JAMES MADISON.

WASHINGTON, _December 5, 1810_.

FRIDAY, December 7.

JOSEPH ANDERSON, from the State of Tennessee, attended.

TUESDAY, December 11.

RICHARD BRENT, from the State of Virginia, attended.

WEDNESDAY, December 12.

The VICE PRESIDENT of the United States resumed the chair.

JESSE FRANKLIN, from the State of North Carolina, also took his seat in

the Senate.

THURSDAY, December 13.

HENRY CLAY, from the State of Kentucky, took his seat in the Senate.

MONDAY, December 17.

JAMES LLOYD, from the State of Massachusetts, took his seat in the

Senate.

TUESDAY, December 18.

JOHN CONDIT, from the State of New Jersey, and JOHN SMITH, from the

State of New York, severally took their seats in the Senate.

_Bank of the United States._

Mr. LEIB presented the petition of the President and Directors of the

Bank of the United States, praying a renewal of their charter, for

reasons therein stated; and the petition was read, and referred to a

select committee, to consist of five members, to consider and report

thereon; and that the petition be printed for the use of the Senate.

Messrs. CRAWFORD, LEIB, LLOYD, POPE, and ANDERSON, were appointed the

committee.

_Territory of Orleans._

Mr. GILES, from the committee to whom was referred, on the 8th instant,

so much of the Message of the President of the United States as relates

to the occupation of that part of West Florida which is included

within the boundaries described by the treaty for the acquisition of

Louisiana, reported a bill declaring the laws now in force in the

Territory of Orleans, to extend to and to have full force and effect

to the river Perdido, pursuant to the treaty concluded at Paris on the

30th day of April, 1803, and for other purposes; and the bill was read,

and passed to the second reading.

WEDNESDAY, December 19.

CHRISTOPHER GRANT CHAMPLIN, from the State of Rhode Island, took his

seat in the Senate.

THURSDAY, December 27.

JENKIN WHITESIDE, from the State of Tennessee, took his seat in the

Senate.

_Occupation of West Florida._

The Senate resumed the consideration of the bill declaring the laws

now in force in the Territory of Orleans, to extend to, and to have

full force and effect, to the river Perdido, pursuant to the treaty

concluded at Paris on the 30th of April, 1803; and for other purposes.

The question was on the bill's passage to a third reading.

Mr. POPE.--Mr. President, I regret that the honorable chairman of the

committee who reported this bill is not here to give it that support

which his talents, information, and the importance of the subject

authorize us to expect. His absence has devolved on me, as a member

of the committee, and a representative of that section of the Union

more immediately interested in the subject before us, to explain to

the Senate some of the grounds which induced them to make this report.

The first important question which the proclamation of the President

and this bill presents for consideration is, whether or not the United

States have a good title to the territory in question. Before I examine

the treaty of cession from France to the United States, of 1803,

the source of our claim, permit me to inquire what were the limits

of Louisiana in that quarter to which this subject leads us before

the treaty and cession of 1762-'3, between France, Spain, and Great

Britain? On this subject, however, I believe there is no contrariety

of opinion. Before this period, Louisiana extended east of the river

Mississippi to the river Perdido. France and Spain, by the Treaty

of 1719, established this boundary between Florida, now called East

Florida, and Louisiana. The ancient limits of Louisiana have been so

fully ascertained by the documents laid before Congress at different

times, and the numerous discussions the subject has undergone, that I

should only waste the time of the Senate in attempting to throw any new

light on it. I shall only refer the Senate to one additional evidence

that this river was the ancient eastern boundary of this province. Mr.

Smollet, in his continuation of "Hume's History of England," states the

answer of the British Government to the propositions made by France for

peace early in the year 1761, from which it appears that France then

claimed the river Perdido as their eastern limit, nor does this fact

appear to have been contested by the British Minister. It appears that

previous to the war which terminated in 1763, Louisiana comprehended

nearly the whole country watered by the Mississippi and its branches.

I find it stated in a pamphlet published in New York, that France, by

a secret cession, contemporaneous with the treaty called the Family

Compact of 1761, transferred this country to Spain, to induce her to

become her ally in the war against Great Britain; and although I can

find no evidence to support this statement, yet the events of that

war, previous to that period, renders it at least probable. It will

be remembered that the arms of Great Britain had triumphed over those

of France, both by sea and land. France had lost Canada, and a great

number of ships of war. Spain was not then a party in the war, and,

to induce her to become so, it seems probable that France, under the

pressure of adverse fortune, ceded to her this province. But, as this

statement does not correspond with the documents on our tables, nor

the views of others who have examined this subject, we are compelled

to take it for granted, that the cession of West Louisiana, with the

island of New Orleans, to Spain, and of East Louisiana, since called

West Florida, to Great Britain, were made at the same time, in the

year 1762. It is, however, well known that France made the cession to

Great Britain at the instance, and for the benefit of Spain, to enable

her, with the cession of Florida, now called East Florida, to obtain

a restitution of Cuba. The whole of Louisiana, not conquered by Great

Britain, may, with propriety, be said to have been given up, or ceded

to Spain. Let us now examine that part of the treaty of cession between

the United States and France of 1803, which relates to this question.

