by Lillie Richardsonº
An examination of a map illustrating the territorial expansion of the United States since 1789 will arouse an appreciation of adaptable statecraft potential in the American Constitution.
That document, intended originally to be the fundamental law of a portion of the North American Continent, bounded, in broad lines, on the north by Canada, on the east by the Atlantic ocean, on the south by Florida and on the west by the Mississippi river, has been stretched along the proverbial pathway of empire, until its edges are staked well towards the Asiatic shores of the Pacific ocean.
The question of whether or not the Constitution has or has not attained its ultimate degree of adaptability to territorial, social or political changes is not pertinent to the subject of this paper. But a study of the successive adjustments of that instrument of government throughout our history, would seem to show that the recent pullings have met with less resistance than was presented to the first tests of its elastic qualities.
The purchase of Louisiana in 1803 was a preliminary pull at the territorial expansion possibilities to be read into or out of the Constitution of the United States.
Article III of the Treaty of Cession of April 3, 1803,1 however, was to present the first real test as to whether the Constitution of 1787 heralded by "We, the people of the United States," could be stretched over territory lying without the boundaries of the new nation which the "people" thereof had called into political existence.
On Saturday, March 17, 1804, the House of Representatives, by a vote of 66 to 21, passed a bill erecting the great Louisiana purchase into two territories, and "ºproviding for the temporary government thereof."2
This bill, the provisions of which became the subjects of some interesting debates in both Houses of Congress, debates which foreshadowed the differences to become manifest in the consideration of the later Statehood bill, was approved by President Jefferson on March 26, 1804.
p334 The imperial stretch of territory purchased by Jefferson was divided, for purposes of administration into two parts, and that small portion practically co‑extensive with the present State of Louisiana, was delineated.
The section of the bill, relative to our purpose, reads as follows: "That all that portion of country ceded by France to the United States, under the name of Louisiana, which lies south of the Mississippi Territory, and of an east and west line, to commence on the Mississippi river, at the thirty-third degree of north latitude, and to extend to the western boundary of the said cession, shall constitute a territory of the United States, under the name of the Territory of Orleans."3
A study of the history of this territory from 1804 forces the conclusion that the inhabitants were but ill content with the restrictions and limitations of their form of government.
In 1809 the Territorial Legislature formulated a memorial to Congress praying for admission into the Union. This memorial, which was forwarded to the Secretary of State at Washington, on the 18th of May, 1809, by Governor Claiborne,4 met with the decided opposition of the Governor, who sent with it, a letter containing a clear and positive statement of his views of the situation.
Governor Claiborne, while opposed upon principle to territorial systems of government, was convinced that "the system as it relates to this District, cannot yet be done away without hazarding the interests of the United States, and the welfare of this community." The Governor presented approximate figures for the heterogeneous population of the territory, revealing but a small proportion of 'natives of the United States.' "
The personal opinion of the Governor was fortified by his statement that the memorial had been strongly opposed during its way to passage in the territorial House of Representatives. Local influential opinion was also quoted by the Governor to give weight to his contention that the memorial was badly timed, for a people not ready for incorporation into full privileges of membership in the Federal Union.
On Monday, March 12, 1810, Senator William B. Giles of Virginia presented to the Senate of the United States the memorial of the Legislature of the Territory of Orleans. The document was referred to a select committee with instructions to report thereon.5
p335 The committee reported on April 9, through its chairman, Senator Giles, "a bill to enable the people of the territory of Orleans to form a constitution and a State government, and for the admission of such State, into the union, on an equal footing with the original States, and for other purposes."
This bill was read, ordered to its second reading and on Friday, April 27, it was passed by a vote of 15 to 8.
On the even date this bill was reported to the House of Representatives, by which body it was, on April 28, given into the care of the committee of the whole. No further action was taken during this session as Congress adjourned on May first.
On Monday, December 17, 1810, Mr. Julien Poydras presented a petition of the Legislature of the Territory of Orleans praying for the admission of Territory as a state.
The memorialists assured the members of the national body that they appeared, "full of confidence in your justice, not to vent any complaints, but to claim their rights. They bring you not testimony of their discontent, but the expression of their wishes and of their hopes." Fealty and homage to the Constitution of the United States were protested, and claims to incorporation into the Union were based on the treaty of 1803.
Strong assertions made of the inadequateness and inappropriateness of the ordinance of 1787 as a territorial governmental adjustment for the peculiar conditions in the memorializing District. The National Legislature was reminded of its responsibility to those who "are capable of appreciating the advantages of the government which we pray you to extend to us."6
This petition was referred to a committee, the membership of which was as follows: N. Macon of North Carolina; M. Clay of Virginia; D. Heister of Pennsylvania; J. Nicholson of New York; W. Barry of Kentucky; A. Bigelow of Massachusetts, and R. Winn of South Carolina.7
Ten days later Mr. Macon presented an enabling bill, which was read twice and referred to a committee of the whole.
