on this position, he should not deem it necessary to interfere with the treaty-making power, if a fixed and persevering purpose had not been indicated by it, to obtain the revival of the treaty. Now he thought it a bad treaty. The interest of the country, as it appeared to him, forbade its renewal. Being gone, it was perfectly incomprehensible to him, why so much solicitude was manifested to restore it. Yet it is clung to with the same sort of frantic affec tion with which the bereaved mother hugs her dead infant, in the vain hope of bringing it back to life.

Has the house of representatives a right to express its opinion upon the arrangement made in that treaty? The president, by asking congress to carry it into effect, has given us jurisdiction of the subject, if we had it not before. We derive from that circumstance the right to consider, first, if there be a treaty; secondly, if we ought to carry it into effect; and, thirdly, if there be no treaty, whether it be expedient to assert our rights, independent of the treaty. It will not be contended that we are restricted to that specific mode of redress which the president intimated in his opening message.

The first resolution which he had presented, asserted, that the constitution vests in the congress of the United States the power to dispose of the territory belonging to them; and that no treaty, purporting to alienate any portion thereof, is valid, without the concurrence of congress.* It was far from his wish to renew at large a discussion of the treaty-making power. The constitution of the United States had not defined the precise limits of that power, because, from the nature of it, they could not be prescribed. It appeared to him, however, that no safe American statesman would assign to it a boundless scope. He presumed, for example, that it would not be contended that in a government which was itself limited, there was a functionary without limit. The first great bound to the power in question, he apprehended, was, that no treaty could constitutionally transcend the very objects and purposes of the government itself. He thought, also, that wherever there were specific grants of powers to congress, they limited and controlled, or, he would rather say, modified the exercise of the general grant of the treaty-making power, upon the principle which was familiar to every one. He did not insist, that the treaty-making power could not act upon the subjects committed to the charge of congress; he merely contended that the concurrence of congress, in its action upon those subjects, was necessary. Nor would he insist, that the concurrence should precede that action. It would be always most desirable that it should precede it, if convenient, to guard against the commitment of congress, on the one hand, by

*The proposition which it asserts was, he thought, sufficiently maintained by barely reading the clause in the constitution on which it rests: the congress shall have power to dispose, &c. the territory or other property belonging to the United States.'

the executive, or on the other, what might seem to be a violation of the faith of the country, pledged for the ratification of the treaty. But he was perfectly aware, that it would be very often highly inconvenient to deliberate, in a body so numerous as congress, on the nature of those terms on which it might be proper to treat with foreign powers. In the view of the subject which he had been taking, there was a much higher degree of security to the interests of this country. For, with all respect to the president and senate, it could not disparage the wisdom of their councils, to add to that of this house also. But, if the concurrence of this house be not necessary in the cases asserted, if there be no restriction upon the power he was considering, it might draw to itself and absorb the whole of the powers of government. To contract alliances; to stipulate for raising troops to be employed in a common war about to be waged; to grant subsidies; even to introduce foreign troops within the bosom of the country; were not unfrequent instances of the exercise of this power; and if, in all such cases, the honor and faith of the nation were committed, by the exclusive act of the president and senate, the melancholy duty alone might be left to congress of recording the ruin of the republic.*

Supposing, however, that no treaty, which undertakes to dispose of the territory of the United States, is valid, without the concurrence of congress, it may be contended, that such treaty may constitutionally fix the limits of the territory of the United States, where they are disputed, without the coöperation of congress. He admitted it, when the fixation of the limits simply was the object. As in the case of the river St. Croix, or the more recent stipulation in the treaty of Ghent, or in that of the treaty of Spain in 1795. In all these cases, the treaty-making power merely reduces to certainty that which was before unascertained. It announces the fact; it proclaims, in a tangible form, the existence of the boundary. It does not make a new boundary; it asserts only where the old boundary was. it cannot, under color of fixing a boundary previously existing, though not in fact marked, undertake to cede away, without the concurrence of congress, whole provinces. If the subject be one of a mixed character, if it consists partly of cession, and partly of the fixation of a prior limit, he contended that the president must come here for the consent of congress. But in the Florida treaty it was not pretended that the object was simply a declaration of where the western limit of Louisiana was. It was, on the contrary, the case

