"Ye friends of your country, the summons attend, Be this your employment, your joy and your pride, Your heav'n-granted rights to preserve and defend, And the spirits of freemen your labors shall guide."

Chorus.

"Our country demands-her call we obey, Let 's work and be merry, We'll never be weary, While freedom and glory our labors repay."

Hundreds of addresses reached the President, the larger number heartily endorsing his attitude toward the insulting Directory. Public opinion supported Congress at the time in passing many war measures at this special session of 1798 and the regular session which followed. Eighteen acts were added to the Statutes at Large during the special and seventy-five at the regular session, nearly double the number of laws enacted at any prior sitting. The exportation of arms was forbidden and their importation encouraged. The navy was separated from the army and a new department created for it. The three men-of-war which constituted the United States Navy were repaired and put into commission. The construction of others was begun. Frigates, galleys, and rowboats were ordered and regiments of artillerists and engineers authorised to be recruited. A quarter of a million dollars was appropriated to the coast-defences. Over a million was voted for increasing the number and for arming the regular troops. A provisional army of ten thousand men and a marine corps were placed at the disposal of the President. From his retirement at Mt. Vernon, ex-President Washington was summoned to assume command of the provisional army.

Not alone measures of defence, but actual war measures were passed. The President was authorised to seize armed French vessels found near the American coast. Merchantmen were permitted to arm against the French. Thirty thousand stand of arms were distributed among the militia of the States. All treaties with France were formally dissolved, and all intercourse with her suspended until the next session of Congress. To provide money for these unusual expenditures a loan of five million dollars for fifteen years was authorised, and a stamp-tax levied not unlike that of thirty years before, against which the colonists had rebelled.

As if they had not yet sufficiently endangered the party, the triumphant Federalist majority proceeded to vent its long accumulated wrath upon its critics, and thereby brought the story of the United States a long chapter forward. Those who had writhed under the attacks of Duane, a former resident of Ireland, but lately driven from India for violating the liberty allowed to the press, hoped for sweet revenge. Others wanted retribution against Callender, setting up at Richmond an abusive press such as had caused him to be driven from Scotland not long before. The list of lesser offenders among the alien writers was long. As President Adams asked: "How many presses, how many newspapers have been directed by vagabonds, fugitives from a bailiff, a pillory, or a halter in Europe?"

Charges against these aliens were not confined to their political writings. The air was full of conspiracy. Some suspected a league between foreigners and the United Irishmen; others thought the aliens leagued with the Freemasons for the destruction of all social relations, private property, religion, and government. Emissaries of France were supposed to be in every republic plotting for her universal dominion. Holland and Switzerland had already lost their liberty in this way. Talleyrand, the French Minister of Foreign Affairs, who had spent his exile in America and had become a naturalised citizen, was in secret correspondence, so it was declared in Congress, with certain people in this country. Another Frenchman, it was said, "of a literary and intriguing character, formerly a member of the Club Breton, doubtless in the confidence of the Directory, who had for a long time lived in Pennsylvania, has recently taken flight." Should this menace be allowed to continue? Both France and England were exercising the right of self-preservation and banishing suspicious aliens. These fled to the United States and made it a common plotting-ground. They were described in the Congressional debate on this subject as "men endeavoring to spread sedition and discord; who had assisted in laying other countries prostrate; whose hands are reeking with blood and whose hearts rankle with hatred toward us. Have we not the power to shake off these firebrands?"

By a safe majority in the House and a vote of two to one in the Senate, the Federalists placed additional bars to the doors of the United States by raising the time required for national residence prior to naturalisation to fourteen years, with a residence of five years in some one State, and a declaration of intention made five years before admission. All white aliens were required to report to some official register, and get a certificate within forty-eight hours after arrival. By a law, called the "Alien Friends act," Congress gave power to the President to order out of the United States all aliens whom he suspected of being concerned in any treasonable or secret machination against the Government. If he chose, he could give such an alien a license to remain under bond. The duration of the act was limited to two years. A companion measure, called the "Alien Enemies act," contemplated the possibility of an immediate war with France and gave the President and the courts power to arrest, to punish, or remove natives of a hostile country after due proclamation. All courts were authorised to hear complaints against aliens, much in the style of the denunciation system of France a few years before.

The alien writers and the Republican press generally had not been afraid to attack the war measures and the bills for the restraint of foreigners as they were proposed and debated. Upon the sudden rage of naming vessels after the President, Duane in the Aurora sarcastically remarked that the name would be a host of strength in itself and completely protect our extensive commerce. He thought we outstripped the British in this instance.

"In the navy of England, there is only one royal George and one Charlotte; there is to be sure the Sovereign and the Queen; but we shall certainly have, The President, the Lady Adams, or the Lady President, with Squire Quincy and Squire Charley, otherwise the navy of Columbia will be incomplete."

In other papers, the President figured as "Johnny Molasses" from the rum manufacture of Massachusetts. The New York Time-Piece pronounced him "a person without patriotism, without philosophy, and a mock monarch who had been jostled into the chief magistracy by the ominous combination of old Tories with old opinions and old Whigs with new." Addresses were printed begging aliens not to enlist in the provisional army if any laws should be passed against them.

All action taken thus far to ensure the perpetuity and safety of the Government against the strangers within its gates seemed to the Federalists incomplete while this seditious press remained unbridled. The crowning measure of the session of 1798, therefore, took the shape of an addition to the early act defining crimes against the United States. It provided fine and imprisonment for conspiring to oppose measures of the Government, for advising insurrection, and for libelling the Government, either House of Congress, or the President. The duration of the act was limited to the end of the present Administration. As originally introduced into the Senate, this "sedition act" declared that giving aid or comfort to a Frenchman or to France was treason to the United States, punishable by death. It was toned down in this and several other particulars by moderate spirits before being enacted into a law.

The opposition in Congress, called "Republicans" by themselves and "Jacobins" by their enemies, had resisted these famous "alien and sedition laws" at every step. They pleaded that such police regulations had been left by the Constitution to the States; that national citizenship did not exist separate from State citizenship; that Congress could pass uniform laws of naturalisation, but could not control aliens resident in a State; that adequate punishment for sedition was already provided in the laws of the various States; that the crime of treason was taken care of by the Constitution and Federal laws; that existing treaties required notice to be given before foreigners could be sent away, and then only in case of war; and that a dangerous power was placed in the hands of the President. The constitutional amendments guaranteeing trial by jury and freedom of speech were also quoted in vain. When a member from New York declared that the people ought not to submit to such tyrannical legislation and would deserve the chains which these measures were forging for them if they did not resist, such language was declared treasonable by the other side and productive of the insurrectionary spirit they were trying to stamp out.

An analysis of the distribution of the vote on the Alien bill shows that these presses, although located in the Northern and Central States, were supported by the Southern people. Perhaps the sectional tendency of the vote should be considered as indicative of the loss of the Southern States to the Administration and prophetic of the support which individualism was to receive from that section. Not a Senator north of the Mason and Dixon line opposed the measure, and only one from south of the line supported it. Of the Southern members in the House, nine voted for and thirty against sending away dangerous aliens. In the Northern section the vote stood thirty-seven to ten in favour of the punitive action.

Jefferson, presiding over the Senate while these measures, so obnoxious to him, were being passed, deprived of even the pleasure of casting an occasional deciding vote by the overwhelming Federal majority, quietly bided his time until this madness should die out. "War, land tax and stamp tax," said he, "are sedatives which must calm its ardour." To his mind, the people were still essentially republican; they retained unadulterated the principles of '75; they needed only reflection and information to bring themselves and their affairs to rights.

"A little patience," he wrote to a correspondent in Virginia, who mentioned the possibility of separating that State and North Carolina from the tyrannical majority, "and we shall see the reign of the witches pass over, their spells dissolved, and the people recovering their true sight, restoring their government to its true principles. Better keep together as we are, haul off from Europe as soon as we can, and from all attachments to any portions of it."

At the same time, if war should come, he advised all to join for the defence of home on the principle that if one's house is on fire he must try to extinguish it without stopping to inquire whether it was fired from without or within.

The execution of the Alien and Sedition laws proved as unpopular and as futile as Jefferson had imagined. Callender escaped the Alien law by completing his naturalisation, but was fined and imprisoned for seditious publications. His counsel, Cooper, a lawyer-editor, suffered similar punishment. A chartered vessel carried back to France, now under more tolerant government, a large number of emigres including Volney, the philosophical writer and former friend of Washington, suspected of being at the head of the conspirators in the United States. The abusive Time-Piece was abandoned, one of the editors fleeing the country and the other being under arrest. Duane was assaulted in his office, his presses destroyed by a mob, and himself haled before Congress for criticising their actions. Lyon, a violent Republican who had come near being expelled from the House for assaulting a fellow-member, was fined and imprisoned for commenting on certain appointments made by the President. A half-dozen or more insignificant country editors were caught in the Federalist drag-net, serving only to make the law more ridiculous.

