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Sp. Dom., Ch. 8

This webpage reproduces a chapter of
History of Louisiana

by
Charles Gayarré

in the edition published by
William J. Widdleton,
New York, 1867

The text is in the public domain.

This page has been carefully proofread
and I believe it to be free of errors.
If you find a mistake though,
please let me know!


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Sp. Dom., Ch. 10

This site is not affiliated with the US Military Academy.

p527 Chapter IX
Salcedo's Administration
1801 to 1803

As it has been seen, the treaty of cession was signed on the 30th of April. On the 7th of May, Mr. King wrote from London to Mr. Livingston and Monroe: "In case of war, it is the purpose of this government (the British government), to send an expedition to occupy New Orleans. If it be ceded to us, would it not be expedient openly or confidentially to communicate the fact here? I have reason to be satisfied that it would prevent the projected expedition. I shall remain here till the 14th, in hopes that I may receive your answer, which may be expedited by a courier, should the communication be deemed prudent." The answer was: "We have the honor to inform you that a treaty has been signed (the 30th April) between the Minister Plenipotentiary of the French government and ourselves, by which the United States have obtained the full right to and sovereignty in and over New Orleans and the whole of Louisiana, as Spain possessed the same. If you should find it necessary to make any communication to the British government on this subject, you may likewise inform them, that care has been taken so to frame the treaty as not to infringe upon any of the rights that Great Britain might claim in the navigation of the Mississippi." Mr. p528King immediately communicated this information to the British government, and, in reply, Lord Hawkesbury said: "I have received his Majesty's command to express to you the pleasure with which his Majesty has received this intelligence."

In laying before the Secretary of State all the details of this negotiation, Mr. Livingston observed:

"As I believe that, next to the negotiation that secured our independence, this is the most important the United States have ever entered into, I thought that every thing that led to it might interest you and the President." And, in a joint despatch of the 13th of May, Messrs. Livingston and Monroe remarked: "An acquisition of so great an extent was, we well know, not contemplated by our appointment; but we are persuaded that the circumstances and considerations which induced us to make it, will justify us in the measure to our government and country.

[. . .]

"We found, as we advanced in the negotiation, that M. Marbois was absolutely restricted to the disposition of the whole, that he would treat for no less portion, and, of course, that it was useless to urge it. On mature consideration, therefore, we finally concluded a treaty on the best terms we could obtain for the whole.

[. . .]

"We adjust by it the only remaining known cause of variance with this powerful nation; we anticipate the discontent of the great rival of France, who would probably have been wounded at any stipulation of a permanent nature which favored the latter, and which it would have been difficult to avoid, had she retained the right bank. We cease to have a motive of urgency at least, for inclining to one power, to avert the unjust pressure of another. We separate ourselves in a great measure p529from the European world and its concerns, especially its wars and intrigues. We make, in fine, a great stride to real and substantial independence, the great effect whereof will, we trust, be felt essentially and extensively in all our foreign and domestic relations. Without exciting the apprehension of any power, we take a more imposing attitude with respect to all. The bond of our union will be strengthened, and its movements become more harmonious by the increased parity of interests which it will communicate to the several parts which compose it."

It will be recollected that when the cession of Louisiana by Spain to France was heard of, the Ministers of the United States in Paris, London, and Madrid, had made inquiries to ascertain whether the Floridas were included in the cession as part of Louisiana, and had expressed the opinion that they were not. But that opinion underwent a change, at least with regard to a portion of the Floridas, soon after the signing of the treaty of cession transferring the same province to the United States, such as it had been acquired from Spain, and Mr. Livingston, on the 20th of May, wrote as follows to Mr. Madison on this subject:

"I informed you long since, that, on inquiring whether the Floridas were within the cession of Spain, I was told by M. Marbois he was sure that Mobile was, but could not answer farther. I believed his information incorrect, because I understood that Louisiana, as it then was, made the object of the cession; and that since the possession of the Floridas by Britain, they had changed their names. But the moment I saw the words of the treaty of Madrid, I had no doubt but it included all the country that France possessed by the name of Louisiana, previous to their cession to Spain, except what had been conveyed by subsequent treaties. I accordingly insisted with M. p530Marbois, at the time we negotiated, that this would be considered as within our purchase. He neither assented nor denied, but said that all they received from Spain, was intended to be conveyed to us. That my construction was right, is fairly to be inferred from the words of the treaties, and from a comment upon them contained in the Spanish Minister's letter to Mr. Pinckney, in which he expressly says, that France had recovered Louisiana as it formerly belonged to her, saving the rights of other powers. This leaves no doubt upon the subject of the intention of the contracting parties. Now, it is well known that Louisiana, as possessed by France, was bounded by the river Perdido, and that Mobile was the metropolis. For the facts relative to this, I refer you to Raynal and to his maps. I have also seen maps here which put the matter out of dispute.

"I called this morning upon M. Marbois for a further explanation on this subject, and to remind him of his having told me that Mobile made a part of the cession. He told me that he had no precise idea on the subject, but that he knew it to be an historical fact, and that on that only he had formed his opinion. I asked him what orders had been given to the Prefect who was to take possession, or what orders had been given by Spain, as to the boundary, in ceding it? He assured me that he did not know; but that he would make the inquiry, and let me know. At four o'clock I called for Mr. Monroe to take him to the Minister of Foreign Affairs (Talleyrand); but he was prevented from accompanying me. I asked the minister (Talleyrand) what were the east bounds of the territory ceded to us? He said he did not know; we must take it as they had received it. I asked him how Spain meant to give them possession? He said, according to the words of the treaty. — But what did you mean to take? — I do not know. — Then you p531mean that we shall construe it our own way? — I can give you no direction; you have made a noble bargain for yourselves, and I suppose you will make the most of it.

"Now, Sir, the sum of this business is, to recommend to you, in the strongest terms, after having obtained the possession that the French commissary will give you, to insist upon this as a part of your right, and to take possession, at all events, to the river Perdido. I pledge myself that your right is good; and, after the explanations that have been given here, you need apprehend nothing from a decisive measure. Your ministers here, and at Madrid, can support your claim; and the time is particularly favorable to enable you to do it without the smallest risk at home. It may also be important to anticipate any designs that Britain may have upon that country. Should she possess herself of it, and the war terminate favorably for her, she will not readily relinquish it. With this in your hand, East Florida will be of little moment, and may be yours whenever you please. At all events, proclaim your right and take possession."

On the 7th of June, Messrs. Livingston and Monroe again said in a joint despatch to Mr. Madison: "We are happy to have it in our power to assure you, that, on a thorough examination of the subject, we consider it incontrovertible that West Florida is comprised in the cession of Louisiana."

