Daily National Intelligencer

Debate on the Spanish Treaty.

[CONTINUED.]

HOUSE OF REPRESENTATIVES

APRIL 3, 1820.

The following resolutions, submitted by Mr. Clay, being under consideration, in committee of the whole, viz:

1. Resolved, That the constitution of the United States vests in Congress 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.

2. Resolved, That the equivalent proposed to be given by Spain, to the United States, in the treaty concluded between them, on the 22d day of February, 1819, for that part of Louisiana lying west of the Sabine, was inadequate; and that it would be inexpedient to make a transfer thereof to any foreign power, or to renew the aforesaid treaty.

Mr. Lowndes followed Mr. Clay in the Debate.

Before entering into a discussion of the merits of the propositions submitted by the Speaker, he said, it appeared to him there was a previous question to be settled, the determination of which might preclude a decision of the main question on its merits. That question was, whether an attempt, on the part of this house, to take the conduct of negociations with foreign powers into its hands would not be greatly prejudicial to the interests of the country. It was worthy of enquiry, also, whether it was consistent with prudence, or with wisdom, to engage in the discussion of propositions, the adoption of which would have that effect.

Mr. L. said he was far from considering the two resolutions now before the committee as of the same character. He was ready to admit that the consideration of the question, how far this house has a right to interpose in respect to treaties—of this theoretically abstract question, was not liable to the same objection as the discussion of the second resolve: but he should consider the consumption of time in its discussion utterly useless and wasteful at this moment.

The gentleman from Kentucky had made a remark, in relation to the late communication of the President to Congress, which, Mr. L. said, appeared to him to have arisen entirely from misapprehension of the nature of that communication. The gentleman considered the Message as founded on the wishes of those foreign powers, whose views on the subject our government had been apprized of. The best attention which he had been able to bestow on the subject, Mr. L. said, had led to conclusions totally different from this. The papers accompanying the message were such as ought to have been communicated for the information of Congress, but were not the only grounds of the Message. Could any man read the Message without seeing that the ground of the delay recommended by the President, is the probability, of which evidence is furnished in part by communications from the Ministers of foreign powers directly and indirectly to our government, that the object of the United States may be accomplished without a resort to such measures as had been recommended by a committee of this house? It would be an extravagance of independence to say, not only that foreign nations should not interpose in a controversy between us and a foreign power, but that they should not even be allowed to furnish us with facts—with that information without which there was no wisdom in the conduct of foreign negociations.

Mr. L. quoted the Message of the President, to shew, that the only ground on which a delay of coercive measures against Spain was recommended, was, that there was reason to believe that the object of the United States might be attained without resorting to them. Was it at all extraordinary that information on this head should be obtained from foreign powers? Was it at all extraordinary that Spain should not develope her views to us, who are the adverse party, yet should disclose them to a power which is not a principal in the controversy, but her ally and a mutual friend? The Executive does not reject information from any quarter, and least of all from a quarter where it is most to be relied on. With regard to foreign interference, he should repel, with as much indignation as the gentleman from Kentucky, any attempt to intermeddle in our internal affairs. Yet, every man who would reflect on the condition in which, in the lapse of time, the United States may be placed, would see, that there might be cases in which, with all our repugnance to the interposition of foreign nations, we may be induced, as to collisions with foreign states, to consent to the arbitration of other foreign states, not interested in the controversy. Thus, such a provision had been made in regard to certain cases embraced by the Treaty of Ghent; and at this very moment one of the questions arising between us and Great Britain in regard to that Treaty had been referred to the arbitration of the Emperor of Russia. If, as in the case provided for by the Treaty of Ghent, the mediation of a foreign power may be accepted with respect to questions of boundaries, may we not go so far as to say that there may be cases in which we shall pay considerable deference to the opinions of a disinterested foreign power where territorial acquisitions are concerned?

But, Mr. L. said, a remark of the gentleman from Kentucky, apart from the main question before the committee, seemed to require that he should, before proceeding further, say something of the condition in which the committee of foreign relations, of which he was one, was placed by the Message from the President. Whether it was owing to insensibility or not, Mr. L. said he did not feel that awkwardness which the gentleman from Kentucky seemed to suppose that committee must feel, when the committee recommended the immediate occupation of Florida, and when they withdrew that recommendation, they acted on both occasions from the same motive. With one information one course might be correct, whilst with other information a different course would be proper. Though not satisfied that a different course should be pursued from that recommended by the committee, yet, a different course being recommended by circumstances subsequently disclosed, indicating the feeling of the nation and the sentiment of this House, would a discussion of the subject have been deemed by any gentleman advantageous to the interests of the country? Ought the committee to have urged a decision on their proposition, when no possible advantage could have resulted from it? Must it not, on the contrary, have led to a discussion which would be as injurious as he would shew that the present discussion would be, should he not succeed in a motion which he should make, as indiscreet as the gentleman might think it, to prevent the further discussion of it.

A strong objection, even to a discussion of the resolutions of the Speaker, was, that, in relation to both of them, no possible benefit could arise from the discussion of them—nay, that a discussion, in such a manner as to lead to a just decision of them, was impracticable. He asked any gentleman to say, whether it was not apparent that the questions involved in them could not now be freely discussed? Under the circumstances, it certainly was; and, said he, a discussion, into which we enter manacled, we ought not to enter at all.

With regard to the treaty-making power, Mr. L. said, he was willing to admit, that, in relation to those stipulations which apply to subjects such as are among the enumerated powers of Congress, the sanction of the Representative body to them was necessary. He had, however, no intention to enter into this general argument. If discussed, said he, it would force us into an extent of discussion for which the limits of the session would be too narrow. It would include not only all the discussions of 1795 and 1816, but would open new grounds.

