University of Virginia Library

CHAPTER IV.

A CENTRALIZING STATESMAN.

After the session closed, early in May,
1802, Randolph retired to Bizarre and remained
there, undisturbed by politics, until
called back to Washington by the meeting of
Congress in December. In the interval events
happened which threatened to upset all the
theories of the new administration. Napoleon,
having made peace with England, turned his
attention to America, sending a huge armament
to St. Domingo to rescue that island
from Toussaint and the blacks, while at the
same instant it was made known that he had
recovered Louisiana from Spain, and was about
to secure his new possession. Finally, at the
close of the year, it was suddenly announced
that the Spanish Intendant at New Orleans
had put an end to the right of deposit in that
city, recognized by the Spanish treaty of
1795. The world naturally jumped to the conclusion
that all these measures were parts of
one great scheme, and that a war with France
was inevitable.

Randolph's position was that of a mere
mouth-piece of the President, and Mr. Jefferson
adopted a policy not without inconvenience
to subordinates. To foreign nations Mr.
Jefferson spoke in a very warlike tone; at home
he ardently wished to soothe irritation, and to
prevent himself from being driven into a war
distasteful to him. For Mr. Jefferson to act
this double part was not difficult; his nature
was versatile, supple, gentle, and not contentious;
for Randolph to imitate him was not so
easy, yet on Randolph the burden fell. He
was commissioned by the government to manage
the most delicate part of the whole business,
the action of the House. It was Randolph
who, on December 17, 1802, moved for
the Spanish papers; forced the House into secret
committee, which he emphatically called
"his offspring;" kept separate the public and
the secret communications from the President;
and held the party together on a peace policy
which the western republicans did not like, in
opposition to the federalists' war policy which
many republicans preferred. Unfortunately,
the debates were mostly secret, and very little
ever leaked out; this only is certain: the President
sent to the House a public and cautious
message, with documents; Randolph carried
the House into secret session to debate them;

there some administration member, either Randolph
or Nicholson, produced a resolution,
drawn up by Mr. Madison or by the President
himself, appropriating two million dollars "to
defray any expenses which may be incurred in
relation to the intercourse between the United
States and foreign nations;" this resolution was
referred to a committee, with Nicholson for
chairman, who made a report explaining that
the object of the appropriation was to purchase
East and West Florida and New Orleans, in
preference to making war for them; and, on
the strength of this secret report, the House
voted the money.

The public debate had been running on at
intervals while these secret proceedings were in
hand, but the reports are singularly meagre and
dull. It seems to have been Randolph's policy
to hold his party together by keeping open the
gap between them and the federalists, and these
tactics were not only sound in party policy, but
were suited to his temper and talents. The
federalists wanted war, not so much with Spain
as with Napoleon. Kentucky and Tennessee
wanted it, not because they cared for the
federalists' objects, but because they were
more sure to get the mouth of the Mississippi
by fighting than by temporizing. To prevent
Kentucky and Tennessee from joining the opposition,

it was necessary to repel the federalists,
and yet promise war to the western republicans
in case the proposed purchase should
fail. No task could be more congenial to Randolph's
mind than that of repelling insidious
advances from federalists. He trounced them
vigorously; showed that they had offered to
sacrifice the navigation of the Mississippi some
years before there had been a federalist party
at all, or even a House of Representatives;
and after proving their innate wickedness and
the virtues of the party now in power, he concluded,
—

In all this matter, so far as general policy
was concerned, the administration behaved discreetly
and well. No fault is to be found with
Randolph, unless, perhaps, the usual one of
temper. In every point of view, peace was the
true policy; forbearance towards Spain proved
to be the proper course; distrust of the federalists
was fully justified. There was no exaggeration
in the picture of public content which
he drew, or in the rage with which the federalists
looked at it. The still unknown character
of Napoleon Bonaparte was the only cloud in
the political horizon; and until this developed
itself there was no occasion for the President to
hazard the success of his pacific policy.

