Cato V, Part XXIII: The Same Causes, contd.

            George Washington was no Julius Caesar; on this subject there would seem to be little cause for debate. Popular though he was, connected to the military though he was, and decisive though he was, Washington never showed the slightest intention to use the legal and practical powers at his disposal as President to transform the American republic into a functional autocracy. He served two terms as in office – the second, it bears noting, under some degree of protest – weathered the crises that came his way as best as he was able, and then retired to a life of peace and quietude on his Virginia plantation. Less than three years later he was dead, having taken ill rather suddenly at the age of sixty-seven, and any lingering threat which he may have posed to the stability of the American system of government was effectively laid to rest with him. But while Washington’s style of leadership may have diverged from that of Caesar in the way that they respectively conceived of their personal relationship to the state – Washington seeking to avoid being thought of as indispensable, Caesar seeking almost exactly the opposite – both men undeniably changed the way that their respective cultures understood political authority and executive power in ways that continued to reverberate for centuries after each man had perished. Caesar, by forcing the disparate legal and cultural institutions of the Roman Republic to submit to his authority, showed the Roman people that it was possible for a single person to rule them without immediately resorting to cruelty and dissipation. It was an impactful lesson, paving the way as it did for an entire lineage of emperors claiming the mantle that Caesar had wrought, and one which the Roman people seemed to learn fairly quickly. Not all of Caesar’s successors were possessed of his competence, charisma, or cunning, of course – indeed, most of them emphatically were not. But all of them, to a man, benefited from the political precedents he had set and the stamp he had left on Roman law and culture.

            Washington, though generally a far less self-interested figure than Caesar, nonetheless bequeathed a similar legacy to the American people as Caesar had to his fellow Romans. Few Presidents were ever going to be as popular, to be sure, or as widely mythologized in the centuries following their death. Washington, in that sense, was more or less untouchable. But what subsequent officeholders could do to at least approach the summit of the man’s soaring reputation was to make use of executive authority in the way that he had shown them. This wasn’t just a matter of reinforcing the precedents that Washington had set, of course. Not every President would have cause to negotiate treaties or call out the state militias, and seeking out such opportunities would assuredly have been tantamount to courting disaster. Rather, it was a matter of style, confidence. Washington’s approach to the presidency – influenced, in no small part, by the advice and encouragement of Federalist partisans like Alexander Hamilton – was to consistently adopt the position that if the executive branch appeared to possess authority in a given area of policy or law then that power was more or less absolute. This was the attitude of the Washington Administration during the Whiskey Rebellion (1794) when it federalized the state militias in response to a purported insurrection in Western Pennsylvania. It was also the tack that Washington adopted when the House of Representatives threatened to withhold the funding necessary to enforce the terms of the Jay Treaty (1795). In both cases, when confronted with a set of circumstances in which it was not entirely clear whether the chief executive, the national legislature, or the states were possessed of superior authority, the first President of the United States acted in such a way as to make it clear to all and sundry that his position – being the sole representative of the American people as a whole – almost always entitled him to the stronger claim to action.

                   

            Not all of Washington’s fellow Americans agreed with how this claimed preeminence was deployed, of course, with the Democratic-Republicans in particular arguing that the national executive was never intended to be the dominant branch of the government described in the text of the Constitution. Nonetheless, it is remarkable just how many of Washington’s successors – regardless of the principles they claimed to possess – seemed unable to stop themselves from following in his footsteps upon being elected to the office of which he was the inaugural holder. Consider, by way of example, the presidency of Thomas Jefferson, founder and ideological wellspring of the aforementioned Democratic-Republicans. After serving as Secretary of State in Washington’s first cabinet between 1790 and 1793, Jefferson spent the latter half of the decade railing against what he and his supporters perceived to be the latent monarchism of Alexander Hamilton and his fellow Federalists while steadily building a socio-political movement of his own. The resulting Democratic-Republican faction combined a number of philosophical streams that had risen and fallen over the preceding decade – the Anti-Federalism of the Ratification Debate, the anti-tax protests of 1792-94, and the pro-French, anti-Jay Treaty agitation of 1795 – into a proto-party organization and an ideology whose principle tenets were pro-state and anti-centralization, pro-French and anti-British, and pro-trade and anti-protectionism. As Jefferson and his ally and confidant James Madison described it, the Washington Administration had transformed the United States into a guarantor of loans rather than a guarantor of freedom; an instrument of speculation where wealthy Americans and wealthy foreigners could enrich themselves yet further at the behest of the farmers, artisans, and laborers who actually tilled the soil and toiled in workshops. What the American people needed to do, they went on to explain, to reclaim the promise embodied in the late Revolution was reject the elitism of the Federalists, their promise of profits, security, and order, and embrace the Democratic-Republican platform of individual rights, states rights, and an exceedingly limited central government.

