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 26
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power of alienating other parts of the United States, as Maine to Great Britain; and that to say the question was a leading, not a constitutional one was misleading, because all departments of the government, including president and senate, were bound by the constitution. Mr. Randolph corrected by stating that he had said "the preference of our ships over foreign ships was a legal regulation ; and that therefore those gentlemen who were so tender with regard to the Constitution might have it in their power entirely to get rid of the Constitutional difficulty, by tak- ing off from the ships of France and Spain such duties as were higher than the duties paid by American vessels. When I say this 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."
Mr. Smilie of Pennsylvania considered the "right of annexing territory incidental to all governments. If I am correct in this opinion, such a power is vested in some department of govern- ment in the United States. That it is not vested in the States is clear, as they are expressly divested of the right. They are by the Constitution expressly divested of the right of forming treaties and making war. It can then reside in the general Gov- ernment only. It is a position that cannot be denied, that all societies possess the right of self protection. The treaty says we are obliged to admit the inhabitants according to the principles of the Constitution. Suppose these principles forbid their admission : than we are not obliged to adgut them. This follows as an absolute consequence from the premises."
Mr. Crowninshield of Massachusetts said: "Feeling as I do that we have acquired this country at a cheap price, that it is a necessary barrier in the southern and western quarters of the Union, that it offers immense advantages to us as an agricult- ural and commercial nation, I am highly in favor of the acqui- sition."
Mr. Griswold of Connecticut argued at considerable length against the treaty, although he said, "I do not personally feel any particular hostility to it." He presented objections both of con- stitutionality and expediency with greater power than any other representative, and said that "until those doubts were cleared up he should feel compelled to vote against carrying the treaty into execution." Among many important things which he said was the following: "It is clear that it was intended to incor-
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porate the inhabitants of the ceded territory into the Union by the treaty itself, or to pledge the faith of the nation that such an incorporation should take place within a reasonable time. It is proper, therefore, to consider the question with a reference to both constructions. It is in my opinion scarcely possible for any gentleman on this floor to advance an opinion that the President and Senate may add to the members of the Union by treaty whenever they please, or, in the words of this treaty, may 'incorporate in the Union of the United States' a foreign nation who from interest or ambition may wish to become a member of our Government. Such a power would be directly repug- nant to the original compact between the States, and a violation of the principles on which that compact was formed. It has been already well observed that the Union of the States was formed on the principles of a copartnership, and it would be absurd to suppose that the agents of the parties who have been appointed to execute the business of the compact in behalf of the principals, could admit a new partner without the consent of the parties themselves. And yet if the first construction is assumed, such must be the case under this Constitution, and the President and Senate may admit at will any foreign nation into this copartnership without the consent of the States. The Gov- ernment 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 new States as should be formed, within the then limits of the Union, contoumably 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 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 Govern- ment of the United States was not formed for the purpose of distributing its principles and advantages to foreign nations. It was formed with the sole view of securing those blessings to ourselves and our posterity. It follows from these principles that no power can reside in any public functionary to contract any engagement, or to pursue any measure which shall change the Union of the States. Nor was it necessary that any restrict-
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ive clause should have been inserted in the Constitution 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 cannot barter away the Constitution or the rights of particular States. It is easy to conceive that it must have been considered very important by the original parties to the consti- tution, 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 influ- ence in certain parts of this Union must have 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 consent to become parties to the Union as it was then formed, it is highly probable that they would never have consented to such a connection 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. 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 in the Union, and that this treaty so far as it stipulates for such an incorpo. ration is void.
