On expounding this article, my colleague has declared that the President and Senate have no power to acquire new territory by treaty, and he argues that our people are to be for ever confined to their present limits. This is an assertion directly contrary to the powers inherent in independent nations, and contradictory to the frequent and allowed exercise of that power in our own nation. We are constantly in the practice of receiving territory by cession from the red men of the West, the aborigines of our country. The very treaty mentioned in the President’s Message, with the Kaskaskias Indians, whereby we have acquired a large extent of land, would, according to this doctrine, be unconstitutional; and so would all the treaties which add to the size of our statute book, with the numerous tribes of the natives on our frontiers. According to this construction, all our negotiations so happily concluded with those people, whom we ever have uniformly acknowledged as the sovereigns of the soil, are nugatory, and to be holden for naught. He said, he was perfectly aware of the answer which would be made, that we held all our national domain, under Great Britain, by virtue of the treaty concluded at Paris in 1783. What, after all, was the amount of that cession by England? Certainly not a conveyance of a country which never was theirs, but rightfully belonged to the Indian natives; for it was, in its true construction, merely a quit claim of the pretensions or title of the land which the English had obtained by conquest and treaty from the French. By that negotiation, the United States obtained a bare relinquishment of the claims and possessions of those two powerful nations. But the paramount title of the original inhabitants was not affected by this. However contemptuously the rights of these rude and feeble tribes had been regarded by the Europeans, their descendants in these States had considered them with recognition and respect. Until the Indians sold their lands for an equivalent, the humane and just principles of the American Government acknowledged them to be the only legitimate owners. And the sovereignty acquired by treaty or purchase to our Government was derived from the title which the natives transferred to them as grantees in a fair bargain and sale. Such, Mr. M. argued, were the rules of true construction, and these rules admitted and acted upon by the Federal Government; and yet, according to the novel doctrine of this day, every treaty with the natives for parcels of their country, although hitherto deemed lawful, would be an unconstitutional act. According to this notion, every treaty for lands, held with the aborigines since the organization of the Government, was a violation of the constitution. And thus this invaluable instrument, this bulwark of our liberties, had been violated perhaps twenty times or more, since we began to buy the surplusage of their hunting grounds. The Indian tribes are as much aliens as any other foreign nations. Their lands are as much foreign dominion as the soil of France or Spain. Yet we have gone on to annex the territories which they sold us, to our present territory, from the time we acquired independence, and no mortal, until this debate arose, Mr. Chairman, has so much as thought that thereby a breach of the constitution was made. My colleague is surely entitled to great credit for his perspicuity in finding out that all our great and wise predecessors in administering this Government have been plunderers and constitution-breakers. But, sir, the just judgment on this subject is, that the Presidents and Senate of the United States have heretofore acted constitutionally in acquiring by purchase foreign dominions from the alien Indians. And by a parity of reasoning, they have acted not only constitutionally, but eminently for the interest of the country, in buying Louisiana from the white men, its present sovereigns.
But, independent of correct principles and steady precedent in favor of the acquirement of new territory, it may be worth while to mention a few of the strange consequences which flow from the doctrine which the gentlemen of the other side of the House contend for. According to their reasoning, if by any force of the currents of the ocean, or any conflicts of the winds and the waves, a new surface of earth should emerge from the neighborhood of Cape Hatteras, it would be unconstitutional to take possession of it. Yet it appears to me, sir, very like an absurdity to say the United States would break their bond of union by erecting a light-house on it. Suppose that, by volcanic action, islands should be suddenly elevated from the bottom of the neighboring Atlantic, as they have repeatedly risen from the depths of the Mediterranean, would it be unconstitutional to take possession of them? So far from it, there would on the other hand be a duty in the Government to assume the dominion of all adjacent islands. Again; suppose for a moment that our present limits were full of people, would it be unconstitutional to purchase additional territory for them to settle upon? Must the hive always contain its present numbers, and no swarm ever go forth? At this rate we should, before a great lapse of time, arrive at a plenum of inhabitants, and if no new settlement could be obtained for them, the Chinese custom of infanticide must be tolerated to get rid of those tender little beings for whom food enough could not be procured, to rear them to manhood. And thus, when this maximum of population shall have arrived, there would be no constitutional power to purchase and possess any of the waste lands on this or the other side of the Mississippi, for them to spread and thrive upon. A doctrine against which, he confessed, his understanding revolted.
