the reasons why the treaty of St. Ildefonso was kept secret, and Spain left in possession of Louisiana until the cession to the United States.

By that singular document, France engaged to "procure" for his royal highness the Duke of Parma (who had married a Spanish princess) as much territory adjacent to that which he then held as should raise the number of his subjects to a million, and give him right to the title of king. France guarantied the assent of the various powers and States interested, and the occupation of the territory contemplated by the Duke of Parma, as soon as peace was confirmed between France and Austria.

The territory designated by the treaty is that of Tuscany, in case France should succeed in obtaining it from Austria under pending negotiations, or the three Roman Ecclesiastical provinces, or any other continental provinces of Italy that would "form a rounded estate."

Spain was to retrocede Louisiana six months after the full execution of these stipulations in favor of the Duke of Parma.

Napoleon complied partially with his engagements by establishing the Duke of Parma as King of Etruria; but Spain naturally entertained doubts of her own ability or that of the king to maintain possession of the conquered territory without some other guaranty than the pleasure of the conqueror; hence her tenacious adherence to her possession of Louisiana until guaranties of the permanence of the European equivalent were furnished; hence her protest against the acquisition of Louisiana by the United States, at first urgently maintained, but soon afterwards withdrawn under the influence of France. Her distrust was not unfounded. Napoleon, within a short period, withdrew from the King of Etruria both his title and his possessions. The States of Parma and Placentia were incorporated as the 28th military department of France, and afterwards conveyed to the Empress Marie Louise and the prince, her son, in full property. Tuscany was added to France as the kingdom of Taro, and the King of Etruria transferred to the western coast of Europe, and made king of northern Lusitania. Thus Spain had been deprived of the equivalent stipulated for Louisiana, and Napoleon had sold it for seventyfive millions of francs. It is not very surprising that she should be dissatisfied with the arrangements thus made by the despotic chieftain of France, nor that she repulsed, with unyielding pertinacity, the American claim to extend the eastern boundary of Louisiana.

The nature of the treaty of St. Ildefonso was such as to make it imperative on the contracting powers to leave Spain as the ostensible owner of Louisiana, as its sovereign de facto, and as such to leave her with power to make valid sales of land in the territory east of the Mississippi, even if it were really included in the cession of Louisiana.

How could such a treaty be revealed without defeating its own objects? France was parcelling out provinces held by other powers. It was promising that kings and emperors should do its biddings. It was covenanting to make and unmake monarchs, and a bare suspicion. of the terms of the compact would have united the whole continent in opposition to its execution.

At the same time it is to be observed that the treaty does not cede Louisiana to France in presenti. It promises a retrocession in futuro,

"six months after the full compliance with the stipulations in favor of the Duke of Parma." Spain does not, by its terms, strip herself of one attribute of her sovereignty; no limitation is imposed on her power to sell and grant lands in the ceded territory, any more than on her power to administer justice or exercise any other right of eminent domain. She remains sovereign de jure as well as de facto until six months shall have elapsed after the compliance with the stipulations in favor of the Duke of Parma; after the lapse of those six months she will no longer be sovereign de jure, but she will remain so de facto till the delivery of possession, or, at all events, till notice shall be given of the existence of the treaty.

Hence it may readily be perceived why Mr. Marbois professed ignorance of the extent of the cession; why Talleyrand said that nothing had been positively done in regard to boundary; why Napoleon said that if obscurity did not already exist in the treaty with us, it would, perhaps, be good policy to create it.

Spain was thus left designedly in possession of Louisiana as sovereign de facto until its cession to the United States. Salcedo arrived in New Orleans in June, 1801, with a commission from the King of Spain, as governor of the provinces of Louisiana and West Florida, and his predecessor, the marquis of Casa-Calvo, sailed for Havana. It was not till the end of March, 1803, that Laussat arrived, as colonial prefect, appointed by France, and announced by proclamation that General Victor, who had been appointed captain general of the colony, would arrive towards the middle of April. On the 18th May, Salcedo and Casa-Calvo, (the latter having returned from Havana for the purpose,) issued their proclamation as commissioners appointed to deliver Louisiana to France. In this proclamation it was stated that the limits on both sides of the river Mississippi should continue as they remained by the 5th article of the definitive treaty of peace, concluded at Paris on the 10th December, 1763; and accordingly the settlements from the bayou Manchac, as far as the line which separated the dominions of Spain and those of the United States, should remain a part of the monarchy of Spain, and be annexed to the province of West Florida." No objection was made by the French prefect, and the historian, Judge Martin, continues:

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"Everything seemed now ready, and the arrival of Victor, the commissioner of France for receiving possession was hourly expected; every one had his tri-colored cockcade ready to be stuck on his hat as soon as the Spanish flag was lowered and the French hoisted, when a vessel from Bordeaux brought accounts of the sale of the province by Bonaparte to the United States."-(2 Martin's His. La., 189, 190)

On the 31st October, 1803, Congress authorized the President to take possession of the territory. The President appointed Governor Claiborne and General Wilkinson. Napoleon appointed Laussat commissioner, in lieu of Victor, to receive possession from Spain and deliver it to the United States; and on Wednesday, the 30th November, 1803, Laussat having exhibited to Salcedo an order from the King of Spain for the delivery of the province, the keys of New Orleans were delivered to Laussat, the Spanish colors hauled down, and those of France displayed in their place. On Monday, the 20th De

cember, 1803, possession was in like manner delivered by Laussat to the American ministers, who had arrived a few days before.

The delivery of possession being thus confined to the Iberville on the east, both by Spain to France, and by the latter to the United States, Spain remained in possession of the country between the Iberville and Perdido as its sovereign de facto, and with claim of sovereignty de jure, until long after the sales and grants of the lands now claimed by the memorialists.

The memorialists state that the United States acknowledged this actual possession and occupancy of West Florida by Spain in every manner in which such an acknowledgment could be made; "that they paid duties at Mobile and Pensacola in the Spanish customhouses for their own goods sent by government itself to their troops in Alabama and Georgia, and that in the year 1812, even after Congress had annexed West Florida to the contiguous territory, a vessel was libelled in the United States court, in Alabama, because she came from Mobile, then in possession of Spain, to Fort Stoddard, contrary to the provision of the embargo laws. She was acquitted, and the Secretary of the Treasury ordered an appeal, because Mobile was in possession of Spain, and a foreign port.'

If, however, any further evidence were required to prove the continued occupation of West Florida by Spain as sovereign de facto, with the acquiescence of the United States, the history of the year 1810 puts the fact beyond controversy.

In the summer of that year, a number of the inhabitants of west Florida marched, of their own authority, on Baton Rouge; captured the fort, then in possession of Spain; declared their independence ; framed a constitution, and elected Fulivar Skipwith governor.

In their declaration of independence they attest the loyalty with which they have served their king and preserved his territory for him, and give their reasons for declaring their independence. They then sent a communication to the President, asking to be annexed to the Union. On the receipt of this communication, the President issued a proclamation, in which he declared that the United States had always considered the territory in question as belonging to them; "that the acquiescence of the United States in the temporary continuance of said territory under the authority of Spain was not the result of any distrust of their title," but was occasioned by conciliatory views; that "acts of Congress, though contemplating a present possession by a foreign authority, have contemplated also an eventual possession by the United States," and he therefore authorized Governor Claiborne to take possession of the territory. The proclamation added, that the territory "in the hands of the United States will not cease to be the subject of a fair and friendly negotiation and adjustment."-(3 Foreign Relations, 397.)

Under this state of facts, your committee think it would be a violation of every principle of justice and national law to confiscate titles acquired from Spain by her own subjects, in territory possessed by her de facto, with the acquiescence of the United States, and claimed by her as being hers de jure. How could it be expected that her own subjects should doubt or question her right to convey the soil under Rep. No. 279-2

circumstances like those just narrated? No case has ever come before the notice of the committee which more imperatively demands the application of the principle sanctioned by the law of nations, that private individuals may safely deal with the sovereign de facto, and that their rights are not affected by any subsequent determination that the sovereignty de jure is in another power.

Chancellor Kent says: "The national character of the place agreed to be surrendered by treaty continues, as it was, under the character of the ceding country, until it be actually transferred. Full sovereignty cannot be held to have passed by the mere words of the treaty, without actual delivery. To complete the right of property, the right to the thing and the possession of the thing must be united. This is a necessary principle in the law of property in all systems of jurisprudence." (1 Kent, 177.)

