DECEMBER, 1810. Occupation of West Florida. SENATE. laid off, and the seat of the Government of Louisi-cording to this document, in describing the proana was established there. In 1736, the French erected a fort on Tombigbee. These facts prove that France had the actual possession of the country as far east as the Mobile at least. But the great instrument which ascertains, beyond all doubt, that the country in question is comprehended within the limits of Louisiana, is one of the most authentic and solemn character which the archives of the nation can furnish. I mean the patent granted in 1712, by Louis XIV. to Crozat. [Here Mr. C. read such parts of the patent as were applicable to the subject.*] Ac *Extract from the Grant to Crozat, dated at Fontainbleau, September 14, 1712. "LOUIS, BY THE GRACE OF GOD, &c. vince or colony of Louisiana, it is declared to be bounded by Carolina on the east and Old and New Mexico on the west. Under this high record evidence, it might be insisted that we have a fair claim to East as well as West Florida, against France at least, unless she has by some convention or other obligatory act, restricted the eastern limit of the province. It has, indeed, been asserted that by a treaty between France and Spain, concluded in the year 1719, the Perdido was expressly stipulated to be the boundary between their respective provinces of Florida on the east and Louisiana on the west; but as I have been unable to find any such treaty, I am induced to doubt its existence. About the same period, to wit, towards the "The care we have always had to procure the wel- seventeenth century, when France settled the fare and advantage of our subjects, having induced us, isle Dauphine and the Mobile, Spain erected a &c. to seek for all possible opportunities of enlarging fort at Pensacola. But Spain never pushed her and extending the trade of our American colonies, we actual settlements or conquests further west did in the year 1683 give our orders to undertake a than the bay of Pensacola, whilst those of the discovery of the countries and lands which are situated French were bounded on the east by the Mobile. in the northern part of America, between New France Between those two points, a space of about thirand New Mexico; and the Sieur de la Salle, to whom we committed that enterprise, having had success teen or fourteen leagues, neither nation had the enough to confirm a belief that a communication exclusive possession. The Rio Perdido, forming might be settled from New France to the Gulf of the bay of the same name, discharges itself into Mexico by means of large rivers; this obliged us, im- the Gulf of Mexico between the Mobile and mediately after the peace of Ryswick, to give orders for Pensacola, and, being a natural and the most establishing a colony there and maintaining a garrison, notorious object between them, presented itself which has kept and preserved the possession we had as a suitable boundary between the possessions of taken in the very year, 1683, of the lands, coasts and the two nations. It accordingly appears very islands which are situated in the Gulf of Mexico, be- early to have been adopted as the boundary, by tween Carolina on the east and Old and New Mexico tacit if not express consent. The ancient charts on the west. But a new war having broke out shortly and historians, therefore, of the country so repafter, there was no possibility, till now, of reaping resent it. Dupratz, one of the most accurate from that colony the advantages that might have been historians in point of fact and detail of the time, expected from thence, &c. And whereas, upon the whose work was published as early as 1758, deinformation we have received concerning the disposi- scribes the coast as being bounded on the east tion and situation of the said countries, known at pres- by the Rio Perdido. In truth, sir, no European ent by the name of the Province of Louisiana, we are nation whatever, except France, ever occupied of opinion, that there may be established therein a considerable commerce, &c., we have resolved to grant any portion of West Florida, prior to her cession the commerce of the country of Louisiana to the Sieur of it to England in 1762. The gentlemen on Anthony Crozat, &c. For these reasons, &c., we by the other side do not indeed strongly controvert, these presents, signed by our hand, have appointed if they do not expressly admit, that Louisiana, and do appoint the said Sieur Crozat to carry on a as held by France anterior to her cession of it trade in all the lands possessed by us, and bounded by in 1762, reached to the Perdido. The only obNew Mexico and by the lands of the English of Caro-servation made by the gentleman from Delaware lina, all the establishments, ports, havens, rivers, and principally the port and haven of the Isle Dauphine, heretofore called Massacre; the river of St. Louis, heretofore called Mississippi, from the edge of the sea as far as the Illinois, together with the river St. Philip, heretofore called the Missouri, and of St. Jerome, heretofore called Ouabache, with all the countries, territories, and lakes within land, and the rivers which fall directly or indirectly into that part of the river St. "The articles. 