This bill proposed to admit the Territory of Orleans and the district known as West Florida into the Union as a state. Upon the question of the admission of the Territory, Congress was face to face with an important issue. To pass the bill was to create a precedent, p336 the logical outcome of which, according to Henry Adams, "could not fail to create what was in effect, a new Constitution."
There seems to have been a widespread feeling that the bill, if passed, would undermine the principles and purposes of the Constitution of the original Union. There were fears that it would shift the balance of power from the original parties to the Constitution to those upon whom this bill and its inevitable successors would confer State sovereignty.
On Wednesday, January 2, 1811, the bill was first considered by the House sitting as a committee of the whole.
A request from one representative for information on matters pertaining to the territory, brought forth a short debate, during which some radically divergent view-points were revealed. Uncertainty as to actual population was a reason for caution on the part of some of the speakers; the difficulty inherent in the West Florida situation, "yet in dispute and subject to negotiation," was a motive for advocating delay advanced by other interested representatives.
Mr. Sheffey,a of Virginia, would treat the people of the territory "as brothers not as vassals," but, he "was not ready to transfer the inheritance purposed by the blood of our fathers to foreigners." He would treat them "as equals," would render upon them "justice;" but, he would keep them "under the fostering hand of the general government; would let them become accustomed to our government, before they were permitted to govern themselves who had so lately emerged from despotism."
Mr. Macon set forth the advantages of the position held by New Orleans in the commercial economy of the United States. He would not delay action because of uncertain boundary limits, since that objection "admitted in its full force would only require a modification of the bill reserving to Congress the power of changing the boundary of the territory." The people of that territory "were a part of the nation"; the question was not one of stock, the "true question was ought they be a State?" The political foresight of this advocate was then expressed, "the great object is to make us one people; to make this nation one."8
On Thursday, January 3, 1811, Mr. Bibb of Georgia gave notice that upon the next discussion of the bill he would move to strike therefrom the provision inclusive of the land which had been the subject of the proclamation of President Madison. Furthermore, he would at once submit a resolution inquiring into the expediency of p337 annexing that disputed section to the Mississippi territory or, at least, of erecting it into a separate territorial government.9
The bill was again tossed upon the horns of divergent opinion on January 4, during a sitting of the committee of the whole, and the debates increased in length and gave a warning note of political conservatism and of sectional bitterness.
Mr. Wheaton of Massachusetts, maintained that the bill was both unconstitutional and inexpedient. He interpreted "The United States of America," for which the Constitution had been framed, exclusively rather than inclusively. It was never intended to include the people of the Territory of Orleans, who were foreigners, — subject to a foreign government at the time of the adoption of the Constitution.
It is interesting to note that while speaking to his view of the question at issue, Mr. Wheaton took a prophetic peep into the future and saw a vision, some of the misty outlines of which have developed through the intervening years into present-day realities.
This attempt to stretch the Constitutional aegis of the government of the United States over a near‑by but foreign land and people was rendered doubly dangerous because of its illimitable possibilities. In fact, "that it could not have been intended that the Constitution should embrace these people and this territory may be argued from the extreme danger of carrying the principle into operation. If we may extend our limits at all, without the consent of the people, further than what is expressed in the Constitution, who can tell where may be our ultimate bounds, or what number of States we may have in the Union? Purchase and conquest are objects of ambition. The great Napoleon may have more land to sell, and Spain may possess what she cannot retain. May we not in "time have the whole of South America, some of the West India Islands and perhaps Great Britain." "Then," Mr. Wheaton added pathetically, "what will become of the old United States?" He pictured the shifting of the center of political power to the new sovereignties that would be created by the success of the pending purpose, and held that the condition would then be, that, "instead of those new States being annexed to us, we shall be annexed to them, lose our independence and become altogether subject to their control."
The incorporation into our national life of territory that formed no part of our political being when "our independence and national existence was acknowledged by the nations of the world" might, through incitement to jealousy find its test in the arena of war, notwithstanding p338 the "pacific disposition of the people of the United States."
Other questions more local in their setting, such as the representation of the projected State in Congress, and the inopportuneness of the bill because of the unsettled question of West Florida were discussed by Mr. Wheaton.
Mr. Miller, of Tennessee, sympathized somewhat with those who were opposed to the bill because of the non-American character of the population of the proposed State, "for inasmuch as we know that if we send Paddy to Paris, that Paddy he will come back; the idea is certainly not unworthy of our consideration."
