deny, that it was his wish to seize upon New Orleans by force? Will he deny, that this, and this alone, was the reason why his friends and himself did not unite with us in the measures then adopted for the purpose of acquiring this country? If the gentleman's object was war, if his object was conquest, did he mean that we should drive all the inhabitants of the island into the Gulf of Mexico, and afterward retire into our own limits? Did he wish that we should fight for the sake of conquest only, and not with a view to enjoyment? If he then thought that, after conquering New Orleans, we should have a right to hold it, surely, it will not now be denied that we can hold it, after having obtained it by peaceable measures.

H. OF R.

ment the whole is, of course, invalid. There may be some plausibility in this argument, but it is plausibility only. It has been already proved that the treaty-making power frequently and of necessity embraces objects not in the power of the President and Senate, but of the whole Legislature, yet that this does not of course invalidate the treaty. It may be shown that, where a treaty contains stipulations which are not in the power of the General Government, and, of course, cannot be carried into effect, yet that this does not invalidate the whole, although these particular stipulations may of themselves be void. An instrument might sometimes contain covenants which were impossible, or that were mala in se ; these, of course, would be void, but others might, nevertheless, stand good. I take a distinction, which I am warranted in by the best writers, between articles of a treaty, which are violated by one party, and articles which, from the nature of things, or from previous engagements, are void. Where one party violates an article in a treaty, the other has the right to declare the whole void, because the violation is a breach of faith, and is a voluntary act. But where some of the stipulations of a treaty are impossible to be performed, or cannot be fulfilled consistently with the engagements of an antecedent treaty with a third Power, these are, of course, void, but other parts will stand good. A variety of cases might be cited to prove this, but a very strong one will be found in our Treaty of Peace with Great Britain, concluded in 1783. The fourth article of that treaty provided that creditors on either side should meet with no lawful impediment to the recovery of debts bona fide contracted previous to the war. This was a stipulation which Congress could not perform. In all matters relating to the recovery of debts, the individual States retained entire and uncontrolled authority. The objects embraced by this article were completely out of the power of Congress. The right to make treaties had been committed by the articles of Confederacy to the General Government, but, in this particular, the assent of the States was absolutely necessary before that part of the treaty could be carried into effect. Great Britain remonstrated repeatedly, but some of the States, particularly Virginia, refused to concur. Congress recommended it to the States, to declare the treaty the supreme law, but the recommendation was not attended to. That article of the treaty was, of course, invalid, and never was fulfilled on the part of the United States. Yet it is certain that the whole treaty It is said, however, that Congress cannot, under was not thereby rendered a nullity. Our indethe Constitution, admit foreign territory into the pendence was acknowledged. Hostilities ceased, Union upon an equal footing with the States, even and the British armies were withdrawn. The under that article of the Constitution which pro- cases are extremely analogous, and if it should vides that new States may be admitted. I have finally be determined that Congress cannot admit before said that, upon this point, I mean to offer the ceded territory into the Union as a State, yet no opinion, because, at this time, I think it unne- the other parts of the treaty with France will cessary; nor need we now inquire, whether this stand good. If this was the intention of our Minis, in reality, the meaning of the treaty. The isters, (which, perhaps, may be doubted,) they gentleman from Connecticut, however, assuming seem to have guarded against the event of a refuthis ground, contends that as the treaty embraces sal either by Congress or by the people. For it is objects not in the power of the General Govern-declared expressly that, until the inhabitants can

The gentleman seems, however, partly to have abandoned this ground, but, in his opinion, the treaty itself violated the Constitution. With that gentleman, I am unwilling to set the Constitution at defiance. I trust we shall maintain it in all its vigor. The third article of the treaty, he says. either admits the ceded territory into the Union immediately, or pledges us to do it hereafter. It cannot be contended that the territory is ipso facto admitted, but the objection is, that the President and Senate have no right to pledge the Government for anything not immediately within their own powers. This objection is not solid. Every day's practice proves that it is without any force whatever. The President and the Senate have the treaty-making power vested in them, but almost all their treaties contain stipulations which must be performed by this House, if they are ever performed at all. In our last convention with Great Britain, the President and Senate pledged the United States to the payment of six hundred thousand pounds sterling, yet the payment of this money was not within the powers granted to them by the Constitution, nor could it ever have been paid without the concurrence of this House. It was never doubted, however, that this stipulation was Constitutional. The present treaty with France pledges the United States to the payment of fifteen millions of dollars, yet gentlemen do not question the constitutionality of this measure, although it never can be carried into effect without the co-operation of this House. In fact, there is no treaty made with a foreign Power in which some of the regulations must not lie entirely inactive, unless this House shall give its assent to them. So, in the present instance, the fifteen millions of dollars can never be paid, nor the ceded territory admitted into the Union, unless this House shall give its assent.

be incorporated into the Union, and can be admitted to all the privileges of citizenship, they shall be protected in the enjoyment of their civil and religious rights.