So far as Louisiana was concerned, Randolph's

activity seems to have stopped here.
He did his part efficiently, and supported the
administration even more steadily than usual.
In the other work of the session, he was the
most active member of the House; all financial
business came under his charge, while much
that was not financial depended on his approval;
in short, he with his friend Nicholson
and the Speaker controlled legislation.

It is not, however, always easy, or even possible,
to see how far this influence went. One
biographer has said that at this session he spoke
and voted for a bill to prevent the importation
of slaves; but this was not the case. Some of
the States, alarmed at the danger of being inundated
with rebel negroes from St. Domingo
and Guadaloupe, had passed laws to protect
themselves, and, in order to make this legislation
effective, a monstrous bill was reported by
a committee of Congress, according to which no
captain of a vessel could bring into the ports
of any State which had passed these laws a
negro, mulatto, or person of color, under penalty
of one thousand dollars for each. No negro or
mulatto, slave or free, fresh from bloody St.
Domingo or from the Guinea coast, whether
born and educated in Paris, a citizen of France,
or a free citizen of the United States, a soldier
of the Revolution, could, under this bill, sail

into any of these ports without subjecting the
master of his vessel to a fine of one thousand
dollars. Even the collectors of customs were
directed to be governed by the laws of the
States. Such a measure excited opposition.
Leading republicans from the North pointed
out the unconstitutional and impossible nature
of its provisions, and moved its recommitment.
So far as Randolph is concerned, the report
mentions him only as one of those who opposed
recommitment, and insisted on the passage of
the bill as it stood. The opposition carried its
point; the bill was amended and passed on
February 17, 1803. Randolph did not vote on
its passage, although his name appears at the
next division the same day.

He seems to have been beaten again on the
subject of the Mint, which he moved to abolish.
Indeed, after making one strong effort to overcome
opposition to this measure, he was so decidedly
defeated that he never touched the
subject again, and ceased to sneer at the "insignia
of sovereignty." On the other hand, he
carried, without serious opposition, the important
bill for establishing a fund for schools
and roads out of the proceeds of land sales in
the Northwestern territory, and he shared
with his friend, Nicholson, the burden of impeaching
Judge Pickering, whose mental condition

rendered him incapable of sitting on the
bench.

With this impeachment, on March 4, 1803,
the session closed. By the federalists, the attack
on Judge Pickering was taken as the first
of a series of impeachments, intended to revolutionize
the political character of the courts, but
there is nothing to prove that this was then the
intent of the majority. The most obnoxious
justice on the supreme bench was Samuel
Chase of Maryland, whose violence as a political
partisan had certainly exposed him to the
danger of impeachment; but two years had
now passed without producing any sign of an
intention to disturb him, and it might be supposed
that the administration thus condoned
his offences. Unluckily, Judge Chase had not
the good taste or the judgment to be quiet.
He irritated his enemies by new indiscretions,
and on May 13, 1803, nearly three months
after Pickering's impeachment, Mr. Jefferson,
in a letter to Joseph H. Nicholson, suggested
that it would be well to take him in hand: —

Accordingly, Nicholson took up the matter,
and consulted his friends, among others Macon,
the Speaker, who, in a letter dated August 6,
1803, expressed grave doubts whether the
judge ought to be impeached for a charge to
the grand jury, and his firm conviction that, if
any attempt at impeachment should be made,
Nicholson, at all events, ought not to be the
leader. On this hint that no candidate for the
judge's office should take the lead, Nicholson
seems to have passed on to Randolph the
charge he had received from the President.

As usual, Randolph passed his summer at
Bizarre. Some of his letters at this period are
preserved, but have no special interest, except
for a single sentence in one addressed to Gallatin
on June 4, which seems to prove that
Randolph was not very serious in his parade
of devotion to peace. Monroe had been sent
to France to negotiate for the purchase of New
Orleans, while at home not only the press,
but the President, in order to support his negotiation,
openly threatened war should he fail.
Randolph said, —

"So much the worse for us!" This sounds
little like his comments on the war policy of
the federalists.