This speaker also objected to the bill because it included territory in dispute with Spain, and argued that if it were erected into a Stateº the power to negotiate that matter would be lost. Mr. Miller was further apprehensive that the proposed State would command the waterways to the Gulf of Mexico, and that the people of the Mississippi Territory and of Tennessee would be dependent upon Louisiana for communication with that body of water. He, therefore, proposed an amendment to the bill, the effect of which was to unite the territories of Orleans and Mississippi into one State, which would include all of the country belonging to the United States of America east of the Mississippi river and south of Tennessee. Size was the only objection which Mr. Miller could see to this proposed union of the two territories, because, "divide and subdivide this country as you will, their interests in a political point of view, will the same. Their representatives in this House will neither be increased nor diminished by a consolidation. In the Senate the plan proposed is greatly to the advantage of the old States. In that House, they will have but two Senators instead of four or six, according to the number of States that will be made."10
Mr. Rhea, of Tennessee, denied the constitutionality of the proposed amendment and contended that it was in direct conflict with the provisions of the Treaty of Cession. He also saw no reason for the proposed territorial combination in the argument brought forward by Mr. Miller, that a white population would be thereby secured that would render ineffectual any contemplated slave insurrection. Mr. Rhea entered solemn protest against the doctrine that no territory which was not a part of the original States be incorporated into co-ordinate statehood, in fact, he held such doctrine to be unconstitutional. The United States had the sovereign power to purchase adjacent territory, and the objection to its incorporation, p339 if ever valid, had become invalid because of the Treaty of 1803. The Territory of Orleans was not foreign territory; the population was not French population; the bill did not have as its object the transference "to foreigners what has been obtained by the blood of the old States [. . .] whatever the bill contemplated to give, it proposes to give to citizens of the United States."
Another argument against the Miller amendment was presented by Mr. Bibb, who held that such a combination of territory was a breach of contract with Georgia, since her consent was necessary to "any addition to or division of the Territory of Mississippi."
After further discussion for and against the proposed territorial aggrandizement the "amendment was not agreed to," at least, so runs the curt statement of the Annals of Congress.º
The next effort at adjustment was offered by Mr. Barry who would make the inclusion of West Florida within the confines of the new State more acceptable to those who considered it a point of strong opposition.
This objection Mr. Barry sought to meet by an amendment which would reserve to the United States the power to fix the bounds of the section in dispute and dispose of it in any manner that might be deemed proper.
Before the proposed solution of the difficulty could be tossed upon the winds of debate, it was withdrawn by its mover, in order, that Mr. Sheffey might offer a substitute for that part of the bill which named the boundaries of the proposed State of Louisiana.
This motion, agreed to by a vote of 63 ayes, — nays not recorded, was as follows: "All that territory now contained within the limits of the Territory of Orleans, except that part lying east of the river Iberville to a line to be drawn along the middle of the lakes Maurepas and Ponchartrainº to the ocean."11
No sooner had the question of the eastern boundary of the State to be, been removed from the field of controversy than Mr. Miller projected a suffrage restriction upon the proposed new member of the Union, which, in the light of subsequent events, seems like an index finger pointing sternly to the future. He proposed to amend the bill so as to restrict the right of suffrage to "white males."
One argument brought forward in support of this motion was that the large proportion of "mixed population" in the Territory of Orleans made it highly probable that a "person of color" might be elected to Congress. In that event, Mr. Miller would "feel no inclination to act" with the new member.
p340 Mr. Poindexter admitted that there was in the territory a goodly number of "wealthy and respectable people" of the class described by Mr. Miller.
No further debate is recorded upon this motion, which, though negatived, received an "aye" vote of 17. The Annals, however, fail to record either the number or the personnel of the negative vote.12
It was then ordered that the bill be engrossed in preparation for a third reading.
On Monday, January 14, 1811, the statehood bill of the Territory of Orleans was again before the assembled representatives of the States of the Union, and on its trip to "final passage," it was to meet the full force of legal inquiry, of constitutional probing and of bitter sectional opposition.
Mr. Pitkin, of Connecticut, called the attention of the House of Representatives to the undetermined condition of the western boundary of the Territory of Orleans, and of the necessity of keeping the right of definitive limitation in the hands of Congress, as a reservation in the proposed enabling bill.
Mr. Johnson, of Kentucky, took issue with those who held that any principle of the Constitution would be violated by the admission of the Territory as a State and scouted as "ideal" the fear of any international complication arising from disputed boundary questions. He cited instances of the adjustment of such troubles by negotiation and plead earnestly for the "claims of this Territory to State sovereignty."
Opposition to the admission of the Territory of Orleans into the Union as a State attained its climax in the speech of Josiah Quincy of Massachusetts. Henry Adams says that "Quincy's protest wanted only one quality to give it force." He spoke in "the name of no party to the original compact."13 The people of his own State did not second his strenuous effort to prevent what he termed a "death blow to the Constitution."
Mr. Quincy maintained that the details of the bill were of little moment, whereas the principles of the bill jeopardized the liberties and rights of the people of the United States.
