USA > Louisiana > The province and the states, a history of the province of Louisiana under France and Spain, and of the territories and states of the United States formed therefrom, Vol. II > Part 25
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'The resolution was also opposed by Mr. Mitchill, of New York. Among other pertinent things he said, "The gentleman from Con- neclient (Mr. Griswold) says that the cession expressed in the treaty, is no cession at all but a mere pretence. He says that our title is derived from France, who has no title whatever to Louisi-
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ana, and of course can convey none to the United States. I differ in opinion entirely with that gentleman. The treaty contains internal evidence enough for me to act upon. And it is accom- panied with extrinsic events and circumstances of great publicity. The united evidence of these we cannot resist without rejecting all human testimony and sinking into absolute scepticism. . In the treaty of St. Ildefonso Spain promises to cede ; but the stipulation is accompanied with a condition which, as alleged by the mover of the resolution, has never been performed. This condition, though not expressed at large in the first article, is well understood to be the establishment of the Duke of Parma in the full and entire possession of Tuscany, and the making him a monarch under the title of the King of Etruria. This has been done in the face of all Europe. And the deliberations in the Diet of Ratishon, concerning German indemnities, shows that the Prince, who was turned out of that country to make room for a younger member of the blood royal of Spain, was one of those . who suffered a loss of dominion and revenue when Italy was borne down by the victorious arms of France. I urge upon the attention of the House, that France has put the Duke of Parma on the throne of Etruria, and has thereby acquired a title to Louisiana. This was the consideration of price with which the American province was purchased from Spain. But the right of France to Louisiana does not rest here-it is not a nudum pac- tum-so far from it, effective measures have been adopted to carry it into operation by adding possession to right. A com- missioner has been sent to New Orleans on the part of the French Republic to receive the province of Louison from Spam. the is required to do every act necessary, as well to receive from the officers of his Catholic Majesty the said country and its dependencies, if it has not been already done, as to transmit it in the name of the French Republic to the commissary or agent of the United States. An objection has been raised on the ground of the uncertainty of the limits of Louisiana. 1 do not feel the force of this. I know perfectly well that uncertainty overhangs the subject ; but this will be dissipated by degrees as the unknown regions shall be visited and described. We may then proceed to adjust the limits in a manner similar to that we have repeatedly adopted with respect to the present territory of the United States. . The operation of the resolution if adopted will certainly be to procrastinate and embarrass ; and I do not discorn what good will be wrought at this time by agree- ing to it. There is an additional reason and that a very weighty
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one for refusing the motion at this time. By the treaty it must 'be ratified in good and due form and the ratifications exchanged within six months after execution.' The date of this deed of ces- sion is the 30th of April last ; and consequently the limited time will expire on the 30th of the current month. A doubt has been expressed by some gentlemen for whose judgment I entertain the greatest respect whether the ratification will be consummated in 'good and due form,' unless the declaration and act of this House shall follow up the determination of the President and Senate. It will, therefore, be better to proceed without delay to comply with all the prerequisites." He therefore moved a postponement of the resolution to the 30th of the following May.
The motion to postpone the resolution of Mr. Griswold led to a long discussion, during which many arguments, pro and con, were advanced on the Louisiana question, Mr. Griswold con- tinned, "By the first article of the treaty of St. Ildefonso it appears that Spain promised to cede Louisiana to France on certain stipu- lations. She promises to cede. Gentlemen cannot mistake the import of the language; it is a promise and not a cession. Will it be said that France acquired any title by this promise? This cannot be contended ; the treaty does not declare whether the terms stipulated by France have been complied with, or whether the cession was actually made. The terms of the treaty are 'whereas in pursuance of the treaty and particularly of the third article the French Republic has an incontestible title,' etc. Will gentle- . men say that this assertion on the part of France gives her a title? It gives her no title. An arcation Is Brand . not set Spain."
Mr. Randolph, in answering this argument, did not controvert it; but showed at length the utter lack of wisdom of placing technicalities in the way of such an important acquisition. He said, "How are we to reconcile this reluctant caution to the doc- trine of forcible possession so lately inculcated by gentlemen ? At one time it was necessary to possess ourselves of the key of the Mississippi on any terms and in any way. There was no waiting to examine into the title of other nations or scarcely into our own. The Mississippi must be had at every hazard and in any mode. Now that it is offered us, gentlemen can devise no mode of gettting it. They are so embarrassed with forms, which sometime past were held as nothing, that the value of the Mis- sissippi, which was held as everything, has sunk in their estima- tion. That Mississippi, for whose acquisition the nation was to be precipitated at once into war, is now of so little consequence
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that the most trivial form outweighs it in their estimation. I had expected to see those gentlemen foremost in zeal for taking pos- session of the country in question, and so far from throwing impediments in the way, that in case Spain manifested any opposi- tion to the step, they would have been the first to originate meas- ures for compelling her assent. This would have been con- sistent."
