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The Louisiana Treaty.

OCTOBER, 1803.

may be considered as admitted that it does not prohibit in express terms, the acquisition of territory. It is a rule of law, that in order to ascertain the import of a contract, the evident intention of the parties, at the time of forming it, is principally to be regarded. This rule will apply, as it respects the present question, to our Constitution, of which it may be said, as the great Dr. Johnson said of the science of the law, that it is the last result of human wisdom acting upon human experience. The Constitution is a compact between the American people for certain great objects expressed in the preamble, [Mr. E. here read the preamble.] in language to which eloquence and learning can add no force or weight. Previous to the formation of this Constitution there existed certain principles of the law of nature and nations, consecrated by time and experience, in conformity to which the Constitution was formed. The question before us, I have always believed, must be decided upon the laws of nations alone; and under this impression I have examined the works of the most celebrated authors on that subject.

there is one point in which we shall all meet with cordial unanimity. We all unite in an ardent devotion to the Constitution. He who is not devoted to it is unworthy of the honorable name of an American. I lament that it is necessary to speak particularly of myself; but duty, not only to myself, but to my constituents, a numerous and respectable section of the American people, demands it. It may be objected to me, and with truth, that there was a time when I professed sentiments hostile to some of the most important provisions in the Constitution. It was not, however, at the time when the Constitution was submitted to the people. I was then in infancy and obscurity, deprived of the means, and even of the hopes of education. I had yet read much and reflected more. My ardent and excursive eye had wandered rapidly over the wide field of ancient history; I thought I beheld my country, like the Roman Republic in the age of Cato, the sport of every wind and of every wave As far as I understood the Constitution, I admired it and wished for its adoption. But when an elegant anonymous writer predicted, as the consequence of its adoption, that "liberty would be but a name, to adorn the short historic in this country, at a moment when genius, fancy, page of the halcyon days of America," I trembled and shuddered for the possible consequences. If in the plenitude of juvenile self-sufficiency (and who has not been young?) I have since fancied that I could form a more perfect constitution, that dream of the imagination has long been past. I have long been sincerely and ardently attached to the Constitution.

I recollect a time, sir, when a foreign Minister and ardent patriotism, were lords of the ascendant over learning, wisdom, and experience, spoke of the law of nations and its principles as mere worm-eaten authorities, and aphorisms of Vattel and others. I also recollect that the illustrious man, who is now President of the United States, was then Secretary of State, and that he delivered the unanimous sentiments of the American peoI foresee that I shall be led into a wide field, ple when, in his reply to that Minister, he oband that I shall long, too long, occupy the attention served that something more than mere sarcasms of the Committee. Will the Committee hear me? of that kind was necessary to disprove those auI imagine that I read a favorable answer in the thorities and principles; and that, until they were countenances of all its members. I shall be inter-disproved, the American nation would hold itself rupted by no unpleasant indications of impatience, by no loud calls for the question.

bound by them. This is the man, sir, who has been so injuriously calumniated within these walls this morning, and upon whom such a torrent of bitter eloquence has been poured by the gentleman from North Carolina (Mr. PURVIANCE ;) a gentleman who is himself a model of eloquence, uniting all the excellencies of Cicero and Demosthenes, and all other orators, ancient and modern.

The treaty before us is of an immense consequence, and my attention was early turned to the subject. From the moment of my election, I have devoted many studious and laborious hours to the subjects connected with it, and I have anticipated all the objections against it; none of those presented this day by the gentleman from The American people, in forming their ConstiNew York, who opened the debate, or by the gen- tution, had an eye to that law of nations, which tlemen who followed him on the same side, have is deducible by natural reason and established by struck my mind as novel. The question of the common consent, to regulate the intercourse and constitutionality of the treaty first presents itself. concerns of nations. With a view to this law It is said to be unconstitutional, because it enlarges the treaty-making power was constituted, and by the territory of the United States. To reduce virtue of this law, the Government, and the peothe arguments of gentlemen on this head to syllo-ple of the United States, in common with all gistic form, they would not strike the mind with great force. The Constitution is silent on the subject of the acquisition of territory. By the treaty we acquire territory; therefore the treaty is unconstitutional. It has been well remarked by an eminent civilian, that those are not the most correct and conclusive reasoners who are very expert at their quicquids, their atquis, and their ergos; but those, who, from correct premises, by just reasoning, deduce correct conclusions. This question is not to be determined from a mere view of the Constitution itself, although it

