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A Constitutional History of the United States
Chapter XXII - The Annexation of Louisiana
by McLaughlin, Andrew C.

In the early nineteenth century the most important event in American history, an event important too in the world's history, was the annexation of Louisiana — a vast territory which Napoleon with a magnificent gesture threw into the laps of the American envoys at Paris, receiving in return fifteen million dollars that his coffers might be filled for fighting the obstinancy of Britain. However much Napoleon might still cherish a grandiose scheme for a colonial empire in the Americas, he had surrendered a region which added to the United States an area larger than the land bounded by the treaty of 1783. For a time the accession gave excuse for further bitterness in the hearts of New England malcontents; but its great and lasting effect was to build up and strengthen the young republic. The central valley of the continent, with all its potential riches, a great geographical unit, destined to be the heart of a powerful nation, was brought under the American flag.[1] The old Mississippi question which had vexed the country from the earliest days of the Revolution was to vex it no more; almost unlimited space for expansion under national protection was furnished; and the spirit of nationalism, the feeling and sentiment of strength, vitality, and destiny, were given new and dominant energy.

This extension of the American domain was brought about by the Republican party under the leadership of Thomas Jefferson. If Jefferson was a localist, intent upon saving the states from the power of an overtowering national government, his purpose was badly damaged when he reached out his hand for the treaty which Livingston and Monroe had signed at Paris. Of course states' rights were not affected as a mere theory; but the extension of the national domain tended to develop national interests and to add to national responsibilities. Jefferson was not, it is true, at any time anything less than an American; his advocacy of states' rights was primarily in defense of individual liberty; his affections and hopes extended far beyond the confines of his native state.

Jefferson had been vigorously opposed to a free and easy interpretation of the Constitution. When faced by imperative necessity, he put his constitutional scruples aside. The matter of Jefferson's inconsistency, because of his willingness to annex territory when no such power appeared to be given by the Constitution, does not need many words of sardonic comment. He was not alone in his inconsistency; in fact, the leaders of neither party appeared to honor consistency as a factor of statesmanship. The Federalist leaders showed no marked inconsistency with the inner spirit of their party — instinctively it was a party believing in the right of superiors to rule; it did not shrink from imperialism — , but they of course objected to the treaty, partly no doubt because they were faithfully carrying out the doctrine that the duty of a party of opposition is to oppose.

The constitutional difficulties gave Jefferson anxiety and he thought it advisable to amend the Constitution, though that might have granted authority after the deed was done. "I had rather", he wrote, "ask an enlargement of power from the nation, where it is found necessary, than to assume it by a construction which would make our powers boundless. Our peculiar security is in possession of a written Constitution. Let us not make it a blank paper by construction." [2] His proposals, however, met with cold reception even from those who had been the warmest exponents of strict construction and states' rights. He drafted constitutional amendments and submitted them to members of his cabinet.[3] Gallatin, to whom one copy was sent, and who had already expressed his opinion that "the United States as a nation have an inherent right to acquire territory",[4] barely acknowledged its receipt and appears to have made no comments. From other quarters the worried President received slight help or consolation. No way out of the trouble was open to him but to acquiesce, "confiding, that the good sense of our country will correct the evil of construction when it shall produce ill effects." [5] He alone and unaided could not amend the Constitution, nor, in light of the emergency — for Napoleon might not forever await ratification of the treaty and payment of the price — was it wise to linger and delay. His party was against him, and a handful of Federalists were eager for the fray. But with the annexation of Louisiana, strict, narrow, construction was badly damaged; it might be again dragged to the light for party or sectional service; but for the time being it was useless in the hands of those who had begotten it.

The debate over measures for carrying the treaty into effect brought forth Federalist opposition and Republican support in both houses of Congress. The Federalist party did not haggle over the fact of annexation but dwelt chiefly upon certain provisions of the treaty and their implications. The framers of the Constitution, declared Gaylord Griswold of New York, "carried their ideas to the time when there might be an extended population; but they did not carry them forward to the time when an addition might be made to the Union of a territory equal to the whole United States, which additional territory might overbalance the existing territory, and thereby the rights of the present citizens of the United States be swallowed up and lost." [6] Here was the old fear lest the east be shorn of its powers; and yet the consequences of this extensive scope of the treaty-making power might have caused anyone, if he looked into the future, to hesitate and indulge in misgivings. The Federalist position, however, was most clearly presented by Roger Griswold of Connecticut: "A new territory and new subjects may undoubtedly be obtained by conquest and by purchase; but neither the conquest nor the purchase can incorporate them into the Union. They must remain in the condition of colonies, and be governed accordingly." [7]

The opposition made no serious impression on the House; the resolutions for establishing a provisional government and paying France were referred to committees. On the critical resolution, that provision ought to be made for carrying the treaty into effect, the vote was ninety to twenty-five,[8] two-thirds of the minority being from New England.

