ON THE LINE OF THE PERDIDO.
IN THE SENATE OF THE UNITED STATES, DECEMBER 25, 1810.
[THE Perdido is the name of a river and bay, which form the boundary line between the present state of Alabama and Florida. It will be recollected, that Florida was a Spanish colony, previous to its cession to the United States by Spain, in 1819. It was discovered by Juan Ponce de Leon, a Spanish navigator, in 1512, and by him it was called Florida. The French made an attempt to colonize the territory in 1562, but their settlement was broken up by the Spaniards, who founded, in 1565, the city of St. Augustine, in East Florida. Pensacola, in West Florida, was founded in 1699. Though often invaded by the French and English, Florida remained part of Spanish America until 1763, when it was ceded to Great Britain: but, by the definitive treaty of 1783, it was receded by Great Britain to Spain. When Florida was a colony of Spain, and Louisiana of France, or from 1699 to 1763, the Perdido river was a common boundary, but, by the treaty of 1763, Louisiana having been ceded by France to Spain, the Spaniards in 1769, for their own convenience, incorporated that part of Louisiana, between the Mississippi and Perdido rivers, with Florida. This act caused a controversy between Spain and the United States; the latter having purchased Louisiana of France, in 1803, to which power it had been ceded by Spain, in 1800. President Madison, in 1810, took possession of the territory in dispute, for which act he was assailed by the opposition members in the senate, particularly by Mr. Horsey, of Delaware; to whom Mr. Clay replied, in defence of the administration, as follows.]
MR. PRESIDENT,
IT would have gratified me if some other gentleman had undertaken to reply to the ingenious argument, which you have just heard. (Speech of Mr. Horsey.) But not perceiving any one disposed to do so, a sense of duty obliges me, though very unwell, to claim your indulgence, whilst I offer my sentiments on this subject, so interesting to the union at large, but especially to the western portion of it. Allow me, sir, to express my admiration at the more than Aristidean justice, which, in a question of territorial title between the United States and a foreign nation, induces certain gentlemen to espouse the pretensions of the foreign nation. Doubtless, in any future negotiations, she will have too much magnanimity to avail herself of these spontaneous concessions in her favor, made on the floor of the senate of the United States.
It was to have been expected, that, in a question like the present, gentlemen, even on the same side, would have different views, and although arriving at a common conclusion, would do so by variousarguments. And hence the honorable gentleman from Vermont, entertains doubt with regard to our title against Spain, whilst he feels entirely satisfied of it against France. Believing, as I do, that our title against both powers is indisputable, under the treaty of St. Ildefonso, between Spain and France, and the treaty between the French republic and the United States, I shall not inquire into the treachery, by which the king of Spain is alleged to have lost his crown; nor shall I stop to discuss the question involved in the overthrow of the Spanish monarchy, and how far the power of Spain ought to be considered as merged in that of France. I shall leave the honorable gentleman from Delaware to mourn over the fortunes of the fallen Charles. I have no commiseration for princes. My sympathies are reserved for the great mass of mankind, and I own that the people of Spain have them most sincerely.
I will adopt the course suggested by the nature of the subject, and pursued by other gentlemen, of examining into our title to the country lying between the Mississippi and the Rio Perdido, (which, to avoid circumlocution, I will call West Florida, although it is not the whole of it,) and the propriety of the recent measures taken for the occupation of that territory. Our title, then, depends, first, upon the limits of the province or colony of Louisiana, and, secondly, upon a just exposition of the treaties before mentioned.
On this occasion it is only necessary to fix the eastern boundary. In order to ascertain this, it will be proper to take a cursory view of the settlement of the country, because the basis of European title to colonies in America, is prior discovery, or prior occupancy. In 1682, La Salle migrated from Canada, then owned by France, descended the Mississippi, and named the country which it waters, Louisiana. About 1698, D’Iberville discovered, by sea, the mouth of the Mississippi, established a colony at the Isle Dauphine, or Massacre, which lies at the mouth of the bay of Mobile, and one at the mouth of the river Mobile, and was appointed, by France, governor of the country. In the year 1717, the famous West India Company sent inhabitants to the Isle Dauphine, and found some of those who had been settled there under the auspices of D’Iberville. About the same period, Baloxi, near the Pascagoula, was settled. In 1719, the city of New Orleans was laid off, and the seat of government of Louisiana was established there; and 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 a 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 tothe subject.[2]] According to this document, in describing the province or colony of Louisiana, it is declared to be bounded by Carolina on the east, and Old and New Mexico on the west. Under this high record evidence, it might be insisted that we have a fair claim to East as well as West Florida, against France, at least, unless she has, by some convention, or other obligatory act, restricted the eastern limit of the province. It has, indeed, been asserted, that, by 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 close of the seventeenth century, when France settled the Isle Dauphine, and the Mobile, Spain erected a fort at Pensacola. But Spain never pushed her actual settlements, or conquests, farther west than the bay of Pensacola, whilst those of the French were bounded on the east by the Mobile. Between those two points, a space of about thirteen or fourteen leagues, neither nation had the exclusive possession. The Rio Perdido, forming the bay of the same name,discharges itself into the Gulf of Mexico, between the Mobile and Pensacola, and, being a natural and the most notorious object between them presented itself as a suitable boundary between the possessions of the two nations. It accordingly appears very early to have been adopted as the boundary, by tacit if not expressed consent. The ancient charts and historians, therefore, of the country, so represent it. Dupratz, one of the most accurate historians of the time, in point of fact and detail, whose work was published as early as 1758, describes the coast as being bounded on the east by the Rio Perdido. In truth, sir, no European nation whatever, except France, ever occupied any portion of West Florida, prior to her cession of it to England, in 1762. The gentlemen on the other side do not, indeed, strongly controvert, if they do not expressly admit, that Louisiana, as held by the French anterior to her cessions of it in 1762, extended to the Perdido. The only observation made by the gentleman from Delaware to the contrary, to wit, that the island of New Orleans, being particularly mentioned, could not, for that reason, constitute a part of Louisiana, is susceptible of a very satisfactory answer. That island was excepted out of the grant to England, and was the only part of the province east of the river that was so excepted. It formed in itself one of the most prominent and important objects of the cession to Spain originally, and was transferred to her with the portion of the province west of the Mississippi. It might with equal propriety be urged that St. Augustine is not in East Florida, because St. Augustine is expressly mentioned by Spain in her cession of that province to England. From this view of the subject, I think it results that the province of Louisiana comprised West Florida, previous to the year 1762.
