History of Nebraska - Chapter 4



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CHAPTER IV
THE LOUISIANA PURCHASE

   THE QUEST for the germ of political Nebraska leads us back just through 
the brief period of the nation's miraculous making, when -- April 2, 
1743 -- at Shadwell, Albemarle county, Virginia, in the shadow of the Blue 
Ridge mountains, we find Martha, the mother, clasping to her bosom the new-
born Thomas Jefferson, under whose sandy hair are the brains that are to 
give to mankind the Declaration of Independence; to give distinction to 
American diplomacy at the court of France, between the years 1785 and 
1789, as the first secretary of state under the federal constitution; to 
initiate and develop the foreign and domestic policy of the young 
republic; to become president in 1801; to negotiate and complete the 
Louisiana Purchase from Napoleon Bonaparte in 1803 at a cost of about two 
and three-fifths cents an acre. The aggregate amount paid for this new 
empire, of which the present Nebraska forms about a twelfth part, was $15,
000,000. Of this purchase price France received in United States bonds $11,
250,000, and by agreement the remaining $3,750,000 was paid to American 
citizens in liquidation of claims against the French government. When the 
United States took formal possession of these lands on December 20, 1803, 
the Union consisted of but seventeen states, Connecticut, Delaware, 
Georgia, Kentucky, Maryland, Massachusetts, New Hampshire, New Jersey, New 
York, North Carolina, Ohio, Pennsylvania, Rhode Island, South Carolina, 
Tennessee, Virginia, and Vermont, with a total area of 444,393 square 
miles, or 284,411,520 acres. But Mr. Jefferson's purchase of contiguous 
territory covered 890,921 square miles, including both land and water 
surface, or 878,641 square miles -- 562,330,240 acres -- of land alone; 
and it lacked but little of being twice as large -- as it certainly was 
twice as valuable for agriculture and mining -- as the seventeen states 
named. Today, with all the more expensively and less peacefully acquired 
islands of Hawaii, Porto Rico, Guam, and the Philippines in the reckoning, 
the Louisiana Purchase of President Jefferson comprises nearly one-fourth 
of the republic.

   From this vast purchase of territory adjacent to the previous holdings 
of the republic have been created thirteen great states, namely: Louisiana 
in 1812, Missouri in 1821, Arkansas in 1836, Iowa in 1846, Minnesota in 
1858, Kansas in 1861, Nebraska in 1867, Colorado in 1876, Montana in 1889, 
South Dakota in 1889, North Dakota in 1889, Wyoming in 1890, and Oklahoma 
in 1907. Only about one-third of Colorado, two-thirds of Minnesota, and a 
little more than three-fourths of Wyoming are parts of the Jefferson 
purchase. The estimated population of the land ceded by Napoleon in 1803 
was fifty thousand whites, forty thousand slaves, and two thousand free 
blacks. More than four-fifths of the whites and all the blacks except 
about one thousand three hundred were in and adjacent to New Orleans. The 
rest were scattered through the country now included in Arkansas and 
Missouri(1). The population of the Louisiana Purchase is now over 18,000,
000,(2) and if it were as densely populated as Belgium, which, contains 
536 human beings to the square mile; it would contain and maintain 473,326,
592. 

(1. Adams, History of the United States, vol. ii, p. 121. Rufus King on 
the Missouri Bill, American Orations, vol. ii, p. 42.)

(2. Including all of Colorado, Minnesota, and Wyoming, 18,016,363. Census, 
1910.)

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   The importance of the Louisiana Purchase does not spring alone from its 
extent and value as a vast territorial addition to the country, but very 
largely from its momentous political significance and effect. In the first 
place it was a pawn played by the great Napoleon in his universal game of 
war and diplomacy, in which the ancient empires of Europe were the stakes. 
Acquired by France under Louis XIV, through exploration and settlement 
here and there, it was ceded to Spain as a salve for sacrifices on her 
part in the treaty of 1763, which secured the supremacy of the English 
race on this continent and in general colonizing power, and was the 
territorial reparation for the great republic. Before Napoleon had forced 
himself into actual power as first consul, November 9, 1799, Tallyrand, 
who ruled under the directory, had conceived the idea of at once spreading 
out France in a great colonial empire, and curbing, through near 
neighborship, the pretentious young American republic, by securing the 
retrocession of Louisiana. Spain's fortunes were going from bad to worse, 
and after Napoleon's startling victory over the Austrians at Marengo in 
June, 1800, Tallyrand's messenger had but to demand the retrocession on 
the terms he proposed and it was accomplished -- October 1, 1800. The 
Spanish king, complaining that France had not carried out her part of the 
bargain, delayed the delivery of Louisiana, but finally yielded, October 
15, 1801, on the assurance of Tallyrand that, "You can declare in the name 
of the First Consul that France will never alienate it." Meanwhile 
Napoleon had won peace from Austria by force, and from Great Britain 
through diplomacy, so that now he prepared to take possession of 
Louisiana; but first he had to deal with the revolution of the negroes of 
the important outpost of Santo Domingo, under the lead of Toussaint 
L'Ouverture. The disaster which finally befell Napoleon's army in Santo 
Domingo, and the impending renewal of his irrepressible conflict with 
England, led the marvelously practical first consul to abandon whatever 
thought he may have indulged of a colonial empire in America. It is 
doubtful that he ever fully entertained or regarded as feasible this 
original dream of Talleyrand's. But at any rate, and in spite of 
Talleyrand, his unequaled executive mind saw straight and clear to his 
purpose and acted with characteristic decisiveness. In the early days of 
April, 1803, he disclosed to Talleyrand, and then to others of his 
ministers, his purpose of ceding Louisiana to the United States. At the 
break of day, April 11th the day before Monroe, Jefferson's special envoy 
for the purchase of New Orleans and possibly the Floridas also, arrived in 
Paris, Napoleon announced to Marbois, his minister of finance: 
"Irresolution and deliberation are no longer in season; I renounce 
Louisiana. To attempt obstinately to retain it would be folly . . . Have 
an interview this very day with Mr. Livingston." He had said the day 
before that he feared England would seize Louisiana at the beginning of 
war; and already, April 8th, he had countermanded the order for General 
Victor to sail with his army to take possession of Louisiana. When in an 
interview later in the day Livingston was "Still harping on my daughter," 
begging only for New Orleans and West Florida, he was disconcerted at the 
sudden demand of Talleyrand, "What will you give for the whole?" The next 
day Livingston conferred with Monroe, but in the afternoon he met Marbois, 
who invited him to his house, and during the night a preliminary 
understanding was reached. After much haggling about the price the papers 
were signed during the early days of May, but were dated back to April 
30th. Napoleon sought to preclude danger of the subsequent cession of the 
territory to England, or any other rival power, and to protect the 
inhabitants, who were mainly French and Spanish, in the enjoyment of their 
religion and racial propensities, by inserting the following guarantee in 
the treaty:

   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 citizenship of the United States; 
and in the meantime they shall

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be maintained and protected in the free enjoyment of their liberty, 
property and the religion which they profess.

