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The Louisiana Treaty.


Iberville, and the lakes Maurepas and Pontchartrain, or in other words to the island of New Orleans; but the French Prefect on the contrary declared that he neither had nor would give his assent to the establishment of those limits, which would be regarded no longer than until the arrival of their troops.

The same gentleman (Mr. PICKERING) has said that the advocates of this measure seem to rely much more upon their power than upon their right, and in this assertion I am compelled to say that he has done us very great injustice. The title of the French is founded upon the often quoted treaty of St. Ildefonso, confirmed by the royal order signed by the King of Spain himself, so lately as the 15th October, 1802, directing the delivery of the "colony of Louisiana and its depen

to deliver up Louisiana to France, or to the United States? We have some reason to think that such is the fact; and resistance, he presumed, was apprehended. Why, else, all this parade of war? Why had the President been authorized to employ the Army and Navy of the United States, and to call forth any portion of eighty thousand militia? Honorable gentlemen, he knew, held cheap the power of Spain; they have spoken plainly their opinion of her feebleness and inability to withstand the force of the United States: and have seemed to rest the security of our title (as he remarked on a former occasion) rather on that feebleness and inability, than on the validity of the cession from the French Republic'; and one honorable gentleman has said, that Spain will be left alone; that the French Republic is bound in honor not to give her any aid. The French Republicdencies as well as of the city and island of New bound in honor! For ten or fifteen years past, we had known too well what were the honor and the justice of the Government of that Republic. Perhaps Spain may not resist at the present moment. She may wait until France gets the war with Britain off her hands. Then pretences will be easily found to reclaim Louisiana; and Spain. once engaged to wrest it from us by force, will receive from France, her ally, all necessary aid. Mr. P. believed that this whole transaction had purposely been wrapt in obscurity by the French Government. The boundary of Louisiana, for instance, on the side of Florida was, in the treaty, really unintelligible; and yet nothing was more easy to define. The French Government, however, would find no difficulty in the construction. An honorable member from New Jersey (Mr. DAYTON) had informed us, that the French Prefect, at New Orleans, told him, that as soon as General Victor should arrive with the French troops he should extend Louisiana far into West Florida.

Orleans, without any exception, to General Victor, or other officer duly authorized by that Republic to take charge of the said delivery."

Mr. P. said, that whatever way he turned his eyes, war was in prospect, as the final result of our pacific measures-measures deemed so wise as to have been ascribed to divine inspiration! He wished they might merit that high character; but feared, in the end, they would bear the stamp of indiscretion, perhaps of folly.

When at New Orleans in July last, I obtained from the best source a translated copy of that royal order, and can aver that it absolutely directs possession to be given without reservation or condition. It is not, and cannot be, denied that the lately ratified treaty of Paris transfers to us completely all the title acquired by France in virtue of the first treaty and order alluded to. We have, then, most incontestably the right of possession, and our object now is, by passing the bill before us to obtain the possession itself, which we can certainly never effect, consistently with good faith, if the reasonings and objections of my honorable friends from Delaware and Massachusetts should prevail. We are asked by the same gentlemen what will be the consequence if it shall appear that the royal order has been revoked? I answer, first, that it is not in the least degree probable, for neither of them pretend to have heard of such revocation, nor is it intimated in the confidential communications before the Senate. But admitting for argument's sake that it were revoked, of what avail could it be against a third party, who had in the meantime become a bona fide purchaser? Shall one nation give to another a written, formal evidence of transfer of territory, and revoke it at pleasure, especially after a third shall have been tempted and induced by that very evidence of title to contract for the purchase of it. Would an act so fraudulent be countenanced between individuals in a court of equity? Could it be justified between nations in a high court of honor? The honorable gentleman from Delaware has taken a more delicate ground of objection. He has insinuated that there exists in the knowledge of the Senate, the evidence of a serious opposition to our possessing that country, which if known to the other branch of the Legislature would probably have defeated this bill in its progress there. Allusions artfully made in this manner to documents communicated under the injunction of secrecy, place us in an embarrassing situation. Forbidden by our rules to expose the papers referred to, even in argument, we can only declare what impressions they have

Mr. DAYTON.-As the honorable gentleman from Massachusetts has quoted what was suggested by me in a former debate, to deduce from it an inference which the information I gave can by no means warrant, I must be allowed the liberty of correcting him. When I said that there existed an essential difference between the French and Spanish officers at New Orleans as to the real boundaries of the province of Louisiana, I did not mean to insinuate that this disagreement extended so far as an opposition to the French taking possession. It was a question of limits only, varying, however, so much in extent as would have produced a serious altercation between those two countries, although closely allied.

The Spanish Governor had taken it upon himself to proclaim that the province lately ceded and about to be given over to France would be confined on the east of the Mississippi to the river


The Louisiana Treaty.

made upon ourselves. Every Senator must understand him, every one must have heard and read, and weighed deliberately the contents of those documents, and, for myself, I am free to avow my belief that, if known to every member of the other House, they would have had no effect against this bill, but would rather have quick-possessed a right, as attached to sovereignty, of ened and insured its progress, for such is the in- acquiring territory, by war, purchase, or treaty. fluence they have upon me. This right must be either still possessed, or forThe same gentleman goes on to say, that our bidden both to each State and to the General own Government undoubtedly expects to meet Government, or transferred to the General Govwith opposition, and to be compelled to use vio-ernment. It is not possessed by the States seplence, instead of receiving peaceable possession, arately, because war and compacts with foreign or why should it send there so imposing a force. Powers and with each other are prohibited to a From what source that honorable gentleman has separate State; and no other means of acquiring acquired a knowledge of the number of troops territory exist. By depriving every State of the ordered down the river, he does not tell us, nor means of exercising the right of acquiring terriindeed how many he means when he calls the tory, the Constitution has deprived each separate force an imposing one. If in times of peace and State of the right itself. Neither the means nor profound tranquillity the Spaniards have found it the right of acquiring territory are forbidden to prudent to keep there constantly at least four or the United States; on the contrary, in the fourth five hundred troops, could we be justified in send- article of the Constitution, Congress is empowered ing no greater number when so important an act" to dispose of and regulate the territory belongis about to be performed as the transfer of an ex- ing to the United States." This recognises the tensive territory with the posts connected with it, right of the United States to hold territory. The and this too before we can have had an opportu- means of acquiring territory consist of war and nity of sounding the dispositions of the inhabitants compact; both are expressly surrendered to Conand of the Indians in the vicinity, in order to gress and forbidden to the several States; and no judge what effect the change will have upon them? right in a separate State to hold territory without These are wise precautions, which our Govern- its limits is recognised by the Constitution, nor ment, I presume, would take, even if they could any mode of effecting it possible, consistent with be most certain that the delivery would be vol- it. The means of acquiring and the right of holduntary and peaceable on the part of Spain, and ing territory, being both given to the United therefore afford no color for the presumption that States, and prohibited to each State, it follows they expect or intend to use violence. The bill that these attributes of sovereignty once held by before us is drawn up in terms which are at the each State are thus transferred to the United same time consistent with our late treaty, and States; and that, if the means of acquiring and perfectly well calculated to secure our interests, the right of holding, are equivalent to the right for it does not authorize payment of the stocks of acquiring territory, then this right merged from until after complete possession of the territory. the separate States to the United States, as indisTimely arrangements, which a law only can war-pensably annexed to the treaty-making power, rant, ought to be made for preparing the forms of and the power of making war; or, indeed, is litcertificates and for creating the stock, that every-erally given to the General Government by the thing depending on us may be ready; and where Constitution. can the discretionary power of transferring it in payment be so well vested as with the President, who will certainly be the first to know when we have received the valuable consideration for it, viz: actual possession? When this event happens, Congress, which the honorable gentleman thinks should be the only judge and sole depositary of this power, may possibly not be in session, and in this case, upon his plan, our plighted faith would be violated, our acquisition of the country jeop-collect that the negotiators must be supposed to ardized, and our right to it lost. If we thus sea- have understood our Constitution. It became sonably take all the preliminary steps for comply- very particularly their duty to do so, because, in ing with our stipulations, and obstacles should this article itself, they have recited "the princinevertheless exist to the attainment of our object, ples of the Constitution" as their guide. Hence, it will be seen and known that they are not of it is obvious, they did not intend to infringe, but our creation, but that we stand ready to fulfil all to adhere to those principles; and therefore, if the the engagements on our part, as I trust we shall article will admit of a construction consistent with be to compel it, if there be need, on the part of this presumable knowledge and intention of the others. negotiators, the probability of accuracy will be greater than one formed in a supposition that the negotiators were either ignorant of that which they ought to have known, or that they fraudu

Having proved, sir, that the United States may constitutionally acquire, hold, dispose of, and regulate territory, the other objection to be considered is, whether the third article of the treaty does stipulate that Louisiana shall be erected into a State? It is conceded that the treaty-making power cannot, by treaty, erect a new State, however they may stipulate for it. I premise, that in the construction of this article, it is proper to re

Mr. TAYLOR.-There have been, Mr. President, two objections made against the treaty; one that the United States cannot constitutionally acquire


territory; the other, that the treaty stipulates for the admission of a new State into the Union; a stipulation which the treaty-making power is unable to comply with. To these objections I shall endeavor to give answers not heretofore urged. Before a confederation, each State in the Union

The Louisiana Treaty.


lently professed a purpose which they really intended to defeat. The following construction is reconcileable with what the negotiators ought to have known, and with what they professed to intend.



out limitation? Again; the concluding member of the article is to bestow "protection in the mean time;" incorporating this stipulation, and the stipulation for citizenship, with the construction which accuses the treaty of unconstitutionality, the article altogether must be understood thus, "the inhabitants of the ceded territory shall be taken into the Union of States, which will instantly give them all the rights of citizenship, after which they shall be made citizens as soon as possible; and after they are taken into the Union of States, they shall be protected in the interim between becoming a State in the Union, and bemade citizens, in their liberty, property and 'religion."


Recollect, sir, that it has been proved that the United States may acquire territory. Territory, so acquired, becomes from the acquisition itself a portion of the territories of the United States, or may be united with their territories without being erected into a State. An union of territory is one thing; of States, another. Both are exemplified by an actual existence. The United States possess territory, comprised in the union of territory,ing and not in the union of States. Congress is empowered to regulate or dispose of territorial sections of the Union, and have exercised the power; but it is not empowered to regulate or dispose of State sections of the Union. The citizens of these territorial sections are citizens of the United Ssates, and they have all the rights of citizens of the United States; but such rights do not include those political rights arising from State compacts or governments, which are dissimilar in different States. Supposing the General Government or treaty-making power have no right to add or unite States and State citizens to the Union, yet they have a power of adding or uniting to it territory and territorial citizens of the United States. The territory is ceded by the first article of the treaty. It will no longer be denied that the United States may constitutionally acquire territory. The third article declares that "the inhabitants of the ceded territory shall be incorporated in the Union of the United States." And these words are said to require the territory to be erected into a State. This they do not express, and the words are literally satisfied by incorporating them into the Union as a territory, and not as a State. The Constitution recognises and the practice warrants an incorporation of a Territory and its inhabitants into the Union, without admitting either as a State. And this construction of the first member of the article is necessary to shield its two other members from a charge of surplusage, and even absurdity. For if the words "the inhabitants of the ceded territory shall be incorporated in the Union of the United States" intended that Louisiana and its inhabitants should become a State in the Union of States, there existed no reason for proceeding to stipulate that these same inhabitants should be made "citizens as soon as possible, according to the principles of the Federal Constitution." Their admission into the Union of States would have made them citizens of the United States. Is it not then absurd to suppose that the first member of this third article, intended to admit Louisiana into the Union as a State, which would instantly entitle the inhabitants to the benefit of the article of the Constitution, declaring, that "the citizens of each State shall be entitled to all the privileges and immunities of citizens in the federal States," and yet to have gone on to stipulate for citizenship, under the limitation "as soon as possible, according to the principles of the Federal Constitution" after it had been bestowed with

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(By supposing the first member of the article to require that the inhabitants and their territory shall be incorporated in the Union, in the known and recognised political character of a Territory, these inconsistencies are avoided, and the article reconciled to the Constitution, as understood by the opposers of the bill; the stipulation also for citizenship "as soon as possible" according to the principles of the Constitution, and the delay meditated by these words, and the subsequent words "in the mean time" so utterly inconsistent with the instantaneous citizenship, which would follow an admission into the Union as a State, are both fully explained. Being incorporated in the Union as a Territory, and not as a State, a stipulation for citizenship became necessary; whereas it would have been unnecessary had the inhabitants been incorporated as a State, and not as a Territory. And as they were not to be invested with citizenship by becoming a State, the delay which would occur between the incorporation of the Territory into the Union and the arrival of the inhabitants to citizenship according to the principles of the Constitution, under some uniform rule of naturalization, exhibited an interim which demanded the concluding stipulation, for "protection in the meantime for liberty, property, and religion." As a State of the Union, they would not have needed a stipulation for the safety of their "liberty, property and religion;" as a Territory, this stipulation would govern and restrain the undefined power of Congress to make "rules and regulations for Territories."

If my construction is correct. all objections to the treaty and to this bill for fulfilling it, on the ground of unconstitutionality, are unfounded. The three distinct members of the third article will be each separately and distinctly complied with; first, by an incorporation of the territory and its inhabitants in the Union, as a Territory. Secondly, by admitting them to all the rights of citizens of the United States, under some uniform rule of naturalization; and, thirdly, by protecting their liberty, property, and religion, by "rules and regulations," to be, "in the meantime," enacted by Congress, under a Constitutional power extending to Territories, but not to States.

To prove the treaty unconstitutional, a member from Massachusetts, (Mr. PICKERING,) has quoted from the sixth article of the Constitution these words: "This Constitution, and the laws of


The Louisiana Treaty.


the United States which shall be made in pursuance thereof, and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land;" and he has reasoned upon the ground, that the words" in pursuance thereof," referred to treaties as well as to laws. But the difference between the phraseology in relation to laws and to treaties, is plain and remarkable; laws were to be made "in pursuance of the Constitution;" treaties "under the authority of the United States." This difference, probably, arises from the following consideration. The objects of the Legislative power could be foreseen and defined; therefore laws are limited to be made "in pursuance of" the definitions of the objects of Legislative power in the Constitution. But the objects of the treatymaking power could not be foreseen, and are not defined; by confining the treaty-making power to a definition of its objects in the Constitution, it can never be exercised if no such definition exists; and by misapplying to the treaty-making power, the definitions of Legislative power, every right possessed by the latter would be opened to the former. But if the words, "under the authority of the United States," are considered as having been applied to treaties, in place of these-" in pursuance of the Constitution," which are applied to laws; because the objects of treaties are not defined; then the treaty-making power retains all the political attributes belonging to it, not inconsistent with the principle of agency or subordination, interwoven with our policy in all its parts. Among these, is the right or attribute of acquiring territory. And it was probably the absence of a definition as to the objects of the treaty-making power, which suggested the precaution of checking it by two-thirds of the Senate; thus subjecting it, in this body, to the same restraint imposed upon amendments to the Constitution. Whether these observations, in relation to the quotation upon which the gentleman from Massachusetts relied, do or do not prove that the objects of the treaty-making power are undefined by the Constitution, and that it is incorrect to condemn this treaty by applying to it definitions made for Legislative power, is immaterial, if the construction I have given of the third article of the treaty is correct; because that construction proves its constitutionality upon the principles contended for by the gentleman himself; and if so, his reasoning, founded upon a construction of the Constitution forbidding the erection of new States to the treaty-making power, whether right or wrong, vanishes into smoke, as the third article requires no such thing.

Mr. BUTLER next delivered his sentiments in favor of the bill, as well as generally in favor of the treaty.

Mr. TRACY.-Mr. President: Ishall vote against this bill; and will give some of the reasons which govern my vote in this case.

It is well known that this bill is introduced to carry into effect the treaty between the United States and France, which has been lately ratified. If that treaty be an unconstitutional compact,

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such a one as the President and Senate had no rightful authority to make, the conclusion is easy, that it creates no obligation on any branch or member of the Government to vote for this bill, or any other, which is calculated to carry into effect such unconstitutional compact.

The third and seventh articles of the treaty are, in my opinion, unconstitutional.

The third article is in the following words: "The inhabitants of the ceded territory shall be incorporated into 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, and, in the meantime, they shall be maintained in the free enjoyment of their liberty, property, and the religion they profess."

The obvious meaning of this article is, that the inhabitants of Louisiana are incorporated, by it, into the Union, upon the same footing that the Territorial Governments are, and, like them, the Territory, when the population is sufficiently numerous, must be admitted as a State, with every right of any other State.

Have the President and Senate a Constitutional right to do all this?

When we advert to the Constitution, we shall find that the President, by and with the advice and consent of the Senate, may make treaties. Now, say gentlemen, this power is undefined, and one gentleman says, it is unlimited.

True, there is no definition in words of the extent and nature of the treaty-making power. Two modes of ascertaining its extent have been mentioned: one is, by ascertaining the extent of the same power among the monarchs of Europe, and making that the standard of the treaty-making power here; and the other is, to limit the power of the President and Senate, in respect to treaties, by the Constitution and the nature and principles of our Government.

Upon the first criterion, it is obvious that we cannot obtain any satisfactory definition of the treaty-making power, as applicable to our Government.

It is well known that, in Europe, any part of a country may be ceded by treaty, and the transfer is considered valid, without the consent of the inhabitants of the part thus transferred. Will it be said that the President and Senate can transfer Connecticut by treaty to France or to any other country? I know that a nation may be in war, and reduced to such necessitous circumstances, as that giving up a part or half the territory, to save the remainder, may be inevitable: the United States may be in this condition; but necessity knows no law nor constitution either; such a case might be the result of extreme necessity, but it would never make it constitutional; it is a state of things which cannot, in its own nature, be governed by law or constitution. But if the President and Senate should, in ordinary peaceable times, transfer Connecticut, against her consent, would the Government be bound to make laws to carry such a treaty into effect? Such a transfer of territory can certainly be made by the



It is agreed, by the friends to the treaty, that the President and Senate cannot transfer a State. Let us examine the power of introducing a State. Suppose Louisiana contain ten millions of inhabitants; or, for the sake of argument, let it be supposed that we had a President inclined to mon

monarchs in Europe, under the head of the treatymaking power. I am convinced, sir, that only a cursory view of this subject will be sufficient to show every reasonable man that the treaty-making power in the United States cannot be the same that it is in the European Governments; and further, that the only method to obtain a sound con-archical principles, and he lived in the northern struction of that power, as part of our Constitu- part of the Union, say in Connecticut or Massation, is by examining it with a view to the Con-chusetts, and that two-thirds of the Senate were stitution, and the nature and principles of our with him in sentiment, and that the four northern Government. provinces of Great Britain contained ten millions of inhabitants, and were ali determined monarchists, would the parties of the Union say it was competent and Constitutional for the President and Senate to introduce these ten millions of monarchists, who could at once out vote us all; and even give fifteen millions of dollars for the benefit of having them?

The Louisiana Treaty.

A number of States, or independent sovereignties, entered into a voluntary association, or, to familiarize the subject, it may be called a partnership, and the Constitution was agreed to as the measure of power delegated by them to the Federal Government, reserving to themselves every other power not by them delegated. In this Constitution they have restricted the powers of Congress, or the Federal Government, in a number of instances. In all these, I think the treaty-making power is clearly restricted, as much as if it had been mentioned in the restriction. For instance, Congress can lay no tax or duty on The principle of admission, in the case of Louarticles exported from any State. If this restric- isana, is the same as if it contained ten millions tion should be violated by treaty, could it be thought of inhabitants; and the principles of these people valid? Congress can give no preference by any are probably as hostile to our Government, in its regulations of commerce or revenue to the ports true construction, as they can be, and the relative of one State over those of another. Can this pref-strength which this admission gives to a Southerence be given by treaty, and the preference be ern and Western interest, is contradictory to the Constitutional? If the treaty-making power is principles of our original Union, as any can be, so extensive as not to be limited by the Constitu- however strongly stated. tion, we must submit to the most extraordinary condition, of seeing the parts of a Government, when acting separately, possessing more power than the whole when acting together. And this further absurdity would follow: Congress itself would be released from an equivocal restriction, contained in the Constitution in the cases mentioned; for if a treaty, containing stipulations to tax exports, or giving commercial preference to one port over another, be Constitutional, it is, of course, binding on every branch of the Government, and we should see the Government not only released from a Constitutional restriction, by such a treaty, but absolutely bound by it to act in open violation of the Constitution.

The paragraph in the Constitution, which says that "new States may be admitted by Congress into this Union," has been quoted to justify this treaty. To this, two answers may be given, either of which are conclusive in my favor. First, if Congress have the power collectively of admitting Louisiana, it cannot be vested in the President and Senate alone. Second, Congress have no power to admit new foreign States into the Union, without the consent of the old partners. The article of the Constitution, if any person will take the trouble to examine it, refers to domestic States only, and not at all to foreign States; and it is unreasonable to suppose that Congress should, by a majority only, admit new foreign States, and Many instances could be given, but I cannot swallow up, by it, the old partners, when twoconceive, that any sober opinion can be entertain-thirds of all the members are made requisite for ed, that the treaty-making power is not limited the least alteration in the Constitution. The words by the restrictions contained in the Constitution. of the Constitution are completely satisfied, by a To give a precise definition, and mark out un- construction which shall include only the admiserring limits to the treaty-making power, by the sion of domestic States, who were all parties to nature and principles of our Government, is not the Revolutionery war, and to the compact; and an easy task, neither is it requisite for the pur- the spirit of the association seems to embrace no pose of obtaining clear ideas upon the point now other. But I repeat it, if the Congress collectivebefore us. ly has this power, the President and Senate cannot, of course, have it exclusively.

I think, sir, that, from a fair construction of the Constitution, and an impartial view of the nature and principles of our association, the President and Senate have not the power of thus obtruding upon us Louisiana.

The object of the original sovereignties, or partners to the compact, is obvious, from the Constitution itself; they united as equals in power, to promote the political welfare of all. Certain powers they gave: but no one partner can be supposed stupid enough to give power to transfer itself, without and against its consent, to the Government of Algiers, or any other despotic Government.

The principles of our Government, the original ideas and rights of the partners to the compact, forbid such a measure; and without the consent of all the partners, no such thing can be done.

But it is said, that this third article of the treaty only promises an introduction of the inhabitants of Louisiana into this Union, as soon as the prin

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