Let us now see the view taken of this question by the French negotiator. It cannot be done better than by quoting his own language.

"The American negotiators," said he, "easily agreed on the declaration contained in the first article: The colony or province of Louisiana is ceded by France to the United States, with all its rights and appurtenances, as fully and in the same manner as p532they have been acquired by the French Republic, by virtue of the third article of the treaty concluded with his Catholic Majesty at St. Ildephonso, on the 1st of October, 1800. Terms so general, seemed, however, to render necessarily some explanations, relative to the true extent of Louisiana, &c.

[. . .]

"There were some historical and diplomatic researches on the first occupation and earliest acts of sovereignty. But they were only attended with the results usual in such cases. Travellers and historians had not left on this subject any but vague and general notions; they had only narrated some accidents of navigation, some acts of occupation, to which contradictory ones might be opposed. According to old documents, the bishopric of Louisiana extended to the Pacific ocean, and the limits of the diocese thus defined were secure from all dispute. But this was at the most a matter in expectancy, and the Indians of those regions never had any suspicion of the spiritual jurisdiction which it was designed to exercise over them. Besides, it had no connection with the rights of sovereignty and property. One important point was, however, beyond all discussion; according to the then existing treaties, the course of the Mississippi, in descending this river to the 31st degree of north latitude, formed the boundary line, leaving to the United States the country on its left bank; to the right, on the other hand, there were vast regions without well defined boundaries, although France had formerly included a great part of them in what was called Upper Louisiana. This was particularly the case with the territories to the south of the Missouri.

"The limits of Louisiana and Florida, to the south of the 31st degree, were not free from some disputes, which possessed importance on account of the neighborhood of p533the sea, and the embouchure of the rivers. However this country (Florida), disregarded by the European powers that successively possessed it, was scarcely mentioned in the conferences. France had only the smallest portion of it. The name of Florida could not have been inserted with preparing great difficulties for the future.

"The boundary to the north and north-west was still less easy to describe. Even the course of the Mississippi might give rise to some border disputes; for that great river receives, beyond the 43rd degree, several branches, then regarded as its sources. A geographical chart was before the plenipotentiaries. They negotiated with entire good faith; they frankly agreed that these matters were full of uncertainty, but they had no means of quieting the doubts. The French negotiator said: 'Even this map informs us that many of these countries are not better known at this day, than when Columbus landed at the Bahamas; no one is acquainted with them. The circumstances are too pressing to permit us to concert matters on this subject with the court of Madrid. It would be too long before this discussion could be terminated, and perhaps that government would wish to consult the Viceroy of Mexico. Is it not better for the United States to abide by a general stipulation, and since these territories are still at this day, for the most part, in possession of the Indians, await future arrangements, or leave the matter open for the treaty stipulations that the United States may make with them and Spain? In granting Canada to the English at the peace of 1763, we only extended the cession to the country that we possessed. It is, however, as a consequence of that treaty, that England has occupied territory to the West, as far as the great Northern Ocean.' Whether the American plenipotentiaries had themselves desired what was proposed to p534them, or that these words afforded them a ray of light, they declared that they kept to the terms of the 3rd article of the treaty of St. Ildephonso, which was inserted entire in the first article of the treaty of cession.

"M. Marbois, who offered the draft, said several times: 'The first article may in time give rise to difficulties, that are at this day insurmountable. But if they do not stop you, I, at least, desire that your government should know that you have been warned of them.'

"The French negotiator, in rendering an account of the conference to the First Consul, pointed out to him the obscurity of this article and the inconveniences of so uncertain a stipulation. He replied: 'that if an obscurity did not already exist, it would perhaps be good policy to put one there.'

Whatever was the true territorial extent of Louisiana, whether it included part of the Floridas or not, Spain immediately protested against the treaty of cession, and her Minister at Washington, the Marquis de Casa Irujo, addressed the following note to the Secretary of State on the 4th of September:

"Through the medium of the ambassador of the King my master, in Paris, it has come to his royal knowledge, that that government has sold to that of the United States the province of Louisiana, which his Majesty had retroceded to the French Republic. This information has occasioned to the King, my master, no small surprise, seeing that the French Government had contracted with his Majesty the most solemn engagements never to alienate the said province. In order to convince the Government of the United States of the nature of these engagements, I take the liberty here to insert a paragraph of a note presented on the 22d of July, 1802, by M. de St. Cyr, ambassador of the French Republic, at Madrid, to the Secretary of State of his Majesty, as follows:

p535 "His Catholic Majesty has appeared to wish that France should engage not to sell nor alienate in any manner, the property and the enjoyment of Louisiana. Its wish in this respect is perfectly conformable with the intentions of the Spanish Government; and its sole motive for entering therein was because it respected a possession which had constituted a part of the French territory. I am authorized to declare to you in the name of the First Consul that France will never alienate it."

"The mere reading of the paragraph which precedes will convince you as well as the President of the United States, that the sale of Louisiana which France has lately made is a manifest violation of the obligations contracted by her with his Catholic Majesty, and that France wants the powers to alienate the said province without the approbation of Spain, as is seen incontestably in the above recited note of the ambassador St. Cyr, authorized by his government.

"The King, my master, charges me to inform this government, as soon as possible, of this important circumstance; and, in compliance with his royal will, I hasten to acquaint you therewith, in order that it may, as soon as possible, come to the knowledge of the President of the United States."

On the 27th of the same month (September), the Marquis de Casa Irujo returned to the subject, and said in a communication to Mr. Madison:

"On the 4th current, I had the honor to intimate to you the extraordinary surprise with which the King, my master, had heard of the sale of Louisiana, made to the United States, in contravention of the most solemn assurances given in writing to his Majesty, by the ambassador of the French Republic near his person, and with the consent and approbation of the First Consul. The King, my master, charges me again to remind the American p536Government, that the said French ambassador entered, in the name of his Republic, into the positive engagement that France never would alienate Louisiana, and to observe to it that the sale of this province to the United States is founded in the violation of a promise so absolute that it ought to be respected; a promise without which the King my master would, in no manner, have dispossessed himself of Louisiana. His Catholic Majesty entertains too good an opinion of the character of probity and good faith which the Government of the United States has known how to obtain so justly for itself, not to hope that it will suspend the ratification and effect of a treaty which rests on such a basis. There are other reasons no less powerful, which come to the support of the decorum and respect which nations mutually owe each other. France acquired from the King, my master, the retrocession of Louisiana under obligations whose entire fulfilment was absolutely necessary to give her the complete right over the said province; such was that of causing the King of Tuscany to be acknowledged by the Powers of Europe; but, until now, the French Government has not procured this acknowledgment, promised and stipulated, either from the Court of London, or from that of St. Petersburgh. Under such circumstances, it is evident that the treaty of sale entered into between France and the United States does not give to the latter any right to acquire and claim Louisiana, and that the principles of justice as well as sound policy ought to recommend it to their government not to meddle with engagements, as contrary in reality to their true interests, as they would be to good faith and to their good correspondence with Spain."