"A new territory and new subjects may undoubtedly be obtained by conquest and by purchase; but neither the conquest nor the purchase can incorporate them into the Union. They must remain in the condition of colonies and be governed accord- ingly. The objection to the third article is not that the prov- ince of Louisiana could not have been purchased, but that neither this nor any other foreign nation can be incorporated into the Union by treaty or by a law ; and as this country has been ceded to the United States only under the condition of an incorpora- tion, it results that if the condition is unconstitutional or impos- sible the cession itself falls to the ground. The gen- tleman from Virginia ( Mr. Randolph) has said that the dis- criminating duties of impost and tonnage are not a constitutional but a statme regulation. This is undoubtedly true, but it must be recollected that the statutes are in force, and so long as they remain umrepealed, the preference is given to the ports on the Mississippi and the uniformity of duties is violated; and it can . not most assurdly be correct to violate a principle of the Con-
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stitution for a day under the expectation of curing the violation by a legislative interference. The ships of France and Spain are to be admitted into New Orleans on the same terms with our own ships. The discriminating duty, therefore, in respect to them in that port is virtually repealed. But we obtain no repeal of the countervailing duties in French and Spanish ports. The consequence must be that while we are laboring under all the embarrassment of extra duties in their ports, they are liberated from every embarrassment in onrs. The effect is easy to be seen : the whole trade from the month of the Mis- sissippi to the French and Spanish colonies and probably to their European possessions, must ultimately be carried on in French and Spanish bottoms, to the entire exclusion of American ships. Nor will the injury stop here; both France and Spain will doubt- less prefer procuring their supplies from the United States in their own ships, and while they hold the monopoly of the trade at the mouth of the Mississippi they will be able to draw from that point an abundant supply of flour and other articles of produce, to the great prejudice if not to the ruin of the trade from the Atlantic ports to the French and Spanish colonies."
One of the strongest arguments in favor of the resolution before the house was delivered by Mr. Nicholson of Maryland. Hle reviewed every feature of the proposed acquisition, and emphasized every argument in its favor. Among other things, he said : "Whether the United States as a sovereign and inde- pendent empire has a right to acquire territory is one question ; but whether they can admit that territory into the Union roon an equal footing with the other States is a question of a very
different nature. . . . Had I been asked anywhere but in this House whether a sovereign nation had a right to acquire new territory, I should have thought the question an absurd one. It appears to me too plain and undeniable to admit of demonstration. Is it necessary to resort to ancient authorities to establish a position which is proved by the conduct pursued by all nations from the earliest periods of the world and which arises from the very nature of society? Can it be doubted that when a State is attacked it has the right to assail its enemy in turn and weaken the aggressor by dispossessing him of a part of his territory? Surely the opinions of all writers both ancient and modern and the examples of all nations in all ages, can leave no reason to doubt on this subject. But, sir, on this as on most other occasions, we are told that the Constitution stares us in the face, and that this treaty cannot be carried into
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effect without violating the Constitution. If, indeed, this sacred instrument forbids the acquisition of territory by the United States, I will most readily admit that we ought to stop here. Let the Constitution, however, be examined, let the principles on which it was formed be taken into view, and it will be found that instead of forbidding, the Constitution recognizes the author- ity to acquire territory. The right to declare war is given to Congress; the right to make treaties, to the President and Senate. Conquest and purchase alone are the means by which nations acquire territory. The one can only be effected by war, the other by treaty, and when the States divested them- selves of these powers and gave them to the general Govern- ment, they gave at the same time the right to acquire territory which they themselves originally had. The right must exist somewhere. It is essential to independent sovereignty. The tenth section of the first article of the Constitution expressly prohibits the States from entering into treaties or levying war and even from forming any compact or agreement with another State or a foreign Power without the consent of Congress. All the rights which the States originally enjoyed are either reserved to the States or are vested in the General Government. If they once had the power individually to acquire territory and this is now prohibited to them by the Constitution, it follows of course that the power is vested in the United States. The gentleman from Connecticut (Mr. Griswold) admits that during the last
session he was an advocate for very vigorous measures. By vig- orous measures he means war. Will he deny that it was his wish to seize upon New Orleans by force? Will he deny that this and this alone was the reason why his friends and himself did not imite with us in the measures then adopted for the pur- pose of acquiring this country? If the gentleman's object was war, if his measure was conquest, did he mean that we should drive all the inhabitants of the island into the Gulf of Mexico and afterwards retire into our own limits? If he then thought that after conquering New Orleans we should have a right to hold it, surely it will not now be denied that we can hold it after having obtained it by peaceable measures.
Where one party violates an article in a treaty, the other has the right to declare the whole void, because the violation is a breach of faith and is a voluntary act. But where some of the stipu- lations of a treaty are impossible to be performed or cannot be fulfilled consistently with the engagements of an antecedent treaty with a third Power, these are of course void, but other
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parts will stand good. If it shall finally be determined that Congress cannot admit the ceded territory into the Union as a State, yet the other parts of the treaty with France will standgood. If this was the intention of our Ministers (which perhaps may be doubted), they seem to have guarded against the event of a refusal either by Congress or by the people. For it is declared expressly that until the inhabitants can be incor- porated into the Union and can be admitted to all the privileges of citizenship, they shall be protected in the enjoyment of their civil and religious rights."
