majesty bound himself to make over the province of Louisiana to the Republic of France six months after certain conditions had been performed. The treaty between France and the United States mentions this fact, but it does not state that these conditions. have been fulfilled and that an actual transfer has been made. All the document before us says is, that Spain has promised to cede Louisiana to France. Has she done so? If not, it follows that France has no title; that she cannot give one to the United States; and that we are wasting our time passing laws for the occupation of a country and the governing of a people we do not and cannot possess. As to this there must be no doubt. We must know, should Spain refuse to deliver Louisiana to France, if France can deliver it to us. We must know if Spain is likely to refuse; and to know all this we must have before us the papers called for in the resolution.

We rejoice, said the Republicans, that the members on the other side of the House are now willing to own what they have always denied, that this House has a constitutional right not only to call for papers, but to debate whether it will or will not carry a treaty into effect. In 1796 we were told we had no right to call for papers, no right to make inquiry, no right to deliberate. Our duty then was to hurry through all necessary measures without asking, Is the treaty good or bad, does it promote the interests or threaten the welfare of the United States? Now we are told to stop and consider. This, unquestionably, we have a right to do. If the House has the smallest doubt as to the validity of the title, a call for the papers ought to be made. Happily, no such doubt exists. The President has laid before us a document. He tells us it is a treaty

duly executed and making over to us Louisiana.

The first article affirms the right of France to the sover

1803.

THE CALL FOR PAPERS.

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5

eignty of the soil, and binds her to put us in possession of that soil the moment we have fulfilled the stipulations in consideration of which the country and the people are to be surrendered. From the nature of our Government these stipulations can only be carried out by laws passed by Congress. The President asks Congress to pass the needed laws. Congress attempts to do so, and at once endeavors are made to hinder, to frustrate, to thwart legislation by setting on foot inquiries that mean nothing and have no bearing on the subject in the least. And this, too, by men who have ever held that, in the matter of carrying a treaty into effect, the Constitution has given the House no discretion whatever. Where, then, is the necessity of calling for papers if we must, in the end, put the treaty into effect? Information of the kind now wanted can only be asked for two purposes: To enable the House to judge if it be well to sanction a measure that carries on the face of it proof of its impolicy, or to enable the House to punish a minister who has betrayed his trust. There is therefore a vast difference between a call for papers in 1796 and a call for papers in 1803. In 1796 the treaty of Mr. Jay had excited public abhorrence. The members of the House of Representatives despised it, and when they demanded papers from the President they actually spoke to him thus: "Sir, we detest your treaty. We feel an invincible repugnance to giving it our sanction. But if, by showing us any information in your possession, we can be convinced that the interests of the United States have been well secured; that, wretched as this treaty is, the terms are as good as could be had; that, bad as the terms are, it is politic to accept them—we will, loth as we are, pass the laws to put it into force." Can the House hold such language now? Can they say the present treaty is odious to the people? No, it has been hailed with shouts of joy by the nation. If this is so, if, in place of being discontented with the terms, we are lost in amazement at the vast benefits we have so cheaply gained, why should we call for papers? Why take exception to our own title? Why refuse the offered possession? But a few months ago certain members were eager to leap the bounds of law, raise a great army, and make themselves masters of New Orleans. Now the very same

members exhibit a strange regard for law and are very anxious that we should not touch Louisiana till our right and title are beyond dispute. They are beyond dispute. The treaty and the conventions have made them so. The first article affirms that France does own Louisiana by virtue of the treaty of San Ildefonso, and that she cedes it to the United States. The third article looks to the future government of the people of Louisiana by the United States. The fourth declares in what way the territory and the people shall be made over to the United States. This is all the information we need; and, in the face of this, to ask the President if we really have acquired citizens for whom we must pass laws, is a mockery of him, of this solemn business, and of ourselves. The House thought so too, and on a yea and nay vote the resolution was lost by fifty-seven to fifty-nine.

Next day a motion came up in the Committee of the Whole to carry the treaty into effect. For some time nobody rose to speak. At last, after a few minutes of silence, Mr. Griswold again stood up and opened the debate for the Federalists.