Mr. Madison communicated these notes to Mr. Livingston at Paris, to whom he said in a despatch of the 6th of October:

"The objections to the cession, advanced p537by Spain, are in fact too futile to weigh either with others or with herself. The promise made by the French ambassador, that no alienation should be made, formed no part of the treaty of retrocession to France; and, if it had, would have no effect on the purchase by the United States, which was made in good faith, without notice from Spain of any such condition, and even with sufficient evidence that no such condition existed. The objection drawn from the failure of the French government to procure from other powers an acknowledgment of the King of Etruria, is equally groundless. This stipulation was never communicated either to the public or to the United States, and could, therefore, be no bar to the contract made by them. It might be added, that, as the acknowledgment stipulated was, according to the words of the article, to precede possession by the King of Etruria, the overt possession by him was notice to the world that the conditions on which it depended had either been fulfilled, or had been waived. Finally, no particular Powers, whose acknowledgment was to be procured, are named in the article; and the existence of war between Great Britain and France, at the time of the stipulation, is a proof that the British acknowledgment, the want of which is now alleged as a breach of the treaty, could never have been in its contemplation.

"But the conduct of the Spanish government, both towards the United States and France, is a complete answer to every possible objection to the treaty between them. That government well knew the wish of the United States to acquire certain territories which it had ceded to France, and that they were in negotiation with France on the subject; yet the slightest hint was never given that France had no right to alienate, or even that an alienation to the United States would be disagreeable to Spain. On the contrary, the minister of his Catholic p538Majesty, in an official note, bearing date May 4th last, gave information to the minister of the United States at Madrid, that the entire province of Louisiana, with the limits it had when held by France, was retroceded to that power, and that the United States might address themselves to the French government in order to negotiate the acquisition of the territories which would suit their interest. Here is at once a formal and irrevocable recognition of the right as well of France to convey, as of the United States to receive, the territory which is the subject of the treaty between them. More than this cannot be required to silence, for ever, the cavils of Spain at the titles of France, now vested in the United States; yet, for more than this, she may be referred to her own measures at New Orleans, preparatory to the delivery of possession to France; to the promulgation, under Spanish authority at that place, that Louisiana was retroceded, and to be delivered to France; and to the orders signed by his Catholic Majesty's own hand, now ready to be presented to the government of Louisiana, for the delivery of the province to the person duly authorized by France to receive it.

"In a word, the Spanish government has interposed two objections only to the title conveyed to the United States by France. It is said, first, that the title in the United States is not good, because France was bound not to alienate. To this it is answered, that the Spanish government itself referred the United States to France, as the Power capable, and the only Power capable, of conveying the territory in question. It is said, next, that the title in France herself is not good. To this, if the same answer was less decisive, the orders of the King of Spain for putting France into possession are an answer which admits of no reply."

[. . .]

p539 Mr. Madison added: "The rightful limits of Louisiana are under investigation. It seems undeniable from the present state of the evidence, that it extends eastwardly as far, at least, as the river Perdido; and there is little doubt that we shall make good both a western and northern extent highly satisfactory to us."

On the 12th of October, the Marquis de Casa Irujo addressed to Mr. Madison another communication, in which he resumed the argument to prove that Spain was right in protesting against the execution of the treaty of cession:

"I have received," said he, "your letter of the 4th current in reply to those which I had the honor to write to you on the 4th and 27th of the last month; and as, without entering into the examination of the powerful reasons which, in the name of the King my master, I unfolded therein, against the sale of Louisiana, you refer generally to the explanations which, as you inform me, the minister of the United States near his Majesty is to make at Madrid, I shall at present confine my observations to that which you are pleased to make to me, founded upon certain expressions which you cite to me from an official letter or Secretary of State of the King my master, to the above mentioned American minister in Spain. The expressions are the following:

"By the retrocession made to France of Louisiana, this power has recovered the said province with the limits which it had, and saving the rights acquired by other powers. The United States can address themselves to the French government to negotiate the acquisition of territory which may suit their interests."1

These expressions, which you consider as an explicit p540and positive acknowledgment of the right of the United States and France to enter into the engagements which they afterwards did, do not, in my opinion, weaken, in any manner, the foundation and the force of the representations which I have had the honor to make to you against the sale of Louisiana.

"There is an expression among those you cite, which will suffice to refute the inference you draw from them, and it is that of saving the rights acquired by other powers. Although the general form of this expression gives, in other respects, much latitude to its true meaning, it is indubitable that Spain having made the retrocession of Louisiana to France, under certain conditions and modifications, Spain has the undoubted right to claim their execution. Of this nature was the stipulation that France should not sell nor alienate Louisiana in any manner whatever, and likewise the solemn and positive accession and declaration of the French government adhering to the wishes of Spain; consequently this expression destroys the possibility that, according to existing circumstances, the French government should possess the right of selling the said province, or the government of the United States that of buying it.

"There is another consideration still stronger, and which is not at all subject to the interpretation of equivocal expressions. It is evident that the engagement entered into by France with Spain not to alienate Louisiana in any manner, is much older in date than the official letter of M. Cevallos, whose expressions you are pleased to cite to me. In that letter, those which you have scored: that the United States can address themselves to the French government to negotiate the acquisition of the territory which may suit their interests, neither signify nor can signify any thing but a deference towards France, whose government alone is now concerned to p541give a decisive answer to the requests of the United States, — an answer analogous and conformable to the nature of the previous engagements which had been entered into with Spain. The repugnance of the Spanish government may likewise be recognised to give to that of the United States a necessary negative, at a time when it found itself united with them by bonds of the most sincere friendship.

"Other interpretations of equal force may be derived from the obvious meaning of the expressions of the official letter of the Secretary of State of his Majesty mentioned by you; but as those which I have just made are, in my opinion, conclusive, I abstain from entering upon others in detail, and I take the liberty to call to them the attention, as well of yourself as of the President of the United States, in order that you may be more and more convinced of the reason and justice with which the King, my master, objects to the ratification of a treaty founded upon a manifest violation of the most sacred engagements entered into by France."