By that treaty we acquired Louisiana as fully, and in the same manner,

as it had been acquired by France from Spain, in virtue of the Treaty

of St. Ildefonso of the 1st of October, 1800. By this treaty, Spain

retroceded Louisiana to France, "with the same extent it then had in

the hands of Spain, and that it had when France possessed it, and such

as it should be after the treaties subsequently entered into between

Spain and other States." That this extract from that treaty is correct,

cannot be doubted, as it has never been denied by Spain. The word

"retrocede" in this treaty has, I believe, occasioned more doubt with

regard to the meaning of this cession that any expression contained

in it, but cannot, when the subject is properly examined, have the

effect contended for. It is said that as France ceded to Spain, in

1762, Louisiana west of the Mississippi, including the island of New

Orleans, the word "retrocede" must limit the cession to what had been

previously ceded by France to Spain; but if it be true that Louisiana

east and west of the Mississippi was ceded to Spain in the year 1761,

although East Louisiana was afterwards ceded by France, with the

consent of Spain, to Great Britain, the word "retrocede" might, with

propriety, be used with reference to the original grant to Spain in

1661, or if, what will not be denied, the cession of East Louisiana to

Great Britain by France, was at the instance, and for the benefit of

Spain, Spain, in 1800, after she had acquired East Louisiana, alias

West Florida, so called by Great Britain after 1763, could well say to

France, I re-grant to you what you ceded to me, and on my account, or

at least, so much as I can re-grant consistently with the treaties I

have since made; and this seems to be the plain and evident meaning of

the instrument. If the parties had meant to confine the retrocession

to the limits of the cession, made by France to Spain, of Louisiana

west of the Mississippi, including the island of New Orleans, they

would have used the same deception. They would certainly have stopped

after saying the extent it then had in the hands of Spain. But to

prevent mistake or misconstruction, they add, "that it had when France

possessed it," and, what is still more conclusive of the meaning of

the parties, they go on to say, "and such as it should be after the

treaties subsequently entered into between Spain and other States."

As Spain had never entered into any treaty with regard to the western

boundary of Louisiana, and as the only treaties to which the parties

could have alluded was that of 1783 with Great Britain, and of 1795

with the United States, both relative to limits on the east side of

the Mississippi, it is perfectly clear that the contracting parties

meant to comprehend whatever of Louisiana, on the east side of the

Mississippi, Spain had a title to. If the construction I contend for

is not admitted, then the latter parts of the description will have

no effect, contrary to a settled principle of law and common sense,

that every part of an instrument shall have effect, if it can by any

reasonable construction. To strengthen the construction for which

I insist, it may not be amiss to consider the views of the French

Government at the time this treaty of St. Ildefonso was made. They no

doubt acquired this province with an intention of holding it, and it

was an object of national pride to regain as much as practicable of the

colonies which had been lost under the old Government. Besides, they

could not be ignorant of the importance of East Louisiana, now West

Florida, to the security of New Orleans; and, as the practicability of

obtaining it at that time from Spain cannot be doubted, the presumption

is irresistible that the cession was intended to embrace it. I had

intended to have ascertained at the Department of State the ground of

objection with Spain to the surrender of that country to the United

States, but have not made the inquiry. I do not, however, think it

difficult to account for the conduct of Spain. My conjecture is, that

France, after she had sold Louisiana to the United States, and received

the price stipulated, secretly advised Spain not to surrender it,

having at that time formed the project which she is now attempting

to execute, of acquiring the whole Spanish Empire. Her interest was,

therefore, identified with that of Spain, and she was, no doubt,

willing to unite with Spain in giving the most limited construction

to the cession to the United States. I find that Congress, by an act

passed on the 24th of February, 1804, have solemnly asserted our right

to this territory, and authorized the President to take possession

of it and to establish a port of entry, &c., on the Mobile, whenever

he should deem it expedient. The time when, and circumstances under

which, this step should be taken, were submitted to the discretion of

the Executive. I may be permitted to ask why, if we had no title to

this territory, the President was urged to take possession by force,

and censured for not doing it? If my recollection is accurate, all

parties agreed we ought to have the country--they only differed as to

the mode of acquiring it. The President, influenced by that policy

which has hitherto guided the present Administration, of avoiding

making this nation a party in the present European war, in the exercise

of the discretionary power vested in him by that act, did not think

proper to seize upon it by force, but to wait for the occurrence of

events to throw it into our hands without a struggle.

The expediency of taking possession of this territory cannot, it

appears to me, admit of a doubt. If the President had refused or

hesitated to meet the wishes of the people of West Florida by extending

to them the protection of the American Government, and they had sought

security in the arms of a foreign power, what should we have heard?

He would have been charged with imbecility, and fear of incurring

responsibility. He would have been denounced as unworthy of the station

his country had assigned him. Let it be remembered that the Orleans

country is our most valuable part--remote from our physical force--a

climate more fatal to our people than the sword of a victorious

enemy--and that an enemy in possession of West Florida can with great

facility cut off New Orleans from the upper country. If the fortunate

moment had not been seized, this province would have fallen into the

hands of a foreign power, or, if time had been given for intrigue

to mature itself, another Burr plot would probably have risen from

the ashes of the first, more formidable to the integrity of this

empire. Burr, like Archimedes, fancied that if he had a place to stand

upon--a place beyond the jurisdiction of the United States to rally

his followers--he could overturn the Government. He has, it is true,

fled from the frowns of an indignant country; but he was not alone.