In the Senate a few members did not hesitate to attack the constitutionality of the treaty; it was not however the validity of annexation which they denied, but the right to incorporate people, and to absorb them into the United States. No such act could be effected, declared Pickering of Massachusetts, without an amendment of the Constitution which should be made not by the concurrence of two-thirds of both houses and ratification by three-fourths of the states, but by all the members of the union, "in like manner as in a commercial house, the consent of each member would be necessary to admit a new partner into the company...." [9] He did not doubt the right to acquire territory, either by purchase or by conquest, and to govern the territory so acquired as a dependent province.[10] With these doctrines, Tracy of Connecticut substantially agreed.[11] Extreme Federalism, then, had reduced the Constitution to a partnership in which the original influence and authority of each member could not be diminished without its express consent.

And what a change had swept over the advocates of states' rights! The two senators from Virginia, John Taylor [12] and Wilson Gary Nicholas, as well as Senator Breckenridge of Kentucky, all of whom had been prominent advocates of the resolutions of 1798, now looked with sorrow upon the Federalist doctrines of national incompetency. They appeared to have no misgivings; they were not inclined to indulge, as did their leader in the White House, in lamentation over the necessity of assuming powers.

Both parties agreed on one point: foreign territory could be annexed. But the Federalist spokesmen looked with favor upon a union which would narrowly guard the balanced powers of the states — parties to the constitutional compact — , while the Republicans scorned meagerly technical views of the constitutional system and of national authority. The Federalists granted the possibility of an empire over a vast area and over a dependent people; the Republicans wanted Louisiana and gave their sanction not only to the annexation but to the ultimate absorption of people into the United States, a step which made certain the creation of a new union and was sure to cast reproach upon any doctrine of state sovereignty, as far as that doctrine rested for support upon the sovereignty of the original thirteen states when they ratified the federal compact.[13]

While the New England opposition was fostered by provincialism and by partisanship, we cannot look upon the Federalist argument itself as only a piece of intellectual perversity. Certainly men might well stop at least to question the advisability of incorporation of an extensive area and its people into the United States. The extent of the treaty-making power as exemplified by the treaty raised a question of much perplexity; the interpretation of the clause concerning incorporation presented difficulties. The impressive fact is that (whether the impulse sprang merely from national land-hunger or not) nationalism had so far developed by 1803 that a treaty doubling the area of the United States met with little opposition — a treaty promising the people of the annexed region admission as soon as possible into the advantages and immunities of citizens of the United States. Impressive too is the Federalist doctrine of empire. Neither party could look upon the United States as a mere collection of impotent sovereignties.[14]

[1] The Mississippi River, the central line of a magnificent valley, flowed henceforth through American territory. If we look for the bonds that held the American states and American sections together, we may find the strongest bond, not to have been laws and courts, but water, the river system of the Mississippi valley. When Mr. Russell, the correspondent of the London Times, was introduced to Lincoln, the President put out his hand and said, "Mr. Russell, I am very glad to make your acquaintance, and to see you in this country. The London Times is one of the greatest powers in the world, — in fact, I don't know anything which has much more power, — unless perhaps it's the Mississippi." Quoted in Abraham Lincoln Association Papers (1931), p. 21.

[2] Jefferson to Wilson Gary Nicholas, September 7, 1803, in Jefferson, Works (federal ed.), X, p. 10 note.

[3] One was drawn in July and the other in August.

[4] Gallatin to Jefferson, January 13, 1803, in Albert Gallatin, Writings (Henry Adams, ed.), I, p. 113.

[5] Jefferson to Wilson Gary Nicholas, September 7, 1803, in Jefferson, Works (federal ed.), X, p. 11 note.

[6] Annals of Congress, 8 Cong., 1 sess., col. 433. The third article of the treaty read: "The inhabitants of the ceded territory shall be incorporated in the Union of the United States, and 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; and in the mean time they shall be maintained and protected in the free enjoyment of their liberty, property, and the religion which they profess."

[7] Ibid., col. 463. Griswold also objected to great powers in the hands of the President and the Senate. "It is, in my opinion, scarcely possible for any gentleman on this floor to advance an opinion that the President and Senate may add to the members of the Union by treaty whenever they please, or, in the words of this treaty, may 'incorporate in the union of the United States' a foreign nation who, from interest or ambition, may wish to become a member of our Government. Such a power would be directly repugnant to the original compact between the States, and a violation of the principles on which that compact was formed." Ibid., col. 461. Concerning the significance of incorporation, see Downes v. Bidwell, 182 U. S. 244 (1901).

[8] Annals of Congress, 8 Cong., 1 sess., cols. 488-489.

[9] Ibid., col. 45.

[10] Ibid.

[11] Ibid., cols. 55-58.

[12] See especially, Ibid., col. 50. Taylor's position is significant because of the nature of his writings and theories at a later date.

[13] I do not understand that the Republican leaders plainly committed themselves to an interpretation of the treaty which would involve the right of the treaty-making power to provide for admission of annexed territory into the union as a state without congressional action.

[14] Jefferson doubted at this time whether new states could be formed out of annexed territory. "But when I consider that the limits of the U S are precisely fixed by the treaty of 1783, that the Constitution expressly declares itself to be made for the U S, I cannot help believing the intention was to permit Congress to admit into the Union new States, which should be formed out of the territory for which, & under whose authority alone, they were then acting." Jefferson to Wilson Cary Nicholas, September 7, 1803, in Jefferson, Works (federal ed.), X, p. 10 note.


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