1. Our pleasure is, that all the afore-ferred to her with the portion of the province said lands, countries, streams, rivers, and islands, be and remain comprised under the name of the Government of Louisiana, which shall be dependant upon the General Government of New France, to which it is subordinate; and further, that all the lands which we possess from the Illinois be united, &c. to the General Government of New France, and become part thereof, &c." Louis. to the contrary, to wit, that the island of New Orleans being particularly mentioned could not for that reason constitute a part of Louisiana, is susceptible of a very satisfactory answer. That island was excepted out of the grant to England, and was the only part of the province east of the river that was so excepted. It formed in itself one of the most prominent and important objects of the cession to Spain originally, and was trans west of the Mississippi. It might with equal propriety be urged that St. Augustine is not in East Florida, because St. Augustine is expressly mentioned by Spain in her cession of that province to England. From this view of the subject I think it results that the province of Louisiana comprised West Florida, previous to the year 1762. SENATE. Occupation of West Florida. What is done with it at this epoch? By a secret convention of the 3d of November of that year, France ceded the country lying west of the Mississippi, and the island of New Orleans to Spain; and by a contemporaneous act, the articles preliminary to the definitive Treaty of 1763, she transferred West Florida to England. Thus at the same instant of time she alienated the whole province. DECEMBER, 1810. reasonable in themselves, to establish our title. A competent knowledge of the facts, connected with the case, and a candid appeal to the treaties, are alone sufficient to manifest our right. The negotiators of the Treaty of 1803 having signed with the same ceremony two copies, one in the English and the other in the French language, it has been contended, that in the English version the term 'cede' has been erroneously used instead Posterior to this grant, Great Britain, having of 'retrocede,' which is the expression in the also acquired from Spain her possessions east of French copy. And it is argued that we are the Mississippi, erected the country into two bound by the phraseology of the French copy; provinces, East and West Florida. In this state because, it is declared that the treaty was agreed of things it continued until the peace of 1783, to in that language. It would not be very unfair when Great Britain, in consequence of the events to inquire if this is not like the common case, in of the war, surrendered the country to Spain, private life, where individuals enter into a conwho for the first time came into the actual pos- tract, of which each party retains a copy, duly session of West Florida. Well, sir, how does executed. In such case neither has the prefershe dispose of it? She reannexes it to the resi-ence. We might as well say to France we will due of Louisiana; extends the jurisdiction of that Government to it, and subjects the governors or commandants of the districts of Baton Rouge, Feliciana, Mobile, and Pensacola, to the authority of the Governor of Louisiana, residing at New Orleans; whereas the Governor of East Florida is placed wholly without his control, and is made amenable directly to the Governor of the Havana. And I have been credibly informed that all the concessions or grants of land, made in West Florida, under the authority of Spain, run in the name of the government of Louisiana. You cannot have forgotten that about the period when we took possession of New Orleans, under the Treaty of Cession from France, the whole country rung with the nefarious speculations which were alleged to be practising in that city, with the connivance, if not actual participation of the Spanish authorities, by the procurement of surreptitious grants of land, particularly in the district of Feliciana. West Florida, then, not only as France has held it, but as it was in the hands of Spain, made a part of the province of Louisiana, as much so as the jurisdiction or district of Baton Rouge constituted a part of West Florida. What, then, is the true construction of the Treaties of St. Ildefonso and of April, 1803, from whence our title is derived? If an ambiguity exist in a grant, the interpretation most favorable to the grantee is to be preferred. It was the duty of the grantor to have expressed himself in plain and intelligible terms. This is the doctrine not of Coke only, (whose dicta I admit have nothing to do with the question,) but of the code of universal law. The doctrine is entitled to augmented force when a clause only of the instrument is exhibited, in which clause the ambiguity lurks, and the residue of the instrument is kept back by the