But

*The house of representatives has uniformly maintained its right to deliberate upon those treaties, in which their coöperation was asked by the executive In the first case that occurred in the operation of our government, that of the treaty commonly called Mr. Jay's treaty, after general Washington refused to communicate his instructions to that minister, the house asserted its rights, by fifty odd votes to thirty odd. In the last case that occurred, the convention in 1815 with Great Britain, although it passed off upon what was called a compromise, this house substantially obtained its object; for, if that convention operated as a repeal of the laws with which it was incompatible, the act which passed was altogether unnecessary,

of an avowed cession of territory from the United States to Spain. The whole of the correspondence manifested that the respective parties to the negotiation were not engaged so much in an inquiry where the limit of Louisiana rus, as that they were exchanging overtures as to where it should be. Hence, we find various limits proposed and discussed. At one time the Mississippi is proposed; then the Missouri; then a river discharging itself into the gulf east of the Sabine. A vast desert is proposed to separate the territories of the two powers; and finally the Sabine, which neither of the parties had ever contended was the ancient limit of Louisiana, is adopted, and the boundary is extended from its source by a line perfectly new and arbitrary; and the treaty itself proclaims its purpose to be a cession from the United States to Spain.

The second resolution comprehended three propositions; the first of which was, that the equivalent granted by Spain to the United States, for the province of Texas, was inadequate. To determine this, it was necessary to estimate the value of what we gave, and of what we received. This involved an inquiry into our claim to Texas. It was not his purpose to enter at large into this subject. He presumed the spectacle would not be presented of questioning, in this branch of the government, our title to Texas, which had been constantly maintained by the executive for more than fifteen years past, under three several administrations. He was, at the same time, ready and prepared to make out our title, if any one in the house were fearless enough to controvert it. He would, for the present, briefly state, that the man who is most familiar with the transactions of this government, who largely participated in the formation of our constitution, and all that has been done under it, who, besides the eminent services that he has rendered his country, principally contributed to the acquisition of Louisiana, who must be supposed, from his various opportunities, best to know its limits, declared, fifteen years ago, that our title to the Rio del Norte was as well founded as it was to the island of New Orleans. [Here Mr. Clay read an extract from a memoir presented in 1805, by Mr. Monroe and Mr. Pinckney, to Mr. Cevallos, proving that the boundary of Louisiana extended eastward to the Perdido, and westward to the Rio del Norte, in which they say, 'the facts and principles which justify this conclusion, are so satisfactory to their government as to convince it, that the United States have not a better right to the island of New Orleans, under the cession referred to, than they have to the whole district of territory thus described.] The title to the Perdido on the one side, and to the Rio del Norte on the other, rested on the same principle -the priority of discovery and of occupation by France. Spain had first discovered and made an establishment at Pensacola; France at Dauphine island, in the bay of Mobile. The intermediate space was unoccupied; and the principle observed among European nations having contiguous settlements, being, that the

unoccupied space between them should be equally divided, was applied to it, and the Perdido thus became the common boundary. So, west of the Mississippi, La Salle, acting under France, in 1682 or 3, first discovered that river. In 1685, he made an establishment on the bay of St. Bernard, west of the Colorado, emptying into it. The nearest Spanish settlement was Panuco; and the Rio del Norte, about the midway line, became the common boundary.