The Speaker himself, he presumed, would not be disposed to insist that this House has a power, in relation to a treaty stipulating for a cession of territory, which it has not in relation to a stipulation for the payment of money. If there be a power peculiarly ours, said Mr. L., it is the power over the purse of the nation. If it be contended, that neither can territory be ceded, nor money paid, without the consent of this House, there is a question beyond that again: will you maintain that a claim, on our part, for money or for territory, however well founded, cannot be yielded? Such cases were peculiarly a subject for treaty stipulations. The very treaty of which we are speaking contains a renunciation of claims. In case of a claim on your part, not recognized by the opposite party, your rights may be renounced, by treaty, for an equivalent, &c. Mr. L. said, he had no disposition to enter at large or systematically into the question respecting the treaty-making power; but the observation which he had made connected itself with another.

Gentlemen conversant with the history of the proceedings of Congress, might recollect the ground taken by the gentleman who is now our distinguished Minister in France: that, in addition to those powers purely Executive, which did not come in conflict with the powers of the House of Representatives, Mr. Gallatin admitted, in the great debate of 1795, there was another and a resulting power which did belong to the treaty-making authority. That, for example, to a stipulation that any act should not pass, the consent of the House of Representatives was not necessary, because the President and Senate, being branches of Congress, had it in their power to enforce and fulfil the treaty, by withholding their assent from any such act. Apply that argument to the case of a renunciation of a claim for money or for territory. Not being in the possession either of our government or of a foreign power, it could be reclaimed or renounced only by negociation or by war, and to either course the consent of the negociating power was necessary, &c. In relation to questions of boundary, it was admitted on all hands that the treaty-making authority was competent to their adjustment: its competency must be equally admitted in relation to all unadjusted claims. He submitted then to the committee, whether there could be any case of an adjustment of a claim to boundary, which did not include a cession of supposed right to territory by one or the other party. You may establish points; you may say, there a colony was planted—here a man was shipwrecked: you may assert that these points include the territory to which you have a right: but the lines of your boundary must, after all, be adjusted by negociation—by reciprocal agreement. Mr. L. said he should be sorry if it should be inferred, from what he had said, that he was of opinion that the ground assumed in the resolution was decidedly erroneous. That it asserted a power much greater than had heretofore been claimed for the House of Representatives, he was confident; but he did not mean to say that he had formed a decided opinion different from that of the gentleman from Kentucky on this point. He had thought of it but for a day or two. It was, however, a question into which he thought the house ought not wantonly and uselessly to enter, especially as it had now no superfluous time on its hands.

[Here, the hour being late, Mr. Lowndes complied with the wish of a gentleman near him, and gave way for an adjournment. The next day he resumed his remarks.]

Mr. L. did not, he repeated, intend to express any opinion affirmatively or negatively on the proposition contained in the first of the above resolutions. But, he said, it touched a subject so complicated and difficult as to make it necessary, if acted on at all, that it should occupy a much greater portion of time in the discussion than could be spared at this period of the session for the discussion of an abstract proposition. There must be many gentlemen on this floor, who recollected the length and arduous nature of the discussion of 1795, on this subject. There were none who could not see that the resolution of the Speaker embraced a larger object than was embraced by that of 1795. The conclusion must be, that, if decided at all by this House, it would be after a long discussion. But, suppose the resolution went no further than that of 1795—however strong might be the opinion of a majority in favor of the resolution of 1795, it could not be expected but there would be some debate on such a proposition. The smaller the minority, the stronger the reason why their arguments should be heard and laid before the public. The resolution of 1795 remains on the Journals, and there could be no reason assigned, even did this resolution go no further than that, for re-affirming it. But this resolution goes much further than that of 1795, or than the doctrines advanced by any who took part in that discussion. It was not then, as far as Mr. L. knew, contended by any one, that, in relation to territory claimed by us, but not in our possession, a treaty for the adjustment of the title would require the sanction of this House. Would it be prudent, said he, by anticipation, when we know not of any circumstances which make the decision of this question necessary, to undertake to decide it? Is there any member of this committee who supposes that the effect of a decision in favor of this proposition will be to preclude a discussion and decision of the question hereafter, should the treaty be eventually ratified? Mr. L. presumed not. Indeed, he said, were this proposition to be discussed now for a week, it would only serve to prepare the ground for another discussion hereafter.

Whilst, however, he had no other objection to the discussion of the first resolution, but what arose from a regard to the economy of time, he had much stronger objections to the consideration and decision of the second. He did not understand how any decision, or even free discussion of that question, could take place without endangering the important interests of the country. This he was sure the Speaker would do as unwillingly as any man. But, said he, pending the ratification of the treaty by Spain, are we to enter into the question of our title to the territory as far as the Rio del Norte? Would it be prudent to do so? Certainly not. Yet, if there was an unreserved discussion, that must be the preliminary step. Do you attach any consequence to a resolution of this kind? Do you expect it to have an influence at home, and to be respected abroad? And do you not begin by a laborious and careful examination of your right to the territory in question? Will you come to a formal and solemn annunciation that you are fully entitled to all this territory, without deliberately and temperately examining the grounds on which that right rests? If you determine that you will write instructions to our negociators: that we shall on this floor prescribe what the conditions of a treaty for a settlement of limits shall be, it becomes necessary that the title of the respective parties shall be fully investigated. Our open doors shew that this is not the place to discuss what we will ask in a negociation with a foreign power, and what we will be content to receive. It would be, to use the Speaker's figure, to display our open hand to our adversary, his being concealed, as ours ought to be.

It had been doubted, Mr. L. said, whether the other branch of the Legislature has a right to join in instructions given to our diplomatic agents with regard to the terms of a treaty. From convenience, at least, this power, given to the Senate almost by the terms of the constitution, had not, under the practical construction of that instrument, been latterly exercised by the Senate, but the Executive had been entirely charged with that duty and that responsibility.

