Chapter Nine: The Senator from Massachusetts

I.

The chairs had been arranged the previous evening by a servant who understood his instructions, and Jefferson had rearranged them this morning himself, drawing each one a few inches nearer the table's centre, correcting a symmetry that was not quite symmetry. The effect he sought was not grandeur but equality — gentlemen convened in common deliberation, the republic's domestic furniture. He had achieved it, or nearly. The fire had not been laid; he had not asked for it, and the morning's chill persisted in the room's upper air, settling with insistence along the windows that faced the unfinished avenue. From the kitchen passage below came the faint percussion of crockery being stacked, and with it the smell of coffee grounds and lye soap — the household's morning ablutions conducted at a pitch calculated not to reach this floor, and failing.

Senator Cutler of Ohio arrived first, at half past eight, and brought the cold in with him — the raw, mineral cold of a Washington morning that had not yet decided whether it would produce rain or merely threaten it.

He was compact and direct, with the blunt economy of those who had staked property on uncertain ground and required their interlocutors to understand this fact. Jefferson received him with the warmth he reserved for the genuinely useful, gestured toward the chairs, and poured water from the pewter jug without asking whether it was wanted. The glass scraped faintly against the table's grain as he set it before Cutler. The senator settled himself with slight deliberateness, his opening remarks already composed — rehearsed, Jefferson suspected, on the road from his lodgings.

'Mr. President.' A pause, and then: 'I will speak plainly, as you have always encouraged.'

'I have always found plain speech the truest economy.'

'Then I will ask you directly, sir, by what constitutional authority the executive proposes to incorporate a foreign territory — its inhabitants, its laws, its property arrangements — into the body of this republic, and to hold out to those inhabitants the eventual privileges of citizenship, when no power of the general government extends to such acquisition.' Cutler drew a folded paper from his coat and set it on the table between them. 'Senator Pickering has prepared a remonstrance. He intends to read it from the floor before the week is out, and he has asked me to convey its principal argument to you directly, in advance, as a — he used the word courtesy.'

The paper lay on the table.

Jefferson did not touch it. He recognised Pickering's geometry in the framing — too precise for Cutler's ordinary idiom — and what moved through him was recognition: the argument was his own, made in his own hand, not three months past. If Pickering read that remonstrance before the ratification vote was secured, three uncommitted senators would have the cover they required to vote against the treaty. Fifteen million dollars forfeit. Monroe's commission dishonoured. The western country strangled at New Orleans.

He lifted the water glass and drank, unhurried, letting the silence do its work.

'Senator Cutler, a republic whose western commerce can be strangled at the pleasure of a European power is not a republic in any material sense — it is a dependency wearing the garments of independence. The question before us is not, in the first instance, a question of enumerated powers. It is a question of whether this nation shall exist as its founders designed it to exist.'

Cutler's jaw tightened. He placed his hand flat on Pickering's paper. 'With respect, Mr. President, that is not an answer. The Senator will read this from the floor whether I carry your position back or not. He has the text prepared. He has the votes to force a referral to committee. What I require — what the western members require — is a constitutional argument that will hold when Pickering is finished with it. Not a sentiment. An argument.'

Jefferson drew from his coat the memorandum Madison had sent the previous night — four pages, closely written — and set it on the table beside Pickering's paper. He rested his thumb across the lower third of Madison's first page, covering the remonstrance by an inch.

'The Secretary of State has addressed, with considerable thoroughness, the treaty-making power as it bears upon this acquisition.' He allowed Cutler a moment to register the document's density, its official provenance. Then he leaned forward and lowered his voice — not for secrecy, but for the intimacy that secrecy requires. 'I am also given to understand, Senator, that your constituents' more immediate anxieties concern the security of land grants made under the Spanish administration — the question of what titles the new governance will honour.'

Cutler's eyes moved from the memorandum to Jefferson's face. 'You understand correctly.'

