The Treaty of St. Ildefonso, of 1800, is a mere treaty of retrocession. The translation purports to be a treaty of cession, it is true, but acknowledged on all sides to be erroneous. The original treaty was in the French language, and it is by that we are to be governed. The expression in the original is "Sa Majesté Catholique promit et s'engage, de son cote, à retroceder à la Republique Française," &c. A retroceder signifying to retrocede, to restore, or to use a term familiar in the State I have the honor to represent, reconvey the colony of Louisiana to France, as it was when France conveyed it to Spain. The honorable gentleman from Kentucky, (Mr. Pope,) pressed by this argument, could only get round it by alleging that the original treaty between France and Spain was dated in 1761, prior to the settlement of the line and the cessions to Great Britain. But, unfortunately, he could not produce one title of authentic evidence to establish his position, a position absolutely negatived by the official letter to M. L'Abbadie. But that gentleman has further told us, that from the words "with the same extent it now has 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 other States," an intention may be raised to include Florida. I fully subscribe to the gentleman's rule, that we must give such a construction to the treaty, and particularly to the passage just referred to, as will give effect, if possible, to all the parts; and this I apprehend may be done without having recourse to the forced construction contended for. In the first place, the two first members of the passage may be reconciled and have effect by considering them as a twofold description of the same territory. From abundant caution it is not uncommon to give various descriptions of the same object. Sometimes the name is simply used, sometimes it is described by metes and bounds, and sometimes by the names of the adjacent countries. Sometime a twofold, and sometimes a threefold description is given. And upon a critical examination, I think it will be found that this is the only true construction the instrument will bear. If you give it the construction the gentleman contends for, to wit: that the second member of the passage is an extension of the description given by the first, then the second includes the first, and of consequence the first would be nugatory and superfluous; which would be doing violence to the gentleman's own rule of construction. But if the gentleman will insist on giving to the second member an enlarged or extended sense, it may be done by applying it to the western boundaries of Louisiana. It is said that when France ceded Louisiana to Spain, in '62, the country extended on the west to the river Sabine, and that Spain, prior to the treaty of 1808, detached from Louisiana the territory south of the waters emptying into the Red River, and erected it into a new province under the name of the "Province of Texas." Sir, the operations on the Sabine are memorable. It is well known how mysteriously they were suspended by an arrangement in 1806, by which it was agreed that the Spaniards should not cross the Sabine, and that the Americans should not extend their settlements as far as that river. And for this purpose, to prevent collisions, until the difference should be settled, instructions were given that no surveys should be made west of a meridian passing by Nachitoches.
If the gentleman is not satisfied by travelling to the west, by going to the east he may find an application—the town and island of New Orleans, which, though named in the cession to Spain, are not named in the treaty of retrocession to France.
As to the third member of the passage, it is a formal provision introduced into most treaties, and would be understood if not expressed. Of course the cession would be subject to prior treaties with other States. In 1795, Spain concluded a treaty with the United States, whereby she agrees that the navigation of the Mississippi, in its whole breadth from its source to the ocean, shall be free to the citizens of the United States, and that they shall have the right to deposite their merchandise and effects in the port of New Orleans, free of duty for three years, and after that period, if the privilege is not extended at the port of New Orleans, she is to assign to the United States, on another part of the banks of the Mississippi, an equivalent establishment. To these provisions the clause in question I apprehend refers.
The holding or possession of Louisiana is correspondent with the construction I have given the treaty. When possession was originally delivered by France to Spain, Florida was not delivered or considered any part of the cession. When Louisiana, under the Treaty of St. Ildefonso was restored to France, Florida was not delivered. When Louisiana, under the treaty of 1803, was delivered to the United States, Florida was not comprehended. Indeed the Government of the United States then treated the country on the west of the Mississippi, including the town and island of New Orleans, as the whole of Louisiana, by receiving it and paying the purchase money, which by the terms of the treaty they were not bound to do, and which by the act of Congress creating the Louisiana stock they were not authorized to do, till after full and entire possession had been delivered.
Mr. President, is it conceivable that after the boundary in question had been established by the most solemn compact of nations, and consecrated by a long and bloody war, and, too, by a lapse of near forty years—is it conceivable that the territory in question, excluded by that boundary, and raised into a distinct province under a distinct name—a name it ever bore after the establishment of the boundary—is it, I say, sir, conceivable, if the parties meant to have included this province in the Treaty of St. Ildefonso, that it should not have been specifically named?
Mr. Clay.—Mr. President, it would have gratified me if some other gentleman had undertaken to reply to the ingenious argument which you have just heard. But not perceiving any one disposed to do so, a sense of duty obliges me, though very unwell, to claim your indulgence while I offer my sentiments on this subject, so interesting to the Union at large, but particularly to the western section 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 various arguments. And hence the honorable gentleman from Vermont entertains doubts with regard to our title against Spain, while 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 it. Our title 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 is proper to take a cursory view of the settlement of the country; the basis of European title to colonies in America being 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 Biloxi, near the Pascagoula, was settled. In 1719, the city of New Orleans was laid off, and the seat of the Government of Louisiana 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.] 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 the 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.