Mr. L. enlarged upon the inconvenience of a public discussion here of what, in an amicable negociation, we mean to insist on, and what we mean to give up. He had no objection to saying, for himself, what he would do on that head. But, he said, if a discussion was to take place on the formal proposition contained in this resolution, unless the discussion was to be utterly unmeaning, it would be necessary to examine as well the validity of titles as the relative value of territory, &c. &c. It was unnecessary for him to assign reasons why an enquiry into the validity of title would be injurious. They were sufficiently obvious. With regard to the value of the territory in question, if the members were fully informed on the subject, it would yet be needless to discuss it. But, he said, he believed the requisite information was not at hand. For his part, although he had paid considerable attention to this subject, and gathered information from all sources accessible to him, he had never heard, respecting the value of the Province of Texas, any estimate of its seaport in any degree corresponding with that given by the honorable gentleman from Kentucky.

If the house was called on to vote on this resolution, it was above all desirable that they should understand it. Mr. L. said that he thought he did understand it. Its meaning clearly was, that it was inexpedient to cede any part of the territory which we have west of the Sabine. Suppose our claim to that territory to be undoubted, said he, are we prepared to say, however worthless it may be—however great the equivalent for it—that we will give up no part of it for any territory, however essential or important to us? Now, for myself, I am not ready to say, that I am not willing to give up any thing west of the Sabine for any consideration whatever. If there be any territory of doubtful value beyond the Sabine, I am not prepared to say that there is in the rest of the world nothing of so much value that I might not be induced to exchange the one for the other.

Mr. L. therefore was opposed to engaging in this discussion, and because he considered the second resolve to embrace an object adverse to the interests of the country, as well as contrary to the spirit of the constitution. That this house, according to the view of the Speaker, might have some power in regard to treaties for the cession or acquisition of territory, he did not now mean to deny. But, whatever that power was, he thought that a just view of the principles of the constitution would necessarily require that it should be a restraining, and not a directing power. If, in progress of time, this house should adopt the practice of giving instructions to our ministers, or, what is the same thing, of determining beforehand, as now proposed, what should be yielded and what retained, the effect would be to divide the responsibility of the different departments of the government, and destroy altogether that of the treaty-making power. That there was in this house a corrective power, to restrain the treaty-making power in a course not believed to be beneficial to the interests of the country, he was ready to admit; but, whilst he admitted this, it was

2 power which, he said, ought to be exercised with great discretion. Otherwise, instead of restraining the Executive power, the effect would be, to increase its power by diminishing its responsibility. As a common rule of action, therefore, he was in favor of leaving the powers of the government where the constitution had placed them.

If any case could arise in which the Executive would pursue a policy so repugnant to the true interests of the country as to justify the interposition of this house, Mr. L. said it would be one the very reverse of that now under consideration. It would hardly ever happen that an Executive would be averse to enlarging the boundaries of the nation, or be accused of a desire to restrict them to too narrow a limit. In the executive branch of every government, the disposition is naturally favorable to the extension of territory and the enlargement of its power. He thought that we may safely intrust to the Executive of this government the charge of supporting the rights of the country, and extending its territorial limits as far as justice and sound policy will allow.

Mr. L. made some remarks to shew that no advantage could result from the adoption of this resolve. If, indeed, it was proposed to employ force to support it, there might be some ground. Otherwise, he contended, to pass them would not only be useless, but injurious.

But, Mr. L. said, he would refrain from entering into the general questions of policy growing out of this resolution: but, in relation to the province of Texas, he would say that, if Florida were not necessary to us, and therefore a desirable acquisition, in exchange for any claim we may be supposed to have to Texas, he should not think it important to occupy Texas at this time. If we have a just claim to that province, the treaty being rejected, it will be at any time in our power to enforce it. Lying between us and Mexico, its destiny must always essentially depend on, as it is connected with, American interests. Whatever claim we have to Texas, it is a claim which we are able to support and enforce. This is an opinion, said Mr. L., which the Speaker applies to Florida and I to Texas.

Mr. L. asked the members of this committee to cast their eye a little forward, and see, if the connection between Mexico and Spain should be dissolved, what motive could Spain have for desiring to retain the possession of the Province of Texas. What has been her object in ceding Florida? To get in exchange a boundary, well defined, between Mexico and the United States. To secure herself against what she believes (and what Mr. L. feared all the powers of Europe believe) our ambition, she was willing to cede Florida. But, suppose the connection between Spain and Mexico to be dissolved; suppose all hope, on her part, of her resuming the control of that country was destroyed, what motive could she have for ceding Florida? Mr. L. said, he had not adverted to this contingency with a single view to her relinquishment of Florida to us, but with a view also to the preponderance which a reduction to a single island of the colonial possessions of Spain would give to another power; when Spain would no longer be mistress of her own actions, but the agent to serve the interests of another power. And, if we relinquished now the acquisition of Florida in order to gain Texas, that, in the contingency just adverted to, when Florida was overflowed by Royalists, and the value of Cuba increased, what possible motive would Spain have, under such circumstances, for the cession of Florida to us? We must obtain it, then, by force, or not at all. But it would always be as easy a matter as it may be now, to obtain Florida by force. It would be more easy, he said, to obtain Canada by force, than it would be to obtain Florida by force, if the power to whom it belonged was determined to hold it. It would be an error fatal to the best interests of the country, to refuse to receive Florida into our possession whilst we can. Mr. L. did not say it was so important an acquisition that it ought not for any consideration to be postponed for a day; but that a combination of circumstances make that practicable now which may not be a year or two hence, he thought was very clear.

He concluded, by saying, that he had had no intention of entering into the general discussion of these resolves. He meant only to shew, that they could not be discussed without giving so much time to the subject as could not be afforded at this time; and that the discussion would moreover be prejudicial to the public interests. Under these circumstances, he thought it his duty to move to lay the resolutions on the table.

