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To Don J. V. Morales.
BATON ROUGE, September 12, 1806.
Sir: The new settlers on the ground belonging to the ruined fort, of whom I wrote to you, sending a plan enclosed, for the purpose of knowing your determination with respect to issuing the proper titles to them, being in suspense, and I myself being doubtful whether you have resolved of yourself to issue those titles, or to give me power to do so, or whether you think I can do so in my military capacity; I should be glad if you would inform me, in order that I may comply with the wishes of the present inhabitants, and put an end to their alarms, lest there should be any political or local change here; for they have already spent much in clearing and planting.
CARLOS DE GRAND-PRE.
Order.-To J. Morales and V. Quiroga. Pensacola, October 29, 1806. Let the above be added to the other papers on which an answer is in preparation. Morales.
Certificate.-Pensacola, November 29, 1806. The above is a true copy from the original, now in the office of this intendency; and we give our testimony, that we have acted therein according to the directions of the intendant. Juan Morales-Ventura Quiroga.
THE FLORIDA TREATY,
BY JOSEPH M. WHITE, ESQ.
The treaty of the 22d of February, 1819, between his catholic majesty and the United States was intended, as declared in the preamble attached to it, "to consolidate, on a permanent basis, friendship and good correspondence; and to settle and terminate all their differences and pretensions, by a treaty which shall designate, with precision, the limits of their respective bordering territories in North America."
One of these "differences," thus proposed to be terminated, was of deep interest, long standing, and protracted negotiation, relating to the boundaries between Louisiana and West Florida. The conflicting "pretension" of each power was to the jurisdiction and dominion of the territory lying between the Mississippi and Perdido rivers; and the object of this treaty, as recited, was to designate and settle this question of limits..
The controversy grew out of the extent of the Louisiana cession in 1803, after that colony was ceded by his catholic majesty, in a secret treaty of San Ildefonso, dated the 1st of October, 1800, to the French republic; and after the delivery of the province, by the Spanish commissioners Don Manuel Salcedo and the Marquis of Casa Calvo to the French Prefect Lausat, and by him, under the subsequent cession of 1803, with the same designated limits, to the United States, the latter set up a claim to all the territory east of the Mississippi, as far as the Perdido. This district of country was neither delivered by Spain to France, nor by France to the United States, as a part of the Lousiana cession. The colony of Louisiana was quietly considered and accepted by the authorities of all three governments, with the limits designated in the act of delivery, without exception, qualification, or protest. Spain remained in possession of West Florida, being all the country east of the Mississippi river, and the island of New Orleans, which was neither ceded nor VOL. II.
delivered to France by the stipulations of the treaty of San Ildefonso, nor by the latter to the United States.
In 1904 the government of the United States set up a sort of equivocal title to the territory in question, in which they had so little confidence, that upon the first protest of Spain, they so construed their law as to abandon the right to establish a custom-house at Mobile.
In 1805 they created an extraordinary mission to Madrid, to negotiate on the subject, which negotiation resulted in an entire failure. France and Spain both maintained that this territory was no part of the colony of Louisiana. Our negotiators having failed at Aranjuez, in 1805, to satisfy either Don Pedro Cevallos or his government, or to convince Prince Talleyrand, or the First Consul, that there was any justice in their pretension, set on foot, in the year 1809, a secret negotiation with the local authorities, to induce them to surrender the province of their royal master. This also failed, and they then stimulated an insurrection in the province, and took possession of it, avowedly to put down the rebellion, and to hold the territory subject to future negotiations.
A proclamation was issued in 1810, stating in the preamble the confidence the government of the United States had in their title, and that they would take possession of the same, with the explicit declaration that "it will not cease to be a subject of fair and friendly negotiation and adjustment."
The Spanish authorities remained in possession of this territory from 1803 up to 1810, exercising all the rights of jurisdiction and dominion; and granted about one out of the ten millions of acres of land. The government, de fucto, during the seven years, is a fact which will not and cannot be questioned.
Spain, at the time of this proclamation, was desolated by Napoleon's army, and his catholic majesty in duress. I say nothing of the time selected to seize upon this province. It was alleged to be held subject to negotiation, but very soon partitioned out.
In all the correspondence between the two governments, from 1810 to 1819, Spain solemnly protested against that construction of the Louisiana treaty, both at Madrid and at Washington. (See the correspondence annexed hereto.)
The treaty of 1819 terminated the controversy between the two governments, and definitively settled the question of jurisdiction and sovereignty.
The second article is in these words, upon the English side: "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." The Spanish side is more emphatic: "Todos los territorios que le pertenecen situados al este del Mississippi, cornocidos bajo el nombre de Florida occidental y Florida oriental," known under the name of West Florida: thus designating a territory known under the name of West Florida and East Florida. It will be obser
ved that this was the cession of territories not east of Perdido, but east of the Mississippi.