other nations, possess the power and right of making acquisitions of territory by conquest, cession, or purchase. Indeed the gentlemen who deny us the right of acquiring by purchase, would probably allow us to keep the territory, were it obtained by conquest.

Colonies, or provinces, are a part of the eminent domain of the nation possessing them, and of course are national property; colonial territory may be transferred from one nation to another by purchase; this purchase can be effected by treaty alone, as nations do not, like individuals,

execute deeds, and cause them to be recorded in public offices; that department of the Government of the nation purchasing, which possesses the treaty-making power generally, is competent to make treaties for that purpose. These positions are established by the laws of nations, and are applicable to the case before us. [Here Mr. E. read a variety of extracts from Vattel to establish these positions, and observed that they were corroborated by Grotius, Puffendorf, and other eminent writers on the law of nature and nations, whose works he had consulted.]

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union, the "shadow of a shade," to borrow a poetical expression, of a federal system. Several States, sovereign and independent with respect to many objects, united under a national Government as it respected the most important national objects, and formed a federal system, novel in its nature, and unequalled in the annals of all ages and nations. The States as such were equal, and intended to preserve that equality; and the provision of the Constitution alluded to, was calculated to prevent Congress from making any odious discriminations or distinctions between particular States. "No preference shall be given to the ports of one State." It was not contemplated that this provision would have application to colonial or territorial acquisitions. But it is said that the treaty obliges us to receive the inhabitants of the ceded territory into the Union, and of course to form them into new States. By the treaty, "the inhabitants of the ceded territory shall be incor

admitted as soon as possible, according to the prin

A mere recapitulation, and that not a tedious one, of these principles and authorities, will now answer the present purpose. Colonies have always been considered as national property, although the law or practice of nations, in this instance, may not conform to the law of nature. Greece treated her colonies with peculiar indulgence: Rome considered any privileges which her's were suffered to possess, as mere matters ofporated in the union of the United States, and grace, not of right. The one was a natural and tender parent, the other a cruel stepmother. Yetciples of the Federal Constitution, to the enjoy I have no recollection that the Grecian colonies in Asia Minor, Italy, or even at Ionia, were represented in the Amphyctionic Council, the General Assembly of the States of Greece. The claim of the British Colonies, which now constitute the United States, to be represented in that body by which they were taxed, though just in itself, was novel and unwarranted by the practice of nations. Thank God the claim was successful, and in consequence of it, we are now here as the representatives of the American people, deliberating upon their most important interests. It is unnecessary to reiterate the other positions; they are undeniable in themselves, and their applicability to the present case will hardly be disputed. If the treaty be extremely pernicious, or has not been made by sufficient authority, or has been made for unjust purposes, it is void by the laws of nations.

Another ground of objection to the constitutionality of the treaty is taken. It is said that a clause of the Constitution which forbids any preference, as to duties and privileges, being given to the ports of one State over those of another, is irreconcileable with the seventh article of the treaty, by which "it is agreed between the contracting parties, that the French ships coming directly from France or any of her colonies, loaded only with the produce or manufactures of France or her said colonies; and the ships of Spain coming directly from Spain or any of her colonies, loaded only with the produce or manufactures of Spain or her colonies, shall be admitted during the space of twelve years in the ports of New Orleans, and in all other legal ports of entry within the ceded territory, in the same manner as the ships of the United States, coming directly from France or Spain, or any of their colonies, without being subject to any other or greater duty on the mer'chandise, or other or greater tonnage, than that paid by the citizens of the United States." Let us again inquire with what views, and for what objects, the Constitution was formed. The articles of Confederation were but a feeble band of Sth CoN.-15