Mr. Archer, of Virginia, said, that the withdrawal of the motion of the gentleman from South Carolina, (Mr. Lowndes) having removed the obstacle to discussion of the resolutions under consideration, he would proceed to submit his views of them to the committee. The attention of this body, Mr. A. observed, was a species of joint stock concern, of which all its members were equally participant in interest. He now appeared, for the first time, to assert a claim to any share, and he did not doubt that the claim would meet with due allowance from the courtesy of the committee, unless, indeed, the fund on which it was addressed, had already been exhausted by the drafts which had been made upon it. One recommendation this claim would have, that it would not be an immoderate one. And, Mr. A. believed that the general remark, in reference to demands upon the public, that moderation in their amount formed no unessential condition of their success, had, in no instance, stronger application, than in relation to demands addressed to the patience of this assembly.

Mr. A. adverted to the place which this subject of relations with Spain had recently occupied in the public attention, and the universal expectation that some measure expressive of the sense of Congress, would, before this period of the session, have been adopted. The measure, which, after long delay, the gentleman from South Carolina, (Mr. Lowndes) had reported from the committee of Foreign Relations, had been recently wrested from the consideration of the House, in consequence of the suggestion of a foreign potentate, who, Mr. A. believed, was pretty much in the habit of exerting an operative influence in the affairs of other states, with the same disclaimer, it was probable, in every instance, of an intention to do so, which had been employed in relation to ourselves. If the motion which the gentleman from South Carolina had intimated an intention to renew, should prevail, a fate similar to that which had attended his own proposition would be reserved for the propositions now under consideration. Mr. A. confessed he felt surprise at the intimation of resort to such a course, both on account of the importance of the subject and the character of the proceeding itself: the subject involving, as it did, the policy of the alienation of perhaps the most valuable portion, in proportion to its extent, of the territory of the Union, was surely well entitled to consideration, from its magnitude. In this respect, it was to be regarded as second only to the question which had been connected with the discussion of the Missouri bill, to which, indeed, it bore a strong character of affinity. That question related to the propriety of the transfer of the common territorial property of the Union, to the exclusive benefit of the population of one portion of it. The question now presented, involved a consideration of the policy (which it was the purpose of the resolutions to counteract) of the transfer of the most valuable portion of this common property, to a foreign power. If a question, involving a consideration of great momentous character, had no claim to the maturest deliberation of the House, Mr. A. was unaware of any, which could be regarded as invested with such a claim. The effect, too, of the success of the motion of the gentleman from South Carolina, ought not to escape observation. It would be to preclude all effective expression of the public sentiment in relation to the policy of the ratification of the Spanish treaty. The case had no resemblance to that of an ordinary postponement of a subject, the consideration of which might, at a succeeding session of Congress, be resumed. Every person knew that, before the ensuing session of Congress, the treaty would be ratified. The government of Spain could have no other design in sending the Minister who was known to have been despatched here. And the determination which would operate with our own government to accept the ratification, (unless this determination should be arrested by the expression of public sentiment in some mode) could not be a subject of question. The prevalence of the motion to lay the resolutions on the table, would then be decisive in relation to the important interest conceived to be involved in their adoption. By the policy of avoiding conflict, the fruits of complete victory would be achieved.

The Speaker had treated the questions, presented by the resolutions, as affording scope for expatiation to a considerable extent in the general field of Spanish relations. This example, alluring as the subject was, from the variety and interest of the topics it involved, Mr. A. said, that, not having the same claims with the Speaker, on the attention of the committee, he should forbear to follow, and confine himself strictly to the questions arising on the resolutions. These were of sufficient dignity and extent, indeed, to merit a distinct consideration.

The question presented by the first resolution was that which had heretofore given occasion to considerable discussion, relative to the character and extent of the treaty-making power in our government. To the President and Senate was given the power "to make treaties." To Congress were given various powers, among others, that "to dispose of the territory of the United States." And the question was, whether the general power to make treaties, confided to the President and Senate, took place of the particular grant of powers to Congress, so as to operate conclusively on the subjects of this particular grant, without any necessity for the concurrence and assent of Congress.

In contemplating this question, the attention could not fail, Mr. A. said, to be attracted to the extravagance of the pretensions of this treaty making power. In point of extent, the power claimed to cover all the objects which fall within the scope of international stipulation, that is to say, all the objects of national interest, which were not of essential municipal character. This was the claim in point of extent of jurisdiction. In point of force of authority, the power claimed the exertion not only of a preceding, but a mandatory influence, over the legislative department; the direct representatives of the national authority; in relation to all subjects of its exercise, whether comprehended or not, within the delegation of jurisdiction to that department of the government. The claim was not only to exclude Congress from all participation of control over subjects specifically submitted to its control by the constitution, but to bind it to an undeliberating ministerial execution of the stipulations of the President and Senate, in relation to these same subjects, wherever they might require the intervention of legislative details, and a resort to municipal authority for their execution. The exertion of the power of the President and Senate was said, by committing the public faith for its stipulations, to bind the other departments of the government, to an obligation of co-operation in the objects of those stipulations. Such was the claim of this treaty-making power in point of authority. The first remark, Mr. A. said, which arose upon this statement of the character of the power, related to its effect, where the co-operation of legislative and Executive authorities were admitted to be required, to confound the appropriate functions of these authorities. To the President and Senate was assigned the exclusive faculty of exercising deliberation; and on Congress was imposed the unqualified duty of conforming to, and effectuating without, any exercise of discretion, the results of that deliberation.

Such an assignation of functions would present a case of political anomaly, which was not predicable of the character of the constitution. The entire exclusion of Congress from authority over the subjects assigned to the jurisdiction of the treaty-making power, would involve no political inconsistency. This was designed in relation to all but a particular class of subjects. But, if the operation of the legislative power were admitted at all, it could only be admitted in its proper character of a power involving essentially the exercise of discretion. The recognition, therefore, of the necessity for the co-operation of the authority of Congress in the execution of treaty stipulations, was, in relation to all the subjects to which it extended, a recognition of the legislative, as a part of, and a check upon, the treaty-making power.

