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authoritative sanctions; and closed it forever. If it be not so; if all these sanctions, thus imperatively pronounced, may still be set aside; if the States, in their individual capacities, at any time, or at all times, at the bidding of local jealousy, or partial interests, may interpose between the supreme power, and the objects of its legislation; and each, according to the “madness that rules the hour,” may prevent the enactment, or resist the operation, of general laws; then I say, that the time for argument is gone by; the Constitution is already virtually overthrown.
I come now to a transaction, deserving, on account of its intrinsic importance, its peculiar character, and the broad and copious inferences deducible from it, a particular discussion. I mean the acquisition of Eouisiana This must, undoubtedly, be regarded as one of the most important events in our history, as a nation. It was important, on account of the magnitude of the interests on which it immediately bore, and out of which it grew; and also, of the pecuniary appropriations and expenditures, which it imposed on the Government. It was still more important, in regard to its consequences, which are, even now, but beginning to be developed, and the train of which stretches away into the dim and shadowy future, beyond the reach of mortal ken. Who, among us, can undertake to calculate its remote effects on the destinies of the Republic—on those “varieties of untried being,” through which our polity is doomed to pass? Of the wisdom of the measure, under the eristing circumstances of the Government, I nothing doubt. Man, whether individually or collectively, is the slave, not the master of events. Human wisdom, in its highest exercise, is nothing more than a just estimate of these, by the light in which they present themselves, and a corresponding adaptation of measures to their aspects. For the changes these may undergo, as it cannot control them, so is it not answerable for them. Though, therefore, I admit the wisdom of the purchase, yet, with regard to its ultimate results, and effects on the interests of the then United States, I may be allowed to feel some doubts and misgivings. But this by the way. . The measure was, perhaps, not less important on account of its bearings on the question of the constitutional powers of the General Government. It is, in this respect, the weightiest and most decisive fact, the strongest instance of constructive interpretation, perhaps, to be found in the history of the Government. With good reason does Mr. M’Duffie rely upon it as conclusive. From the first agitation of the great question, Mr. Jeffersox had been the champion of strict interpretation; yet, when his duty called upon him to act in an affair of this magnitude, his theoretical scruples yanished into air; and he overleaped, at once, all those barriers which he had laboured so assiduously to erect round the administrations of his predecessors. You, indeed, have given a different solution of the measure. A so
lution, I venture to suppose, perfectly original—one that never entered the mind of man before. “It was a war measure—most decidedly a war measure.” “Risum tenertis amcci?” Brutus, however, is in sober earnest—I will pursue the discussion in the same tone. I say, then, that you could never have resorted to so desperate an expedient, had you not felt yourself hard pressed by the exigency of the case-had you not felt, that, consistently with your principles, the measure could, on no other ground, be defended. Thus much I am entitled to
But how do you proceed in establishing your position? The stipulated ‘right of deposit” at New-Orleans, you say, had been withlield by the Spanish Government—and “war or submission was unavoidable.” Now, under favour, I submit, that neither the one nor the other, was unavoidable; and for the best of all possible reasons, viz:—that both actually were avoided. We clearly, did not submit—and we, as clearly, I take it, had no war on this argument. But suppose that “war or submission' had been unavoidable—what had this alternative to do with a third measure, which was neither war nor submission? You should have shown that either the purchase of the country, or war, was the alternative. But even this would have availed your argument nothing. The alternative of any measure, surely, cannot be that very measure, of which it is the alternative. It cannot take its predicaments and designation from it—it is, by the very force of the terms, made to stand in opposition to it. Yet you affirm, that the purchase, which, on your showing, was the means of evading war, was a war measure, and to be defended solely on that ground! “ Vera vocabula rerum amisimus'—what can be safe from such logical legerdemain as this? But further, I deny the fact, even if you had stated the alternative correctly. I deny that this measure, or war, was inevitable. And if I deny it, in what possible way can you make it appear? Not the shadow of a reason can be alleged, why the ‘right of deposit,’ the only right to which we had any claim, might not have been obtained from the then sovereign of the country, on such terms as to have been perfectly satisfactory. And had the treaty for the purchase failed, such, I doubt not, would have been the result. War, you may be assured, there would have been none. War? with whom? with Spain? But for what purpose, and with what effect? Spain was no longer in possession of the territory, and a war with her, therefore, would have availed little to the point. War with NAPoleoN ?--against whom, by the way, we had, on this account, no ground of quarrel. Mr. JEFFERson, I fancy, had marvellous little inclination for such an encounter. No, Sir, though a forcible, seizure might have been contemplated while the territory remained the property of the Ass, it would have been regarded in a very different light, after the Lion had laid his paw upon it.