The criticism, too, on the want of system in
the Cabinet reflected on Mr. Jefferson's want of
method and grasp. The President, it seems,
enforced no order in his surroundings, but allowed
each cabinet officer to go his own gait,
without consulting the rest. Apparently Gallatin
shared this opinion, annoyed at his failure
to get Mr. Jefferson's support in efforts to control
waste in the navy.

All this grumbling was idle talk. For this
time, again, Mr. Jefferson's happy star shone
so brightly that cavil and criticism were unnoticed.
Little as Randolph was disposed to
bow before that star, he could not help himself
where such uninterrupted splendor dazzled all
his friends. Within a month after this letter
was written, the news arrived that Monroe had
bought New Orleans; had bought the whole

west bank of the Mississippi; had bought,
Heaven only knew what! the whole continent!
— excepting only West Florida, which had
been the chief object of his mission.

The effect of such extraordinary success was
instantaneous. Opposition vanished. The federalists
kept up a sharp fusillade of slander and
abuse, but lost ground every day, and Mr. Jefferson
stood at the flood-mark of his immense
popularity and power, while Randolph shared
in the prestige the administration had gained.
His influence in the House became irresistible,
and his temper more domineering than ever.
In his district he had no rival; in the House
he overrode resistance. The next session, of
1803-4, was a long series of personal and party
triumphs.

In order to give the new treaty immediate
effect, Congress was called for October 17,
1803. Macon was again chosen Speaker;
Randolph and Nicholson, at the head of the
Ways and Means, were reinforced by Cæsar A.
Rodney, who had defeated Bayard in Delaware.
The House plunged at once into the Louisiana
business. Although the federalists were very
imperfectly informed, they divined the two
weak points of the treaty: for France had sold
Louisiana without consulting Spain, although
she was pledged not to alienate it at all, and

could convey no good title without Spain's assent;
she had sold it, too, without defining its
boundaries, and on this account Spain became
again a party to the bargain. Spain had protested
against the sale as invalid; it was to be
expected that, even if she withdrew her protest
against the sale, she would insist on defining the
boundaries to suit herself. The federalists naturally
wanted to know what Spain had to say
on the subject, and they moved for the papers.
The republicans were determined not to gratify
them, and Randolph refused the papers.

This was treading very closely in federalist
footsteps, for few acts of the federalists had excited
more criticism than their refusal of papers
in the dispute over Jay's treaty. Randolph
rejected the federalist doctrine that the House
had nothing to do but to carry the treaty into
effect, yet he followed it so closely in practice
that his majority almost rebelled, and even
Nicholson could not be induced to go with him.
This, however, was not all. Only some four
months before, he had written to Gallatin himself,
the only consistent advocate of peace in
the whole government, that it would be the
worse for us if we had not a serious war. Like
many if not most southern men, he wanted a
war with Spain, and was pacified only by the
assurance that Florida would certainly be ours

without it. Mr. Jefferson and Mr. Madison,
Mr. Monroe and Mr. Livingston, had all written
or said, more or less privately, that under
the treaty a fair claim could be set up to West
Florida as having at one time been included in
Louisiana. There was hardly a shadow of substance
in this assumption, in itself an insult to
Spain, put forward without the sanction of
France, and calculated to embarrass relations
with both powers; yet Randolph, as though in
order to force the hands of government, boldly
stated this shadowy claim as an express title:
"We have not only obtained the command of
the mouth of the Mississippi, but of the Mobile,
with its widely extended branches, and there is
not now a single stream of note, rising within
the United States and falling into the Gulf of
Mexico, which is not entirely our own, the Apalachicola
excepted." On the strength of this
assertion, which he afterwards confessed to be
unfounded, he reported a bill which authorized
the President, whenever he should deem it
expedient, "to erect the shores, waters, and
inlets of the bay and river of Mobile, and
of the other rivers, creeks, inlets, and bays
emptying into the Gulf of Mexico east of the
said river Mobile," into a collection district of
the United States, with ports of entry and with
the necessary officers of revenue. This bill
passed through Congress and was signed by the
President, although it actually annexed by
statute the whole coast of Florida on the Gulf.
As for Spain, Randolph ignored her existence;
he considered her right of reclamation as not
worth notice. Nothing could have tended more
directly to bring on the war, which the act indirectly
authorized the President to begin.