Mr. A. had been adverting to a statement of the pretensions of this treaty-making power, as furnishing evidence sufficient, to his mind, to condemn them. If other evidence were wanted, it would be found in the discrepancy which the power in the extension claimed for it, presented to the character of the general grant of power contained in the constitution and of the more important particular powers which made up the composition of that grant. It was to be expected of every political system, and more especially of a system sprung from men so illustrious for wisdom as the framers of our federal form of polity, that it would be found presenting a general consistency of structure and elements. But the constitution was admitted to convey but a limited grant of power. All its more important component powers, the power over the purse, over the sword, the power of punishment, were limited, by express restrictive or qualifying provisions. The admission of the treaty-making power, therefore, in the absolute unrestricted character it assumed to wear, would be a violation of the whole consistency of the constitution.

Mr. A. said that a person observing with any degree of attention the progress of our government, could not fail to be struck with the conflict between many of the principles adopted in the construction of the Constitution, and its true character and intendment. The framers of this instrument had expended the resources of an incomparable wisdom, in devising limitations on the powers which it conveyed, and in the contrivance of adequate safe-guards against the exercise of other powers. In the illusion of a generous confidence, they had no doubt conceived that these safeguards would be found sufficient. But, in the current of the administration of a constitutional government, there was generated a reptile destructive or dangerous to the dains and mounds which were instituted to restrain it. The name of this reptile was construction. Such was its fecundity, that it was impossible to extinguish the race. Such was its subtlety and activity of nature, that it was difficult to counteract its operations. This reptile had been at work in the mounds of our Constitution, nor was it a little to be feared, that the breaches had already been effected which were destined, in future time, to give a general admission to discretionary power.

It might possibly be objected to what had been observed, that the power confided to the President and Senate, was a power to make or conclude treaties, and that the construction contended for, would convert their faculty, in this respect, into a mere function of initiating treaties. But the distinction was, that the power which, in relation to the general subjects of treaty stipulation, was exclusive in the President and Senate, in relation to the particular class of subjects under discussion; those confided to the control of Congress, was a concurrent power. In the clause of the Constitution, indeed, creating the power to make treaties, there was no express designation of limits to that power. But, as exclusive powers were no less effectually defined by the coterminous relation of their respective spheres of operation, than by an express designation of limits; so concurrent powers were indicated, in as satisfactory a manner, by separate grants of the same subjects of jurisdiction, to several powers, as they could be by a grant purporting in its terms to be a joint one. It was to be recollected, too, that no consideration affecting either the efficacy of the treaty-making power within its appropriate sphere, or its relation to the public convenience, required that it should be exclusive over all the subjects of its operation. In the denial of any particular subject or class of subjects to its exclusive jurisdiction, the efficacy of the power would suffer no impairment, in relation to others which were conceded. And, as respected public convenience, this consideration, so far from requiring any indefinite extension or character of the power, demanded, on the contrary, that its disposing control should be guarded in relation to subjects of public interest of more than ordinary delicacy or magnitude, by the check of the necessary co-operation of some department of concurrent jurisdiction. Nor, admitting this observation to be just, was there any subject of public interest, characterized by a more indisputable title to the peculiar safeguard in question, than that which related to the disposal of the territorial property of the nation.

The power of the President and Senate to alienate territory, might perhaps be inferred as a consequence of their power to acquire it. Mr. A. both objected to the consequence, as illogical, and protested against the mode of construing the powers of the government by which it must be derived. An incidental power would have to be derived from an incidental power; and this first incident, the source of others, was itself supposed to be derived in a mode still more unauthorized, not from any specific power, but as a result of the general collective powers and sovereign character of the government. In such a mode of derivation of power, it was obvious that the efficacy of specification in the grant of it, would be destroyed, and a political constitution, as respected any purpose of limitation on the exercise of power, be converted to a name. It was inevitable, indeed, that every political constitution should admit the exercise of implied and incidental powers, as a result of the compendious simplicity of an instrument of this character. But the danger of abuse and injury from this source, was guarded, if not obviated, by a mode of construction (the only one which did not outrage a constitution of enumerated powers,) which required that the power made the source as well as that which was made the subject of derivation, should be specific; and that the relation between them should be essential and immediate. Principles the reverse of these, appeared, however, to be obtaining an ascendancy. The operation of the mischief was to be seen, indeed, at this time, only in its commencement. But the end of this thing, Mr. A. said, was death. The malady might now present only an eruptive appearance on the surface, but it would be found to be progressive to the heart of the constitution; would communicate eventually to the system, the unnatural activity of despotism, and of unnatural action, if not arrested, whether in bodies political or physical: there was but one result. and that result was dissolution.

Mr. Archer could not abstain from remarking (though the remark had no immediate relevancy to the question) on the unlimited character of the power of legislation, which was assumed in our government, in relation to the national territories. Authority was arrogated to legislate on this subject at discretion, and an instance of the fullest indulgence of it had occurred at the present session of Congress, (in the measure for the interdiction of slavery in a portion of the territories.) Take this power of discretionary regulation, in connection with the acknowledged power to refuse admission of a territory into the Union, and what was the result? A power was arrogated to regulate discretionally, and a power conceded to retain the territories at pleasure in subjection to the authority invested with this power of discretionary regulation. Let the extent and susceptibility of importance of the territories be considered, and what was the spectacle which, under the practical operation of the doctrine asserted, our government might come to present? The spectacle of an authority strictly limited within its appropriate sphere of operation, exerting unlimited powers in a co-extensive collateral sphere of operation. It would be a condition like that of the Roman republic in an advanced stage of its progress, in which, characterized by the forms of a limited government at home, it wielded without control the uncounted resources and power of the provinces. To the issue of this condition of things in that republic it was not necessary to advert, nor to pursue the train of reflection which it was calculated to suggest.

