[9] Col. Isaac A. Coles, private secretary to Mr. Jefferson.
[10] By concurrence in the report of a committee, of which Mr. Madison was chairman, on the subject of a letter from Mr. Gunn to Mr. Baldwin, both members of Congress; as well as on the case of Mr. Frelinghuysen.
The third session of the eleventh Congress, conformably to the Constitution of Government of the United States, commenced this day; and the Senate assembled at the city of Washington.
PRESENT:
The number of Senators present not being sufficient to constitute a quorum, the Senate adjourned.
John Lambert, from the State of New Jersey, Elisha Mathewson, from the State of Rhode Island, and Philip Reed, from the State of Maryland, severally attended.
The credentials of Charles Cutts, appointed a Senator by the Legislature of the State of New Hampshire, in place of Nahum Parker, Esq., resigned; also, of Samuel W. Dana, appointed a Senator by the Legislature of the State of Connecticut, in place of James Hillhouse, Esq., resigned, were severally read; and the oath required by law was, by the President, administered to them, respectively.
Ordered, That the Secretary acquaint the House of Representatives that a quorum of the Senate is assembled and ready to proceed to business.
Ordered, That Messrs Smith, of Maryland, and Gilman, be a committee on the part of the Senate, together with such committee as may be appointed by the House of Representatives on their part, to wait on the President of the United States and notify him that a quorum of the two Houses is assembled and ready to receive any communications that he may be pleased to make to them.
A message from the House of Representatives informed the Senate that a quorum of the House of Representatives is assembled and ready to proceed to business. The House of Representatives have appointed a committee on their part, jointly with such committee as may be appointed on the part of the Senate, to wait on the President of the United States and notify him that a quorum of the two Houses is assembled and ready to receive any communications that he may be pleased to make to them.
On motion, by Mr. Smith, of Maryland,
Resolved, That James Mathers, sergeant-at-arms and doorkeeper to the Senate, be, and he is hereby, authorized to employ one assistant and two horses, for the purpose of performing such services as are usually required by the doorkeeper to the Senate; and that the sum of twenty-eight dollars be allowed him weekly for that purpose, to commence with, and remain during the session, and for twenty days after.
Mr. Smith, of Maryland, reported from the joint committee that they had waited on the President of the United States, and that the President informed the committee that he would make a communication to the two Houses to-morrow at 12 o'clock.
Timothy Pickering, from the State of Massachusetts, and Stephen R. Bradley, from the State of Vermont, severally attended.
President's Annual Message.
The following Message was received from the President of the United States:
Fellow-citizens of the Senate
and House of Representatives:
The embarrassments which have prevailed in our foreign relations, and so much employed the deliberations of Congress, make it a primary duty in meeting you to communicate whatever may have occurred in that branch of our national affairs.
The act of the last session of Congress concerning the commercial intercourse between the United States and Great Britain and France, and their dependencies, having invited, in a new form, a termination of their edicts against our neutral commerce; copies of the act were immediately forwarded to our Ministers at London and Paris, with a view that its object might be within the early attention of the French and British Governments.
By the communication received through our Minister at Paris, it appeared that a knowledge of the act by the French Government was followed by a declaration that the Berlin and Milan decrees were revoked, and would cease to have effect on the first day of November ensuing. These being the only known edicts of France within the description of the act, and the revocation of them being such that they ceased at that date to violate our neutral commerce, the fact, as prescribed by law, was announced by a proclamation, bearing date the second day of November.
It would have well accorded with the conciliatory views indicated by this proceeding on the part of France, to have extended them to all the grounds of just complaint which now remain unadjusted with the United States. It was particularly anticipated that, as a further evidence of just dispositions towards them, restoration would have been immediately made of the property of our citizens, seized under a misapplication of the principle of reprisals, combined with a misconstruction of the law of the United States. This expectation has not been fulfilled.
From the British Government, no communication on the subject of the act has been received. To a communication, from our minister at London, of a revocation, by the French Government, of its Berlin and Milan decrees, it was answered, that the British system would be relinquished as soon as the repeal of the French decrees should have actually taken effect, and the commerce of neutral nations have been restored to the condition in which it stood previously to the promulgation of those decrees. This pledge, although it does not necessarily import, does not exclude, the intention of relinquishing, along with the Orders in Council, the practice of those novel blockades, which have a like effect of interrupting our neutral commerce: and this further justice to the United States is the rather to be looked for, inasmuch as the blockades in question, being not more contrary to the established law of nations than inconsistent with the rules of blockade formerly recognized by Great Britain herself, could have no alleged basis other than the plea of retaliation, alleged as the basis of the Orders in Council. Under the modification of the original orders of November, 1807, into the orders of April, 1809, there is, indeed, scarcely a nominal distinction between the orders and the blockades. One of those illegitimate blockades, bearing date in May, 1806, having been expressly avowed to be still unrescinded, and to be, in effect, comprehended in the Orders in Council, was too distinctly brought within the purview of the act of Congress not to be comprehended in the explanation of the requisites to a compliance with it. The British Government was accordingly apprised by our Minister near it, that such was the light in which the subject was to be regarded.
On the other important subjects depending between the United States and that Government, no progress has been made from which an early and satisfactory result can be relied on.