ment of all rights, advantages, and immunities of 'citizens of the United States." This stipulation of the treaty is of a novel, singular, and curious nature, but does not diminish my zeal to have it carried into effect. A complete discretion is left to the United States as to the time and manner of admission, and I have no idea that it will be necessary to admit them within the twelve years during which France and Spain are to enjoy those privileges. The eloquent and honorable member from Virginia (Mr. R.) took a very different view of this subject, which of itself was perfectly satisfactory to my mind, and I could take still other views equally satisfactory. There can be no possible violation of the Constitution.

The expediency of the treaty is another question, and an important one. I once hoped that the interests of our country would never require an extension of its limits, and I regret even that that necessity now exists. Evils and dangers may be apprehended from this source, and great evils and dangers may possibly result. But the regions of possibility are illimitable; those of probability are marked by certain well defined boundaries, obvious to all men of reason and reflection, and, in the language of the poet,

"As broad and obvious to the passing clown, As to the letter'd sage's curious eye." If we cannot find, in the peculiar principles of our form of Government, and in the virtue and intelligence of our citizens, a sufficient security against the dangers from a widely extended territory, in vain shall we seek it elsewhere. There is no magical quality in a degree of latitude or longitude, a river or a mountain. And it has been well remarked, that every danger from this quarter might have been apprehended before the acquisition of this territory. The Roman Empire, or that of Alexander in the zenith of its glory, was scarcely capable of containing a greater population than the territory of the United States; and men conversant with history do not wonder at the transient existence and rapid ruin of those

empires. I repeat it, Mr. Chairman, we must look for our security in principles and circumstances inapplicable to the ancient nations. With the present question of expediency, I confess, sir, are naturally intermingled many considerations, infinitely interesting to the future peace, pros perity, felicity, and glory of our beloved country. The physical strength of a nation depends upon an aggregation of circumstances, amongst which, compactness of population, as well as territory, may be reckoned; our population may become too scattered; but this too is only a possible event. These possible evils ought not to be put in competition with the certain advantage which we derive from the acquisition.

OCTOBER, 1803.

tion of war precede a demand of justice. Other epithets which the gentleman applies to his favorite Administration I believe justly belong to the present one; bold, firm, intrepid, manly, virtuous, spirited; it is owing to its wise and temperate conduct that we are not now engaged in the hor| rors of war, and it has erected an immortal monument to its own glory. Yet we hear of malicious subaltern, and the epithet cowardly

Mr. PURVIANCE here interrupted, and observed that he did not use those expressions.

Mr. ELLIOT proceeded.-I wrote them down the moment the gentleman uttered them, and I could not understand them otherwise than as intended to have at least a remote application to ie President of the United States; I hope the tleman had no such intention. That we did not go to war, though peculiarly happy for our country, was probably unfortunate for that gentleman, as, in that event, he might have displayed, at the head of a triumphant army, those military talents which he undoubtedly possesses in an equal de

But a gentleman tells us that the Administration hold out to us an Eden of the western world, a land flowing with milk and honey, while they have obtained nothing but a dreary and barren wilderness. Perhaps, if the gentleman be correct, the acquisition is scarcely the less important. To demonstrate the advantages of this purchase, it is not necessary to describe Louisiana as an Ely-gree with his oratorical powers. sian region to describe it, as Homer does the Fortunate Islands, a region, on whose auspicious climate even Winter smiles, where no bleak wind blows from its mountains, and no gale is felt but the zephyr, diffusing health and pleasure. But from geographical information, defective as it is, and from reasonable analogies, we may conclude that, with the exception of some considerable tracts, it is a country fertile and salubrious. Geography points us to China, Persia, India, Arabia Felix, and Japan, countries situated in corresponding latitudes, which, though always overshadowed by the horrid gloom of despotism, are always productive, and teaches us by analogy that Louisiana, in natural fertility, is probably equal to those beautiful oriental regions.

