IT would have gratified me if some other gentleman had undertaken to
reply to the ingenious argument, which you have just heard. (Speech of
Mr. Horsey.) But not perceiving any one disposed to do so, a sense of
duty obliges me, though very unwell, to claim your indulgence, whilst
I offer my sentiments on this subject, so interesting to the union at
large, but especially to the western portion of it. Allow me, sir, to
express my admiration at the more than Aristidean justice, which, in a
question of territorial title between the United States and a foreign
nation, induces certain gentlemen to espouse the pretensions of the
foreign nation. Doubtless, in any future negotiations, she will have
too much magnanimity to avail herself of these spontaneous concessions
in her favor, made on the floor of the senate of the United States.
It was to have been expected, that, in a question like the present,
gentlemen, even on the same side, would have different views, and
although arriving at a common conclusion, would do so by various
arguments. And hence the honorable gentleman from Vermont, entertains
doubt with regard to our title against Spain, whilst he feels entirely
satisfied of it against France. Believing, as I do, that our title
against both powers is indisputable, under the treaty of St. Ildefonso,
between Spain and France, and the treaty between the French republic
and the United States, I shall not inquire into the treachery, by
which the king of Spain is alleged to have lost his crown; nor shall
I stop to discuss the question involved in the overthrow of the Spanish
monarchy, and how far the power of Spain ought to be considered as
merged in that of France. I shall leave the honorable gentleman from
Delaware to mourn over the fortunes of the fallen Charles. I have no
commiseration for princes. My sympathies are reserved for the great
mass of mankind, and I own that the people of Spain have them most
sincerely.
I will adopt the course suggested by the nature of the subject, and
pursued by other gentlemen, of examining into our title to the country
lying between the Mississippi and the Rio Perdido, (which, to avoid
circumlocution, I will call West Florida, although it is not the
whole of it,) and the propriety of the recent measures taken for the
occupation of that territory. Our title, then, depends, first, upon the
limits of the province or colony of Louisiana, and, secondly, upon a
just exposition of the treaties before mentioned.
On this occasion it is only necessary to fix the eastern boundary. In
order to ascertain this, it will be proper to take a cursory view of
the settlement of the country, because the basis of European title to
colonies in America, is prior discovery, or prior occupancy. In 1682,
La Salle migrated from Canada, then owned by France, descended the
Mississippi, and named the country which it waters, Louisiana. About
1698, D’Iberville discovered, by sea, the mouth of the Mississippi,
established a colony at the Isle Dauphine, or Massacre, which lies
at the mouth of the bay of Mobile, and one at the mouth of the river
Mobile, and was appointed, by France, governor of the country. In the
year 1717, the famous West India Company sent inhabitants to the Isle
Dauphine, and found some of those who had been settled there under
the auspices of D’Iberville. About the same period, Baloxi, near the
Pascagoula, was settled. In 1719, the city of New Orleans was laid off,
and the seat of government of Louisiana was established there; and in
1736 the French erected a fort on Tombigbee. These facts prove that
France had the actual possession of the country as far east as the
Mobile, at least. But the great instrument which ascertains, beyond all
doubt, that the country in question is comprehended within the limits
of Louisiana, is one of the most authentic and solemn character which
the archives of a nation can furnish; I mean the patent granted in 1712,
by Louis XIV, to Crozat. [Here Mr. C. read such parts of the patent
as were applicable to the subject.[2]] According to this document, in
describing the province or colony of Louisiana, it is declared to be
bounded by Carolina on the east, and Old and New Mexico on the west.
Under this high record evidence, it might be insisted that we have a
fair claim to East as well as West Florida, against France, at least,
unless she has, by some convention, or other obligatory act, restricted
the eastern limit of the province. It has, indeed, been asserted,
that, by a treaty between France and Spain, concluded in the year 1719,
the Perdido was expressly stipulated to be the boundary between their
respective provinces of Florida on the east, and Louisiana on the west;
but as I have been unable to find any such treaty, I am induced to
doubt its existence.
About the same period, to wit, towards the close of the seventeenth
century, when France settled the Isle Dauphine, and the Mobile,
Spain erected a fort at Pensacola. But Spain never pushed her actual
settlements, or conquests, farther west than the bay of Pensacola,
whilst those of the French were bounded on the east by the Mobile.