            Amazingly enough, Jefferson continued to work towards the eventual triumph of Democratic-Republicanism even after his election as Vice-President under the Federalist John Adams in 1796. Indeed, it was in 1798, while serving as Adams’ successor-in-waiting, that he drafted the infamous Kentucky Resolutions in response to the passage of the aforementioned Alien and Sedition Acts, perhaps the first coherent articulation in the history of the United States of the concept that a state could unilaterally ignore or “nullify” a federal law which its government found to be unconstitutional. In spite of the limited success enjoyed by Jefferson and his supporters in the meantime, however – not only had the Federalists won the Presidential Election of 1796, but they maintained control of both houses of Congress following elections in 1797 and 1799 – the organizational prowess of certain of Jefferson’s allies and the mounting unpopularity of the Adams Administration would soon enough bear fruit. The Election of 1800 was not the unadulterated triumph that the Democratic-Republican faithful had doubtless long envisioned – with a split vote between Jefferson and nominal ally Aaron Burr (1756-1836) requiring a tumultuous contingent election in the lame-duck House of Representatives – but the final result was an inarguable rejection of the Federalist program. Not only were Jefferson and Burr elected as President and Vice-President, respectively, but the Democratic-Republicans gained control of the House and the Senate, resulting in the first total transfer of power from one party to another in the history of the United States government since the adoption of the Constitution one decade prior. Now free to transform his principles into policy – save, perhaps, for the potential intervention of the Federalist-dominated courts – Jefferson swiftly set about dismantling the coercive, activist state which had long accused the Federalists of constructing. The “Empire of Liberty” which he had long envisioned was well and finally at hand.

            As ever seems to be the case, however, Jefferson evidently failed to consider that he and his supporters might conceivably develop a very different attitude towards the authority against which they had railed for so long once that authority was placed in their hands. Executive power naturally looked very threatening when deployed to accomplish things with which the Democratic-Republicans disagreed. Enforcing the collection of unpopular taxes, for example, or sidelining Congress in order to implement an unpopular treaty. But if the opportunity arose to achieve a major Democratic-Republican objective through the use of the same Executive Branch prerogatives? Well, perhaps in that case it made less sense to stand on principle and more sense to simply make use of the tools that were at one’s disposal. President Jefferson’s actions during the events surrounding the Louisiana Purchase (1803) speak very much to this conclusion, grounded as they were upon the same style of executive leadership that he had earlier decried when deployed by Washington and the Federalists.

The objective of Jefferson’s concomitant negotiations with Napoleonic France, of course, was the purchase by the United States of the French territory of Louisiana for the purpose of opening up this vast, potentially fertile, and sparsely populated region to American settlement. Or at least that’s what the objective ultimately became. Initially seeking an end to long-running tensions between the United States and whichever European colonial power governed the territory immediately beyond the Mississippi River, President Jefferson sent envoys Robert Livingston (1746-1813) and James Monroe (1758-1831) to Paris upon receiving word of the transfer of Spanish “Luisiana” back to France for the purpose of offering to buy only the city of New Orleans. During the years of Spanish governance between 1762 and 1801, the inhabitants of the states and territories on the American republic’s western frontier had often struggled at the behest of Spanish authorities who denying American access to the Mississippi and the port facilities at New Orleans, or allowed access, or required conditions, or required payment. Since the newly-elected Jefferson had gained office thanks in no small part to the support of westerners in states like Kentucky and Tennessee, he was naturally eager to bring an end to the economic turmoil that these changing policies had often wrought, and was likely also sensitive to the potential opportunity presented by the repossession of Louisiana by Napoleonic France.

