USA > Louisiana > History of Louisiana, the Spanish domination > Part 43
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"The government of this country is formed by a Union of States, and the people have declared that the Constitution was established: to form a more perfect union of the United States. The United States here mentioned cannot be mistaken. They were the States then in existence, and such other States as should be formed within the then limits of the Union, con- formably to the provisions of the Constitution. Every measure, therefore, which tends to infringe the perfect union of the States herein described, 'is a violation of the first sentiment expressed in the Constitution. The incorporation of a foreign nation into the Union, so far
565
MR. GRISWOLD IN THE HOUSE.
from tending to preserve the Union, is a direct inroad upon it; it destroys the perfect union contemplated between the original parties, by interposing an alien and a stranger to share the powers of government with them.
" The Government of the United States was not formed for the purpose of distributing its principles and advan- tages to foreign nations. It was formed with the sole view of securing those blessings to ourselves and our pos- terity. It follows from these principles that no power can reside in any public functionary to contract any en- gagement, or to pursue any measure, which shall change the Union of the States. Nor was it necessary that any restrictive clause should have been inserted in the Con- stitution to restrain the public agents from exercising these extraordinary powers, because the restriction grows out of the nature of the government. The President, with the advice of the Senate, has undoubtedly the right to form treaties, but in exercising these powers, he can- not barter away the Constitution, or the rights of par- ticular States. It is easy to conceive that it must have been considered very important by the original parties to the Constitution, that the limits of the United States should not be extended. The Government having been formed by a union of States, it is supposable that the fear of an undue or preponderating influence, in certain parts of this Union, must have had great weight in the minds of those who might apprehend that such an influence might ultimately injure the interests of the States to which they belonged ; and, although they might concert to become parties of the Union as it was then formed, it is highly probable they would never have consented to such a connexion, if a new world was to be thrown into the scale, to weigh down the influence which they might otherwise possess in the national councils.
566
MR. GRISWOLD IN THE HOUSE.
"From this view of the subject, I have been persuaded that the framers of the Constitution never intended that a power should reside in the President and Senate to form a treaty by which a foreign nation and people shall be incorporated into the Union, and that this treaty, so far as it stipulates for such an incorporation, is void.
" But it has been said that the treaty does not in fact incorporate the people of the ceded territory into the Union, but stipulates that they shall be incorporated and admitted according to the principles of the Federal Con- stitution. Or, in other words, the treaty only pledges the faith of the nation that such an incorporation shall take place. On this point I will observe, that there is no difference in principle between a direct incorporation by the words of a treaty, and a stipulation that an incor- poration shall take place; because, if the faith of the nation is pledged in the latter case, the incorporation must take place, and it is of no consequence whether the treaty gives the incorporation, or produces the law which gives it; in both cases, the treaty produces the effect ; and the question still returns : Does there exist, under the Constitution, a power to incorporate into the Union by a treaty or by a law, a foreign nation or people ? If it shall be admitted that no such power exists without an amendment to the Constitution, and if it shall be said . that the treaty-making power may stipulate for such an amendment, it will be a sufficient answer to say: That no power can reside in any of the national authorities to stipulate with a foreign nation for an amendment to the Constitution. The constituted authorities of our Union have been created to execute the Constitution, not to change or stipulate for changing it, and they can in no case lay the States under the smallest obligation to make the smallest change. Stipulations, therefore, of this na- ture, which create no obligation, are void. *
567
MR. GRISWOLD IN THE HOUSE.