Between those two points, a space of about thirteen or fourteen leagues,
neither nation had the exclusive possession. The Rio Perdido, forming
the bay of the same name, discharges itself into the Gulf of Mexico,
between the Mobile and Pensacola, and, being a natural and the most
notorious object between them presented itself as a suitable boundary
between the possessions of the two nations. It accordingly appears very
early to have been adopted as the boundary, by tacit if not expressed
consent. The ancient charts and historians, therefore, of the country,
so represent it. Dupratz, one of the most accurate historians of the
time, in point of fact and detail, whose work was published as early
as 1758, describes the coast as being bounded on the east by the Rio
Perdido. In truth, sir, no European nation whatever, except France,
ever occupied any portion of West Florida, prior to her cession of it
to England, in 1762. The gentlemen on the other side do not, indeed,
strongly controvert, if they do not expressly admit, that Louisiana,
as held by the French anterior to her cessions of it in 1762, extended
to the Perdido. The only observation made by the gentleman from
Delaware to the contrary, to wit, that the island of New Orleans, being
particularly mentioned, could not, for that reason, constitute a part
of Louisiana, is susceptible of a very satisfactory answer. That island
was excepted out of the grant to England, and was the only part of the
province east of the river that was so excepted. It formed in itself
one of the most prominent and important objects of the cession to
Spain originally, and was transferred to her with the portion of the
province west of the Mississippi. It might with equal propriety be
urged that St. Augustine is not in East Florida, because St. Augustine
is expressly mentioned by Spain in her cession of that province to
England. From this view of the subject, I think it results that the
province of Louisiana comprised West Florida, previous to the year 1762.
What was done with it at this epoch? By a secret convention of the
third of November, of that year, France ceded the country lying west
of the Mississippi, and the island of New Orleans, to Spain; and by a
contemporaneous act, the articles preliminary to the definitive treaty
of 1763, she transferred West Florida to England. Thus, at the same
instant of time, she alienated the whole province. Posterior to this
grant, Great Britain, having also acquired from Spain her possessions
east of the Mississippi, erected the country into two provinces, East
and West Florida. In this state of things it continued until the peace
of 1783, when Great Britain, in consequence of the events of the war,
surrendered the country to Spain, who, for the _first_ time, came into
actual possession of West Florida. Well, sir, how does she dispose
of it? She reannexes it to the residue of Louisiana――extends the
jurisdiction of that government to it, and subjects the governors, or
commandants, of the districts of Baton Rouge, Feliciana, Mobile, and
Pensacola, to the authority of the governor of Louisiana, residing
at New Orleans; while the governor of East Florida is placed wholly
without his control, and is made amenable directly to the governor
of the Havannah. Indeed, sir, I have been credibly informed, that all
the concessions, or grants of land, made in West Florida, under the
authority of Spain, run in the name of the _government of Louisiana_.
You cannot have forgotten that, about the period when we took
possession of New Orleans, under the treaty of cession from France,
the whole country resounded with the nefarious speculations, which
were alleged to be making in that city with the connivance, if not
actual participation, of the Spanish authorities, by the procurement of
surreptitious grants of land, particularly in the district of Feliciana.
West Florida, then, not only as France had held it, but as it was in
the hands of Spain, made a part of the province of Louisiana; as much
so as the jurisdiction or district of Baton Rouge constituted a part of
West Florida.