Let an opportunity be afforded, and a thousand Burrs would throw off

the mask and point their arms against the Federal Union. On a subject

of such interest, it would have been criminal in those appointed to

watch over the national safety to have hesitated. I was surprised

to hear this procedure pronounced a robbery, and making of war. Why

should our sympathies be awakened in favor of Spain? What claim has

the Spanish Government upon our moderation and forbearance? What has

been her conduct? From the moment we became an independent nation she

has been intriguing to separate the Western country from the Atlantic

States. She has made, at different periods, and as late as the year

1797, in violation of her treaty of 1795 with this country, direct

propositions to the Western people to secede from the Union, and to

accomplish her object, at least attempted the use of means the most

corrupt. What has been her conduct since we acquired Louisiana? If I

am correctly informed, our deserters and slaves who have taken refuge

in Florida, in many instances have not been surrendered, and enormous

duties have been imposed on our vessels navigating the Mobile. Under

all these provocations, sufficient to have drawn upon them from almost

any other nation an open declaration of war, our Government, influenced

by that pacific policy which has hitherto regulated its course towards

foreign nations, exercised patience and forbearance. And since the

late revolution in Spain, I believe it will not be pretended that this

Government has manifested any disposition to throw our weight into the

scale of France against the Spanish party. Our Government has taken

no step in relation to West Florida, until compelled by a regard to

our own safety. The Executive in the proceeding under consideration

has used language the most conciliatory, and on the face of his

proclamation given a pledge that this Government will at any time

enter into amicable negotiations on the subject of our claim to this

territory, if it shall be disputed.

There are other at least plausible grounds upon which this bill as

an original proposition might be supported entirely independent of

the cession. Spain is indebted to us a large amount for spoliations

committed on our commerce; and as there is no Government at present

towards which the ordinary proceeding can be pursued to obtain payment,

could we not, on the principle of the attachment law, as an act of

self-justice, seize on this territory to secure satisfaction?

As this measure has been emphatically called an act of robbery and war,

it may not be amiss to consider the political state of the Spanish

colonies in relation to the Spanish Government in the hands of the

Junta, and the new dynasty about to be established by Bonaparte. It

may be said, perhaps, that the late alienation of the Spanish Crown

and the revolution in Spain have dissolved the tie which connects

them with the mother country. On this point I will not detain the

Senate. If the French arms shall be successful in Spain, of which I

believe few entertain much doubt, and the Junta shall be driven from

Old Spain to any of the colonies, their political character must

cease, and they can no longer claim the exercise of any jurisdiction

or sovereignty over the colonies. The colonies are not bound together

by any political bond unconnected with the mother country; they are

subject to the mother country, but the moment she is conquered, they

are at liberty to provide for themselves, unless, indeed, the Emperor

of France or King Joseph can claim them. France, in an official exposé,

and King Joseph, by proclamation, have declared their willingness

that the colonies should become independent, provided they did not

connect themselves with Great Britain. If France, therefore, shall,

which is probable, conquer the mother country, we are fully authorized

by her public declaration to the world to acquire, with the consent

of the inhabitants, not only West but East Florida, Cuba, or any

other province which we shall deem it expedient to connect with the

United States. This bill may be justified, independent of title, by

the law of self-preservation. Have we any assurance that the Spanish

Government will maintain their neutrality in this territory if we

should be involved in a war with either France or Great Britain? Can

they, or will they, prevent the march of an enemy's forces through

that territory into the United States? No, sir; we have every reason

to expect the contrary. Considering how vulnerable we are from this

territory, its present state, and the aspect of our foreign affairs, it

appears to me we are authorized to take possession of it as a measure

of national security. It may be objected that taking the property of

others by force tends to relax the morals of the people, by destroying

that criterion of right and wrong, the observance of which is so

necessary to the purity of our Republic; and I am ready to admit that

we ought to proceed upon this principle of necessity and expediency

with great caution, and never to act upon it but in extreme and evident

cases. Had we a colony on the coast of England or France, similarly

situated, we know they would not hesitate. When we reflect that our

property is seized by almost every nation; that the laws and usages of

nations are disregarded by nearly all Europe; that their conduct has

been lately marked with a degree of perfidy and rapacity unexampled

in the history of the civilized world; that they have in fact become

States of Barbary; it appears to me that we ought not, as regards them,

to be over nice or squeamish upon questions of this sort. Shall we sit

here with our arms folded until the enemy is at our gates? If we waste

our time in discussion and refining abstract questions of right and

wrong, we shall lose our independence, and we shall deserve to lose it.

I had hoped this bill would have passed without much debate; I know

the people are tired of long speeches and documents. This fondness for

lengthy discussions, has even drawn upon Congress the reproaches of the

ladies; they begin to say--less talk and more action.

FRIDAY, December 28.

_Occupation of West Florida._

The Senate resumed the consideration of the bill respecting the

territory west of the Perdido.

Mr. HORSEY addressed the Senate as follows:

Mr. President: The bill under consideration contains two important

provisions. The first in effect incorporates with the Territory of

Orleans the province of West Florida east of the Mississippi, as far as

the river Perdido; the second extends to that part of the province thus

incorporated the laws now in force within the said Territory.

