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 The cession of 
 Conf Pam #761 
 
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 LETTEK FROM JUDGE (iAY^RJBE 
 
 THE CESSION OF LOUISANA 
 
 TO THE ITNITJSD STATES. 
 
 c~r. 
 
 To Hon. John T^hkin*, of Madinon, niemlier of tho Stel 
 
 Tendril : 
 
 Bear Sir— You mentioned to me in conversation, 
 few days since, that the contemplated secession of 
 Louisiana from th^ Union wa* looked upon as fraught 
 with a peculiar difficulty, arising from the fact of its 
 having been purchased by the United States, and that 
 this difficulty would probably be forced on the consider- 
 ation of the State Convention, which i» to meet at 
 Baton Rouge on the 23d of this month. You further 
 did me the honor to desire the expression of my views 
 to you on tire subject. As it is one of general interest, 
 I hope that you will give your sanction to the publicity 
 of this address, which, otherwise, would enly have 
 been submitted to your private perusal. 
 
 It is, I kno<7, the popular impression that the Uaitod 
 States, in co . of a certain sum of money paid 
 
 to Prance for the purchase of Louisiana, acquired that 
 province, with all the rights of unqualified, unconditional 
 
 to the 
 otier by a notarial act of sale. Bui a -ruina- 
 
 tion of that treaty of cession, with all the circumstances 
 attending it, may tomewhat modify that impression. 
 
 The United States, being informed of the retrocession 
 of Louisiana to France by Spain, became extremely 
 solicitous to obtain from that power the cession of 
 New Orleans, with a limited adjacent territory, but 
 sufficient to give them egress to the Gulf of Mexico. 
 At first Bonaparte, who was then the ruler of Prance, 
 showed himself unfavorable to the attempted negotia- 
 tion on the part of America. However, on the 10th of 
 April, 1803, he said to his Ministers : " I know the full 
 value of Louisiana, and I have been desirous of repair- 
 ing the fault of the French negotiator who abandoned 
 it in 17G3. A few lines of a treaty have restored it 
 to me, and I have hardly recovered it when I mnst ex- 
 pect to lose it. But if it escapes from me, it shall one 
 4ajr ccst dearer to those who oblige me (meaning Eng- 
 land, then the mistress of the seas,) to strip myself of 
 it, than to those to whom I wish to deliver it." Not- 
 withstanding the starn necessity to which his iron will 
 felt compelled to bend, he still clung to the much- 
 prized acquisition, and still hesitated. 
 
 But a few days later, he said to one of the members 
 of his Council : " Irresolution and deliberation are no 
 longer in season. I renounce Louisiana. It is not only 
 New Orleans that I will cede ; it is the whole colony, 
 
 i. I know the price of what I aban- 
 
 1 1 have sufficiently proved the itrportanee that T 
 attach to '.his province, since my firs* diplon- 
 
 •urn had for ita object its reec. 
 il with the greatest regret/' Then he added : " For a 
 kandred years France and Spiin have been incurring 
 expenses for improvements in Loaiaiana, for which i!E 
 ■t-aderi d jmniGedthem. Large sunn, which 
 
 will ncv vl aed to the treasury, have been lent 
 
 \> companies and to agriculturists. The pr'ee of all 
 
 lings ia justly doe to us. If I should regulate 
 !.e value of these vast region* 
 
 United Stat - lemnity would haven" 
 
 I will bo moderate ia consideration of t'uo 
 
 ityla which I am of making a sale." The high 
 
 . Bonaparte was addressing theso 
 
 t ids, and who was to be his negotiator with H ■ 
 
 an Plenipotentiaries, made some £■ 
 \ ions on the c<:~2ion of the right - ? of sovereign;.. 
 