What, then, is the true construction of the treaties of St. Ildefonso,
and of April, 1803, from whence our title is derived? If an ambiguity
exist in a grant, the interpretation most favorable to the grantee is
preferred. It was the duty of the grantor to have expressed himself in
plain and intelligible terms. This is the doctrine, not of Coke only,
(whose dicta I admit have nothing to do with the question,) but of the
code of universal law. The doctrine is entitled to augmented force,
when a clause only of the instrument is exhibited, in which clause the
ambiguity lurks, and the residue of the instrument is kept back by the
grantor. The entire convention of 1762, by which France transferred
Louisiana to Spain, is concealed, and the whole of the treaty of
St. Ildefonso, except a solitary clause. We are thus deprived of the
aid which a full view of both of those instruments would afford. But
we have no occasion to resort to any rules of construction, however
reasonable in themselves, to establish our title. A competent knowledge
of the facts connected with the case, and a candid appeal to the
treaties, are alone sufficient to manifest our right. The negotiators
of the treaty of 1803, having signed, with the same ceremony, two
copies, one in English and the other in the French language, it has
been contended, that in the English version the term ‘cede’ has been
erroneously used instead of ‘retrocede,’ which is the expression in the
French copy. And it is argued, that we are bound by the phraseology of
the French copy, because it is declared that the treaty was agreed to
in that language. It would not be very unfair to inquire, if this is
not like the common case in private life, where individuals enter into
a contract of which each party retains a copy, duly executed. In such
case, neither has the preference. We might as well say to France, we
will cling by the English copy, as she could insist upon an adherence
to the French copy; and if she urged ignorance on the part of Mr.
Marbois, her negotiator, of our language, we might with equal propriety
plead ignorance, on the part of our negotiators, of her language. As
this, however, is a disputable point, I do not avail myself of it;
gentlemen shall have the full benefit of the expressions in the French
copy. According to this, then, in reciting the treaty of St. Ildefonso,
it is declared by Spain, in 1800, that she retrocedes to France, the
colony or province of Louisiana, with the same extent which it then
had in the hands of Spain, and which it had when France possessed it,
and such as it should be after the treaties subsequently entered into
between Spain and other states. This latter member of the description
has been sufficiently explained by my colleague.
It is said, that since France, in 1762, ceded to Spain only
Louisiana west of the Mississippi, and the Island of New Orleans,
the retrocession comprehended no more――that the retrocession _ex vi
termini_ was commensurate with and limited by the direct cession from
France to Spain. If this were true, then the description, such as
Spain held it, that is, in 1800, comprising West Florida, and such as
France possessed it, that is, in 1762, prior to the several cessions,
comprising also West Florida, would be totally inoperative. But the
definition of the term retrocession contended for by the other side is
denied. It does not exclude the instrumentality of a third party. It
means restoration, or reconveyance of a thing originally ceded, and
so the gentleman from Delaware acknowledged. I admit that the thing
restored, must have come to the restoring party from the party to whom
it is retroceded; whether directly or indirectly is wholly immaterial.
In its passage, it may have come through a dozen hands. The retroceding
party must claim _under_ and in virtue of the right originally
possessed by the party to whom the retrocession takes place. Allow
me to put a case. You own an estate called Louisiana. You convey one
moiety of it to the gentleman from Delaware, and the other to me; he
conveys his moiety to me, and I thus become entitled to the whole.
By a suitable instrument, I reconvey, or retrocede the estate called
Louisiana to you as I now hold it, and as you held it; what passes
to you? The whole estate or my moiety only? Let me indulge another
supposition――that the gentleman from Delaware, after he received from
you his moiety, bestowed a new denomination upon it and called it
West Florida; would that circumstance vary the operation of my act
of retrocession to you? The case supposed, is, in truth, the real
one between the United States and Spain. France, in 1762, transfers
Louisiana, west of the Mississippi, to Spain, and at the same time
conveys the eastern portion of it, exclusive of New Orleans, to Great
Britain. Twenty-one years after, that is, in 1783, Great Britain cedes
her part to Spain, who thus becomes possessed of the entire province;
one portion by direct cession from France, and the residue by indirect
cession. Spain, then, held the whole of Louisiana _under_ France, and
in virtue of the title of France. The whole moved or passed from France
to her. When, therefore, in this state of things, she says, in the
treaty of St. Ildefonso, that she retrocedes the province to France,
can a doubt exist that she parts with, and gives back to France the
entire colony? To preclude the possibility of such a doubt, she adds,
that she restores it, not in a mutilated condition, but in that precise
condition in which France had and she herself possessed it.
Having thus shown, as I conceive, a clear right in the United States
to West Florida, I proceed to inquire, if the proclamation of the
president directing the occupation of property, which is thus fairly
acquired by solemn treaty, be an unauthorized measure of war and of
legislation, as has been contended?