President Adams never found a dangerous alien friend to send out of the country. The war with France was averted and the Alien Enemies act consequently never enforced. Some new issue arose to attract popular attention. The war fever passed as quickly as it came. Only the extra taxes remained to remind the people that the French-war scare of 1798 had ever occurred. War measures are always popular at the time they are passed. National patriotism is aroused, excitement refuses to listen to conservatism, and judgment is replaced by impulse. Measures necessary to raise the extra revenue are easily voted; but after the excitement has passed, the extra taxes become an extra burden. Those who yesterday clamoured most loudly for national defence and "patriotic" measures will to-morrow seek to evade payment or turn and rend the party which imposed the levies. The war is soon over; the train of taxes which follows seems endless. A political party takes small risk in fathering a war; it faces a great danger in the reaction which follows.

The Federalists had not only authorised by their war measures a large addition to the national debt, but had imposed certain forms of direct taxes. Even more odious than either the stamp tax or the tax on slaves was that on "improvements" in property. In order to arrive at a fair conclusion of the value of dwellings, the number of windows in each was taken as a standard by the assessors. This method was not unknown to the Old World, but proved extremely obnoxious in the New. Resistance in eastern Pennsylvania took the form of the so-called '"Fries Insurrection." It offered another opportunity to the National Government to assert its authority, but rendered President Adams still more unpopular, and increased public hostility toward the Federalists. Although Adams pardoned the leader, John Fries, he did not appease the Republicans, and he angered the Hamiltonians, who would show no clemency toward the opponents of law and order. Like some mastodon of old, the party floundered deeper into the swamp, eventually to succumb, leaving only its bones as a warning to the danger of overconfidence.



CHAPTER XIII

THE FIRST STATE PROTESTS



The autumn of 1798 marked the extreme limits to which the leaders and party intentionally strengthening the Union were allowed to go at present. It was the culmination of Federalist power. The critical turning-point, the momentary pause before the backward swing of the pendulum, was marked by popular disorders. The first heat of party passion, the tendency toward centralisation in ten years of Federalism, and ignorance of the extent to which the party might go, had combined to bring the country to the verge of actual disruption. The black cockades (English) fought with the tricoloured cockades (French) on a public fast-day in the streets of Philadelphia. Republicans, attempting to nail up petitions for the repeal of the Alien and Sedition laws on the doors of Christ Church, were set upon by the Federalists and driven away. The President received anonymous letters threatening to burn Philadelphia. Citizens packed their valuables in readiness for flight. Numerous incipient riots occurred in New York and other cities.

While the people of the French faction were thus expressing their disapproval of the administration measures, their leaders were casting about to find the most potent remedy against such abuse of the national power. Even those who, like Madison, believed in the efficacy of the new Government had not expected to see it turned into an agency for the oppression of the individual. To their minds, a continuance of the present course must mean the complete loss of individual and State liberty, or the overthrow of the Union of States, which had been gained only after great effort. An appeal to the ballot was one remedy; but more than two years must elapse before a change of administration was possible. The States, in forming the Union, had thrown about themselves many safeguards. It was high time to test their efficiency.

In the debates on the Alien and kindred measures, the ratification acts of the different States had been quoted by Republican members to show that the States had granted certain powers to the Union, and that the States alone could judge when those powers had been transcended. The State was the natural agency for the protection of the individual in this hour of danger. To an alarmed resident of Delaware, Jefferson offered an asylum in the State of Virginia, where the "laws of the land, administered by upright judges, would protect you from any exercise of power unauthorized by the Constitution of the United States. The habeas corpus secures every man here, alien or citizen, against everything which is not law, whatever shape it may assume."

Browbeaten, as Jefferson explained later, by a bold and overwhelming majority in Congress, the Republicans resolved to retire from that field, and to take a stand in their State Legislatures. The legislative, rather than the executive or judicial branch of the States, represented the people of the United States dwelling in the various States. The State Legislatures had sent delegates to form the Constitution, and the State Legislatures had called the State conventions which adopted it. In the State Legislatures the true friends of the Union, as the Jeffersonians called themselves, would endeavour to find an agency for protection against the unwarranted attack of the National Government. Four members of Congress at this time actually withdrew, forming a striking precedent for sixty years later. Although sometimes charged with planning a forcible resistance to the central power, the Republicans as a whole contemplated nothing more than concerted action in resolutions to be adopted by the State Legislatures. "I would not do anything at this moment," advised Jefferson, who naturally assumed the leadership, "which should commit us further, but reserve ourselves to shape our future measures, or no measures, by the events which may happen."

Selecting North Carolina as a strong Republican State to take the lead, Jefferson drew up a set of resolutions setting forth the doctrine of protest. However, chancing to meet some Kentucky politicians visiting in Virginia, he gave the paper to them. Their State offered advantages superior to North Carolina for inaugurating the movement. Her history from infancy had been one continued struggle for political rights. "Kentucky," said her governor in his message at the opening of the session of the State Legislature following the passage of the Alien and Sedition acts, "remote from the contaminating influences of European politics, is steady to the principles of pure Republicanism and will ever be the asylum of her persecuted votaries." The customary reply of the House took the shape of nine lengthy resolutions, rewritten from the set drawn up by Jefferson. They were adopted by both Houses of the State Legislature, signed by the governor, and sent as an appeal to the "co-states in the federal Union." Assuming that the States and the Union had made a compact whereby the latter had been given certain limited powers for definite purposes, the remaining powers being reserved to the States, the resolutions declared that whenever the General Government assumed undelegated powers, its acts were unauthoritative, void, and of no force; and that, as in all cases of compact having no common judge, each party had a right to judge of infractions and redress. This hypothesis being assumed, the remainder of the resolutions supports it with arguments, using generally the ones employed by the opposition speakers in Congress to prove that the Alien and Sedition laws were unconstitutional.

In a comprehensive view of the history of the making of the Union, these resolutions are of great importance. They form the first note of individualistic protest against the growing power of the Union. To them one must look for the first suggestion of the means to be employed. Unfortunately for this purpose, they are declamatory rather than constructive. They seek to arouse passion rather than to lay out a definite line of resistance. The only suggestion of immediate action is an instruction to the Kentucky Representatives to attempt to secure the repeal of the encroaching acts at the next session of Congress and an appeal to the other States to "concur in declaring these acts void and of no force."

Madison was no doubt in touch with the inception of the Kentucky Resolutions. To him was given the task of drawing up those to be adopted in the Virginia Legislature. So critical had the times become that he had resigned from Congress to accept a seat in his State Legislature. Although he composed a set of resolutions, as Jefferson had requested, he thought the proper remedy lay in a convention of delegates from the States rather than in the State Legislatures. The Constitution had been formed by a convention and not by the Legislatures. Therefore, to avoid having the Legislature seem presumptious, he had used only "general expressions," as he said, in his resolutions. "In case of a deliberate, palpable and dangerous exercise of other powers not granted by the said compact, the states, who are parties thereto," said his resolutions, "have the right and are in duty bound to interpose for arresting the progress of the evil." Upon this assumption, a protest was made against the Alien acts, which united unconstitutionally the legislative and judicial powers to those of the Executive; also against the Sedition law, which imposed a punishment expressly forbidden by one of the amendments to the Constitution.

Upon the question of a proper remedy, Madison went no farther than to beg that the other States would take "the necessary and proper measures" to maintain the rights and liberties reserved to the State or the people. But he lived to see this protracted warfare between the States and the Union reach a critical point, when it was desirable to know precisely what early protestors had meant. Madison explained that the resolutions advised only interposition by all the States. The plural form was universally used, and resistance by no one of them planned. No revolutionary action was contemplated. The legal remedies to be found in "interposition" he enumerated as remonstrances, instructions, elections, impeachment, amendment to the Constitution, and finally, if the usurpations became intolerable, a recourse to the right of revolution. Whatever hope Jefferson and Madison entertained of a united effort on the part of State Legislatures against the Alien and Sedition acts was dashed by the dissentient replies from all the New England States and by the lack of replies from the Southern States. They accounted for it by the tardiness with which State officials change, not always representing public opinion. The ease with which they carried all the States except seven in the ensuing election of 1800 enabled them to give the resolutions a large share of the credit for bringing about the victory.

In the midst of the war fever, Congress assembled in December, 1798, in the city of Philadelphia. No such glorious pomp and circumstance of war had ever been witnessed at the opening of a session. When President Adams read his address from the Speaker's platform to the assembled Houses, notifying them that France showed no inclination to yield, there sat at his right hand George Washington, summoned from Mount Vernon to become the Lieutenant-General and Commander-in-Chief of the provisional army against the Republic of France. Near him sat the new major-generals, Alexander Hamilton and Charles C. Pinckney, the latter one of the rejected envoys to France. Soon after the opening, Washington returned to his home, leaving Hamilton in command, an arrangement not consented to without reluctance by Adams, and destined to bear fruit later. The war measures were continued by the so-called "Logan act" providing punishment for any citizen of the United States who should, without authority, carry on communication with a foreign government with an intent to influence any action. It was brought out by Doctor Logan, a well-meaning Republican of Pennsylvania, who had unofficially gone to France in an effort to avert the threatened war and had held communication to this end with Talleyrand, Merlin, the First Director, and others. With the suspicion common to the times, the Federalists thought he was endeavouring to act as mediator or plotting some league with France in the event of war. This act marked the extreme limit, to the Republican mind, of the tyranny of the Central Government over citizens of a State.