Unlike the Spanish, who had been quite sensitive of their sovereignty over the territory in question, Napoleon seemed far more invested in maintaining and expanding his authority in Europe than in trying to export that authority to the North American interior. Granted, there were diplomatic rumblings that French authorities may have intended to use Louisiana as a source of staple goods with which to supply their sugar-rich possessions in the Caribbean. That said, the viability of such a plan largely relied on Napoleon successfully quelling the slave revolt then tearing through the island of Sainte-Domingue, and circa 1802 this was far from a certainty. Jefferson accordingly proceeded with a certain degree of haste. If the French were in need of funds to continue their war with most the rest of Europe, and if the reassertion of French authority in the West Indies was still something of an open question, perhaps it would be possible for the United States to purchase just New Orleans and its environs for a suitably impressive price while leaving the rest of Louisiana for Napoleon to dispose of as he would. Though President Jefferson was reportedly uncomfortable with even this modest proposal – he felt disinclined to substantiate French claims to American territory by agreeing to purchase any part of Louisiana, and further wondered at the constitutionality of the federal government unilaterally expanding American territory –the potentially time-sensitive nature of the circumstances at hand prompted him to action.

Fortunately for Jefferson, French fortunes in the Western hemisphere rather quickly took a turn for the worst. At about the same time that the American envoys arrived in Paris to make their offer of ten million dollars for the transfer of New Orleans to American control in the spring of 1803, French authorities had finally come to accept that the recapture of the aforementioned sugar colony of Sainte-Domingue was no longer feasible. This being the case, it accordingly no longer appeared necessary for a French presence to be maintained in North America, leading Napoleon to instruct his emissaries to offer the American delegation the whole of Louisiana for a mere fifteen million dollars. Livingston was understandably taken aback by the offer, between the sheer size of what he was now being asked to purchase and the shockingly low price of three cents per acre, and was unsure, in the immediate, how he should have responded. President Jefferson had only authorized him to purchase the city of New Orleans, and only for a maximum of ten million dollars. But five million dollars more for a parcel of land that would instantly double the size of the United States? Surely, he reasoned, Jefferson would see the wisdom in accepting such a proposal. And what if the French rescinded the offer? What if they refused to sell New Orleans on its own? Livingston had been instructed to secure the purchase of the valuable port city and buying all of Louisiana would certainly have accomplished that. After less then two weeks of contemplation – April 11^th to April 30^th – the American delegation ultimately accepted the French proposal. The resulting purchase treaty was announced on July 4^th, 1803 and arrived in Washington, D.C. ten days later.

It was at this point in the saga of the Louisiana Purchase that the Jefferson Administration was made to confront and reconsider its own collective understanding of the nature of executive power. When all that the United States was attempting to purchase was the city of New Orleans and its immediate environs, the potential hurdles attending its integration into the American republic doubtless seemed quite minor. Congress already claimed sovereignty over the region immediately to the east along the coast of the Gulf of Mexico, administering it as the Mississippi Territory since 1798, and it would doubtless have been a relatively trivial matter to graft this new cession onto the same. The federal government had established its ability to organize and govern non-state lands as far back as the 1780s with the creation of the Northwest Territory in the Great Lakes region, and the addition of a relatively small strip of sea coast to one of its existing administrative units would likely have raised few eyebrows. But Louisiana, at some eight hundred thousand square miles in total, was not a relatively small strip of coastline. On the contrary, it was a vast expanse of land roughly equal in size to the whole of the contemporary United States, and its annexation would accordingly place the federal government in direct control of a tremendous amount of land and resources. For a faction such as the Democratic-Republicans, whose origins lay in a categorical rejection of arbitrary executive power, the consequent need to govern Louisiana without a representative legislature or elected magistrates understandably presented something of a quandary. Eager though Jefferson and his supporters most certainly were to provide for the growth and expansion of agriculture in the United States of America – as opposed, say, to the mercantilism that seemed to dominate many of the states on the Atlantic seaboard – they were unsure whether or not this objective could be achieved – or indeed should be achieved – if it meant expanding the reach of the federal government in the process. At least two major factors complicated the resulting discussions.

For one thing, there could be no denying the fact that the inhabitants of French Louisiana – such as they were in 1803 – were very unlike those of the contemporary American republic. Whereas most American spoke English, adhered to some form of Protestant Christianity, and were familiar with the English style of Common Law jurisprudence, the settled residents of Louisiana – that is to say, those who were not members of one of the many native communities who lived within its borders – mainly spoke French or Spanish, were predominantly members of the Roman Catholic faith, and were accustomed to the Roman-derived Civil Law tradition common in contemporary France and Spain. Not only that, but no small number of the inhabitants of the city of New Orleans were members of the gens de couleur community, being free people of total or partial African ancestry who owned property and businesses and were possessed of the same basic legal rights as the majority of their countrymen. But while the terms of the treaty authorizing the transfer of Louisiana from French to American control mandated that,

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 these 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 [,]

The sum of the differences named above – particularly in light of the contemporary state of American racial politics – presented a significant potential hindrance to the achievement of the same. 