'Then attend to this.' Jefferson placed his forefinger on the table between the two documents. 'If Pickering reads his remonstrance before the vote, the treaty fails. Every land title in the Orleans Territory becomes the subject of a dispute that will occupy the federal courts for a generation. Your constituents will spend their children's inheritance on lawyers. The Spanish grants, the French grants, the American claims — all of them suspended in a legal void that no subsequent Congress will have the authority or the appetite to resolve.'

He let the sentence stand. Somewhere below, a door closed. The coffee smell had faded, replaced by the sharper scent of the cold room itself — old plaster, the faint must of curtains that had not been aired.

'If the treaty is ratified, I will personally direct the Secretary of State to prepare instruments guaranteeing the validity of grants made under both the French and Spanish administrations. In writing. Before the territorial session opens.'

Cutler looked at the two documents on the table. Then he picked up Pickering's paper and returned it to his coat.

'I will convey your position to the Senator.'

'I would be grateful if you conveyed it before Thursday.'

Cutler paused at the door. 'And if Pickering reads it regardless?'

Jefferson aligned the edge of Madison's memorandum with the table's grain. 'Then I shall require your vote, Senator, and the votes of every western member who has staked his constituents' fortunes on the river trade. That is not a request I make lightly.'

The door closed. Jefferson straightened the chair Cutler had occupied, pressing each leg back until the joints were square. He did this without attending to it. The room was still cold. Three more senators were expected before noon, and the fire had not been lit, and Pickering's remonstrance was riding in Cutler's coat toward one who had never yet been persuaded to withhold a weapon once he had sharpened it.

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II.

The dispatch ran to eleven pages. Someone at the Senate — he suspected young Giles, whose copperplate penmanship had always tended toward exhibition, as though each letter were aware of its eventual audience — had rendered Pickering's address with a fidelity that was itself a form of prosecution.

Jefferson read standing, as he always read documents he did not wish to sit with. He held the pages near the window where the late afternoon light was strongest, his shadow falling across the desk behind him like a second reader bent over work of its own.

The fire had been lit since midday; the study was warm enough that the beeswax in the candelabrum had softened slightly, and beneath the smoke and the char of applewood there was the fainter smell of the mahogany specimens lining the eastern shelf — dried, resinous, faintly sweet, the accumulated odour of a cabinet not properly aired since August. A mockingbird outside the window had been working through its repertoire for the better part of an hour, each phrase borrowed from some other throat.

He read through the structural objections without annotation: the treaty-making power did not extend to the acquisition of foreign territory; the guarantee of republican government to new states could not be discharged when those states' populations had never consented to American sovereignty; the debt obligation was ruinous. These were the expected batteries, ranged in the expected order. He turned the page.

Then Pickering turned to the Kentucky Resolutions.

Six sentences, perhaps seven, quoted with the accuracy of a man who had spent the previous evening with the original text before him. The general government is the creature of the states, possessing only those powers which the states have delegated to it, and no others. Jefferson's own words, from his own hand, circulated under John Breckinridge's name in 1798 and acknowledged in private correspondence ever since. Pickering set them beside the treaty's constitutional premise with the deliberate care of a lapidary fitting stones that did not match. He did not editorialize. He did not need to.

Jefferson set the dispatch down on the desk. He pressed his palms flat against the wood and stood there, leaning slightly forward, the posture of a man bracing against something that had not yet arrived.

He had written those words. Not as a convenience assembled for a particular contest — not as a weapon to be discarded when the battle changed — but as the architecture of everything he had constructed for thirty years. The principle upon which the Bank had been rightly opposed. Upon which the Alien Acts had been rightly condemned. The foundation beneath every floor he had ever stood on in public life. And Pickering — Pickering, whose constitutional fidelity was a garment worn and discarded as faction required — had found the one occasion on which the garment fit.

The mockingbird produced a phrase he had not heard it use before — something liquid and descending, borrowed from a species that did not winter in Washington City — and then repeated it twice, as though testing whether the stolen song would hold.

He straightened. He crossed to the desk, took up the quill, and opened the journal.

