To John C. Breckenridge Aug. 2, 1803

1803

BORDENTOWN,

MY DEAR FRIEND:

Not knowing your place of Residence in Kentucky I send this under cover to the President desiring him to fill up the direction.

I see by the public papers and the Proclamation for calling Congress, that the cession of Louisiana had been obtained. The papers state the purchase to be 11,250,000 dollars in the six per cents and 3,750,000 dollars to be paid to American claimants who have furnished supplies to France and the French Colonies and are yet unpaid, making on the whole 15,000,000 dollars.

I observe that the faction of the Feds who last Winter were for going to war to obtain possession of that country and who attached so much importance to it that no expense or risk ought to be spared to obtain it, have now altered their tone and say it is not worth having, and that we are better without it than with it. Thus much for their consistency. What follows is for your private consideration.

The second section of the 2d article of the Constitution says, the “President shall have power by and with the consent of the Senate to make Treaties provide two thirds of the Senators present concur.”

A question may be supposed to arise on the present case, which is, under what character is the cession to be considered and taken up in Congress, whether as a treaty, or in some other shape ? I go to examine this point.

Though the word, Treaty, as a Word, is unlimited in its meaning and application, it must be supposed to have a defined meaning in the constitution. It there means Treaties of alliance or of navigation and commerce-Things which require a more profound deliberation than common acts do, because they entail on the parties a future reciprocal responsibility and become afterwards a supreme law on each of the contracting countries which neither can annul. But the cession of Louisiana to the United States has none of these features in it. It is a sale and purchase. A sole act which when finished, the parties have no more to do with each other than other buyers and sellers have. It has no future reciprocal consequences (which is one of the marked characters of a Treaty) annexed to it; and the idea of its becoming a supreme law to the parties reciprocally (which is another of the characters of a Treaty) is inapplicable in the present case. There remains nothing for such a law to act upon.

I love the restriction in the Constitution which takes from the Executive the power of making treaties of his own will: and also the clause which requires the consent of two thirds of the Senators, because we cannot be too cautious in involving and entangling ourselves with foreign powers; but I have an equal objection against extending the same power to the senate in cases to which it is not strictly and constitutionally applicable, because it is giving a nullifying power to a minority. Treaties, as already observed, are to have future consequences and whilst they remain, remain always in execution externally as well as internally, and therefore it is better to run the risk of losing a good treaty for the want of two thirds of the senate than be exposed to the danger of ratifying a bad one by a small majority. But in the present case no operation is to follow but what acts itself within our own Territory and under our own laws. We are the sole power concerned after the cession is accepted and the money paid, and therefore the cession is not a Treaty in the constitutional meaning of the word subject to be rejected by a minority in the senate.

The question whether the cession shall be accepted and the bargain closed by a grant of money for the purpose (which I take to be the sole question) is a case equally open to both houses of congress, and if there is any distinction of formal right, it ought according to the constitution, as a money transaction, to begin in the house of Representatives.

I suggest these matters that the Senate may not be taken unawares, for I think it not improbable that some Fed, who intends to negative the cession, will move to take it up as if it were a Treaty of Alliance or of Navigation and Commerce.

The object here is an increase of territory for a valuable consideration. It is altogether a home concern-a matter of domestic policy. The only real ratification is the payment of the money, and as all verbal ratification without this goes for nothing, it would be a waste of time and expense to debate on the verbal ratification distinct from the money ratification. The shortest way, as it appears to me, would be to appoint a committee to bring in a report on the President’s Message, and for that committee to report a bill for the payment of the money. The French Government, as the seller of the property, will not consider anything ratification but the payment of the money contracted for.

There is also another point, necessary to be aware of, which is, to accept it in toto. Any alteration or modification in it, or annexed as a condition is so far fatal, that it puts it in the power of the other party to reject the whole and propose new Terms. There can be no such thing as ratifying in part, or with a condition annexed to it and the ratification to be binding. It is still a continuance of the negotiation.

It ought to be presumed that the American ministers have done to the best of their power and procured the best possible terms, and that being immediately on the spot with the other party they were better Judges of the whole, and of what could, or could not be done, than any person at this distance, and unacquainted with many of the circumstances of the case, can possibly be.

If a treaty, a contract, or a cession be good upon the whole, it is ill policy to hazard the whole, by an experiment to get some trifle in it altered. The right way of proceeding in such case is to make sure of the whole by ratifying it, and then instruct the minister to propose a clause to be added to the Instrument to obtain the amendment or alteration wished for. This was the method Congress took with respect to the Treaty of Commerce with France in 1778. Congress ratified the whole and proposed two new articles which were agreed to by France and added to the Treaty.

There is according to newspaper account an article which admits French and Spanish vessels on the same terms as American vessels. But this does not make it a commercial Treaty. It is only one of the Items in the payment: and it has this advantage, that it joins Spain with France in making the cession and is an encouragement to commerce and new settlers.

With respect to the purchase, admitting it to be 15 million dollars, it is an advantageous purchase. The revenue alone purchased as an annuity or rent roll is worth more-at present I suppose the revenue will pay five per cent for the purchase money.

I know not if these observations will be of any use to you. I am in a retired village and out of the way of hearing the talk of the great world. But I see that the Feds, at least some of them, are changing their tone and now reprobating the acquisition of Louisiana; and the only way they can take to lose the affair will be to take it up as they would a Treaty of Commerce and annul it by a Minority; or entangle it with some condition that will render the ratification of no effect.

I believe in this state (Jersey) we shall have a majority at the next election. We gain some ground and lose none anywhere. I have half a disposition to visit the Western World next spring and go on to New Orleans. They are a new people and unacquainted with the principles of representative government and I think I could do some good among them.

As the stage-boat which was to take this letter to the Post office does not depart till to-morrow, I amuse myself with continuing the subject after I had intended to close it.

I know little and can learn but little of the extent and present population of Louisiana. After the cession be completed and the territory annexed to the United States it will, I suppose, be formed into states, one, at least, to begin with. The people, as I have said, are new to us and we to them and a great deal will depend on a right beginning. As they have been transferred backward and forward several times from one European Government to another it is natural to conclude they have no fixed prejudices with respect to foreign attachments, and this puts them in a fit disposition for their new condition. The established religion is roman; but in what state it is as to exterior ceremonies (such as processions and celebrations), I know not. Had the cession to France continued with her, religion I suppose would have been put on the same footing as it is in that country, and there no ceremonial of religion can appear on the streets or highways; and the same regulation is particularly necessary now or there will soon be quarrells and tumults between the old settlers and the new. The Yankees will not move out of the road for a little wooden Jesus stuck on a stick and carried in procession nor kneel in the dirt to a wooden Virgin Mary. As we do not govern the territory as provinces but incorporated as states, religion there must be on the same footing it is here, and Catholics have the same rights as Catholics have with us and no others. As to political condition the Idea proper to be held out is, that we have neither conquered them, nor bought them, but formed a Union with them and they become in consequence of that union a part of the national sovereignty.

The present Inhabitants and their descendants will be a majority for some time, but new emigrations from the old states and from Europe, and intermarriages, will soon change the first face of things, and it is necessary to have this in mind when the first measures shall be taken. Everything done as an expedient grows worse every day, for in proportion as the mind grows up to the full standard of sight it disclaims the expedient. America had nearly been ruined by expedients in the first stages of the revolution, and perhaps would have been so, had not Common Sense broken the charm and the Declaration of Independence sent it into banishment.

Yours in friendship,

THOMAS PAINE.

Remember me in the circle of your friends.