Messrs. Rodney of Delaware and Mitchill of New York spoke in favor of the resolution. The former said: "How are these people to be admitted? According to the principles of the Fed- eral Constitution. Is it an open violation of any part of the Con- stitution. No; an express reservation is made by those who formed the treaty that they must be admitted under the Consti- tution. Now, if admitted agreeably to the Constitution it can- . not be said to be in violation of it; and if not in violation of it the fears of gentlemen are groundless." Mr. Mitchill said: "We are constantly in the practice of receiving territory by cession from the red men of the West, the aborigines of our country. The very treaty mentioned in the President's message with the Kaskaskia Indians whereby we have acquired a large extent of land, would according to this doctrine be unconstitional ; and so would all the treaties with the numerous tribes of the natives on our frontiers. . Suppose for a moment that our present limits were full of people, would it be unconstitutional to purchase additional territory for dien to settle upon? Must the hive always contain its present numbers and no swarm ever go forth?
By the third article (of the treaty) it is stipulated that the inhabitants of Louisiana shall hereafter be made citizens ; ergo they are not made citizens of the United States by mere operation of treaty. In confirmation of this construction, I will mention the second article of the Treaty of Amity, Commerce and Navigation between the United States and his Britannic Majesty concluded in 1794. It is therein stipulated that all British sub- jects who shall continue within the evacuated posts and precincts, should be considered if they remained there longer than one year to have abandoned all allegiance to the crown of Britain and to have made their election to become citizens of the United States; after which by taking the oath of allegiance they became instantly by act of treaty and by force of statute citizens of the United States. I therefore consider the point already adjudged, when
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the treaty of 1794 was decided on, that without an act of Congress aliens can be converted into citizens by the provisions of a treaty duly ratified by the President and Senate. In the treaty respect- ing Louisiana there is happily no cause for alarm. This power of making citizens has not been exercised by the President and Senate, but a future day may be used by Congress. . By the treaty there is no preference given to one State over another in any commercial regulations. The port of New Orleans is not a part of any State in the Union. The abolition of the discrimi- nating duties in favor of the two European nations is confined absolutely to the ports of Louisiana. They have no preference in the ports of any of the States. Nor is there given to one an advantage over the other. In right construction these indul- gences are in fact a part of the purchase money ; and on account of this valuable consideration, Congress will have less money to appropriate and the nation thereby be saved from several mil- lions additional debt."
Mr. Randolph concluded the argument on the resolution with a concise and general summary of all the points advanced for and against the treaty. It had been shown, he contended, that every consideration of expediiency demanded not only the adoption of the resolution but the acceptance of the treaty. But it must be admitted that the debate did not develop a specific right inherent in the constitution to admit a state into the Union from foreign ter- ritory acquired. On the other hand, the spirit of definite consti- tutional provisions clearly implied such a right. Therefore, the debate developed immensely preponderating advantages in favor of the treaty, with no specific constitutional prohibition against the admission of such a state. It should be said, however, that the latter point was not exhaustively discussed at this debate, because it was not properly embraced in the resolution under dis- cussion.
The committee of the whole arose, the house proper resumed the consideration of business, and the chairman of the committee reported the following resolutions :*
"Resolved, That provisions ought to be made for carrying into effect the treaty and conventions concluded at Paris on the thirtieth of April, one thousand eight hundred and three, between the United States of America and the French Republic.
"Resolved, That so much of the Message of the President of the twenty-first instant, as relates to the establishment of a Pro-
* Annals of Congress.
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visional 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 otherwise.
"Resolved, That so much of the aforesaid conventions as relates to the payment by the United States of 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 committee of Ways and Means."
The first resolution was carried by yeas go, nays 25. The sec- ond was amended by an insertion of the words "occupation and" before the word "establishment." and was then agreed to. The third was adopted. These acts of the house may be construed as a full acceptance of the cession of Louisiana on the terms stipu- lated in the treaty, and subsequent debates were merely intended to clear up the details of right and procedure.