I have done what I believed the nation required, and I cannot pretend that the Constitution has authorized it. The Resolutions of 1798 are my own argument, made in my own hand, and Senator Pickering has used them correctly. That he uses them in the service of faction and sectional interest does not make them less correct. I have chosen necessity. I cannot dress it otherwise.

He set down the quill and flexed his fingers, staring at the page. Then he added: This entry is not for correspondence. He blotted it.

The mockingbird had gone quiet. From somewhere below, in the kitchen passage, a door closed with a wooden report that carried through the floor joists.

He pulled Madison's memorandum toward him — the constitutional defence, four pages of careful argument — and began to read it for the fourth time, marking nothing. Pickering's eleven pages lay at his elbow. The journal lay open, the ink still drying. Three documents on one desk: the accusation, the defence, and the confession. Only one of them was honest.

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III.

The household had been retired two hours, perhaps three. He had not heard the last servant's footfall on the stair, which meant the interval was long enough to have erased the sound from memory, though not so long that the tallow candle had burned below its collar.

He stood at the window. The glass was cold against his forehead where he leaned into it, and through the dark pane he could see nothing but the faint reflection of the candle flame behind him, doubled and wavering in the imperfect glass. The smell of tallow — animal, faintly rancid — had settled into the room's air like a fourth presence.

He had returned to Pickering's dispatch, worked through the argument to its conclusion, and then stood looking at the pages from a remove of perhaps three feet, as though the distance might alter what the text contained.

It did not.

He crossed to the desk and pulled the journal toward him. The leather cover was cool under his fingers, the binding cracking faintly as he opened it. He turned past the entry he had written that afternoon — he would not read it again tonight — and found a clean page. He took up the quill.

His hand cramped before he had completed the date. He set the quill down, pressing his knuckles against the edge of the desk until the ache subsided. The tallow candle guttered. He steadied it with his other hand, feeling the warm grease against his thumb, and waited for the flame to right itself.

October 1803. The Senate having voted this day 24 to 7 in favour of the ratification of the Louisiana treaty, I find it necessary to record, in this private place, what cannot be recorded in any other.

He wrote slowly. The cramping returned twice, and twice he stopped, flexed his fingers, and resumed.

The Constitution grants to the federal government no power to acquire foreign territory and to incorporate its inhabitants as future citizens of this republic. This is plain, and the Tenth Amendment admits of no other construction.

He read it back. Eight lines. If this journal were ever produced before a committee — by subpoena, by theft, by the indiscretion of an executor — it would constitute a presidential confession that the purchase rested on no constitutional foundation whatsoever. He had written the instrument of his own destruction.

He could strike it out. The ink was not yet fully dry. A single stroke of the pen, a blot of sand, and the page would contain nothing but an illegible smear — the kind of thing an executor might glance at and pass over. His hand moved toward the quill.

He stopped. He closed the journal.

He drew a fresh sheet toward him and wrote without hesitation:

My dear Madison — The Senate has ratified. The vote stands at twenty-four to seven, a margin sufficient to establish the treaty as the law of the land and to silence, in the practical sense, whatever objections the opposition may yet wish to press in print. I would have you turn your attention now to the instruments of governance for the new territory — the question of officers, courts, and the administration of land claims will require our earliest deliberation. I shall expect your proposals by the week's end.

He signed it, sanded it, folded it, reached for the wax. The seal pressed into the soft red disc with a faint hiss.

The journal went into the drawer. He turned the key.

Two documents. One drawer. One desk. One hand that had authored both the doctrine and its betrayal.

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IV.

The fire had taken well by mid-morning, and the reception room held a warmth that the previous day's audiences had not enjoyed. Holt of the National Intelligencer occupied the chair nearest the window, his notebook folded in his lap with the studied negligence of one who wished you to forget it was there.

Jefferson had admitted him because he believed in the principle, and because declining the audience would have been reported as its own variety of news.