All the accounts concurred in representing Texas to be extremely valuable. Its superficial extent was three or four times greater than that of Florida. The climate was delicious; the soil fertile; the margins of the rivers abounding in live oak; and the country admitting of easy settlement. It possessed, moreover, if he were not misinformed, one of the finest ports in the Gulf of Mexico. The productions of which it was capable were suited to our wants. The unfortunate captive of St. Helena wished for ships, commerce, and colonies. We have them all, if we do not wantonly throw them away. The colonies of other countries are separated from them by vast seas, requiring great expense to protect them, and are held subject to a constant risk of their being torn from their grasp. Our colonies, on the contrary, are united to and form a part of our continent; and the same Mississippi, from whose rich deposit the best of them (Louisiana) has been formed, will transport on her bosom the brave, the patriotic men from her tributary streams, to defend and preserve the next most valuable, the province of Texas.

We wanted Florida, or rather we shall want it; or, to speak more correctly, we want no body else to have it. We do not desire it for immediate use. It fills a space in our imagination, and we wish it to complete the arrondissement of our territory. It must certainly come to us. The ripened fruit will not more surely fall. Florida is enclosed in between Alabama and Georgia, and cannot escape. Texas may. Whether we get Florida now, or some five or ten years hence, it is of no consequence, provided no other power gets it; and if any other power should attempt to take it, an existing act of congress authorizes the president to prevent it. He was not disposed to disparage Florida, but its intrinsic value was incomparably less than that of Texas. Almost its sole value was military. The possession of it would undoubtedly communieate some additional security to Louisiana, and to the American commerce in the Gulf of Mexico But it was not very essential to have it for protection to Georgia and Alabama. There could be no attack upon either of them, by a foreign power, on the side of Florida. It now covered those states. Annexed to the United States, and we should have to extend our line of defence so as to embrace Florida. Far from being, therefore, a source of immediate profit, it would be the occasion of considerable immediate expense. VOLI A

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The acquisition of it was certainly a fair object of our policy; and ought never to be lost sight of. It is even a laudable ambition, in any chief magistrate, to endeavor to illustrate the epoch of his administration, by such an acquisition. It was less necessary, however, to fill the measure of honors of the present chief magistrate, than that of any other man, in consequence of the large share which he had in obtaining all Louisiana. But, whoever may deserve the renown which may attend the incorporation of Florida into our confederacy, it is our business, as the representatives of that people who are to pay the price of it, to take care, as far as we constitutionally can, that too much is not given. He would not give Texas for Florida in a naked exchange. We were bound by the treaty to give not merely Texas, but five millions of dollars, also, and the excess beyond that sum of all our claims upon Spain, which have been variously estimated at from fifteen to twenty millions of dollars!

The public is not generally apprized of another large consideration which passed from us to Spain; if an interpretation which he had heard given to the treaty were just; and it certainly was plausible. Subsequent to the transfer, but before the delivery of Louisiana from Spain to France, the then governor of New Orleans (he believed his name was Gayoso) made a number of concessions, upon the payment of an inconsiderable pecuniary consideration, amounting to between nine hundred thousand and a million acres of land, similar to those recently made at Madrid to the royal favorites. This land is situated in Feliciana, and between the Mississippi and the Amité, in the present state of Louisiana. It was granted to persons who possessed the very best information of the country, and is no doubt, therefore, the choice land. The United States have never recognised, but have constantly denied the validity of these concessions. It is contended by the parties concerned, that they are confirmed by the late treaty. By the second article 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. And by the eighth article, all grants of land made before the twenty-fourth of January, 1818, by his catholic majesty, or by his lawful authorities, shall be ratified and confirmed, &c. Now, the grants in question having been made long prior to that day, are supposed to be confirmed. He understood from a person interested, that don Onis had assured him it was his intention to confirm them. Whether the American negotiator had the same intention or not, he did not know. It will not be pretended, that the letter of Mr. Adams, of the twelfth of March, 1818, in which he declines to treat any further with respect to any part of the territory included within the limits of the state of Louisiana, can control the operation of the subsequent treaty. That treaty must be interpreted by what is in it, and not