OCTOBER, 1803.

revive it, although possibly a majority of that House might be inclined to assent to it. Yet this could have no connexion with the treaty, much less could it have any connexion with the question immediately under consideration. We only have to determine whether we will carry this treaty into effect. Whether we will agree to appropriate the fifteen millions of dollars, and authorize the President to take possession. The latter has been agreed to, and surely we cannot consent to receive possession without paying the equivalent promised on our part.

Mr. N. closed his remarks by again begging pardon of the Committee for the time he had occupied, and offered his acknowledgments for the indulgent attention he had received.

The other Constitutional objection is raised upon the seventh article of the treaty, which provides that the ships of France and Spain shall be admitted for twelve years into the ports of the ceded territory, without paying higher duties than the ships of the United States. To this gentlemen have opposed that part of the Constitution which declares that no preference shall be given to the ports of one State over those of another, and that all duties, imposts, and excises, shall be uniform through the United States. There appears to be a strange inconsistency in the arguments of the gentleman from Connecticut. He Mr. RODNEY said, that in the observations he tells you that this territory is not a State, and that rose to make at that late hour, he should be brief, it never can become a State; yet he afterwards and apply them entirely to the Constitutional declares that the treaty violates the Constitution question, as it was scarcely contended the barby giving the port of New Orleans a preference gain was not a good one. In making them he over the ports of the Atlantic States. There is cordially joined with the gentleman from Consurely a contradiction here. Whatever may be necticut, (Mr. GRISWOLD,) when he expressed his the future destiny of Louisiana, it is certain that || wish that the discussion should be conducted with it is not now a State. It is a territory purchased coolness and temper. It was not only the duty, by the United States, in their confederate capacity. but the interest, of every gentleman on the floor and may be disposed of by them at pleasure. It that this important subject should be decided on is in the nature of a colony whose commerce may argument and argument alone. He felt the force be regulated without any reference to the Consti- of the objection urged by the gentleman from Matution. Had it been the Island of Cuba which ryland, (Mr. NICHOLSON,) that the discussion of was ceded to us, under a similar condition of ad- some of the points was premature. He should, mitting French and Spanish vessels for a limited however, enter into a brief exposition of them. time into the Havannah, could it possibly have been contended that this would be giving a preference to the ports of one State over those of another, or that the uniformity of duties, imposts, and excises thoughout the United States would have been destroyed? And because Louisiana lies adjacent to our own territory, is it to be viewed in a different light? Or can the circumstance of its being separated by a river only, instead of the sea, constitute any real difference in regard to the commercial regulations which we may think proper to establish? The restrictions in the Constitution are to be strictly construed, and I doubt whether under a strict construction the very same indulgence might not be granted to the port of Natchez, which does not lie within any State, but in the territory of the United States. It has never been deemed expedient to do so, and in all probability never will. Nor is it presumable that this regulation in relation to New Orleans would have been made, but for the importance of the great objects with which it was connected.

Mr. N. believed that the gentleman from Connecticut need not entertain any apprehensions that the provisions contained in the seventh article of the treaty were intended to commence the repeal of the countervailing duties. It was true that some gentlemen had thought very favorably of the repeal at a former session, and he acknowledged himself to be of that number. But as it was a regulation more materially affecting the commercial part of the community, and as they had been opposed to it, the subject was dropped. He did not know that there was any intention to

It is contended that the United States have no right to purchase territory; that they have no right to admit the people of Louisiana to a participation of the rights derived from an admission into the Union, and that a peculiar favor is about being granted to the ports of New Orleans, in violation of the Constitution.

In the view of the Constitution the Union was composed of two corporate bodies, of States and Territories. A recurrence to the Constitution will show that it is predicated on the principle of the United States acquiring territory, either by war, treaty, or purchase. There was one part of that instrument within whose capacious grasp all these modes of acquisition were embraced. By the Constitution Congress have power to "lay and collect taxes, duties, imposts, and excises, to pay the debts and provide for the common defence and general welfare of the United States." To provide for the general welfare! The import of these terms is very comprehensive indeed. If this general delegation of authority be not at variance with other particular powers specially granted, nor restricted by them; if it be not in any degree comprehended in those subsequently delegated, I cannot perceive why, within the fair meaning of this general provision is not included the power of increasing our territory, if necessary for the general welfare or common defence. Suppose, for instance, that Great Britain should propose to cede to us the island of New Providence, so long the seat of pirates preying upon our commerce, and the hive from which they have swarmed; will any gentleman say that we ought

not to embrace the opportunity presented as a defence against further depredations? Suppose the Cape of Good Hope, where our East-lodiamen so generally stop, were offered to be ceded to us by the nation to which it belongs, and that nation should say on our possessing it, you shall declare it a free port. Is there any member who hears me that could contend that we were not authorized to receive it, notwithstanding the great advantages it would insure to us?