   Though this vast territory had actually been pressed upon the American 
ambassadors, its acquisition was indeed a triumph for the young republic.

   Livingston had achieved the greatest diplomatic success recorded in 
American history. . . . No other American diplomatist was so fortunate as 
Livingston for the immensity of his results compared with the paucity of 
his means . . . The annexation of Louisiana was an event so portentous as 
to defy measurement. It gave a new face to politics, and ranked in 
historical importance next to the Declaration of Independence and the 
adoption of the Constitution -- events of which it was the logical 
outcome; but as a matter of diplomacy it was unparalleled, because it cost 
almost nothing.(3)

   But Livingston's cup of glory turned to ashes on his lips. He was 
charged with corruption in the distribution of the part of the purchase 
price which was to be paid to American claimants, and the credit the 
public gave Monroe elevated him to the presidency, where he was so 
fortunate as to make his name known of all men by the timely enunciation 
of the "Monroe Doctrine," which was adopted as an expedient for the safety 
of the still young and not yet firmly founded republic and its 
institutions, and which is still maintained as a principle of American 
polity, but more perhaps through the influence of tradition than of the 
original need or expediency, this motive having been superseded by one of 
wider scope and farther reach though not definitely defined or conceived. 
The direct bearing of an account of the Louisiana Purchase upon a history 
of Nebraska will now begin to appear, and is forecast in the following 
estimate of its political effect or sequel:

   Of the transcendent importance of that event, aside from the expansion 
of territory, we get some idea when we reflect that the Missouri 
compromise, the annexation of Texas, the compromise of 1850, the Kansas-
Nebraska bill, the Dred Scott case, and at length the Civil war, were 
events in regular sequence directly traceable to it, not one which would 
have occurred without it.(4)

   The sweeping conclusions of the eminent jurist are doubtless 
technically correct, but there is a hint in them of the almost dogmatic 
implication in many historical accounts of the famous purchase that it was 
a work of chance -- a result of the accidental extremity of the fortunes 
of Napoleon and of the Spanish nation at that particular time, and of the 
acumen of several American politicians. Mr. Adams partially corrects this 
misapprehension when he declares that the acquisition of Louisiana was 
"the logical outcome of the Declaration of Independence and the adoption 
of the Constitution." But the historian would have been equally correct 
and more fundamental if he had said that the acquisition was the logical 
outcome of the ascendency of the English race and English institutions in 
North America, as against the Latin race, which was formally determined by 
the result of the French and Indian war and the treaty of 1763. The 
expulsion of France and Spain would have been completed by the same 
English race without the incident of the secession of the colonies and the 
division of English territory which the Declaration of Independence 
proclaimed. While the great Napoleon's necessity of trying conclusions 
with England at home in 1803, just as his predecessor had tried 
conclusions with England in America in 1763, and his necessity of 
diverting the troops with which he intended to take possession of and 
defend Louisiana to put down the Santo Domingo rebellion, probably at once 
precipitated this final surrender of French pretension to America which 
might have been held in solution yet for some time, still the 
precipitation would have been only a question of time; and it is not 
unlikely that there would have been the same evolutionary working out of 
the question of slavery and of union, the same tragedy and the same glory. 
The first view, in short, has the fault of empiricism, of explaining an 
important social phenomenon as an accident instead of a natural 
evolutionary process. 

(3. Adams, History of the United States, vol. ii, pp., 48-49.)

(4. Thomas M. Cooley "The Acquisition of Louisiana," Indiana Hist. Soc. 
Pamphlets, no. 3, p. 5.)

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   News of the retrocession of Louisiana to France, which reached America 
about eight months after it had been agreed upon, disclosed the inherent 
or inevitable opposition to the reinstatement of France. And so Jefferson 
was moved by fear of such an event to write in July, 1801.(5)

   We consider her (Spain's) possession of the adjacent country as most 
favorable to our interests, and should see with an extreme pain any other 
country substituted for them.

   Spain, unlike her then monstrously militant neighbor of the same race, 
was already too inert to be seriously inimical. Madison, Jefferson's 
secretary of state, wrote, September 28, 1801, to Livingston, who had just 
reached France, that the proposed change of neighbors was a matter of 
"momentous concern." If allowed, "inquietudes would be excited in the 
southern states where numerous slaves had been taught to regard the French 
as patrons of their cause.(6) Livingston, who perceived the perplexities 
of the situation, wrote to Madison several months before the cession, that 
he was persuaded that the whole business would result in the 
relinquishment of Louisiana to the United States. It was plain, moreover, 
to astute American statesmen that the reoccupation of Louisiana by the 
French undid the work of the Seven Years' war and nullified the treaty of 
1763. Jefferson's feeling seemed to grow stronger, and he wrote to 
Livingston, April 19, 1802, that New Orleans was so important to the 
United States that whoever held it was for that very reason naturally and 
forever an enemy, and that the day France took possession of the city the 
ancient friendship between her and the United States ended and alliance 
with Great Britain became necessary. Nor were English statesmen slow to 
foresee the natural sequence of events. Before the cession had been mooted 
Lord Whitworth, the British ambassador at Paris, had predicted that 
America, would reap the "first fruits" of the coming French war with 
England; and Addington, anticipating Napoleon's own later reason for the 
cession, told Rufus King that the first step of England on the outbreak of 
war would be to seize Louisiana.