These provisions naturally involve two questions: first, whether the

United States have a good title to that part of the province described

in the bill; and secondly, whether it would be expedient for the

Government of the United States to take possession of it by force.

Before I proceed to consider these questions, I beg leave, Mr.

President, to advert to what may be considered a preliminary question.

I refer to the authority of the President of the United States to issue

his proclamation and the accompanying orders of the 27th of August

last, directing the forcible occupation of that territory. I deem it

material to consider this point, because, if the proclamation were

unauthorized, then Congress are not committed by it, nor are they bound

to give it their sanction.

If the President had any authority to issue this proclamation, that

authority must have been derived either under the Constitution of the

United States or under some act or acts of Congress. The President has

no power which does not proceed from one or the other of these sources.

The constitution has given to Congress the exclusive power of making

laws and declaring war--to the President the power of executing the

laws of the Union. The powers of the one are legislative, of the other

executive. The question then would be, whether the President in issuing

this proclamation has not transcended the limits of his powers.

Sir, what is the nature and import of this proclamation? In my humble

conception both legislation and war. War--because it directs the

occupation of this territory by a military force. The regular troops

of the United States are ordered to march, and if they should not

be found adequate to the object, the Governors of the Orleans and

Mississippi Territories are directed to call out the militia of their

respective territories, to co-operate with the regular forces. But we

shall be told, sir, that the President, in issuing this proclamation,

has taken the precaution to direct that in case any particular place,

however small, should remain in possession of a Spanish force, the

commanding officer is not to proceed to employ force against it, but

to make immediate report thereof to the Secretary of State. Suppose

while your commanding officer is making this report, the Spanish force

sallies out and makes an attack upon your army, or suppose a Spanish

army, with Governor Folch at their head, should march from East

Florida with the view of repelling the invasion of this territory;

what are Governor Claiborne and his army to do? Ground their arms

and surrender themselves prisoners of war; or are they, sir, to drop

their muskets and take to their heels? These are the only alternatives

presented--they must either surrender, run, or fight. And who will

doubt which of these alternatives the gallantry of an American army

would impel them to choose! Sir, a conflict would be inevitable.

But while the President has been so affectedly cautious with respect

to Spanish force, he has overlooked altogether the contingency of

resistance on the part of the revolutionists. These patriots it would

seem had called a convention and issued a declaration of independence,

and now it appears have formed and established a regular Government,

which is organized and in operation. If these proceedings are not

all a sham, the territory in question is now in the possession of a

people claiming to be sovereign and independent; and is it supposable

that this people can behave so dastardly as to submit, without a

struggle, to the incursion of a hostile army, whose avowed object is

the conquest of the country and the subversion of its constitution and

independence? And here permit me to remark, that the style and tenor

of the letter from the Secretary of State of the 15th of November,

1810, to Governor Holmes, in answer to the letter of the President of

the convention praying the recognition and protection of the United

States, are not admirably calculated to give a welcome reception to

the American Army. If then assistance should be offered on the part of

the constitutionalists, what is your army to do? The orders contain

no proviso in this particular, requiring that the fact should be

reported to the Department of State; but their clear intent is, that

force should be employed. Under such circumstances is it not to be

expected that this measure of the Executive will result in war? Is it

not to be expected, that either the Spaniards or the Conventionalists

will attempt to repel this palpable infringement upon their rights and

territory?

But, sir, this proclamation is not only war, but it is an act

of legislation too. It annexes the territory in question to the

Orleans Territory; it creates a Governor; it enacts laws, and

appropriates money. It gives the Governor of the Orleans Territory

all the authorities and functions over this particular territory

which he possesses by virtue of his office as governor, and makes

an appropriation of a sum of money, not exceeding twenty thousand

dollars. This proclamation is substantially the bill under discussion,

except that it goes much further. The first section of the bill only

contains an annexation of the territory in question to the Orleans

Territory--this the proclamation has already done. The second section

only extends the laws of that territory to the particular territory

in question--and this too the proclamation has already done. The

only material difference in fact existing between the proclamation

and this bill is, that the proclamation contains the further and

important provision for raising the troops and the money necessary for

carrying it into execution. And here, sir, I will take the liberty to

remark that I do not consider this bill the only one intended on this

subject. This is a mere entering wedge--when this is passed, Congress

are permitted to pass another, providing the necessary military and

pecuniary means to carry this act into execution; and, indeed, I should

not be surprised, if, before the close of the session, a bill were

introduced to take possession of East as well as West Florida.

If the President had no power under the constitution to issue this

proclamation, I think it equally clear he had none under any existing

laws of Congress. The act of the 31st of October, 1803, authorizing the

President of the United States to take possession of and occupy the

territory ceded by France to the United States, by the treaty concluded

at Paris on the 30th of April, 1803, I apprehend, expired on the 1st

day of October, 1804; to which period it was limited by the first

section of the act for erecting Louisiana into two Territories, and

providing for the temporary government thereof, passed the 20th day of

March, 1804.