H. of R.

those delegated to this House, it will require our sanction. Have we not also vested in us every power necessary for carrying such a treaty into effect, in the words of the Constitution, which gives Congress the authority to "make all laws which shall be necessary and proper for carrying into execution the foregoing powers, and all other powers vested by this Constitution in the Government of the United States, or in any department or officer thereof?" It, therefore, appears very clearly to my mind that, according to the Constitution, the United States have a right to acquire territory. If they possess this right according to the Constitution, this measure cannot be said to be unconstitutional, and if not unconstitutional, as the gentlemen who have spoken against it, did not insist upon the point of inexpediency, some of them because they believed that ground was not open, and others because it was not tenable, will ultimately give it their support.

But another Constitutional objection is stated. Though the United States may acquire a valid title to the territory, the hills and the groves, the rivers and the lakes, it is alleged that they have no right to bring the persons inhabiting it into a state in which they shall enjoy the blessings of free government. My friend from Maryland (Mr. NICHOLSON) has observed that the article of the treaty relating to this object is most cautiously worded. If ever there was a precision of language calculated to avoid the imputation of an invasion of the Constitution, it is the language of this article. Its words are:

But it appears to me, independently of this provision of the Constitution, and the gentleman from Connecticut (Mr. GRISWOLD) admits it, that according to the rights of war we may extend our territory. An enemy might come within our lines, and we expel him: our lines not being the limits to which our arms would be confined, we could pass them, and take possession of the enemy's country, and thereby undoubtedly acquire a right to the territory occupied. For, in the Constitution, it is expressly said that Congress shall have power to declare war, grant letters of marque and reprisal, and make rules concerning captures on land and water;" and among the jura bella was clearly recognised the right of annexing territory. But there is one article of the Constitution which is predicated on the right to purchase territory. We have a right to obtain territory by purchase from a State. In the provision made in the Constitution respecting the territory of the United States, we find that Congress are invested with power" to exercise exclusive legislation in all cases whatsoever over such district (not exceeding ten miles square) as may, "The inhabitants of the ceded territory shall be inby cession of particular States, and the accept-corporated in the union of the United States, and adance of Congress, become the seat of the Govern- mitted as soon as possible, according to the principles ment of the United States, and to exercise like of the Federal Constitution, to the enjoyment of all the authority over all places purchased by the con- rights, advantages, and immunities of citizens of the sent of the Legislature of the State in which the United States; and in the meantime they shall be same shall be, for the erection of forts, magazines, maintained and protected in the free enjoyment of their arsenals, dock yards, and other needful buildings." liberty, property, and the religion which they profess." Here, then, is given to Congress exclusive legislation over particular places, over the ten miles square, and over such places as they may purchase. This provision is expressly predicated on the right to purchase, and only limits that purchase by the consent of the States. If Congress have the right of purchasing territory from a State, how can gentlemen contend that they have not the right of purchasing territory elsewhere, if in their judgment they shall consider it well calculated to subserve the great interests of the Union? It does appear to me that the right of acquiring territory must be included in the treaty-making power. As there are very few treaties which are not merely commercial that do not change the property belonging to nations; and if this principal power be contained in the treaty making provision, every incidental power is of consequence to be considered as fairly embraced within it, and I should deem this important authority as nugatory, if it did not give the President and Senate the right to accept a cession of territory. It is certainly not the right of the President and Senate to make such a cession conclusively binding; when it shall embrace powers within the pale of

How are these people to be admitted? According to the principles of the Federal Constitution. Is it an open violation of any part of the Constitution? No; an express reservation is made by those who formed the treaty, that they must be admitted under the Constitution. Now, if admitted agreeably to the Constitution, it cannot be said to be in violation of it; and if not in violation of it, the fears of gentlemen are groundless. But, as I observed before, does not the Constitution refer to territory? Do not the United States possess territories now? Is the possession of territory confined by the Constitution to those they now hold? I believe not; for, in the Constitution, it is stated that "Congress shall have power to dispose of, and make all needful rules and regulations respecting the territory or other property belonging to the United States." Here is a clear recognition of territory belonging to the United States, and not merely of territory then held, but of territory which might in future be acquired by treaty or purchase. And if this territory be ceded to the United States, Congress have power, as soon as it is ceded, to make rules and regulations respecting it.

