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

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 the 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, had 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 passed from 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 the 24th of 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 or taking possession of lands ceded to the United States.

These laws furnish a legislative construction of the treaty, correspondent with that given by the Executive, and they vest in this branch of the Government indisputably a 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 highly proper 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 operation and force of law, attached to it. But this was a state of things which the people might not know, and every dictate of justice and humanity required, therefore, 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 of the United States, 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 country belonging to the United States, 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, is 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 in that country – transactions which tend to jeopardize, in the most imminent degree, our rights, without interference? 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, the agents of a foreign power were intriguing with the people there to induce them to come under his dominion.

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 state of 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 tend to the subversion of our laws; we have a right, upon eternal principles of self-preservation, to lay hold of 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.

Monday, December 31

John Taylor, appointed a Senator by the Legislature of the State of South Carolina, in place of Thomas Sumter, resigned, produced his credentials which were read; and the oath prescribed by law having been administered to him, he took his seat in the Senate.

Wednesday, January 2, 1811

Andrew Gregg, from the State of Pennsylvania, took his seat in the Senate.

Monday, January 7

James A. Bayard, from the State of Delaware, took his seat in the Senate.

Tuesday, January 8

Thomas Worthington, appointed a Senator by the Legislature of the State of Ohio, in place of Return Jonathan Meigs, resigned, produced his credentials, which were read; and the oath prescribed by law having been administered to him, he took his seat in the Senate.

Monday, January 14

James Turner, from the State of North Carolina, took his seat in the Senate.

Tuesday, January 29

Mississippi Territory

Mr. Anderson presented the memorial of the Legislative Council and House of Representatives of the Mississippi Territory, praying that the said Territory may be admitted as a State into the Union, upon the footing of the original States, and the memorial was read, and referred to a select committee to consider and report thereon by bill or otherwise; and Messrs. Anderson, Bayard, and Dana, were appointed the committee.

The memorial is as follows:

To the honorable the Senate and House of Representatives of the United States in Congress assembled: The memorial unanimously adopted, of the Legislative Council and House of Representatives of Mississippi Territory, in General Assembly convened, respectfully states, That by the articles of agreement and cession between the United States and the State of Georgia, an act for the amicable settlement of limits with the State of Georgia, &c., and an act supplemental thereto, the Government of the Mississippi Territory was organized and established, and "all and singular the rights, privileges, and advantages, granted to the people of the United States, northwest of the river Ohio, by an ordinance of the 13th day of July, one thousand seven hundred and eighty-seven, were extended to the people of the Mississippi Territory: " And by the said articles of agreement and cession, it is provided "That the Territory thus ceded shall form a State, and be admitted as such into the Union as soon as it shall contain sixty thousand free inhabitants, or at an earlier period, if Congress shall think it expedient."

Your memorialists state, that although they do not pretend to have the number required by the said articles of agreement and cession, and the ordinance to entitle our Territory as a matter of right into the Union, upon the footing of one of the original States; yet, we hope that our numbers (as will appear by the census now taken under a law of the United States) are sufficiently respectable to induce your honorable body to admit the Mississippi Territory into the Union, as a matter of expediency.

Your memorialists conceive it unnecessary to detail the many reasons which might be adduced in support of their petition, but think it sufficient to say, that, as the people of this Territory are able to bear the expenses of a State Government with convenience to themselves, and at the same time will relieve the Government of the United States from the cares and expenses incident to the Territorial form of government; and that whatever views the form of government (under which they have, perhaps, not very patiently lived) for about twelve years, was formed, it is found from experience, to be unfriendly to republicanism; and is such a one as every American in heart is solicitous to be relieved from. We, therefore, pray your honorable body to pass a law authorizing a convention to be called, for the purpose of forming a constitution and State Government in the Mississippi Territory, to be admitted into the Union upon the footing of the original States.

Your memorialists, from a knowledge of your indulgence to the people of the Territories northwest of the river Ohio, when in a situation similar to their own, are sanguine in their expectations, that your honorable body will grant to them the prayer of their petition.

And they will ever pray, &c.

F. L. CLAIBORNE,Speaker of the House.ALEX. MONTGOMERY,President of Legislative Council.

Attest: Wm. C. Winston,

Clerk House of Reps. M. T

Wednesday, January 30

Territory of Orleans

The Senate took into consideration the amendment proposed yesterday, by Mr. Dana, to the bill, entitled "An act to enable the people of the Territory of New Orleans to form a constitution and State Government, and for the admission of such State into the Union on an equal footing with the original States, and for other purposes: " and, on motion, by Mr. Clay, it was agreed to divide the question; and, on the question to agree to the first division of the amendment, to wit:

Provided, That this act shall not be understood to admit such State into the Union, as aforesaid, unless each of the States shall consent to the same:

It was determined in the negative – yeas 10, nays 18, as follows:

Yeas. – Messrs. Bradley, Champlin, Dana, German, Gilman, Goodrich, Horsey, Lloyd, Pickering, and Reed.

