While the Capitol had not yet been completed, the wings likely would be ready for the two houses’ use at the next congressional session. The various executive departments’ buildings were in many cases entirely insufficient, so that some of the Executive Branch found itself “subjected to the necessity of obtaining [space] in private buildings at some distance from the head of the department.” Congress ought to solve this problem too. So too ought it to provide “convenient accommodation” for the heads of departments and the attorney general. In their waning days the few surviving veterans of the Revolution who were “reduced to indigence and even to real distress” had a moral claim to the public’s aid as well.

  Monroe saved the best for last. As tariffs and tonnage taxes, in combination with revenue from sale of public lands, would cover all of the government’s expenses, including the navy’s shipbuilding program, he called for Congress to repeal the internal taxes. Imposing taxes when necessary was an important duty, he said, and so was their repeal “when it may be done with perfect safety.”

  President Monroe did not say, though doubtless everyone realized, that Thomas Jefferson and the Republican majorities elected in 1800 had eliminated the internal taxes too—nor did he need to note that for the first Republican treasury secretary, Albert Gallatin, shipbuilding was the paradigmatic Federalist program that had to go. Unlike the Bourbons of 1815 and after, then, Republicans by 1817 had learned at least a thing or two. What Monroe did note about his predecessors’ policy was that when they imposed internal taxes, “the demand was imperious,” and he hastened to add that unlike Federalists’ taxes, they had “been sustained [by the people] with exemplary fidelity.” If a new need should arise, “should any future emergency occur,” he would “be not less prompt to suggest such measures and burdens as may then be requisite and proper.”

  Opinion about that last matter was decidedly mixed. Representative Hugh Nelson, R-VA, for example, said the address would be welcomed on account of its recommendation that the internal taxes be repealed. Senator Jeremiah Mason, F-NH, on the other hand, called this idea “what I least expected and dislike most.… This is the only tax which tends to an equalization of burdens between the sea-board and interior states.”4

  This was not the only controversy spurred by what to that point was the longest of Annual Messages. Former president James Madison wrote Monroe a week later with interesting observations.5 After holding that “[i]t is a fine landscape of our situation, and can not fail to give pleasure at home, and command respect abroad” and observing that “[t]he recommendation of the repeal of taxes is happily shaped,” he came to his problems with it. First, he could not tell whether “the proposed suppression of the establishment at Amelia Island” was intended to be “effected by a military force employed out of our territorial claims.” More intriguingly, he took gentle exception to Monroe’s “principle on which the right of a civilized people is asserted over the lands of a savage one.” Here legal layman Madison had the better of his legal argument with former attorney Monroe. European law had from the beginning of the Age of Discovery held that while the first European power to discover part of the New World thereby acquired a claim on it good against all other European nations, the local aborigines (if any) retained their rights in that land until/unless they alienated it to the discovering power.6 Unfortunately Madison did not suggest to his successor that he somehow correct the public record, thus possibly preventing fellow citizens from being misled into acting on Monroe’s mistaken principle. (Perhaps the oddest thing about this exchange is that at virtually the same time, Monroe wrote to Lieutenant General Andrew Jackson explaining the law of Indian land rights exactly as Madison had tried to persuade him to understand it.)7

  Monroe wrote back “correcting” Madison. “The history of our settlements, from the first discovery of this country, is a practical illustration, of the doctrine containd in the message respecting Indian titles,” the president insisted, “and I think it is supported by natural law. My candid opinion is that the more we act on it, taking the Indians under our protection, compelling them to cultivate the earth, the better it will be for them.” Here Monroe elided the principle of discovery that actually underlay the law of such questions. We have no evidence concerning Madison’s response to this argument.8

  Madison also said, “You say nothing, I observe, of remodelling the Judiciary. Perhaps you may have in reserve a special message, or may think it best to let the subject originate in Congress; or it may not appear to you in the light it does to me. I have long thought a systematic change in that department proper, and should have pressed it more when in office, but for the circumstance of its involving a personal accommodation.…” Still, “The extension given to the Judiciary sphere by new States & territories, will require at least some further provisions of law.” (The matter of personal delicacy at which Madison hinted was that Justice Thomas Todd was his sister-in-law’s husband, and thus any reform of federal judges’ compensation, elimination of the requirement that justices ride circuit, establishment of a new circuit or circuits, or other legal change benefiting federal judges during his administration might have seemed inappropriately self-interested—and in fact Justice Todd had recently brought this urgent matter to Madison’s attention.)9 Monroe answered, “I think with you, that the Judiciary should be arrangd, in the manner suggested in your message, & that a new dept. should be instituted, & should have stated it, but was advisd, not to load the message with too many subjects. I shall see what is done, in the progress of the session,” he concluded, “& how far, a special interference, may be useful.”

