Part 95

Upon the whole, sir, I have not been able to discover the shadow of authority, on the ground of which the President issued this proclamation. He has recited none, amidst all his recitals, and none appears to me but his own mere will and pleasure.

The act I therefore cannot view in any other light than an unwarrantable assumption of power and a violation of the constitution.

Considering then, sir, this act of the Executive as illegal and unauthorized, we are fully at liberty to enter into the discussion of the great questions of title and expediency; a task which I will proceed to discharge to the best of my ability.

The first I propose to examine is, the title of the United States to the territory in question. With respect to this, I perceive, it unfortunately happens that honorable gentlemen who support the bill do not precisely accord in sentiment. The gentleman from Vermont (Mr. BRADLEY) has frankly conceded that the United States acquired no title under the Treaty of St. Ildefonso. Another gentleman (Mr. SMITH, of Maryland) has declared that the United States did derive a title under that treaty, and disclaims the title set up by the honorable gentleman from Vermont. I shall not undertake to decide which of the two gentlemen is right, if either be, but shall contend, and humbly expect to prove, that both are wrong.

What is the nature of the title set up by the gentleman from Vermont? Not under the treaty, he has candidly owned, but he supposes a title to exist on the ground of certain quaint principles of the common law, relative to the doctrines of estoppel and occupancy. I am extremely happy, sir, to find that honorable gentleman introducing the common law as authority upon this floor, especially on so great an occasion. His doctrines certainly evince both research and ingenuity, and show that he, like many with whom he acts, has not absolutely lost his veneration for the black letter. What are his doctrines? Why in the first place, he says, admitting that Spain did not cede Florida to France by the Treaty of St. Ildefonso, and admitting that France had no title to Florida on the 30th of April, 1803, when she ceded Louisiana to the United States, yet, as France has since acquired a title to the crown of Spain and her colonies, and as the French Plenipotentiary, when the treaty of 30th of April, 1803, was executed, did state and induce the American Ministers to understand and believe that Florida was comprehended in the cession, why the title, though France had it not when the treaty was signed, yet having it subsequently, immediately attached in the United States, and France is estopped from saying any thing to the contrary. This argument, sir, begs every thing: 1st. That the declarations on the part of the French Minister were made; 2dly, that being made they would operate to pass the title contrary to the express letter of the treaty; and lastly, that France has acquired a good title to the crown of Spain and her colonies. I will yield to the gentleman his first proposition, and grant, as he seems to desire it, that these representations were made--and what do they prove? Not that the title passed, but that the French Minister was too deep for the American Plenipotentiaries, and, to use a jockey phrase, took them in. Sir, the only legal effect of such a fraud would be, to violate the treaty--to annul the contract. France, to be sure, would be bound upon principles of equity to refund the purchase money.

If then, sir, I am correct in stating, that no conversations or verbal declarations, however fraudulent, would operate to control or vary the plain letter and intent of the treaty, as appearing on the face of it, then upon the gentleman's own acknowledgments no title to Florida could have passed to the United States under the treaty of 1803. For the gentleman has unequivocally admitted that Florida was not ceded by Spain to France by the Treaty of St. Ildefonso, and France, it is admitted on all sides, by the treaty of 1803, only ceded to the United States Louisiana, as fully, and in the same manner she acquired it from Spain by the Treaty of St. Ildefonso; nor, sir, can I admit that France has acquired a legitimate title to the crown and colonies of Spain, which must also appear before the gentleman can avail himself of his argument. What, Mr. President, is the nature of this title? Was it obtained bona fide for a fair and full consideration? No, sir, but by the most abominable perfidy, corruption and duress, of which the pages of history furnish an example. Was not the royal family decoyed by artifice from Madrid to Bayonne? Was not the old Monarch compelled to resign his crown to Ferdinand the Seventh, and was not that Prince a prisoner of Bonaparte; and, while in this condition, and, for aught we know, the bayonet at his breast, or the cup to his lips, constrained to resign his crown to the Emperor of France? Sir, what sort of title is this? Upon the eternal principles of justice, upon the principles of the common law and common sense, an instrument thus obtained is not obligatory on the party executing it.