 ^d his doubts aa to whether the*ihabitants of 
 * 
 
 ot exchange. Bonaparte replied imp 
 usual abruptness: " You are giving mo, in all its per- 
 fection, the ideology of the law of nature and of 
 nations. But I require money to make war on the 
 richest nation in the world. Bend your n 
 to the London market. I am sure that they will bo 
 greatly admired there, and yet no great attention i: 
 r>aid to them, when the question is the occupation of 
 the finest regions of Asia." Notwithstanding this Bai 
 castic remark, it will be seen that the Minister's obj?:- 
 ! ion, which Bonaparte seemed to treat so slightingly, 
 : enk in his mind, and that he subsequently provided 
 I ir it in the treaty of cession. His sagacious intel- 
 lect even anticipated another objection. " Perhaps," 
 he continued, "it will also be objected that tho 
 / mericans may be found too powerful for Europe in 
 trvo or three centuries ; but my foresight does not em- 
 brace such remote fears. Besides, we may hereafter 
 t-spect rivalries amocg the members of the Unic". 
 The confederations that are called perpetual only last 
 till one of tho contracting parties finds it to his interc I 
 to break them, and it is to prevont the danger to which 
 the colossal power of Eogland exposes us, that I won! J 
 p-ovide a remedy." That great man evidently did 
 not understand how a confederation of sovereign States 
 could be maintained beyond the time when it would not 
 be to the interest of any one of the parties to keep np th 3 
 confederation, and much less when the majority becaftle 
 
[2] 
 
 oppressive and tyrannical, and avowed the systematic 
 design to wield the political power of the confedera- 
 tion with a view to a radical change in the fundamental 
 principles on which it had been originally established. 
 Hence, the fair presumption is, that if he had lived in 
 our days, and had been acitiz u of Loui-iana, he would 
 have been a Secessionist. 
 
 Be it as it may— on the 30th of April, 1803, the First 
 Consul (Bonaparte), acting in the name of the French 
 Republic, ceded forever to the United States, in fall 
 sovereignty, the territory of Louisiana, on which occa- 
 sion he sententionsly and prophetically said : " This 
 accession of territory strengthens forever the power 
 of the United States ; and I have just given to Englard 
 a maritime rival that will sooner or later humble her 
 pride." What were the considerations of that 
 treaty of cession, as expressed in the deed itself? 
 Was it the payment of dollars and cents? No! 
 The preamble say9 that it was " the desire to remove 
 all cause of misunderstanding relative to objects of dis- 
 cussion in relation to the rights claimed by the United 
 States in virtue of a treaty between Spain acd the 
 United States, concerning the navigation of the Missis- 
 sippi,"and also that it was " the willingness to strength- 
 en the union »nd the friendship which had been hap- 
 pily re-established between the two nations," after a 
 disagreement which had almost dragged them into a 
 war. 
 
 What says Article 1 of the treaty? Does France 
 cede Louisiana merely in consideration of the payment 
 of a certain sum of money, as is done in all ordinary 
 acts of sale and purchase? No; nothing of the kind is 
 to be found in the body of the treaty of cession. Not 
 one word of it ! France expresses that she cedes Lou- 
 isiana because " she derires to give to the United States 
 <i»*rong proof of her friendship." The French tf*\L 
 BayB: " unepreuve remarquab!e, u and truly a "re- 
 markable proof " it was ! 
 
 The Article 7 stipulates for some commercial advan- 
 tages, reciprocally beneficial to the commerce of 
 France, Ppain and the United States, and which are to 
 last twelve years. That is all. Does all this sound 
 like an ordinary act of sale ? 
 
 After the treaty had been signed, and Louisiana ceded, 
 France and the United States, " wishing to regulate 
 definitely everything which had relation to said cession," 
 entered into stipulations by which the Government of 
 the United States engaged to pay to the French Gov- 
 ernment the snm of sixty millions of francs, indepen- 
 dent of the sum which was to be fixed by another Con- 
 vention for certain payments due by France to citizenu 
 of the United States. 
 
 Is it possible to read what precedes without comfna 
 to the conclusion that, in parting regi-etfully with Louisi- 
 ana, the intention of the ruler of France was to make 
 the best use of what be could not kepp— that it was 
 to strengthen the bonds of union between France 
 and the United States, and to give them, as he took 
 care to insert it in the treaty, "a remarkable 
 proof of his friendship ; " and lastly, that it was 
 his policy to increase the rising and growing power 
 of the United States, so as to oppose a mighty 
 rival, within a few years, to what he called "the 
 colossa' power of Great Britain." As to the pecuniary 
 part of the transaction, it seems to have been design- 
 
 edly postponed and kept out of sight. It became the 
 object of <» second and separate convention after the 
 first had been completed. It was considered with 
 
 reason, by Bonaparte at least, as a" mere indemnity" 
 