   The interesting question as to Napoleon's real reasons for alienating 
Louisiana from France will perhaps never be settled. Of our late standard 
historians of the United States, Adams gives the question the most 
thorough consideration; and while he seriously damages, if he does not 
completely demolish the reasons usually given, he fails to establish 
others in their place.

   Bonaparte had reasons for not returning the colony to Spain; he had 
reasons, too, for giving it to the United States, -- but why did he 
alienate the territory from France? Fear of England was not the true 
cause. He had not to learn how to reconquer Louisiana on the Danube and 
the Po . . . Any attempt (on the part of England) to regain ascendency by 
conquering Louisiana would have thrown the United States into the hands of 
France; and had Bonaparte anticipated such an act he should have helped it 
. . . Every diplomatic object would have been gained by accepting 
Jefferson's project of a treaty (for New Orleans alone) and signing it, 
without the change of a word . . . The real reasons which induced 
Bonaparte to alienate the territory from France remained hidden in the 
mysterious processes of his mind. Anger with Spain and Godoy had a share 
in it, disgust for the sacrifices he had made and impatience to begin his 
new campaigns on the Rhine, -- possibly a wish to show Talleyrand that his 
policy could never be revived, and that he had no choice but to follow 
into Germany, -- had still more to do with the act.(7)

   McMaster, on the other hand, puts the Orthodox, or generally accepted 
reasons into a nutshell, thus:

   New combinations were forming against him (Napoleon) in Europe; all 
England was loudly demanding that Louisiana should be attacked; and, lest 
it should be taken from

(5. At the time (November, 1801) that Jefferson received Talleyrand's 
explicit denial of retrocession, he received also from Rufus King, 
American minister at London, the text of the treaty of retrocession dated 
eight months before.)

(6. It is curious to note that while the French Republic in 1794, still in 
its mad career of enfranchisement, had freed the slaves of Santo Domingo, 
it was now part of Napoleon's purpose in sending troops to that island, 
instead of employing them to take possession of Louisiana, to again reduce 
the blacks to slavery.)

(7. Adams, History of the United States, vol. ii, pp. 63-65.)

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him, he determined to sell it to the United States.(8)

   Somewhat more at length, and willing to credit Jefferson with shrewd 
foresight, Schouler adopts the same reasons:

   The accident for which Jefferson had here allowed was, in truth, the 
speedy renewal of hostilities betwen France and England. The treaty of 
Amiens had been too hastily drawn up, and its adjustment of disputes was 
too incomplete to be more than a truce between them . . . And thus it came 
to pass ere Monroe could reach Paris . . . Napoleon after his abrupt 
fashion had relinquished, and most reluctantly, his designs upon the 
American continent, under the pressure of a speedy war with England, and 
the necessity of preventing the United States from making the threatened 
alliance with its enemy. Forced to surrender the Mississippi, in any event 
he resolved to put it out of the reach of his immediate foe, and gain the 
gratitude of a new and rising power. He needed money, furthermore, in aid 
of his warlike operations.(9)

   Rhodes essays little on this topic beyond crediting Jefferson with long-
headedness:

   The possession of the mouth of the Mississippi was a commercial 
necessity, and Jefferson showed wisdom in promptly seizing the opportunity 
presented by a fortunate combination of circumstances to secure the 
purchase of this magnificent domain.(10)

   But it is easier and perhaps safer to give over attempting to interpret 
the motive and design of the arbiter of the Nebraska country, who is 
likened to deity, and acknowledge that "his ways are past finding out." 
For a noted Englishman, even, avows that he was "a supernatural force"; 
that "his genius was supreme"; that "he raised himself by superhuman 
faculties," and "carried human faculty to the farthest point of which we 
have accurate knowledge."(11) And we find the head of the English army 
characterizing him as "the greatest soldier and ruler, the greatest human 
being whom God has ever allowed to govern here below . . . His greatness 
in peace, his success in war, his wisdom as ruler, his genius as a 
commander, all combine to make him the most remarkable man whom God ever 
created."(12)

   But while Napoleon's part in this great transaction remains equivocal, 
or not positively to his credit, Jefferson's reputation for great capacity 
and consummate sagacity in his part has been established by a century's 
severest scrutiny. From the time of the retrocession of Louisiana by Spain 
to France in 1800 the position of the United States was diplomatically 
very delicate if it was not desperate. France had been insolently preying 
upon our commerce, and Livingston was obliged to complicate demands for 
damages on this account with his negotiations for the purchase of New 
Orleans. No friendship could be expected from England except as it might 
be played off against France. In its constant peril of one or the other of 
these greatest powers, Spain took frequent opportunity to visit the young 
republic with both insult and injury; and though Napoleon's extremity 
furnished our opportunity for the Louisiana acquisition, its original 
stimulus and initiative came from an imperious demand for free commerce, 
through the channel of the Mississippi river, by the settlers of the 
western parts of Kentucky and Tennessee.

   Before the close of the war of the Revolution, John Hay, minister to 
Spain, had in vain negotiated for an acknowledgment of this privilege, 
which was claimed on good grounds as a natural right by virtue of our 
claim of ownership of the entire east bank of the river as far as New 
Orleans, and of succession to the right of free navigation guaranteed to 
our grantor, Great Britain, by the treaty of 1763. But then, as now, 
international treaties and international law were made to be violated with 
impunity as against the weaker party, and the United States was the weaker 
party. When Jay, for diplomatic reasons, agreed that the disagreeable 
matter should not be pressed against Spain for twenty-five years, the 
restlessness of the Kentucky and Tennessee pioneers broke into 
riotousness, and preparations 

(8. McMaster, History of the People of the United States, vol. ii, p. 626.)

(9. Schouler, History of the United States, vol. ii, pp. 50-51.)

(10. Rhodes, History of the United States, vol. i, pp. 27-28.)

(11. Roseberry, Napoleon, The Last Phase.)

(12. Field Marshal Viscount Wolseley, in Cosmopolitan for March and April, 
1903.)