It might have been fortunate if matters had been put to the test in 1798 and the following year. If resistance had assumed definite shape it would have been successful or it would have been overcome. The history of the Union would have been put forward more than half a century, or it would never have been written. For the time being, each side seemed inclined to go to the extreme point. The Federalists had taken their places in the Congress determined to ignore the scores of petitions for the repeal of the acts. They refused to debate motions to rescind, and came to successful votes as a "silent legislature." Another provisional army was authorised and further additions made to the regular army and navy. On the other hand, the Legislature of Kentucky, rendered even more defiant by the timid assurance in the replies of a few legislatures to her appeal and the decidedly unfavourable answers of a large number, renewed her resolutions of the preceding year in even stronger language. One new phrase, that "a nullification by those sovereigns of all unauthorized acts done under color of that instrument is the rightful remedy," was important because of the later use made of it. Jefferson had used "nullification" in his draft of 1798. It was no stronger than other words and phrases, yet, thirty years later, the words "interpose" and "protest" were passed by as too feeble, and "nullification" adopted as the proper term for open resistance, But that Kentucky did not mean forcible resistance is proved by her accompanying statement that she would bow to the laws of the Union because she was a party to the Federal compact. The Virginia Assembly reaffirmed its principles in resolutions and an address to the people the following year.

In the midst of the warlike preparations, when the two republics seemed determined to test the patience of each other; when the Jeffersonians were bound hand and foot by the war craze; when Hamilton awaited the word which would at last league his country with England against French fanaticism and would also bring a realisation of his dream of a military command—in the midst of all this, President Adams, in February, suddenly sent to the Senate the nomination of the American Minister at The Hague to be an envoy to France! The Federalists were dumfounded at his change of position. If negotiations were renewed, peace might follow. Peace with France would mean hostility with England, if not a revival of the danger of absorption by French intrigue. Proud in their strength, the Federalists had assembled only to be undone and their warlike preparations made into an idle show by the actions of this headstrong John Adams, who insisted upon being the President of his own administration, and who would not take seasonable advice from his party. He had done what the members of his Cabinet had feared, although they now pretended to be surprised. For three months past he had invited suggestions for envoys in case France should yield, had drawn up a form of proposed treaty, and had ridiculed the idea of a French invasion of the United States. "There is no more prospect of seeing a French army here than in heaven," he said. Enforced by Hamilton, who "chanced to be present," the members of his Cabinet had wrestled with him for hours in a private conference at Trenton to turn him from his purpose of conciliation rather than war. He informed them, as he later informed Congress, that he had received assurance from Talleyrand that if another representative should be sent to France from the United States he would undoubtedly be received with the respect due to the representative of a free, independent, and powerful nation, thus using almost the precise words of Adams.

By the time the new envoys, whose appointment the Federalists did not dare openly to oppose, reached France, the Directory had fallen and Napoleon was First Consul. He saw the usefulness of the United States to his plans as a friend rather than an enemy, and was ready to bury all grievances in a treaty. The three envoys, Murray, Ellsworth, and Davie, had no difficulty in getting the United States relieved from the treaty obligation of 1778 and in arranging compensation for the damages inflicted on American commerce. Thus was closed by the Treaty of 1800 the series of events which came so near involving in war the two nations, the allies of a few years before.

Viewed as a part of the diplomatic history of the United States, this war of 1798 is simply an incident. In the story of the Union it plays a greater part. Regardless of its disastrous results to the Federalists, it undoubtedly first rallied the people to the standard of a union for the common defence against a foreign foe. The old Revolutionary spirit had been revived. A national respect had been created in the eyes of its constituents. This was essential to a proper respect in the eyes of other nations.

This national spirit, if the Administration had remained in the hands of the Federalists, might have grown too rapidly for the maintenance of a proper equilibrium. Hamilton, unhampered by an Adams, would have made the United States a party to European alliances, dangerous to American originality and American neutrality. Self-government would have assumed some form of European imitation. Drawn into the Napoleonic wars as allies of Britain, nothing but a miracle could have saved them from the legitimacy-restoring Congress of Vienna. What changes in American history might have followed! The desire of Britain for the Louisiana country, the claim of Spain to the Mississippi below the Ohio, silenced but not abandoned after 1783, the necessity for neutrality as a basis for the Monroe Doctrine, and the development of America free from the burden of a war-basis defence, must be considered in this connection. So many are the conditions and menaces that speculation pauses at predicting the results if the great law of reaction had not manifested itself at this juncture.

The decision of John Adams to renew negotiations with France thus became a turning-point in history, because it precipitated the threatened schism among the Federalists, led to the downfall of the party, and turned the National Government from centralisation toward decentralisation. Although Adams recognised all this, he nevertheless defended his decision as the most disinterested and meritorious action in his life. Years after, he said that he desired no other inscription on his gravestone than, "Here lies John Adams, who took upon himself the responsibility of the peace with France, in 1800." At the time he showed no spirit of yielding to his advisers, who declared his action "the great shade on the presidential escutcheon." They said they had been delivered to the enemy in the house of their friend. Hamilton confessed that the news of the mission would astonish him if anything from that quarter could astonish. Having complete mastery over the President's Cabinet and with a large following in Congress, Hamilton had become almost a dictator in the party during the war craze and the enforcement of the Alien and Sedition laws. With the talent of a born leader, he assumed charge of the War Department during the two years that he was a major-general. Adams resented every assumption and attempt at dictation.

"If any one entertains the idea that because I am a President of three votes only I am in the power of a party," said he, "they shall find that I am no more so than the Constitution forces upon me. If combinations of senators, generals, and heads of departments shall be formed such as I cannot resist, and measures are demanded of me that I cannot adopt, my remedy is plain and certain."

Although not driven to resignation, as here hinted, Adams was from this time sentenced to be cut off with one term by Hamilton and the party. Meanwhile, Hamilton gave out what his policy would have been in executing the Alien and Sedition laws. He would have collected a "clever force" of the national militia and marched them toward Virginia. There was an obvious excuse for this action in her resolutions, he said. Then he would have measures taken by the National Government to arrest some alien and so put Virginia to the test of resistance. To the Speaker of the House, he outlined the steps necessary to be taken if the Union was to be preserved. It was the swan song of extreme centralisation. He would make the national judiciary districts much smaller, greatly increasing the number and efficiency of the judges, and also have national justices of the peace in every county. He would give the Central Government power to construct roads and canals, would increase the taxes, build a powerful navy, and make permanent the provisional army. To reduce the dangerous power of the great States and to curb their rivalry with the nation, he would divide them into smaller States.

It was entirely too late for such unionising suggestions. They had gone out of fashion for sixty years to come. Reaction had set in. Public sentiment, frequently reproached for its fickleness, but in reality protective in its vacillation, demanded a change. Federalism had lost prestige. Its leaders were at enmity. Washington, its unconscious mainstay, was dead.

"The irreparable loss of an estimable man removes a control which was felt and was very salutary," wrote Hamilton to a foreign correspondent. "At home, everything is in the main well; except as to the perverseness and capriciousness of one and the spirit and faction of many. The leading friends of the government are in a sad dilemma."

The first reaction against an enlarged and all-powerful America had been reached in the history of parties. The drag on the chariot was now to be felt.

The Republicans were in correspondingly high spirits over the prospective downfall of the party which had so far perverted the administration of the National Government from the path which it should have taken. Republican rhymesters exhausted their wit in describing how

"Brave Hamilton, our warrior bold, Strove Adams in the chair to hold, By mustering sense, and spleen, and wit, To prove him totally unfit."

Madison thought a steady adherence to the principles of prudence all that was needed. "It would be doubly unwise," he wrote to the impatient Monroe, now Governor of Virginia, "to depart from this course at a moment when the party which has done the mischief is so industriously co-operating in its own destruction." If anything was wanting to assure the defeat of the Federalists, it was supplied in the publication of "A Letter from Alexander Hamilton Concerning the Public Conduct and Character of John Adams, Esq., President of the United States." The letter laid bare most mercilessly the weakness in the nature and the defects in the administration of John Adams. Material for the recital had been furnished Hamilton by his tools in the Cabinet. Hamilton had his revenge on Adams, but he paid dearly for it in the estimation of every non-partisan American. Simply because the national structure was not being built to his own plans he would endanger the fabric by giving it over to those whose theories tended to weakening instead of strengthening it.