But suppose Mr. JEFFERson had been as warlike in his propensities, as we all know he was the reverse; suppose, which is not the fact, that war had been imminent, and that NApoleon, alarmed at the fierceness of our attitude, had consented to transfer the territory, to us, on condition that we undid our harness; even this would not bring the transfer within the scope of the war-making power of the Government. No measure can be so denominated, with the least propriety, which does not grow out of, or is not implied in, an actual declaration of war, or an actual state of hostility. A measure, whether treaty or any thing else; “in substitution of war,” as you term this, is, selfevidently, not a war measure. It is surprising that so palpable a fallacy should have escaped you. I go further, and aver, that the very case you have supposed, in order to show, from the parallel, that this transaction was a war measure, even allowing the parallelism to exist, which it manifestly does not—I mean the case of a session made at the close of a war—would not come within the operation of the power to which you ascribe it. I aver, that a territory acquired by treaty, at the close of a war, would not, unless it had been previously in our possession, by right of conquest, be considered as having become ours by virtue of the power to declare war. The reason is most obvious. Negociation and war, are terms of diverse, of opposite, import. When war begins, negociation ends; and when negociation is instituted, it either operates a removal of war, or fails of its effect altogether. Territory obtained by conquest, is ours by the right of conquest. A subsequent treaty on the subject, can do nothing more than recognise this right. It affects not its validity in the least. If, on the other hand, territory is ceded, not previously acquired by conquest, we hold it by virtue of the treaty alone. The reasons which moved the other party to make the cession, are not at all material to the transaction, nor do they affect its nature or relations. It matters not, that it was made at the close of a war, or that it was for the express purpose of bringing it to a termination. The character of a transaction is not touched by these circumstances. The treaty making power is complete in itself, and independent. It does not grow out of a previous state of war, or of peace, and derive its colour from them. It sounds, therefore, very much like an identical proposition, to say, that acquisitions by treaty, are made by the exercise of this power, and this only, let the time and circumstance of the treaty be what they may. Time, manner, attendant circumstances, considerations moving the minds of the parties, are all accidents. They cannot affect the essential character of the transaction, or take it out of the operation of a particular principle. It results, with the clearness of demonstration, that the acquisition in question was made by virtue of the treaty-making power; and that the appropriations for which it called, were made in discharge of the duty imposed on the Government to provide for the general welfare! On this ground alone can their constitutionality be defended. For the treaty, as you justly affirm, unless made in accordance with the forms, and for the attainment of objects prescribed by the constitution, would of itself, impose no duty on the Government or people; it would be ipso facto, void. If then, the purchase was constitutionally made, which no one attempts to controvert—it affords a triumphant vindication of those principles of construction, for which I am contending. For I assert, and will maintain, that the settled course of the Government, in all its departments, sanctioned too, by the express or implied approbation of the community, constitutionally speaking, cannot be wrong. It is quite possible, I admit, that the Government, in all its departments; that the people, by universal acquiescence; may give their sanction to princiles abstractly incorrect. But practically, they cannot be so; for this is the authoritative interpretation of the great charter of our rights.
No doubt this principle may be liable to abuse. It may possibly be pushed by the majority to an extreme, which would justify a single State, or a number of States in withdrawing themselves from its operation. Be it so. The admission occasions me no embarrassment. I am not concerned to provide a principle of construction exempt from this liability. It is a liability that attends me, and my neighbours, in all the great concerns of life—in all the mighty interests of morality and religion. I see no reason to shrink from assuming it in this case alone. Erlreyies make their own law, and must be left to do so. But let every man beware how he anticipates the period of their arrival, and urges the community, in order to obviate a minor evil, to rush, with insane violence, on the dread wriknown.