Nevertheless, there was one point in this
Louisiana business which Randolph, of all living
men, was most certain to mark and expose.
Mr. Jefferson had instantly seen it, and had
lost no time in explaining it to his confidants.
What effect would the acquisition and the mode
of acquisition have upon states' rights and on
the Constitution? No one could doubt the
answer, for it was plain that the Louisiana
purchase, in every possible point of view, was
fatal to states' rights. From the ground which
Mr. Jefferson and his friends had consistently
taken, the Constitution was a carefully considered
compact between certain States, with a
view to union for certain defined objects; any
measure likely to alter the fixed relations and
the established balances of the Constitution
without an amendment required the consent of
all the parties; it might even be argued, as
Timothy Pickering actually did assert, that in
an extreme case a State had the right to treat

the Constitution as abrogated if the status were
altered against her single will. The Louisiana
purchase was such an extreme case. No one
doubted, and Randolph least of all, that it completely
changed the conditions of the constitutional
compact; rendering the nation, independent
of the States, master of an empire
immensely greater than the States themselves;
pledging the nation in effect to the admission
of indefinite new States; insuring an ultimate
transfer of power from the old original parties
in the compact to the new States, thus forced
on their society; and foreboding the destruction
of states' rights by securing a majority of
States, without traditions, history, or character,
the mere creatures of the general government,
thousands of miles from the old Union, inhabited
in 1803, so far as the territory was populated
at all, only by Frenchmen, Spaniards, or
Indians, and fitted by climate and conditions for
a people different from that of the Atlantic seaboard.
There was, indeed, no end to the list
of instances in which this purchase affected the
original Union. No federalist measure had ever
approached it in constitutional importance. The
whole list of questionable federalist precedents
was insignificant beside this one act.

By what authority was the Union to put on
this new character and to accept this destiny,

of which no man had an idea on July 3, 1803,
and which was an accomplished fact on the
next day? Who did it? It was the perfectly
independent act of President Jefferson and
twenty-six senators. This constitutional cataclysm
was effected by the treaty-making power.
Congress had not been otherwise consulted; the
States had not been called upon in any other
way to assent; the central government, not the
States, was party to the new contract.

Mr. Jefferson, in this far-reaching action,
scandalized even himself. "The Executive,"
said he, "has done an act beyond the Constitution.
The legislature must ratify it, and throw
themselves on the country for an act of indemnity."
He drew the necessary amendment to
the Constitution, consulting his Cabinet, and
getting official opinions; writing to his friends,
and soon receiving letters in reply. Shocked to
find that his party, perverted by the possession
of power, would not hear of amending the Constitution
or seeking indemnity, he supplicated
them to listen to him: "Our peculiar security
is in the possession of a written Constitution.
Let us not make it a blank paper by construction."
He said that this new rule of construction
abolished the Constitution. His supporters
persisted in their own contrary opinion, and in
the end he acquiesced.

Randolph was probably the most thoroughgoing
states'-rights man in the republican party,
for he had assailed Patrick Henry, and was
one day to stand by Calhoun on this favorite
creed. So extreme were his views that at a
later period he boasted of having never voted
for the admission of any new State into the
Union, not even for that of Ohio in the session
of 1802. Now that the federalists were out of
office, they too had become alive to the importance
of this principle, for, at bottom, Massachusetts
was as jealous as Virginia of any stretch
of power likely to weaken her influence. The
federalist leaders in Congress, accordingly, now
attacked the administration for exceeding its
powers, and Mr. Griswold of New York, in a
temperate and reasonable speech, took precisely
the ground which Mr. Jefferson had taken in
his private letters, that the annexation of Louisiana
and its inhabitants by treaty was a plain
violation of the Constitution. Randolph replied,
and the reply was a curious commentary
on his past and future political life. Not a
word fell from his lips which could be construed
into a states'-rights sentiment. He who
had raged with the violence of a wild animal
against the constitutional theories of Washington
and John Adams did not whisper a remonstrance
against this new assumption of