CHAPTER XIV

THE ADVENT OF DEMOCRACY



The presidential election of 1800 was epoch-making in several meanings of the term. It was a reaction against the bold and defiant attitude of the party in power. It was a revolution of the people. Yet it was neither a dissolution of all government, as it appeared to the defeated, nor a permanent conversion of the people to democracy, as the victorious element was inclined to consider it. Sixty years later, the people would rise against the victorious party, grown to be a slave-truckling organisation, overscrupulous of the individual when the world was turning to aggregation, and would take the sceptre from them for a quarter of a century at least. The masses punish arrogance in a party as in an individual. Unlimited success is always fatal. No sooner has the party passed the safety-line in one direction than the tide of popular favour turns in the opposite way and leaves it stranded. Owing to such reaction, the National Government has never approximated anarchy on the individualistic side of Jeffersonianism, nor has it been in danger of monarchy under Hamiltonian centralising principles at the other extremity. To-day it is as far from the ideals of the one as the other. Controlled constantly by centrifugal and centripetal forces, the fixed orbit of the Union has been maintained.

The election of 1800 marked the first transfer of the national control from one party to another. So accustomed has time made us to these changes, that it is difficult to appreciate the anxiety with which the people of that day awaited the transition. Well-known party issues, announced in party platforms, now give a fair assurance of the policies to be pursued. Yet no serious suggestion emanated from the Federalists that they would not yield to the ballot. Fitness for self-government was again demonstrated, especially when contrasted with some other American nations, by the peaceful eviction of one party, yielding to no more warlike weapon in the hands of its opponents than the suffrage of citizens.

The anxiety of the hour was increased because the national machinery had suddenly come to a standstill. The defect predicted by its enemies and feared by its friends had suddenly appeared in the method of electing a President. According to the Constitution, each elector wrote two names upon his ballot. The man receiving the highest number, if a majority, was declared President, and the next highest, Vice-President. Every Republican elector chosen in 1800 had written upon his ballot the names of Jefferson and Burr. Consequently neither was elected, because neither had a majority. The superiority of Hamilton over Jefferson as a party manager is manifest by the fact that Hamilton had feared a Federalist tie in the election of 1789 and had taken steps to prevent it. The Republicans were now in a quandary. John Adams had received only sixty-five votes, cut off with one term, a vicarious sacrifice, as he thought himself; yet neither Jefferson nor Burr was elected, each having seventy-three votes. Various rumours disturbed the peace. It was said that Congress would appoint a President for the interim; that Adams would hold over; or that Hamilton, disappointed in not being made President, would turn dictator. Governor Monroe promised Jefferson that he would immediately re-convene the Virginia Assembly "should any plan of usurpation be attempted at the federal town." Monroe's remedy was an amendment which would correct the Constitution in this particular. The fathers had not foreseen this precise accident, but, in their wisdom, had provided a remedy for a defective election by casting a decision in the House of Representatives, the most popular body next to the electors. Jefferson had undoubtedly been the choice of the people, and his selection had been the intention of the Republican electors. This was ultimately accomplished in the House. An amendment to the Constitution was adopted before the next election to prevent the recurrence of such an accident, and the Union had by good fortune passed a crisis in a presidential election second only to that of 1876.

The discomfited Federalists sought an explanation for their defeat in everything save their own actions. After only twelve years, and twelve years passed in creating an efficient from a deficient government, the people had turned against them. "No party ever existed knew itself so little," said John Adams, "or so vainly overrated its own influence and popularity as ours. None ever understood so ill the causes of its own power or so wantonly destroyed them." State debt assumption, the bank, the excise, the increased debt, the war expenditures, the direct taxes, and the Alien and Sedition laws would seem to furnish a sufficient list of reasons for the downfall of a party, which came into the Administration by only three votes. Yet, by common consent, the blame for the defeat was placed on the aliens and their presses. "A group of foreign liars," was the forceful way in which the defeated President explained it, "encouraged by a few ambitious native gentlemen, have discomfited the education, the talents, the virtues, and the property of our country." Chagrined that Washington should have two terms and he cut off with one, smarting under the treacherous letter of Hamilton, to which he speedily framed a reply, the ex-President "trotted the bogs" back to Massachusetts, as he termed it, without paying his successor the courtesy of waiting to see him inaugurated. Gadsden, the old Revolutionary leader of South Carolina, now relegated to the line of spectators, lamented the short-sightedness of early days in not sufficiently guarding American citizenship from the admission of foreign meddlers. "Our old-standers and independent men of long, well-tried patriotism, sound understanding, and good property," said he, "have now in general very little influence in our public matters." He wished the advice of John Rutledge had been taken. He would have admitted only the sons of aliens to citizenship.

The new President was to the manor born, but he held theories dangerously akin to those put forth by the foreign faction, against which the Alien and Sedition laws had been aimed. Speculative philosophy, however philanthropic in its intent, was heresy to the practical Federalists. Hamilton, in the midst of the uncertain election, was reported to have given in a toast his preference for "a dreamer rather than a Catiline," as between Jefferson and Burr. During the campaign, pamphlets appeared describing Jefferson as a wild philosopher, one who believed the savage more independent and happy than the civilised man; who preferred newspapers to government; who believed that a little rebellion now and then was a good thing; who esteemed property and obligations of so little value as to declare that the actions of one generation were not binding on the next; who justified the excesses of the French Revolution by saying that if only an Adam and an Eve were left in every country and left free, it would be better than it had been before. Memories of Tory confiscations and penalties were sufficiently fresh to give credence to a rumour that the President-elect contemplated such retributive measures toward his political opponents. Memories of the disunion sentiments contained in the Virginia and Kentucky Resolutions were still fresher, although Jefferson's close connection with the latter was not yet generally known.

Thomas Jefferson was an exponent of the democracy of his day, and with him democracy came into the National Administration. The "well-born" were discomfited. Yet it was not the democracy of Andrew Jackson's time. It was a democracy reflected from Europe like everything else in America at the time. It was the democracy of Montesquieu and the encyclopaedists. It was a democracy which could be led by a college graduate and lawyer, who was also a gentleman farmer and a large landholder, bound to his party by a country residence, by being a borrower, and by speculative theories. Only such aristocratic democracy was possible on the Atlantic coast-plain. Pure American democracy would be born only after advancing civilisation found a majority in the mid-valley of the continent, with the barrier of the Alleghenies at its back. It reached a crude form in Andrew Jackson, the Indian fighter, and a slightly higher type in Abraham Lincoln, the prairie lawyer.

Jefferson's democracy in the abstract was a kind of political millennium, in which the people collectively exhibited traits quite different from their individual components. The people, to Jefferson's mind, were unselfish, by nature good, and needing no restraining bonds. They were their own censors. His democracy in the concrete took the shape of a great uprising of the people in 1800, temporarily led astray from the true principles of self-government by the undue influence of Alexander Hamilton acting through the moneyed interests, but returning joyously and regenerate to the path of constitutional rectitude. The election of 1800 he pronounced as real a revolution in the principles of government as was that of 1776 in its form; the material difference being that one was effected by the sword and the other by the rational and peaceable method of suffrage. Jefferson had no more conception of a modern political party than had Washington,—the latter because he saw in them only factions; the former because his party embraced the entire people.

For several years, it is true, Jefferson had been directing the pens of his lieutenants in the various States, circulating sound Republican literature, patronising Republican newspapers, and tabulating Federalist defeats as skilfully as a modern political manager. He encouraged the people to mass-meetings or county conventions of delegates. This was probably the beginning of the county political machinery. He lamented that the South had no towns, such as New England had, which would make smaller units for popular gatherings. The Federalists scorned this political machinery as too trivial and feared it as too popular. It would have a tendency to make the people less amenable to the control of their leaders. They preferred to continue the Revolutionary custom of committees of correspondence to manage party affairs.

All this herculean effort was felt by Jefferson to be necessary to win popular attention and support from the centralisation of Hamilton, which, to his myopic vision, was monarchism. Years after, he testified that nothing on earth was more certain than that if he, placed by his office of Vice-President at the head of the anti-monarchists, had given way and had withdrawn from his post, the people would have given up in despair and the cause of liberty have been lost. By his efforts, and the aid of the Virginia and Kentucky Resolutions, the Constitution and the Union had been saved when "at its last gasp."

As the time of Jefferson's inauguration approached, rumours of revolutionary action grew into a general alarm lest all the union-making of twelve years should be annihilated and the Federation days be brought back again. Jefferson's well-known antipathy to taxation and a national debt caused a rumour that he planned repudiation of the national obligation, perhaps an agrarian law, and even the distribution of all property. The vested interests were as much alarmed as ever they were in subsequent elections. "We have seen," cried one holder of national certificates and a subscriber to the bank, "the French clergy stripped in a night. One vote of Congress would put our federal debt into the family tomb with the paper money of Revolutionary days." Among the measures supposed to be contemplated by the victorious "mobocrats," as the Federalists called them, were the abolition of the United States Senate, destruction of foreign commerce and public schools, the abolition of internal taxes, the annihilation of the bank, and the Europeanising of the country by French immigrants. "God is punishing the manifold sins of this nation by delivering it over to projectors and philosophists," said a New England clergyman. Governor Strong, of Massachusetts, appointed a day of fasting and prayer, that the first magistrate and other rulers of the nation might rise superior to private interests and the prejudice of party. The lower branch of Congress had gone over to the Jeffersonians, and the upper House would be lost after the next session. No check was possible upon the reformers.