Stripping the speech of much of its rhetoric, we find that Mr. Quincy hoped that the danger might be averted, although its imminence threatened, if it did not justify a revolution. He called the constitution a "political compact: from which the original parties would be released if the "assumed principle of the bill became a law." p341 The bill was an attack upon the fundamental intent and purpose of the Constitution. He claimed that the reliance of the advocates of the bill lay in the opening clause of Article IV, Section III of the Constitution;— "new States may be admitted by Congress into this Union." But, Mr. Quincy bounded "this Union" on the west by the Mississippi river, and on the south by the 31° of north , along that line to the Apalachicola, thence to its junction with the Flint, thence to the St. Marys and along that river to the sea. The people of Louisiana lay entirely without these lines, and therefore, could not have come within the intent of "We, the people" who formed "this Union."
If this newly proposed political unit became a fact, the question would eventually be whether, "The proprietors of the good old United States" should control, "or whether they and their Constitution and their political rights shall be trampled under foot by foreigners introduced through a breach of the Constitution."
The most famous outburst of Mr. Quincy on this occasion was his belief committed to writing, that, "If this bill passes, it is my deliberate opinion that it is virtually a dissolution of this Union; that it will free the States from their moral obligation, and, as it will be the right of all, so it will be the duty of some definitely to prepare for a separation, amicably if they can, violently if they must."
A call to order was entered by Mr. Poindexter and the Speaker decided, that the third clause of the declaration of Mr. Quincy "was contrary to the order of debate." Appeal was taken from the ruling of the chair and it was sustained by a vote of 53 ayes to 56 nays.
Mr. Quincy rejoiced at the above result, and explained his efforts against the bill as a purpose "to preserve, to guard the Constitution of my country that I denounce this attempt [. . .] I intended it as a voice of warning."
After denying any Constitutional bases on which the bill might be placed, Mr. Quincy denounced its justification under the treaty-making power as a "monstrous proposition."
"That a power under the Constitution should have the ability to change and annihilate the instrument from which it derives all its power, — and if the treaty-making power can introduce new partners to the political rights of the States, then there is no length, however extravagant, or inconsistent with the end to which it may be wrested."
Constitutional arguments exhausted, and moral and political consequences of the bill visualized, Mr. Quincy found rest in the confession that "the first public love of my heart is the Commonwealth p342 of Massachusetts" and that out of that love had grown his love for the Union. His opposition to the bill sprang not from animosity to those seeking the protection of his beloved Constitution, "but from the deep conviction that it contained a principle incompatible with the liberties and safety of my country."
In this belief this ardent defender of the "good old United States" moved an indefinite postponement of the bill.14
When the consideration of the bill was reopened on Thursday, January 15, the above motion was still before the House.
Mr. Poindexter opened the debate, and waiving for the nonce any reply to Mr. Quincy, turned his attention to the question of the western boundary of the proposed State. Notwithstanding the possibility of war with Spain growing out of an undue national claim of territory as feared by Mr. Pitkin,b Mr. Poindexter held that the matter might be safely left to negotiation, since "it belongs to the high contracting parties, to render that certain which by the deed of cession is equivocal, and whatever line they may consent to establish as the western extremity of the country ceded under the name of Louisiana will constitute the permanent limit of the State, whether it extends to the Rio Bravo, or the Sabine, or a meridian passing by Natchitoches."º In short, the matter would be adjusted according to the "practices of governments" which differed "in circumstances and not in nature."
The Annals relate that "twice successively" Mr. Poindexter was called to order during this speech, but that both calls were withdrawn before action could be taken upon them.
One of these calls, may have followed the bit of Congressional amenity that shot its shaft into the environs of the "hub" of the old Bay State.
The from Mississippi was seeking to prove the loyalty to the United States of the people of the Territory of Orleans, notwithstanding the charges against them of "French partiality." The existence of such a preference was admitted, but it could not be made, — the "basis on which to justify a refusal to emancipate the great body of the people from the trammels of territorial vassalage." And now for the shaft: "Is it a good reason why the people who reside within the circle of the Essex junto should not enjoy equal rights with the rest of their fellow citizens, that those who compose that association are avowedly the of England? I presume a proposition to trench upon their rights would be viewed with the utmost abhorrence and detestation, as an act of political intolerance, p343 unprecedented in the history of this government. And yet, sir, I venture to pronounce that these British attachments, fostered and cherished amidst the wrongs and insults which we have received from that nation, not only in this nursery of tory principles, but in most of the commercial cities of the United States, have already produced more mischief to this nation than the French influence existing in New Orleans could produce in half a century."15
Mr. Poindexter then considered some of the objections advanced against the bill by Mr. Quincy. The bill rested upon a sound Constitutional basis; the right of the United States to acquire property followed as an "indispensable attribute of sovereignty" from power confined by Article IV of the Constitution which gave Congress not only the right to possess territory, but to dispose of it and regulate it.
After further argument to prove that the United States was possessed of the right to obtain territory "either by war or compact," the question in logical sequence to that right, — whether such territory could be elevated into political sovereignty as a state, was considered. The Constitutional basis for such political enhancement of acquired territory was found in Article VI according to which, treaties duly made, "under the authority of the United States" became "ºthe supreme law of the land," and were as binding as an article of the Constitution itself.