This section enacts, that "the act passed the 31st day of October,

entitled 'An act to enable the President of the United States to take

possession of the territories ceded by France to the United States,

by the treaty concluded at Paris, on the 30th day of April, 1803;

and for the temporary government thereof,' shall continue in force

until the 1st day of October, 1804, any thing therein to the contrary

notwithstanding; on which said 1st day of October, this act shall

commence, and have full force, and shall continue in force for and

during the term of one year, and to the end of the next session of

Congress, which may happen thereafter." Let it be recollected that at

the time this last-mentioned act passed, the President had fulfilled

his powers, under the act of the 31st of October, 1803, so far as it

respected the taking possession of Louisiana. Possession had been

actually and formally delivered, and the stock created and transferred

to the French Government, according to the stipulations of the treaty.

Besides, the very nature and design of the act of the 26th March,

independent of the express limitation, superseded the act of the 31st

of October.

But it is said, there are acts of Congress which, though contemplating

a present possession in a foreign authority, also contemplate an

ultimate possession by the United States, under which the proclamation

may be justified, even though the act of the 31st of October should

have expired. The acts here referred to, I understand to be the act

of the 24th of February, 1804, for laying and collecting duties

within the territories ceded by France to the United States, the act

above mentioned of the 26th of March, erecting Louisiana into two

Territories, and the act of the 2d of March, 1805, authorizing the

establishment of a Government in the Territory of Orleans, similar to

the Government of the Mississippi Territory. The President himself

admits, in his message at the opening of the session, that those

laws contemplate a _present possession in a foreign Power_; but he

further says, they contemplate an eventual possession by the United

States. But, sir, let me ask what sort of possession? A possession

_by force_? No, sir, not a single provision can be shown to justify

such a construction. But a possession to be obtained _by a friendly

negotiation_. I am warranted in this construction, not merely by the

letter of those laws, by the lapse of time since their enactment,

by the express official declaration of Mr. Madison himself, while

Secretary of State. It is a notorious fact, that when the act of the

24th of February passed, the Marquis D'Yrujo, then the Minister of

his Catholic Majesty in the United States, in a solemn form protested

against that law; and that Mr. Madison, by a letter dated on the 19th

of March, assured the Marquis that the provisions relating to Louisiana

"would not be extended beyond the _acknowledged limits_ of the United

States, until it shall be rendered expedient by _friendly elucidation

and adjustments_ with His Catholic Majesty."

Upon the whole, sir, I have not been able to discover the shadow

of authority, on the ground of which the President issued this

proclamation. He has recited none, amidst all his recitals, and none

appears to me but his own mere will and pleasure.

The act I therefore cannot view in any other light than an

unwarrantable assumption of power and a violation of the constitution.

Considering then, sir, this act of the Executive as illegal and

unauthorized, we are fully at liberty to enter into the discussion

of the great questions of title and expediency; a task which I will

proceed to discharge to the best of my ability.

The first I propose to examine is, the title of the United States

to the territory in question. With respect to this, I perceive, it

unfortunately happens that honorable gentlemen who support the bill

do not precisely accord in sentiment. The gentleman from Vermont (Mr.

BRADLEY) has frankly conceded that the United States acquired no title

under the Treaty of St. Ildefonso. Another gentleman (Mr. SMITH, of

Maryland) has declared that the United States did derive a title under

that treaty, and disclaims the title set up by the honorable gentleman

from Vermont. I shall not undertake to decide which of the two

gentlemen is right, if either be, but shall contend, and humbly expect

to prove, that both are wrong.

What is the nature of the title set up by the gentleman from Vermont?

Not under the treaty, he has candidly owned, but he supposes a title

to exist on the ground of certain quaint principles of the common law,

relative to the doctrines of estoppel and occupancy. I am extremely

happy, sir, to find that honorable gentleman introducing the common law

as authority upon this floor, especially on so great an occasion. His

doctrines certainly evince both research and ingenuity, and show that

he, like many with whom he acts, has not absolutely lost his veneration

for the black letter. What are his doctrines? Why in the first place,

he says, admitting that Spain did not cede Florida to France by the

Treaty of St. Ildefonso, and admitting that France had no title to

Florida on the 30th of April, 1803, when she ceded Louisiana to the

United States, yet, as France has since acquired a title to the crown

of Spain and her colonies, and as the French Plenipotentiary, when

the treaty of 30th of April, 1803, was executed, did state and induce

the American Ministers to understand and believe that Florida was

comprehended in the cession, why the title, though France had it not

when the treaty was signed, yet having it subsequently, immediately

attached in the United States, and France is estopped from saying any

thing to the contrary. This argument, sir, begs every thing: 1st. That

the declarations on the part of the French Minister were made; 2dly,

that being made they would operate to pass the title contrary to the

express letter of the treaty; and lastly, that France has acquired a

good title to the crown of Spain and her colonies. I will yield to the

gentleman his first proposition, and grant, as he seems to desire it,

that these representations were made--and what do they prove? Not that

the title passed, but that the French Minister was too deep for the

American Plenipotentiaries, and, to use a jockey phrase, took them in.

Sir, the only legal effect of such a fraud would be, to violate the

treaty--to annul the contract. France, to be sure, would be bound upon

principles of equity to refund the purchase money.