On October 27, the house in committee of the whole considered the senate bill to enable the president to take possession of the territory ceded by France to the United States April 30, 1803, and for other purposes (see the bill supra). Mr. Griswold of Con- necticut moved to strike out the whole second section, and explained that he made the motion in order "to obtain an explana. tion respecting the nature and extent of the delegated power." This led to a spirited discussion, in which many members joined, of the power thus to be delegated to the president, several con- tending that the section was unconstitutional and others that it was not. The motion to strike out was deleted by ave- 30. In order to cure faults which the majority party themselves con. sidered might be justly held against the bill, Mr. Randolph moved an amendment to the second section by adding at the close the words, "for maintaining and protecting the inhabitants of Louisi- ana in the full enjoyment of their liberty, property and religion." As this limited the powers delegated to the president, it was agreed to without division. On the 28th the bill came back from the senate where the house amendments had been accepted, and . was voted upon with the result of & yeas and 23 nays. This made it a law so far as congress was concerned, one of the most important ever passed by the law-making branch of the govern- ment. It cannot be doubted, when the congressional debate is carefully read and analyzed, that the bill met the approval of almost every member of congress, even of those who, during the discussion, urged strong objections to the methods proposed for accepting the treaty. Nearly all at heart were willing to take
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the remote chances of infringing the constitution in order to settle permanently the Mississippi question and to secure the splendid domain beyond that river.
The bill for carrying into effect the convention of April 30, 1803, between the United States and France passed the house- yeas 85, nays 7. This bill was amended by the senate, but the amendments were agreed to by the house on November 7. The act providing for the payment of the claims of American citizens against France was approved by congress November 12. Two other acts, one allowing drawbacks of duties on goods exported to New Orleans, and another laying and collecting duties on imports and tonnage within Louisiana, were passed at this ses- sion of congress. It may be proper to add at this point that the total cost to the United States of the Louisiana purchase up to June 30, 1880, including principal, interest, claims, debts, etc., reached the grand aggregate of twenty-seven million two hundred and sixty-seven thousand six hundred and twenty-one dollars and ninety-eight cents.
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CHAPTER VII
The Florida and the Texas Boundaries, 1803-1808
W HEN the United States commissioners received from the French commissioner, Peter Clement Laussat, the province of Louisiana on December 20, 1803, they were under orders to refrain from laying any claim to West Florida .* It had been learned that at the time the province was transferred by Spain to France a few weeks before, nothing denoting the limits or the boundaries transpired. The French authorities were not ordered, when they thus secured Louisiana from Spain, to claim any portion of the Floridas. M. Laussat, who had been the French commissioner to receive the province from Spain and later to transfer it to the United States, stated positively that no part of the Florida, was included within the custom boundary and that although France had strenuously insisted on an exten- sion of Louisiana to the Mobile river, their demands were peremp- torily refused by Spain. After the treaty of San Ildefonso the consular government had used every argument within their power to stretch the eastern boundary of the province to the Perdido, but Spain had persistently refused to concede the claim, largely through the influence of the acute Godoy. Had France possessed the least claim to an eastward extension beyond the Iberville, the first consul, when he secured the retrocession of Louisiana in ISoo and when he so intensely desired the acquisition of the Floridas, would scarcely have failed to get part at least of West Florida, having as he did such influence and prestige with the Spanish court. Being unable to show a right to such a claim,
American Stale Papers.
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though having the promise of the Spanish monarch to retrocede louisiana, he was forced to be content with the eastern limits at the river Iberville. Had he kept Louisiana, he undoubtedly would have brought pressure enough to bear later on the Spanish government to secure West Florida at least, by purchase or other equivalent. The inability of France to show a just claim to ter- ritory east of the Iberville and the positive stand of the Spanish that Louisiana extended no farther eastward, were the principal circumstance which induced the United States to forego for a while laying any clann to a portion .of West Florida. They realized the immediate importance of gaining possession of Louisiana before anything should transpire to prevent the acces- sion, and trusted to negotiation afterward to effect the relin- quishment of West Florida by Spain. Many of the brightest, clearest-sighted and most honorable of the American statesmen believed the United States possessed a valid claim to the terri- tory eastward to the Perdido. The citizens generally desired very much to possess the Floridas ; and accordingly, the transfer of Louisiana to the United States had no sooner been effected than the Americans in the vicinity of New Orleans and Natchez began openly to claim the country to the Perdido. In a short time these claims became so annoying to the Spanish at New . Orleans, that the following communications passed between the commissioners of France and Spain still in that city :
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