Although neither partisans nor people were in such dangers as imagined by the Federalists, the National Government might have been seriously impaired by Jefferson and his followers, if necessity had not been most fortunately on the other side. The contest was very unequal, as well for Jefferson as for his successors who struggled conscientiously but vainly against natural laws. Jefferson was misjudged by those who pronounced him opposed to all union. He was always in favour of a limited union—an impossible union as it proved—with the unexpressed powers retained by the States. "The states," said he, "can best govern our home concerns and the general government our foreign ones." In later years he could remember but one instance of control vested in the Federal over the State authorities in a matter purely domestic, and that was the metallic tenders. Nor could he be said to be opposed to the Federalists as a whole, since he never recognised the party, but simply a few of its leaders. The latter were for the moment misleading the people. He expected in time to win all back except "the Coryphaei," or leaders, whom he pronounced incurables. One of the first unpleasant revelations to Jefferson as President was the fact that a sufficient number of the people to constitute a party would persist in remaining under the influence of Hamilton and his fellows in several of the States.

The man who depends thus upon the people and appeals to them as his monitor must risk the charge of demagogism. Every action differing from custom will be considered a bid for popular applause. "Jeffersonian simplicity" has been ridiculed as a masquerade for a purpose. Yet it was a protest against Old World imitation. Never was a salutation made or an address presented to Washington or Adams at an opening of Congress that Jefferson did not see in it a warning of imminent monarchy. He applauded the democratic firmness, called "stubbornness" by the Federalists, of Matthew Lyon, the only member of the House of Representatives who steadfastly refused to march in procession to the residence of President Adams in order to present to him the accustomed complimentary address and to partake of his refreshments. Clearly it was the duty of a President of the people to abolish these borrowed forms of royalty. When elected Vice-President, Jefferson requested that he might be notified by mail instead of by a messenger. No notification of his election to the Presidency was necessary since he was presiding over the Senate when elected by the House.

The embryonic city of Washington, surrounded by dense woods, was the scene of Jefferson's inauguration, and it afforded little for the ceremonies except democratic simplicity. It was announced in advance that no "white wands" would be carried, in the British style, at this inauguration. Republican papers had predicted that

"Philosoph's reign the world will bless, Join'd with religion's simpler dress. Truth in homely garb shall shine, On every state, in every clime."

The inauguration plans provided only a salute from the company of Alexandria riflemen who paraded before the lodgings of the President-elect, an escort of citizens and members of Congress to the Senate wing of the unfinished Capitol, and an inconsiderable illumination at night. At a later time, in an effort to magnify Jeffersonian simplicity, the story was invented that the President-elect rode unattended to Capitol hill and tied his horse to a tree near the spring.

Since Jefferson had been deprived of his wife by death many years before, the social problem was greatly simplified. Hospitable to extravagance in his home, as President he must reduce his entertainment to the simplicity becoming a republic. He soon formulated as part of his social program: "Levees are done away with. The first communication to the next Congress will be, like all subsequent ones, by message, to which no answer will be expected." In thus trimming away the useless ceremonials which had so far attended the beginning of each session of Congress, obviously copied, as previously said, from the opening of a session of Parliament, Jefferson was contributing to American individuality and common sense.

The task of restoring the Union to the form the fathers had meant for it and revoking the prerogatives unconstitutionally given to it was uppermost in Jefferson's mind. The bank had been chartered for twenty years and was beyond reach at present. The Sedition law and the Alien Friends act had expired by limitation before Jefferson came in. The Alien Enemies act was harmless because it rested entirely with the President for execution and was valid only during a foreign war; since it might be useful later it was allowed to remain on the statute book. But the odious excise, the stamp taxes, and carriage licenses could be repealed, the probationary period for naturalisation could be reduced to the former limit, work on the great war-ships could be stopped, the provisional army allowed to disband, and Hamilton and other generals cut off from the public treasury. The vast appropriations for the army and navy and the coast defences could be reduced, and the expense of the ornamental consular service cut down. As rapidly as possible, Congress carried out these reform suggestions of the new President. The Federalists deplored his penny-wise economy, especially when fifteen ships, which had cost the Government nearly a million dollars, were sold for one-fourth that amount.

The work of reform did not stop here. Two branches of the National Government had been brought back to democratic principles by the will of the people. But the third branch, the Judiciary, remained in the control of the "monarchists." Jefferson first did justice, as he conceived it, to Lyon, the only prisoner remaining convicted under the Sedition law. No doubt some of the Federal judges had been overzealous in securing the conviction of offenders under this law. Holding life tenure under the Constitution, they could be reached only by impeachment. This remedy was attempted in order to punish Judge Chase, an Associate Justice of the Supreme Court, who had shown partiality, it was claimed, in the trial of Fries and Callender five years before. The requisite two-thirds of the Senate did not vote him guilty, and this method of curbing the Judiciary failed. "Impeachment is not even a scarecrow," admitted the disappointed President. The enemy had retired into the stronghold of the Judiciary, as he said, to be fed from the treasury, and from thence to beat down Republicanism. "By a fraudulent use of the Constitution," he explained, "which has made judges irremovable, they have multiplied useless judges merely to strengthen their phalanx."

In this indictment, Jefferson referred to the act of the closing days of the Federalists, whereby the number of Federal courts had been increased to twenty-seven. It had been done by creating six circuit courts, with judges, marshals, and attorneys, instead of requiring the district judges and Supreme Court justices to make up these courts as had been done under the Judiciary Act of 1789. The excuse for the creation of these medium courts was that too much labour had been imposed upon the judges and justices by the old method. But the Republicans believed it had been done to make places for a large number of irremovable Federalist office-holders. By another act, a circuit court, with three judges, was created for the District of Columbia, with an elaborate system of justices' courts and justices of the peace. To fill the large number of places thus created, the pen of John Adams had been kept busy up to the last hour of his administration. Hence the "midnight appointments," as they were commonly known. Some of the district judges were advanced to the new circuit judgeships, and their places filled by the district attorneys. These were "nominated for promotion," as the message to the Senate termed it.

Not only would this presumably hostile force be in Jefferson's camp, but their salaries would seriously interfere with his plans for retrenchment. The Constitution distinctly provided that "judges both of the supreme and inferior courts shall hold offices during good behavior." But before the first session of Congress under his administration was ended, Jefferson wrote that they had "lopped off a parasite limb, planted by our predecessors on the judiciary body for party purposes." How had it been done? By passing a new judiciary act, which abolished the whole system of circuit courts, with their judges and minor officials, and substituted the old practice of requiring the Supreme and district judges to perform the labours of the circuit courts. No life tenure would hold for an office which did not exist. The anathemas of the "promoted" officials, thus fallen between stools, added to the pleasure of the Jeffersonians. The names of twenty-two unfortunates, whom the Senate failed to find time to ratify in the closing hours, were recalled by Jefferson, under the caption, "Nominated but not appointed."

Midnight of the 3rd of March had caught forty-one of the proposed Federal justices of the peace for the District of Columbia without their appointment having been fully made. Jefferson arbitrarily cut down their number to twenty-five, "having been thought too many," as he said. Among those dropped were four whose commissions had been made out and sealed by the acting Secretary of State, but had not been delivered. Madison, who became Secretary of State under Jefferson, refused to deliver the commissions, and the men, headed by one William Marbury, made a motion in the Federal court to obtain them. They had no recourse in the State courts. From this trivial circumstance, involving the least national judiciary office, came the case of Marbury vs. Madison, involving the right of the judiciary branch of the Federal Government to give an order to the executive.

One phase of the relation of these two branches had been established nearly ten years before, when President Washington attempted to get an interpretation from the Supreme Court upon the binding clauses of the vexatious treaty with France. He was told that the court was not an advisory body, but a tribunal established to adjudge specific cases brought before it. For this advisory service, the Executive must depend upon his Attorney-General. About the same time, the United States circuit courts protested against an act of Congress which made them recipients of pension applications subject to the final decision of the War Department. Evidently the Judiciary intended to remain independent of both the other branches of the National Government.

One feature of the relationship between the Federal courts and the Congress had been presumed to exist by Hamilton and other commentators on the Constitution, viz., the power to adjudge of the rights of individuals under an act of Congress. This principle of passing on the constitutionality of a legislative act by the courts had been established in at least five States before the adoption of the Constitution. It had been exercised in several cases by the Federal courts before the case of Marbury vs. Madison arose. A new contention was involved by asking whether the request made to the Supreme Court to issue a mandamus would hold against the provisions of the Constitution, which did not include mandamus in the powers specifically given to the court.