Our Government having in this manner the right of acquiring additional territory, had very often exercised that right by actual purchases and by possessions and settlements afterwards. The whole of the recent State of Ohio and of the Indiana Territory was obtained and peopled in this manner. And in the settlement of limits both on the side of Florida and Nova Scotia, the principle had again and again been acted upon; and, strange to tell, nobody, until this eventful time, had possessed acuteness enough to find out the error.
But the gentleman from Connecticut, Mr. Chairman, (Mr. Griswold,) contends that even if we had a right to purchase soil, we have no business with the inhabitants. His words, however, are very select; for he said, and often repeated it, that the treaty-making power did not extend to the admission of foreign nations into this confederacy. To this it may be replied that the President and Senate have not attempted to admit foreign nations into our confederacy. They have bought a tract of land, out of their regard to the good of our people and their welfare. And this land, Congress are called upon to pay for. Unfortunately for the bargain, this region contains civilized and Christian inhabitants; and their existence there, it is alleged, nullifies the treaty. The gentleman construed the Constitution of the United States very differently from the manner in which Mr. M. himself did. By the third section of the third article of that instrument, it is declared, that Congress shall have power to dispose of and make all needful rules and regulations respecting the territory and other property of the United States, and nothing therein contained shall be construed so as to prejudice any claim of the United States, or of any particular State.
In the case of Louisiana no injury is done either to the nation or to any State belonging to that great body politic. There was nothing compulsory upon the inhabitants of Louisiana to make them stay and submit to our Government. But if they chose to remain, it had been most kindly and wisely provided, that until they should be admitted to the rights, advantages, and immunities of citizens of the United States, they shall be maintained and protected in the enjoyment of their liberty, property, and the religion which they profess. What would the gentleman propose that we shall do with them? Send them away to the Spanish provinces, or turn them loose in the wilderness? No, sir, it is our purpose to pursue a much more dignified system of measures. It is intended, first, to extend to this newly acquired people the blessings of law and social order. To protect them from rapacity, violence, and anarchy. To make them secure in their lives, limbs, and property, reputation, and civil privileges. To make them safe in the rights of conscience. In this way they are to be trained up in a knowledge of our own laws and institutions. They are thus to serve an apprenticeship to liberty; they are to be taught the lessons of freedom; and by degrees they are to be raised to the enjoyment and practice of independence. All this is to be done as soon as possible; that is, as soon as the nature of the case will permit; and according to the principles of the federal constitution. Strange! that proceedings declared on the face of them to be constitutional, should be inveighed against as violations of the constitution! Secondly, after they shall have been a sufficient length of time in this probationary condition, they shall, as soon as the principles of the constitution permit, and conformably thereto, be declared citizens of the United States. Congress will judge of the time, manner, and expediency of this. The act we are now about to perform will not confer on them this elevated character. They will thereby gain no admission into this House, nor into the other House of Congress. There will be no alien influence thereby introduced into our councils. By degrees, however, they will pass on from the childhood of republicanism, through the improving period of youth, and arrive at the mature experience of manhood. And then, they may be admitted to the full privileges which their merit and station will entitle them to.
