But, sir, this proclamation is not only war, but it is an act of legislation too. It annexes the territory in question to the Orleans Territory; it creates a Governor; it enacts laws, and appropriates money. It gives the Governor of the Orleans Territory all the authorities and functions over this particular territory which he possesses by virtue of his office as governor, and makes an appropriation of a sum of money, not exceeding twenty thousand dollars. This proclamation is substantially the bill under discussion, except that it goes much further. The first section of the bill only contains an annexation of the territory in question to the Orleans Territory—this the proclamation has already done. The second section only extends the laws of that territory to the particular territory in question—and this too the proclamation has already done. The only material difference in fact existing between the proclamation and this bill is, that the proclamation contains the further and important provision for raising the troops and the money necessary for carrying it into execution. And here, sir, I will take the liberty to remark that I do not consider this bill the only one intended on this subject. This is a mere entering wedge—when this is passed, Congress are permitted to pass another, providing the necessary military and pecuniary means to carry this act into execution; and, indeed, I should not be surprised, if, before the close of the session, a bill were introduced to take possession of East as well as West Florida.
If the President had no power under the constitution to issue this proclamation, I think it equally clear he had none under any existing laws of Congress. The act of the 31st of October, 1803, authorizing the President of the United States to take possession of and occupy the territory ceded by France to the United States, by the treaty concluded at Paris on the 30th of April, 1803, I apprehend, expired on the 1st day of October, 1804; to which period it was limited by the first section of the act for erecting Louisiana into two Territories, and providing for the temporary government thereof, passed the 20th day of March, 1804.
This section enacts, that "the act passed the 31st day of October, entitled 'An act to enable the President of the United States to take possession of the territories ceded by France to the United States, by the treaty concluded at Paris, on the 30th day of April, 1803; and for the temporary government thereof,' shall continue in force until the 1st day of October, 1804, any thing therein to the contrary notwithstanding; on which said 1st day of October, this act shall commence, and have full force, and shall continue in force for and during the term of one year, and to the end of the next session of Congress, which may happen thereafter." Let it be recollected that at the time this last-mentioned act passed, the President had fulfilled his powers, under the act of the 31st of October, 1803, so far as it respected the taking possession of Louisiana. Possession had been actually and formally delivered, and the stock created and transferred to the French Government, according to the stipulations of the treaty. Besides, the very nature and design of the act of the 26th March, independent of the express limitation, superseded the act of the 31st of October.
But it is said, there are acts of Congress which, though contemplating a present possession in a foreign authority, also contemplate an ultimate possession by the United States, under which the proclamation may be justified, even though the act of the 31st of October should have expired. The acts here referred to, I understand to be the act of the 24th of February, 1804, for laying and collecting duties within the territories ceded by France to the United States, the act above mentioned of the 26th of March, erecting Louisiana into two Territories, and the act of the 2d of March, 1805, authorizing the establishment of a Government in the Territory of Orleans, similar to the Government of the Mississippi Territory. The President himself admits, in his message at the opening of the session, that those laws contemplate a present possession in a foreign Power; but he further says, they contemplate an eventual possession by the United States. But, sir, let me ask what sort of possession? A possession by force? No, sir, not a single provision can be shown to justify such a construction. But a possession to be obtained by a friendly negotiation. I am warranted in this construction, not merely by the letter of those laws, by the lapse of time since their enactment, by the express official declaration of Mr. Madison himself, while Secretary of State. It is a notorious fact, that when the act of the 24th of February passed, the Marquis D'Yrujo, then the Minister of his Catholic Majesty in the United States, in a solemn form protested against that law; and that Mr. Madison, by a letter dated on the 19th of March, assured the Marquis that the provisions relating to Louisiana "would not be extended beyond the acknowledged limits of the United States, until it shall be rendered expedient by friendly elucidation and adjustments with His Catholic Majesty."
Upon the whole, sir, I have not been able to discover the shadow of authority, on the ground of which the President issued this proclamation. He has recited none, amidst all his recitals, and none appears to me but his own mere will and pleasure.
