A Wilderness So Immense (52 page)

“The preceding views,” Jefferson cautioned Claiborne, “are such as should not be formally declared.”
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The Louisiana Purchase accelerated the shift in Jefferson’s policy. His draft amendment to the Constitution would have given Congress authority to take possession of Indian lands east of the Mississippi and exchange them “for those of white inhabitants on the West side thereof and above the latitude of 31 degrees.” If Congress acted “with the wisdom we have a right to expect,” the president wrote to Horatio Gates in his July 11 acknowledgment of the general’s praise for America’s diplomatic triumph, “they may make [Louisiana] the means of tempting all our Indians on the East side of the Mississippi to remove to the West,” thereby “condensing instead of scattering our population.” The sale of vacated Indian lands in the east, he suggested in a similar letter to his old revolutionary colleague John Dickinson, of Pennsylvania, might “pay the whole debt contracted before it comes due.”
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The Louisiana Purchase prompted an ominous transition in the government’s policies toward American Indians.
“Should any tribe be foolhardy enough to take up the hatchet,” Jefferson wrote with chilling prescience, “seizing the whole country of the tribe, and driving them across the Mississippi … would be an example to others, and a furtherance of our final consolidation.”
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Years later, when President Andrew Jackson offered the Choctaw Indians “a country beyond the Mississippi,” he described it as one of the “valuable objects which Mr. Jefferson promised you.”
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Americas barely visible first steps along the Trail of Tears were taken in the White House as Thomas Jefferson pondered the implications of the Louisiana Purchase.

Already reluctant to acknowledge openly his changing Indian policy,
Jefferson was suddenly forced to evade all the troubling constitutional implications of the Louisiana Purchase as well. On August 18 the president and his secretary of state opened urgent messages from Livingston and Monroe. Bonaparte was having second thoughts. The entire transaction might be in jeopardy. If Jefferson wanted Louisiana, “it is highly important that the Congress be immediately called and the treaty and conventions … be carried into immediate effect,” Monroe wrote.

This late-nineteenth-century lithograph, titled
Traité avec les Etats Unis,
presents a romanticized depiction of Bonaparte signing the Louisiana Purchase on May
22,
1803. In fact, when he ratified the treaty that Monroe, Livingston, and Barbé-Marbois had signed earlier in May, Bonaparte was preoccupied with the resumption of war against Great Britain and more interested in getting his money for Louisiana than in staging an elaborate ceremony
—
while the American commissioners were impatient to get the treaty on its way to the United States for prompt ratification in advance of the six month deadline.
(Courtesy Louisiana State Museum and Dr. and Mrs. E. Ralph Lupin)

After the treaty was ratified, Livingston wrote, Bonaparte began raising “a great deal of trouble with … an opinion prevailing that we have made too favorable a bargain.” Public opinion as we know it today was a minor problem. Weeks after signing the treaty, Bonaparte’s Senate on May 18 had agreed to create him Emperor Napoleon I, so his concern for appearances may have been heightened by the national plebiscite to confirm the title scheduled for November 6—but the real issue was money
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The first consul was looking for “the slightest pretence … to undo the work,” Livingston warned the president, unless he got ready cash for his war with Great Britain. “I hope the President will convene the Congress to create the funds,” Monroe reiterated, “since I repeat again a failure to comply strictly within the terms limited” could give Napoleon reason to break the treaty as Americans had seen him do with other nations. “I hope [to] God that nothing will prevent your immediate ratification and without altering a syllable of the terms,” Livingston wrote again on the 25th.

At this crucial moment in France, James Monroe saved the Louisiana Purchase—for he had two advantages over Livingston. Monroe knew the president’s intentions better than anyone in Paris (having conferred with Jefferson more recently than Livingston), and he could be uniquely confident that his closest personal and political friends (who just happened to be the president and secretary of state) would back him in a crisis. Napoleon wanted money, and Monroe had come to Europe with a $2 million appropriation from Congress for the purchase of New Orleans and
West Florida. He and Livingston had even mentioned these funds during early negotiations with Barbé-Marbois and Talleyrand—a detail that surely had not slipped Napoleon’s mind. In the absence of clear instructions from home, however, Livingston raised a reasonable objection. Did they have the authority (and was it prudent) to pay Napoleon a huge sum of money when he was threatening to back away from the whole deal?

The answer was not without risk, but in the circumstances, an ocean away from the president, James Monroe and only James Monroe could say yes. Through the offices of Barings and of Hope & Co. in London, where he had succeeded Rufus King at the Court of St. James’s, Monroe arranged an advance payment of $2 million “as a guaranty of the stipulations of the treaty.” Livingston co-signed the order, and that was that.
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Which American minister deserves greater credit for the Louisiana Purchase? President Jefferson anticipated that question in his letter to Horatio Gates. “I find our opposition is very willing to pluck feathers from Monroe,” he observed,

In short, Robert Livingston made the deal and James Monroe saved it.

