Chapter 8: The Amendment He Could Not Send

Scene I

The treaty arrived in a leather satchel that smelled of horse and the long road from Washington City, and Jefferson carried it upstairs himself rather than wait for a servant to bring it.

That was the first sign. He knew it at the time and did not examine the knowledge.

The octagonal study at Monticello held, on this last afternoon of July, a heat the open windows did nothing to diminish—thick, vegetable, pressing into the lungs. He set the satchel on his writing table between the plaster bust of Voltaire and the brass compass, stood for a moment with his hands at his sides, and untied the cords.

He read standing, as was his habit, moving his lips slightly over passages requiring close attention. He had learned French from books before he learned it from men, and the treaty's French was the French of lawyers—precise and cold, which suited him well enough. The English formed itself in his mind with the clarity of one whose life had been spent insisting that language must mean what it says.

The first articles presented no difficulty. Cession of territory. Transfer of sovereignty. The instruments of governance to follow. He turned the pages with the satisfaction of an architect reviewing plans whose foundations he has long imagined, noting the proportions, approving the disposition of load-bearing elements.

He was on the fifth article when he stopped.

The same extent that it now has in the hands of Spain, and that it had when France possessed it.

He read it again. A third time. Then he set the treaty down and crossed to the window.

Below, in the vegetable garden, one of the enslaved men was working a row of beans in the flat white light of afternoon. The mountains beyond had dissolved into haze. He stood there long enough to feel the sweat at his collar soak through, the linen clinging to his neck with a warmth that was almost animal, then returned to the table.

The same extent. The extent Spain held, which was the extent France had held before Spain. But France and Spain had disputed that extent for thirty years, and the document offered no resolution—only a circular reference that sent each term back to the last. The western boundary was not defined. The eastern boundary, where West Florida began and Louisiana ended, was not defined. The republic had purchased a continent whose edges the instrument declined to specify.

A drop of sweat fell onto the page. He blotted it with his sleeve, pressing the fabric against the paper until the dampness lifted, working the cloth in small circles until the ink was dry. The gesture took longer than it needed to. He finished it and drew the pages toward him again.

Twenty years. He had spent twenty years arguing—in letters, in pamphlets, in the Kentucky Resolutions that bore his hand if not his name—that a government of enumerated powers could not exceed those powers without corrupting the instrument that gave it life. He had argued it against Hamilton over the Bank. He had argued it against Adams over the Sedition Acts. He had built his presidency on the proposition that the Constitution meant what it said and said what it meant, and that a man who stretched its language to accommodate his desires was not governing a republic but dismantling one. And now the clean lines of that argument had gone subtly out of true—the keystone shifted, the whole arch bearing its weight on a crack he had spent two decades insisting was not there.

He picked up the compass and set its point on the word extent. The brass was warm from the room.

The Senate reconvened in seven weeks. If the treaty did not reach the chamber with the administration's full endorsement before the seventeenth of October, Pickering would fill the silence—and the constitutional objection Jefferson was at this moment turning in his mind would become, in Pickering's hands, not a scruple to be resolved but a weapon to be discharged. Every day of hesitation was a day Pickering spent loading it. And if the Senate session expired without ratification, the First Consul's four-week instruction to Barbé-Marbois—a detail Livingston had reported with the urgency of a man who understood its meaning—would have long since elapsed, and Napoleon would be free to conclude that the Americans had declined his offer. The British fleet at Jamaica would do the rest.

He pulled a fresh sheet from the drawer, uncapped the inkwell, and took up his quill.

He would draft the amendment himself. He had been composing it in some chamber of his mind since the treaty's existence became known to him, and now he set it down in the measured, architectural prose that was his natural idiom—each clause bearing its proper weight, each provision resting on the one below. The republic needed this territory. The republic also needed its Constitution. There was no reason, he wrote, why it could not have both, if men of sufficient resolution were willing to do the honest work.