I must remark upon another extraordinary part of that extraordinary speech. Was it politic, was it prudent, was it just, at a moment when such an important negotiation between the French and American Governments was closing, for a Representative of the American people to labor to irritate the French, or any portion of our own people, by ardent declamation against what is called the unbounded ambition and rapacity of the French Consul? That gentleman has told us what his great predecessor, but not equal in eloquence, Edmund Burke, told us long ago, that "the age of chivalry is gone." But why turn our attention at this moment to Switzerland, to Italy, to Hanover, the bloody scenes of revolutionary France herself? He deplores the fate of the royal Capets, The gentleman from North Carolina (Mr. PUR-devoted to destruction by the pert younglings of VIANCE) says, he shall vote for carrying the treaty into effect, because the possession of the territory is important, and the Administration not having, as it ought to have done, made use of men to obtain it, he will consent to make use of money. He has applied many curious epithets to the Administration. He wishes for an Administration athletic and muscular, meaning, I suppose, like the wrestlers in the Grecian circus, or the gladiators in that of Rome. When I came within these walls, sir, I ardently hoped that the voice of party would be silent during the discussion of this subject, and I did not expect to hear the Administration attacked in the language of vulgarity, malignity, and factious fury. When it is thus assailed, shall its defenders be silent? During the last session of Congress, an extraordinary degree of agitation was produced in the public mind by an egregious violation of our rights by an officer of the Spanish Government. Neither the people nor the Government were deficient in that spirit which the gentleman extols, but they were not governed by false ideas of national honor, and they were acquainted with the law of nations; they knew that we had no right to make the denunciatio belli precede the repetitio rerum-a declara

a day. If the French revolution has been unsuccessful, if the hopes of the friends of man and liberty have not been gratified, if the whole Eastern world is still to groan under the iron hand of despotism, is it a subject of such deep regret that a gleam of light has darted athwart the horrid gloom; that we have for a time anticipated, though we have failed to realize, the blessings of extended liberty? It is rather a subject of pleasure, and gratitude to Heaven. The First Consul is styled a Corsican usurper. I believe, sir, that there is not within these walls an admirer of the present Government of France. But we all know the distinction between a King or Government de jure and de facto. If Bonaparte be not the rightful ruler of the French Republic, he is the actual possessor of the powers of Government, and can bind the nation by treaties. If the Bonapartian shall have followed the Capetian race to the regions of the tomb, when the exchange of the ratifications of this treaty shall reach Paris, it will not be the less obligatory upon the French nation.

The gentleman to whom I have so often alluded denies all merit to the President and the American negotiators, and says that the King of Great Britain was our only meritorious and

successful negotiator. Without attributing to the President the powers of prophecy, I must hazard the opinion that, in common with all philosophic politicians, he foresaw that the peace between France and Great Britain would not be permanent. The elements of war were mingled with those of peace.

[Mr. SANFORD rose, and Mr. ELLIOT giving way, Mr. S. inquired of the Chairman, whether any rule existed by which members in Committee of the Whole could be required to keep closely to the point in discussion? The Chairman, Mr. DAWSON, replied, that it had not been customary, in Comittee, to confine gentlemen to narrow limits heir remarks.]

H. OF R.

lected a plain Western farmer. He was sorry to see so much time wasted. He begged the House would recollect the time within which it was necessary to pass laws for carrying the treaty into effect. Much has been said of a breach of the Constitution; but has any man shown it? The Constitution does not prohibit the powers exercised on this occasion; and not having prohibited them, they must be considered as possessed by Government. In his opinion, it was necessary to carry the treaty into immediate effect. This done, other measures would require attention which would afford an ample harvest for the talents and eloquence of gentlemen with which, on any other occasion, he would be highly pleased.