In that view of the case, Article III of the treaty of Paris of April 30, 1803, empowered Congress to dispose of the territory acquired by that treaty, according to its stipulations.
Mr. Quincy had held that not by the "remotest" implication drawn from any clause of the Constitution could it be shown that the power to admit new States could be made inclusive of territory external to the original federal boundaries.
Political power, according to Mr. Quincy, was inherent in the thirteen "original partners" to the Constitution, but his opponent from Mississippi asserted that the source of political power was in the people; that it was not a "chartered privilege" or a "lenial or a purchased right."
This being the case, it followed that each State possessed power in direct proportion to its population and that, therefore, the center of power would shift as the center of population shifted.
The views of Mr. Quincy declared to be incompatible with "genius of a free government."
A second call to order may have been intended to intercept p344 some of the sharp sallies sent towards Mr. Quincy by his antagonist from the South. The threat of a dissolution of the Union, as hurled by Mr. Quincy was thus thrown back, "the people of the eastern States will never give their consent to a dissolution of the Union" since ties of nature and interest would serve as girths, and [. . .] "Surely there is patriotism enough even in the city of Boston to counteract the principles of that gentleman."
Mr. Gold of New York, who followed Mr. Poindexter, maintained that the principle advanced by that speaker, — that the Constitution afforded no limitation to the scope of the treaty-making power, "would subvert the very foundation of the Constitution"; in fact, it was a "principle of construction" against which he wished to enter "solemn protest."
Again, the admission of "external" territory to the statehood relation could never be "indifferent to the political interests of the old States, [. . .] whether this empire should be bounded by its existing limits, or by the shores of the Pacific ocean. Whether it should be a commonwealth of reasonable limits, adapted to a lax rule of a popular Constitution, or a government acquisition and conquest, whose ambition knew no limits, and in whose extension the original States would be lost."
After further debates, a vote was taken on the motion for indefinite postponement made by Mr. Quincy, and this effort to retard the purpose of the bill was lost by a mandate of 28 to 78.
The question of the passage of the bill was then presented and by a vote of 77 ayes to 36 nays, the House of Representatives sanctioned an Enabling Act for the Territory of Orleans.
Because of the many questions, — constitutional, sectional, social, — which were posed during the long debates, it may be interesting to analyze the vote on the bill.
Reduced to geographical sections the vote was as follows:
Of the Massachusetts delegation, six cast votes in favor of the bill to admit the "foreign" State, whereas but four representatives from that State were sufficiently in sympathy with Mr. Quincy to throw their ballots with his against this back door admission of a p345 State, through a "breach in the Constitution," into the full political rights of the "old United States."
Vermont gave one vote in favor of the bill, but not one "aye" was registered from Rhode Island, Connecticut or New Hampshire. Thus New England on a whole section, in so far as Congressional views registered in ballots express community opinion, sanctioned the exclusive, conservative, illiberal attitude of Josiah Quincy.
Of the middle group of States, — New York gave nine votes for the passage of the bill and four against it. Pennsylvania rolled up a fine record of thirteen ayes, with only three nays for the rejection of the bill. Maryland gave five in favor, and three against, whereas, Delaware cast her full strength, — one vote — into the effort to kill the Enabling Act.
The southern sweep of the "old thirteen" has a broad record. Virginia gave twelve votes in favor of the bill; North Carolina, nine; South Carolina, six; and Georgia three. Only five votes from this group were registered "nay," and of these, Virginia cast two and North Carolina three.
Out of the west came eight votes to extend to the people of the Territory of Orleans the rights of Statehood, and not one "nay" lessened the value of this effort. Of the eight votes cast, Kentucky cast four, Tennessee, three; while Ohio gave the force of her one vote.
The Enabling Act as passed by the House was presented to the Senate on Wednesday, January 16, 1811, and after the usual preliminary formalities, it was referred on January 18th to the following committee: Charles Tait of Georgia; Jas. A. Bayard of Delaware; Chauncy Goodrich of Connecticut; Henry Clay of Kentucky and Andrew Gregg of Pennsylvania.
The bill was reported from the committee on January 25th and interesting amendments were recommended.
One amendment which fixed definite boundaries to the future State, was as follows: "Beginning at the mouth of the river Sabine, thence by a line to be drawn along the middle of the said river, including all islands, to the thirty-second degree of ; thence due north, to the northernmost part of the thirty-third degree of north latitude; thence along the said parallel to the river Mississippi; thence down the said river to the southern boundary of the Mississippi Territory; thence along the said boundary line to the Pearl river; thence down the western bank of said river to lake Borgne; thence along the middle of said lake to the gulf of Mexico; thence p346 bounded by the said Gulf to the place of beginning — including all islands within •three leagues of the coast."16
The amendments to the bill were made the order of the day for January 28th and then on a motion of William H. of Georgia, sustained by a vote of 21 to 9 that portion of the above amendment which included West Florida to the Pearl river, within the confines of the future Louisiana, was stricken out.