*
*
" Although I am unwilling to detain the Committee at this late hour, and desire not to delay the wishes of the majority, yet I must be permitted again to refer the Committee to the 7th article of the treaty. This article declares, that the ships of France and Spain, together with their cargoes, being the produce or manufacture of those countries, shall be admitted into the ports of the ceded territory on the same terms, in regard to duties, with American ships. It is certainly worth the con- sideration of the Committee, whether this article is con- sistent with the provisions of the Constitution. As our laws now stand, the ships of France and Spain are liable to an extra tonnage duty, and their cargoes to a duty of ten per cent. advance, when arriving in the Atlantic . ports. The treaty declares that, in the ports of the ceded territory, this extra duty of import and tonnage shall cease. The treaty does not, and probably cannot, repeal the law which lays this extra duty in the Atlantic States, but those duties must still be collected. The constitution, however, declares in the 8th section. of the First Article that : 'all duties, imposts, and excises, shall be uniform throughout the United States,' and in the 9th section of the same Article, it is said that : ' no preference shall be given, by any regulation of commerce, or revenue, to the ports of one State over those of another.' By the treaty, however, the uniformity of duties is destroyed, and, by this regulation of commerce contained in the treaty, a preference is certainly given to the ports of the ceded territory over those of the other States. Gentle- men who advocate the constitutionality of the treaty will scarcely say that the ceded territory is no part of the United States, and not embraced by the provisions of the Constitution, because such an assertion, while it avoided one difficulty, would plunge them into another
568
MR. DANA IN THE HOUSE.
equally fatal, and prove that the third Article is void, and, of course, that the cession itself is a nullity."
Another gentleman from Connecticut (Mr. Dana), de- clared that if the inhabitants of the ceded territory were now, or should hereafter be, admitted into the Union, it would be a violation of that clause of the Constitution which relates to the establishment of an uniform rule of naturalization, since those people would be converted from foreigners to citizens, not in the mode prescribed by the naturalization laws.
Mr. Gaylord Griswold, from New York, denied that there existed in the United States, as such, a capacity to acquire territory, and contended that, by the constitu- tion, they were restricted to the limits which existed at the time of its adoption. He said : "In the 3d section of the 4th.article of the Constitution we read : 'New States may be admitted by the Congress into this Union.' Con- gress therefore may admit new States, but, according to my construction of this article, this power is confined to the territory belonging to the United States at the forma- tion of the Constitution-to the territory then within the United States. Existing territory, not within the limits of any particular States, may be incorporated in the Union. I maintain, therefore, that the power to incor- porate new territory does not exist; and that, if it did exist, it belonged to the Legislature, and not the Execu- tiye, to incorporate it in the Union. If this were the case, it was the duty of the House to resist the usurped power by the Executive."
The other speakers on this side of the question travel- led over the same ground, and paraphrased the same arguments, asserting that if the United States could acquire territory, it was not to make it a part of the Confederacy as a State, but to hold it as a colony for ever, or as a sort of subordinate dependency.
569
MR. THOMAS RANDOLPH IN REPLY.
In reply, Mr. Thomas Randolph, from Virginia, said : " That not only did the Constitution not describe any particular boundary, beyond which the United States could not extend, but that their boundary was unsettled on their north-eastern, southern and north-western fron- tiers at the time of its adoption-nay, that they were without limits beyond the sources of the Mississippi ; that the United States had the undeniable power of setting limits, and therefore of extending them ; that, in proof of that power, the recent acquisitions on the side of Canada and at the Natchez could be cited; that Con- gress had expressed, in their own acts, a solemn recog- nition of the principle, that the United States in their federative capacity might acquire, and that they had acquired, territory ; that there had been no usurpation of power by the Executive on this occasion; that if the Government of the United States possessed the consti- tutional power to acquire territory from foreign States, the Executive, as the organ by which the Union com- municates with such States, must be the prime agent in negotiating such an acquisition, and then initiate the business to Congress by message ; that he had so done in the present instance, and therefore had not been guilty of any invasion of the privileges of that body ; that if the United States could acquire territory by con- quest, which could not. be denied, they could by pur- chase, as that power was a necessary appendage to all independent governments ; that the alleged preference given to New Orleans over the other parts of the Union did not present a constitutional difficulty, because it must be considered as the price paid for the ceded territory ; that by the treaty no preference was given to one State over another, because Louisiana was a Territory and not a State ; that a complete discretion was left to the United States as to the time and manner of incorporat-
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MR. THOMAS RANDOLPH IN REPLY.
ing that territory into the Union, and that it was not necessary to do so within the twelve years during which France and Spain were to enjoy the privileges granted by the treaty ; that the preference of American ships over foreign ships was a legal regulation ; and that those who were so tender with regard to the Constitution might have it in their power entirely to get rid of the consti- tutional difficulty, by taking off from the ships of Spain and France such duties as were higher than the duties paid by American vessels, so as to put all the American ports on the same level with New Orleans.
