Louisiana Treaty.

House of Representatives, October 25, 1803.

Mr. ELLIOT. The Constitution is silent on the subject of the acquisition of territory; therefore the treaty is unconstitutional. This question is not to be determined from a mere view of the Constitution itself, although it 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. 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 law of nations alone.

Dr. MITCHELL. The people, in forming their Constitution, had an eye to that law of nations which is deducible by natural reason, and established by common consent, to regulate the intercourse and concerns of nations. With a view to this law the treaty-making power was constituted, and, by virtue of this law, the government and people of the United States, m common with all other nations, possess the power and right of making acquisitions of territory by conquest, cession, or purchase.

Mr. SMILIE. We are obliged to admit the inhabitants according to the principles of the Constitution. Suppose those principles forbid their admission; then we are not obliged to admit them. This followed as an absolute consequence from the premises. There, however, existed a remedy for this case, if it Should occur; for, if the prevailing opinion shall be, that the inhabitants of the ceded territory cannot be admitted under the Constitution, as it now stands, the people of the United States can, if they see fit, apply a remedy, by amending the Constitution so as to authorize their admission. And if they do not choose to do this, the inhabitants may remain in a colonial state.

Mr. RODNEY. In the view of the Constitution, the Union is 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' 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 these general provisions, is not included the power of increasing our territory, if necessary for the general welfare or common defence.

Mr. TRACY, among other objections, said that the 7th article admits, for twelve years, the ships of France and Spain into the ceded territory, free of foreign duty. This is giving a commercial preference to those ports over the other ports of the United States, because it is well known that a duty of forty-four cents on tonnage, and ten per cent. on duties, are paid by all foreign vessels in all the ports of the United States. If it be said we must repeal those laws, and then the preference will cease, the {449} answer is, that this 7th article gives the exclusive right of entering the ports of Louisiana to the ships of France and Spain; and if our discriminating duties were repealed this day, the preference would be would be given to the ports of the United States to those of Louisiana; so that the preference, by any regulation of commerce or revenue, which the Constitution expressly forbids from being given to the ports of one state over those of another, would be given by this treaty, in violation of the Constitution.

We can hold territory; but to admit the inhabitants into the Union, to make citizens of them, and states, by treaty, we cannot constitutionally do, and no subsequent act of legislation, or even ordinary amendment to our Constitution, can legalize such measures.

Mr. ADAMS. It has been argued that the bill ought not to pass, because the treaty itself is an unconstitutional, or, to use the words of the gentleman from Connecticut, (Mr. Tracy,) an extra-constitutional act, because it contains engagements which the powers of the Senate were not competent to ratify, the powers of Congress not competent to ratify, the powers of Congress not competent to confirm; and, as two of the gentlemen have contended, not even the legislatures of the number of states requisite to effect an amendment of the Constitution, are adequate to sanction. It is, therefore, they say, a nullity. We cannot fulfil our part of its conditions; and on our failure in the performance of any one stipulation, France may consider herself as absolved from the obligations of the whole treaty on hers. I do not conceive it necessary to enter into the merits of the treaty at this time. The proper occasion for that discussion is past. But allowing even that this is a case for which the Constitution has not provided, it does not, in my mind, follow that the treaty is a nullity, or that its obligations, either on us or on France, must necessarily be cancelled. For my own part, I am free to confess, that the 3d article, and more especially the 7th, contain engagements placing us in a dilemma, from which I see no possible mode of extricating ourselves but by an amendment, or rather an addition, to the Constitution.