The act of October, 1803, contains two sections, by one of which the
president is authorized to occupy the territories ceded to us by France
in the April preceding. The other empowers the president to establish
a provisional government there. The first section is unlimited in
its duration; the other is restricted to the expiration of the then
session of congress. The act, therefore, of March, 1804, declaring
that the previous act of October should continue in force until the
first of October, 1804, is applicable to the second and not the first
section, and was intended to continue the provisional government of
the president. By the act of twenty-fourth February, 1804, for laying
duties on goods imported into the ceded territories, the president is
empowered _whenever he deems it expedient_ to erect the bay and river
Mobile, &c. into a separate district, and to establish therein a port
of entry and delivery. By this same act the Orleans territory is laid
off, and its boundaries are so defined, as to comprehend West Florida.
By other acts the president is authorized to remove by force, under
certain circumstances, persons settling on, or taking possession of
lands ceded to the United States.
These laws furnish a legislative construction of the treaty,
corresponding with that given by the executive, and they indisputably
vest in this branch of the general government the power to take
possession of the country, whenever it might be proper in his
discretion. The president has not, therefore, violated the constitution
and usurped the war-making power, but he would have violated that
provision which requires him to see that the laws are faithfully
executed, if he had longer forborne to act. It is urged, that he has
assumed powers belonging to congress, in undertaking to annex the
portion of West Florida, between the Mississippi and the Perdido, to
the Orleans territory. But congress, as has been shown, has already
made this annexation, the limits of the Orleans territory, as
prescribed by congress, comprehending the country in question. The
president, by his proclamation, has not made law, but has merely
declared to the people of West Florida, what the law is. This is the
office of a proclamation, and it was highly proper that the people
of that territory should be thus notified. By the act of occupying
the country, the government _de facto_, whether of Spain, or the
revolutionists, ceased to exist; and the laws of the Orleans territory,
applicable to the country, by the operation and force of law, attached
to it. But this was a state of things which the people might not know,
and which every dictate of justice and humanity, therefore, required
should be proclaimed. I consider the bill before us merely in the light
of a declaratory law.
Never could a more propitious moment present itself, for the exercise
of the discretionary power placed in the president; and, had he failed
to embrace it, he would have been criminally inattentive to the dearest
interests of this country. It cannot be too often repeated, that if
Cuba on the one hand, and Florida on the other, are in the possession
of a foreign maritime power, the immense extent of country belonging
to the United States, and watered by streams discharging themselves
into the Gulf of Mexico――that is, one third, nay, more than two thirds
of the United States, comprehending Louisiana, are placed at the mercy
of that power. The possession of Florida is a guarantee absolutely
necessary to the enjoyment of the navigation of those streams. The
gentleman from Delaware anticipates the most direful consequences,
from the occupation of the country. He supposes a sally from a Spanish
garrison upon the American forces, and asks what is to be done? We
attempt a peaceful possession of the country to which we are fairly
entitled. If the wrongful occupants, under the authority of Spain,
assail our troops, I trust they will retrieve the lost honor of the
nation, in the case of the Chesapeake. Suppose an attack upon any
portion of the American army, within the acknowledged limits of the
United States, by a Spanish force? In such event, there would exist
but a single honorable and manly course. The gentleman conceives it
ungenerous, that we should at this moment, when Spain is encompassed
and pressed, on all sides, by the immense power of her enemy, occupy
West Florida. Shall we sit by, passive spectators, and witness the
interesting transactions of that country――transactions which tend, in
the most imminent degree, to jeopardize our rights, without attempting
to interfere? Are you prepared to see a foreign power seize what
belongs to us? I have heard, in the most credible manner, that, about
the period when the president took his measures in relation to that
country, agents of a foreign power were intriguing with the people
there, to induce them to come under his dominion; but whether this
be the fact or not, it cannot be doubted, that, if you neglect the
present auspicious moment, if you reject the proffered boon, some other
nation, profiting by your errors, will seize the occasion to get a
fatal footing in your southern frontier. I have no hesitation in saying,
that if a parent country will not or cannot maintain its authority, in
a colony adjacent to us, and there exists in it a state of misrule and
disorder, menacing our peace; and if, moreover, such colony, by passing
into the hands of any other power, would become dangerous to the
integrity of the union, and manifestly lend to the subversion of our
laws; we have a right, upon the eternal principles of self-preservation,
to lay hold upon it. This principle alone, independent of any title,
would warrant our occupation of West Florida. But it is not necessary
to resort to it――our title being, in my judgment, incontestably good.