Reverting to the question, Mr. A. denied that a power on the part of the President and Senate, to dispose of territory, was to be regarded as a consequence of the power to acquire it. The separable characters of these powers resulted from the principle which determined the general propriety and motives of all delegation or reservation of power, namely, the beneficial or harmless character of its exercise. The exertion of a power to acquire territory could scarcely be otherwise than beneficial in its tendency, and the power might therefore well be admitted. The exercise of the power to alienate could rarely be attended with a beneficial, and was liable to be attended with a very detrimental operation. This power might therefore well be denied.

The case was like that of infancy at law, in which, though a competency to be benefitted by acts of acquisition was properly admitted, the capacity was denied to be bound to acts of alienation. A power to alienate was, indeed, in no case, in relation to subjects of private or of public interest, any necessary correlative of a power to acquire. Whether, then, future acquisitions of territory were or were not contemplated, and their disposal provided for by the constitution, the conclusion was still the same, that the power of disposal, either to foreign governments or to citizens, so far as it existed at all, could belong only to Congress; and this in reference both to the letter of the constitution and to the policy directing the delegation of power in free states. If the power were to be considered as a necessary resulting power, arising out of circumstances not foreseen, it could only result to the legislature, the general representatives of the nation. A subject of interest accruing subsequently to a grant, if it can be made to pass at all by the grant, must pass to the grantee of the general estate, and not to the grantee of any particular portion of it.

The powers appertaining to the treaty-making department, and those granted to Congress over particular classes of subjects, presenting the appearance of conflict, the object of a just constitution would be to reconcile them, by allowing to both, if possible, a due operation. But this object could only be attained by the mode which had been suggested, of allowing them a concurrent operation over the subjects which presented the apparent occasion of conflict. This construction was in consistency with all received rules in relation to questions of this sort. It was an established principle, which had been adverted to, (by the Speaker,) that in cases of the conflict of particular with general expressions, the general must give way to the particular expression. And why? Because rules of construction being nothing more than contrivances for the ascertainment of intention, what was equivocal in a general, became explicit in a particular expression. The construction stated derived corroboration in the present instance of its application, from a consideration of the momentous character of the subjects of power which it operated to detach from the exclusive, to confide to the concurrent treaty-making jurisdiction; and from a consideration of the affinity which it tended to stamp on the treaty-making power, to the general policy and character of the constitution, and to the peculiar character of the more important specific powers which it comprised.

The construction relied on was confirmed by other principles of interpretation. One of these, the offspring of incontrovertible reason, required that the most mitigated sense should be given to expressions obscure or doubtful in their character. "In obscuris quod minimum est querimur." The application of this maxim was particularly strong to grants of power, in relation to which the smallest amount of concession might always be presumed. And it applied with still an augmented force to a grant of power such as that contained in the constitution, which was admitted on all hands to be of the strictest and most limited description. But, this being the fact, the whole doubt as well as danger in the case under review, proceeded from the construction which assigned the largest extension to the power of the President and Senate, and were obviated by that which admitted the qualification of their power by the specific grants of power made to Congress by the constitution.

It would not be contended by the most extravagant advocates of the treaty-making power, that there existed no limits to its extension. It would not be contended that the power extended to the transfer of a state, or of an essential part of sovereignty, for example. The question which arose upon this power related, then, not to the fact, but to the point of its limitation. What was the point assigned? The subsistence of other powers by the explicit expression of the constitution. What was the degree of limitation contended for? Was it the entire exclusion of the jurisdiction of the power from the subjects of these particular powers? No. The degree of limitation was the confinement of the power (left in other respects unrestricted) to a concurrent jurisdiction in relation to this particular class of subjects. The limitation assigned was precise, both as respected its point of occurrence and degree. In its tendency it was beneficial; and it arose upon the letter as was sustained by the true intendment of the constitution. Construction affirming a limit of this character upon power, could, with no color of propriety, be rejected from operation.

There was one consideration upon the subject of this controversy, in relation to the extent of the treaty-making power, which appeared to Mr. A. to be conclusive. It was this, that the exclusive control claimed for the power, was not pretended to extend to all the subjects submitted to Congress by the constitution. There were several which this exclusive control was admitted not to cover. The powers to borrow money; to make war; to raise armies; to admit new states, were examples. But where was the ground of distinction between these subjects and those over which an exclusive, superceding control was claimed? It was not to be found in the constitution. There these several classes of subjects were placed on the same exact footing. The powers conveyed to Congress were all conveyed in the same terms.

The distinction was not to be found, in any peculiar importance, of the abdicated subjects. All were important. Was the distinction to be found in the supposed external relation of the class of arrogated subjects, rendering them in a peculiar degree adapted to become the objects of treaty stipulation? These subjects were not distinguished by this character in any greater degree than several of the abdicated subjects; of which the powers of making war and raising armies were instances. The danger, too, with which the argument derived from this principle of construction, was fraught, ought not to escape observation. Let the principle be admitted, and it would be only necessary to give to exercises of power the form of treaty stipulation, and any power might be exercised, and any object attained, by the Executive department, however remote from the proper sphere of its control. Finally, if the distinction between the jurisdiction arrogated, and that renounced, by the treaty-making power, were made to rest on the peculiar character of treaty stipulations, as being susceptible of execution, independently of legislative aid, or as requiring that aid for their execution, the answer was equally obvious with those which had been stated to other supposed principles of distinction. It was this, that there were various supposeable cases of stipulation having no dependence on legislative
aid for execution, which yet the consent of all men would reject from the exclusive control of the treaty-making power. One example, suggested by recent occurrences, should be adduced. A new state, provided its government were organized, and the form republican, might be admitted into the Union without any necessary intervention of legislative authority, by a treaty stipulating that it should send two Senators and one Representative to Congress. There was a republican government now organized among the blacks in the island of Hayti. If the doctrines asserted in relation to the extent of the treaty-making power, were just, what was there to hinder the admission of this Republic into the Union, if the President and Senate were to be of opinion to admit it? Here was a case requiring no intervention of legislative aid. Here was a case which, from its character of external relation, fell within the class of the appropriate objects of treaty stipulation. It was sufficient for the argument, that the case was a possible one. Mr. A. did not affect to insinuate that the realization ever could be thought of. Considering, however, the value of West India possessions, there was a possible composition of the Executive department, in which the realization was by no means inconceivable. Constitutional doctrines, however, could not be sound, which involved the possibility of such a consequence.