It chanced that the case came before John Marshall, who had recently assumed the station of Chief Justice, to which John Adams appointed him in the closing months of his administration. The previous history of the court, with the exception of two or three cases, had been insignificant. Its decisions during the first ten years do not fill as many pages as do those for a single year at the present time. Jay had resigned its headship to undertake the mission to England, impressed with the belief, as he afterward said, that the court could never obtain the energy, weight, and dignity essential to affording due support to the National Government. He refused to return to the bench, and Marshall was appointed, with whom the second era of the court begins. Marshall was a Virginian, a school-fellow of Monroe, and co-worker with Madison in the Virginia Constitutional Convention. But the war acquaintance which he formed with Washington and Hamilton, added to his personal views, turned him toward Federalism. As a Virginian, he was cultivated by members of that party, office after office being placed at his option. Accepting the Chief-Justiceship under a life tenure, he was "saddled" on the Republicans, as they said.

The decision in the case of Marbury vs. Madison was one of many which emanated from Marshall, silently shoring up the fabric of the Union as it was erected by the hand of necessity. "The theory that an act of legislature repugnant to the Constitution is void," said the Chief Justice, in granting Marbury and others the withheld commissions, through the district court, "is essential to a written constitution, and is consequently to be considered by this court as one of the fundamental principles of our society." We speak so easily now of declaring a law unconstitutional, thereby rendering it null and void, and we acquiesce so readily in these decisions that it is difficult to imagine the small beginnings of this great power exercised by one branch of the Federal Government over another. By holding that the mandamus must issue from the District and not the Supreme Court, the case might have been dismissed briefly. The Republicans thought the long disquisition on the powers of the court and its relation to the executive branch a kind of defiance and entirely unwarranted. It was the beginning of a long list of similar offences by Marshall.

Meanwhile the new Administration had continued its reform activities, "to restore the government to its principles, amend its defects, reform abuses, and introduce order and economy in the administration," as Monroe outlined it to President Jefferson. The latter summed up the reform work of the Republicans at the end of the first session:

"They have reduced the army and navy to what is barely necessary. They are disarming executive patronage and preponderances by putting down one-half the offices of the United States which are no longer necessary. These economies have enabled them to suppress all the internal taxes and still to make such provision for the payment of their public debt as to discharge that in eighteen years. They are opening the doors of hospitality to fugitives from the oppressions of other countries; and we have suppressed all those public forms and ceremonies which tended to familiarize the public eye to the harbingers of another form of government."

Thus had democracy, in Jefferson's opinion, at last come into its own.



CHAPTER XV

STRICT CONSTRUCTION AN IMPOSSIBILITY



Sixty years of almost uninterrupted Republican-Democratic administration were inaugurated with Thomas Jefferson in 1801. This period was auspiciously begun by correcting the abuses wrought in the National Government by the twelve years of Federalism. It was ended by the faithful adherence of the party to the slavery system, to which it was bound both by geographic strength and the principles of individualism. The period was apparently long enough to allow the party to give the Union such a bias toward decentralisation that it could never recover its power and prestige. How the compelling laws of organised society, the needs of the people in their conquest of the wilderness, and the necessity of providing for the common defence and the general welfare prevented such an unfortunate consummation makes up the middle period of the story of the United States.

It was easy for the new administrators to show in theory how the Central Government should be restricted to certain actions; it was impossible to avoid entering upon certain new activities as progress demanded from time to time. Take such a simple matter as the national capital. Suddenly transferred to the woods on the banks of the Potomac, the National Government found no such accommodations as the two cities in which it had previously been lodged had afforded. One completed and one incomplete wing of the Capitol building, an empty and bare President's mansion, one tavern, and a few houses, with streets indicated only by felled trees, formed the Athens of America, pronounced by Robert Morris the very best city in the world for a "future" residence. Members of Congress who traversed the three miles of mud road to Georgetown, where the only comfortable lodgings were to be obtained, would willingly have reduced the scale upon which the capital was laid out. Very early it became the "City of Magnificent Distances." However crude the city might be, the soil on which it rested belonged exclusively to the United States. It was the only spot of any magnitude which could be so claimed. It was due to the generosity of two neighouring States, Virginia and Maryland. To the same charity was owed the money which had partly built the two wings of the Capitol and the President's mansion. Nevertheless, land and buildings do not make a city. Money for the construction of streets, it was at first supposed, would come from the sale of lots. "Path-ways" were built from this resource under direction of members of the Cabinet before the Government was transferred from Philadelphia. Money was advanced on such expectation both by Congress and by the State of Maryland. Yet the advent of Government and the inauguration of Jefferson found the work incomplete. Members of Congress who stepped gingerly in their low shoes over the paths made of chips of stone from the new buildings, or who attempted the mile of cleared roadway between the two administration buildings, received an object lesson in the necessity for improvements which speedily overcame conscientious scruples.



Any expenditure for such purposes could find warrant in the Constitution only through the implied powers theory. "To exercise exclusive legislation" over the District might mean to construct sidewalks and to grade streets; but it was not so expressed. So urgent became the necessity, that in 1803 an appropriation for buildings was made to include the repair of the highway between the Capitol and the other public buildings. The expenditure of this money, as Jefferson afterwards boasted, was confined carefully to the avenue between the Capitol and Mansion hills and to the squares about them. As time went on and the city grew, specific appropriations had to be made for the construction of streets and roadways within the District. These were wrung annually from the reluctant party. To the disgust of people living in more remote parts of the District, the first of these sums was spent entirely in widening Pennsylvania Avenue, planting it with trees, in replacing its wooden culverts with brick, in repairing the public squares about the buildings, and in grading the slope in front of the War Office. "It cannot be supposed," replied Jefferson to one protestant, "that Congress intended to tax the people of the United States at large for all avenues in Washington and roads in the District of Columbia."

Trivial as these incidents must appear in comparison with the present attitude of the Government toward the District, they serve to illustrate the law of compulsion. Numerous others might be introduced here. The Jeffersonians inherited from the Federalists a small collection of books and maps, which had been purchased for the use of the members of Congress deprived of the library facilities they had enjoyed in the cities of New York and Philadelphia. It was the beginning of the present magnificent Library of Congress. Instead of casting aside the volumes and returning the unexpended balance to the treasury, the strict constructionists adopted the library and soon began to make direct appropriations for it, crowning the action in 1815 by expending twenty-three thousand dollars for the purchase of Jefferson's own library to be added to the collection.

Thus did the seat of government and its needs drive another wedge of loose construction into close-grained theory. To have exclusive control over a district not exceeding ten miles square meant not only police control, but it meant to make a home fit for the national seat of government, and to provide for the necessities of its representatives. Nevertheless conscientious scruples and niggardly appropriations had sufficient weight for many years to make the home of the Union a disgrace to the nation and a thing of contempt in comparison with the capitals of other lands.

If the strict constructionists had inaugurated the National Government, their task of confining it within a certain limit would not have been so difficult. There is little doubt that the power to "regulate commerce" was intended originally to cover the collection of a national impost. But if United States custom-houses were to collect duties on imported goods, they must erect lighthouses, build piers, and dredge channels in order to get the goods into the harbours. The States, having surrendered the benefits of an impost to the National Government, were not likely to undertake or continue such works on an adequate scale. No permission to engage in such enterprises was to be found in the Constitution except as deduced from the power stated above. The encouragement of foreign commerce had been almost a fetich with the Federalists. They had freely granted appropriations for such purposes. "I well remember," said Jefferson, on one occasion to Gallatin, under whose care these agencies of commerce must come, "the opposition on this very ground to the first act for building a light house. The utility of the thing has sanctioned the infraction."

But it was not possible to restrict the demand to lighthouses. Presently an appropriation was necessary for a dry dock to accommodate the little gunboats which the thrifty Administration had substituted for the Federal men-of-war. Jefferson got out of this in a way which would have done credit to his great rival. "Although the power to regulate commerce," said he, "does not give a power to build piers, wharves, open ports, clear the beds of rivers, dig canals, build warehouses, build manufacturing machines, set up manufactories, cultivate the earth, to all of which the power would go if it went to the first, yet a power to provide and maintain a navy is a power to provide receptacles for it and places to cover and preserve it." Here Jefferson had made out a list of proscribed actions, which the National Government dared not enter upon. But soon Gallatin reported a vessel sunk in the Delaware River, a menace to navigation, which neighbouring States showed no inclination to remove. Reluctantly the President gave permission to have the United States open the river. In quoting the powers of the National Government over commerce to justify the action, he added, "But we must take care not to go ahead of them and strain the meaning of the terms still further to the clearing out of the channels of all rivers, etc., of the United States. The removing of a sunken vessel is not the repairing of a pier." Nevertheless, soon after, an appropriation was made for erecting public piers in the Delaware River. It is needless to continue citing the steps by which the Administration assumed a fostering care of these public improvements. To sum up during the last year of Jefferson's administration, appropriations aggregating almost one hundred thousand dollars were made, without opposition, for constructing lighthouses, for removing bars and shoals, and making safe the ways of ocean commerce. The extension of this paternalistic principle to internal commerce would come in time with the movement of the people inland.