Mr. Madison communicated to Mr. Pinckney, the American Minister at Madrid, all the arguments which he had used to refute the pretensions of Spain, and said:

"The President thinks it proper, that they should, without delay, be conveyed to the Spanish government, either by a note from you or in conversation, as you may deem most expedient, and in a form and style best uniting the advantages of making that government sensible of the absolute determination of the United States to maintain their right, with the propriety of avoiding undignified menace and unnecessary irritation.

"The conduct of Spain, on this occasion, is such as was, in several views, little to be expected, and as is not readily explained. If her object be to extort Louisiana from France, as well as to prevent its transfer to the p542United States, it would seem that she must be emboldened by an understanding with some other very powerful quarter of Europe. If she hopes to prevail on France to break her engagement to the United States, and voluntarily restore Louisiana to herself, why has she so absurdly blended with the project the offensive communication of the perfidy which she charges on the First Consul? If it be her aim to prevent the execution of the treaty between the United States and France, in order to have for her neighbor the latter instead of the United States, it is not difficult to show that she mistakes the lesser for the greater damage against which she wishes to provide. Admitting, as she may possibly suppose, that Louisiana, as a French colony, would be less able, as well as less disposed, than the United States, to encroach on her southern possessions, and that it would be too much occupied with its own safety against the United States to turn its force on the other side against her possessions, still it is obvious, in the first place, that, in proportion to the want of power in the French, the colony would be safe for Spain; that compared with the power of the United States, the colony would be insufficient as a barrier against the United States; and, in the next place, that the very security which she provides, would itself be a source of the greatest of all the dangers she has to apprehend. The collisions between the United States and the French would lead to a contest, in which Great Britain would naturally join the former, and in which Spain would, of course, be on the side of the latter; and what becomes of Louisiana and the Spanish possessions beyond it, in a contest between the powers so marshalled? — An easy and certain victim to the fleets of Great Britain and the land armies of this country. A combination of these p543forces was always, and justly, dreaded by both Spain and France. It was this danger which led both into our revolutionary war, and much inconsistency and weakness is chargeable on the projects of either which tend to re-unite for the purposes of war, the power which has been divided. France, by returning to her original policy, has wisely, by her late treaty with the United States, obviated a danger which would not have been very remote. Spain will be equally wise in following the example; and, by acquiescing in an arrangement which guards against an early danger of controversy between the future, first with France, and then with herself, and which removes to a distant day the approximation of the American and Spanish settlements, provides in the best possible manner for the security of the latter, and for a lasting harmony with the United States. What is it that Spain dreads? She dreads, it is presumed, the growing power of this country, and the direction of it against her possessions within its reach. Can she annihilate this power? No. Can she sensibly retard its growth? No. Does not common prudence then advise her to conciliate, by every proof of confidence and friendship, the good-will of a nation whose power is formidable to her; instead of yielding to the impulses of jealousy, and adopting obnoxious precautions which can have no other effect than to bring on, prematurely, the whole weight of the calamity which she fears? Reflections, such as these, may, perhaps, enter with some advantage into your communications with the Spanish government; and, as far as they may be invited by favorable occasions, you will make that use of them."

It had been thought proper to communicate to M. Pichon, the French Chargé-d'Affaires at Washington, p544the tenor of the notes from the Marquis de Casa Irujo, and, in reply, M. Pichon addressed to the Secretary of State, on the 14th of October, the following note:

"The undersigned, to whom the Secretary of State has been pleased to communicate the proceedings of the Minister of his Catholic Majesty to the United States, in relation to the treaty by which the French Republic has ceded Louisiana to the United States, thinks that he owes it to his own government as well as to the American government, to present to Mr. Madison the observations of which those proceedings, as far as they attack the rights and even the dignity of the French government, have appeared to him susceptible.

"The Court of Madrid, according to the notes of its Minister, considers the cession made by France to the United States as irregular and invalid: 1o— because France has renounced the right of alienating the territories in question: 2o— because the treaty of St. Ildephonso, by which Spain retroceded those territories to France, has not been fully executed with respect to the acknowledgment of the King of Etruria — an acknowledgment which was one of the conditions of the retrocession to be fulfilled by France.

"On the first point, the undersigned will observe that the treaty of St. Ildephonso retrocedes Louisiana in full sovereignty, and without any limitation as to the future domain of France. To operate a limitation so essential as is that to which the Court of Madrid appeals, nothing less would have been necessary, according to the nature of contracts in general and of treaties in particular, than a stipulation to this effect inserted in the treaty itself. A promise made fifteen months after the signature of this pact, and which might, on one side, have been yielded to the solicitations of one of the contracting parties and, on the other, dictated by the dispositions p545which might then exist in the other party, but which ulterior circumstances might have changed — such a promise cannot create in favor of Spain a right sufficient to enable her to charge with invalidity the transactions which have contravened it. The contrary pretensions would certainly confound all the principles relative to the nature of obligations, and would destroy the solemnity of treaties. These general reasonings would receive a new force from the circumstances which are peculiar to different nations in relation to the subject of pacts; but the undersigned will not enter into the examination of these circumstances, under the persuasion the general principles sufficiently repel the pretensions of the Court of Madrid.

"On the second point, the objections of that Court do not appear to the undersigned to be better founded. It is known that the King of Etruria was placed on the throne since the treaty of St. Ildephonso. We have a right to suppose, that his Catholic Majesty was satisfied from that period with the measures and efforts employed by France to cause the title of this Prince to be acknowledged by the other nations. It is at least what might be concluded from facts within the knowledge of the whole world. In the treaty of Amiens, concluded on the 27th of March, 1802, Great Britain did not acknowledge the King of Etruria. Notwithstanding the silence of the Court of London, on so solemn an occasion, that of Madrid ordered, in the month of October following, the delivery of the colony to France, as is proved by the royal cedula, which the undersigned has received and exhibited to Mr. Madison; a cedula, which, as all the world knows, was long ago forwarded to the Captain General of Cuba, who sent the Marquis de Casa Calvo to New Orleans to superintend its execution.

"To these conclusive observations the undersigned p546will add, that the Court of Madrid might have been informed in the course of the month of February last, by its Minister to the United States, that the American government was sending to Paris a Minister Extraordinary, in order to negotiate with the French Government the acquisition of New Orleans. If the Court of Madrid had seen, in the object of this mission, an injury offered to its rights, what prevented it, after being thus early apprised, from informing thereof the Minister of the United States in Paris, and the French government, and from interposing, before the conclusion of the treaty, its intervention in a form adapted to suspend it? It does not appear that that court has taken, at Paris, any steps of this nature. To suppose it, would be inconsistent with the instructions which the undersigned has received from his government, to accelerate as much as is in his power the execution of the treaty concluded on the 30th of April last, between the French Republic and the United States.

