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.