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

Mr. Sheffey said he was not prepared to act on the subject, because the materials on which to decide were not before the House. Whilst he was disposed to treat the inhabitants of the Orleans Territory as brothers, and not as vassals, he was not ready to transfer the inheritance purchased by the blood of our fathers to foreigners. While he looked upon these people as equals, and was disposed to do them justice, he thought all they could demand at his hands was to be placed on that equality to which they were entitled. It had been said that the population was this much or that much. How much? – Mr. S. asked. Sixty thousand? Forty thousand? Thirty thousand? Would any gentleman who regarded his honor tell the House that there were 30,000 inhabitants in the undisputed Territory? He believed not. And would gentlemen favor this French population at the expense of their own interests and rights? It was true indeed that Ohio became a State before she had 60,000; but the ratio of representation was then but 30,000. If he were to reason on this subject, Mr. S. said he would say, under the fostering hand of the General Government, let them become accustomed to our Government, before those were permitted to govern themselves who had so lately emerged from despotism. He was not, he said, directly hostile to the admission of this Territory into the Union; but he made these observations in answer to speculations ushered in to lead the House from its duty. They ought to have the necessary information.

Mr. Macon said he would treat these people as he would the people of every other Territory. They were a part of the nation, and so ought to be considered. There ought to be no question as to what stock they sprung from; the true question was, ought they to be a State? The true policy, Mr. M. thought, was, as they were to become a part of the United States, to make them one and indivisible as soon as possible. They had already served a sufficient apprenticeship to the United States, but not under a free Government, for the Territorial governments were not free. The advantage of exacting of them the condition of using the same language, was a great one. How could they be made one with the United States unless by the use of the same language? Mr. M. wished to treat this Territory as well as the others, and no better; he would not treat one as a daughter and the other as a step-daughter. He was as willing now to make Orleans a State as he had been to make Ohio a State. The great object is to make us one people; to make this nation one. As to the Mississippi Territory, it had not served a much longer apprenticeship than Orleans, having only been acquired by the treaty with Spain in 1795. The people of Orleans possessed certainly as strong an attachment to the nation as could be expected from the time they had belonged to it. When the Spaniards invaded the Territory, they stepped forward promptly to repel them; and when some citizens of the old States forgot the love every honest heart owes to his country, they showed their attachment to the Union by the readiness with which they lent their aid to repel them. To make them a State would make that attachment still greater, and it was therefore advisable to act on the subject.

The committee now rose, reported progress, and asked leave to sit again; but before leave was granted, the House adjourned.

Friday, January 4

Territory of Orleans

The House resolved itself into a Committee of the Whole on the bill for admitting the Territory of Orleans into the Union as an independent State, &c.

Mr. Wheaton. – Whenever a bill is offered for our sanction, in order that it may become a law, it is proper, before we give it such sanction, that we should inquire whether the subject of it is such as we have constitutional authority to legislate upon; and if so, whether, from a consideration of time and circumstances, it be expedient so to do.

It appears to me that the bill now before us is objectionable on both these grounds, and, if so, there is a double reason why it should not pass. A few moments will be sufficient for the remarks I have to make upon either; and, if they shall be deemed of no consequence, there will be this consolation, that they will have occupied but very little time.