Mr. J. Randolph said that a sense of duty alone could have induced him to rise at that late hour. He wished to call the attention of the committee to a stipulation in the Treaty of London. [Here Mr. R. read an extract from the third article of that treaty, whereby the United States are pledged not to impose on imports in British vessels from their territories in America, adjacent to the United States, any higher duties than would be paid upon such imports, if brought into our Atlantic ports in American bottoms.] In this case, he said, gentlemen could not avail themselves of the distinction taken by his friend from Maryland (Mr. Nicholson) between a Territory and a State, even if they were so disposed—since the ports in question were ports of a State. The ports of New York, on the Lakes, were as much ports of that State, as the city of New York itself; they had their custom-house officers, were governed by the same regulations as other ports,—duties were exacted at them; and yet, under the article of the British Treaty which had been just read, British bottoms could and did enter them subject to no higher duties than were paid by American bottoms in the Atlantic ports. Mr. R. said that he did not mean to affirm that this exemption made by the Treaty of London was constitutional, so long as a distinction prevailed between American and British bottoms in other ports. He had never given a vote to carry that treaty into effect—but he hoped the gentlemen from Connecticut—both of whom he believed had done so; one of whom, at least, he knew had been a conspicuous advocate of that treaty—he hoped that gentleman (Mr. Griswold) would inform the committee how he got over the constitutional objection to this article of the Treaty of London, which he had endeavored to urge against that under discussion. How could the gentleman, with the opinion which he now holds, agree to admit British bottoms into certain ports, on the same terms on which American bottoms were admitted into American ports, generally? thereby making that very difference,—giving that very preference to those particular ports of certain States, which he tells us cannot constitutionally be given to the port of New Orleans—although that port is not within any State, and, if his (Mr. Griswold’s) doctrine be correct, not even within the United States!
The gentleman from Connecticut professed a wish that this important discussion should be conducted with moderation and candor. In this sentiment he concurred. He was therefore altogether unprepared, after this preamble, to hear the gentleman from Connecticut represent the treaty in question as conceding the most valuable commercial privileges to France and Spain, and thereby sapping the very foundation of our own carrying trade. In the spirit of candor the stipulations in question would be viewed, not as conceding advantages in trade to those nations, but as securing them to ourselves. The article in question did indeed profess to grant, for a limited time, to French and Spanish vessels, laden with the products of their respective countries, admission into the ports of the ceded territory, on equal terms with our own ships. But, although nominally an advantage has been conceded to these nations, substantially their situation was changed for the worse, and the benefit in fact conferred on us. For what were our rights in these ports, and what were theirs, setting aside the treaty? The treaty then had rendered our situation more eligible and theirs less so. How then could gentlemen declare that it was calculated to injure our carrying trade? when by it our trade was put on the footing of absolute security, while that of France and Spain was admitted under considerable restrictions, enjoying in but one particular, and for twelve years only, an equality with ours. Their trade, before on so superior a footing, had descended from its pre-eminence in privilege, and given way to ours; and yet gentlemen warn us of the destruction of our carrying trade, and commercial prosperity, from the very source which has enlarged and secured both. The enemies of the treaty, therefore, are the advocates of the trade of France and Spain, and the enemies so far of our own; since, by retaining things in their present posture, they would continue to those nations the superior advantages which they now enjoy in the ports of Louisiana, they would continue the restrictions which heretofore have fettered our commerce to that country, and they would refuse to put our trade on a footing superior to that of France and Spain.
On the subject of expediency, the gentleman had undervalued the country west of the Mississippi, and had declared that he considered the barren province of Florida as more important to us. Mr. R. asked if the country west of the Mississippi were not valuable, according to the gentleman’s own statement, since it afforded the means of acquiring Florida, which he prized so highly, from Spain? He had no doubt of the readiness of that power to relinquish Florida, in itself a dead expense to her—only valuable as an out-work to her other possessions, and now insulated by those of the United States—for a very small portion of the country which we claimed in virtue of the treaty under discussion.
He denied the correctness of the doctrine advanced by the same gentleman, that the stipulation entered into by France, in time of war, to raise the Duke of Parma to the throne of Etruria, bound her to obtain a recognition of that King from every power of Europe. All which concerned us in that treaty had been recited in ours with France. By the Treaty of St. Ildefonso His Catholic Majesty stipulates “to redeliver (retroceder) to the French Republic, six months after the full and entire execution of the conditions and stipulations herein relative to His Royal Highness the Duke of Parma, the colony or province of Louisiana.” What these stipulations were is certainly known only to the parties themselves, for they never were officially made public, although we are at no loss to conjecture them. Nor are we at all concerned whether France has or has not complied with them. Because in a treaty executed at Madrid, six months after, in March, 1801, they show that they consider the former treaty as having passed the title to the country to France. The fifth article is as follows:
“This treaty being in pursuance of that already concluded between the First Consul and His Catholic Majesty, by which the King delivers to France possession of Louisiana, the contracting parties agree to carry into effect the said treaty,” &c.