Nays. – Messrs. Campbell, Clay, Condit, Franklin, Gaillard, Gregg, Lambert, Leib, Mathewson, Pope, Robinson, Smith of Maryland, Smith of New York, Tait, Taylor, Turner, Whiteside, and Worthington.

On the question to agree to the second division of the amendment, to wit:

Provided, That this act shall not be understood to admit such State into the Union as aforesaid, unless there shall be a constitutional amendment empowering the Congress to admit into the Union new States formed beyond the boundaries of the United States, as known and understood at the time of establishing the Constitution for the United States:

It was determined in the negative – yeas 8, nays 17, as follows:

Yeas. – Messrs. Champlin, Dana, German, Gilman, Goodrich, Lloyd, Pickering, and Reed.

Nays. – Messrs. Campbell, Clay, Condit, Franklin, Gaillard, Gregg, Lambert, Leib, Mathewson, Robinson, Smith of Maryland, Smith of New York, Tait, Taylor, Turner, Whiteside, and Worthington.

On motion, by Mr. Bradley, to postpone the further consideration of the bill to the second Monday in February next, it was determined in the negative.

On the question, Shall the bill be read a third time as amended? it was determined in the affirmative – yeas 17, nays 10, as follows:

Yeas. – Messrs. Brent, Clay, Condit, Franklin, Gaillard, Gregg, Lambert, Mathewson, Pope, Robinson, Smith of Maryland, Smith of New York, Tait, Taylor, Turner, Whiteside, and Worthington.

Nays. – Messrs. Bradley, Champlin, Dana, German, Gilman, Goodrich, Horsey, Lloyd, Pickering, and Reed.

Friday, February 1

The credentials of James A. Bayard, appointed a Senator by the Legislature of the State of Delaware, for the term of six years from the third day of March next: and of William H. Crawford, appointed a Senator by the Legislature of the State of Georgia, for the term of six years from the third day of March next, were severally read, and ordered to lie on file.

Wednesday, February 6

Mr. Bradley presented the petition of Charlotte Hazen, relict of the late Brigadier General Moses Hazen, praying a grant of land may be made to her, as a Canadian refugee, or that a small addition, in lieu thereof, may be added to her present pension from Congress, for reasons stated at large in the petition; which was read, and referred to a select committee, to consider and report thereon by bill or otherwise; and Messrs. Bradley, Franklin, and German, were appointed the committee.

Monday, February 11

Bank of the United States

The Senate resumed, as in Committee of the Whole, the bill to amend and continue in force an act, entitled "An act to incorporate the subscribers to the Bank of the United States," passed on the 25th day of February, one thousand seven hundred and ninety-one.

Mr. Anderson said that having been a member of the committee who reported the bill before the Senate, and not feeling himself at liberty to oppose the introduction of the report, yet, thinking it might be advisable to try the principle before they proceeded to discuss the details, he should move to strike out the first section of the bill. He would barely observe that, was this not a question which was generally understood, on which not only every member of this House, but every citizen of the United States had made up his mind, he should feel himself bound to offer reasons in support of the motion; but, inasmuch as it was a question which every gentleman had doubtless decided in his own mind, he felt unwilling to take up any more of the attention of the Senate, especially so late in the session, when there was so much business of importance before them which required to be acted on.

Mr. Crawford said that he should proceed, though reluctantly, to explain the reasons of the committee for reporting the bill, which is now under consideration. After the most minute examination of the constitution, the majority of that committee were decidedly of opinion that the Congress of the United States were clearly invested with power to pass such a bill. The object of the constitution was twofold: 1st, the delegation of certain general powers, of a national nature, to the Government of the United States; and 2d, the limitation or restriction of the State sovereignties. Upon the most thorough examination of this instrument, I am induced to believe, that many of the various constructions given to it are the result of a belief that it is absolutely perfect. It has become so extremely fashionable to eulogize this constitution, whether the object of the eulogist is the extension or contraction of the powers of the Government, that whenever its eulogium is pronounced, I feel an involuntary apprehension of mischief. Upon the faith of this imputed perfection, it has been declared to be inconsistent with the entire spirit and character of this instrument, to suppose that after it has given a general power it should afterwards delegate a specific power fairly comprehended within the general power. A rational analysis of the constitution will refute in the most demonstrative manner this idea of its perfection. This analysis may excite unpleasant sensations; it may assail honest prejudices; for there can be no doubt that honest prejudices frequently exist, and are many times perfectly innocent. But when these prejudices tend to destroy even the object of their affection, it is essentially necessary that they should be eradicated. In the present case if there be any who, under the conviction that the constitution is perfect, are disposed to give it a construction that will render it wholly imbecile, the public welfare requires that the veil should be rent, and that its imperfection should be disclosed to public view. By this disclosure it will cease to be the object of adoration, but it will nevertheless be entitled to our warmest attachment.