The quill moved steadily. The heat pressed against his back. If the amendment stalled in the state legislatures—if it arrived too late, if Napoleon read the hesitation as repudiation and withdrew the offer—the republic would lose the river, and everything west of it, and those who had warned that Jefferson's constitutional scruples would cost the nation its future would have been proved right in the most irrecoverable manner possible.

He did not stop writing.

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Scene II

He woke before the household stirred and came downstairs in the dark, his bare feet finding the boards by memory. The study was cold with the night's last breath—the first morning in weeks that had not opened with heat already settled in the walls. He lit the lamp himself, the sulphur match flaring and stinging his nostrils, and sat in its circle of light with the draft before him.

The third revision. The discarded versions lay in the basket; he had not burned them.

He dipped his quill and wrote: My dear Madison—

And stopped. Not because the salutation was difficult. Because the next sentence must do three things at once: establish the constitutional objection with sufficient precision that Madison could not later misrepresent it as a scruple lightly held; acknowledge the political hazards of the amendment path without conceding them to be fatal; and accomplish both before Madison assembled the Cabinet against the idea, which Jefferson calculated he had perhaps four days to prevent. Madison was already in Washington. Three days for a letter in each direction. The margin was as thin as the paper under his hand.

He wrote. The quill moved steadily, the scratch of it the only sound in the room, and the smell of fresh ink joined the sulphur residue and the cold ashes in the grate. What he produced was, he judged, the most careful constitutional argument he had committed to paper since those Resolutions of four years past—and that recollection stopped his hand, because those earlier pages had argued in precisely the opposite direction from the argument he now required, and Madison had read every word of them and would not have forgotten.

It is plain, he wrote, that the Constitution grants to the general government no power to acquire foreign territory by purchase or by treaty, and that the Tenth Amendment reserves to the states or to the people all powers not so delegated. The acquisition of Louisiana being a power not enumerated, an amendment is the only honest remedy—

His hand cramped around the shaft. He set the quill down and flexed his fingers, pressing each one back until the knuckle cracked softly. In the pause he read back what he had written, and his eye found, three sentences earlier, a clause he had half-intended to suppress: though I am sensible that the delay an amendment requires may prove longer than the First Consul's present disposition will permit, and that necessity may in the end compel us to rely upon the executive's treaty-making authority in ways that the strict construction of that instrument does not, in candour, support.

He had written it without deciding to write it. The sentence sat in the middle of his argument like a stone in a ford—immovable, altering the current on either side.

He picked up the quill and held its point above the passage.

He set it back down. He would not cross it out.

What troubled him was not the constitutional argument itself, which he considered sound, but the knowledge—accruing from three decades of correspondence—of precisely how Madison would receive this letter. Madison would follow the constitutional logic with the care of a man who had himself built much of the document under discussion. And then he would arrive at the concession sentence. And he would understand—because he was Madison—that Jefferson had already supplied, in his own hand, the argument against his stated position.

Jefferson had given Madison the weapon with which to defeat him. He had done it, he suspected, because some part of him wished to be defeated.

He took the draft—the copy, not the original, which remained in his private papers—and folded it. His fingers moved with the precision of a man creasing a surveyor's plat, each fold doubled, each edge aligned. The paper resisted at the last fold; he ran his thumbnail along it twice more, the sound of it sharp in the silent room.

He tucked the folded draft into the letter and addressed the whole. Then he rose, carried it to the outgoing tray in the hall, and placed it atop the other correspondence. The floorboards were cold under his feet. The house was still dark. No one had witnessed what he had done, and no one would know, until Madison broke the seal in Washington, that the President of the United States had sent the means of his own persuasion to the man he had charged with persuading him.

He returned to the study and drank the coffee his man had left the night before—cold, bitter, thick at the bottom of the cup. He drank it standing, looking out at the hills where the first grey light was separating the ridgeline from the sky, the taste of it burnt and accusatory, its precise charge impossible to formulate and therefore impossible to answer.