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were made to set up a separate government, and to send an armed expedition 
to force the free passage of the river beyond New Orleans. But, crushed in 
the adversity of the Napoleonic wars, Spain relented in 1795, and 
guaranteed free passage of the river and a place of deposit for American 
cargoes at New Orleans for the period of three years. The bold westerners 
regarded this agreement as a temporary makeshift, and egged President 
Adams on for a permanent settlement. Even Hamilton, with many followers, 
urged the necessity of taking advantage of Spain's helplessness and 
seizing and holding New Orleans by force; but Adams held them off. 
Jefferson's administration inherited this persistent demand for a 
permanently free Mississippi, and he silenced its insistent clamor by 
setting on foot the negotiations for the purchase. Godoy, who in 
everything save the ultimate power to enforce his policy and rights, was a 
match for Talleyrand and Napoleon, had been recalled to power as foreign 
minister of Spain after she had been persuaded into the retrocession, and 
he skillfully played every device for delay of the final delivery. Godoy's 
bold strategy and Touissant's revolution in St. Domingo put off French 
occupation of Louisiana until, by the spring of 1802, Jefferson's eyes had 
opened wide on the situation. For "the whole power of the United States 
could not at that day, even if backed by the navy of England, have driven 
ten thousand French troops out of Louisiana."(13) Morales, the Spanish 
intendant at New Orleans, had goaded the temper of the free trade 
westerners to the acute stage by refusing to extend the right of passage 
and deposit at the end of the three years, as the treaty of 1795 had 
stipulated; and when restitution was ordered by Godoy's influence March 1, 
1803, it was too late.

   The Spanish tariff on trade through the Mississippi, which drove the 
pioneer western colonists to revolution, and but for the peaceful 
diplomacy of Jefferson must have involved the forcible conquest of New 
Orleans, was from fifty to seventy-five per cent. For the last forty years 
a tariff tax on western agriculture, equally as high, has been imposed by 
the forms of law at the port of New Orleans and every other port of the 
Union, and its most strenuous and ablest opponents have hailed from the 
same old Kentucky commonwealth. It is interesting to reflect that perhaps 
the aggressive courage, brilliancy, and legal acumen of our present day 
Kentucky free-traders -- the Wattersons and Carlisles -- are an 
inheritance from those pioneer revolutionists against the Spanish tax on 
trade which was so appropriately named -- after Tarifa, a Spanish free-
booter at the passage of Gibraltar of a still earlier day. And thus the 
recalcitrant Godoy, playing for time, hoping against hope to free Spain 
from the shackles of Napoleon, five hundred thousand Santo Domingo negroes 
frenzied with the passion for personal freedom, and the necessity of the 
Kentucky and Tennessee settlers for a free market for their tobacco, 
flour, bacon, and hams, were the Providence of the great Louisiana 
Purchase.

   While Hamilton's policy for getting New Orleans was to seize first and 
negotiate afterward, and early in March, 1803, Congress authorized 
Jefferson to call out eighty thousand troops, he resolutely kept the key 
to the situation and continued "to palliate and endure."

   They who sought thus to lessen confidence in the president, and to take 
the Mississippi entanglement out of his discretionary control by cutting 
the knot, underrated at this crisis the ability of a most consummate and 
experienced negotiator; one with whom, in a matter of foreign diplomacy, 
Hamilton himself bore no comparison.(14)

   While Adams, in his rigid impartiality, apparently sees that Jefferson 
might have been open to the charge of having dallied too long in his 
passion for peace, in face of the imminent danger of Napoleon's occupation 
with an impregnable force, if the outcome had been disastrous or less 
glorious, yet he is constrained to unqualified recognition of his great 
diplomatic skill. 

(13. Adams, History of the United States, vol. i, p. 421)

(14. Schouler, History of the United States, vol. ii, P. 47)

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   With infinite pertinacity Jefferson clung to his own course . . . The 
essence and genius of his statesmanship lay in peace . . . The consistency 
of the career became more remarkable on account of the seeming 
inconsistencies of the moment. He was pliant and yielding in manner, but 
steady as the magnet itself in aim. His maneuvers between the angry west 
and the arbitrary first consul of France offered an example of his 
political method. He meant that there should be no war."(15)

   The consciences of republicans evidently suffered a severe gnawing 
because necessity impelled them to violate their construction of the 
Constitution to get Louisiana. Jefferson urged an amendment which would 
grant "an enlargement of power from the nation," rather than by mere 
construction to "make our powers (including treaty powers) boundless," and 
the Constitution "blank paper." But Jefferson was no less consistent and 
certainly more logical than his fellow republicans in the the House and 
the Senate. Although it may be "hard to see how any president could have 
been more federalist than Jefferson himself" confronted by this imperious 
necessity of acting outside the acknowledged narrow limits of the written 
Constitution which theoretically restrained him, yet he frankly confessed 
that he was technically wrong, but as frankly avowed that he should 
"acquiesce with satisfaction, confiding that the good sense of our country 
will correct the evil of construction when it shall produce ill effects." 
Breckinridge and Nicholas, on the other hand, the one author of the 
Kentucky, and the other ardent supporter of the Virginian resolutions, now 
began to see implied powers in the Constitution which would amply support 
the present purpose. John Quincy Adams, representing the younger and more 
moderate federalists, like Jefferson, desired the acquisition, but like 
him also thought a constitutional amendment necessary and, coöperating 
with the administration, like Jefferson, offered an amendment for the 
purpose. Contrary to somewhat authoritative assertion, the ground of 
Jefferson's constitutional objection included that of the acquirement of 
territory as well as the right, which was involved in the treaty, of 
adding this territory, acquired since the formation of the Constitution, 
as states to the Union.(16)

   The extreme federalists, such as Pickering of Massachusetts and 
Griswold of Connecticut, in a fit of capricious, obstructionist partisan 
temper, insisted that the treaty was absolutely unconstitutional and void, 
their chief contention being that it involved the admission of this new 
territory as a state in the Union which could not be done without the 
consent of all the other states, since the Constitution applied in this 
sense only to the territory comprised within the United States when it was 
adopted. "Nothing so fully illustrates the low state to which the once 
prosperous federalists were fallen as the turbulent and factious 
opposition they now made to the acquisition of Louisiana. But "the mass of 
the people pronounced the purchase a bargain,"(17) and Jefferson knew that 
he was safe in their hands. "He would accept the treaty, summon Congress, 
urge the House and Senate to perfect the purchase, and trust to the 
Constitution being mended so as to make the purchase legal."(18) He called 
Congress in special session in October; the Senate almost unanimously 
ratified the treaty, and a bill to carry it into effect was passed with 
only five votes against it in the Senate, and twenty-five federalists 
voted against it in the House, seventeen of whom were from New England. 
Nothing more was heard of "mending the Constitution." Neither Jefferson 
nor Breckinridge, republicans, nor Adams nor Pickering, federalists, could 
then discern that out of the same revolution which had produced only our 
rigid written Constitution, hobbled by Hamiltonian "checks and balances," 
the seeds of a British polity were already growing whose full fruitage was 
soon to be a constitution made to the order of public opinion directly by 
the supreme popular house of parliament. In the new-born spirit of devo- 

(15. Adams, History of the United States, vol. i, pp. 434, 445.)