Virginia, who followed him, (Mr. J. LEWIS,) and of the other gentleman from Virginia, who spoke next, (Mr. GRIFFIN,) he could not discern that any new or additional matter of much consequence had been urged. Nor did he discover much more than a repetition in substance of his colleague's reasoning, in what had been urged by the gentleman from Mass., (Mr. THATCHER.) and the gentleman from Connecticut (Mr. GRISWOLD;) though the statement of their objections had received a form and coloring diversified according to the skill and ingenuity of each.

In the reply which he should make to the gentlemen in opposition to the appropriations for carrying the treaty into operation, he should not examine their arguments, severally, as they had been brought forward in the course of the debate. That mode would necessarily lead him into tedious and needless repetition. He should, therefore, endeavor to reduce all the arguments he had heard from the other side of the House into their elementary propositions, and having done so, to show that they were weak in their nature, and wrong in their direction. And even this view of the question would be much circumscribed, on account of the strong and masterly manner in which a part of the objections had been already repelled by his eloquent friend from Virginia, (Mr. J. RANDOLPH,) and by the impressive remarks of his other friend from Delaware (Mr. RODNEY.)

H. OF R.

allowed exercise of that power in our own nation. We are constantly in the practice of receiving territory by cession from the red men of the West, the aborigines of our country. The very treaty mentioned in the President's Message, with the Kaskaskias Indians, whereby we have acquired a large extent of land, would, according to this doctrine, be unconstitutional; and so would all the treaties which add to the size of our statute book, with the numerous tribes of the natives on our frontiers. According to this construction, all our negotiations so happily concluded with those people, whom we ever have uniformly acknowledged as the sovereigns of the soil, are nugatory, and to be holden for naught. He said, he was perfectly aware of the answer which would be made, that we held all our national domain, under Great Britain, by virtue of the treaty concluded at Paris in 1783. What, after all, was the amount of that cession by England? Certainly not a conveyance of a country which never was theirs, but rightfully belonged to the Indian natives; for it was, in its true construction, merely a quit claim of the pretensions or title to the land which the English had obtained by conquest and treaty from the French. By that negotiation, the United States obtained a bare relinquishment of the claims and possessions of those two powerful nations. But the paramount title of the original inhabitants was not affected by this. However contemptThe gentlemen, Mr. Chairman, who resist the uously the rights of these rude and feeble tribes provisions necessary to the completion of this had been regarded by the Europeans, their descentreaty, do so because they say it has been ratified dants in these States had considered them with by the President and Senate in open violation of recognition and respect. Until the Indians sold the Constitution of the United States, and is, their lands for an equivalent, the humane and therefore, no treaty, but a nullity, an instrument just principles of the American Government acvoid ab initio, not a part of the supreme law of the knowledged them to be the only legitimate ownland, and consequently not binding upon Congress ers. And the sovereignty acquired by treaty or or the nation. They draw this bold and extraor-purchase to our Government was derived from the dinary conclusion from the style and meaning of the 3d and 7th articles of the treaty. The former of these, they say, is unconstitutional, because it proposes to annex a new territory, with its inhabitants, to our present dominion; the latter, because it abolishes for a term of years the discriminating duties of tonnage and impost within the ceded territory, giving a preference there to France and Spain, and leaving those duties unaltered in all the ports of the Union.

title which the natives transferred to them as grantees in a fair bargain and sale. Such, Mr. M. argued, were the rules of true construction, and these rules admitted and acted upon by the Federal Government; and yet, according to the novel doctrine of this day, every treaty with the natives for parcels of their country, although hitherto deemed lawful, would be an unconstitutional act. According to this notion, every treaty for lands, held with the aborigines since the organization of By the third article, it is agreed that the inhab- the Government, was a violation of the Constituitants of the ceded territory shall be incorporated tion. And thus this invaluable instrument, this into the union of the United States as soon as bulwark of our liberties, had been violated perpossible, according to the principles of the Fede-haps twenty times or more, since we began to buy ral Constitution, and be admitted to the enjoyment of all the rights, advantages, and immunities of the citizens of the United States; and in the mean time they shall be maintained and protected in the free enjoyment of their liberty, property, and the religion which they profess.

On expounding this articie, my colleague has declared that the President and Senate have no power to acquire new territory by treaty, and he argues that our people are to be forever confined to their present limits. This is an assertion directly contrary to the powers inherent in independent nations, and contradictory to the frequent and

the surplusage of their hunting grounds. The Indian tribes are as much aliens as any other foreign nations. Their lands are as much foreign dominion as the soil of France or Spain. Yet we have gone on to annex the territories which they sold us, to our present territory, from the time we acquired independence, and no mortal, until this debate arose, Mr. Chairman, has so much as thought that thereby a breach of the Constitution was made. My colleague is surely entitled to great credit for his perspicuity in finding out that all our great and wise predecessors in administering this Government have been blunderers and