            From the perspective of the Jefferson Administration – and indeed from that of most Americans of the era – the existing inhabitants of Louisiana were not very well suited to the duties and responsibilities which they believed were inherent to the possession of American citizenship. The Louisianais were used to being subjected to arbitrary authority, had no taste for or familiarity with republican, citizen-led government, and were almost completely unfamiliar with the basic principles of Anglo-American style Common Law jurisprudence. While not necessarily prepared to shirk their nation’s responsibility to incorporate these people into the citizen population of the United States of America, members of the reigning Democratic-Republican faction and the opposition Federalists accordingly tended to agree that the resulting process was bound to be a lengthy one. The people of Louisiana would need to be taught the principles of good citizenship, the fundamentals of the American legal system, and even the basics of the English language, and all before they could be permitted to form a legislature or elect their own executive. It would have been impossible to say for certain how long this would take, though surely no one doubted that the period was best measured in years, if not decades. And in the meantime? Well, in the meantime two things would have to happen which most Americans were sure to find distasteful.

First, an administrative framework would have to be established – likely on the model of the aforementioned Northwest Territory – by which the federal government would legally oversee the region in question. Under the terms of such an arrangement, it would have been left to the President to appoint a Governor, a Secretary, and a set of justices to administer the territorial court system. The inhabitants would normally have chosen representatives from among themselves to serve in the lower house of a territorial legislature, as well as a delegate to speak on their behalf in Congress, but given the aforementioned “unsuitability” of the existing residents of Louisiana to the task of self-government this would seem to have been an unlikely outcome in the immediate. In consequence, until such time as the federal government decided that the residents of the relevant organized territory had become fully acclimated to the American style of republican government – a decision authorities would arrive at presumably based on their own criteria – the Executive Branch in particular would possess virtually unchecked power over what transpired therein. The potential effects of such an arrangement were troubling, to say the least. In time, for example, wasn’t it possible for the American chief executive to become so accustomed to exercising near-absolute power in Louisiana that they might refuse to give it up? And in the meantime, was it entirely reasonable for the American people to expect their government to behave arbitrarily in one part of the nation and responsibly in another without the impulses conditioned by the former ever bleeding over into the latter? Perhaps future presidents, having felt the extent of their powers in Louisiana, would come to resent the limits placed on the same in the rest of the United States. Surely this would not have been a healthy outcome for the perpetuation of American liberty, regardless of the resources or opportunities the possession of Louisiana might afford to the American people.

And then there was the other implication of the cited clause of the relevant purchase treaty, the consequences of which may have been more troubling still. Until such time as the existing inhabitants of the territory could be, “Incorporated in the Union of the United States,” the treaty stated, the federal government was bound to ensure that the individuals in question were, “Maintained and protected in the free enjoyment of their liberty, property and the Religion which they profess [.]” As it was more or less a given that the “incorporation” of the Louisianais into the general citizenry of the United States of America would not be completed until some time after the transfer of Louisiana to American control, this meant that for an indefinite period the territory would continue to be governed according to the laws and customs familiar to its inhabitants. Civil law, then, would continue to form the basis of the territorial legal system, and free people of color would continue to have their property rights recognized and protected. Naturally this would be met by the Louisianais themselves with pleasure and relief, providing, as it was bound to, some degree of stability while their adjusted to their changing circumstances. But how were the inhabitants of the rest of the United States supposed to interpret such an act? English-derived Common Law formed the basis of understanding for most of what was written in the United States Constitution. Trial by jury, habeas corpus, and the entire court system of the American republic were all deeply rooted in the Common Law tradition, and it was consequently a subject of both comfort and agitation that the principles of the Common Law would continue to apply no matter where in the union of states a given citizen chose to reside. But what if someone from Virginia, say, or Georgia decided to migrate into the newly acquired Louisiana? Though they would not have left the confines of the American republic, they would nonetheless find themselves in a territory possessed of an altogether alien system of laws. Would they continue to be guaranteed a jury trial, or the right to be informed of the reasons for their detention, simply because of their American citizenship, or would the legal procedures of Louisiana take precedence? If civil law was to form the basis of the justice system, would the Constitution – the text of which explicitly guarantees the rights of habeas corpus and trial by jury – even apply? Was it possible for the President and the Senate – in light of the authority conferred on them to make such treaties as were legally biding in all cases – to create a jurisdiction within the United States that existed outside of the auspice of the Constitution? Depending on how these and similar questions were answered, the consequences for American liberty were potentially terrifying and profound.