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Scene III

Madison had positioned himself near the window, which was the wrong choice—the glass held the August heat against his back and he stood in it without complaint, which was itself a form of argument. The city beyond the President's House smelled of horse and clay and something sweet rotting in the open channel two streets north. The floorboards were gritty with the fine dust that entered through every crack in this unfinished building, this capital still more ambition than fact.

The draft amendment lay on the desk between them.

Jefferson took it up before Madison could speak. He held it without reading it, his eyes on his Secretary of State, and asked the question he had carried from Monticello like a stone in his pocket.

"Article Two, Section Two gives the executive the power to make treaties. That is not disputed. Show me where in that document—or in any other article, any section—the power to incorporate foreign territory and its inhabitants into the union is to be found."

"The treaty power is broad," Madison said. He did not look up from the pages.

"In its application to the subjects treaties customarily address." Jefferson set the pages down and kept one hand upon them, his fingers spread. "Commerce. Navigation. Alliance. Boundaries between existing jurisdictions. Not this. No treaty has ever attempted what this one attempts. We are not adjusting a line on a map. We are acquiring a dominion the size of the existing republic, with a population that has not consented to our governance and a legal inheritance—Spanish, French, colonial—that our Constitution does not contemplate."

A fly landed on his hand. He shook it free with a motion that broke his cadence, and he recovered, but the interruption had cost him something—the measured authority of the preceding sentences had momentarily disaggregated, and he saw Madison register it.

"The powers not delegated," Jefferson continued, more deliberately now, "are reserved to the states respectively, or to the people. I have spent twenty years arguing that this clause means what it says. I cannot now pretend it is ornamental."

Madison was quiet. He had the habit, when pressed, of looking at documents rather than at the person pressing him—his gaze moved to the open treaty on the desk, and he appeared to read a line before he spoke.

"You ask me for the clause. I will tell you what I believe it to be, and you will find it insufficient, and you will not be entirely wrong." He paused. "Hamilton found the same door and walked through it, and I spent a decade telling him the house would fall."

Jefferson said nothing.

"The executive's authority to conclude treaties, broadly construed, in conjunction with the necessary-and-proper clause as it applies to executing those obligations—" Madison paused again. Not from uncertainty; from the deliberateness of a man laying stones across uncertain ground, testing each before committing his full weight. "It is not a strong argument on its face. I will not pretend otherwise to you."

"Then you are asking me to ratify a document you cannot constitutionally defend."

"I am asking you to consider what happens if you do not. Livingston's dispatch notes the enslaved population of the territory—some fifty thousand souls—with the flat brevity of a man entering an inconvenient figure in a ledger he did not intend to examine. That figure will not remain a notation. It will become an argument, and the argument will find its advocates, and by the time it reaches the Senate floor it will have acquired a force that no constitutional scruple will contain."

"I have considered it."

"Have you considered Pickering?" Madison turned from the window. The light behind him made his face unreadable. "He will take your draft and carry it into the Senate chamber as proof that the administration's own president believes the purchase is void. He will not argue for the amendment's passage—he does not want the territory. He will argue that the question of its necessity is itself disqualifying. He will use your scruple as the instrument of the treaty's destruction."

"And if he is right? If the scruple is sound?"

"Then the republic will be constitutionally pure and strategically ruined. The river will belong to whatever power takes it next—France, Britain, Spain restored—and the western settlements will have their answer about what the Constitution is worth to them." Madison's voice did not rise. It became more precise, which was the same thing. "You have written to me that the Constitution must be capable of serving the nation's survival. I have those letters. I have not misunderstood them."

Jefferson held the draft amendment for the duration of what Madison said next—the Federalist arithmetic laid out, Napoleon's impatience invoked as a clock already running, the state legislatures that would not convene before winter, the British fleet at Jamaica that would not wait for them—and he did not look at it while Madison spoke.

His grip tightened on the pages until the paper bent audibly.

Madison finished. The room was very warm, the air unmoving, and somewhere in the street below a vendor called out a price that no one answered.

