Abridgement of the Debates of Congress, from 1789 to 1856 (4 of 16 vol.)

The expediency of taking possession of this territory cannot, it appears to me, admit of a doubt. If the President had refused or hesitated to meet the wishes of the people of West Florida by extending to them the protection of the American Government, and they had sought security in the arms of a foreign power, what should we have heard? He would have been charged with imbecility, and fear of incurring responsibility. He would have been denounced as unworthy of the station his country had assigned him. Let it be remembered that the Orleans country is our most valuable part – remote from our physical force – a climate more fatal to our people than the sword of a victorious enemy – and that an enemy in possession of West Florida can with great facility cut off New Orleans from the upper country. If the fortunate moment had not been seized, this province would have fallen into the hands of a foreign power, or, if time had been given for intrigue to mature itself, another Burr plot would probably have risen from the ashes of the first, more formidable to the integrity of this empire. Burr, like Archimedes, fancied that if he had a place to stand upon – a place beyond the jurisdiction of the United States to rally his followers – he could overturn the Government. He has, it is true, fled from the frowns of an indignant country; but he was not alone. Let an opportunity be afforded, and a thousand Burrs would throw off the mask and point their arms against the Federal Union. On a subject of such interest, it would have been criminal in those appointed to watch over the national safety to have hesitated. I was surprised to hear this procedure pronounced a robbery, and making of war. Why should our sympathies be awakened in favor of Spain? What claim has the Spanish Government upon our moderation and forbearance? What has been her conduct? From the moment we became an independent nation she has been intriguing to separate the Western country from the Atlantic States. She has made, at different periods, and as late as the year 1797, in violation of her treaty of 1795 with this country, direct propositions to the Western people to secede from the Union, and to accomplish her object, at least attempted the use of means the most corrupt. What has been her conduct since we acquired Louisiana? If I am correctly informed, our deserters and slaves who have taken refuge in Florida, in many instances have not been surrendered, and enormous duties have been imposed on our vessels navigating the Mobile. Under all these provocations, sufficient to have drawn upon them from almost any other nation an open declaration of war, our Government, influenced by that pacific policy which has hitherto regulated its course towards foreign nations, exercised patience and forbearance. And since the late revolution in Spain, I believe it will not be pretended that this Government has manifested any disposition to throw our weight into the scale of France against the Spanish party. Our Government has taken no step in relation to West Florida, until compelled by a regard to our own safety. The Executive in the proceeding under consideration has used language the most conciliatory, and on the face of his proclamation given a pledge that this Government will at any time enter into amicable negotiations on the subject of our claim to this territory, if it shall be disputed.

There are other at least plausible grounds upon which this bill as an original proposition might be supported entirely independent of the cession. Spain is indebted to us a large amount for spoliations committed on our commerce; and as there is no Government at present towards which the ordinary proceeding can be pursued to obtain payment, could we not, on the principle of the attachment law, as an act of self-justice, seize on this territory to secure satisfaction?

As this measure has been emphatically called an act of robbery and war, it may not be amiss to consider the political state of the Spanish colonies in relation to the Spanish Government in the hands of the Junta, and the new dynasty about to be established by Bonaparte. It may be said, perhaps, that the late alienation of the Spanish Crown and the revolution in Spain have dissolved the tie which connects them with the mother country. On this point I will not detain the Senate. If the French arms shall be successful in Spain, of which I believe few entertain much doubt, and the Junta shall be driven from Old Spain to any of the colonies, their political character must cease, and they can no longer claim the exercise of any jurisdiction or sovereignty over the colonies. The colonies are not bound together by any political bond unconnected with the mother country; they are subject to the mother country, but the moment she is conquered, they are at liberty to provide for themselves, unless, indeed, the Emperor of France or King Joseph can claim them. France, in an official exposé, and King Joseph, by proclamation, have declared their willingness that the colonies should become independent, provided they did not connect themselves with Great Britain. If France, therefore, shall, which is probable, conquer the mother country, we are fully authorized by her public declaration to the world to acquire, with the consent of the inhabitants, not only West but East Florida, Cuba, or any other province which we shall deem it expedient to connect with the United States. This bill may be justified, independent of title, by the law of self-preservation. Have we any assurance that the Spanish Government will maintain their neutrality in this territory if we should be involved in a war with either France or Great Britain? Can they, or will they, prevent the march of an enemy's forces through that territory into the United States? No, sir; we have every reason to expect the contrary. Considering how vulnerable we are from this territory, its present state, and the aspect of our foreign affairs, it appears to me we are authorized to take possession of it as a measure of national security. It may be objected that taking the property of others by force tends to relax the morals of the people, by destroying that criterion of right and wrong, the observance of which is so necessary to the purity of our Republic; and I am ready to admit that we ought to proceed upon this principle of necessity and expediency with great caution, and never to act upon it but in extreme and evident cases. Had we a colony on the coast of England or France, similarly situated, we know they would not hesitate. When we reflect that our property is seized by almost every nation; that the laws and usages of nations are disregarded by nearly all Europe; that their conduct has been lately marked with a degree of perfidy and rapacity unexampled in the history of the civilized world; that they have in fact become States of Barbary; it appears to me that we ought not, as regards them, to be over nice or squeamish upon questions of this sort. Shall we sit here with our arms folded until the enemy is at our gates? If we waste our time in discussion and refining abstract questions of right and wrong, we shall lose our independence, and we shall deserve to lose it. I had hoped this bill would have passed without much debate; I know the people are tired of long speeches and documents. This fondness for lengthy discussions, has even drawn upon Congress the reproaches of the ladies; they begin to say – less talk and more action.