If then, sir, I am correct in stating, that no conversations or verbal

declarations, however fraudulent, would operate to control or vary the

plain letter and intent of the treaty, as appearing on the face of

it, then upon the gentleman's own acknowledgments no title to Florida

could have passed to the United States under the treaty of 1803. For

the gentleman has unequivocally admitted that Florida was not ceded

by Spain to France by the Treaty of St. Ildefonso, and France, it is

admitted on all sides, by the treaty of 1803, only ceded to the United

States Louisiana, as fully, and in the same manner she acquired it

from Spain by the Treaty of St. Ildefonso; nor, sir, can I admit that

France has acquired a legitimate title to the crown and colonies of

Spain, which must also appear before the gentleman can avail himself of

his argument. What, Mr. President, is the nature of this title? Was it

obtained _bona fide_ for a fair and full consideration? No, sir, but

by the most abominable perfidy, corruption and duress, of which the

pages of history furnish an example. Was not the royal family decoyed

by artifice from Madrid to Bayonne? Was not the old Monarch compelled

to resign his crown to Ferdinand the Seventh, and was not that Prince

a prisoner of Bonaparte; and, while in this condition, and, for aught

we know, the bayonet at his breast, or the cup to his lips, constrained

to resign his crown to the Emperor of France? Sir, what sort of title

is this? Upon the eternal principles of justice, upon the principles

of the common law and common sense, an instrument thus obtained is not

obligatory on the party executing it.

But have the people of Spain acquiesced? No, sir; the instant publicity

was given to the transaction they became indignant, and with one voice

rose, resolved to resist this usurpation. To this hour they have not

submitted.

But the gentleman has said that Spain is no longer able to hold

Florida; that foreign emissaries will take it if the United States do

not, and that it may be lawfully taken by the United States on the

ground of the law of occupancy.

That title may be acquired by occupancy is not to be doubted. It is the

mode by which title to property was originally acquired; but to obtain

a title in this way the country must be vacant, uninhabited and not

claimed by another proprietor. But in this instance is the territory

vacant--or uninhabited--or abandoned by its proprietors? No, sir. The

territory is either in the possession of Spain and claimed by her, or

of the revolutionists, and if either be in possession, by the law of

occupancy, you have no right to disturb them. Clearly then, sir, upon

the principles and admissions of the honorable gentleman from Vermont,

the United States have no title to Florida.

And now, sir, with the indulgence of the Senate, I will proceed to

consider as briefly as possible the nature of this title as derived

under the Treaty of St. Ildefonso. Here, it will be granted, I meet the

question fairly. This, I presume, is the title relied upon, as well by

the Executive as the majority of the supporters of this bill.

In order fully to understand this subject, it is necessary to inquire

into the principal cause of the war of 1756. The eastern boundary of

Louisiana, I believe, was the chief cause of that war. The French

were in the possession of the Mississippi, and claimed as part of

Louisiana not only the country to the west of that river, but east as

far as the Alleghany mountains. France, having this claim, and being

in possession of Canada, conceived the project of uniting Louisiana

with Canada. To accomplish her purpose she established a line of posts

from the Lakes to the Ohio, and commenced encroachments upon the then

British colonies. These encroachments she was pressing so far that

Great Britain perceived it would be necessary to repel them. This

brought on the war of '56, which, after a bloody conflict of seven

years, terminated disastrously to France and her allies, and resulted

in the establishment of the Mississippi, the Iberville, and the lakes

Maurepas and Pontchartrain, as the boundary of Louisiana, giving to

Great Britain all the territory on the east of that boundary, except

the island and town of New Orleans, and to France all upon the west,

including the island and town of New Orleans.

A more particular examination of the results of this war is important.

By it France lost Canada and most of her West India islands. Spain, the

ally of France, lost Cuba. By the preliminary articles of peace between

Great Britain, France, and Spain, signed at Fontainebleau, and dated

the 3d November, 1762, France renounced all pretensions to Nova Scotia,

and ceded and guarantied to his Britannic Majesty, in full right,

Canada with all its dependencies. The 6th article stipulates, "In order

to re-establish peace on the most solid and lasting foundations and

to remove every subject of dispute with regard to the limits of the

British and French Territories on the continent of North America, it

is agreed that for the future the confines between the dominions of

His Britannic Majesty and those of his most Christian Majesty, (French

King,) in that part of the world, shall be irrevocably fixed by a line

drawn along the middle of the river Mississippi from its source, as

far as the river Iberville, and from thence by a line drawn along the

middle of this river, and of the lakes Maurepas and Pontchartrain to

the sea; and to this purpose, the most Christian King cedes in full

right, and guaranties to His Britannic Majesty, the river and port of

Mobile, (now West Florida,) and every thing that he possesses, or ought

to have possessed on the left (east) side of the river Mississippi,

except the town of New Orleans, and the island on which it is situated,

which shall remain to France." By the 18th article, Great Britain

restores to Spain all that she had conquered in the island of Cuba,

with the fortress of Havana. In consequence of which His Catholic

Majesty (King of Spain) by the 19th article "cedes and guaranties in

full right, to His Britannic Majesty, all that Spain possesses on

the continent of North America, to the east or the south-east of the

Mississippi, including Florida, with Fort St. Augustine and the bay

of Pensacola." (Now consisting of East and a part of West Florida.)