In this new posture of our relations with those powers, the consideration of Congress will be properly turned to a removal of doubts which may occur in the exposition, and of difficulties in the execution, of the act above cited.
The commerce of the United States with the north of Europe, heretofore much vexed by licentious cruisers, particularly under the Danish flag, has latterly been visited with fresh and extensive depredations. The measures pursued in behalf of our injured citizens, not having obtained justice for them, a further and more formal interposition with the Danish Government is contemplated. The principles which have been maintained by that Government in relation to neutral commerce, and the friendly professions of His Danish Majesty towards the United States, are valuable pledges in favor of a successful issue.
Among the events growing out of the state of the Spanish monarchy, our attention was imperiously attracted to the change developing itself in that portion of West Florida which, though of right appertaining to the United States, had remained in the possession of Spain, awaiting the result of negotiations for its actual delivery to them. The Spanish authority was subverted, and a situation produced exposing the country to ulterior events which might essentially affect the rights and welfare of the Union. In such a conjuncture I did not delay the interposition required for the occupancy of the territory west of the river Perdido, to which the title of the United States extends, and to which the laws provided for the Territory of Orleans are applicable. With this view, the proclamation, of which a copy is laid before you, was confided to the Governor of that Territory, to be carried into effect. The legality and necessity of the course pursued, assure me of the favorable light in which it will present itself to the Legislature, and of the promptitude with which they will supply whatever provisions may be due to the essential rights and equitable interests of the people thus brought into the bosom of the American family.
Our amity with the Powers of Barbary, with the exception of a recent occurrence at Tunis, of which an explanation is just received, appears to have been uninterrupted, and to have become more firmly established.
Whilst it is universally admitted that a well-instructed people alone can be permanently a free people, and while it is evident that the means of diffusing and improving useful knowledge form so small a proportion of the expenditures for national purposes, I cannot presume it to be unseasonable to invite your attention to the advantages of superadding to the means of education, provided by the several States, a seminary of learning, instituted by the National Legislature, within the limits of their exclusive jurisdiction, the expense of which might be defrayed or reimbursed out of the vacant grounds which have accrued to the nation within those limits.
Such an institution, though local in its legal character, would be universal in its beneficial effects. By enlightening the opinions, by expanding the patriotism, and by assimilating the principles, the sentiments, and the manners, of those who might resort to this temple of science, to be redistributed, in due time, through every part of the community, sources of jealousy and prejudice would be diminished, the features of national character would be multiplied, and greater extent given to social harmony. But, above all, a well-constituted seminary, in the centre of the nation, is recommended by the consideration that the additional instruction emanating from it would contribute not less to strengthen the foundations than to adorn the structure of our free and happy system of Government.
Among the commercial abuses still committed under the American flag, and leaving in force my former reference to that subject, it appears that American citizens are instrumental in carrying on a traffic in enslaved Africans, equally in violation of the laws of humanity, and in defiance of those of their own country. The same just and benevolent motives which produced the interdiction in force against this criminal conduct, will doubtless be felt by Congress in devising further means of suppressing the evil.
In the midst of uncertainties necessarily connected with the great interests of the United States, prudence requires a continuance of our defensive and precautionary arrangement. The Secretary of War and Secretary of the Navy will submit the statements and estimates which may aid Congress in their ensuing provisions for the land and naval forces. The statements of the latter will include a view of the transfers of appropriations in the naval expenditures, and the grounds on which they were made.
The corps of engineers, with the Military Academy, are entitled to the early attention of Congress. The buildings at the seat fixed by law for the present academy are so far in decay, as not to afford the necessary accommodation. But a revision of the law is recommended principally with a view to a more enlarged cultivation and diffusion of the advantages of such institutions, by providing professorships for all the necessary branches of military instruction, and by the establishment of an additional academy at the Seat of Government or elsewhere. The means by which war, as well for defence as for offence, is now carried on, render these schools of the more scientific operations an indispensable part of every adequate system. Even among nations whose large standing armies and frequent wars afford every other opportunity of instruction, these establishments are found to be indispensable for the due attainment of the branches of military science which require a regular course of study and experiment. In a Government happily without the other opportunities, seminaries, where the elementary principles of the art of war can be taught without actual war, and without the expense of extensive and standing armies, have the precious advantage of uniting an essential preparation against external danger, with a scrupulous regard to internal safety. In no other way, probably, can a provision of equal efficacy for the public defence be made at so little expense, or more consistently with the public liberty.
Reserving for future occasions, in the course of the session, whatever other communications may claim your attention, I close the present, by expressing my reliance, under the blessing of Divine Providence, on the judgment and patriotism which will guide your measures, at a period particularly calling for united councils, and inflexible exertions, for the welfare of our country, and by assuring you of the fidelity and alacrity with which my co-operation will be afforded.
JAMES MADISON.
Washington, December 5, 1810.
Joseph Anderson, from the State of Tennessee, attended.
Richard Brent, from the State of Virginia, attended.
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.
Henry Clay, from the State of Kentucky, took his seat in the Senate.
James Lloyd, from the State of Massachusetts, took his seat in the Senate.
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.
Christopher Grant Champlin, from the State of Rhode Island, took his seat in the Senate.
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.
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: