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.