Mr. THATCHER was sorry to be obliged, at this late hour, to state his reasons for voting against the resolution; but he should not discharge his duty to his constituents, were he to refrain from expressing his ideas. These reasons he should state as briefly as possible. This resolution is general, and contemplates two objects; it calls for the occupation and government of Louisiana, and for an appropriation of fifteen millions of dollars. He had hoped that, on a question of such national importance, they would have been allowed the papers necessary for its elucidation. But gentlemen have denied us this privilege. As the question, whether the treaty should be carried into effect, is a great Constitutional question, I shall in my remarks confine myself to the Constitutional objections against the treaty. Two objections have been made arising from the 3d and 7th articles of the treaty.

Mr. ELLIOT concluded as follows: I had determined, sir, on the first unequivocal manifestation of impatience by any member, immediately to close my observations. I acknowledge that I have imperceptibly occupied more than my share of the valuable time of the Committee. But I had not quite done with the gentleman from North Carolina. I have paid him some compliments as an orator, perhaps more than were due to the merit of his oration, or the character of its author. I allude only to his political character; his private character, so far as I have information of it, I highly respect; but the political part which he acted this day was to me so extraordinary and astonishing, that I could not restrain the expression of my feelings. To other gentlemen on his side of the House, I look for real eloquence and ingenious argument. And although the gentleman from Virginia, (Mr. RANDOLPH,) from the display of his powers this day, may safely trust his fame as an orator to the impartial voice of history and posterity, in competition with any orator on the other side of the House, yet I am not without my fears, from former specimens of the talents of gentlemen in the opposition, that we shall one day be swept away in the overwhelming tide of their eloquence. The friends of the present Adminis-be tration can behold, with emotions only of pity, mixed with contempt, the innumerable little, muddy, murmuring rills of faction, folly, and slander, which, like spots upon the orb of day, are scattered upon the fair scenery of our far extended country. But they are compelled to listen, with a loftiness of feeling bordering on sublimity and not unmingled with terror, to the awful roaring of that tremendous torrent of opposition eloquence which resounds within these walls, thunders around the Capitol, terrifies the Administration, and makes even the Republican system itself tremble to its

centre.

Mr. CLAIBORNE urged the propriety of coming to an immediate decision, declaring his conviction of the constitutionality and expediency of the treaty.

Mr. THATCHER moved that the Committee should rise.

Motion lost, without a division.

Mr. SANFORD did not rise to make a display of his talents. Those who had confided to him the representation of their interests could have no such expectations, as they had unfortunately se

6

The third provides 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; and in the mean time they shall

maintained and protected in the free enjoyment of their liberty, property, and the religion which they profess."

I conceive, said Mr. T., that the only sound doctrine is, not that which has been stated by the gentleman from Kentucky, (Mr. SANFORD,) that whatever power is not prohibited by the Constitution is agreeable to it, but that such powers as are not given are still held by the States or the people. No arguments have been addressed to prove that the Constitution delegates such a power. The gentleman from Vermont, (Mr. ELLIOT,) who has gratified us with so long and flowery a speech, and who has ransacked Vattel, and various other eminent authors on the laws of nations, has proved that where the United States have a right to make a treaty, a treaty may be made. But these authorities do not apply unless he prove that the Constitution gives the powers exercised in the present instance. The Confederation under which we now live is a partnership of States, and it is not competent to it to admit a new partner but with the consent of all the partners. If such power exist, it does not reside in the President and Senate. The Constitution says

new States may be admitted by Congress. If this article of the Constitution authorizes the exercise of power under the treaty, it must reside with the Legislature, and not with the President and Senate.

OCTOBER, 1803.

decided preference over all the other ports of the Union, inasmuch as the vessels of Spain and France entering that port will have to pay no higher duties than are demanded of our own vessels. The consequence will be, that the ships of The gentleman from Virginia says, the princi- Spain and France will come in, and supply not ple contained in the third article of the treaty only New Orleans but all the country bordering has been already recognised by Congress, and has on the Mississippi and the Ohio. What will be instanced our treaties with Spain and Great the consequence of this to the Eastern States, Britain respecting the adjustment of our limits. which the gentleman from Virginia has so handBy adverting to these treaties, it will be seen that somely complimented? If they possess a spirit of there was then no pretence that we had acquired enterprise, it ought to be encouraged; instead of new territory. They only establish our lines that, the effect of this treaty will be, that they must agreeably to the Treaty of Peace. Certainly then bring their goods from Europe to their own ports, the facts are not similar, and there exists no anal- and then carry them to New Orleans; by which ogy of reasoning between the two cases. The freight and insurance will be greatly increased; gentleman from Virginia asks whether we could and these charges will enable the French and not purchase the right of deposit at New Orleans? Spanish vessels to monopolise the carrying trade. But the argument meant to be conveyed in this But it is said, this is not a Constitutional, but a question does not apply. We had the right before legal provision. Now, if I can understand the obthis treaty was formed; nor did we, in consequence ligations imposed by the Constitution, every deof that right, undertake to admit the people of partment of the Government is bound by it. I New Orleans into the Union. conceive that the President and Senate in making Gentlemen say, we were for going to war dur-treaties, as well as the Legislature in making ing the last session, for the purpose of acquiring laws, are bound by it. However great gentlemen new territory. Mr. T. knew the gentlemen with may imagine the benefits of this treaty, they do whom he generally acted, asserted on that occa- not affect the Constitutional question. It was not sion the right of the United States to the deposit therefore necessary to discuss the expediency of at New Orleans, and were, in defence of that right, the measure, if unconstitutional; but as gentleready to go to war if necessary. But he had men had dressed these advantages in very alluring never heard that it was intended to hold that right colors, it might not be improper to say that, if it in perpetuity; he believed it was only contem- went into effect, it would carry from its present plated to hold it as a pledge until our right should centre a great portion of the population of the be restored, and indemnity rendered for our in- United States; would probably remove the seat juries. of Government, and might dismember the Union.

It is said that the preference given in the treaty to Spanish and French vessels is to be considered as part of the purchase money. But will gentlemen say it was a part of the purchase money when it is applied as well to Spanish as French vessels, though the purchase is altogether made of France? For these reasons it is, that the gentleman from Virginia has not convinced my mind respecting the constitutionality of this power. If it is not expressly delegated, I must hold that it is still retained by the States or the people. I believe, also, that the power now contended for by gentlemen implies the power of alienating a part of the United States, and that we might as constitutionally alienate Massachusetts and annex it to the British Provinces; for these rights of annexation of new territory and alienation of old must go together: and I shall not be surprised hereafter, if this treaty shall go into effect, at Massachusetts or Vermont being annexed to the British Provinces. Under color of this power, a large portion of the Union may be annexed to some European Kingdom, so as totally to change the principles of our Government.

So far as the provisions of this treaty affected the Eastern States, it bore hard upon their interests. The Constitution says, "no preference shall be given by any regulation of commerce or revenue to the ports of one State over those of anoother." Now, if this territory shall be annexed to the United States, New Orleans will have a

Mr. T. was not disposed to discuss the causes which have produced the dismemberment of empires, though all history showed that great empires, whether monarchies or republics, had been ultimately broken to pieces by their magnitude.

This acquisition of distant territory, said Mr. T., will involve the necessity of a considerable standing army, so justly an object of terror. Do gentlemen flatter themselves that, by purchasing Louisiana, we are invulnerable? No, sir, Spain will still border on our Southern frontier; and so long as Spain occupies that country we are not secure from the attempts of another nation more warlike and ambitious.

Under these impressions it was impossible for him to vote for the resolution.

Mr. RANDOLPH was sensible of the value of the time of the House, and would not, in the few remarks he should make, occupy five minutes. The gentleman from Massachusetts (Mr. THATCHER) had misapprehended and misstated what he had previously observed. He had not said that the Constitutional question made by gentlemen was a mere legal injunction which that House might get rid of; but he had said that the preference of our ships over foreign ships was a legal regulation; and that, therefore, those gentlemen who were now so tender with regard to the Constitution, might have it in their power entirely to get rid of the Constitutional difficulty, by taking off from the ships of Spain and France such duties as