(16. A leading newspaper of the metropolitan class disputed the statement 
in ex-President Cleveland's address at the opening of the Louisiana 
Purchase Exposition at St. Louis in 1903, that Jefferson believed the 
acquirement of the territory was unconstitutional.)

(17. McMaster, History of the People of the United States, vol. ii, p. 
630.)

(18. Ibid., p. 628.)

Page 105

tion to an impracticable literal construction of a word-bound 
constitution, Jefferson was bitterly assailed for violating it; and he has 
not wholly escaped the assaults of our contemporary publicists: "Mr. 
Jefferson struck a dangerous blow at the foundation principles of the 
government, and offered to demagogues who should come after him a 
corrupting and dangerous precedent, when he proposed to violate the 
Constitution in order to accomplish an object of immediate desire."(19)

   The singular error of this eminent expositor of constitutions in saying 
that, "the purchase, according to the federal view of the Constitution was 
perfectly legitimate,"(20) is sufficiently illustrated by the foregoing 
brief showing of the attitude of contemporary federal leaders. In brief, 
this process of immediate constitution-making at the righteous dictate of 
the public welfare and opinion -- though sometimes most unrighteous, and 
against the one and in spite of the other -- which Jefferson, the strict 
constructionist, began, and which all shades of constructionists have 
continued to the present day, serves chiefly to illustrate the 
misconception and the vanity of the painful hair-splitting of "the 
fathers" as to the constitutionality of the great Purchase. While of 
necessity we make our constitution as we go, as the work is done in 
England, according to the order of public opinion, we are hampered, 
morally and otherwise, by being cut off from that easy and natural test of 
appeal to the public which, under the responsible cabinet system, our 
British brethren enjoy. Under a like system of government by discussion we 
are forced as well as we may to make British bricks without the British 
straw. All the constitutional questions and speculations raised in the 
transaction of this momentous business were left to be controverted from 
time to time during the various phases of the coming struggle over African 
slavery, and to be revamped and become familiar to our own ears a century 
later under the Philippine question, and the present question of the 
constitutional treaty-making power to enact "reciprocity" without the 
consent of the House of Representatives -- all old yet ever new. But it 
was decided beyond controversy and without dissent that the government 
might constitutionally acquire territory though its constitutional status 
after acquisition is even yet unsettled.

   The acquisition was popular on the whole from various motives, chiefly 
of self-interest. The omnipresent slavery question, though only in a 
negative and defensive form, affected, if it did not determine, the 
attitude of the South. Slave-holders would gladly be rid of this French 
next neighbor whose inculcation of a bias for freedom in the West Indies 
had broken out in the fearful negro revolution of Santo Domingo. The 
extreme West, as we have seen, would dispossess the French to insure free 
travel and trade along the natural and only commercial highway. New 
England, as usual, at least in those provincial days, was both bigoted and 
selfish. Her strong religious scruple against having "infidel France" 
perpetually at our doors was overbalanced in some degree by jealousy of 
the expansion of the West, as she feared at her own loss in power and 
population.(21) In this spirit a Massachusetts politician said: "I 
consider Louisiana the grave of the Union." Elbridge Gerry animadverted on 
the danger to the country -- that is to the East -- to be apprehended from 
the creation of new states in the West. Even so great a political figure 
as Gouverneur Morris could contract his vision to this:

   Among other objections they (new western states) would not be able to 
furnish men equally enlightened to share in the administration of our 
common interests. The busy haunts of men, not the remote wilderness, is 
the proper school of political talents. If the western people get the 
power in their hands they will ruin the Atlantic interests.(22)

   And we wonder if these far-seeing New England statesmen are not at this 
moment (1905) turning in their graves at the spectacle of the commanding 
personages in the federal Congress and two members of the fed 

(19. Cooley, "The Acquisition of Indiana," Indiana Hist. Pamphlets, no, 3, 
p. 17.)

(20. Ibid.)

(21. The Nation, December 12, 1889, vol. 49, p. 482.)

(22. See speech of Daniel E. Dickinson, vol. 15, Cong. Globe, p. 416.)

Page 106

eral cabinet, all from a single state23 of this "remote wilderness" of the 
Louisiana Purchase.

   New England's opposition to the Louisiana Purchase and other 
manifestations of her earlier temper show how lightly the value of the 
federal union was held, and were precursors and stimulants of the Civil 
war. The speech of Josiah Quincy, Jr., of Massachusetts, in the House of 
Representatives, in 1811, opposing the admission of Louisiana as a state 
on these familiar New England grounds, might well have furnished the very 
text for the nullification convention of 1832 or of the secession 
resolutions of 1860-1861.

   As Louisiana, in the inevitable order of Providence, was annexed, so it 
has developed into a family of imperial food-producing states.

   A vast, unexplored, almost illimitable empire was ours; perpetual 
immunity from dangerous neighbors; sole possession of this river of 
rivers, with all its tributaries; a sure dominating influence in the 
affairs of the North American continent; national opportunities for the 
future almost depressing in their sublimity.(23)

   What wonder that even Jefferson almost feared that it might not stop -- 
not east of the Pacific or north of the isthmus; and that not foreseeing 
the cleavage of the slavery question between the North and South, he 
feared division along the Mississippi.