But have the people of Spain acquiesced? No, sir; the instant publicity was given to the transaction they became indignant, and with one voice rose, resolved to resist this usurpation. To this hour they have not submitted.

But the gentleman has said that Spain is no longer able to hold Florida; that foreign emissaries will take it if the United States do not, and that it may be lawfully taken by the United States on the ground of the law of occupancy.

That title may be acquired by occupancy is not to be doubted. It is the mode by which title to property was originally acquired; but to obtain a title in this way the country must be vacant, uninhabited and not claimed by another proprietor. But in this instance is the territory vacant--or uninhabited--or abandoned by its proprietors? No, sir. The territory is either in the possession of Spain and claimed by her, or of the revolutionists, and if either be in possession, by the law of occupancy, you have no right to disturb them. Clearly then, sir, upon the principles and admissions of the honorable gentleman from Vermont, the United States have no title to Florida.

And now, sir, with the indulgence of the Senate, I will proceed to consider as briefly as possible the nature of this title as derived under the Treaty of St. Ildefonso. Here, it will be granted, I meet the question fairly. This, I presume, is the title relied upon, as well by the Executive as the majority of the supporters of this bill.

In order fully to understand this subject, it is necessary to inquire into the principal cause of the war of 1756. The eastern boundary of Louisiana, I believe, was the chief cause of that war. The French were in the possession of the Mississippi, and claimed as part of Louisiana not only the country to the west of that river, but east as far as the Alleghany mountains. France, having this claim, and being in possession of Canada, conceived the project of uniting Louisiana with Canada. To accomplish her purpose she established a line of posts from the Lakes to the Ohio, and commenced encroachments upon the then British colonies. These encroachments she was pressing so far that Great Britain perceived it would be necessary to repel them. This brought on the war of '56, which, after a bloody conflict of seven years, terminated disastrously to France and her allies, and resulted in the establishment of the Mississippi, the Iberville, and the lakes Maurepas and Pontchartrain, as the boundary of Louisiana, giving to Great Britain all the territory on the east of that boundary, except the island and town of New Orleans, and to France all upon the west, including the island and town of New Orleans.

A more particular examination of the results of this war is important. By it France lost Canada and most of her West India islands. Spain, the ally of France, lost Cuba. By the preliminary articles of peace between Great Britain, France, and Spain, signed at Fontainebleau, and dated the 3d November, 1762, France renounced all pretensions to Nova Scotia, and ceded and guarantied to his Britannic Majesty, in full right, Canada with all its dependencies. The 6th article stipulates, "In order to re-establish peace on the most solid and lasting foundations and to remove every subject of dispute with regard to the limits of the British and French Territories on the continent of North America, it is agreed that for the future the confines between the dominions of His Britannic Majesty and those of his most Christian Majesty, (French King,) in that part of the world, shall be irrevocably fixed by a line drawn along the middle of the river Mississippi from its source, as far as the river Iberville, and from thence by a line drawn along the middle of this river, and of the lakes Maurepas and Pontchartrain to the sea; and to this purpose, the most Christian King cedes in full right, and guaranties to His Britannic Majesty, the river and port of Mobile, (now West Florida,) and every thing that he possesses, or ought to have possessed on the left (east) side of the river Mississippi, except the town of New Orleans, and the island on which it is situated, which shall remain to France." By the 18th article, Great Britain restores to Spain all that she had conquered in the island of Cuba, with the fortress of Havana. In consequence of which His Catholic Majesty (King of Spain) by the 19th article "cedes and guaranties in full right, to His Britannic Majesty, all that Spain possesses on the continent of North America, to the east or the south-east of the Mississippi, including Florida, with Fort St. Augustine and the bay of Pensacola." (Now consisting of East and a part of West Florida.) By the definitive treaty of peace and friendship between the Kings of Great Britain, France, and Spain, concluded at Paris on the 10th day of February, 1763, the preliminary articles were adopted, ratified, and confirmed. By another treaty bearing date the 3d day of November, 1762, the same day and year the preliminary articles are dated, as appears by the letter to M. L'Abbadie, which I will presently refer to, France cedes Louisiana to Spain, together with the town and island of New Orleans. This last-mentioned treaty has never been published, but the letter of the King of France to M. L'Abbadie recites the purport as well as date of it. This letter purports to be an order signed by the King of France, dated at Versailles, the 21st April, 1764, and directed to M. L'Abbadie, director-general, and commandant for His Majesty in Louisiana. This letter was published at New Orleans in October, 1764, and circulated amongst the French inhabitants there. It recites:

"By a special act, done at Fontainebleau, November 3, 1762, of my own will and mere motion, having ceded to my very dear and best beloved cousin the King of Spain, and to his successors, in full property, purely and simply, and without any exceptions, the whole country known by the name of Louisiana, together with New Orleans, and the island in which the said city is situated; and by another act done at the Escurial, November 13, in the same year, His Catholic Majesty having accepted the cession of the said country of Louisiana, and the city and island of New Orleans, agreeably to the copies of the said acts, which you will find hereunto annexed; I write you this letter to inform you, that my intention is, that on the receipt of these presents, whether they come to your hands by the officers of His Catholic Majesty or directly by such French vessels as may be charged with the same, you are to deliver up to the governor, or officer appointed for that purpose by the King of Spain, the said country and colony of Louisiana, and the posts thereon depending, likewise the city and island of New Orleans, in such state and condition as they shall be found to be in on the day of the said cession, willing that in all time to come they shall belong to His Catholic Majesty, to be governed and administered by his governors and officers, and as possessed by him in full property, without any exceptions."

From this document, and the treaties referred to, it appears that in the month of October, 1764, when the whole of Louisiana, with the island and town of New Orleans, was delivered to Spain, that Great Britain was in the peaceable possession of all the country on the east of the Mississippi. That with respect to Florida particularly, Great Britain was in possession, and nobody dreamed at that time, that Florida either East or West, was any part of Louisiana. Had it been so considered under the orders of the French King, to deliver the whole of the province to Spain, undoubtedly Florida would have been delivered.

Immediately after the cession of '62-3, Great Britain took possession of all the country on the east of the Mississippi, except only the town and island of New Orleans, and, in the year 1763 or '4, erected Old Florida, Pensacola, the river and port of Mobile, &c., into two distinct provinces, under the name of East and West Florida, names which they have borne ever since. In 1783, at the close of our Revolutionary war, Great Britain ceded to Spain East and West Florida, which, from that period to the present time, have been held by Spain under these names, as separate provinces from Louisiana. In the year 1800, when Spain was in possession of East and West Florida and Louisiana, as three several and distinct provinces, the famous Treaty of St. Ildefonso was concluded, whereby Spain "retrocedes to France the colony or province of Louisiana, with the same extent that it now has in the hands of Spain, and that it had when France possessed it; and such as it should be after the treaties subsequently entered into between Spain and other States." This treaty likewise has not been published, but the part just referred to is cited in the treaty between the United States and France of the 30th of April, 1803, whereby France cedes to the United States Louisiana, as fully and in the same manner as she acquired it of Spain by the Treaty of St. Ildefonso. Spain delivered possession in pursuance of the Treaty of St. Ildefonso to France, and France, in pursuance of the treaty of 1803, delivered possession to the United States, both powers receiving the country on the West of the Mississippi, with the island and city of New Orleans, like Spain originally received it from France, as the whole of Louisiana.

I have now, I believe, sir, given a full and I trust fair and correct statement of the evidences and facts relative to the question of title. A few remarks will close what I have to say on this head. The letter from the King of France to M. L'Abbadie, is a very important document. It shows that the King of France, under whom we claim, and by whose admissions we are bound, so long ago as 1764, treated and considered the country on the west of the Mississippi as the whole of Louisiana. That, so considering it, he ceded and delivered it to Spain, together with the island and town of New Orleans, from which latter words it may be inferred that even the island and town of New Orleans were then not considered a part of Louisiana. In 1800, when Spain ceded back the colony of Louisiana to France, that country was only known on the west of the Mississippi. The war '56, and the treaties of '62-3, had fixed the line and obliterated forever the name of Louisiana on the east of that river.