  Monroe closed his communication to Madison with a thorny problem concerning Congress’s power to fund roads. “The subject of an amendment to the Constitution, as brought before Congress, in the message, is opposed by a report from Mr. Tucker [a representative from Virginia].… I understand that it criticises with severity, the doctrine containd in the message, & endeavours to invalidate it, by the measures already sanctiond by Mr. Jefferson yourself, & in part by me, in ordering a fatigue party, to improve the road between Plattsburg & Hamilton.” Madison must have winced in anticipation of the kicker: “Be so good as give me in detail the reasons which justify the Cumberland road[,] which presents the greatest difficulty.”10

  Madison had already seen the report, as Tucker had sent him a copy.11 Deferential to Madison in constitutional matters, Tucker said this issue “has fallen to my duty to draw up,” excused the essay’s brevity, and guessed that and “the pressure of circumstances” might have resulted in error. Since “I am indebted to yourself for every principle of Constitutional law which in early life was impressed upon my mind,” he continued, “I am anxious to avail myself of an occasion of acknowledging the great advantages I have derived in common with the rest of my Countrymen from your profound Speculations on the Charter of the Government.” He hoped his comments on Madison and his administration would not strike Madison as “unfair.”

  While Madison took no personal exception to Tucker’s pamphlet, he immediately rejected its argument tout court.12 His respect for the House’s right and duty to investigate such questions and consciousness of his own fallibility kept him from viewing even “the most rigid and critical examination of the particular question” at hand “with any other feeling, than a solicitude for … truth and the public good.” “I am not unaware,” he invoked his authority as a Framer and Ratifier of the Constitution, “that my belief, not to say knowledge of the views of those who proposed the Constitution, and what is of more importance, my deep impression of the views of those who bestowed on it the stamp of authority, may influence my interpretation of the Instrument.” Still, “those who consult the Instrument without a danger of that bias [might] be exposed to an equal one, in the anxiety to find in its text an authority for a particular measure of great apparent utility.” He yet hoped Tucker would “be assured that altho’ I can not concur in the latitude of Construction taken in the report, or in the principle that the consent of States even of a single one can enlarge the jurisdiction of the General Govt: or in the force & extent allowed to precedents & analogies introduced into the report,” yet that did not lessen his “esteem for the talents” of Tucker, its author. Rather he was grateful for the gift of the report and the kindness of Tucker’s cover letter. What Madison was saying, then, was that though knowledge of the framing of the Constitution could be an important aid in proper interpretation, “what is of more importance” is knowledge of the ratifiers’ views, and “anxiety to find in [the Constitution’s] text an authority for a particular measure of great apparent utility” is apt to lead people to mistaken interpretations. Besides, one state’s or several states’ readings could not change the Constitution’s meaning, and “precedents and analogies” must be handled with extreme care where the question was whether the Federal Government had powers under the Constitution not previously recognized. Here, nearly three years after his Bonus Bill Veto Message, this prominent actor in the making of the United States Constitution underscored his argument in that famous message.

  Four days later Madison addressed Monroe’s claims.13 Beginning by saying he understood that the crush of work would not leave the president time to reply to Madison’s letters simply to be polite, and therefore he hoped Monroe would not do so, Madison got right to the point. First he said his question about the Amelia Island expedition had related only to the Executive’s power in that connection. Next he clarified his objection to Monroe’s statement about Indian lands. Madison had based his assertion on “the principle which has limited the claim of the U.S. to a right of pre-emption.” Besides, Madison observed,

  an unqualified right of a civilized people to land used by people in the Hunter State, on the principle that the Earth was intended for those who would make it most conducive to the sustenance and increase of the human race, might imply a right in a people cultivating it with the spade, to say to one using the plow, either adopt our mode, or let us substitute it ourselves. It might also not be easy to repell the claims of those without land, in other Countries, if not in our own, to vacant lands within the U.S. likely to remain for a long period of years, unproductive of human food.

  In relation to the still more ticklish issue of federal funding of the Cumberland Road, Madison noted that it had occurred during the Jefferson administration, that it was “as far as I recollect not then brought to my particular attention,” that he did not know on what grounds Jefferson or Congress had adjudged it constitutional, and that “I suspect that the question of Constitutionality was but slightly if at all examined by the former, and that the Executive assent was doubtingly or hastily given.” Once it had “become a law, and being a measure of singular utility, additional appropriations took place of course under the same administration: and with the accumulated impulse thence derived, were continued under the succeeding one, with less of critical investigation perhaps than was due to the case.” Anyway, he continued, the Cumberland Road funding differed from what Congress was now considering “by the circumstances 1. that the road was undertaken especially for the accommodation of a portion of the Country, with respect to which Congress have a general power not applicable to other portions. 2. that the funds appropriated and which alone have been applied, were also under a general power of Congress, not applicable to other funds.”

  The former president continued that whatever one might think of the Cumberland Road project, “the case is evidently without the weight allowed to that of the National Bank, which had been often a subject of solemn discussion and had recd. reiterated and deliberate sanctions of every branch of the Govt: to all which had been superadded many positive concurrencies of the State Govts and implied ones by the people at large.” “As to the case of post roads and military roads; instead of implying a general power to make roads, the constitutionality of them must be tested by the bona fide object of the particular roads. The Post cannot travel, nor troops march without a road. If the necessary roads can not be found, they must of course be provided.” Not only did “unwarrantable latitude of construction” threaten “the genuine sense of the Constitution,” but so did precedents established by congressional or presidential “inadvertence,” perhaps “in the midst of a group scarcely admitting perusal, and under a weariness of mind as little admitting a vigilant attention.” Another factor threatening to lead to establishment of mistaken constitutional precedents was “the usefulness & popularity of measures”—which to Madison accounted for Congress’s passage of the Bonus Bill he had had to veto.