   The limits of Louisiana were defined in this momentous transfer with 
less care than we now give to the conveyance of an ordinary town lot or a 
forty-acre tract within the Purchase. Both Napoleon and Talleyrand had 
either some malign subjective design or some undisclosed objective purpose 
in keeping the boundaries ill-defined; and the southeast and southwest 
boundaries were not settled until the treaty with Spain and Great Britain 
in 1819, when the claim of the United States to Oregon, which included the 
present state of that name and Washington and part of Idaho, was also 
recognized. When at the time of the negotiations the American 
representatives urged the need of a more definite boundary, Napoleon 
treated the suggestion lightly if not scornfully, remarking that the very 
indefiniteness was so much the better for us, implying, Napoleon-like, 
that, being the stronger party, it would leave us a good oportunity to get 
the better of Spain in the final settlement. Decres, the French minister 
of marine, had undertaken to fix the boundary for the retrocession from 
Spain. He said that it was well determined on the south by the Gulf of 
Mexico; "but, bounded on the west by the river called Rio Bravo (Rio 
Grande) from its mouth to about the 30th parallel, the line of demarkation 
stops after reaching this point, and there seems never to have been any 
agreement in regard to this part of the frontier. The farther we go 
northward the more undecided is the boundary period. This part of America 
contains little more than uninhabited forests or Indian tribes, and the 
necessity of fixing the boundary has never yet been felt there. There also 
exists none between Louisiana and Canada." The eastern boundary was more 
definite, and Decres fixed it by the terms of the treaty of 1763: "It is 
agreed that in future the boundaries between the States of His Most 
Christian Majesty and those of His Britannic Majesty shall be irrevocably 
fixed by a line drawn down the Mississippi river from its source to the 
river Iberville, and from there by a line down the middle of that river 
and of the lakes Maurepas and Pontchartrain to the sea. New Orleans and 
the Island shall belong to France." The western boundary was described in 
the treaty of 1819 with Spain as follows: "The boundary line between the 
two countries, west of the Mississippi, shall begin on the Gulf of Mexico, 
at the mouth of the river Sabine, in the sea, continuing north along the 
western bank of that river to the 32d degree of latitude; thence by a line 
due north of the degree of latitude where it strikes the Rio Roxo, of 
Natchitoches, or Red river; then following the course of the Rio Roxo 
westward to the degree of longitude 100 west from London and(24) from 
Washington; then, crossing the said Red River and running thence by a line 
due north to the river Arkansas; thence following the course of the south- 

(23. Iowa.)

(24. Schouler, History of the United States, vol. ii, p. 53.)

Page 107

ern bank of the Arkansas to its source in latitude 42 north; and thence by 
that parallel of latitude to the South Sea" (Pacific ocean).

   In the year 1899 a conference of experts was appointed at the request 
of the census officer to make a special study of disputed questions in 
relation to the boundaries of the western territory acquired by the United 
States. This conference made its report April 5, 1900, and its conclusions 
in regard to the boundaries of the Louisiana Purchase follow:

   1. The region between the Mississippi river and lakes Maurepas and 
Pontchartrain to the west, and the Perdido river to the east, should not 
be assigned either to the Louisiana Purchase or to the Florida Purchase, 
but marked with a legend indicating that title to it between 1803 and 1819 
was in dispute.
   2. The line between the Mississippi river and the Lake of the Woods, 
separating the territory of the United States prior to 1803 from the 
Louisiana Purchase, should be drawn from the most northwestern point of 
the Lake of the Woods to the nearest point on the Mississippi river in 
Lake Bemidji.
   3. The western boundary of the Louisiana Purchase between 49° and 42° 
north followed the watershed of the Rocky mountains; thence it ran east 
along the parallel of 42° north to a point due north of the source of the 
Arkansas river, and thence south to that source.

   The conference found further,
   That the territory of Louisiana, as described by France and granted to 
Crozat by Louis XIV., extended on the east to the river Mobile, which, 
with the port, was ceded specifically by France to England by the treaty 
of Paris in 1763, Spain at the same time ceding the Floridas to Great 
Britain, with St. Augustine and the bay of Pensacola -- thus, 
inferentially at least, determining the respective boundaries of Louisiana 
and West Florida; that the first occupation of the interior of the 
territory between the rivers Mississippi and Perdido by the Spaniards, was 
during the War of the American Revolution, when it belonged to Great 
Britain; that Great Britain retroceded the Floridas to Spain in 1783, at 
which time the Louisiana territory belonged to Spain by the French cession 
in the preliminaries of peace of 1762 (confirmed 1763), whereby "all the 
country known under the name of Louisiana" was transferred; that Spain in 
1800 retroceded Louisiana to France as it was received from France in 
1763; that France in 1803 ceded the territory of Louisiana to the United 
States, as discovered and held by France, ceded to Spain, and retroceded 
to France; and, finally, that in 1819 Spain ceded to the United States all 
the territory held or claimed by His Catholic Majesty under the names of 
East and West Florida. In addition to the grounds of dispute between 
France and Spain, and the United States and Spain, here shown, there was a 
conflicting claim concerning the extent of West Florida, born of the 
contention between French and Spanish discoverers and settlers in the 
sixteenth and seventeenth centuries; and there was also the claim of the 
French, by right of La Salle's decent of the Mississippi in 1682, to "all 
the country drained by that river."

   With reference to the Louisiana boundary, there remained but one point 
of difference between the maps under consideration. Article II of the 
definitive treaty of peace in 1783, between the United States and Great 
Britain, after defining the northern boundary to the Lake of the Woods, 
continues as follows: ". . . Thence through the said lake to the most 
northwestern point thereof, and from thence on a due west course to the 
river Mississippi." Such a line as that described being obviously 
impossible, the Mississippi river being south not west of the Lake of the 
Woods, the line drawn by the conference was a line from the most 
northwestern point of that lake to the nearest point on the Mississippi. 
This line the conference regarded as justified by rules of international 
law and practice respecting vaguely described boundaries in such 
topographical circumstances.(25)

   The temporary act of October 31, 1803, for taking formal political 
possession of the new territory, continued the form of the Spanish 
government, merely substituting Jefferson for the king, and subordinate 
officers of his appointment for the king's officers. The act of March 26, 
1804, divided the territory on the 33d parallel -- the present line 
between Louisiana and Arkansas -- and provided for a government for the 
lower division, or "territory of Orleans," by a governor and secretary, 
judicial officers and a so-called legislative council of thirteen, all 
appointed by the president. There was much clamor against the arbitrary 
character of this government in which the people had no voice at all, but 
this form was modeled upon that of the ordinance of 1787, 

(25. Census Bulletin, no. 74, July 20, 1901.)