The subject of this bill is the Orleans Territory, and the object of it, to form that Territory into a State, the people of which are to be subject to the same duties, and entitled to the same privileges, as the people of the United States in their federative capacity. It will be observed that our constitution, by its enacting clause, was ordained and established for the then United States of America. The United States being thus included, implies an exclusion of all others. It may, therefore, be fairly concluded that those that framed this constitution, and those that adopted it, never intended that its immediate operation should extend to any people that did not then, or that should not thereafter be included within the limits of the United States; that they did not intend to enter into a partnership of this sort without some knowledge of those that should compose it, lest the improper conduct of some might end in the ruin of all. The Territory of Orleans certainly was not within the limits of the United States when the constitution was established. It was known to be otherwise. The people there were foreigners to us, and subjects of another Government. That it could not have been intended that the constitution should embrace these people and this Territory, may be argued from the extreme danger of carrying the principle into operation. If we may extend our limits at all, without the consent of the people, further than what is expressed in the constitution, who can tell where will be our ultimate bounds, or what number of States we may have in the Union? Purchase and conquest are objects of ambition. The great Napoleon may have more land to sell, and Spain now possess what she cannot retain. May we not, in time, have the whole of South America, some of the West India islands, and, possibly, Great Britain? And if so, upon the same principle that we form the Territory of Orleans into a State, we may form these Territories into as many separate States as we please, and admit them into the Union with all the powers and privileges that any of our States now possess and enjoy. Then what will become of the Old United States, who first entered into the compact contained in the constitution, and for whose benefit alone that instrument was made and executed. Instead of these new States being annexed to us, we shall be annexed to them, lose our independence, and become altogether subject to their control. Besides, it may be recollected, that, when our independence and national existence was acknowledged by the other nations of the world, the Territory now proposed to be received into the Union made no part of the United States so acknowledged; if, therefore, this be done, a jealousy may be created in those other nations, and, possibly, they may have some reason to complain that, in addition to the immense increase of population within our ancient limits, we should extend our boundaries so far as to include other countries. This, however, by those who justify the Governments of other nations in the pursuit of their projects for universal domination, will be thought deserving of very little consideration. But, it may be well questioned how far the taking of positions that may lead to war comports with that pacific disposition which the people of the United States have been so anxious to maintain; and, whether the obligation they have placed themselves under, by adopting the constitution, to guaranty to every State in the Union a republican form of government, and to protect each of them against invasion, can be made to extend to the Orleans Territory; or, whether the President can have any authority to send our militia there to repel any invasion or suppress any insurrection that may happen there, are inquiries worth some attention before we pass this act. And there will be found another difficulty in the way of carrying the object of it into full effect. If the people of that Territory are admitted into the Union as a State, on an equal footing with any of the now United States, they will have a right to send to our Legislature not only Representatives in proportion to their numbers, but, also, two Senators, and the constitution makes it a necessary qualification for a Senator that he should have been a citizen of the United States at least nine years, a period further back than it can be pretended that any of the people of that Territory ever belonged to the United States, unless they be emigrants, and have not, thereby, lost their citizenship. And a President of the United States they never can have from among their own people, unless he be yet to be born, for no person except a natural born citizen, or a citizen of the United States at the time of the adoption of the constitution, can be eligible to the office of President. But, it has been said that Congress have already passed a law, wherein they have stipulated with those people, that they shall be formed into a State when they shall have gained a certain number of inhabitants. In answer to this, it is sufficient to say that, if it be incorrect to promise to do a wrong thing, it is more incorrect still to do it. If this bill be unconstitutional, so was that law.

But, in opposition to all this, it will, undoubtedly, be said that several new States have been formed by Congress since the adoption of the constitution, and that they are well authorized by that instrument. This is admitted. "New States may be admitted by the Congress into this Union." But, if we look into the article where this authority is to be found, we shall find it applicable to the territories then included within the limits of the United States, or to a division of some of the States then already formed; beyond which, it is believed, this authority has never been exercised. The Old Confederation did expressly authorize the admission of Canada into the Union, but the present constitution does not. If such an authority had been proposed to have been given to Congress by it, perhaps it had never been adopted.

If, however, it should be believed that this bill might pass into a law, in strict conformity with the spirit and letter of the constitution, it is apprehended that the measure would be extremely impolitic and inexpedient at the present moment. We have not even the possession of a part of the country proposed to be embraced by this bill, and both title and possession have been disputed. It is true we have bought the whole country, and dearly paid for it, but still, if we have not a just title, we ought not to expect to hold it; and it is now admitted to be a subject of negotiation; and, even if our titles shall be found to be good, and we gain a peaceable possession, still, if we have a right to buy a thing, I know not why we may not sell it. But, as the expediency of this measure has been considered by other gentlemen, I forbear to add to the remarks I have already made.

Mr. Miller said it would be observed that there were two applications to this House for admission into the Union as States; one from the Mississippi Territory, and the other from the Orleans Territory. The latter only, said he, is contemplated by the bill before you. Neither of these Territories have the number of inhabitants required by law to enable them to demand their admission into the Union as a matter of right. It may, therefore, be said with propriety to be an application for a favor, going directly to an amicable discussion, and which we may grant or refuse without running the risk of breaking any legal or moral obligation.

It has been objected against this bill that the population of the State proposed will not be American. Without intimating how far this consideration may have influence on my mind, under the circumstances in which that country has been lately placed, I cannot, however, but remark that it is natural for man to carry his feelings and prejudices about him. I was born in Virginia, sir, and I have not yet lost some of my Virginia feelings, notwithstanding an absence of fifteen years, and I cannot see why we should expect the people of Orleans to act and feel differently from other people, more particularly, when the French nation is towering so far above the other nations of the earth; they will have a secret pride in their glory, they will have some attachments, to what extent I cannot say; but, inasmuch as we know that if we send Paddy to Paris, that Paddy he will come back, the idea is certainly not unworthy of our consideration.