What was done with it at this epoch? By a secret convention of the third of November, of that year, France ceded the country lying west of the Mississippi, and the island of New Orleans, to Spain; and by a contemporaneous act, the articles preliminary to the definitive treaty of 1763, she transferred West Florida to England. Thus, at the same instant of time, she alienated the whole province. Posterior to this grant, Great Britain, having also acquired from Spain her possessions east of the Mississippi, erected the country into two provinces, East and West Florida. In this state of things it continued until the peace of 1783, when Great Britain, in consequence of the events of the war, surrendered the country to Spain, who, for the first time, came into actual possession of West Florida. Well, sir, how does she dispose of it? She reannexes it to the residue of Louisiana—extends the jurisdiction of that government to it, and subjects the governors, or commandants, of the districts of Baton Rouge, Feliciana, Mobile, and Pensacola, to the authority of the governor of Louisiana, residing at New Orleans; while the governor of East Florida isplaced wholly without his control, and is made amenable directly to the governor of the Havannah. Indeed, sir, 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 resounded with the nefarious speculations, which were alleged to be making 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 had 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 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 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 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 of ‘retrocede,’ which is the expression in the French copy. And it is argued, that we are bound by the phraseology of the French copy, because it is declared that the treaty was agreed to in that language. It would not be very unfair to inquire, if this is not like the common case in private life, where individuals enter into a contract of which each party retains a copy, duly executed. In such case, neither has the preference. We might as well say to France, we will 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 thepart 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 which it then had in the hands of Spain, and which 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 a 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 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, 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 passedfrom 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?
The act of October, 1803, contains two sections, 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 twenty-fourth 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 on, or taking possession of lands ceded to the United States.
These laws furnish a legislative construction of the treaty, corresponding with that given by the executive, and they indisputably vest in this branch of the general government the 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 highlyproper 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 the operation and force of law, attached to it. But this was a state of things which the people might not know, and which every dictate of justice and humanity, therefore, required 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; 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 Florida on the other, are in the possession of a foreign maritime power, the immense extent of country belonging to the United States, and watered by streams discharging themselves into the Gulf of Mexico—that is, one third, nay, more than two thirds of the United States, comprehending Louisiana, are 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 of that country—transactions which tend, in the most imminent degree, to jeopardize our rights, without attempting to interfere? 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, agents of a foreign power were intriguing with the people there, to induce them to come under his dominion; but 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 stateof misrule and disorder, menacing our peace; and if, moreover, such colony, by passing into the hands of any other power, would become dangerous to the integrity of the union, and manifestly lend to the subversion of our laws; we have a right, upon the eternal principles of self-preservation, to lay hold upon 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, choose to make war upon us, for the act under consideration, the nation, I have no doubt, will be willing to embark in such a contest. But the gentleman reminds us that Great Britain, the ally of Spain, may be obliged, by her connection with that country, to take part with her against us, and to consider this measure of the president as justifying an appeal to arms. Sir, is the time never to arrive, when we may manage our own affairs without the fear of insulting his Britannic majesty? Is the rod of British power to be for ever suspended over our heads? Does congress put on an embargo to shelter our rightful commerce against the piratical depredations committed upon it on the ocean? We are immediately warned of the indignation of offended England. Is a law of non-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, and now take occasion 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 persists 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 believe, however, 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 deposit 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 geniusof 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 administration; and in the jealousy of armies, with which we have been inspired by the melancholy experience of free estates. 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 for ever from our power. Longer delay would be construed into a dereliction of our right, and would 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 deposit? 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.
Does the honorable gentleman from Delaware really believe, that he finds in St. Domingo a case parallel with that of West Florida? and that our government, having interdicted an illicit commerce with the former, ought not to have interposed in relation to the latter? It is scarcely necessary to consume your time by remarking, that 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.
I am not, sir, in favour of cherishing the passion of conquest. But I must be permitted, in conclusion, to indulge the hope of seeing, 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 of the north of us also.