The gentleman from Connecticut, (Mr. Tracy,) both on a former occasion and in this day's debate, appears to me to have shown this to demonstration. But what is this more than saying that the President and Senate have bound the nation to engagements which require the cooperation of more extensive powers than theirs to carry them into execution? Nothing is more common, in the negotiations between nation and nation, than for a minister to agree to and sign articles beyond the extent of his powers. This is what your ministers, in the very case before you, have confessedly done. It well known that their powers did not authorize them to conclude this treaty; but they acted for the benefit of their country, and this house, by a large majority, has advised to the ratification of their proceedings. Suppose, then, not only that the ministers who signed, but the President and Senate who ratified, this compact, have exceeded their powers; suppose that the other house of Congress, who have given their assent by passing this and other bills for the fulfillment of the obligations it imposes on us, have exceeded their powers; may, suppose even that the majority of the states competent to amend the Constitution in other cases, could not amend it in this, without exceeding their powers, -- and this is the extremest point to which any gentleman on this floor has extended his scruples; -- suppose all this, and there still remains in the country a power competent to adopt and sanction every part of our engagements, and to carry them entirely into execution; for, notwithstanding {450} the objections and apprehensions of many individuals, of many wise, able, and excellent men, in various parts of the Union, yet, such is the public favor attending the transaction which commenced by the negotiation of this treaty, and which I hope will terminate in our full, undisturbed, and undisputed possession of the ceded territory, that I firmly believe, if an amendment to the Constitution, amply sufficient for the accomplishment of every thing for which we have contracted, shall be proposed, as I think it ought, it will be adopted by the legislature of every state in the Union. We can, therefore, fulfil our part of the convention, and this is all that France has a right to require of us. France can never have a right to come and say, "I am discharged from the obligation of this treaty, because your President and Senate, in ratifying, exceeded their powers;" for this would be interfering in the internal arrangements of our government. It would be intermeddling in questions with which she has no concern, and which must be settled altogether by ourselves. The only question for France is, whether she has contracted with the department of our government authorized to make treaties; and this being clear, her only right is to require that the conditions stipulated in our name be punctually and faithfully performed. I trust they will be so performed, and will cheerfully lend my hand to every act necessary to the purpose; for I consider the object as of the highest advantage to us; and the gentleman from Kentucky himself, who has displayed, with so much eloquence, the immense importance, to this Union, of the possession of the ceded country, cannot carry his ideas farther on the subject than I do.

With these impressions, sir, perceiving in the first objection no substantial reason requiring the postponement, and in the second no adequate argument for he rejection, of this bill, I shall give my vote in its favor.

Mr. TRACY. It is unreasonable to suppose that Congress should, by a majority only, admit new foreign states, and swallow up, by it, the old partners, when two thirds of all the members are made requisite for the least alteration in the Constitution.

Dr. MITCHELL. The 3d section of the 4th article of the Constitution contemplates that territory and other property may belong to the United States. By a treaty with France, the nation has lately acquired title to a new territory, with various kinds of public property on it and annexed to it. By the same section of the Constitution, Congress is so clothed with the power to dispose of such territory and property, and to make all needful rules and regulations respecting it. This is a fair an exercise of constitutional authority as that by which we assemble and hold our seats in this house. To the title thus obtained, we wish now to add the possession; and it is proposed, for this important purpose, the President shall be empowered.

[Note. Jefferson himself (under whose auspices the treaty was made) was of opinion that the measure was unconstitutional, and required an amendment of the Constitution to justify it. He accordingly urged his friends strenuously to that course; at the same time he added, "that it will be desirable for Congress to do what is necessary in silence;" "whatever Congress shall think necessary to do, should be done with as little debate as possible, and particularly so far as respects the constitutional difficulty;" "I confess, ten, I think it important, in the present case, to set an example against broad construction by appealing for new power to the people. If, however, our friends shall think differently, certainly I shall acquiesce with satisfaction; confiding that the good sense of our country will correct the evil of construction, when it shall produce ill effects."

His letter to Dr. Sibley, (in June, 1803,) recently published, is decisive that he thought an amendment of the Constitution necessary. Yet he did not hesitate, without {451} such amendment, to give effect to every measure to carry the treaty into effect during his administration. See Jefferson's Corresp., ii. pp. 1, 2, 3; Story's Comm.]