The confirmatory article is coextensive with the article of cession. It provides that all claims in "the ceded territories shall remain ratified and confirmed." The treaty, it has been said, terminated the political question between the two nations. The subordinate question arising between the individual grantees, under titles made by the legitimate authorities of the crown of Spain, between the years 1803 and 1810, whilst Spain remained in possession of this territory, is now presented for consideration and decision.
If the United States had recognized these titles, as it is believed was the understanding of the contracting parties, it would have prevented the development in these papers, which for many reasons should have been avoided. These claims have not been admitted as yet by the United States, and these claimants are obliged to present the question for the legislative and judicial departments of the government.
If the territory lying between the Mississippi and Perdido rivers was in fact ceded as a part of the colony of Louisiana, then Spain had no right to grant any portion of it subsequent to the date of that treaty in 1803. If, on the other hand, the United States did not acquire the territory until the Florida treaty, then Spain had a right to grant the lands between the years 1803 and 1810. The United States, prior to the conclusion of the treaty of 1819, had no other knowledge of the contents of the treaty of San Ildefonso than that part of it quoted in the Louisiana treaty. The whole of that treaty is hereto annexed, and marked A. Taken in conjunction with the other public papers, never before published in this country, marked B, it will explain the object of the contending parties. Prior to 1762, the respective rights of Great Britain, Spain, and France were but little understood, either in Europe or in this country. Each power set up the most exorbitant pretensions to territory, founded upon the uncertain and indefinite title of discovery.
It was the object of the treaties of 1762 and '3 to settle their pretensions to colonial aggrandisement. In the absence of these papers, which distinctly explain the understanding of all the parties as to the precise limits of Louisiana and West Florida, the United States have endeavoured to establish some claim, founded upon this uncertain source of title, to be established by reference to vague maps and unauthenticated speculations of geographers.
It is not deemed necessary to go into these questions. It is enough to establish the fact, that in the year 1762 all the territory west of the Mississippi, including the island of New Orleans, was called the colony of Louisiana; and all the territory east of that river and the island was called West Florida. France ceded Louisiana to Spain, and West Florida to England. France, however, remained in possession of Louisiana until 1769. The formal delivery of Louisiana was made on the 21st of April, 1761, but Spain could not get possession or exercise jurisdiction until 1769.
The third article of the treaty of San Ildefonso provides that his catholic majesty engages to "recede the colony or province of Louisiana, with the same extent it now has in the lands of Spain, and had while in the possession of France." What was once Louisiana became two colonies in 1762, under different names, transferred to different powers. The two colonies, by conquest and treaty, again came under the dominion of Spain, but they preserved their separate names and separate governments.
Louisiana, as it "is now in the hands of Spain," i. e. in 1800, was not as France possessed it prior to 1762. The name and government of West Florida must have been extinguished, and the territory reannexed to the colony as it then was. France had possessed this colony from 1762 to 1764, before Spain signified her acceptance of it, and until 1769, before Spain got quiet possession of it. His catholic majesty receded the province of Louisiana. It is a perversion of terms to say a recession of a province will include another province never ceded by the grantor, but taken by conquest from another power. We have in these papers the clear, unsophisticated understanding of France and Spain. It is apparent that Spain did not intend, and did not in fact cede to France any portion of territory east of the Mississippi in the year 1800. It is shown that France did not receive or claim any portion of this territory under that treaty, but subsequent to its date proposed a distinct treaty to acquire it. France could only transfer what she had acquired, and
The negotiation of the treaty on the part of France was confided to Monsieur Bartè Marlois, who was instructed to consult Prince Talleyrand. The map of Monsieur Marlois shows the extent of the cession, as understood by himself and the ministers of the United States. There are numerous maps, histories, papers, and documents going to establish this view of the subject. It is unnecessary to refer to them. It is too clear for argument. The United States never had a legitimate claim to this territory until 1819. The question then arises as to the titles to be confirmed within the ceded territories. This requires an examination into the principles of international law applicable to the construction of this treaty. I have said that by the treaty of the 22d of February, 1819, Spain ceded the Floridas to the United States.
The latter acquired these provinces and their appendages in full sovereignty, including all public grounds and edifices, and all vacant lands which were not private property. (Article 2d.)
It was stipulated between the high contracting parties, that all grants made by his catholic majesty, or his lawful authorities, before the 24th of January, 1818, in the ceded territory, should remain confirmed and acknowledged in the same manner as they would have been if the provinces had continued under the dominion of his catholic majesty. (Article 8th.) Further time was given to proprietors who had been prevented from fulfilling the conditions of