It may be said truthfully that these various measures, so inconsistent with the early avowed principles of the party, were inherited from the Federalists. But responsibility for the supreme act, the addition of foreign territory to the national domain, must be assumed solely by the Administration. Perhaps no action, until the decision to prevent certain States from leaving the Union, contributed so much to the central authority as the purchase of the Louisiana country by the Jeffersonians. If the decision had been negative, if conscientious scruples had been allowed to prevail, one hesitates to predict what would have been the fate of this "pent-up Utica." For forty years the ownership of Louisiana had been shifting and uncertain. For twenty years its possession had been a matter of scheming and intrigue by both Great Britain and France. Permanently in the hand of any foreign power, it would have completely blocked the path of progress. To possess one-half the drainage basin of the valley would have led to constant conflict with the owners of the other half. The insularity upon which the United States has depended so largely, the freedom from annoying neighbours, room for the westward expansion of the people, the unification of the Mississippi valley—all would have been lost if the original strict-construction theory had prevailed. Securing a domain extending to the Mississippi in the Peace of 1783 had been simply retaining what had been won largely by the colonists twenty years before when the French were driven from the valley. In the Louisiana question, the nation faced for the first time a national expansion.

To pronounce this the paramount action of the century in Union-making, one need only think of the precedent for acquiring new territory thus formed and which has been followed in no less than seven instances and confirmed by a decision of the Supreme Court. It seems strange that the framers of the Constitution did not foresee and provide for such an emergency. Perhaps the omission was due to the intuitive feeling that no nation in all history had hesitated to enlarge its domain when advantage offered or necessity demanded. Necessity was here the moving principle and it scattered to the winds party objection to using the implied powers, and forced the friends of government to take refuge in the preamble to the Constitution and in "all laws which are just and necessary," a position from which they had tried in vain to drive the Hamiltonians a few years before.

It was ordained by fate that the Jeffersonians should father a policy of national expansion which covered every addition of territory to that of Alaska. By nature they were opposed to giving such advantage to the central power. After the acquisition had been made, Jefferson was loud in his declaration that he would not "give one inch of the waters of the Mississippi to any nation"; but neither by nature nor party was he an expansionist. He would have been satisfied with the acquisition of the east bank of the river, including New Orleans. During the negotiations he confessed his doubts of success. He thought trade would soon make Natchez a second New Orleans. Hamilton, on the contrary, was an expansionist by principle and party. Three years before the purchase of Louisiana he said of that country and the Floridas, "I have been long in the habit of considering the acquisition of those countries as essential to the permanency of the Union, which I consider as very important to the welfare of the whole."

Holding such aggressive opinions, Hamilton and his party, had they been in control during this long period, might have rashly entered upon an offensive policy which would have precipitated frequent wars and have endangered the Republic before its home strength had been developed. Looking to the happiness of the mass rather than the individual and devoid of scruples about the divine rights of man, the Federalists would not have hesitated to hold as subjects the inhabitants of acquired territory longer than the principle of self-government, for which a republic stands, would have permitted. On the other hand, by the time the "porcupine policy" of dealing with other nations on territorial questions, as the Federalists contemptuously called the early attitude of their opponents, had grown gradually into an aggressive policy, the Republic had become sufficiently strong to maintain whatever position might be taken.

It was not alone fear that the ambitious Napoleon might obtain a foothold in neighbouring territory which moved the Jeffersonians to this inconsistent step. Neither was the action due entirely to fear lest Britain might obtain possession of it in the renewed war with France. The law of compulsion showed in other particulars. The advance of the American pioneers across the continent could not be checked. They had compelled the Atlantic-coast majority into making the Pinckney Treaty which opened the mouth of the Mississippi in 1795. Remembrance of their threatened secession compelled Jefferson to try to quiet their fears freshly aroused by the transfer of Louisiana to France, and the closing of the Mississippi. Ex-Governor Monroe, of Virginia, was chosen to assist Livingston, because his former executive position had put him in touch with the Western people.

In several ways Louisiana played havoc with strict-construction theories. So regardful of the rights of the individual had the Jeffersonians been in the early days that many had hesitated about creating Territories in the western vacant lands, lest the people migrating to them should not enjoy equal rights with their fellows in the States. When the inhabitants of the Mississippi Territory in 1799 petitioned for promotion to the second grade of territorial government, Jefferson denounced the first grade, which had been given to them by Congress a few years before, as "a despotic oligarchy without a rational object." Within five years, he and his party were facing the problem of establishing a status for some forty thousand white people, whom the United States had acquired with the Louisiana country. The problem was whether to violate the doctrine of the rights of man as well as the treaty and hold these people perpetually as colonists, or, by providing for their erection into States, further imperil the sectional balance of power, further endanger the sovereignty of the individual States, and contribute to the growing strength of the Central Government.

In his Ordinance of 1784, Jefferson had provided for eventual and not immediate statehood for the inhabitants of the Western territory. Manifestly a State could not be made out of vacant land; it must await a sufficient number of inhabitants. But this excuse for holding citizens temporarily in a subordinate position was not valid in Louisiana, where the southern point of the great triangle already contained a sufficient number of inhabitants for statehood. Moreover, Napoleon had sufficient thought for these pawns in the game of diplomacy to insert in the treaty of cession a provision that statehood should be given them "as soon as possible." The Jeffersonians were compelled to resort to loose construction in interpreting this phrase. Louisiana contained a large non-English-speaking population, unaccustomed to the privileges and obligations of free government. Their deficiency was only partly supplied by a sprinkling of Americans, who always precede and bring about a demand for expansion of territory. "All men are created equal," was the doctrine of the Jeffersonian Declaration. But even the doctrinaire would not insist that it gave to each individual immediate and equal share in all government both national and local, whether or not he was prepared by inheritance or environment. During nine years the people of the Louisiana territory had to serve in preparation under the rule of the rights-of-man party, before the first portion was erected to statehood on an equality with the older States.

Being unable to admit the people of Louisiana to immediate statehood, and unwilling to hold them purely as colonists, the Jeffersonians divided the land into a territory and a district. This action prolonged for years the possibility that the people reside in territories, deprived of the privileges and protection of a State government. Suppose the "monarchists" should again come into national control and pass new Alien and Sedition laws? Where could these inhabitants of a territory find a protector? Under such conditions, the prestige of State citizenship was rapidly disappearing. The very fact that certain inhabitants of the United States were living solely under the protection of the national authority inspired a greater respect for that authority. Likewise, when these people were admitted to statehood at the end of their period of probation, it would be done by an act of Congress, and not by the States.

Among the many constitutional dilemmas into which the party had been brought by this compulsory action, was a provision of the treaty that the port of New Orleans should enjoy certain favours for a number of years. To reconcile this exception with the Constitution, which says that "all duties, imposts, and excises shall be uniform throughout the states," it was declared that the territory had been purchased by the States in their confederated capacity and they could hold it like a colony. Therefore, the Congress could regulate it as a territory under the Constitution without reference to the provisions affecting the States. Thus did fate compel a virtual acknowledgment from the sticklers for individual rights, within four years after their accession to national control, that the Constitution did not follow in all its provisions the extension of sovereignty over new soil.

From a broad point of view, the placing of sixty years of territorial expansion in the hands of the party opposed to the practice by birth and nature is a strong evidence of the checks and balances which have made the nation. Under strict construction, territorial expansion became a potent factor in loosening the bonds in which the Government might have been confined. Under loose construction, expansion might have become a centrifugal force through foreign conquest and colonial holding which would have destroyed the free system it was intended to build up. The Jeffersonians were moved in later expansions by a desire to extend an economic system and to make party capital. They never sought national aggrandisement, as their opponents might have done had they been in power. Proud of the territorial growth of the Union as we now are, and seeing so clearly the wisdom of the final consummation, we forget that the domain might have been increased too rapidly or too extensively in more sympathetic hands.

In still another way was the fallacy of strict construction laid bare by the Louisiana question. The remedy of an amendment to the Constitution to bestow needed powers had been the one frequently suggested. Here was an early opportunity to test this constitutional preventive against central usurpation. But time was wanting. "From the moment that France takes possession of the mouth of the Mississippi," said Jefferson, "she becomes our mortal enemy." Amendment-making is necessarily a slow process. Months if not years are required. Jefferson was obliged reluctantly to abandon his first thought of an amendment to cover both the present case of Louisiana and the future affair of the Floridas, if they were not included in Louisiana. He was forced to suggest to members of Congress that the less said about any constitutional difficulty the better, and that it would be desirable for that body to do what was necessary in silence.