There were various other and important views, connected with the discussion of this question of the just character of the treaty-making power in our government, which Mr. A. said that fatigue compelled him to pretermit. An observation had been made in the debate, however, which it was necessary to notice. It had been said that, admitting the incompetency of the President and Senate to alienate, their power could not be denied to ascertain the limits of territory, and that the provisions of the treaty, in this respect, extended no farther than to an ascertainment of limits. The distinction, as related to the power, was admitted. There could be no question of the authority to settle limits. But was the character of the treaty such as had been represented? Did it operate only to define, and not extend to the alienation of territory? Was not the contrary of this suggestion notorious? Did not the treaty, on the face of it, purport to make a cession of territory, by stating the fact, and by employing throughout the language appropriate to cession? Did not every person, in any degree versed in the history of the controversy with Spain upon this subject, know that the boundary fixed by the treaty was, as had been observed by the Speaker, a new line made, and not a line ascertained? The treaty did, therefore, make an alienation of territory. Into the question of our title to this territory, Mr. A. did not design at this time to enter, farther than to observe that the acceptance by Spain of the country as a cession from us, was to his mind sufficient evidence of the validity of our title. The inability, too, of Spain to make out a valid title against us, (which appeared from the negotiation to be the fact,) was itself, in the relative condition of the two countries, tantamount to a valid title upon our part.

Such were the views which Mr. A had been led to entertain of the proposition affirmed by the first resolution. But, whether those views were well or ill founded: whether Congress were or were not entitled to a voice in the disposal of the territory which the treaty with Spain proposed to alienate, there could be no question of its belonging, both to the right and the duty of Congress, to express an opinion upon any subject of national policy, deemed of sufficient importance to require such an expression. There could be as little question that this expression of opinion would have its due weight with the Executive Department of the government. If Congress concurred, therefore, in the views which had dictated the second resolution, there could no question of the propriety of affirming them, by the passage of the resolution.

There were several propositions asserted by the resolution—the disproportion of the equivalent rendered by Spain for our concessions in the treaty; the general impolicy of the transfer of the territory ceded on our part to any foreign power; and the inexpediency as a consequence of these, of the ratification of the treaty, now that the option of our government was restored, to ratify or reject it. Was, then, the equivalent stipulated to be rendered by them, disproportionate, and was it impolitic to make a transfer to any foreign power of the territory we had stipulated to cede? What were the relative concessions of the contracting parties? On the side of the United States, five millions of dollars to be paid, in part discharge of claims of our citizens upon Spain; the abandonment of the residue of these claims; of which, as they stood in the same character, the allowance of this part, was in effect a recognition, to the amount of $15,000,000, as had been stated (by the Speaker;) the privilege to the subjects of Spain carrying on commerce with the territory we were to acquire; of admission into its ports on the same terms with our own citizens, for the period of twelve years from the ratification of the treaty; and, finally, the territory of Texas, which we stipulated to cede. Placing out of view the other parts of this concession, what was the character and value of this territory of Texas? The full value we were not possessed of sufficient information, it was probable, to enable us to appreciate. Enough, however, was known, to ascertain its superiority in this respect to the Province, as part of the consideration of which it was proposed to be transferred. In superficial extent, Texas would not be denied to be several times larger than Florida. In a general character of fertility, the two countries, according to the accounts which Mr. A. had received, admitted of no comparison, so decidedly was the advantage on the side of the former of them. Placed in a near vicinity to South America, this province asserted still more signally, to the character of its productions, its affinity to the peculiar natural advantages which distinguish, in a manner so remarkable, that most favored portion of the earth. Productions of the highest value, and supposed to be the most widely diversified, as respected the soil and climate they required, found here a point of neighborhood and union. Corn, Cotton, Sugar, met a congenial soil, and circumstances favorable to their production. The climate was of extraordinary salubrity: the rivers various and large. And what was the consideration for which we were to surrender a country such as this had been described; of immense extent, possessed of every natural advantage, destined by the most signal evidences, to high political importance? Was it for the sands of Florida? No, not for the property, but for little more than the sovereignty of these lands. Independently of the grants to Alagon, and Vargas, and Puno Rostro, which had been the subjects of recent contestation, for the largest and the most valuable portion of the soil of Florida, was known to have been granted out. The recent contested grants had only been of the residuary lands. In the bargain which had been made, we were to give the sovereignty and nearly the whole Mr. A. presumed, of the soil of Texas, such as it had been described, for little more, comparatively speaking, than the sovereignty of Florida. Was the bargain one which in this obvious view of its character, with perfect liberty to accept or reject it, it would be expedient to confirm? But great importance was attributed to Florida in a military and political point of view.