The motion to postpone was withdrawn and the house pro- ceeded to vote upon the resolution in sections. On the first mem- ber, "Resolved, That the President of the United States he requested to cause to be laid before this House a copy of the treaty between the French Republic and Spain, of the Ist of October, 1800," the house divided, the ayes being 59 and the noes 59; whereupon the speaker declared himself in the affirm- ative and the member was carried. All the other members of Mr. Griswold's resolution were rejected. Mr. Nicholson had moved to amend the second member by adding, "Together with a copy. of any instrument in possession of the Executive, showing that the Spanish government has ordered the province of Louisiana to be delivered to the Commissary or other agent of the French Gov- ernment," and this amendment was agreed to. But the resolu- tion as amended was then voted upon and lost-yeas 57, nays 59 .* The rejection of the resolution merely showed that the friends of the administration were unwilling to embarrass the executive in measures to confirm the treaty and carry it into effect.
On the 25th the house resolved itself into a committee of the whole to consider the messages of the president, and under the following resolution, which had been previousis moved. proces al to a consideration of the Louisiana treaty : "Resolved. That plo- vision ought to be made for carrying into effect the treaty and convention concluded at Paris on the 30th of April, 1803, between the United States of America and the French Republic."> Mr. Gaylord Griswold of New York said that he found in the third article of the Louisiana treaty "a compact between the French Government and that of the United States to admit to citizenship persons out of the jurisdiction of the United States as it now is, and to admit territory out of the United States to be incorporated into the Union. I do not find in the Constitution such a power vested in the President and Senate. Ji such a power be not expressly vested, it must be reserved to the people. It was not consistent with the spirit of the Constitution that territory other
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. Annals of Congress.
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than that attached to the United States at the time of the adoption of the Constitution should be admitted ; because at that time the persons who formed the Constitution of the United States had a particular respect to the then subsisting territory. They carried their ideas to the time when there might be an extended popula- tion ; but they did not carry them forward to the time when an addition might be made to the Union of a territory equal to the whole United States, which additional territory might overbalance the existing territory, and thereby the rights of the present citi- zens of the United States be swallowed up and lost. Such a measure could not be consistent either with the spirit or the genius of the government. But if the right of extend- ing our territory be given by the Constitution, its exercise is vested in the Legislative branches of the Government. In the third see- tion of the fourth article of the Constitution it is said, 'New States may be admitted by the Congress into this Union.' Congress may admit new States, but according to my construction of this article, are confined to the territory belonging to the United States at the formation of the Constitution-to the territory then within the United States. Existing territory not within the limits of any particular States may be incorporated into the Union. I contend, therefore, that the power to incorporate new territory did not exist ; and that if it did exist it belonged to the Legislature and not the Exceutive to incorporate it in the Union. If this is the case it is the duty of the House to resist the usurped power exercised by the Executive."
In reply Mr. Randolph said. "I understand the goodlen ar fooo New York as denying that there exists in the United States as such a capacity to acquire territory ; that by the Constitution they are restricted to the limits which existed at the time of its adop- tion. If this position be correct, it undeniable follows that those limits must have been accurately defined and generally known at the time when the Government took effect. Either they have been particularly described in the constitutional compact, or are referred to as settled beyond dispute and universally acknowledged. But this is not the fact in either case. The Constitution not only does not describe any particular boundary beyond which the United States could not extend, but our boundary was unsettled on our northeastern, southern and northwestern frontier at the time of its adoption. That the Constitution should tie us down to particular limits without expressing those limits; that we should be restrained to the then boundaries of the United States when it is in proof to the committee that no such bounds existed or do now
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exist, was altogether incomprehensible and inadmissible. For if the Constitution meant the practical limits of the United States, the extent of country which we then possessed-our recent acqui- sitions on the side of Canada and the Natchez can not be defended. My position is not only maintainable by the reason of the Consti- tution, but by the practice under it. Congress have expressed in their own acts a solemn recognition of the principle that the United States in their Federative capacity may acquire and have acquired territory; namely, the territory in dispute between Georgia and Florida. No gentleman will deny the right of the President to initiate business here by message recom- mending particular subjects to our attention. If the Government of the United States possess the Constitutional power to acquire territory from foreign States, the Executive as the organ by which we communicate with such States must be the prime agent in negotiating such an acquisition. Conceding then that the power of confirming this act and annexing to the United States the terri- tory thus acquired ultimately rests with congress, where has been the invasion of the privileges of that body? Does not the Presi- dent of the United States submit this subject to Congress for their sanction ? Does he not recognize the principle, which I trust we will never give up, that no treaty is binding until we pass the laws for executing it -- that the powers conferred by the Constitution on Congress