Page 108

under which the whole northwest territory and then the individual 
territories, such as Indiana and Michigan, as they were successively 
carved out of it, were governed. It was known as government by "the 
governor and judges," and under it all executive and legislative power was 
vested in a governor and three judges appointed by the president. These 
officers might adopt such laws of other states as were applicable to the 
territory. "The whole government thus originated in Washington and 
centered there, and was neither derived from the people governed nor 
responsible to them."(26)

   While this government, in form at least, was obviously arbitrary and 
unrepublican, yet its temporary necessity, until there should be people 
enough to form a popular government or render it practicable, was alike 
obvious; and the republican principle was saved by providing for a 
legislative assembly as soon as there should be five thousand free male 
persons of full age in the territory to elect its members. This assembly 
would submit names of ten persons to the governor from whom he should 
select five for a legislative council or upper house; though the governor 
had absolute veto power over legislation -- "the source of unseen harm 
still inhering in the institutions of Ohio."(27)

   The upper division, called the "district of Louisiana," was attached to 
the territory of Indiana for governmental purposes. Thus with the 
exception that the legislative authority in the territory of Orleans was 
broadened into the council of thirteen appointed exclusively by the 
president, the whole territory started under the same government as that 
under which the territory of Ohio had started. If the people of Ohio were 
fewer in number and so scattered that their participation in governing was 
impracticable, while those of Orleans were more compactly settled, yet the 
former were largely Americans, "to the manner born," while as to the 
latter it was frankly insisted that "the principles of civil liberty can 
not suddenly be engrafted on a people accustomed to a regimen of a 
directly opposite line," and who by prejudices of race were largely 
hostile to the new government. In both instances wise expediency amounting 
to temporary necessity prevailed. True, the principles of the government 
of the northwest territory which, as we have seen, were applied to 
Louisiana, were adopted under the coöperative leadership of Washington and 
Adams, and Jefferson and Madison, before they and their followers had 
divided on federalist and republican party lines. And the defense of the 
principle by some of the republicans on the ground that Congress had 
absolute power over the territories -- that "the limitations of power 
found in the Constitution are applicable to states and not to 
territories" -- was inconsistent with the spirit, at least, of the strict 
constructionist principles, which in its youthful ardor the new republican 
party was just then promulgating with such enthusiasm. This incongruity 
was illustrated when Marshall, the great federalist chief justice, 
validated this principle of the extra constitutional power of Congress as 
applied to Florida. It was left to Chief justice Taney, thirty years 
after, somewhat under the spur of the later developed slave interests, to 
bring the belated Marshallized constitution back again into consistency 
with Jeffersonian principles.

   But though some of Jefferson's followers, like Breckinridge and Rodney, 
lost their heads and professed a false faith, and though Jefferson 
himself, in the temporary government as in the purchase, found it 
necessary to technically burst some impracticable bonds of a written 
constitution, yet both Jefferson and his party were in the long run 
absolutely true to their republican faith in their policy of giving 
republican government to all territories and of admitting them as states 
in the Union under republican constitutions of their own making at the 
earliest practicable moment. In his general republican aim touching the 
new territory Jefferson was, as the sequel shows, "steady as the magnet 
itself."

   On the 30th of November the Spanish authorities formally and, we may 
well believe, most reluctantly, turned over Louisiana to 

(26. Cooley, History of Michigan, p. 146.)

(27. King, History of Ohio (Commonwealth Series), p. 183.)

Page 109

Laussat, the French prefect at New Orleans, and on December 20th following 
possession was in turn given to General James Wilkinson and Governor 
Claiborne of Mississippi, who were authorized to receive it on the part of 
the United States. When the French flag, which was floating in the square, 
was hauled down and the American flag hoisted to its place, it is related 
that the few Americans present at the momentous ceremony cheered, but that 
not a few of the Frenchmen shed tears. On the 9th of March, 1804, a 
detachment of American troops crossed the river from Cahokia to the 
village of St. Louis, and Don Carlos Dehault Delassus delivered upper 
Louisiana to Captain Amos Stoddard, of the United States army, who was 
authorized to receive it on behalf of France. The next day he turned it 
over to himself representing the United States, thus ending thirty-eight 
years of Spanish rule. On the 26th of the same month President Jefferson 
approved the act of Congress dividing the territory and placing the upper 
division, the "district of Louisiana," under the government of Indiana 
territory. That government was embodied in Governor William Henry 
Harrison, afterward president of the United States, and three judges -- 
William Clark, Henry Vanderburgh, and John Griffin. The secretary was John 
Gibson. These men had organized the first government of Indiana, July 4, 
1800. In a very broad sense, therefore, both territorially and politically 
speaking, William Henry Harrison -- "Old Tippecanoe" -- was the first 
governor of Nebraska, and the first capital was Vincennes. Governor 
Harrison relieved Captain Stoddard, who had been "king for a day" with the 
powers and prerogatives of a Spanish lieutenant-governor.(28)

   By act of Congress the laws of the district of Louisiana were to remain 
in force until they were altered, modified, or replaced by the governor 
and judges of Indiana territory. On the 1st of October the governor and 
judges promulgated six laws for Louisiana territory;(29) but these did not 
affect Indiana, and no law of Indiana extended over Louisiana. The most 
important of these six laws applied to slavery, and many of its provisions 
remained in force as long as slavery existed in Missouri. The French 
settlers had carried slavery with them to St. Louis, and slaves were 
actually held at this time in Indiana under the quasi-protection of the 
law; and Harrison, the first governor over "the Nebraska country," was 
himself a slave-holder. The people of the new territory stoutly rebelled 
against the arbitrary absentee government, and they again gave cry, to the 
"no taxation without representation" shibboleth whose revolutionary echoes 
had scarcely died away.