Jefferson set the amendment down. Then he did something Madison had not anticipated: he pulled the pages back across the desk, drew the inkwell toward him, and uncapped it. The smell of iron gall rose between them, sharp and acrid.

"I will require your written opinion," Jefferson said. "Not the argument you have made this afternoon—I have heard that and I do not find it sufficient. Your written opinion, over your signature, that the executive's authority under Article Two is adequate to this acquisition. If you believe it, you will have no difficulty committing it to paper."

Madison looked at the open inkwell. He looked at Jefferson.

"And if I find the argument strained?"

"Then you will say so in writing, and we will both know where we stand, and the Senate will know it too."

A long pause. The dust motes turned in the light from the window. The vendor called again, farther off now.

"I will prepare such an opinion," Madison said.

"Before the week is out. The special session cannot wait."

Madison inclined his head—the smallest possible acknowledgment—and left the room without another word. Jefferson listened to his footsteps recede down the corridor, the sound diminishing on the bare boards until it was indistinguishable from the settling of the house itself.

He capped the inkwell. The smell lingered.

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Scene IV

The lamp threw its light at a low amber angle across the desk. The treaty lay to his right, weighted at its upper corner by the plaster bust. The draft amendment lay to his left, unweighted, its edge lifting faintly whenever a draught found the gap beneath the study door. From somewhere in the lower reaches of the house, a loose shutter knocked against its frame at irregular intervals—once, then silence, then twice in succession—a sound without pattern, without resolution.

Madison had been gone two hours.

Jefferson drew out the letter—not the arguments delivered this afternoon, but the one of three weeks past, read at Monticello and again on the road south and a third time on the evening of his arrival. The paper had softened at the folds from handling. He spread it flat and read it again, his finger tracing the lines as though the words might yield something different under pressure.

Madison had written that a constitution which could not serve the nation's survival had already failed its essential purpose—that the framers had not designed an instrument of self-destruction, and that a reading so strict as to prohibit the republic's most vital acts of self-preservation was a reading the framers would have repudiated.

The argument was not new. Jefferson had encountered versions of it in the writings of men he had spent his career opposing. He had encountered it, most fatally, in Hamilton.

He folded the letter along its original creases and placed it beside the treaty.

The shutter knocked twice, then was still.

He did not look at the treaty. He had read the relevant clauses until the language ceased to carry meaning, until the fifth article resolved into a cartographic vacancy dressed in the grammar of precision—a sentence that transferred a continent by declining to describe it. Fifteen millions of dollars for a territory whose boundaries were nowhere defined in the instrument of purchase, a domain whose western edge dissolved into the undifferentiated interior of a continent no European pen had traced with authority. He had set his compass on the word extent and let it remain there.

He knew also what Livingston's dispatch had said about the inhabitants—not the French Creoles of New Orleans, not the Spanish settlers of the river parishes, but the others, the ones Livingston had noted in a single sentence with the flat brevity of a man recording an inconvenient inventory item: that the territory contained a considerable population held in servitude, whose legal condition under American sovereignty the document did not address. Jefferson had read that sentence twice. He had not answered it in his reply to Livingston. He did not answer it now. But he found, tonight, that the sentence would not leave him—that it sat beneath his constitutional objection like a foundation stone he had chosen not to examine, because to examine it was to discover that the structure above was built on something worse than doubtful law. The draft he had composed addressed the question of federal power. It did not address the question of what that power would govern. It did not ask whether the republic that acquired this territory would extend into it the institution that already disfigured the republic it possessed. Three pages of constitutional argument, and the deepest constitutional question—the one that would outlast the document, outlast him—he had not touched.

He could not touch it. Not tonight. Not in this document. He let that knowledge stand without attempting to resolve it, because resolution was not available and pretending otherwise would be the final dishonesty in an evening already furnished with several.