By the definitive treaty of peace and friendship between the Kings of

Great Britain, France, and Spain, concluded at Paris on the 10th day

of February, 1763, the preliminary articles were adopted, ratified,

and confirmed. By another treaty bearing date the 3d day of November,

1762, the same day and year the preliminary articles are dated, as

appears by the letter to M. L'Abbadie, which I will presently refer to,

France cedes Louisiana to Spain, together with the town and island of

New Orleans. This last-mentioned treaty has never been published, but

the letter of the King of France to M. L'Abbadie recites the purport as

well as date of it. This letter purports to be an order signed by the

King of France, dated at Versailles, the 21st April, 1764, and directed

to M. L'Abbadie, director-general, and commandant for His Majesty in

Louisiana. This letter was published at New Orleans in October, 1764,

and circulated amongst the French inhabitants there. It recites:

"By a special act, done at Fontainebleau, November 3, 1762, of

my own will and mere motion, having ceded to my very dear and

best beloved cousin the King of Spain, and to his successors,

in full property, purely and simply, and without any

exceptions, the whole country known by the name of Louisiana,

together with New Orleans, and the island in which the said

city is situated; and by another act done at the Escurial,

November 13, in the same year, His Catholic Majesty having

accepted the cession of the said country of Louisiana, and the

city and island of New Orleans, agreeably to the copies of the

said acts, which you will find hereunto annexed; I write you

this letter to inform you, that my intention is, that on the

receipt of these presents, whether they come to your hands by

the officers of His Catholic Majesty or directly by such French

vessels as may be charged with the same, you are to deliver up

to the governor, or officer appointed for that purpose by the

King of Spain, the said country and colony of Louisiana, and

the posts thereon depending, likewise the city and island of

New Orleans, in such state and condition as they shall be found

to be in on the day of the said cession, willing that in all

time to come they shall belong to His Catholic Majesty, to be

governed and administered by his governors and officers, and as

possessed by him in full property, without any exceptions."

From this document, and the treaties referred to, it appears that in

the month of October, 1764, when the whole of Louisiana, with the

island and town of New Orleans, was delivered to Spain, that Great

Britain was in the peaceable possession of all the country on the

east of the Mississippi. That with respect to Florida particularly,

Great Britain was in possession, and nobody dreamed at that time, that

Florida either East or West, was any part of Louisiana. Had it been so

considered under the orders of the French King, to deliver the _whole_

of the province to Spain, undoubtedly Florida would have been delivered.

Immediately after the cession of '62-3, Great Britain took possession

of all the country on the east of the Mississippi, except only the

town and island of New Orleans, and, in the year 1763 or '4, erected

Old Florida, Pensacola, the river and port of Mobile, &c., into two

distinct provinces, under the name of East and West Florida, names

which they have borne ever since. In 1783, at the close of our

Revolutionary war, Great Britain ceded to Spain East and West Florida,

which, from that period to the present time, have been held by Spain

under these names, as separate provinces from Louisiana. In the year

1800, when Spain was in possession of East and West Florida and

Louisiana, as three several and distinct provinces, the famous Treaty

of St. Ildefonso was concluded, whereby Spain "retrocedes to France

the colony or province of Louisiana, with the same extent that it now

has in the hands of Spain, and that it had when France possessed it;

and such as it should be after the treaties subsequently entered into

between Spain and other States." This treaty likewise has not been

published, but the part just referred to is cited in the treaty between

the United States and France of the 30th of April, 1803, whereby

France cedes to the United States Louisiana, as fully and in the same

manner as she acquired it of Spain by the Treaty of St. Ildefonso.

Spain delivered possession in pursuance of the Treaty of St. Ildefonso

to France, and France, in pursuance of the treaty of 1803, delivered

possession to the United States, both powers receiving the country

on the West of the Mississippi, with the island and city of New

Orleans, like Spain originally received it from France, as the whole of

Louisiana.

I have now, I believe, sir, given a full and I trust fair and correct

statement of the evidences and facts relative to the question of title.

A few remarks will close what I have to say on this head. The letter

from the King of France to M. L'Abbadie, is a very important document.

It shows that the King of France, under whom we claim, and by whose

admissions we are bound, so long ago as 1764, treated and considered

the country on the west of the Mississippi as the whole of Louisiana.

That, so considering it, he ceded and delivered it to Spain, together

with the island and town of New Orleans, from which latter words it

may be inferred that even the island and town of New Orleans were then

not considered a part of Louisiana. In 1800, when Spain ceded back the

colony of Louisiana to France, that country was only known on the west

of the Mississippi. The war '56, and the treaties of '62-3, had fixed

the line and obliterated forever the name of Louisiana on the east of

that river.

The Treaty of St. Ildefonso, of 1800, is a mere treaty of

_retrocession_. The translation purports to be a treaty of cession,

it is true, but acknowledged on all sides to be erroneous. The

original treaty was in the French language, and it is by that we

are to be governed. The expression in the original is "Sa Majesté

Catholique promit et s'engage, de son cote, _à retroceder_ à la

Republique Française," &c. _A retroceder_ signifying to retrocede,

to restore, or to use a term familiar in the State I have the honor

to represent, _reconvey_ the colony of Louisiana to France, as it

was when France conveyed it to Spain. The honorable gentleman from

Kentucky, (Mr. POPE,) pressed by this argument, could only get round

it by alleging that the original treaty between France and Spain was

dated in 1761, prior to the settlement of the line and the cessions to

Great Britain. But, unfortunately, he could not produce one title of

authentic evidence to establish his position, a position absolutely

negatived by the official letter to M. L'Abbadie. But that gentleman

has further told us, that from the words "with the same extent it now

has in the hands of Spain, and that it had when France possessed it,

and such as it should be after the treaties subsequently entered into

between other States," an intention may be raised to include Florida.