In treating of this very disputed territory, the Supreme Court of the United States said, in De la Croix vs. Chamberlain, 12 Wheaton, 600 "The United States have never, as far as we can discover, distinguished between the concessions of land made by the Spanish authorities whilst Spain was in the actual possession of it, from concessions of a similar character made by Spain within the acknowledged limits.” In Rhode Island vs. Massachusetts, 12 Peters, 749, the same court says: "Grants by a government de facto of parts of a disputed territory in its possession are valid against the State which had the right.

The committee, therefore, conclude that even if the United States had the right to the disputed territory, the grants in question made by the sovereign in possession were valid, and conveyed a perfect title to the grantees.

Whatever may be thought, however, of the positions heretofore assumed by the committee, there remains a third ground in which the memorialists assuredly may rest their claims with entire security. They are protected by the faith of treaties.

On the 22d February, 1819, the long pending controversy was closed. In the second article of the treaty made on that day "his Catholic Majesty cedes to the United States, in full property and sovereignty, all the territories which belong to him, situated to the eastward of the Mississippi, known by the name of East and West Florida."

ARTICLE 8. "All the grants of land made before the 24th January, 1818, by his Catholic Majesty, or by his lawful authorities in the said territories, ceded by his Majesty to the United States, shall be ratified and confirmed to the persons in possession of the lands to the same extent that the same grants would be valid if the territories had REMAINED under the DOMINION of his Catholic Majesty. * All grants made since the said 24th January, 1818, when the first proposal on the part of his Catholic Majesty for the cession of the Floridas was made, are hereby declared and agreed to be null and void."

* *

It will naturally excite surprise that, in the face of such a treaty stipulations the rights of the memorialists should require any action on the part of the government. What higher title, it may be asked, can the memorialists desire than a treaty title, one which the Constitution of the United States declares to be equal in dignity to the supreme law of

the land? The answer to so natural an inquiry will soon present itself in the progress of this report; but, in the meantime, the committee deems it proper to present some extracts from the negotiations in relation to this clause, which will render palpable its true intent.

From the period when our government first put forward its pretensions over the disputed territory, it had been solicitous to prevent the value of its alleged acquisition to be impaired by any grant of the soil; and this policy found expression in the 14th section of the act of 26th March, 1804, declaring "all grants for lands within the territories ceded by the French republic to the United States by the treaty of 30th April, 1803, the title whereof was, at the date of the treaty of St. Ildefonso, in the crown government or nation of Spain, and every act and proceeding subsequent thereto, of whatsoever nature, towards the obtaining any grant, title, or claim to such lands, and under whatsoever authority transacted or pretended, be, and the same are hereby, declared to be, and to have been from the beginning, null, void, and of no effect in law or equity."

The committee cannot refrain from interrupting, for a moment, the thread of their argument for the purpose of a passing comment on the monstrous injustice to private rights, apparent on the very face of this law which confiscated, or attempted to confiscate, titles acquired in good faith, at any date after the 31st October, 1800, regardless of the fact that, by the very terms of the treaty of St. Ildefonso, made on that day, Spain did not cede her rights over Louisiana, but only promised to cede them at a future date, viz: six months after certain conditions should be accomplished, and regardless of the further fact that even this promise of cession was carefully kept secret from the whole world, so as to render it impossible for the grantee even to suspect that the power in possession of the territory de facto had parted, or promised to part, with any of its rights of eminent domain; but the committee forbear to enlarge on the subject, because it does not bear on the precise point now under consideration.

When negotiations, long interrupted, were renewed in 1818 between John Quincy Adams and the Chevalier de Onis, a proposition was made by the former for a settlement of all outstanding difficulties with Spain, including not only the eastern boundary, but the western boundary of Louisiana, and the claims of our citizens to indemnity for spoliations.

On the 16th January, 1818, his propositions were in these words: "1. Spain to cede all her claims to territory eastward of the Mississippi.

"2 and 3. *

*

*

4. * * No grants of land subsequent to the 11th August, 1802, to be valid."-(3 Am. State Papers, For. Rel., 464.)

On the 24th January, 1818, the Spanish minister answered: "Nor can I omit to declare to you, sir, that the pretension of annulling the grants of lands in Florida since August, 1802, would be in opposition to all the principles of justice. These grants are made in a lawful manner," &c., &c., &c.

Mr. Adams was put on his guard by a letter from Mr. Ewing, our