" When I say this," continued Mr. Thomas Randolph, "I speak for them, and not for myself; nor shall I move to take off these heavy duties, as I do not feel the force of the constitutional objections urged by gentlemen. The article of the treaty, so often quoted, shows that no preference is given to one port over another. Yet, by turning to our statute books, it will be perceived that, at present, there are some ports entitled to benefits which other ports do not enjoy ; that they are set apart for particular objects ; and particularly for the entry of articles brought from beyond the Cape of Good Hope. According, therefore, to the doctrine of this day, this is a violation of the Constitution."
Mr. Smilie, from Pennsylvania, thought that the right of annexing territory was incidental to all governments ; that such a power must be vested in some of the depart- ments of the government of the United States; that clearly it was not vested in the States individually, as they were expressly divested of that right by being de- prived of the power of forming treaties and making war; but that it could reside in the General Government only.
Mr. Rodney, from Delaware, said: "That, by the Constitution, Congress had power to lay and. collect
571
JOHN RANDOLPH IN THE HOUSE.
taxes, duties, imposts and excises, to pay the debts and provide for the common defence and general welfare of the United States; and that within the fair meaning of this general provision was included the power of increas- ing our territory, if necessary for the general welfare or common defence."
Mr. John Randolph, from Virginia, said that a sense of duty alone could have induced him to rise at that late hour. But he wished to call the attention of the Com- mittee to a stipulation in the treaty of London. Here Mr. Randolph read an extract from the 3rd article of that treaty, whereby the United States were pledged not to impose on imports in British vessels from the British territories in America, adjacent to the United States, any higher duties than would be paid upon such imports, if brought into the American Atlantic ports in American bottoms. "In this case," he said, "gentlemen could not avail themselves of the distinction taken by his friend from Maryland (Mr. Nicholson), between a territory and a state, even if they were so disposed-since the ports in question were ports of a state. The ports of New York on the Lakes were as much parts of that State as the city of New York itself; they had their customhouse officers, were governed by the same regulations as other ports, and duties were exacted at them; yet, under the article of the British treaty which had just been read, British bottoms would and did enter them subject to no higher duties than were paid by American bottoms in the Atlantic ports. Mr. Randolph said that he did not mean to affirm that this exemption made by the treaty of Lon- don was constitutional, so long as a distinction prevailed between American and British bottoms in other ports. He had never given a vote to carry that treaty into effect-but he hoped the gentlemen from Connecticut (Mr. Griswold and Mr. Dana), both of whom he believed
572
JOHN RANDOLPH IN THE HOUSE.
had done so-one of whom at least he knew had been a conspicuous advocate of that treaty-he hoped that gentleman (Mr. Griswold) would inform the Committee how he got over the constitutional objection to this article of the treaty of London, which he had endeavored to urge against that under discussion. How could the gentleman, with the opinion he now holds, agree to ad- mit British bottoms into certain ports, on the same terms on which American bottoms were admitted into Ameri- can ports generally ? Thereby making that very differ- ence-giving that very preference to those particular ports of certain states, which he tells us cannot constitu- tionally be given to the port of New Orleans,-although that port is not within any state, and, if his (Mr. Gris- wold's) doctrine be correct, not even within the United States !