I have shown conclusively, that the acquisition of Louisiana was made in virtue of the treaty-making power; and the appropriations for the execution of the treaty, in pursuance of the duty imposed on the Government to provide for “the general welfare.” I hold these positions to be unassailable. It is, I think, utterly impossible to justify the measure on any other ground. I confess that I cannot even imagine how it can be brought under the operation of any of the specific and enumerated powers of the Government; and if it cannot be covered by the shield of this indefinite authority, to appropriate money for any object evidently conducive to the “general welfare,” it must be abandoned as indefensible. It is far the strongest case on our records of the exercise of a broad and undefined discretion; and, to a scrupulous statesman, I should think, the most questionable in its character. If its constitutionality be admitted—and I think, as already remarked, that it has not been questioned—then the right of “constructive legislation,” must be admitted likewise. It is impossible to avoid this conclusion. Proteus himself could not escape from its grasp. Look at the origin of the measure, and you will find it grew out of an interest, with which, on your principles, Congress had no right to meddle—an interest as distinctly local, by the terms of your definition, as can well be imagined. I say, on your principles, that the right of deposit at New-Orleans, was, beyond all doubt, a local interest merely. Here are my proofs.
In your 13th number, you define general interests to be—“those in which each State directly participates—those which are as much an object of concern in the South, as in the North.” And you add: “It would have been unwise to invest Congress with the power to legislate on subjects, in which eight States might be interested, and in which the other five might have no interest,” &c.
Now, I ask, did each State directly participate in the right of deposit? Is it not notorious that the right, or its interruption, affected the Western States alone?—“the men of the Wabash,” and the Cumberland? What was it to us on the Atlantic, the Cotton and Rice planters, “between the Little Peedee and the Savannah,” or the manufacturers and wool growers of the North—that these men were or were not, molested in their exercise of this right? Let them look to their own interests. Why involve ourselves in difficulty; why tax the agriculture and commerce of the Atlantic States; why pluck the “Southern Goose,” or shear the Northern Sheep, in order to render the produce of the Western States, the remote regions. beyond the Allegany, more valuable to the growers? Thus, consistently with your present views, you must have reasoned on this subject. And I ain, I confess, somewhat surprised, that Mr. Jeffersox, considering his previous course, did not reason so too; so far, at least, as to feel himself precluded from adopting this course. But his better star prevailed. His sense of political duty, perhaps his love of honest fame, triumphed over his former narrow views. He adoptod a course not more conducive to the interests of his country at large, than fortunate for his own reputation ; and achieved a measure, which will, I trust, be remcmbered to his honour, when his gun-boats and embargoes are sunk in a generous oblivion. He wisely regarded the interest of a part, as the interest of the whole. He believed, doubtless, that the acquisition would conduce to the national welfare, and greatness; that it would add to our security; that it would serve to cement and consolidate the linion, by binding the maritime and tramontane sections more firmly together in a community of interests and feelings; that it would, ultimately, and indirectly, multiply, and enhance our commercial resources, impart vigour and animation to our manufacturing industry; and thus contribute to swell the tide of national prosperity. All this a sagacious statesman might naturally have been expected to foresee; and all these considerations, I doubt not, pressed on the attention of the Government, at the time, and urged them to the adoption of the measure. Good and valuable considerations, doubtless, and worthy the attention of a wise and provident government; but, manifestly, not to be entertained by the mere depositaries of a specific trust, the Amphictyons of a federative compact alone. For, however desirable these objects in themselves, and however powerful and tempting the inducements presented by the occasion, to endeavour their accomplishment; yet, when the Government searched for their authority, they could not, on your construction, “find it so denominated in the bond.” The Constitution contains no tittle of specific power to this effect. Hook over the list of enumerated grants, and tell me which of them ‘contains a warrant for the purchase of half a continent, in order to the settlement of a commercial dispute. For, be it always remembered, these beneficial results to the general interests of the Union, are incirental and collateral only. And for the obtainment of such results, Congress has, you maintain, no right to legislate, in any case whatev•er, where the subject matter, the immediate object of their legislation, is not one in which “every State directly participates.” Such, certainly, was not the subject matter in the present case. I have shown that the acquisition was made for the immediate purpose of relieving a local interest. Its contingent and remote effects cannot alter its character, so as to make that Constitutional, which, in itself, was not so.
Neither does it alter the case, that the object was effected by treaty rather than by direct legislation. This distinction regards only the "mode, not the substance, of the transaction. An object lying beyond the limits of Constitutional power, may not be reached by any change in the method of approaching it.