The Treaty of St. Ildefonso, of 1800, is a mere treaty of retrocession. The translation purports to be a treaty of cession, it is true, but acknowledged on all sides to be erroneous. The original treaty was in the French language, and it is by that we are to be governed. The expression in the original is "Sa Majesté Catholique promit et s'engage, de son cote, à retroceder à la Republique Française," &c. A retroceder signifying to retrocede, to restore, or to use a term familiar in the State I have the honor to represent, reconvey the colony of Louisiana to France, as it was when France conveyed it to Spain. The honorable gentleman from Kentucky, (Mr. POPE,) pressed by this argument, could only get round it by alleging that the original treaty between France and Spain was dated in 1761, prior to the settlement of the line and the cessions to Great Britain. But, unfortunately, he could not produce one title of authentic evidence to establish his position, a position absolutely negatived by the official letter to M. L'Abbadie. But that gentleman has further told us, that from the words "with the same extent it now has in the hands of Spain, and that it had when France possessed it, and such as it should be after the treaties subsequently entered into between other States," an intention may be raised to include Florida. I fully subscribe to the gentleman's rule, that we must give such a construction to the treaty, and particularly to the passage just referred to, as will give effect, if possible, to all the parts; and this I apprehend may be done without having recourse to the forced construction contended for. In the first place, the two first members of the passage may be reconciled and have effect by considering them as a twofold description of the same territory. From abundant caution it is not uncommon to give various descriptions of the same object. Sometimes the name is simply used, sometimes it is described by metes and bounds, and sometimes by the names of the adjacent countries. Sometime a twofold, and sometimes a threefold description is given. And upon a critical examination, I think it will be found that this is the only true construction the instrument will bear. If you give it the construction the gentleman contends for, to wit: that the second member of the passage is an extension of the description given by the first, then the second includes the first, and of consequence the first would be nugatory and superfluous; which would be doing violence to the gentleman's own rule of construction. But if the gentleman will insist on giving to the second member an enlarged or extended sense, it may be done by applying it to the western boundaries of Louisiana. It is said that when France ceded Louisiana to Spain, in '62, the country extended on the west to the river Sabine, and that Spain, prior to the treaty of 1808, detached from Louisiana the territory south of the waters emptying into the Red River, and erected it into a new province under the name of the "Province of Texas." Sir, the operations on the Sabine are memorable. It is well known how mysteriously they were suspended by an arrangement in 1806, by which it was agreed that the Spaniards should not cross the Sabine, and that the Americans should not extend their settlements as far as that river. And for this purpose, to prevent collisions, until the difference should be settled, instructions were given that no surveys should be made west of a meridian passing by Nachitoches.

If the gentleman is not satisfied by travelling to the west, by going to the east he may find an application--the town and island of New Orleans, which, though named in the cession to Spain, are not named in the treaty of retrocession to France.

As to the third member of the passage, it is a formal provision introduced into most treaties, and would be understood if not expressed. Of course the cession would be subject to prior treaties with other States. In 1795, Spain concluded a treaty with the United States, whereby she agrees that the navigation of the Mississippi, in its whole breadth from its source to the ocean, shall be free to the citizens of the United States, and that they shall have the right to deposite their merchandise and effects in the port of New Orleans, free of duty for three years, and after that period, if the privilege is not extended at the port of New Orleans, she is to assign to the United States, on another part of the banks of the Mississippi, an equivalent establishment. To these provisions the clause in question I apprehend refers.