Another recommendation of the committee was made in the form of an addition to the bill whereby it was to be enacted, "That ––––– per centum of the net proceeds of the sales of the lands of the United States shall be applied, after the ––––– day of ––––– to laying out and constructing public roads and levees in the said State, as the Legislature thereof may require."
This proposal so rich in political material for oratorical brilliance seems to have met with no attention, at least, so far as any recorded consideration goes, because no further reference is made to it during subsequent discussion of the bill. But, at least, the blanks in this recommendation of the Senate Committee must have been filled, and the amendment accepted, as section five of the approved bill fixes the "per centum" at five and the date for the beginning of the enforcement of the provision at January first.
On January 29th, while the Senate was sitting as a committee of the whole, on a motion by Senator Bayard, the provision in the first amendment, which reserved to the United States the power of changing the limits of the territory "east of the river Mississippi and the island of Orleans" was stricken out.
The committee, then, by a vote of 24 to 8 amended the bill by inserting the word "white" in section two, before the words "male citizens of the United States," and thus safe-guarded the electorate to choose the members of the first constitutional convention of Louisiana.
The bill was then reported by the Committee of the Whole, and on the same day, before the Senate in regular session, met a fresh effort to block its way to immediate availability.
Senator Dana, of Connecticut, proposed an amendment which would preclude the admission of the State under the pending bill, "unless each of the original States shall consent to the same, or there shall be a Constitutional amendment empowering the Congress to admit into the Union new States formed beyond the boundaries of the United States, as known and understood at the time of establishing the Constitution for the United States."
p347 On the following day, on motion of Henry Clay, the amendment of Senator Dana was divided and that portion requiring the consent of each "original" State to the admission of Louisiana was negatived by a vote of ayes 10, to nays 18.
The second division of this blocking motion met defeat in a vote of yeas 8, to nays 17.
Notwithstanding a motion by Senator Bayard that the bill be postponed to the first Monday of the next December, it was carried to passage on Thursday, February 7th by a vote of 22 to 10.
On Saturday, February 9th, the amended bill was considered by the House of Representatives.
The Senate amendment according to which the western boundary of the State to be was given a definite marking, received the unanimous consent of the House, notwithstanding the opinion that "the United States might have a claim of a greater extent, and had a color of title to the Rio Bravo." In fact, it was held that in fixing the western boundary at the Sabine, great moderation had been exercised and that assent to the bill was not "to be understood as surrendering any claim the United States might have to a greater extent."
The amendment of the Senate whereby "free colored people of mixed blood" were excluded from the electorate that would choose delegates to the State Constitutional Convention, met an objection from Mr. of Pennsylvania, who was of the opinion that this matter should be left to the people of the State; that the Convention of 1787, in meeting this question "had used only the word 'persons' ".
The short consideration of this amendment developed the fact that the majority of the House were in favor of leaving this matter to the Convention and the Legislature of the Territory and that opinion prevailed by a vote against the motion of yeas 49 to nays 60.
The long suffering bill in its newly altered condition was read to the Senate, and this body by a vote of yeas 11 to nays 19 refused to recede from its position in favor of a white initial electorate for the new State and a message was sent to the House insisting upon the acceptance of the rejected amendment.
The next day on a motion made by Mr. of Virginia, and on which the yeas and nays were demanded, the House by a vote of 69 to 45 agreed to accept the amendment of the Senate, thus confining the privilege of voting for members of the Convention to "free white males."
p348 On Wednesday, February 20, 1811, the Enabling Act was approved by President Madison.
By proclamation, on October 27, 1810, President Madison had taken possession of West Florida to the Perdido "ºin the name and behalf of the United States," and Governor W. C. C. Claiborne of the Orleans Territory was directed to extend over that district "the authorities and functions legally appertaining to his office."º17
But the territory authorized by the Enabling Act to take the steps precedent to Statehood, did not include by the provisions of that act, the district annexed to it by Presidential proclamation in 1810. The people of that district, therefore, could not be represented in the convention which was to be called under the provisions of the Act.
The Legislature of the Territory of Orleans promptly apportioned the members of Constitutional Convention, and the election therefore was held on Monday, September 3, 1811.
The Convention met on November 4, 1811, and Le Breton D'Orgenois was president of the temporary and Julien Poydras, president of the permanent organization.
On January 13, 1812, the preamble to the new constitution was passed to a third reading. The boundaries of the State of Louisiana as given in this prelude of that document do not include the section known as West Florida.
An attempt had been made to include that district, "or any part thereof, as soon as the title to the same may be adjusted and it may be convenient to the government of the United States to annex it."