The 8th section of the 1st article of the constitution contains among others the following grant of powers, viz: to coin money, regulate the value thereof, and of foreign coin, and fix the standard of weights and measures; to raise and support armies; to provide and maintain a navy; to regulate commerce with foreign nations, and among the several States, and with the Indian tribes; to establish post-offices and post roads. This selection contains five grants of general power. Under the power to coin money it is conceived that Congress would have a right to provide for the punishment of counterfeiting the money after it was coined, and that this power is fairly incidental to, and comprehended in, the general power. The power to raise armies and provide and maintain a navy comprehends, beyond the possibility of doubt, the right to make rules for the government and regulation of the land and naval forces; and yet in these three cases, the constitution, after making the grant of general power, delegates specifically the powers which are fairly comprehended within the general power. If this, however, should be denied, the construction which has been uniformly given to the remaining powers which have been selected, will establish the fact beyond the power of contradiction. Under the power to regulate commerce, Congress has exercised the power of erecting light-houses, as incident to that power, and fairly comprehended within it. Under the power to establish post-offices, and post roads, Congress has provided for the punishment of offences against the Post-Office Department. If the Congress can exercise an incidental power not granted in one case, it can in all cases of a similar kind. But it is said, that the enumeration of certain powers excludes all other powers not enumerated. This is true so far as original substantive grants of power are concerned, but it is not true when applied to express grants of power, which are strictly incidental to some original and substantive grant of power. If it were true in relation to them, Congress could not pass a law to punish offences against the Post-Office Establishment, because the constitution has expressly given the power to punish offences against the current coin, and as it has given the power to punish offences committed against that grant of general power, and has withheld it in relation to the power to establish post-offices and post roads. Congress cannot, according to this rule of construction, so warmly contended for, pass any law to provide for the punishment of such offences. The power to make rules for the regulation and government of the land and naval forces, I have shown to be strictly incidental to the power to raise armies, and provide and maintain navies; but, according to this rule of construction, all incidental powers are excluded except the few which are enumerated, which would exclude from all claim to constitutionality, nearly one-half of your laws, and, what is still more to be deprecated, would render your constitution equally imbecile with the old articles of confederation. When we come to examine the 4th article, the absurdity of this rule of construction, and also of the idea of perfection which has been attributed to the constitution, will be equally manifest. This article appears to be of a miscellaneous character and very similar to the codicil of a will. The first article provides for the organization of Congress; defines its powers; prescribes limitations upon the powers previously granted; and sets metes and bounds to the authority of the State Governments. The second article provides for the organization of the Executive Department, and defines its power and duty. The 3d article defines the tenure by which the persons in whom the judicial power may be vested shall hold their offices, and prescribes the extent of their power and jurisdiction. These three articles provide for the three great departments of Government called into existence by the constitution, but some other provisions just then occur, which ought to have been included in one or the other of the preceding articles, and these provisions are incorporated and compose the 4th article. The 1st section of it declares, that "full faith and credit shall be given in each State, to the public acts, records, and judicial proceedings of every other State. And the Congress may by general laws prescribe the manner in which such acts, records, and proceedings shall be proved, and the effect thereof." In the second section it declares, that a person, charged in any State with treason, felony, or other crime, who shall flee from justice, and be found in another State, shall, on demand of the Executive authority of the State from which he fled, be delivered up, to be removed to the State having jurisdiction of the crime. A similar provision is contained in the same section, relative to fugitives who are bound to labor, by the laws of any State. In the first case which has been selected, express authority has been given to Congress, to prescribe the manner in which the records, &c., should be proved, and also the effect thereof, but in the other two, no authority is given to Congress, and yet the bare inspection of the three cases will prove that the interference of Congress is less necessary in the first than in the two remaining cases. A record must always be proved by itself, because it is the highest evidence of which the case admits. The effect of a record ought to depend upon the laws of the State of which it is a record, and, therefore, the power to prescribe the effect of a record was wholly unnecessary, and has been so held by Congress – no law having been passed to prescribe the effect of a record. In the second case there seems to be some apparent reason for passing a law to ascertain the officer upon whom the demand is to be made; what evidence of the identity of the person demanded and of the guilt of the party charged must be produced before the obligation to deliver shall be complete. The same apparent reason exists for the passage of a law relative to fugitives from labor. According, however, to the rule of construction contended for, Congress cannot pass any law to carry the constitution into effect, in the two last cases selected, because express power has been given in the first and is withheld in the two last. Congress has nevertheless passed laws to carry those provisions into effect, and this exercise of power has never been complained of by the people or the States.