The bill on your table has another objection, of some weight with me, in relation to its policy. You propose to do them a favor by granting them an admission to the rank of other States before they can legally demand it, and, at the same time, you propose terms beyond which they cannot go. This, sir, resembles very much a polite invitation to walk in, but under an injunction to see that your feet are well cleaned, and your toes turned out. It is a niggardly sort of policy that I am sorry to see engrafted in the bill. If you design to be liberal, be so; do not destroy your liberality by an ungenerous sentiment.

Again, sir, there are objections to the bill, as presented, that renders it impossible for me to give it my sanction. It will be seen, sir, that the bill proposes to annex that portion of West Florida in dispute between this and the Spanish Government to the State to be formed out of the Territory of Orleans. The President has declared to the world that this portion of the country, in our hands, shall be subject to mutual arrangements, hereafter to be entered into between the two Governments. But, once annex it to a State and the power to negotiate ceases. What power have we to negotiate about the territory of any of the States? We have none.

Again, sir, I never will consent that the bay of Mobile shall be annexed to any State which includes New Orleans and the mouth of the Mississippi, unless, indeed, they are both included in the same State with the whole country north, up to the Tennessee line.

If you annex West Florida to the State to be composed of the Orleans Territory, they will then possess a narrow slip of the country, including nearly the whole of the seacoast of Orleans, (including the bay of Mobile,) with a most extensive up-country, composed of a great part of the Mississippi Territory, and, I may say, Tennessee, wholly dependent on them, perhaps, for leave to go out into the bay, and, certainly, for the improvement of its navigation. And this, sir, is rendered more probable, as we know men act mostly for their own interest. And, as New Orleans, from its present population, will govern the councils of that State, let me ask, sir, if it will not be their interest, as much as possible, to divert the 'trade and capital from the Mobile to the Mississippi? And what security have we that she will not do so? None; and from the nature of our Government can have none.

Upon the plan I propose, from the extent of the country proposed to be annexed, the people who inhabit it, in time, will have the preponderance, and their interest will dictate the proper course to be pursued in relation to the free passage of the Mobile.

We may, also, with some certainty, pronounce that the population of the Mississippi, if it is not now, will, in a few years, be the greatest slave population, in proportion to the whites, of any country in the United States. Is it, then, of no consequence to have those settlements so connected with others, composed of whites, as that they may, at all times, be able, within the limits of their jurisdiction, to suppress insurrections of that sort? Is not this a consideration that ought to be taken into account? I, therefore, move you, sir, to strike out the whole of the bill, from the words "a bill," for the purpose of inserting a section by way of amendment, the effect of which will be to consolidate both the Territories into a single State, which will include the whole of the country belonging to the United States, east of the Mississippi, and south of the State of Tennessee. This plan will avoid the objections made to the want of numbers, and will give, also, an American population to the State, if that should be desirable; and will, also, avoid the difficulty occasioned from the situation in which West Florida is at this time placed. To this plan I can see but one objection that ought to have any sort of influence, and that, sir, exists more in idea than reality. It is to the size of the proposed State. Divide and subdivide this country as you will, their interests, in a political point of view, will be the same. Their representation in this House will neither be increased nor diminished by a consolidation. In the Senate, the plan proposed is greatly to the advantage of the old States. In that House, they will have but two Senators instead of four or six, according to the number of States that may be made.

There is, also, no legal objection to this plan. The Treaty of 1803 with the French Republic, only provides for their admission into the Union, without regard to their territorial limits, and there is no law repugnant to the plan.