cannot be modified or abridged by any treaty whatever- that the subjects of which they have cognizance cannot in any way be taken out of their jurisdiction? In this procedure nothing is to be seen but a respect on the part of the Executive for our rights; a recognition of a discretion on our part to accord or refuse our sanction. Where then is the violation of our rechts? is to the initiative in a matter like this, it necessarily devolves on the Executive. Let us suppose that our negotiations for our rights on the Mississippi, instead of its present happy issue, had terminated in a refusal of justice. I believe there would in that event have been but one sentiment in this House and in this nation. We should have appealed to arms, and if fortune had only been as impartial as our cause was just, we should have possessed ourselves of at least a part of the territory in question. Does any one dream of denying our right to the forcible posses- sion of New Orleans if necessary to secure the navigation of the Mississippi? Can a nation acquire by force that which she can- not acquire by treaty ? Must not the eventual right to the country possessed by conquest be confirmed by treaty? And is it not idle to contend that so long as we employ force we may occupy the
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country but no longer-that we cannot retain it by convento si
. Now as to the expediency of the measure. What I. the state of our trade in relation to the ceded territory? But .. short time ago who would have asked more than to be put on an equal footing with the possessors of that country? We now have the sovereignty of it and only stipulate that (for twelve years ) France and Spain shall be admitted, not on an equal footing with us, but that their vessels laden with their own produce, not other. wise, shall pay no higher duties than our own. At the expiration of that period we can give a decided proponderance to our trade by discriminating duties. Will the hardy and enterprising New Englander shrink from a competition with France and Spain on these terms? Cannot the discriminating duties be still enforced by the existing regulations in respect to imports from Nor Orleans to other parts of the United States? So far from a clog on our commerce, does not this treaty unfetter the Mississippi trade and give us a preference over all other nations except the case of the French and Spanish vessels, laden with the produce of their respective countries, and there we are on a footing with them."
Continuing, Mr. Randolph said, "As long ago as the year 1673 the inhabitants of the French province of Canada explored the country on the Mississippi. A few years afterward ( 168;) La Salle with emigrants from old France, made a settlement on the Bay of St. Bernard, and at the close of the 17th century, previous to the existence of Pensacola, another French settlement was made by the Governor D'Iberville at Molt and The .. . Dauphin or Massacre at the month of that bay. In 1712 a lot time previous to the treaty of Utrecht. Louis XIV' described the extent of the colony of Louisiana (by the settlements ) in his grant of its exclusive commerce to Crozat. Three years subsequent to this the Spanish establishment at Pensacola was formed, as well as the settlements on the Adaes on the river Mexicana. After various conflicting efforts on both sides, the bay and river Per- dido was established ( from the peace of 1719) as the boundary between the French province of Louisiana on the one side and the Spanish province of Florida on the other, this river being nearly equi-distant between Mobile and Pensacola. Near the close of the war between England and France, rendered memorable for the unexampled success with which it was conducted by that unrivaled statesman, the great Lord Chatham, Spain became a party on the side of France. The loss of the Havana and other important dependencies, was the immediate consequence. In
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CONSTITUTIONALITY OF THE CESSION.
1762 France, by a secret treaty of contemporaneous date with the preliminary treaty of peace, relinquished Louisiana to Spain, as an indemnity for her losses, sustained by advocating the cause of France. By the definitive treaty of 1763, France ceded to England all that part of Louisiana which lies cast of the Mississippi except the island of New Orleans-the rest of the province to Spain. It is to be observed that although osten- sibly France ceded this country to England, virtually the cession was on the part of Spain, because France was no longer inter- ested in the business, but as the friend of Spain (having pre- viously relinquished the whole to her) and because in 1783 restitution was made by England, not to France, but to Spain. England having acquired this portion of Louisiana, together with the Spanish province of Florida, annexed to the former that part of Florida which lies west of the Aapalachicola and cast of the Perdido, thereby forming the province of West Florida. It is only in English geography and during this period, from 1763 to 1783, that such a country as West Florida is known. For Spain, having acquired both the Floridas in 1783, re-an- nexed to Louisiana the country west of the Perdido subject to the government of New Orleans, and established the ancient boundaries of Florida, the country between the Perdido and Apalachicola being subject to the Governor of St. Augustine. By the treaty of St. Ildefonso, Spain ceded to France the prov- ince of Louisiana with the same extent that it now has in the hands of Spain': viz., to the Perdido, 'and that it had when France possessed it,' to the Perdido, and 'such as it should be after treaties subsequently entered into between Spain and other powers' that is, saving to the United States the country given up by the treaty of San Lorenzo. We have succeeded to all the right of France. If the navigation of the Mississippi alone were of sufficient importance to justify war, surely what we have now gained by this treaty will be acknowledged to be inestimably valu- able."*
Messrs. J. Lewis and Griffin of Virginia regarded the treaty as unconstitutional in the respect that "Congress possessed no power to give a commercial preference to one State over another; and if the ships of France and Spain are permitted to enter New Orleans on terms more advantageous than they are permitted to enter other ports of the United States, it is a palpable violation of the Constitution." Mr. Griffin also
* Annals of Congress.