The act I therefore cannot view in any other light than an unwarrantable assumption of power and a violation of the constitution.
Considering then, sir, this act of the Executive as illegal and unauthorized, we are fully at liberty to enter into the discussion of the great questions of title and expediency; a task which I will proceed to discharge to the best of my ability.
The first I propose to examine is, the title of the United States to the territory in question. With respect to this, I perceive, it unfortunately happens that honorable gentlemen who support the bill do not precisely accord in sentiment. The gentleman from Vermont (Mr. Bradley) has frankly conceded that the United States acquired no title under the Treaty of St. Ildefonso. Another gentleman (Mr. Smith, of Maryland) has declared that the United States did derive a title under that treaty, and disclaims the title set up by the honorable gentleman from Vermont. I shall not undertake to decide which of the two gentlemen is right, if either be, but shall contend, and humbly expect to prove, that both are wrong.
What is the nature of the title set up by the gentleman from Vermont? Not under the treaty, he has candidly owned, but he supposes a title to exist on the ground of certain quaint principles of the common law, relative to the doctrines of estoppel and occupancy. I am extremely happy, sir, to find that honorable gentleman introducing the common law as authority upon this floor, especially on so great an occasion. His doctrines certainly evince both research and ingenuity, and show that he, like many with whom he acts, has not absolutely lost his veneration for the black letter. What are his doctrines? Why in the first place, he says, admitting that Spain did not cede Florida to France by the Treaty of St. Ildefonso, and admitting that France had no title to Florida on the 30th of April, 1803, when she ceded Louisiana to the United States, yet, as France has since acquired a title to the crown of Spain and her colonies, and as the French Plenipotentiary, when the treaty of 30th of April, 1803, was executed, did state and induce the American Ministers to understand and believe that Florida was comprehended in the cession, why the title, though France had it not when the treaty was signed, yet having it subsequently, immediately attached in the United States, and France is estopped from saying any thing to the contrary. This argument, sir, begs every thing: 1st. That the declarations on the part of the French Minister were made; 2dly, that being made they would operate to pass the title contrary to the express letter of the treaty; and lastly, that France has acquired a good title to the crown of Spain and her colonies. I will yield to the gentleman his first proposition, and grant, as he seems to desire it, that these representations were made—and what do they prove? Not that the title passed, but that the French Minister was too deep for the American Plenipotentiaries, and, to use a jockey phrase, took them in. Sir, the only legal effect of such a fraud would be, to violate the treaty—to annul the contract. France, to be sure, would be bound upon principles of equity to refund the purchase money.
If then, sir, I am correct in stating, that no conversations or verbal declarations, however fraudulent, would operate to control or vary the plain letter and intent of the treaty, as appearing on the face of it, then upon the gentleman's own acknowledgments no title to Florida could have passed to the United States under the treaty of 1803. For the gentleman has unequivocally admitted that Florida was not ceded by Spain to France by the Treaty of St. Ildefonso, and France, it is admitted on all sides, by the treaty of 1803, only ceded to the United States Louisiana, as fully, and in the same manner she acquired it from Spain by the Treaty of St. Ildefonso; nor, sir, can I admit that France has acquired a legitimate title to the crown and colonies of Spain, which must also appear before the gentleman can avail himself of his argument. What, Mr. President, is the nature of this title? Was it obtained bona fide for a fair and full consideration? No, sir, but by the most abominable perfidy, corruption and duress, of which the pages of history furnish an example. Was not the royal family decoyed by artifice from Madrid to Bayonne? Was not the old Monarch compelled to resign his crown to Ferdinand the Seventh, and was not that Prince a prisoner of Bonaparte; and, while in this condition, and, for aught we know, the bayonet at his breast, or the cup to his lips, constrained to resign his crown to the Emperor of France? Sir, what sort of title is this? Upon the eternal principles of justice, upon the principles of the common law and common sense, an instrument thus obtained is not obligatory on the party executing it.