"The undersigned therefore hopes, that the American government will not see in the proceedings of the court of Madrid, in order to obstruct the execution of this treaty, any thing but specious reasonings, and will proceed to its execution with the same earnestness which the French government has employed on its part. The undersigned has received the necessary orders to exchange the ratifications and effect the taking of possession of Louisiana by France, and its transfer to the United States. He does not presume that the court of Madrid would wish to oppose the execution of the first orders. This supposition would be as contrary to its loyalty as to the dignity of the French government. In any event, as soon as the ratifications are exchanged, the undersigned will proceed without delay, in concert with the commissary appointed for that purpose by the First p547Consul, to the delivery of the colony to the persons whom the President of the United States shall appoint to take possession of it."

On the 17th of October, Congress assembled at Washington agreeably to the proclamation of the President of the United States, who, in his message, thus referred to the purchase of Louisiana:

"Congress witnessed, at their late session, the extraordinary agitation produced in the public mind by the suspension of our right of deposit at the port of New Orleans, no assignment of another place having been made according to treaty. They were sensible that the continuation of that privation would be more injurious to our nation than any consequences which could flow from any mode of redress; but, reposing just confidence in the good faith of the government whose officer had committed the wrong, friendly and reasonable representations were resorted to, and the right of deposit was restored.

"Previous, however, to this period, we had not been unaware of the danger to which our peace would be perpetually exposed, whilst so important a key to the commerce of the Western country remained under a foreign power. Difficulties too were presenting themselves as to the navigation of other streams, which, arising within our territories, pass through those adjacent. Propositions had therefore been authorized for obtaining, on fair conditions, the sovereignty of New Orleans, and of other possessions in that quarter, interesting to our quiet, to such extent as was deemed practicable; and the provisional appropriation of two millions of dollars, to be applied and accounted for by the President of the United States, intended as part of the price, was considered as conveying the sanction of Congress to the acquisition proposed. The enlightened government of France saw, p548with just discernment, the importance to both nations of such liberal arrangements as might best and permanently promote the peace, interests, and friendship of both; and the property and sovereignty of all Louisiana, which had been restored to them, has, on certain conditions, been transferred to the United States, by instruments bearing date the 30th of April last. When these shall have received the constitutional sanction of the Senate, they will, without delay, be communicated to the Representatives for the exercise of their functions, as to those conditions which are within the powers vested by the Constitution in Congress. Whilst the property and sovereignty of the Mississippi and its waters secure an independent outlet for the produce of the Western States, and an uncontrolled navigation through their whole course, free from collision with other powers and the dangers to our peace from that source, the fertility of the country, its climate and extent promise, in due season, important aids to our treasury, an ample provision for our posterity, and a wide spread for the blessings of freedom and equal laws.

"With the wisdom of Congress it will rest to take those ulterior measures which may be necessary for the immediate occupation and temporary government of the country; for its incorporation into our Union; for rendering the change of government a blessing to our newly adopted brethren; for securing to them the rights of conscience and of property; for confirming to the Indian inhabitants their occupancy and self-government, establishing friendly and commercial relations with them; and for ascertaining the geography of the country acquired."

On the 26th of October, a bill to enable the President to take possession of the territories ceded by France to the United States, by the treaty concluded at Paris on the 30th of April, was adopted in the Senate by a vote p549in the affirmative of 26 to 6 in the negative. Those who voted against the bill were John Quincy Adams and Timothy Pickering of Massachusetts, James Hillhouse and Uriah Tracy from Connecticut, Simeon Olcott and William Plumer from New Hampshire.

On the 2d of November, the Senate resumed the second reading of a bill entitled: "An act authorizing the erection of a stock to the amount of eleven millions two hundred and fifty thousand dollars, for the purpose of carrying into effect the convention of the 30th of April, 1803, between the United States and the French Republic." The bill had come up from the House of Representatives, where it had passed on the 29th of October. On the question: Shall the bill pass? — Mr. James White, from Delaware, moved that the further consideration of the bill be postponed until the second Monday in December next, stating as the ground of the motion he had the honor to make, that the question was then involved in much difficulty and doubt. He could not accede to the immediate passage of the bill,

"because," said he, "by the day I have named, the Senate would be able to act more understandingly on the subject, as it would then probably be ascertained whether we are likely to obtain the quiet possession of New Orleans and Louisiana under the treaty or not, and there would still remain a great sufficiency of time to make the necessary provisions on our part for carrying the treaty into execution, if it should be deemed necessary.

"Admitting then," continued he, "that his Catholic Majesty is hostile to the cession of this territory to the United States, and no honorable gentleman will deny it, what reasons have we to suppose that the French Prefect, provided the Spaniards should interfere, can give to us peaceable possession of the country? He is acknowledged there in no public character, is clothed with no p550authority, nor has he a single soldier to enforce his orders. I speak now from mere probabilities. I wish not to be understood as predicting that the French will not cede to us the actual and quiet possession of the territory. I hope to God they may, for possession of it we must have, — I mean of New Orleans, and of such other positions on the Mississippi as may be necessary to secure to us for ever, the complete and uninterrupted navigation of that river. This I have ever been in favor of; I think it essential to the peace of the United States and to the prosperity of our Western country. But as to Louisiana, this new, immense, unbounded world, if it should ever be incorporated into this Union, which I have no idea can be done but by altering the Constitution,a I believe it will be the greatest curse that could at present befall us; it may be productive of innumerable evils, and especially of one that I fear even to look upon. Gentlemen on all sides, with very few exceptions, agree that the settlement of the country will be highly injurious and dangerous to the United States; but, as to what has been suggested of removing the Creeks and other nations of Indians from the Eastern to the Western banks of the Mississippi, and making the fertile regions of Louisiana a howling wilderness, never to be trodden by the foot of civilized man, it is impracticable. The gentleman from Tennessee (Mr. Cocke) has shown his usual candor on this occasion, and I believe with him, to use his strong language, that you had as well pretend to prohibit the fish from swimming in the sea, as to prevent the populating of that country after its sovereignty shall become ours. To every man acquainted with the adventurous, roving, and enterprising temper of our people, and with the manner in which our Western country has been settled, such an idea must be chimerical. The inducements will be so strong, that it will be impossible to restrain our citizens p551from crossing the river. Louisiana must and will become settled, if we hold it, and with the very population that would otherwise occupy part of our present territory. Thus our citizens will be removed to the immense distance of two or three thousand miles from the capital of the Union, where they will scarcely ever feel the rays of the General Government; their affections will become alienated; they will gradually begin to view us as strangers; they will form other commercial connections, and our interests will become distinct.