grantor. The entire convention of 1762, by which France transferred Louisiana to Spain, is concealed, and the whole of the Treaty of St. Ildefonso, except a solitary clause. We are thus deprived of the aid which a full view of both of those instruments would afford. But we have no occasion to resort to any rules of construction, however cling by the English copy, as she could insist upon an adherence to the French copy; and if she urged ignorance on the part of Mr. Marbois, her negotiator, of our language, we might, with equal propriety, plead ignorance on the part of our negotiators of her language. As this, however, is a disputable point, I do not avail myself of it; gentlemen shall have the full benefit of the expressions in the French copy. According to this, then, in reciting the Treaty of St. Ildefonso, it is declared by Spain in 1800, that she retrocedes to France the colony or province of Louisiana, with the same extent that it then had in the hands of Spain, and that it had when France possessed it, and such as it should be after the treaties subsequently entered into between Spain and other States. This latter member of the description has been sufficiently explained by my colleague. It is said that since France in 1762 ceded to Spain only Louisiana west of the Mississippi, and the island of New Orleans, the retrocession comprehended no more-that the retrocession ex vi termini was commensurate with and limited by the direct cession from France to Spain. If this were true, then the description, such as Spain held it, that is in 1800, comprising West Florida, and such as France possessed it, that is in 1762, prior to the several cessions, comprising also West Florida, would be totally inoperative. But the definition of the term retrocession, contended for by the other side, is denied. It does not exclude the instrumentality of a third party. It means restoration or reconveyance of the thing originally ceded, and so the gentleman from Delaware acknowledged. I admit that the thing restored must have come to the restoring party from the party to whom it is retroceded, whether directly or indirectly is wholly immaterial. In its passage it may have come through a dozen hands. The retroceding party must claim under and in virtue of the right originally possessed by the party to whom the retrocession takes place. Allow me to put a case: You own an estate called Louisiana. You convey one moiety of it to the gentleman from Delaware, and the other to me; he conveys his moiety to me, and I thus A a T become entitled to the whole. By a suitable instrument I reconvey or retrocede the estate called Louisiana to you as I now hold it, and as you held it; what passes to you? The whole estate or my moiety only? Let me indulge another supposition: that the gentleman from Delaware, after he received from you his moiety, had bestowed a new denomination upon it, and called it West Florida, would that circumstance vary the operation of my act of retrocession to you? The case supposed is in truth the real one between the United States and Spain. France in 1762 transfers Louisiana west of the Mississippi to Spain, and at the same time conveys the eastern portion of it, exclusive of New Orleans, to Great Britain. Twenty one years after, that is in 1783, Great Britain cedes her part to Spain, who thus becomes possessed of the entire province; one portion by direct cession from France, and the residue by indirect cession. Spain then held the whole of Louisiana under France, and in virtue of the title of France. The whole moved or passed from France to her. When, therefore, in this state of things, she says, in the Treaty of St. Ildefonso, that she retrocedes the province to France, can a doubt exist that she parts with, and gives back to France, the entire colony? To preclude the possibility of such a doubt, she adds, that she restores it, not in a mutilated condition, but in that precise condition in which France had, and she herself possessed it. Having thus shown, as I conceive, a clear right in the United States to West Florida, I proceed to inquire if the proclamation of the President directing the occupation of property, which is thus fairly acquired by solemn treaty, be an unauthorized measure of war and of legislation, as has been contended. SENATE. Executive, and they vest in this branch of the Government indisputably a power to take possession of the country, whenever it might be proper in his discretion. The President has not, therefore, violated the Constitution, and usurped the war-making power, but he would have violated that provision which requires him to see that the laws are faithfully executed, if he had longer forborne to act. It is urged that he has assumed powers belonging to Congress in undertaking to annex the portion of West Florida between the Mississippi and the Perdido to the Orleans Territory. But Congress, as has been shown, has already made this annexation the limits of the Orleans Territory, as prescribed by Congress, comprehending the country in question. The President, by