The lamp guttered from a draught and he cupped his hand around the glass chimney, holding it there until the flame steadied. The glass was warm against his palm. He held it a moment longer than necessary, feeling the heat build toward discomfort, then withdrew.

He took up the draft amendment.

Three pages in his own hand, revised from the versions begun at Monticello. The argument was sound. He knew it was sound. Nowhere among the enumerated powers appeared the authority to incorporate foreign territory and its inhabitants into the republic by executive treaty. Those earlier Resolutions had said as much, in language chosen with the care of a man building a wall he intended to last. The letters to Giles, to Taylor, to a dozen correspondents across twenty years—they were all there, in the files and in the memory, a structure of argument so carefully raised that it now stood between him and what he meant to do, and he could not pass through it without bringing down every stone.

He could not answer Madison's letter. He could not answer it because Madison had not made an argument. Madison had made a statement of necessity and called it reasoning, and Jefferson, who had spent his life distinguishing between the two, found tonight that the distinction had ceased to govern him.

He read the draft once, from the first line to the last.

Then he opened the deep drawer on the left—the one where he kept the letters he neither sent nor destroyed—and slid the pages in. He closed it with a deliberateness that occupied the full motion of his arm. The wood met the frame with a sound like a book shutting.

He rested his hand on the closed drawer. The wood was smooth and faintly cool.

Then he withdrew it, turned to the treaty, and drew a fresh sheet toward him.

To the Senate and House of Representatives of the United States—

The message to Congress would need to establish the constitutional ground on which the administration proceeded. He had already drafted the central passage three times. He pulled the most recent attempt from beneath the fresh sheet and read: that the Executive, in pursuance of the treaty power vested in him by the second article, and in the exercise of that discretion which the public safety and the law of nations alike require—

He stopped. He drew his pen through discretion which the public safety and the law of nations alike require and wrote above it: authority which the general welfare and the exigencies of the republic's condition have rendered indispensable.

He read the revision. He crossed that out as well.

He was trying to say what Hamilton had said about the Bank—the necessary-and-proper clause, the implied powers, the sovereign prerogative of a government that must act or cease to be a government—and he was trying to say it in language that would not be recognized as Hamilton's by any literate reader of the period's pamphlets. He had spent eleven years attacking that construction. He had written the word usurpation in letters he now wished he had burned. And here he sat, composing Hamilton's argument in Jefferson's hand, and the only question remaining was whether the phrasing would be sufficiently his own to preserve the fiction that the principle was different.

He wrote a third formulation. A fourth. Each version was slightly less recognizable as the position he had

spent his career opposing, and slightly more dishonest for the concealment, and he shaped each word with the knowledge that the language of this message would outlast him—that future presidents would cite it, that future attorneys would argue from it, that the construction he placed upon executive authority tonight would become precedent in the hands of men whose ambitions he could not foresee and would not have trusted.

He wrote the fifth version of the clause, and this one he did not cross out.

He set the pen down and reached for the treaty, opened it to the fifth article, and placed the congressional message beside it so that both documents lay before him in the lamplight—the instrument of purchase and the argument constructed to justify it, the one declining to define its own extent, the other declining to confess its own cost.

The flame guttered once. Steadied.

He had just drawn the message toward him to affix his signature when he heard the outer door—not the tentative knock of a servant uncertain of the hour, but the hard, purposeful rap of a man who had ridden through the night and considered himself entitled to be heard. A voice reached him through the anteroom, low and urgent, the words not yet distinguishable but the register unmistakable: Meriwether Lewis, his secretary, attempting to forestall whoever it was. Then Lewis's voice rose, a thing Jefferson had rarely heard, and the name that cut through the door stopped his hand above the page.

Pickering.

Not a letter. Not a printed remonstrance delivered by clerk in the morning. Timothy Pickering himself, at this hour, in this house, with whatever he had come to say or to demand or to place before witnesses before the signature was dry.

Jefferson did not move. He heard Lewis say, in a tone that had abandoned persuasion entirely: Sir, the President has not yet—

The latch turned.