'The Senator from Massachusetts,' Holt said, arriving at his true purpose after the appropriate interval, 'argues in terms that many will find compelling. I wonder, Mr. President —' He opened the notebook. '— whether you are familiar with the specific passage in which he invokes your own Kentucky Resolutions.'

A log shifted in the grate. The dry collapse of ash beneath burning wood crossed the room.

'I am familiar with my own writings, Mr. Holt.'

Holt did not flinch. He read from his notes with a precision that suggested prior rehearsal. 'The President himself has written, and I quote his published words, that the federal authority possesses only those powers explicitly granted by the Constitution, and that all others are reserved to the states or to the people. If this doctrine be sound — and the President has staked his political reputation upon its soundness — then by what authority does the executive now acquire a territory comprising eight hundred thousand square miles and propose to incorporate its inhabitants as citizens of the republic?'

Holt looked up. 'The Senator asks whether you stand by the doctrine you articulated in 1798, or whether the purchase represents a departure from it. I intend to print the question, and I will print your answer beside it — or its absence.'

Jefferson stood. He crossed to the side table, poured himself water from the jug, and did not offer any to Holt. He drank, set the glass down, and turned.

'The relevant question is not whether the executive may incorporate a foreign territory — a matter of considerable complexity, which the Congress will in due course address through the ordinary legislative instruments — but whether the treaty power, as vested in the executive by the second article of the Constitution, is adequate to the conclusion of agreements for the acquisition of territory. I am persuaded that it is.'

Holt's pencil moved across the notebook. Jefferson watched it without appearing to watch it.

'You do not address the Kentucky Resolutions directly, Mr. President.' Holt did not look up from the page. 'The Senator's argument is that your own doctrine, applied without favour, condemns your own treaty. I will need a direct answer to that charge, or I will be obliged to report that none was given.'

The pencil was still moving. The fire breathed behind the grate. Jefferson understood with cold precision that whatever he said next would appear in print within forty-eight hours, that Pickering would read it before the week was out, and that the seven dissenting senators would have the administration's public position to set beside their own private reservations. The wrong sentence would hand Pickering a text to set beside the correspondence he intended to subpoena. The right sentence required Jefferson to say, in print, what he had written only in the locked drawer.

He crossed to the mantelpiece and placed his hand on the stone, feeling its warmth against his palm. The smell of applewood smoke was stronger here, and beneath it the faint mineral tang of heated limestone.

'Mr. Holt. I will not be tried in your columns on the basis of a question designed to admit only one answer. The Resolutions of 1798 addressed the usurpation of powers never granted. The Louisiana treaty exercises a power expressly vested. These are not the same proposition, and I will not permit them to be collapsed into one by a senator whose object is not constitutional fidelity but sectional advantage.' He turned from the mantelpiece. 'I will send you a written statement by tomorrow's post. It will address the constitutional question with the thoroughness it merits, and it will do so on my terms, not on the Senator's.'

'I publish Thursday.'

'You will have it Wednesday evening.'

'And if the statement does not address those Resolutions directly, Mr. President, the omission will appear in the Examiner with the same prominence as any answer you might have given.'

Jefferson inclined his head. 'I would expect nothing less. The statement will speak for itself.'

He let the words settle before acknowledging, with a slight turn, the presence of James Madison, who had entered from the anteroom and now stood near the far bookcase, his hat still in his hands, waiting.

Holt gathered his notebook, rose, and made his bow. When the door had closed behind him, Madison crossed the room without speaking and set a folded paper on the table beside the water jug. Jefferson opened it. Four lines, in Madison's hand: Pickering has called for a committee inquiry into the negotiation parameters. He has the votes for the referral. The committee convenes Monday. They will want the correspondence.

'All of it?'

'All of it.' Madison's voice was level, but he had not removed his hat — the posture of a man who did not intend to stay. 'The instructions to Monroe. The dispatches to Livingston. The internal memoranda. He will frame the demand as a question of the Senate's prerogative to examine the basis of the treaty it has ratified. He is not wrong in the law, and he knows it.'

