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.