This motion was lost on January 13, but on the 23rd of the same month a motion was made to adopt a memorial which had been presented asking that West Florida be annexed to the State to be erected and by a vote of 25 to 12 this motion was decided in the affirmative.
The Constitutional Convention adjourned on January 28, 1812.
On Wednesday, March 4, 1812, President Madison transmitted to the Senate and the House of Representatives the proceedings of the convention.
In the House on March 5th, Mr. Dawson of Virginia moved that the Constitution of Louisiana be referred to a select committee.
Mr. Poindexter pointed out that one provision of the Enabling Act had not been complied with. No separate instrument recognizing the Federal Constitution, as required by the Act, had been forwarded, although such recognition was embodied in the newly p349 framed documents. He, therefore, moved that the select committee consider the question of repealing the section of the Enabling Act which required said separate formality.
Mr. Dawson accepted this adjustment as a part of his motion and the new Constitution was then referred to a Committee under his chairmanship.
On Monday, March 16, 1812, the "bill for the admission of the State of Louisiana into the union, and to extend the laws of the United States to the said State," was reported by the committee; it was read twice and referred to a committee of the whole.
One of the most interesting sections of the long and intricate discussions over the question of the admission of this new and "alien" State to the society of the "old United States of America" is to be found in the debates over the adjustment of the West Florida controversy.
As we have noted the constitution of the new State did not include West Florida, the district which had been declared to be under the possession and administrative disposal of the United States by the Presidential proclamation of 1810, and now Congress must take cognizance of the situation.
The bill for the admission of the Territory of Mississippi was pending at this period and therefore, Mr. Poindexter considered it the proper time to settle the controverted boundary question. He proposed an amendment, the substance of which was, that as soon as the consent of the Legislature of the new State could be obtained, that West Florida to the Pearl River be made a part of the State of Louisiana, to be governed by the laws thereof. "Provided nevertheless," so reads the concluding clause of the proposed amendment, "That the title of the United States to said tract of country shall be and remain subject to future negotiation."18
Mr. Dawson was of the opinion that a separate law should provide for the annexation of the section in dispute, to the new State, but Mr. Clay, then Speaker of the House, maintained that the definite limits of the new member of the union should be incorporated in one bill, — "or would it be better to subject inquirers to the necessity of wading through two or three acts to find out the boundary of a single State."
A motion embodying the views of the Speaker was agreed to by a vote of 47 to 25.
One bit of reflex from an old annoying international question was an amendment proposed by Henry Clay, the "Harry of the West," requiring the recognition by the Legislature of the state of Louisiana, p350 of "the freedom of navigation of the Mississippi." This finale to an old source of trouble was adopted without division.
One question now posed was a logical result of the annexation amendment. Mr. Johnson agreed that the people of West Florida thus proposed to be annexed by bill to Louisiana, were without representation in the councils of the State and were, therefore, denied an opportunity to have a voice in the framing of the laws by which they were to be governed. He, therefore, moved an amendment to this much amended bill, "To divide the territory to be annexed to Louisiana into two counties to be called Feliciana and Baton Rouge, each to send one Senator and one Representative" to the Legislature of Louisiana.
The point was made by Mr. Poindexter that according to the accepted amendment the annexation of West Florida was conditional upon the consent of the Legislature of the new State, and therefore, Congress could not grant to the people of that district, representation in the law-making body of a State of which they were not a part.
On March 19, Mr. Johnson again spoke for his amendment using as an argument in its favor a memorial then in possession of the House stating the consent of the Convention of Orleans to the annexation of West Florida.
Mr. Calhoun argued that the proposed amendment presented a principle of representation which conflicted with that adopted by the convention of Orleans. Furthermore, it added another condition to the bill which had authorized the people of the territory to form a Constitution and a State government and had added it after the adjournment of the convention which had accepted the conditions of the original bill. According to the member from South Carolina, "the proposed amendment would be engrafting the principle of territorial government on a State government to which it is wholly inapplicable; it was, in fact, assuming to make a constitution for a people of a State, whose inalienable right it was to form a constitution for themselves."19
Mr. Nelson of maintained the constitutionality of the proposed amendment and held that as Louisiana was not yet a State, Congress was competent to add to the conditions under which Statehood was to be attained.
Mr. Gholson of Virginia said that according to the constitution adopted by the Convention of Orleans, the Senate of Louisiana was p351 to consist of fourteen members and that the amendment proposed to add two more, "in defiance of the constitution."
Mr. Johnson's amendment was then put to the House and was lost by the close vote of 39 to 37.
As soon as this result was announced, Mr. Gholson presented another amendment, which provided, — "That the people of that portion of West Florida, hereby proposed to be made a part of the State of Louisiana, shall, before the election of Senators and a Representative to the Congress of the United States, be invested with, and enjoy equal rights of representation and equal privileges in every respect, with the people of the residue of the said State."
