Minister Livingston to Secretary of State Madison (May 20, 1803). "I called this morning upon M. Marbois for a further explanation on this subject [the boundaries of Louisiana], and to remind him of his having told me that Mobile made a part of the cession. He told me that he had no precise idea on the subject, but that he knew it to be a historical fact, and on that only he had formed his opinion. I asked him what orders . . . had been given by Spain, as to the boundary, in ceding it? He assured me he did not know; . . . I asked the minister [Talleyrand] what were the east bounds of the territory ceded to us? He said he did not know; we must take it as they had received it. I asked him how Spain meant to give them possession. He said according to the words of the treaty. But what did you mean to take? I do not know. Then you mean that we shall construe it in our own way? I can give you no directions; you have made a noble bargain for yourselves, and I suppose you will make the most of it." 14

Jefferson to Breckinridge (Aug. 12, 1803). "The boundaries, which I deem not admitting question, are the high lands on the western side of the Mississippi enclosing all its waters, the Missouri of course, and terminating in the line drawn from the northwestern point of the Lake of the Woods to the nearest source of the Mississippi. . . . We have some claims, to extend on the seacoast westwardly to the Rio Norte,

. . 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 in the other, we shall certainly obtain the Floridas, and all in good time." 15

g.

Jefferson's Proposal of a Constitutional Amendment:

Jefferson to Breckinridge (Aug. 12, 1803). "This treaty must of course be laid before both Houses, because both have important functions to exercise respecting it. They, I presume, will see their duty to their country in ratifying and paying for

14. Gales & Seaton, Annals of Congress, 1802-03, Appendix 1152. 15. Lipscomb, Writings of Jefferson, X, 407-408.

it, so as to secure a good which would otherwise probably be never again in their power. But I suppose they 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. . .

h.

"16

Federalist Criticism and Republican Defence of Purchase: Debates in House, over an appropriation to carry out the terms of the Treaty (Oct.-Nov., 1803).

Mr. White (Federalist, Del.)-"I wish not to be understood as predicting that the French will not cede to us the .. possession of the territory. I hope to God they may, for possession of it we must have-I mean of New Orleans. But as to Louisiana, this new, immense, unbounded world, if it should ever be incorporated into this Union, which I have no idea can be done but by altering the constitution, I believe it will be the greatest curse that could at present befall us; . . Gentlemen on all sides, with very few exceptions, agree that the settlement of this country will be . . . dangerous to the United States; we have already territory enough,

. . . I would rather see it given to France, to Spain, or to any other nation . . upon the mere condition that no citizen of the United States should ever settle within its limits, than [that] we retain the sovereignty."

Mr. Pickering (Federalist, Mass.)-" He believed that our Administration admitted that this incorporation could not be effected without an amendment of the Constitution; and he conceived that this necessary amendment could not be made in the ordinary mode, . . . He believed the assent of each individual state to be necessary for the admission of a foreign country as an associate in the Union. . . . Mr. P. had never doubted the right of the United States to acquire new territory,. ., and to govern the territory so acquired as a dependent province; and in this way Louisiana might have become a territory of the United States. . . .'

Mr. Thatcher (Federalist, Mass.)—“The confederation un16. Lipscomb, Writings of Jefferson, X, 408.

der which we now live is a partnership of States, and it is not competent to it to admit a new partner, but with the consent of all the partners."

Mr. Crowinshield (Republican, Mass.)-"Feeling as I do that we have acquired this country at a cheap price, that it is a necessary barrier in the Southern and Western quarters of the Union, that it offers immense advantages to us as an agricultural and commercial nation, I am highly in favor of the acquisition."