Friday, December 28

Occupation of West Florida

The Senate resumed the consideration of the bill respecting the territory west of the Perdido.

Mr. Horsey addressed the Senate as follows:

Mr. President: The bill under consideration contains two important provisions. The first in effect incorporates with the Territory of Orleans the province of West Florida east of the Mississippi, as far as the river Perdido; the second extends to that part of the province thus incorporated the laws now in force within the said Territory.

These provisions naturally involve two questions: first, whether the United States have a good title to that part of the province described in the bill; and secondly, whether it would be expedient for the Government of the United States to take possession of it by force.

Before I proceed to consider these questions, I beg leave, Mr. President, to advert to what may be considered a preliminary question. I refer to the authority of the President of the United States to issue his proclamation and the accompanying orders of the 27th of August last, directing the forcible occupation of that territory. I deem it material to consider this point, because, if the proclamation were unauthorized, then Congress are not committed by it, nor are they bound to give it their sanction.

If the President had any authority to issue this proclamation, that authority must have been derived either under the Constitution of the United States or under some act or acts of Congress. The President has no power which does not proceed from one or the other of these sources. The constitution has given to Congress the exclusive power of making laws and declaring war – to the President the power of executing the laws of the Union. The powers of the one are legislative, of the other executive. The question then would be, whether the President in issuing this proclamation has not transcended the limits of his powers.

Sir, what is the nature and import of this proclamation? In my humble conception both legislation and war. War – because it directs the occupation of this territory by a military force. The regular troops of the United States are ordered to march, and if they should not be found adequate to the object, the Governors of the Orleans and Mississippi Territories are directed to call out the militia of their respective territories, to co-operate with the regular forces. But we shall be told, sir, that the President, in issuing this proclamation, has taken the precaution to direct that in case any particular place, however small, should remain in possession of a Spanish force, the commanding officer is not to proceed to employ force against it, but to make immediate report thereof to the Secretary of State. Suppose while your commanding officer is making this report, the Spanish force sallies out and makes an attack upon your army, or suppose a Spanish army, with Governor Folch at their head, should march from East Florida with the view of repelling the invasion of this territory; what are Governor Claiborne and his army to do? Ground their arms and surrender themselves prisoners of war; or are they, sir, to drop their muskets and take to their heels? These are the only alternatives presented – they must either surrender, run, or fight. And who will doubt which of these alternatives the gallantry of an American army would impel them to choose! Sir, a conflict would be inevitable.

But while the President has been so affectedly cautious with respect to Spanish force, he has overlooked altogether the contingency of resistance on the part of the revolutionists. These patriots it would seem had called a convention and issued a declaration of independence, and now it appears have formed and established a regular Government, which is organized and in operation. If these proceedings are not all a sham, the territory in question is now in the possession of a people claiming to be sovereign and independent; and is it supposable that this people can behave so dastardly as to submit, without a struggle, to the incursion of a hostile army, whose avowed object is the conquest of the country and the subversion of its constitution and independence? And here permit me to remark, that the style and tenor of the letter from the Secretary of State of the 15th of November, 1810, to Governor Holmes, in answer to the letter of the President of the convention praying the recognition and protection of the United States, are not admirably calculated to give a welcome reception to the American Army. If then assistance should be offered on the part of the constitutionalists, what is your army to do? The orders contain no proviso in this particular, requiring that the fact should be reported to the Department of State; but their clear intent is, that force should be employed. Under such circumstances is it not to be expected that this measure of the Executive will result in war? Is it not to be expected, that either the Spaniards or the Conventionalists will attempt to repel this palpable infringement upon their rights and territory?

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.

But have the people of Spain acquiesced? No, sir; the instant publicity was given to the transaction they became indignant, and with one voice rose, resolved to resist this usurpation. To this hour they have not submitted.

But the gentleman has said that Spain is no longer able to hold Florida; that foreign emissaries will take it if the United States do not, and that it may be lawfully taken by the United States on the ground of the law of occupancy.

That title may be acquired by occupancy is not to be doubted. It is the mode by which title to property was originally acquired; but to obtain a title in this way the country must be vacant, uninhabited and not claimed by another proprietor. But in this instance is the territory vacant – or uninhabited – or abandoned by its proprietors? No, sir. The territory is either in the possession of Spain and claimed by her, or of the revolutionists, and if either be in possession, by the law of occupancy, you have no right to disturb them. Clearly then, sir, upon the principles and admissions of the honorable gentleman from Vermont, the United States have no title to Florida.

And now, sir, with the indulgence of the Senate, I will proceed to consider as briefly as possible the nature of this title as derived under the Treaty of St. Ildefonso. Here, it will be granted, I meet the question fairly. This, I presume, is the title relied upon, as well by the Executive as the majority of the supporters of this bill.

In order fully to understand this subject, it is necessary to inquire into the principal cause of the war of 1756. The eastern boundary of Louisiana, I believe, was the chief cause of that war. The French were in the possession of the Mississippi, and claimed as part of Louisiana not only the country to the west of that river, but east as far as the Alleghany mountains. France, having this claim, and being in possession of Canada, conceived the project of uniting Louisiana with Canada. To accomplish her purpose she established a line of posts from the Lakes to the Ohio, and commenced encroachments upon the then British colonies. These encroachments she was pressing so far that Great Britain perceived it would be necessary to repel them. This brought on the war of '56, which, after a bloody conflict of seven years, terminated disastrously to France and her allies, and resulted in the establishment of the Mississippi, the Iberville, and the lakes Maurepas and Pontchartrain, as the boundary of Louisiana, giving to Great Britain all the territory on the east of that boundary, except the island and town of New Orleans, and to France all upon the west, including the island and town of New Orleans.