his proclamation, has not made law, but has merely declared to the people of West Florida what the law is. This is the office of a proclamation, and it was highly proper that the people of that Territory should be thus notified. By the act of occupying the country, the Government de facto, whether of Spain, or the revolutionists, ceased to exist; and the laws of the Orleans Territory, applicable to the country, by operation and force of law, attached to it. But this was a state of things which the people might not know, and every dictate of justice and humanity required, therefore, should be proclaimed. I consider the bill before us merely in the light of a declaratory law. Never could a more propitious moment present itself for the exercise of the discretionary power placed in the President of the United States, and, had he failed to embrace it, he would have been criminally inattentive to the dearest interests of this country. It cannot be too often repeated, that if Cuba on the one hand, and FlorThe act of October, 1803, contains two sec-ida on the other, are in the possession of a foreign tions, by one of which the President is authorized to occupy the territories ceded to us by France in the April preceding. The other empowers the. President to establish a provisional government there. The first section is unlimited in its duration; the other is restricted to the expiration of the then session of Congress. The act, therefore, of March, 1804, declaring that the previous act of October should continue in force until the first of October, 1804, is applicable to the second and not the first section, and was intended to continue the provisional government of the President. By the act of the 24th of February, 1804, for laying duties on goods imported into the ceded territories, the President is empowered, whenever he deems it expedient, to erect the bay and river Mobile, &c., into a separate district, and to establish therein a port of entry and delivery. By this same act the Orleans Territory is laid off, and its boundaries are so defined as to comprehend West Florida. By other acts the President is authorized to remove by force, under certain circumstances, persons settling or taking possession of lands ceded to the United States. These laws furnish a legislative construction of the treaty, correspondent with that given by the maritime Power, the immense country belonging to the United States, watered by streams discharging themselves into the Gulf of Mexicothat is, one-third, nay more than two-thirds of the United States, comprehending Louisiana, is placed at the mercy of that Power. The possession of Florida is a guarantee absolutely necessary to the enjoyment of the navigation of those streams. The gentleman from Delaware anticipates the most direful consequences from the occupation of the country. He supposes a sally from a Spanish garrison upon the American forces, and asks what is to be done? We attempt a peaceful possession of the country, to which we are fairly entitled. If the wrongful occupants under the authority of Spain assail our troops, I trust they will retrieve the lost honor of the nation in the case of the Chesapeake. Suppose an attack upon any portion of the American Army within the acknowledged limits of the United States by a Spanish force? In such event there would exist but a single honorable and manly course. The gentleman conceives it ungenerous that we should at this moment, when Spain is encompassed and pressed on all sides by the immense power of her enemy, occupy West Florida. Shall we sit by, passive spectators, and witness the interesting transactions in that country-transactions which tend to jeopardize, in the most imminent degree, our rights, without interference? Are you prepared to see a foreign Power seize what belongs to us? I have heard in the most credible manner that, about the period when the President took his measures in relation to that country, the agents of a foreign Power were intriguing with the people there, to induce them to come under his dominion. Whether this be the fact or not, it cannot be doubted, that if you neglect the present auspicious moment if you reject the proffered boon, some other nation, profiting by your errors, will seize the occasion to get a fatal footing in your southern frontier. I have no hesitation in saying, that if a parent country will not or cannot maintain its authority in a colony adjacent to us, and there exists in it a state of misrule and disorder, menacing our peace, and it moreover such colony, by passing into the hands of any other Power, would become dangerous to the integrity of the Union, and manifestly tend to the subversion of our laws; we have a right, upon eternal principles of selfpreservation, to lay hold of it. This principle alone, independent of any title, would warrant our occupation of West Florida, But it is not necessary to resort to it, our title being in my judgment incontestably good. We are told of the vengeance of resuscitated Spain. If Spain, under any modification