"These, with other causes that human wisdom may not now foresee, will in time effect a separation, and I fear our bounds will be fixed nearer to our houses than the water of the Mississippi. We have already territory enough, and when I contemplate the evils that may arise to these States from this intended incorporation of Louisiana into the Union, I would rather see it given to France, to Spain, or to any other nation of the earth, upon the mere condition that no citizen of the United States should ever settle within its limits, than to see the territory sold for a hundred millions of dollars, and we retain the sovereignty. [. . .] And I do say that, under existing circumstances, even supposing that this extent of territory was a desirable acquisition, fifteen millions of dollars was a most enormous sum to give."

Mr. Wells, of the same State, took the same view of the question with his colleague, Mr. White.

Mr. Pickering, from Massachusetts, spoke also against the bill, as he thought that Congress was not bound to carry the treaty into execution:

"The Constitution, and the laws of the United States," said he, "made in pursuance thereof, and all treaties made, or which shall be made under the authority of the United States, shall be the supreme law of the land. But a treaty, to be thus p552obligatory, must not contravene the Constitution, nor contain any stipulations which transcend the powers therein given to the President and Senate. The treaty between the United States and the French Republic, professing to cede Louisiana to the United States, appears to me to commence such an exceptionable stipulation — a stipulation which cannot be executed by any authority now existing. It is declared in the 3d article, that the inhabitants of the ceded territory shall be incorporated in the Union of the United States. But neither the President and Senate, nor the President and Congress, are competent to such an act of incorporation. I believe that our administration admitted that this incorporation could not be effected without an amendment of the Constitution; and I conceive that this necessary amendment cannot be made in the ordinary mode by the concurrence of two thirds of both houses of Congress, and the ratification of the legislatures of three fourths of the several States. I believe the assent of each individual State to be necessary for the admission of a foreign country as an associate in the Union: in like manner as in a commercial house, the consent of each member would be necessary to admit a new partner into the company; and whether the assent of every State to such an indispensable amendment would be attainable, is uncertain. But the articles of a treaty are necessarily related to each other, the stipulation in one article being frequently the consideration for another. If, therefore, in respect to the Louisiana treaty, the United States fail to execute, and within a reasonable time, the engagement in the 3d article, to incorporate that territory into the Union, the French government will have the right to declare the whole treaty void. We must then abandon the country, or go to war to maintain our possession.

[. . .]

p553 "But," added Mr. Pickering, "I have never doubted the right of the United States to acquire new territory, either by purchase or by conquest, and to govern the territory so acquired as a dependent province; and in this way might Louisiana have become a territory of the United States, and have received a form of government infinitely preferable to that to which its inhabitants are now subject."

Mr. Tracy, from Connecticut, followed in the same line of argument, objecting also to what he called giving a commercial preference to the ports of the ceded territory over the other ports of the Union, in conformity with the 7th article of the treaty, which stipulated, that the ships of France and Spain should be admitted for twelve years into the ports of Louisiana, free of foreign duty. He concluded with the following sentiments: "We can hold territory; but to admit the inhabitants into the Union, to make citizens of them and States, by they, we cannot constitutionally do; and no subsequent act of legislation, or even ordinary amendment to our Constitution, can legalize such measures. If done at all, they must be done by universal consent of all the States or partners of our political association; and this universal consent I am positive can never be obtained to such a pernicious measure as the admission of Louisiana, of a world — and such a world — into our Union. This would be absorbing the northern States, and rendering them as insignificant in the Union as they ought to be, if, by their own consent, the new measure should be adopted."

Mr. Breckenridge, from Kentucky, made in support of the bill, one of the most eloquent speeches of the session. Alluding to the treaty he said:

"If my opinion were of any consequence, I am free to declare that this transaction, from its commencement to its close, not only as to the mode in which it was pursued, but as to the object p554achieved, is one of the most splendid which the annals of any nation can produce. To acquire an empire of perhaps half the extent of one now possessed, from the most powerful and warlike nation on earth, without bloodshed, without the oppression of a single individual, without in the least embarrassing the ordinary operations of your finances, and all this through the peaceful forms of negotiation, and in despite too of the opposition of a considerable portion of the community, is an achievement of which the archives of the predecessors, at least, of those now in office, cannot furnish a parallel.

"The gentleman from Massachusetts has told us, that this acquisition will, from its extent, soon prove destructive to the Confederacy.

"This is an old, hackneyed doctrine — that a republic ought not to be too extensive. But the gentleman has assumed two facts, and then reasoned from them: first, that the extent is too great; and secondly, that the country will soon be populated. I would ask, Sir, what is his standard extent for a republic? How does he come at that standard? Our boundary is already extensive. Would his standard extent be violated by including the island of Orleans and the Floridas? I presume not, as all parties seem to think their acquisition, in part or in whole, essential. Why not then acquire territory on the west, as well as on the east side of the Mississippi? Is the goddess of liberty restrained by water courses? Is she governed by geographical limits? Is her dominion on this continent confined to the east side of the Mississippi? So far from believing in the doctrine that a doctrine ought to be confined within narrow limits, I believe, on the contrary, that the more extensive its dominion, the more safe and more durable it will be. In proportion to the number of hands you intrust the precious blessings of a free government to, in the same p555proportion do you multiply the chances for their preservation. I entertain, therefore, no fears for the Confederacy, on account of its extent.

[. . .]

"But nothing so remote is more clear to me, than that this acquisition will tend to strengthen the Confederacy. It is evident, as this country has passed out of the hands of Spain, that whether it remained with Spain, or should be acquired by England, its population would have been attempted. Such is the policy of all nations but Spain. Whence would that population come? Certainly not from Europe. It would come almost exclusively from the United States. The question, then, would simply be: Is the confederacy more in danger from Louisiana, when colonized by American people under American jurisdiction, than when populated by Americans under the control of some foreign, powerful, and rival nation? Or, in other words, whether it would be safer for the United States to populate this country when and how they pleased, or permit some foreign nation to do it at their expense?"

The adoption of this bill was advocated by Mr. John Quincy Adams, who yet had voted, on the 26th of October, against the passage of the bill to enable the President to take possession of the territories ceded by France to the United States.

