Saturday, November 17, 2007

Was The Louisiana Purchase Unconstitutional? III

In my last post on the topic, I quoted Representative Joseph Hopper Nicholson to the effect that opponents of the Louisiana Purchase were in fact raising two separate issues. First, was the United States authorized under the Constitution to assume sovereignty over, and take possession of, new territory? And second (and assuming a positive answer to the first question), was the United States authorized under the Constitution to admit that newly-acquired territory into the Union "upon an equal footing with the other States" -- i.e., as a state itself.

Let me turn, then, to the treaty between the United States and the French Republic. My purpose is not to summarize the entire treaty, but rather to focus only on those portions that bear directly on the issues identified by Representative Nicholson.

For our purposes, the Treaty is quite simple.

As you probably know, in 1803, some question existed as to whether Spain or France owned Louisiana. In October 1800, Spain and France had entered into a treaty by which Spain “promise[d] and engage[d] . . . to cede to the French Republic six months after the full and entire execution of the conditions and Stipulations herein relative to his Royal Highness the Duke of Parma, the Colony or Province of Louisiana.” However, Spain had never officially transferred the colony to France, and France had not actually taken possession of it. The first order of business, therefore, was to establish that France had marketable title to convey.

The parties accomplished this in Article I of the Louisiana Purchase Treaty. That Article quoted from the earlier treaty and simply asserted that “in pursuance of the [French-Spanish] Treaty . . . the French Republic has incontestable title to the domain and to the possession of the said Territory.”

After establishing title, Article I then conveyed it to the United States in a single sentence. In effect, the transfer was by quitclaim deed: although France maintained it had “incontestable title,” the United States got whatever title it was that France possessed, to the extent that France possessed it:

The First Consul of the French Republic desiring to give to the United States a strong proof of his friendship doth hereby cede to the United States in the name of the French Republic for ever and in full Sovereignty the said territory with all its rights and appurtenances as fully and in the Same manner as they have been acquired by the French Republic in virtue of the above mentioned Treaty concluded with his Catholic Majesty [the King of Spain].

The other Article that figured in later constitutional doubts was Article III. That Article dealt with the political rights and status of the inhabitants of the territory, and the status of the territory within the United States. The Article stated in its entirety:
The inhabitants of the ceded territory shall be incorporated in the Union of the United States and admitted as soon as possible according to the principles of the federal Constitution to the enjoyment of all these rights, advantages and immunities of citizens of the United States, and in the mean time they shall be maintained and protected in the free enjoyment of their liberty, property and the Religion which they profess.

Was this, in effect, a promise that the territory would be admitted to statehood? Although it does not say that in so many words, that is certainly a fair way – and perhaps the only way – to read it. It certainly seems that Representative Nicholson's breakdown of the issues corresponds nicely to Articles I and III.

In the next post, we’ll start looking at the relevant provisions of the Constitution.

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