of her Government, chose to make war upon us, for the act under consideration, the nation, I have no doubt, will be willing to meet the war. But the gentleman reminds us that Great Britain, the ally of Spain, may be obliged by her connexion with Spain to take part with her against us, and to consider this measure of the President as justifying an appeal to arms. DECEMBER, 1810. and now take occasion again to remark, that I most sincerely desire peace and amity with England; that I even prefer an adjustment of all differences with her before one with any other nation. But if she persist in a denial of justice to us, or if she avails herself of the occupation of West Florida to commence war upon us, I trust and hope that all hearts will unite in a bold and vigorous vindication of our rights. I do not, however, believe in the prediction that war will be the effect of the measure in question. It is asked, why, some years ago, when the interruption of the right of depot took place at New Orleans, the Government did not declare war against Spain, and how it has happened that there has been this long acquiescence in the Spanish possession of West Florida? The answer is obvious. It consists in the genius of the nation, which is prone to peace; in that desire to arrange, by friendly negotiation, our disputes with all nations, which has constantly influenced the present and preceding Administrations; and in the jealousy of armies, with which we have been inspired by the melancholy experience of free States. But a new state of things has arisen. Negotiation has become hopeless. The Power with whom it was to be conducted, if not annihilated, is in a situation that precludes it; and the subject-matter of it is in danger of being snatched forever from our power. Longer delay would be construed into a dereliction of our right, and amount to treachery to ourselves: May I ask, in my turn, why certain gentlemen, now so fearful of war, were so urgent for it with Spain when she withheld the right of deposite? and still later, when in 1805 or 6, this very subject of the actual limits of Louisiana was before Congress? I will not say, because I do not know that I am authorized to say, that the motive is to be found in the change of relation between Spain and other European Powers since those periods. we had no pretensions to that island; that it did not menace our repose, nor did the safety of the United States require that they should occupy it. It became, therefore, our duty to attend to the just remonstrance of France against American citizens, supplying the rebels with the means of resisting her power. Sir, said Mr. CLAY, is the time never to arrive when we may manage our affairs without the fear of insulting His Britannic Majesty? Is the Does the honorable gentleman from Delaware rod of British power to be forever suspended over really believe that he finds in St. Domingo a case our heads? Does Congress put on an embargo parallel with that of West Florida? and that our to shelter our rightful commerce against the pi- Government having interdicted an illicit comratical depredations committed upon it on the merce with the former, ought not to have interocean? We are immediately warned of the in- posed in relation to the latter? It is scarcely nedignation of offended England. Is a law of non-cessary to consume your time by remarking that intercourse proposed? The whole navy of the haughty mistress of the seas is made to thunder in our ears. Does the President refuse to continue a correspondence with a Minister who violates the decorum belonging to his diplomatic character, by giving and deliberately repeating an affront to the whole nation? We are instantly menaced with the chastisement which English pride will not fail to inflict. Whether we assert our rights by sea or attempt their maintenance by land-whithersoever we turn ourselves, this phantom incessantly pursues us. Already has it had too much influence on the councils of the nation. It contributed to the repeal of the embargo-that dishonorable repeal, which has so much tarnished the character of our Government. Mr. President. I have before said on this floor, I am not, sir, in favor of cherishing the passion of conquest. But I must be permitted to conclude by declaring my hope to see, ere long, the new United States (if you will allow me the expression) embracing not only the old thirteen States, but the entire country east of the Mississippi, including East Florida, and some of the territories to the north of us also. When Mr. CLAY had concluded, the Senate adjourned. 