If the Jeffersonians had been driven from their first ground by this territorial acquisition, the Federalists had fared no better. They had first called into being the genii of the "implied powers," and now had the mortification of seeing it serve their enemies. Having swung in the change of 1801 from the "ins" to the "outs," they became the opposition party and were compelled to resist many measures and principles which they had formerly advocated. They had gradually lost State after State until they were confined to New England. The former great national party, the party of Hamilton, Jay, and Adams, the party to which Washington had leaned, was shrinking into a sectional faction. Where it had once wished to give the Union every means of aggrandisement, it was now compelled to oppose almost doubling its domain, lest the balance of power between the different parts be lost. It feared the ascendency which Louisiana would give to the Southern interests, never foreseeing from the shape of the addition that the advantage would in time lie with the North. Professing devotion to the Union, they would now deprive it of the advantages resulting from prolonging indefinitely its holding of colonies. They must have seen the result if the domain had never extended beyond the Mississippi. The territory both north and south of the Ohio would speedily be made into States according to existing arrangements. The great prestige inuring to the Union from territorial control would thereby cease. But with the addition of new provinces from time to time, the holding of territories preliminary to statehood must be indefinitely prolonged. The functions of the Union would be multiplied instead of diminished.

By the acquisition of Louisiana, Jefferson effectually settled the twenty years of internal dispute over the navigation of the lower Mississippi. From source to mouth, it flowed presumably through American territory. Americans were to be found on both sides the great water highway. Those west of the river had crossed upon invitation of Spain, who hoped in this way to people her province without loss to her other possessions. The colonists taken across the river by Colonel Morgan and others had caused no little alarm to statesmen in the Confederation days, lest the population of the United States be drawn off to people a Spanish possession and so weaken the Republic. Among the thirty-five thousand or more people to be found about the city of New Orleans and along the lower Mississippi and the Red rivers was a small percentage of Americans; but a much larger proportion was to be found in the six thousand inhabitants of St. Louis and the small villages near by.

This leaven of Americans affected the whole. They had been accustomed to the fostering hand of the National Government in the matter of improving means of transportation and communication in the older States from which they had migrated, and they did not hesitate to demand such aid for their new localities. Thus the people in their westward movement, carrying with them remembrances of the benefits of government assistance enjoyed in their former homes, have extended the system of national improvements across the continent.

There was a pressing demand for assistance in the Louisiana country. The province had been long neglected because of the frequent changes in ownership and the Latin method of colony holding. The task of Americanising this foreign element was imperative. The extent of territory to be brought under harmonious rule was extensive and varied. It was impossible for the Administration, in providing for the welfare and defence of the acquisition, not to be drawn into measure after measure of that paternalistic nature for which the party had so roundly criticised the Federalists. The sole management of Territories was vested in the National Government. The individual States could have no part in providing for the inhabitants of the Louisiana Purchase.



Federalist precedent had paved the way for Republican action. Since the Revolutionary days, Congress had been accustomed to maintain troops on the border for the protection of settlers. The establishment of forts in distant parts made necessary the construction of roads between the posts and their connection with the settled parts for the conveyance of troops and supplies. The addition of the vast tract of Louisiana demanded an immediate extension of military posts and military roads.

The Federalists had been accustomed, as previously described, to construct new post-roads instead of confining the mails to roads already built by State or private funds. Some of these post-roads were nothing more than a "trace" cut through the woods, which permitted a man on horseback to pass, carrying a post-bag. Even this could not be done without some expenditure. Occasionally the expense was met by a donation of public lands through which the trace passed. In other instances, payment was made from the postal receipts and appropriations. The constitutionality of such action had been attacked occasionally by the Republicans before they came into power. But having assumed the national control, they were compelled to continue the construction of military and post-roads. Even the fear of a standing army and the desire to economise could not warrant a neglect of the inhabitants scattered through the new possession. Congress owed protection to them not only as an implied power, but as an implied duty.

Thus it came about that Jefferson, who a few years before was taking Madison to task for thinking that the power to establish post-roads meant to construct new ones rather than to establish post-routes on those already made, was engaged with his Cabinet in planning a vast system of new highways to and through Louisiana. Among other enterprises, they contemplated a great post-road to New Orleans through Georgia, instead of the long water route heretofore used by way of Nashville and Natchez. The new way, it was estimated, would shorten the journey five hundred miles. Branches were planned to St. Louis and to Detroit. The difficulties of frontier travel may be imagined from the fact that the surveyor-general, who was despatched to examine the feasibility of the Georgia route, was nearly three months in reaching New Orleans from Washington.

Interested in scientific knowledge and exploration, and desirous of keeping American ships off the seas by developing internal trade, Jefferson had anticipated the purchase of Louisiana by proposing confidentially to Congress the despatch of a few men on an investigating trip up the Missouri River. Trade with the Indians needed to be cultivated in this manner, but no State was sufficiently concerned to undertake it. Jefferson found an easy way to warrant national action. "The interests of commerce," said he, "place the principal object within the constitutional powers and care of Congress." Not even Randolph, who deplored every departure from old policies, could ever regret the expenditure of the $2500 which sent the Lewis and Clark expedition across the continent and laid the claims for national addition nearly a half-century later. After this precedent, it was easy to send Lieutenant Pike to ascertain the true source of the Mississippi and to explore the vast plains on the south-west toward the Spanish possessions. Many expeditions for scientific purposes and for exploration have been sent by the National Government since that day; but it must be remembered that the practice was inaugurated under the strict constructionists, with no other warrant than "to regulate commerce."

The Lewis and Clark expedition called fresh attention to the possibilities of the great West, and justified the urgent demand of the Western people for national aid. The danger of Western secession had long since disappeared; but many plotters had shown a tendency to use the frontiersmen as allies in the European wars. Genet, over ten years before the Lewis and Clark expedition, contemplated the use of an American force against British Canada. Miranda proposed to use the same recruiting-ground for his movements on Spanish South America, and even Hamilton consented to the scheme, if he could be commander of the expedition. Now came Burr, planning an expedition of these hardy trans-Alleghenians into New Orleans and thence into the disintegrating Spanish possessions of the South-west. Napoleon's success seemed to have turned the heads of all ambitious men of the day toward foreign conquest and they proposed to use the Mississippi valley as a rallying-ground. To invade the territory of a nation with whom the United States was at peace was contrary to Federal law. Jefferson turned his attention toward punishing Burr on even more serious grounds; but Gallatin was keen enough to discover the cause for selecting the Western people as tools. It was not a novel idea to suggest better means of communication between the East and the West; but it was novel to attribute Western disaffection to a lack of touch and sympathy between the people of the two sections. Trade and intrigue with foreign neighbours, so Gallatin thought, could be suppressed more easily by kindness than by punishment. It was true that the National Government had permanently opened the Mississippi River as an outlet for the West. But the journey down was long and tedious, delays might be encountered at New Orleans because of the limited number of ocean vessels on which produce could be transshipped, and only a limited cargo if any was possible on the return journey up-stream. The increase in population and the consequent increase in the size of crops to be transported to a market would speedily bring a demand for some means of taking the products directly to the Atlantic seaboard and of bringing manufactured goods in return.

Gallatin embodied some of these thoughts in his celebrated report on the topography of the United States, which he submitted to Congress in 1808. He first described the few attempts which had thus far been made by States and private companies toward constructing canals and turnpikes. Then he threw party theories to the wind and, with a constructive statesmanship second only to that of Hamilton, he suggested a vast system of national improvements on a worthy scale to be undertaken and carried to completion by the central authority. It would require not less than twenty million dollars. Since there would be an annual surplus of five million dollars because of the unredeemable form of the national debt, he would appropriate large sums to these "national objects." Not only would the distant parts be bound together, the mail better accommodated, and internal trade assisted, but, as Gallatin pointed out, it would be possible to transport troops hurriedly from place to place, adding to the national defence. Nature had interposed mountains, falls, and sandbars in the pathways of interstate communication. "The General Government alone," said he, "can remove these obstacles."

Gallatin was compelled to acknowledge, however, that the execution of his plan would be hampered because the National Government could not, under the limits of the Constitution, undertake the construction of a road or canal through a State without the express permission of that State. In the Territories alone would it be possible. State consent might be difficult to obtain, because so many States had inaugurated similar enterprises, which would be obliged to compete with the national roads and canals. Jefferson, in accord with his general theory, suggested an amendment to the Constitution, removing this objection. He overlooked the fact that national post-roads and military roads had been already constructed within States. With such an amendment, he was willing to use the national income accruing above the national expenses for "the improvement of roads, canals, rivers, education, and other great foundations of prosperity and union," as he said in his last annual message.

Gallatin said in his report that the only work undertaken by the United States at their sole expense, and to which the consent of the States had been obtained, was the road from Cumberland to Brownsville. Further appropriations for that object were constitutional. As to other projects, he thought the National Government was empowered to do nothing more at present than to assist those undertaken by giving them loans or subscribing to their stock. Also the Federal engineers might be employed in making surveys for proposed improvements. It seems strange, in the light of modern Government initiative, to see statesmen blocked in a desired undertaking by constitutional quibbling. Having embarked in the work in the case of military and post-roads and in the Cumberland Road, they hesitated to go on.