The treaty he pronounced unconstitutional and impolitic. It was unconstitutional, in the first place, because treaty-making power does not extend to the incorporation of foreign soil and a foreign people with the United States. The words "new States may be admitted by the Congress into this Union" meant new States carved out of the territory belonging to the United States at the time "this Union" was formed. But even if such power of incorporation did exist, and he was far from admitting it, the power surely belonged to Congress and not to the President, nor to the President and the Senate.

It was unconstitutional, in the second place, because the seventh article gave to the ships of France and Spain the right to enter the ports of Louisiana without paying a cent more duty than was exacted from the ships of the United States. Elsewhere a discrimination was made between American and foreign bottoms. Should a French or a Spanish vessel laden with goods from Cadiz, from Bilboa, from Marseilles, enter the port of Boston, she would, before unloading, be forced to pay a duty of fifty cents a ton. Should she, however, enter

1803.

WAS THE TREATY CONSTITUTIONAL?

7

the port of New Orleans, she would find the duty reduced to six. New Orleans, therefore, was to enjoy a privilege that would enable her to trade with the French and Spanish colonies on better terms than any other port. She was therefore a favored port. But this could not be allowed. The Constitution declares that "no preference shall be given by any regulation of commerce or revenue to the ports of one State over those of another."

It was unconstitutional, in the third place, because the President and Senate had attempted to regulate trade with France and Spain, and had, in so doing, usurped a power expressly given to Congress-the power to regulate trade with foreign countries. It was impolitic because we could not govern so vast a wilderness and a people so unlike our own in language, in manners, and in religion.

The Republicans held that this action of the President was perfectly constitutional. The right to acquire territory was a sovereign right, and as such belonged to each one of the original thirteen sovereign States. But a State could not acquire territory except by conquest or purchase. Conquest came of the war powers; purchase belonged to the treaty powers. But the States, when they ratified the Constitution, surrendered to the Federal Government the powers of levying war and making treaties. They had, therefore, with this surrender, lost the right to acquire new soil by conquest or purchase, and had given it to the Congress of the United States. As to the preference given to New Orleans, the language of the Constitution is "ports of one State." Whatever might become of Louisiana in the future, it was not then a State; it was a Territory bought by the United States. It was in the condition of a colony whose commerce could be regulated without reference to any provisions in the Constitution regarding States. The right to provide for the general welfare, again, was surely a treaty power. Why not, then, increase our domain, if conducive to the general welfare?

This, the Federalists replied, has nothing to do with the question in dispute. It is not denied that we can purchase and hold Louisiana, but it is denied that either Louisiana or any other foreign country can be incorporated into the Union

by treaty. As this country has been ceded to the United States on condition of incorporation, and as this condition is unconstitutional, the treaty and the cession fall to the ground.

The Republicans were determined the treaty should not fall to the ground, and, by a vote of ninety to twenty-five, carried three resolutions in the Committee of the Whole. The first declared that provisions ought to be made to put the treaty into effect. The second sent to a special committee that part of the President's message which related to a provisional government. The third sent the convention relating to the payment of sixty millions of francs to the Committee of Ways and Means. In these the House concurred.

When the bill to create stock to be issued in part payment of Louisiana came up in the Senate, the constitutionality of the treaty was again debated. Each side took the same ground and employed the same arguments their friends had used in the House. Indeed, nothing new was said by either party till Mr. Timothy Pickering startled the Federalists with an argument that might have been made by the warmest States-rights man that heard it. To his mind, the treaty between the United States and France was unconstitutional because it contained a stipulation no power then existing could carry out. In the third article were the words "the inhabitants of the ceded territory shall be incorporated into the Union of the United States." But who, he would like to know, was competent to carry out such an act? The President and Senate were not; the President and Congress were not. Neither could it be accomplished by an amendment to the Constitution passed by two thirds of both Houses and ratified by three fourths of the States. He firmly believed the assent of each and every individual State was necessary before a foreign country could join the Union.

The case was like that of a commercial house where the leave of each of the old partners must be had before a new one could come in. The Constitution did indeed declare "new States may be admitted by Congress into this Union." But the words meant domestic States, not foreign States. They meant States carved out of the territory owned by the United States when "this Union" was formed. His argu