Jefferson folded Madison's note and placed it in his waistcoat pocket. 'I need the constitutional brief by Wednesday. And I need you to review every document that touches on the treaty's legal footing — every letter, every memorandum, every marginal note — and tell me before Sunday's close which of them the committee may properly demand and which fall within the executive's discretion to withhold.'

Madison's forefinger found the edge of his hat brim and tapped it once — a small, rhythmic motion, barely perceptible. 'And the journal?'

Jefferson's hand stopped at his waistcoat. The fire cracked behind the grate. The room was very warm.

'There is no journal before the committee. There is no journal before anyone.'

Madison held his gaze for a moment, then put on his hat. 'Sunday,' he said, and left.

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V.

The dispatch had come before the household supper was cleared. He had set it open on the writing table under the paperweight and withdrawn to the window, but there was nothing to see through the night glass — only his own reflection, gaunt and indistinct, a figure he did not particularly wish to examine.

Twenty-four to seven.

He turned from the window and crossed to the table. He did not sit. He stood over the tally document and pressed the heels of his hands against his closed eyes until the gritty ache behind his lids resolved into something bearable. Two nights of reading by a single candle. The tallow stub burning near his elbow gave off its animal smell, and the warmth of the room — the fire had been built up for the evening — pressed against his temples like a hand.

The twenty-four were expected. The republic would read them as a verdict.

The seven were something else. Not Pickering alone — Pickering had been foreseeable, his animus legible from the first day of the session. But there were names among the seven that would not be dismissed as mere faction. They had listened to the arguments with the seriousness such arguments deserved, and they had voted their conclusions. The Senate's record, once entered, acquired a permanence that no subsequent act of administration could revise. It sat in the republic's ledger as a standing question, available to any future generation that wished to take it up. The dissent had ceased to be one man's and become the republic's own.

He pulled the chair out and sat down heavily — a concession to the body he would not have made in daylight, with witnesses. The chair creaked under him. He uncapped the inkwell and reached for a sheet.

My dear Monroe —

He set the quill down. Monroe would receive this letter in Paris, weeks hence, having lived in ignorance of the Senate vote for all the intervening time. The letter would be his first intelligence that the thing was done. And Jefferson could not find the tone. The warm formality he reserved for men who had served the republic well — he could hear it in his mind, could feel the shape of the sentences — but his hand would not produce them. Not tonight. Not with the drawer locked and the tally open and the committee convening Monday.

He pushed the sheet aside and took a second. He wrote four sentences to Madison in the plain efficient hand he used for administrative correspondence: the necessity of a governor's commission for the Orleans Territory, the question of existing French land grants, the schedule for the first survey of the river parishes. He stopped. He charged the quill again and added, in a hand slightly less steady: I must have your assessment of the Pickering inquiry's probable scope before I draft the Wednesday statement. If the committee's demand extends to the internal memoranda, the statement must be framed accordingly. Do not delay.

He sealed it. The wax was slow to melt; the candle was guttering. He held the stick over the flame until a drop fell, pressed the seal, and set the note aside.

Outside, somewhere beyond the President's House, a horse was being walked on the gravel path — the slow, irregular percussion of hooves coming through the dark, a groom's lantern swinging once across the window glass and gone. The territorial session would open in six weeks. The judicial commissions would require the Senate's advice, and the Senate, with its seven dissenting votes entered permanently in its own record, would convene its committee before Christmas — before the governor's commission, before any of the administrative machinery of the purchase could be set in motion without the committee's shadow falling across it.

He looked at the unfinished letter to Monroe. Three words. My dear Monroe — The rest was silence, and the silence was the truest thing in the room.

The committee convened Monday. Holt published Thursday. The written statement was due Wednesday, and he had not yet found the sentence that would answer Pickering's charge without confirming it — had not found it in three days of trying, and Sunday was already running.

He pulled the candle closer. He took a third sheet. He charged the quill.

He had until Sunday.