65 JANUARY, 1811. Occupation of West Florida. MONDAY, December 31. JOHN TAYLOR, appointed a Senator by the Legislature of the State of South Carolina, in place of Thomas Sumter, resigned, produced his credentials, which were read; and the oath prescribed by law having been administered to him, he took his seat in the Senate. Mr. FRANKLIN, from the committee to whom was referred the bill, entitled "An act making an additional appropriation to supply the deficiency in the appropriation for the relief and protection of distressed American seamen during the year 1810," reported it without amendment. SENATE. cause, by a publication of it at the time, injury might have been done to our Ministers or our affairs abroad. There was, however, now no reason why the whole truth should not be known. They were about taking a step which was one of peace or war, and it was important that everything in relation to the subject should be disclosed. Mr. SMITH said that whenever papers were communicated to the Senate confidentially, before they could be read publicly in this body or any other, it was necessary that the permission of the Senate should be obtained; which no doubt if Mr. BRADLEY, from the committee to whom asked in this case would have been granted. But was referred the bill, entitled "An act to fix the if this proceeding were permitted to pass unnocompensation of the additional Assistant Post-ticed, any individual might have the power to do master General," reported the bill with an amend-the greatest injury to the nation, as his humor ment; which was read. might move him. He apprehended the proceedparting was wrong; but gentlemen older in the Senate than he was could perhaps better decide. The bill authorizing a subscription on the of the United States to the stock of the Ohio Canal Company was read the second time. The bill to incorporate the subscribers to the Farmers' Bank of Alexandria was read the second time. The bill for the establishment of a quartermaster's department was read the second time, referred to a select committee, to consider and report thereon; and Messrs. LEIB, FRANKLIN, and PICKERING, were appointed the committee. A message from the House of Representatives informed the Senate that the House have passed a bill, entitled "An act providing for the final adjustment of claims to lands, and for the sale of the public lands in the Territories of Orleans and Louisiana;" in which they desire the concurrence of the Senate. OCCUPATION OF WEST FLORIDA. Mr. PICKERING commenced a speech, in which he proceeded about an hour; when he read, as an evidence in support of his argument against the title of the United States to Louisiana or Florida between the Mississippi and Perdido, a letter from Charles Maurice Talleyrand, the French Minister for Foreign Affairs, dated 21st December, 1804, to General Armstrong, our Minister at Paris, on the subject of certain overtures which had been made by our Ministers in Spain for the aid of France in procuring a cession to the United States of one or both Floridas. The purport of Talleyrand's letter appeared to be a denial that the United States had acquired, by the treaty of 1803, any title to Louisiana east of the Mississippi, or some statement to that effect. When Mr. P. had concluded the reading of this letter Mr. SMITH, of Maryland, said he wished to inquire whether the paper, which the gentleman had just read, had ever been publicly communicated to the Senate. On the suggestion of a member, the galleries were cleared. The Senate sat with closed doors for an hour. When they were again opened, on motion of Mr. ANDERSON, the further consideration of the bill last mentioned was postponed. Mr. CLAY submitted the following resolution, which lies on the table of course: Resolved, That the public perusal in the Senate of certain papers with open galleries by the gentleman from Massachusetts, (Mr. PICKERING,) in his seat, without a special order of the Senate removing the injunction of secrecy, which papers had been confidentially communicated to the Senate by the President of the United States, was a palpable violation of the rules of this body. The Senate then adjourned to Wednesday. WEDNESDAY, January 2, 1811. ANDREW GREGG, from the State of Pennsylvania, took his seat in the Senate. The PRESIDENT laid before the Senate the re port of the Secretary of the Treasury, made in conformity with the acts of March 26, 1804, and March 3, 1805, of rejected claims made by the Commissioners appointed for the purpose of examining the claims of persons claiming lands in the district of Kaskaskia; and the report was read, and ordered to lie for consideration. On motion, by Mr. LLOYD, it was agreed to suspend the order of the day for the purpose of considering the bill, entitled "An act making an additional appropriation to supply the deficiency in the appropriation for the relief and protection of distressed American seamen during the year 1810;" and the bill was read and considered as in Committee of the Whole, and passed to the third reading. Mr. DANA asked and obtained leave to bring in a bill for the benefit of seamen of the United States; which was read, and passed to the second reading. The PRESIDENT communicated the report of Mr. PICKERING said it had been communicated, the Secretary for the Department of War, made in obedience to the first section of the act "furnot indeed as a public paper, but for what reason had it been communicated confidentially? Be-ther to amend the several acts for the establish 11th CoN. 3d SESS.-3 |