"It has been argued," said Mr. Adams, "that the bill ought not to pass, because the treaty itself is an unconstitutional act, or, to use the words of the gentleman from Connecticut, an extra-constitutional act; because it contains engagements which the powers of the Senate were not competent to ratify, the powers of Congress not competent to confirm, and, as two of the gentlemen have contended, not even the legislatures of the number of States requisite to effect an amendment of the Constitution, p556are adequate to sanction. It is therefore, say they, a nullity; we cannot fulfil our part of its conditions, and on our failure in the performance of any one stipulation, France may consider herself absolved from the obligations of the whole treaty on her. I do not conceive it necessary to enter into the merits of the treaty at this time. The proper occasion for that discussion is past. But, allowing even that this is a case for which the Constitution has not provided, it does not in my mind follow, that the treaty is a nullity, or that its obligations, either on us or on France, must necessarily be cancelled. My own part, I am free to confess, that the 3d article and more especially the 7th, contain engagements placing us in a dilemma, from which I see no possible mode of extracting ourselves but by an amendment, or rather an addition to the Constitution. The gentleman from Connecticut (Mr. Tracy), both on a former occasion, and in this day's debate, appears to have shown this to demonstration. But what is this more than saying, that the President and Senate have bound the nation to engagements which require the coöperation of more extensive powers than theirs, to carry them into execution? Nothing is more common in the negotiations between nation and nation, than for a minister to agree to and sign articles beyond the extent of his powers. This is what your ministers, in the very case before us, have confessedly done. It is well known that their powers did not authorize them to conclude this treaty; but they acted for the benefit of their country, and this house, by a large majority, has advised to the ratification of their proceedings. Suppose then, not only that the ministers who signed, but the President and Senate who ratified this compact, have exceeded their powers. Nay, suppose even that the majority of States competent to amend the Constitution in other p557cases, could not amend it in this, without exceeding their powers — and this is the extremest point to which any gentleman on this floor has extended his scruples — suppose all this, and there still remains in the country a power competent to adopt and sanction every part of our engagements, and to carry them entirely into execution. For, notwithstanding the objections and apprehensions of many individuals, of many wise, able and excellent men in various parts of the Union, yet such is the public favor attending the transaction which commenced by the negotiation of this treaty, and which, I hope, will terminate in our full, undisturbed and undisputed possession of the ceded territory, that I firmly believe if an amendment to the Constitution, amply sufficient for the accomplishment of everything for which we have contracted, shall be proposed, as I think it ought, it will be adopted by the legislature of every State in the Union. We can therefore fulfil our part of the convention, and this is all that France has a right to require of us. France never can have the right to come and say: I am discharged from the obligations of this treaty, because your President and Senate, in ratifying, exceeded their powers; for this would be interfering in the internal arrangement of our government. It would be intermeddling in questions with which she has no concern, and which must be settled altogether by ourselves. The only question for France is, whether she has contracted with the department of our government authorized to make treaties; and this being clear, her only right is to require that the conditions stipulated in our name be punctually and faithfully performed. I trust they will be so performed, and will cheerfully lend my hand to every act necessary for the purpose. For I consider the object as of the highest advantage to us; and the gentleman from Kentucky himself (Mr. Breckenridge), p558who has displayed with so much eloquence the immense importance to the Union of the possession of the ceded territory, cannot carry his idea further on that subject than I do."

Finally, the bill passed on the 3d of November, by a vote of 26 to 5. Those voting in the negative were: James Hillhouse and Uriah Tracy from Connecticut, Pickering from Massachusetts, Wells and White from Delaware.

Descending from the Senate into the Lower House left us now see what had been done there.

On the 24th of October, Mr. Griswold, from Connecticut, moved the following resolution:

Resolved, — That the President of the United States be requested to cause to be laid before this house a copy of the treaty between the French Republic and Spain, of the 1st of October, 1800, together with a copy of the deed of cession from Spain, executed in pursuance of the same treaty, conveying Louisiana to France (if any such deed exists); also copies of such correspondence between the government of the United States and the government or minister of Spain (if any such correspondence has taken place), as will show the assent or dissent of Spain to the purchase of Louisiana by the United States; together with copies of such other documents as may be in the department of state, or any other department of this government, tending to ascertain any title to the province of Louisiana by the treaties with France, of the 30th of April, 1803.

He believed it would be admitted that, by the express terms of the treaty, the United States had neither acquired new territory nor new subjects.2

"It appears," said he, "by that treaty, that Spain stipulated to cede to France, upon certain conditions, the province of Louisiana. p559The treaty between the United States and the French government does not ascertain whether these terms have been complied with by France, or whether the cession has been actually made by Spain to France. All that appears is a promise made by Spain to cede. If the terms stipulated by France have not been complied with, and Spain has not delivered the province to France, then it results that France had no title, and of consequence that the United States have acquired no title from France. If this be correct, the consequence will be that we have acquired no new territory or new subjects, and that it is perfectly idle to spend time in passing laws for possessing the territory, and governing the people. This point not being ascertained by the language of the treaty, it may be important to obtain documents that may satisfy the House whether the United States have acquired new territory or new subjects. In the treaty lately concluded with France, the treaty between France and Spain is referred to; only a part of it is copied. The treaty referred to must be a public treaty. In the nature of things it must be the title-deed for the province of Louisiana. The Government must have a copy of it. As there is but a part recited, it is evidently imperfect. It becomes therefore necessary to be furnished with the whole, in order to ascertain the conditions relative to the Duke of Parma; it also becomes necessary to get the deed of cession; for the promise to cede is no cession. This deed of cession, I also presume, is in the possession of the Government. It is also important to know under what circumstances Louisiana is to be taken possession of, and whether with the consent of Spain, as she is still possessed of it. If it is to be taken possession of with her consent, the possession will be peaceable, and one kind of provision will be necessarily; but if it is to be taken possession of in opposition p560to Spain, a different provision may be necessary. From these considerations I think it proper in the House to call upon the Executive for information on this point."

This Resolution was violently opposed by the friends of the administration on the ground that, in the present stage of the proceedings respecting the treaty and convention with France concerning Louisiana, it was improper to embarrass the business by an unseasonable3 call upon the Executive for papers; that the President had already communicated various information on this subject, in his message on the first day of the session; that additional information was given in his message of the 21st, wherein he told the House that the ratification and exchanges had been made; that this message was accompanied with the instrument of cession and covenant concluded at Paris between the American ministers and the agents of the French Republic; that this information was already on the tables of the House; that the President had put the House in possession of it from his own sense of duty; that he had communicated such intelligence as he had received; and that if he was possessed of anything else needful for the examination of the House, it was to be presumed that the chief magistrate of the Union would have spontaneously imparted it; that although the right of the House to request the President to give copies of the papers mentioned in the Resolution under debate was acknowledged, yet that this opposition to it arose merely from their persuasion that those papers were unnecessary, and that some of them were impossible to be had; that, although it might be agreeable to examine these papers as matters of rational curiosity, or as documents of authentic history, yet that this was not p561the time for these secondary researches, however amusing they might be; that graver objects demanded the immediate attention of the House, and that there might be danger in delay; that the operation of the Resolution, if adopted, would certainly be to procrastinate and embarrass; and that it was impossible to discern what good would be wrought at the present time by agreeing to it; that there was an additional reason, and that a very weighty one, for refusing the motion at this stage of the proceedings; that the treaty, by its express terms, "must be ratified in good and due form, and the ratifications exchanged within six months after execution;" that the date of this deed of cession was the 30th of April last; consequently, that the limited time would expire on the 30th of the current month; and that this procrastinating Resolution had been sprung up so late as the 24th; that the treaty of cession had been officially made and officially ratified by the constitutional authorities; that it was now laid before the whole world; and that it would be more honorable for those who did not relish it to come boldly forward, and deny the propriety of carrying the treaty into effect, than to assail it in secret ambushes, than to fight it behind entrenchments and under covered ways, in order to conceal their hostility to that great natural measure from the public view.