" Another gentleman from Connecticut," continued Mr. John Randolph, " had declared that if the inhabitants of the ceded territory were now, or should hereafter be ad- mitted into the Union, it would be a violation of that clause of the Constitution which relates to the establish- ment of an uniform rule of naturalization, since those people will be converted from foreigners to citizens, not in the mode prescribed by our naturalization law. I wish to know in what manner the subjects of Great Britain settled around our Western posts were admitted to the privilege of citizenship. Whether it was not done by treaty, and not in the mode prescribed by law ? How did the people at Natchez become entitled to the rights of citizens ? Although born out of our allegiance, the moment our government was established over them, did they not possess of right a security for their lives and property ? Could they not demand trial by jury in case of criminal prosecution ? When I speak of their acquir- ing the rights of citizens, I do not mean in the full extent
573
RESOLUTIONS ADOPTED.
in which they are enjoyed by citizens of any one of the particular States, since they possessed not the right of self-government, but those rights of personal liberty, of personal security and of property, which are among the dearest privileges of our citizens. A stipulation to incor- porate the ceded territory does not imply that we are bound ever to admit them to the non-qualified enjoyment of the privileges of citizenship. It is a covenant to in- corporate them into the Union-not on the footing of the original States, or of States created under the Consti- tution-but to extend to them, according to the prin- ciples of the Constitution, the rights and immunities : of citizens, being those rights and immunities of jury trial, liberty of conscience, &c., &c., which every citizen may challenge, whether he be a citizen of an individual state, or of a territory subordinate to and dependent on those States in their corporate capacity. In the mean time, they are to be protected in the enjoyment of their existing rights. There is no stipulation, however, that they shall ever be formed into one or more States."
The Committee now rose, the Speaker resumed the chair, and the following resolutions were reported :
1º-Resolved, That provision ought to be made for car- rying into effect the treaty and conventions concluded at Paris on the 30th of April, 1803, between the United States of America and the French Republic.
2º-Resolved, That so much of the message of the President, of the 21st, as relates to the establishment of a provisional government over the territory acquired by the United States, in virtue of the treaty and conventions lately negotiated with the French Republic, be referred to a Select Committee ; and that they report by bill or other- wise.
3º-Resolved, That so much of the aforesaid conven- tions as relates to the payment by the United States of
574
WHAT BILLS FINALLY ADOPTED. .
sixty millions of francs to the French Republic, and to the payment by the United States of debts due by France to citizens of the United States, be referred to the Com- mittee of Ways and Means.
These resolutions were carried by a vote of 90 yeas to 25 nays. The nays were: 1 from Vermont, 9 from Massachusetts, 5 from Connecticut, 3 from New York, 2 from New Hampshire, 1 from Maryland, and 4 from Virginia.
On the 28th, the bill from the Senate entitled : "An Act to enable the President of the United States to take possession of the territories ceded by France to the United States, &c., with the amendments proposed by the House, was passed by a vote of 89 yeas to 23 nays. It read as follows :-
Sect. 1 .- Be it enacted, that the President of the Unit- ed States be, and he is hereby, authorized to take posses- sion of and occupy the territory ceded by France to the United States, by the treaty concluded at Paris, on the 30th of April last, between the two nations ; and that he may, for that purpose, and in order to maintain in the said territory the authority of the United States, employ any part of the army and navy of the United States, and of the force authorized by an act passed the 3d day of March last, entitled : " An Act directing a detachment from the Militia of the United States, and for erecting certain arsenals," which he may deem necessary ; and so much of the sum appropriated by the said act as may be neces- sary is hereby appropriated for the purpose of carrying this act into effect ; to be applied under the direction of the President of the United States.
Sect. 2 .- And be it further enacted, that, until the expiration of the present session of Congress, or unless provision be sooner made for the temporary government of the said territories, all the military, civil and judicial
575
WHAT BILLS FINALLY ADOPTED.
powers exercised by the officers of the existing government of the same, shall be vested in such person and persons, and shall be exercised in such manner, as the President of the United States shall direct, for maintaining and protecting the inhabitants of Louisiana in the full enjoy- ment of their liberty, property and religion.
On the 29th, the House adopted by a vote of 85 yeas to 7 nays, "an Act authorizing the creation of a stock to the amount of eleven millions two hundred and fifty thousand dollars, for the purpose of carrying the treaty of cession into effect," &c., &c.
Such were the congressional proceedings on this memorable occasion.
1
CHAPTER X.