   We have already seen that the slavery question faintly shadowed the 
Louisiana Purchase from the first. Now one of the chief objections to the 
absentee government was based on the fear that the extension of the 
abolition ordinance of 1787 over Louisiana might be a preliminary to the 
abolition of slavery there. It was insisted that re-union of the whole 
territory under a single government would be more convenient than the 
Indiana annexation, and that the separation from the territory of Orleans 
might afford the pretext to "prolong our state of political tutelage." At 
the same time that these people of upper Louisiana were insisting on being 
detached from Indiana the people of western Indiana were petitioning 
Congress to have that territory attached to Louisiana as they believed 
their slave property would be safer under such an arrangement.(31)

   These grievances were formulated in a petition prepared and adopted by 
a convention held at St. Louis, September 4, 1804, and which was received 
by the Senate December 31st. Congress gave prompt ear to the remonstrance, 
and March 3, 1805, a law was passed to take effect July 4th, erecting the 
territory of Louisiana under a separate government, but the same in form 
as that of Indiana, legislative power being vested in a governor and three 
judges appointed by the president, "who shall have power to establish 
inferior courts in the said territory and prescribe their jurisdiction

(28. Carr, History of Missouri (Commonwealth Series), pp. 81, 82.)

(29. See Revised Laws of Louisiana Territory, 1808.)

(30. [none])

(31. Ch. 8, Dunn's History of Indiana.)

Page 110

and duties and to make all laws which they may deem conducive to the good 
government of the inhabitants thereof."(32) The act contained a provision 
in the nature of a bill of rights guaranteeing to the people of the 
territory right of jury trial in civil and criminal cases and immunity 
from religious disability, and prohibiting the passage of laws 
inconsistent with the Constitution.

   The first governor of the new territory was General James Wilkinson who 
had been a leader in the agitation for forcibly clearing the Mississippi 
of Spanish obstruction. He went to Kentucky as a merchant in 1784, and 
appeared in New Orleans as a trader in 1787. In 1807 Aaron Burr was tried 
for treasonable conspiracy to break up the federal union, and a few years 
later Wilkinson was also tried as an accessory. Though both escaped 
conviction, yet the bad character of both was established. J. B. C. Lucas, 
a French Pennsylvanian, was appointed chief justice, and Dr. Joseph 
Browne, of New York, a brother-in-law of Burr's, was appointed secretary.

   Captain Lewis, who had returned from the Lewis and Clark expedition in 
September, 1806, was appointed governor in place of Wilkinson in the 
spring of 1807. He encountered great disorder on account of disputes over 
land titles and the hostility of creoles to American rule. Spain had 
continued in possession of Louisiana after the treaty of retrocession to 
France in 1800 till the time of American occupancy, and the act of March 
26, 1804, provided that all grants of land made by Spain during this time 
were void. In 1808, Pierre Chouteau, under the instructions of Governor 
Lewis, concluded a treaty with the Osage Indians for the cession of forty-
eight million acres of land extending from Fort Clark, thirty-five miles 
below the mouth of Kansas river, due south to the Arkansas and along that 
river to the Mississippi. The Sacs and Foxes sold three million acres in 
1804. In 1803 this tribe and the Iowas, their allies, claimed all the 
state of Missouri, as well as the northwest quarter of Illinois and part 
of southern Wisconsin. The treaty of Portage des Sioux, village on the 
west side of the Mississippi, few miles above the mouth of the Missouri 
put an end to the Indian wars in the territory but on the part of the 
Indians there was the familiar bitter complaint of dark ways and vain 
tricks pursued by the white negotiators. Howard succeeded Lewis as 
governor in 1810. By the census of 1810 the population of the territory 
was twenty thousand, and settlements bad been pushed along a strip from 
fifteen to twenty miles wide from the Arkansas river to a point not far 
above the mouth of the Missouri,33 and had already necessitated the 
treaties with the Indians. By the act of June 4, 1812, which was to take 
effect December 12th, the territory of Louisiana became the territory of 
Missouri, and its government was advanced to the second grade after the 
fashion of the second grade territories of the Northwest Territory. The 
act provided for a governor appointed by the president, a house of 
representatives elected by the people, and a legislative council of nine 
members appointed by the president from a list of eighteen persons 
furnished by the house of representatives -- a somewhat more than half-way 
republican form of government. Governor Howard divided its settled portion 
into five counties by proclamation, and then for some months the secretary 
of the territory, Frederick Bates, acted as governor until William Clark, 
of the Lewis and Clark expedition, was appointed in 1813. He held the 
office until Missouri became a state in 1821 and after this he was 
superintendent of Indian affairs until his death. He seems to have been 
even more skillful and a better selection than his famous companion for 
the main function of these officers, which was to get hold of the lands of 
the Indians; and through his negotiations, by 1825, the Sacs and Foxes, 
the Osages and the Kickapoos had relinquish all their domains within the 
state of Missouri.

   All the part of the original territory between latitude 33° and 36° 
30', that is, between the south line of Missouri and the north line of 
Louisiana, and extending west to the Mexican 

(32. Annals of the 8th Cong., 2d ses., p. 1684.)

(33. McMaster, History of the People of the United States, vol, ii, pp. 
570-871.)

Page 111

line, about five hundred and fifty miles, was included in Arkansas 
territory by the act of March 2, 1819. From the time of the admission of 
Missouri as a state in 1821 until 1834 the remaining part of the territory 
was left without any government whatever. By the act of Congress of June 
30, 1834, "All that part of the United States west of the Mississippi 
river and not within the states of Missouri and Louisiana or the territory 
of Arkansas, and also that part of the United east of the Mississippi 
river, and not any state to which the Indian title has en extinguished, 
for the purposes of this act, shall be taken and deemed to be Indian 
country." The object of this act was to define and regulate the relations 
of the United States with the Indians of the territory question, and 
jurisdiction of questions arising under it in all the territory south of 
the north line of the Osage Indian lands was vested in the courts of 
Arkansas, and of all the territory north of this line and west of the 
Mississippi in the courts of Missouri.(34) The act provided for a 
superintendent of Indian affairs for all the Indian country who resided at 
St. Louis, and his salary was $1,500 a year. He was provided with two 
agents.(35) By the act of June 28, 1834, that part of the territory east 
of the Missouri and White Earth rivers and north of the state of Missouri 
was "for purposes of temporary government attached to and made a part of 
Michigan."(36) That part of the territory west of the Missouri river, 
which included present Nebraska, was left without government or political 
organization until the passage of the Kansas-Nebraska bill in 1854.

(34. United States Statutes at Large, vol. 4, p. 729.)
(35. Ibid., p. 735.)
(36. Ibid., p. 701.)