After Monroe defused the crisis with Napoleon, however, Jefferson still faced the challenge of accommodating both his own constitutional scruples and the urgency of a prompt and unconditional ratification of the Louisiana Purchase Treaty. Livingston’s and Monroe’s warnings had reached him on Wednesday, August 17. On Thursday Jefferson abandoned his draft amendment and dispatched a series of letters that announced his strategy in clear and nearly identical terms. “I wrote you on the 12th instant on the subject of Louisiana” he advised Kentucky senator John Breckinridge, “and the constitutional provision which might be necessary for it,” but

“The less we say about the constitutional difficulties respecting Louisiana the better,” he told Madison that same day. “What is necessary for surmounting them must be done sub-silentio.” Responding to Attorney
General Levi Lincoln’s suggestions for his draft amendment two weeks later, Jefferson observed “that the less that is said about any constitutional difficulty, the better. … It will be desirable for Congress to do what is necessary,
in silence.”
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Early in September, in anticipation of the upcoming meeting of Congress, Jefferson outlined his thinking in somewhat greater detail to Virginia senator Wilson Cary Nicholas. The advice is vintage Jefferson, decisive and elusive. “Whatever Congress shall think it necessary to do,” Jefferson wrote,

The Constitution required a two-thirds vote for the ratification of a treaty (a provision inspired by the impasse over the Jay-Gardoqui negotiations of 1785–1786) and Jefferson had the votes in the Senate. There was nothing to be gained, and much to be lost, by spinning dangerous webs of constitutional theory. Federalist congressman John Rutledge, Jr., of South Carolina complained “that the measure cannot yet be even brought to the bar of argument.”
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The Eighth Congress met on Monday, October 17, 1803—and Jefferson’s Third Annual Message contained nothing about the constitutionality of the Louisiana Purchase. Two days later—time enough for the required three readings on three separate days—the Senate ratified the Louisiana Purchase Treaty by a vote of twenty-four to seven. (New Jersey senator Jonathan Dayton, who had visited New Orleans in June and objected to the French presence in North America, was the only Federalist who crossed the aisle.) “The Senate have taken less time to deliberate on this important treaty,” New Hampshire separatist William Plumer grumbled, “than they allowed themselves on the most trivial Indian contract.”
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Once the treaty had been pushed through the Senate, the necessary provisions for its implementation required action by both houses of Congress.
And it was here, despite Federalist complaints to the contrary, that the constitutional implications of the Louisiana Purchase
were
“brought to the bar of argument.”
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Party discipline enabled Jefferson to enforce a virtually silent vote in the Senate, but the members of the House of Representatives were more unruly and rambunctious. His floor managers enjoyed a three-to-one majority in the House, but on October 24, 1803, they carried their first procedural showdown by a margin of only two votes—fifty-nine to fifty-seven. Only five years earlier, Jefferson’s party had championed states’ rights and strict construction in the Virginia and Kentucky Resolutions of 1798. Now their words could have been scripted by the Hamiltonian Federalists. They invoked the inherent powers of a sovereign nation, granted by the once hated “necessary and proper” and “general welfare” clauses of the Constitution.
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“I cannot perceive,” said Caesar Augustus Rodney, “why within the fair meaning of this general provision is not included the power of increasing our territory, if necessary for the general welfare or common defence”—all too conveniently ignoring that just a few years earlier he and the Democratic-Republicans had readily perceived the dangers of such a broad construction. “Have we not vested in us,” the Republican leader from Delaware asked,

Such were the constitutional rationalizations, voiced by his own party, that Jefferson wanted to keep off the record, sub-silentio. The bulwark of American liberty, our written Constitution, was threatened by “those who consider the grant of the treaty making power as boundless,” Jefferson had warned. “If it is, then we have no Constitution.” When the good of the republic required action “beyond the Constitution,” perhaps Jefferson was right that in the long run it was better to act silently than to render the Constitution “a blank paper by construction.”
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Entwined with the debate about the constitutionality of the Louisiana Purchase was another vexing matter. Article III of the Louisiana Purchase Treaty promised that “the ceded territory shall be incorporated in the Union of the United States” and its inhabitants granted all the “rights, advantages and immunities of citizens of the United States.” Once the nation had taken possession of “this new, immense, unbounded world,”
what would be its relationship to the existing union? How would it be governed?
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Here, too, the question had both theoretical and practical dimensions. Anxious to keep the Atlantic states from being outnumbered, several Federalists suggested that Louisiana must remain a colony, its alien population unrepresented in Congress, its affairs administered from Washington. “We can obtain territory either by conquest or compact… without violating the Constitution,” Connecticut senator Uriah Tracy stated. “We can hold territory,” he said, “but to admit the inhabitants into the Union, to make citizens of them, and States, by treaty, we cannot constitutionally do.” Rather than see themselves outnumbered in an expanded
republic,
the Federalists were prepared, at least for the sake of argument, to hint at the creation of an
empire
—governing the west by force rather than consent, treating its inhabitants as subjects rather than citizens. “I have often thought,” wrote Gouverneur Morris, “that when we … acquire Canada and Louisiana it would be proper to govern them as provinces, and allow them no voice in our councils.”
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