SALCEDO'S ADMINISTRATION.
1801 to 1803.
I HAVE endeavored, in the two preceding chapters, to relate with fidelity, and with as much condensation as the nature of the subject would admit, all the transac- tions relative to Louisiana, which, in 1802 and 1803, had occurred in the United States, France and Spain. I shall now call the attention of the reader to the events which, in the meantime, had happened in the colony itself, and those which were the result of the transac- tions I have recorded. Thus, on the 26th of November, 1802, the Marquis de Casa Irujo, the Minister of Spain at Washington, had written to the Intendant, Morales, and represented to him the fatal consequences of his having closed the port of New Orleans to the Americans as a place of deposit, and of his having refused them the free navigation of the Mississippi, "giving," said the Minister, "to the citizens* of the United States good cause for claiming indemnities in return for the serious damages which their commerce will inevitably suffer." On the 15th of January, 1803, Morales answered with some tartness: "That the orders alluded to by the
* Dando á los ciudadanos de los Estados Unidos lugar á reclamaciones de in- demnizacion por los graves perjuicios que indispensablemente han de recibir en su comercio.
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MORALES AND CASA IRUJO IN CONFLICT. 577
Minister emanated solely from the Intendancy, and had been issued notwithstanding the opposition of the Gover- nor, with whom he, the Intendant, had, in consequence thereof, had some difficulties ; and that he assumed the whole responsibility of the measure, the object of which had been to strike at the root of the infinite irregula- rities and abuses, which were the result of the right of deposit granted to the Americans at New Orleans."*
It appears from a despatch of the same officer, that the revenue accruing to the King's treasury, from every source in the colony, amounted, in 1802, to $121,041. " The revenue," observed the Intendant, "would have been much more considerable, if it had not been for the contraband trade carried on by the flatboats which come down the river."
On the first day of March, says Judge Martin in his History of Louisiana, the King disapproved of the order of Morales, prohibiting the introduction and deposit of goods, wares and merchandise from the United States in the port of New Orleans, and ordered that the United States should continue to enjoy their right of deposit in New Orleans, without prejudice of his right to substi- tute some other spot on the banks of the Mississippi.
On the 23rd of the same month, the Cabildo had completed all the preparations necessary to receive and supply with provisions the large body of troops expected with General Victor. On the next day, by the arrival of a vessel from Havre, the colonists were put in pos- session of the documents which gave them information of the new form of government intended for Louisiana. Its principal officers were: a Captain-General, with a salary of 70,000 francs ; a Lieutenant-Captain-General,
Que el (El intendente) habia tomado aquella medida y aceptaba para si solo la responsabilitad, deseando cortar de raiz los infinitos obstaculos y abusos que resultaban del dicho deposito.
37
578
INTENDED REORGANIZATION OF THE COLONY.
who was to command in Upper Louisiana, with a salary of 20,000 francs ; two Brigadier-Generals, each with 15,000 francs a year, and two Adjutant-Commandants, with 9,000 francs each. The Colonial Prefect had a salary of 50,000 francs. Next to the Colonial Prefect in the civil department, came the Commissary of Justice.
"The Captain-General* was commander-in-chief of the land and naval forces, and had the care of the exterior and interior defence of the colony. He provisorily filled vacancies in military offices, according to the order of advancement, as far as the grade of chief of division or squadron (chef de division ou d'escadre), and proposed to the Minister proper persons to fill higher grades. He delivered passports, regulated the bearing of arms, and corresponded with the governors of other colonies, whether belonging to allies, neutrals or enemies. With the Colonial Prefect he regulated the works to be done on the fortifications, and the new roads to be opened ; and, finally, exercised all the powers formerly granted to governors-general. He was forbidden to interfere with the attributions of the Colonial Prefect, or of the Commissary of Justice; but was authorized to require from either of them information on any matter relative to the service. Power was given him to suspend pro- visorily the execution of laws, in whole or in part, on his responsibility, after having consulted the Colonial Pre- fect, or the Commissary of Justice, according to the nature of the case.
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