The holding or possession of Louisiana is correspondent with the construction I have given the treaty. When possession was originally delivered by France to Spain, Florida was not delivered or considered any part of the cession. When Louisiana, under the Treaty of St. Ildefonso was restored to France, Florida was not delivered. When Louisiana, under the treaty of 1803, was delivered to the United States, Florida was not comprehended. Indeed the Government of the United States then treated the country on the west of the Mississippi, including the town and island of New Orleans, as the whole of Louisiana, by receiving it and paying the purchase money, which by the terms of the treaty they were not bound to do, and which by the act of Congress creating the Louisiana stock they were not authorized to do, till after full and entire possession had been delivered.

Mr. President, is it conceivable that after the boundary in question had been established by the most solemn compact of nations, and consecrated by a long and bloody war, and, too, by a lapse of near forty years--is it conceivable that the territory in question, excluded by that boundary, and raised into a distinct province under a distinct name--a name it ever bore after the establishment of the boundary--is it, I say, sir, conceivable, if the parties meant to have included this province in the Treaty of St. Ildefonso, that it should not have been specifically named?

Mr. CLAY.--Mr. President, it would have gratified me if some other gentleman had undertaken to reply to the ingenious argument which you have just heard. But not perceiving any one disposed to do so, a sense of duty obliges me, though very unwell, to claim your indulgence while I offer my sentiments on this subject, so interesting to the Union at large, but particularly to the western section of it. Allow me, sir, to express my admiration at the more than Aristidean justice, which, in a question of territorial title between the United States and a foreign nation, induces certain gentlemen to espouse the pretensions of the foreign nation. Doubtless, in any future negotiations, she will have too much magnanimity to avail herself of these spontaneous concessions in her favor, made on the floor of the Senate of the United States.

It was to have been expected, that in a question like the present, gentlemen, even on the same side, would have different views, and although arriving at a common conclusion, would do so by various arguments. And hence the honorable gentleman from Vermont entertains doubts with regard to our title against Spain, while he feels entirely satisfied of it against France. Believing, as I do, that our title against both powers is indisputable, under the Treaty of St. Ildefonso between Spain and France, and, the treaty between the French Republic and the United States, I shall not inquire into the treachery by which the King of Spain is alleged to have lost his crown; nor shall I stop to discuss the question involved in the overthrow of the Spanish monarchy, and how far the power of Spain ought to be considered as merged in that of France. I shall leave the honorable gentleman from Delaware to mourn over the fortunes of the fallen Charles. I have no commiseration for princes. My sympathies are reserved for the great mass of mankind, and I own that the people of Spain have them most sincerely.

I will adopt the course suggested by the nature of the subject, and pursued by other gentlemen, of examining into our title to the country lying between the Mississippi and the Rio Perdido (which, to avoid circumlocution, I will call West Florida, although it is not the whole of it)--and the propriety of the recent measures taken for the occupation of it. Our title depends, first, upon the limits of the province or colony of Louisiana, and secondly, upon a just exposition of the treaties before mentioned.

On this occasion it is only necessary to fix the eastern boundary. In order to ascertain this, it is proper to take a cursory view of the settlement of the country; the basis of European title to colonies in America being prior discovery or prior occupancy. In 1682, La Salle migrated from Canada, then owned by France, descended the Mississippi and named the country which it waters, Louisiana. About 1698, D'Iberville discovered by sea the mouth of the Mississippi, established a colony at the Isle Dauphine or Massacre, which lies at the mouth of the bay of Mobile, and one at the mouth of the river Mobile, and was appointed, by France, governor of the country. In the year 1717, the famous West India Company sent inhabitants to the Isle Dauphine, and found some of those who had been settled there under the auspices of D'Iberville. About the same period Biloxi, near the Pascagoula, was settled. In 1719, the city of New Orleans was laid off, and the seat of the Government of Louisiana was established there. In 1736, the French erected a fort on Tombigbee. These facts prove that France had the actual possession of the country as far east as the Mobile at least. But the great instrument which ascertains, beyond all doubt, that the country in question is comprehended within the limits of Louisiana, is one of the most authentic and solemn character which the archives of the nation can furnish. I mean the patent granted in 1712, by Louis XIV. to Crozat. [Here Mr. C. read such parts of the patent as were applicable to the subject.] According to this document, in describing the province or colony of Louisiana, it is declared to be bounded by Carolina on the east and Old and New Mexico on the west. Under this high record evidence, it might be insisted that we have a fair claim to East as well as West Florida, against France at least, unless she has by some convention or other obligatory act, restricted the eastern limit of the province. It has, indeed, been asserted that by the treaty between France and Spain, concluded in the year 1719, the Perdido was expressly stipulated to be the boundary between their respective provinces of Florida on the east and Louisiana on the west; but as I have been unable to find any such treaty, I am induced to doubt its existence.