power, which, according to Mr. Jefferson, made
blank paper of the Constitution. He advanced
an astonishing argument to show that a right
to acquire territory must exist, because the national
boundaries in certain directions, under
the treaty of 1783, were disputed or doubtful,
and because the government had obtained territory
at Natchez and elsewhere without raising
the question. The federalists, he said, had
wanted to seize New Orleans by force, and
were therefore estopped from reasoning that it
could not be annexed by treaty. The conditions
of acquisition, moreover, being a part of
the price, were involved in the right to acquire;
for if the Constitution covered the right to purchase
territory, it covered also the price to be
paid for that territory, whether this included
the naturalization of the inhabitants or special
privileges to foreign nations. Acting doubtless
under the advice and instructions of Mr. Madison,
he denied that there was any unconstitutional
stipulation in the treaty; he even denied
that the pledge given in it, that "the inhabitants
of the ceded territory shall be incorporated
in the Union," meant that they should be incorporated
into the Union of States, or that the
further pledge, that they should be "admitted
as soon as possible, according to the principles
of the federal Constitution, to the enjoyment of
all the rights, advantages, and immunities of
citizens of the United States," meant that they
were to enjoy any political rights.

If this reasoning satisfied Randolph, it should
certainly have pleased those who had labored
for fifteen years, against the bitterest opposition
from Randolph and his friends, to strengthen
the national government; but how Mr. Randolph,
after making such an argument, could
ever again claim credit as a champion of states'
rights is a question which he alone could answer.
Under such rules of construction, according to
Mr. Jefferson's view, the President and two
thirds of the senators might abolish the States
themselves and make serfs of every Randolph
in Virginia, as indeed, some sixty years afterwards,
was done. This is no captious criticism.
Mr. Jefferson's language is emphatic. He declared
that this construction "would make our
powers boundless," and it did so. Randolph
himself acknowledged his mistake. "We were
forewarned!" he cried in 1822. "I for one,
although forewarned, was not forearmed. If I
had been, I have no hesitation in declaring that
I would have said to the imperial Dejanira of
modern times, `Take back your fatal present!' "
From this moment it became folly to deny that
the general government was the measure of its
own powers, for Randolph's own act had changed

theory into fact, and he could no more undo
what he had done than he could stop the earth
in its revolution.

Having swallowed without even a grimace
this enormous camel, Randolph next strained
at a gnat. A bill came down from the Senate
authorizing the President to take possession of
the new territory and to exercise all the powers
of government until Congress should make
provision on the subject. Of course the authority
thus conveyed was despotic, but so was
the purchase itself; circumstances allowed no
delay, and the President was properly responsible
for his trust, which would last only so long
as Congress permitted. Randolph, however,
was vigilant in his watchfulness against the
danger of executive encroachments. "If we
give this power out of our hands, it may be
irrevocable until Congress shall have made
legislative provision; that is, a single branch
of the government, the executive branch, with
a small minority of either House, may prevent
its resumption." Had he refused to confer this
dictatorial power at all, he would at least have
had a principle to support him, but he was
ready to approve despotic principles for four
months, till the session ended, though not a
moment longer. In the end he allowed the
President to govern Louisiana with the powers

of a King of Spain until a rebellion became imminent.

Of other measures, only two were of enough
interest to deserve notice. While the regular
business of the session went on, exacting
that attention which the chairman of Ways
and Means must always expect to give, two
subjects came before the House, which were
to decide Randolph's future career, — the impeachment
of Judge Chase and the Yazoo
claims. Thus far all had gone well with him;
his influence had steadily increased with every
year of his service; his control over the House
was great, for among the republicans who
obeyed his lead, there was not a single member
competent to dispute it. Already the federalists
dreaded this aristocratic democrat, who,
almost alone in his party, had the ability and
the courage to act upon his theories; and they
looked on with a genuine feeling of terror, as
though they saw in his strange and restless face
a threat of social disaster and civil anarchy,
when, with the whole power of the administration
behind him and a majority of two to one
in the House, he rose in his place to move the
impeachment of Judge Chase.