Mr. Gholson said that the observations of the gentleman from North Carolina (Mr. Macon) had rendered it unnecessary for him to make many of the remarks to the committee which he had intended. In no point of view, said Mr. G., in which this subject has been considered, can I perceive any reason for adopting the amendment offered by the gentleman from Tennessee, (Mr. Miller.) If that gentleman will only advert to the treaty of cession between France and the United States, and to the act of Congress passed pursuant to that treaty, he will readily discover that the amendment he proposes cannot be sanctioned without a manifest violation of public faith. By the third article of the treaty, it is stipulated that "the inhabitants of the ceded territory shall be incorporated in the union of the United States, and admitted as soon as possible, according to the principles of the Federal Constitution, to the enjoyment of all the rights, advantages, and immunities of citizens of the United States." On the second of March, 1805, Congress proceeded by an act of legislation to fulfil this engagement with France; and accordingly, by the 7th section of that act, provided "that whenever it shall be ascertained by an actual census or enumeration of the inhabitants of the Territory of Orleans, taken by proper authority, that the number of free inhabitants included therein shall amount to sixty thousand, they shall thereupon be authorized to form for themselves a constitution and State government, and be admitted into the Union upon the footing of the original States, in all respects whatever, conformably to the provisions of the 3d article of the treaty concluded at Paris on the thirtieth of April, one thousand eight hundred and three, between the United States and the French Republic." Now, if to the Orleans Territory you add the Mississippi Territory, and of the two erect one State, you evidently will not comply either with your stipulations with the French Republic, or with your covenant to the Orleans Territory. For, by these you have agreed that Orleans shall become a State and not part of a State only; and there is a wide and substantial distinction between incorporating that Territory, together with other Territories into a single State, as but a fractional part thereof, and authorizing the people of that Territory "to form for themselves a constitution and State government, and to be admitted into the Union upon the footing of the original States." In the former case they may possibly have no influence whatever in appointments to the other branch of the Legislature, and all their interior regulations may also, by possibility, be dictated to them by an ascendant population in the remainder of the State. In the latter case they will, of course, have the entire direction in regard to their system of police and their State institutions, and will moreover have a right, not participated in by any other persons, of sending two Senators to Congress. In fact they will be a distinct State sovereignty. Surely, then, there is a great and obvious difference between what we have so often promised these people, and what is now proposed for them.

Mr. Bibb conceived that the House could not adopt such an amendment as that proposed, without the consent of Georgia; for without her consent they could not make an addition to or division of the Mississippi Territory. It was true, he said, that he had on a former day proposed to make an addition of territory to the Mississippi Territory, but it was only during such time as it should remain a Territory. To this there could be no objection, as there was no prohibition to it in the compact. It had been his intention, if the House had thought proper to sanction his motion, to have made a proposition to the State of Georgia to admit that territory to be incorporated with the Mississippi. The amendment now offered evidently proposed a violation of the compact with Georgia.

Mr. Macon said this bill had taken rather a curious course. The principle and detail had both been attacked; and yet no proposal had been made to try whether the House would legislate on the subject. He had proposed an amendment to do away some of the objections to the detail; but instead of being allowed to amend the bill, the House were met by a constitutional objection, from the gentleman from Massachusetts (Mr. Wheaton) to the power of Congress to make a State. If this objection was good, Mr. M. said, he admitted the bill ought not to pass; for, Mr. M. said, on this point he could not agree with the gentleman from Tennessee, that because a treaty had been made in relation to it, it was too late to object to the constitutionality. Mr. M. said no; it was never too late to return to the constitution. If the article of the constitution, however, did not mean that Congress might take States out of new Territories, what did it mean? There was no occasion for it in relation to the old Territories; for the ordinance of the Old Congress had secured to them the right; and these ordinances were as binding as the treaties which Congress had entered into. The change of the form of Government did not affect national obligations. The right to become States was one which Congress could not take from the old Territories. The right of creating States out of acquired Territories, was one which he had always contended for; and it had been stated by at least one of those who formed the constitution, that this article had reference to Canada. "New States may be admitted by the Congress into the Union." At the time this provision was made, Florida and Louisiana were not thought of. Canada was the Territory kept in view. Much, sir, said Mr. M., as the United States wanted the southern country, and great as is the convenience of possessing it, I never would have consented to have taken it to have kept them in Territorial government forever. I do not want provinces. I am extremely sorry, sir, that whenever this subject is agitated, we are met by the objection that these people are of French descent. I have before expressed my opinion on this subject, and it is needless to repeat it; but if gentlemen wish them to become our brethren in reality, make them our equals; act just towards them. Do unto them as you would they should do unto you, and make them your friends. I know an opinion is entertained that only those who are of the favored race can be free. I know, sir, that the English nation has been freer than any other; but the time has been that Holland, Sweden, and others, have been free – power, however, overcame right, and the people lost their liberties.

I cannot consider it any question for our consideration, who shall be their Senators and who their Representatives. They have had some time a delegate, and will find delegates in the Senate as well as the House of Representatives. It seems to me, sir, that the gentleman from Tennessee need not to have referred to the dispute between the Potomac and the Delaware, because the constitution has put an end to these sources of strife. It is true, sir, that the Orleans Territory is a slave country, and I would be glad if they could get clear of them; but that does not at all affect this question.

The present situation of Mobile and Orleans is the reason why I want some alteration in the bill. I would rather not have them under the same Government. I have endeavored to ascertain the present population of the Orleans Territory, so called. There is a difference of opinion among those well informed on the subject, from 45,000 to 55,000. He wished gentlemen would permit them to try the question on the principle of the bill, and ascertain whether the House would do any thing with it or not.