Mr. Thomas Randolph, from Virginia, opposed the Resolution,

"because," said he, "I do not conceive that the nation or the House entertain a doubt of our having acquired new territory and people to govern. Could I for a moment believe that even a minority, respectable as to numbers, required any other evidence of this fact than the extract from the treaty which has just been read, I would readily concur with the gentleman from Connecticut (Mr. Griswold), in asking of the Executive, whether indeed we had a new accession of territory and p562of citizens, or, as that gentleman has been pleased to express himself, subjects to govern.

[. . .]

"The treaty which we are now called upon to sanction, has been hailed by the acclamations of the nation. It is not difficult to foresee, from the opinions manifested in every quarter, that it will receive the cordial approbation of a triumphant majority of this House. If such be the general opinion — if we are not barely satisfied with the terms of this treaty, but lost in astonishment at the all-important benefits which we have so cheaply acquired, to what purpose do we ask information respecting the detail of the negotiation? Has any one ventured to hint disapprobation of the conduct of the ministers who have effected this negotiation? Has any one insinuated that our interests have been betrayed? If, then, we are satisfied as to the terms of the treaty, and with the conduct of our ministers abroad, let us pass the laws necessary for carrying it into effect. To result — to delay, upon the plea now offered, is to jeopardize the best interests of the Union. Shall we take exception to our own title? Shall we refuse the offered possession? Shall this refusal proceed from those who so lately affirmed, that we ought to pursue this very object at every national hazard? I should rather suppose the eagerness of gentlemen would be ready to outstrip the forms of law in making themselves masters of this country, than that, now, when it is offered to our grasp, they should display an unwillingness, or at least an indifference, for that which so lately was all important to them. After the message which the President has sent us, to inquire of him if indeed we have acquired any new subjects, as the gentleman expresses it, who render the exercise of our legislative functions necessary, would be nothing less p563and a mockery of them, of this solemn business, and of ourselves."

In the course of the lengthy debate to which this "Resolution" gave rise, various amendments were proposed, and, at last, the final question was taken on the adoption of the original motion amended as follows:

Resolved — That the President of the United States be requested to cause to be laid before the House, a copy of the treaty between the French Republic and Spain, of the 1st of October, 1800, 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 government.

The question was lost by a vote of 57 yeas to 59 nays.

On the 25th (October), the House resolved itself into a Committee of the Whole to take into consideration the motion to adopt the necessary measures to carry the treaty of cession into effect.

In opposition to this motion, Mr. Griswold from Connecticut observed:

"By the 3d article of the treaty it is declared — That the inhabitants of the ceded territory shall be incorporated in the Union of the United States, and admitted as soon as possible, according to the principles of the Constitution, to the enjoyment of all the rights, advantages, and immunities of citizens. It is, perhaps, somewhat difficult to ascertain the precise effect which it was intended to give the words which have been used in this stipulation. It is, however, clear, that it was intended to incorporate 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, p564therefore, 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 the assertion that the President and Senate may add to the numbers of the Union by a treaty whenever they please, or, in the words of the 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 repugnant 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 principle 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 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, conformably 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 p565from 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 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 restrictive 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 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.

p566 "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 Constitution. 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 incorporation 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 nature, which create no obligation, are void.

[. . .]

p567 "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 consideration of the Committee, whether this article is consistent with the provisions of the Constitution. As our laws now should, 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 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. Gentlemen 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 p568equally 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), declared 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 constitution, 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.' Congress 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 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 in the Union. I maintain, therefore, that the power to incorporate new territory does not exist; and that, if it did exist, it belonged to the Legislature, and not the Executive, 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 travelled 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.

p569 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, south and north-western frontiers 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 Congress had expressed, in their own acts, a solemn recognition 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 constitutional power to acquire territory from foreign States, the Executive, as the organ by which the Union communicates 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 conquest, which could not be denied, they could by purchase, 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 incorporating p570that 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 constitutional 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 departments 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 deprived 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 p571taxes, 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 increasing 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 Committee 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 London 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 p572had 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 admit British bottoms into certain ports, on the same terms on which American bottoms were admitted into American ports generally? Thereby making that very difference — giving that very preference to those particular ports of certain states, which he tells us cannot constitutionally be given to the port of New Orleans, — although that port is not within any state, and, if his (Mr. Griswold'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 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 will be converted from foreigners into 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 acquiring the rights of citizens, I do not mean in the full extent p573in 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 incorporate 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 incorporate them into the Union — not on the footing of the original States, or of States created under the Constitution — but to extend to them, according to the principles of the Constitution, the rights and immunities of citizens, being those rights and immunities of jury trial, liberty of conscience, &c., etc, 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 carrying 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 read to a Select Committee; and that they report by bill or otherwise.

3o— Resolved, That so much of the aforesaid conventions as relates to the payment by the United States of p574sixty 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.

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.,"º 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 United States be, and he is hereby, authorized to take possession of and occupy the territory ceded by France to the United States, by the treaty concluded at Paris, on the 30th of April 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 necessary 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 p575powers 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 enjoyment 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.


The Author's Notes:

1 Por la retrocesion hecha á la Francia de la Luisiana, recobró esta potentia dicha provincia con los limites con que la tubo, y salvos los derechos acquiridos por otras potencias. La de los Estados Unidos podrá dirigirse al gobierno Frances para negociar la adquisicion de territorios que convengan à su interes.

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2 Annals of Congress, by Gales and Seaton.

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3 Annals of Congress by Gales and Seaton.


Thayer's Note:

a To Americans in the 21st century, accustomed to the admission of new states, this doesn't seem to follow; but it did at the time, as the debate in the Senate over the question of Louisiana statehood will show.


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