About the same period, to wit, towards the seventeenth century, when France settled the isle Dauphine and the Mobile, Spain erected a fort at Pensacola. But Spain never pushed her actual settlements or conquests further west than the bay of Pensacola, whilst those of the French were bounded on the east by the Mobile. Between those two points, a space of about thirteen or fourteen leagues, neither nation had the exclusive possession. The Rio Perdido, forming the bay of the same name, discharges itself into the Gulf of Mexico between the Mobile and Pensacola, and, being a natural and the most notorious object between them, presented itself as a suitable boundary between the possessions of the two nations. It accordingly appears very early to have been adopted as the boundary, by tacit if not express consent. The ancient charts and historians, therefore, of the country so represent it. Dupratz, one of the most accurate historians in point of fact and detail of the time, whose work was published as early as 1758, describes the coast as being bounded on the east by the Rio Perdido. In truth, sir, no European nation whatever, except France, ever occupied any portion of West Florida, prior to her cession of it to England in 1762. The gentlemen on the other side do not indeed strongly controvert, if they do not expressly admit, that Louisiana, as held by France anterior to her cession of it in 1762, reached to the Perdido. The only observation made by the gentleman from Delaware to the contrary, to wit, that the island of New Orleans being particularly mentioned could not for that reason constitute a part of Louisiana, is susceptible of a very satisfactory answer. That island was excepted out of the grant to England, and was the only part of the province east of the river that was so excepted. It formed in itself one of the most prominent and important objects of the cession to Spain originally, and was transferred to her with the portion of the province west of the Mississippi. It might with equal propriety be urged that St. Augustine is not in East Florida, because St. Augustine is expressly mentioned by Spain in her cession of that province to England. From this view of the subject I think it results that the province of Louisiana comprised West Florida, previous to the year 1762.

What is done with it at this epoch? By a secret convention of the 3d of November of that year, France ceded the country lying west of the Mississippi, and the island of New Orleans to Spain; and by a contemporaneous act, the articles preliminary to the definitive Treaty of 1763, she transferred West Florida to England. Thus at the same instant of time she alienated the whole province.

Posterior to this grant, Great Britain, having also acquired from Spain her possessions east of the Mississippi, erected the country into two provinces, East and West Florida. In this state of things it continued until the peace of 1783, when Great Britain, in consequence of the events of the war, surrendered the country to Spain, who for the first time came into the actual possession of West Florida. Well, sir, how does she dispose of it? She re-annexes it to the residue of Louisiana; extends the jurisdiction of that Government to it, and subjects the Governors or commandants of the districts of Baton Rouge, Feliciana, Mobile, and Pensacola, to the authority of the Governor of Louisiana, residing at New Orleans; whereas the Governor of East Florida is placed wholly without his control, and is made amenable directly to the Governor of the Havana. And I have been credibly informed that all the concessions or grants of land, made in West Florida, under the authority of Spain, run in the name of the government of Louisiana, You cannot have forgotten that about the period when we took possession of New Orleans, under the Treaty of Cession from France, the whole country rung with the nefarious speculations which were alleged to be practising in that city, with the connivance, if not actual participation of the Spanish authorities, by the procurement of surreptitious grants of land, particularly in the district of Feliciana. West Florida, then, not only as France has held it, but as it was in the hands of Spain, made a part of the province of Louisiana, as much so as the jurisdiction or district of Baton Rouge constituted a part of West Florida.