I fully subscribe to the gentleman's rule, that we must give such

a construction to the treaty, and particularly to the passage just

referred to, as will give effect, if possible, to all the parts; and

this I apprehend may be done without having recourse to the forced

construction contended for. In the first place, the two first members

of the passage may be reconciled and have effect by considering them

as a twofold description of the same territory. From abundant caution

it is not uncommon to give various descriptions of the same object.

Sometimes the name is simply used, sometimes it is described by metes

and bounds, and sometimes by the names of the adjacent countries.

Sometime a twofold, and sometimes a threefold description is given.

And upon a critical examination, I think it will be found that this is

the only true construction the instrument will bear. If you give it

the construction the gentleman contends for, to wit: that the second

member of the passage is an extension of the description given by the

first, then the second includes the first, and of consequence the first

would be nugatory and superfluous; which would be doing violence to

the gentleman's own rule of construction. But if the gentleman will

insist on giving to the second member an enlarged or extended sense,

it may be done by applying it to the western boundaries of Louisiana.

It is said that when France ceded Louisiana to Spain, in '62, the

country extended on the west to the river Sabine, and that Spain, prior

to the treaty of 1808, detached from Louisiana the territory south

of the waters emptying into the Red River, and erected it into a new

province under the name of the "Province of Texas." Sir, the operations

on the Sabine are memorable. It is well known how mysteriously they

were suspended by an arrangement in 1806, by which it was agreed that

the Spaniards should not cross the Sabine, and that the Americans

should not extend their settlements as far as that river. And for this

purpose, to prevent collisions, until the difference should be settled,

instructions were given that no surveys should be made west of a

meridian passing by Nachitoches.

If the gentleman is not satisfied by travelling to the west, by going

to the east he may find an application--the town and island of New

Orleans, which, though named in the cession to Spain, are not named in

the treaty of retrocession to France.

As to the third member of the passage, it is a formal provision

introduced into most treaties, and would be understood if not

expressed. Of course the cession would be subject to prior treaties

with other States. In 1795, Spain concluded a treaty with the United

States, whereby she agrees that the navigation of the Mississippi, in

its whole breadth from its source to the ocean, shall be free to the

citizens of the United States, and that they shall have the right to

deposite their merchandise and effects in the port of New Orleans, free

of duty for three years, and after that period, if the privilege is not

extended at the port of New Orleans, she is to assign to the United

States, on another part of the banks of the Mississippi, an equivalent

establishment. To these provisions the clause in question I apprehend

refers.

The holding or possession of Louisiana is correspondent with the

construction I have given the treaty. When possession was originally

delivered by France to Spain, Florida was not delivered or considered

any part of the cession. When Louisiana, under the Treaty of St.

Ildefonso was restored to France, Florida was not delivered. When

Louisiana, under the treaty of 1803, was delivered to the United

States, Florida was not comprehended. Indeed the Government of the

United States then treated the country on the west of the Mississippi,

including the town and island of New Orleans, as the whole of

Louisiana, by receiving it and paying the purchase money, which by the

terms of the treaty they were not bound to do, and which by the act of

Congress creating the Louisiana stock they were not authorized to do,

till after full and entire possession had been delivered.

Mr. President, is it conceivable that after the boundary in question

had been established by the most solemn compact of nations, and

consecrated by a long and bloody war, and, too, by a lapse of near

forty years--is it conceivable that the territory in question, excluded

by that boundary, and raised into a distinct province under a distinct

name--a name it ever bore after the establishment of the boundary--is

it, I say, sir, conceivable, if the parties meant to have included this

province in the Treaty of St. Ildefonso, that it should not have been

specifically named?

Mr. CLAY.--Mr. President, it would have gratified me if some other

gentleman had undertaken to reply to the ingenious argument which you

have just heard. But not perceiving any one disposed to do so, a sense

of duty obliges me, though very unwell, to claim your indulgence while

I offer my sentiments on this subject, so interesting to the Union at

large, but particularly to the western section 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

doubts with regard to our title against Spain, while 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 it. Our title 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 is proper to take a cursory view of the

settlement of the country; the basis of European title to colonies in

America being 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 Biloxi, near the Pascagoula, was

settled. In 1719, the city of New Orleans was laid off, and the seat of

the Government of Louisiana was established there. 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

the 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.] 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 the 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 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 further 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 express consent.

The ancient charts and historians, therefore, of the country so

represent it. Dupratz, one of the most accurate historians in point

of fact and detail of the time, 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 France anterior to her cession of it in 1762, reached 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 is done with it at this epoch? By a secret convention of the

3d 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 the actual possession of West Florida.

Well, sir, how does she dispose of it? She re-annexes 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; whereas the

Governor of East Florida is placed wholly without his control, and

is made amenable directly to the Governor of the Havana. And 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 rung with the nefarious

speculations which were alleged to be practising 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 has 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 to be 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 the 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 that it then had in the

hands of Spain, and that 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 the 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, had 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.

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