The United States of America, Part 1: 1783-1830

by Edwin Erle Sparks

To pronounce this the paramount action of the century in Union-making, one need only think of the precedent for acquiring new territory thus formed and which has been followed in no less than seven instances and confirmed by a decision of the Supreme Court. It seems strange that the framers of the Constitution did not foresee and provide for such an emergency. Perhaps the omission was due to the intuitive feeling that no nation in all history had hesitated to enlarge its domain when advantage offered or necessity demanded. Necessity was here the moving principle and it scattered to the winds party objection to using the implied powers, and forced the friends of government to take refuge in the preamble to the Constitution and in "all laws which are just and necessary," a position from which they had tried in vain to drive the Hamiltonians a few years before.

It was ordained by fate that the Jeffersonians should father a policy of national expansion which covered every addition of territory to that of Alaska. By nature they were opposed to giving such advantage to the central power. After the acquisition had been made, Jefferson was loud in his declaration that he would not "give one inch of the waters of the Mississippi to any nation"; but neither by nature nor party was he an expansionist. He would have been satisfied with the acquisition of the east bank of the river, including New Orleans. During the negotiations he confessed his doubts of success. He thought trade would soon make Natchez a second New Orleans. Hamilton, on the contrary, was an expansionist by principle and party. Three years before the purchase of Louisiana he said of that country and the Floridas, "I have been long in the habit of considering the acquisition of those countries as essential to the permanency of the Union, which I consider as very important to the welfare of the whole."

Holding such aggressive opinions, Hamilton and his party, had they been in control during this long period, might have rashly entered upon an offensive policy which would have precipitated frequent wars and have endangered the Republic before its home strength had been developed. Looking to the happiness of the mass rather than the individual and devoid of scruples about the divine rights of man, the Federalists would not have hesitated to hold as subjects the inhabitants of acquired territory longer than the principle of self-government, for which a republic stands, would have permitted. On the other hand, by the time the "porcupine policy" of dealing with other nations on territorial questions, as the Federalists contemptuously called the early attitude of their opponents, had grown gradually into an aggressive policy, the Republic had become sufficiently strong to maintain whatever position might be taken.

It was not alone fear that the ambitious Napoleon might obtain a foothold in neighbouring territory which moved the Jeffersonians to this inconsistent step. Neither was the action due entirely to fear lest Britain might obtain possession of it in the renewed war with France. The law of compulsion showed in other particulars. The advance of the American pioneers across the continent could not be checked. They had compelled the Atlantic-coast majority into making the Pinckney Treaty which opened the mouth of the Mississippi in 1795. Remembrance of their threatened secession compelled Jefferson to try to quiet their fears freshly aroused by the transfer of Louisiana to France, and the closing of the Mississippi. Ex-Governor Monroe, of Virginia, was chosen to assist Livingston, because his former executive position had put him in touch with the Western people.

In several ways Louisiana played havoc with strict-construction theories. So regardful of the rights of the individual had the Jeffersonians been in the early days that many had hesitated about creating Territories in the western vacant lands, lest the people migrating to them should not enjoy equal rights with their fellows in the States. When the inhabitants of the Mississippi Territory in 1799 petitioned for promotion to the second grade of territorial government, Jefferson denounced the first grade, which had been given to them by Congress a few years before, as "a despotic oligarchy without a rational object." Within five years, he and his party were facing the problem of establishing a status for some forty thousand white people, whom the United States had acquired with the Louisiana country. The problem was whether to violate the doctrine of the rights of man as well as the treaty and hold these people perpetually as colonists, or, by providing for their erection into States, further imperil the sectional balance of power, further endanger the sovereignty of the individual States, and contribute to the growing strength of the Central Government.

In his Ordinance of 1784, Jefferson had provided for eventual and not immediate statehood for the inhabitants of the Western territory. Manifestly a State could not be made out of vacant land; it must await a sufficient number of inhabitants. But this excuse for holding citizens temporarily in a subordinate position was not valid in Louisiana, where the southern point of the great triangle already contained a sufficient number of inhabitants for statehood. Moreover, Napoleon had sufficient thought for these pawns in the game of diplomacy to insert in the treaty of cession a provision that statehood should be given them "as soon as possible." The Jeffersonians were compelled to resort to loose construction in interpreting this phrase. Louisiana contained a large non-English-speaking population, unaccustomed to the privileges and obligations of free government. Their deficiency was only partly supplied by a sprinkling of Americans, who always precede and bring about a demand for expansion of territory. "All men are created equal," was the doctrine of the Jeffersonian Declaration. But even the doctrinaire would not insist that it gave to each individual immediate and equal share in all government both national and local, whether or not he was prepared by inheritance or environment. During nine years the people of the Louisiana territory had to serve in preparation under the rule of the rights-of-man party, before the first portion was erected to statehood on an equality with the older States.

Being unable to admit the people of Louisiana to immediate statehood, and unwilling to hold them purely as colonists, the Jeffersonians divided the land into a territory and a district. This action prolonged for years the possibility that the people reside in territories, deprived of the privileges and protection of a State government. Suppose the "monarchists" should again come into national control and pass new Alien and Sedition laws? Where could these inhabitants of a territory find a protector? Under such conditions, the prestige of State citizenship was rapidly disappearing. The very fact that certain inhabitants of the United States were living solely under the protection of the national authority inspired a greater respect for that authority. Likewise, when these people were admitted to statehood at the end of their period of probation, it would be done by an act of Congress, and not by the States.

Among the many constitutional dilemmas into which the party had been brought by this compulsory action, was a provision of the treaty that the port of New Orleans should enjoy certain favours for a number of years. To reconcile this exception with the Constitution, which says that "all duties, imposts, and excises shall be uniform throughout the states," it was declared that the territory had been purchased by the States in their confederated capacity and they could hold it like a colony. Therefore, the Congress could regulate it as a territory under the Constitution without reference to the provisions affecting the States. Thus did fate compel a virtual acknowledgment from the sticklers for individual rights, within four years after their accession to national control, that the Constitution did not follow in all its provisions the extension of sovereignty over new soil.

From a broad point of view, the placing of sixty years of territorial expansion in the hands of the party opposed to the practice by birth and nature is a strong evidence of the checks and balances which have made the nation. Under strict construction, territorial expansion became a potent factor in loosening the bonds in which the Government might have been confined. Under loose construction, expansion might have become a centrifugal force through foreign conquest and colonial holding which would have destroyed the free system it was intended to build up. The Jeffersonians were moved in later expansions by a desire to extend an economic system and to make party capital. They never sought national aggrandisement, as their opponents might have done had they been in power. Proud of the territorial growth of the Union as we now are, and seeing so clearly the wisdom of the final consummation, we forget that the domain might have been increased too rapidly or too extensively in more sympathetic hands.

In still another way was the fallacy of strict construction laid bare by the Louisiana question. The remedy of an amendment to the Constitution to bestow needed powers had been the one frequently suggested. Here was an early opportunity to test this constitutional preventive against central usurpation. But time was wanting. "From the moment that France takes possession of the mouth of the Mississippi," said Jefferson, "she becomes our mortal enemy." Amendment-making is necessarily a slow process. Months if not years are required. Jefferson was obliged reluctantly to abandon his first thought of an amendment to cover both the present case of Louisiana and the future affair of the Floridas, if they were not included in Louisiana. He was forced to suggest to members of Congress that the less said about any constitutional difficulty the better, and that it would be desirable for that body to do what was necessary in silence.