11-17
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observed that "the constitution says, 'Congress shall have power to regulate commerce with foreign nations.' Who are Congress? The Senate and House of Representatives. If, then, the Presi- dent and Senate make a treaty for the regulation of commerce, they infringe the Constitution by doing that which Congress alone can do." Both gentlemen asked to be set right if they were wrong in their conclusions. Mr. Griffin further said, "I do fear that though this land is represented as flowing with milk and honey, it will prove a cemetery for the bodies of our citizens."
An eloquent speech made in favor of the treaty was delivered by Mr. Purviance of North Carolina. Ile said: "I am clearly and decidedly in favor of the resolution on your table, premis- ing the appropriations for carrying the treaty between France and this country into effect. It is true I am, and always have been, opposed to the general tenor of the present administration. It has not appeared to me to possess that bold, commanding aspect, that erect and resolute front, which ought to be assumed by the Executive of a free people, when claiming satisfaction for wrong sustained. It has not shown that strong, muscular, athletic shape, which is calculated to intimidate aggression, or which is enabled to resist it; nor do I think that it has manifested that firm, dignified, manly tone of virtue and of spirit which, resting on the love of a free people, and con- scious of their strength, can ask for the prompt, direct and unequivocal satisfaction to which it is entitled, and being denied can take it. It has to my mind somewhat resembled a militia subaltern, who in time of war directed his men not to fire on the enemy lest the enemy might fire agun. I'mder such an administration, I have thought that it would be better to have the ceded territory on any terms than not to have it at all. Yes, thank God! We have now a treaty, signed by themselves, in which they have voluntarily passed away the only means of annoyance which they possessed (meaning France). But I do not thank the honorable gentleman who is at the head of our Executive. At the time this negotiation was commenced, "there could not be the smallest hope of its being carried into effect. The French consul had obtained it perhaps for the express purpose of carrying into effect his favorite scheme of universal domination ; it might give him the chance of injur- ing the British, controlling the Spaniards, and dismembering America. Compared with these objects a handful of bank stock was of no more consequence to him than a handful of sand. Ilis fleet and army were ready to sail, and his colonial prefect
7
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had already arrived. But mark! The King of Great Britain, who at this crisis I take to have been by far the most able nego- tiator we had, declares war. The scene is now changed. That which France had refused to our intercessions, she was now compelled to grant from mere necessity. A state of warfare took place about the last of March, and the treaty was signed soon afterwards. As long as I retain the small stock of under- standing which it has pleased God to give me, I shall never be induced to believe that it was owing in the smallest degree to the efficacy of diplomatic representation. The mind of that great man ( Napoleon ) is not made of such soft materials as to receive an impression from the collision of very gentle hands. No, sir; had it not been for this happy coincidence of circumstances, the personal solicitations of our ministers would have been regarded with as listless an car as if they had been whispered across the ocean. If, then, the claim which has been transferred (Louisiana) should be invested with any . latent embarrassment ; if the court of Madrid has already sig- nified any hostility to this treaty, in consequence of the non-per- formance of the stipulations contained in that of St. Ildefonso respecting the recognition of the late King of Etruria; if our possession should be opposed, or our right of property here- after contested, let the President look to it. He only will become responsible for every drop of American blood which may be drawn in such a contest, as he ought to have communicated any information to this effect which he possessed, in order that our discretion might be regulated accordingly. As no such obstacles have been made known to us by the President, I wid suppere that none such do exist, and I will therefore vote for the treaty."
Mr. Claiborne of Virginia declared his firm belief in the con- stitutionality and the expediency of the treaty. Mr. Sanford of North Carolina expressed similar views. Mr. Thatcher of Massachusetts opposed the treaty on constitutional grounds. He maintained that power not expressly delegated by the states was still held by them ; that power to admit states to the Union was not granted to the president even admitting that it had been granted to congress; that it was not correct to state that con- gress had already practiced the principle of admitting territory ; that the preference given to Fruch and Spanish vessels by the treaty could not be considered part of the purchase price, because Louisiana was bought from France alone, whereas preference was given to the vessels of both France and Spain; that the power contended for by the administration party implied the
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