  Historian David P. Currie summarizes Madison’s overall argument here as having three parts: that “[t]he Cumberland Road was an isolated, ill-considered mistake that ought not to be repeated”; that “[i]t was justified, if at all, by Congress’s plenary powers over the territory and property of the United States”; and that “Congress did have authority to build military and post roads—but … not a general system of commercial highways when the country was at peace.” Currie considers the first and last of these points convincing, but says of the other that “even if the [Territories Clause] power to adopt regulations ‘respecting’ the territories included the right to build roads elsewhere to reach them—a concession with somewhat frightening implications—Ohio had ceased to be a territory before the road was begun.” Most interesting, perhaps, is Currie’s observation that the point about military and post roads indicates Madison “had not been entirely candid in failing to discuss the postal and war powers when he vetoed the Bonus Bill”—though one might explain this omission from a veto message issued on Madison’s last day in office too as resulting from the press of business.14

  55

  Secretary Adams met on December 31st with a Mme. Plantou, who had come to show him her allegorical painting of the Peace of Ghent. Unhappily Adams wrote in his diary that “she laid me under a contribution.” He continued:

  It was a bombastic and foolish thing, but Madame Plantou gives herself out for a native of Philadelphia, and is a Painter.… There is an America in a triumphal Car, and a Britannia, upon her knees, submitting to terms of Peace dictated by Minerva and Hercules—Oh! the voracious maw, and the bloated visage of national vanity—If it were true that we had vanquished or humbled Britannia it would be base to exult over her, but when it is so notorious that the issue of our late War with her was at best a drawn game, there is nothing but the most egregious National vanity that can turn it to a triumph.1

  On January 5th, after Mrs. Adams was bled by a doctor, Adams went to “the President’s” and found that both Crowninshield and Calhoun had brought dispatches concerning the surrender of Amelia Island. Monroe called a Cabinet meeting for the next day to discuss it.2

  Sir Gregor McGregor and his one hundred fifty men of various origins had taken the island on June 29, 1817. Essentially pirates, they immediately began attacking ships that ventured too near the Florida coast. McGregor’s term “blockade,” which he intended to indicate he would target only Spanish vessels, fooled no one. By the fall Spanish attention had been completely diverted by revolutions elsewhere in the New World, even as “brigands and pirates flocked to Amelia Island, much to Gregor McGregor’s dismay.” He left on September 4th, soon to be succeeded by Luis Aury, whose goals were reflective more of Venezuelan patriotism than of raw avarice.3 America’s problem with Amelia Island related to the pirates’ failure to draw the line between attacks on enemy Spaniards and “freebooting against the commerce of neutral nations, including that of the United States.”4

  In the Cabinet meeting of January 6, 1818, the seizure of Amelia Island—already accomplished—was discussed. Monroe had ordered that no Spanish property should be allowed to be taken by the island’s occupants, which left the complication of what to do with the “two or four Cannon” that had thus fallen into American possession. “The President,” said Adams, “is apparently determined, to withdraw the troops from the Island, but he asks the opinions of the Cabinet.…” Crawford, Crowninshield, and Wirt agreed with Monroe that the troops ought to be withdrawn, while Adams and Calhoun thought the island ought to be held for use as a bargaining chip with Spain. Adams’s diary entry for the day closes with astute, characteristically unsparing, appraisals of his colleagues’ personalities. “If I understand the characters of my Colleagues,” he says, “Crawford’s point d’honneur is to differ from me, and to find no weight in any reason assigned by me. Wirt and Crowninshield will always be of the President’s opinion—Calhoun thinks for himself, independently of all the rest, with sound judgment, quick discrimination and keen observation. He supports his opinions too with powerful eloquence.” Adams did indeed “understand the characters of [his] Colleagues.”5

  After the meeting Monroe drafted a special message to Congress.6 Though Monroe had to make clear that he had not exceeded the Executive’s unilateral authority in foreign relations, it reads as a kind of press release for the perusal of the Spanish authorities. The enterprises at Amelia Island and “Galveztown” had been suppressed, he said. McGregor’s announced purpose, particularly as it affected “that part of West Florida which is incorporated into the State of Louisiana,” besides the occupants’ “conduct while in the possession of the island making it instrumental to every species of contraband, and, in regard to slaves, of the most odious and dangerous character,” meant the U.S. Government had to intervene. As the authorities in those outposts had purported to be sovereign, Monroe had to decide whether to extend to them “that neutrality which the United States had proclaimed, and … observed in favor of the colonies of Spain” which “had declared their independence and were affording strong proof of their ability to maintain it” or to suppress them.