Without any design of derogation from the importance of Florida in this respect, did this consideration, Mr. A. asked, render its acquisition at this time, and at the price of any disproportionate equivalent, an object of reasonable solicitude on our part? He apprehended that it did not. Whatever might be the advantages presented by this country for purposes of military or commercial annoyance, in the hands of Spain, it could not be rendered subservient to any such purposes against us. Spain did not possess, nor had the faculty of acquiring means and resources, military or naval, which could be applied to such objects. Nor, if she possessed, or could acquire them, could it ever be her policy to avail herself of the position of Florida to employ them against this country. In proof of this, the single consideration was sufficient that the inevitable result of the pursuit of such a policy, would be the loss of the province in question, without the possibility of indemnification. This result, it would be admitted, could not be prevented by any exertion or contingency of events. The acquisition of Florida, was therefore, an object of no considerable importance, as related to any view of danger of its being used for purposes of annoyance by Spain. The ground of apprehension was as slight from any other quarter. The Indian inhabitants would be in no great degree more likely to give us disturbance, if the country continued in the hands of Spain, than if it were transferred to our own. Nor was fear indeed to be indulged, of disturbance from this source, whilst the life, or the memory of Jackson among his Indian adversaries, were preserved. For danger, proceeding from any European power other than Spain, we had already made an adequate provision by a law giving authority to the President to prevent the occupation of Florida by a foreign power. Mr. A said that in the policy of this law he entirely concurred. Whilst he should be opposed to the occupation of the country by ourselves, at least under present circumstances, when he would be averse to any measure by which the hazard of war might be incurred, he should at all times, and under all circumstances, consider the prevention of the occupation of Florida by any other foreign power than Spain, as a measure of indisputable and unimpeachable policy, on the part of this country. It stood justified to his mind, by considerations admitted to be paramount to all others, of defence and preservation. No power could have either interest or motive in the acquisition of Florida, unconnected with views to our annoyance, and a policy dictated by such views, it was at all times as justifiable, as it was necessary, to repel. Whatever then, might be the intrinsic importance of Florida in a political point of view, its acquisition could not be considered as demanded of us at this time, at the price of any concession disproportioned to its proper value.

But, was this character of importance in a political view confined to Florida? Was Texas of no consideration in this view? Let the situation of this province, at the back of Louisiana, and the direction of the flow of its principal rivers be considered, and the important and delicate relation, which it sustained at New-Orleans, itself the most important position in our country, would immediately be perceived. Upon this view of the subject, interesting as it was, Mr. A. forbore, from obvious considerations, to enlarge. He would dismiss it, merely accompanied with a hint at the capacity of Texas, to maintain a formidable population. Considered in a mere political aspect, then, the equivalent which we were to obtain for our Territorial concession in the treaty, appeared to be little entitled to the preference, which had been allotted it, and the ratification of the treaty, altogether unadvisable.

There was a further view of the subject entirely concurrent with that which had been stated. Whatever might been the value of Florida, could it not been obtained on terms, better than these which had been stipulated? There was certainly no indisposition on the part of Spain, to yield it to us. This was manifest, from the character of the instructions which were known to have been given to Don Onis: from the fact of his signature of the treaty; from the fact of the dispatch of the new mission, which was every day expected on our shores; and finally, from the evidence disclosed by the publication of the late negociation at Madrid, which shewed that the difficulties which had obstructed the ratification of the treaty, did not relate to any reluctance indulged by the government of Spain, to make a cession of the country. Spain had no interest in the retention of this province. It was of no value, but rather a source of expense, and a burthen as a territorial dependency. It could be of no value from her peculiar condition, in a military or commercial view. Superadded to this consideration, she had strong motives to make the cession. If the motives of her determination to do so, as heretofore evinced, had reference to the posture of her affairs in South America, these motives not only retained an undiminished, but had acquired an increased force from recent occurrences. If the object of her policy hitherto, had been to prevent our interference in any mode in the contest with the Patriots, and she still retained the hope of being enabled to prosecute that contest, the increasing difficulties of her situation, and the knowledge of the peculiar and growing state of public sentiment in this country, both towards herself, and towards the Patriots, furnished decided inducements to her, to continue to act in the same line of policy, and to secure our further forbearance, at the price which she had already determined to regard as a consideration not too high for it. But, if she had lost all hope of being enabled to prosecute the contest with the colonies, then her inducements to the same course, became still more unequivocal. Why? because she knew that in the event of the success of the Patriots, Florida must fall into their hands, who may be presumed to form the objects of her peculiar animosity, or must come by the operation of domestic revolution into ours, without her obtaining any compensation for it, even the liquidation of our claims on her for spoliation. In every view, then, interest, and in one view a moral feeling, more powerful in its operation than interest, prompted Spain to the pursuit of the same policy, which was that of cession of the Territory we were desirous to obtain. There was no opposing interest, or motive of any sort. Under these circumstances, left as we were, at liberty by the delay of Spain in ratifying the treaty; and even authorized to rise in our demands, would it not be a policy preferable to the ratification of the treaty, to trust ourselves to the results of a new negociation? In the worst event of such a resort, we might expect, considering the advantage of our situation, to procure Florida for money, (more alluring to Spain in her present circumstances, than Territory) in place of the disproportioned Territorial equivalent, which we had stipulated to give for it.

Might we not be justified too, in indulging a glance at the very possible contingency of procuring this country, without the payment of any price, by the effect of domestic revolution? In any event, our claims on Spain would remain the same. They might be considered as having derived the advantage of recognition from the Treaty. Spain was in no condition to satisfy them in any other way, than by a cession of Florida. If she declined to satisfy them, in this, the only mode which was in her power, we would be at liberty to adopt a remedy for ourselves. The fund could not escape us. It was at all times liable to our control. Could there in such circumstances be excuse for imprudence, or occasion for precipitation, in our endeavours to obtain possession of Florida, however desirable it might be to do so?

Upon the whole Mr A. said, he considered the propositions affirmed by the second Resolution as sustained—that there was a want of proportion, in the relative concessions of the treaty; that the Territory which it purported to cede on our part, ought not to be made the subject of transfer to any Foreign power, and that the ratification of the treaty was in every view inexpedient. Entertaining these views, he had no hesitation in expressing them, and he hoped that the Resolutions would meet the approbation of the committee.

Debate to be continued.