This amendment was offered as being a condition post-added to those enumerated in the original bill, the terms of which had been accepted by the Convention.
Mr. Clay argued in favor of the amendment and showed that the Convention itself, had attached a "proposition" to their acceptance of the bill and that was the incorporation of the West Florida district. Therefore, Congress could accept or reject that condition and might do so "with or without qualification." Congress had, in fact, given, under certain conditions, a part of the territory, and now but sought to safe-guard the rights of the people in the alienated district, leaving to the Legislature of the new State the power to decide "how those rights shall be invested."
The amendment was agreed to by the committee of the whole, which arose and reported the bill to the House.
On Friday, March 20, 1812, the House of Representatives passed the bill for the admission of Louisiana into the Union and "to extend the laws of the United States thereto." The vote was 79 to 23.
The Senate, on April 2, notified the House that the bill, with some amendments, had been passed.
The House on April 6, proceeded to consider the several amendments of the Senate and decided to accept all of them. The Senate had rejected the annexation of West Florida to the State of Louisiana and in this rejection the House concurred.
In this final condition the bill was passed by the House on April 6, 1812, and to it President Madison affixed his signature on April 8, 1812.
An interesting phase of the history of the admission of Louisiana into the Union is found in the fact, that although on Wednesday, April 1, 1812, the Senate of the United States passed the bill to admit the State minus the West Florida section, there was then pending p352 before that body a bill to enlarge the confines of the new State so as to include the rejected district.
The people of the territory between the Pearl river and the Mississippi, had petitioned for annexation to the new State.
Senator Bayard on March 24, 1812, moved that the petition be referred to the same committee which was to consider the bill for the admission of Louisiana. This motion prevailed and the committee was instructed "to report by bill or otherwise."
On Friday, March 27, a "bill to enlarge the limits of Louisiana" was reported, read and passed to a second reading.
The third reading of the bill was on April 1st, but no amendment was presented and on Wednesday, Aprilº 8th, the day of the signing of the Statehood bill, the act for the enlargement of Louisiana was passed by a vote of 21 to 5.
The House of Representatives received the notice of the passage of the above bill on Thursday, April 9. It was read twice on that day and ordered to a third reading. This bill was passed on April 10, and was approved by the President on April 14, 1812.
According to the terms of this bill, the annexation of West Florida, between the Pearl River and the Mississippi, to the State of Louisiana was dependent upon the consent of the Legislature of that State.
In case that consent was granted, the bill required that the Legislature provide, at its first session, for the representation of the people of the accepted district and also to secure to them all rights and privileges enjoyed by other citizens of the State. The law enacted under this requirement was to be subject to revision by Congress.20
On the fourth day of August, 1812, the Legislature of Orleans Territory accepted the terms of the bill of admission, and the State of Louisiana, once an alien land, once a part of that greater Louisiana which had served as a royal foot-ball for Spain and France, became in full panoply of extent, a co‑ordinate unit in the "new" United States envisaged by Henry Clay,21 entered the society of the "good old United States," — and over it stretches, still intact, the Constitution of the original Federal Union."º
1 MacDonald Select Documents of U. S. History, 1776‑1861, p160.
2 Annals of Congress, 8th Congress, 1st session, p1199.
3 Annals of Congress, 8th Congress, 1st session, Appendix 1293.
4 History of Louisiana, Gayarre, Vol. IV, p211.
5 Annals of Congress, 11th Congress, session 1, p596.
7 Annals of Congress, 11th Congress, 3rd session, p413.
8 Annals of Congress, 11th Congress, 3rd session, pp482‑485.
9 Ibid., p486.
10 Annals of Congress, 11th Congress, 3rd session, pp495‑497.
11 Annals of Congress, 11th Congress, 3rd session, .
12 Ibid., p513.
13 History of U. S., Henry Adams, Vol. V, p325.
14 Annals of Congress, 11th Congress, 3rd session, pp523‑542.
15 Ibid. p558.
16 Annals of Congress, 11th Congress, 3rd session, p104.
17 Messages and Papers of the Presidents, Richardson, Vol. I, p480.
18 Annals of Congress, 12th Congress, session 2, p1217.
19 Annals of Congress, 12th Congress, Part 2, p1225.
20 Annals of Congress, 12th Congress, Part 2, Appendix p2972.
21 Life and Speeches of Clay, Mallory, Vol. I, p209.
a The spelling given in the printed text here is Shaffey, which I've corrected to the proper spelling given later on p339. At any rate, the man was Daniel Sheffey (1770‑1830), a Federalist who served four terms in the House, in Congresses 11 thru 14.
b The spelling given in the printed text here is Pilkin, which I've corrected to the proper spelling given earlier on p340. The man was Timothy Pitkin (1766‑1847), a Federalist who served seven terms in the House, in Congresses 9 thru 15. Congressman Pitkin seems to have specialized in this kind of caution in the admission of new States; see for example in the case of Illinois seven years later.
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