We are told of the vengeance of resuscitated Spain. If Spain, under
any modification of her government, choose to make war upon us, for the
act under consideration, the nation, I have no doubt, will be willing
to embark in such a contest. But the gentleman reminds us that Great
Britain, the ally of Spain, may be obliged, by her connection with that
country, to take part with her against us, and to consider this measure
of the president as justifying an appeal to arms. Sir, is the time
never to arrive, when we may manage our own affairs without the fear
of insulting his Britannic majesty? Is the rod of British power to
be for ever suspended over our heads? Does congress put on an embargo
to shelter our rightful commerce against the piratical depredations
committed upon it on the ocean? We are immediately warned of the
indignation of offended England. Is a law of non-intercourse proposed?
The whole navy of the haughty mistress of the seas, is made to thunder
in our ears. Does the president refuse to continue a correspondence
with a minister, who violates the decorum belonging to his diplomatic
character, by giving and deliberately repeating an affront to the whole
nation? We are instantly menaced with the chastisement which English
pride will not fail to inflict. Whether we assert our rights by sea,
or attempt their maintenance by land――whithersoever we turn ourselves,
this phantom incessantly pursues us. Already has it had too much
influence on the councils of the nation. It contributed to the repeal
of the embargo――that dishonorable repeal, which has so much tarnished
the character of our government. Mr. President, I have before said on
this floor, and now take occasion to remark, that I most sincerely
desire peace and amity with England; that I even prefer an adjustment
of all differences with her, before one with any other nation. But if
she persists in a denial of justice to us, or if she avails herself of
the occupation of West Florida, to commence war upon us, I trust and
hope that all hearts will unite, in a bold and vigorous vindication of
our rights. I do not believe, however, in the prediction, that war will
be the effect of the measure in question.
It is asked, why, some years ago, when the interruption of the right
of deposit took place at New Orleans, the government did not declare
war against Spain; and how it has happened, that there has been this
long acquiescence in the Spanish possession of West Florida. The answer
is obvious. It consists in the genius of the nation, which is prone to
peace; in that desire to arrange, by friendly negotiation, our disputes
with all nations, which has constantly influenced the present and
preceding administration; and in the jealousy of armies, with which
we have been inspired by the melancholy experience of free estates.
But a new state of things has arisen; negotiation has become hopeless.
The power with whom it was to be conducted, if not annihilated, is
in a situation that precludes it; and the subject matter of it is in
danger of being snatched for ever from our power. Longer delay would
be construed into a dereliction of our right, and would amount to
treachery to ourselves. May I ask, in my turn, why certain gentlemen,
now so fearful of war, were so urgent for it with Spain, when she
withheld the right of deposit? and still later, when in 1805 or 6, this
very subject of the actual limits of Louisiana, was before congress? I
will not say, because I do not know that I am authorized to say, _that
the motive is to be found_ in the change of relation, between Spain and
other European powers, since those periods.
Does the honorable gentleman from Delaware really believe, that he
finds in St. Domingo a case parallel with that of West Florida? and
that our government, having interdicted an illicit commerce with the
former, ought not to have interposed in relation to the latter? It is
scarcely necessary to consume your time by remarking, that we had no
pretensions to that island; that it did not menace our repose, nor did
the safety of the United States require that they should occupy it.
It became, therefore, our duty to attend to the just remonstrance of
France, against American citizens’ supplying the rebels with the means
of resisting her power.
I am not, sir, in favour of cherishing the passion of conquest. But
I must be permitted, in conclusion, to indulge the hope of seeing, ere
long, the _new_ United States (if you will allow me the expression)
embracing, not only the old thirteen States, but the entire country
east of the Mississippi, including East Florida, and some of the
territories of the north of us also.