Mr. Mitchell (Republican, N. Y.)-"My colleague has declared that the President and the Senate have no power to acquire new territory by treaty, and he argues that our people are to be forever confined to their present limits. This is an assertion directly contrary to the powers inherent in independent nations, and contradictory to the frequent and allowed exercise of that power in our own nation." 17

i. Dispute with Spain over Louisiana Boundaries:

President Jefferson to Congress (Dec. 3, 1805). "With Spain our negotiations for a settlement of differences have not had a satisfactory issue. Propositions for adjusting amicably the boundaries of Louisiana have not been acceded to. While, however, the right is unsettled, we have avoided changing the state of things by taking new posts or strengthening ourselves in the disputed territories, in the hope that the other power [Spain] would not, by contrary conduct, oblige us to meet their example, and endanger conflicts of authority the issue of which may not be easily controlled. But in this hope we have now reason to lessen our confidence. I have therefore found it necessary at length to give orders to our troops on that frontier, to be in readiness to protect our citizens, and to repel by arms any similar aggression in future." 18

17. T. H. Benton, Abridgment of Congressional Debates, III, 10, 67-68. 18. Lipscomb, Writings of Jefferson, III, 387-388.

a.

3. REPUBLICAN ATTACK UPON THE FEDERAL
JUDICIARY

Republican Criticism of the Courts established by the
Federalists:

Jefferson to John Dickinson (Dec. 19, 1801). "My great anxiety at present is, to avail ourselves of our ascendency to establish good principles and good practices; to fortify republicanism behind as many barriers as possible, that the outworks may give time to rally and save the citadel, should that be again in danger. On their part, they [the Federalists] have retired into the judiciary as a stronghold. There the remains of Federalism are to be preserved and from that bat

tery all the works of republicanism are to be beaten down.

Timothy Pickering to George Cabot (Jan. 29, 1804). "The Federalists are dissatisfied because they see the public morals debased by the corrupt and corrupting system of our rulers.

The independence of the judges is now directly assailed. By the Philadelphia papers, I see that the Supreme Court judges of Pennsylvania are to be hurled from their seats on the pretense that, in punishing one Thomas Passmore for contempt, they acted illegally and tyrannically. I presume that [others] . . . 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?" 20

Cabot to Pickering (Feb. 14, 1804). "The independent judiciary was the best feature in our national system, but it is abolishing." 20

b. The question of what constitutes an impeachable offence: Case of Justice Chase.

Mr. Campbell, Republican (Febr. 20, 1805. "[Opening for the prosecution,] . . . Impeachment, therefore, according to the meaning of the constitution, may fairly be considered

19. Lipscomb, Writings of Jefferson, X, 301-302.

20. H. C. Lodge, Life and Letters of George Cabot, 337-339, 342.

a kind of inquest into the conduct of an officer, merely as it regards his office; the manner in which he performs the duties thereof; and the effects that his conduct therein may have on society. It is more in the nature of a civil investigation, than of a criminal prosecution. . . . [Mr. Hopkinson, Federalist, for the defence]. "The first proper object of our inquiries in this case is to ascertain with proper precision what acts or offences of a public officer are the objects of impeachment. ... If it shall appear that the charges exhibited in these articles of impeachment are not, even if true, the constitutional subjects of impeachment; if it shall turn out on the investigation that the judge has really fallen into error ; yet if he stand acquitted in proof of any such acts as by the law of the land are impeachable offences, he stands entitled to discharge on his trial. . . . I offer it as a position I shall rely upon in my argument, that no judge can be impeached and removed from office for any act or offence for which he could not be indicted." 21

C. Partisan appointments to the Federal Courts:

66

Jefferson to Gallatin (Sept. 27, 1810). At length, then, we have a chance of getting a republican majority in the supreme judiciary. For ten years has that branch braved the spirit and will of the nation, after the nation had manifested its will by a complete reform in every branch depending on them. The event [death of Judge Cushing] is a fortunate one, and so timed as to be a God-send to me. I am sure its importance to the nation will be felt, and the occasion employed to complete the great operation they have so long been executing, by the appointment of a decided republican, with nothing equivocal about him. . .

22

21. Benton, Abridgment of Congressional Debates, III, 233, 237.

22. Lipscomb, Writings of Jefferson, XII, 429.