 as a reimbursement of expenses incurred for the pres- 
 ervation and improvements of Louisiana, and a repay- 
 ment of the large sums expended for its colonization, 
 but not as the value of the thing tranferred. " The 
 price of all these things is justly due to ns," observed 
 Bonaparte. Wishing to give to tie United States " a 
 remarkable proof of his friendship," and to invigorate 
 them into being a worthy and efficient adversary to 
 Great Britain, he determined, as it were, to donate 
 what he could not keep ; and he did not ask for the 
 value of Louisiana, because, to use his own words, 
 "the indemnity would have had no limits." There- 
 fore, he insisted only on what he thought France was 
 entitled to — a mere reimbursement of advances made — 
 an indemnity for expenses incurred for improvements 
 in the colony. Was Louisiana sold as a common farm T 
 WaB it not ceded on the express stipulation of its being 
 a remarkable testimonial of friendship ? Setting aside 
 the "letter which killeth and looking to the spirit 
 which vivifieth,"can this be regarded as a sale which 
 was recorded as a testimonial of friendship, and for which 
 no adequate equivalent was given? In the private 
 transactions of life, when a thing Is transferred for a 
 price far inferior to its value, it may be called a sale, 
 because it assumes that form ; bat it is in reality a dis- 
 guised donation, particularly if it is stipulated in the 
 deed that it is meant as an evidence of love, 
 which is desired to be strengthened and perpetuated. 
 Thus, in the oase of the acquisition of Louisiana,, 
 the term " purchase," according to its common signi- 
 ficance, in commercial language, is misapplied. It is, 
 to be sure a cession of the province ; and if it is not 
 strictly a donation, it mnst be conceded that it is not 
 strictly a sale. Many would even think that it partakes 
 more of the nature of the former than of the latter. 
 
 But in support of this view of the question, there is 
 a stronger point to present to your consideration. It 
 is worthy of remark that, mindful of the objection 
 which had been made to him by his minister about the 
 right of selling souls, and which, apparently, had been 
 scornfully received, as I have already stated, Bonaparte, 
 according to the historical declaration of that same 
 minister, (Barbc Marbois,) " prepared himself," the 
 third article of the treaty of cession, which runs thus: 
 
 " The inhabitants of the said territory shall be in- 
 corporated in the Union of the United States, and ad- 
 mitted as soon as possible, according to the principles 
 of the Federal Constitution, to the enjoyment of all the 
 rights, advantages and immunities of citizens of the 
 United States; and in the meantime they shall be 
 maintained and protected in' the free erjoyment of 
 their liberty, property, and the religion which they 
 profess." 
 
 Was this selling Louisiana ? Was this selling the 
 Louisianians like cattle or other chattels ? Were they 
 becoming the property of the United States, to be 
 di-posed of as they pleased ? Did the United Statea 
 acquire an unqualifiid and unrestrained sovereignty 
 over them? Could the United States resell Louisiana? 
 No. It is evident that, by the trtaty, France, through 
 Bonaparte, made it imperative on the United States 
 
[3] 
 
 to invest the Louisianians with the saqje sovereignty, 
 to its full extent, which was possessed by their own 
 citizens. The Louisianians were to be " incorporated 
 in the Union as soon as possible." How could they be in 
 corporated in a Union of sovereign StateB,except by be- 
 coming the citizens of a State or of Btates ? Therefore 
 the cession of Louisiana.whichis commonly called asale, 
 was nothing el^e than the annexation of that province 
 to the United States, either as a State or as divided 
 into several States, according to the principles of the 
 Federal Constitution, among which stands prominently 
 the principle of equality among the members of the 
 Confederation. That this was the understanding of 
 Bonaparte is evident from the words which he uttered 
 immediately after be had signed the treaty. He said, 
 to the minister who bad negotiated for him, " Let the 
 Louisianians know that we separate ourselves from 
 them with regret; that we stipulate in their favor' 
 everything that they can desire ; and let them, here - 
 after, happy in their independence, recollect that they 
 have been Frenchmen, and that France, in ceding 
 them, has secured for them advantages which they 
 would not have obtained from an European power, 
 however paternal it might have been. Let them re- 
 tain for us, sentiments of affection ; and may their 
 common origin, descent, language and customs, per- 
 petuate the friendship." 
 
 Thus, he prided himself on having seoured the inde- 
 pendence of the Louisianians. How could that inde- 
 pendence be obtained except by immediate annexa- 
 tion? We could not have been independent whilst the 
 inhabitants of a Territory of the United States, and 
 therefore dependent on them, no more than we could 
 have been independent whilst remaining the inhabit- 
 ants of a colony. Whilst the Louisianians were to re- 
 main in a transitory condition ; whilst they were the 
 inhabitants of a United States Territory ; whilst 
 they were incapable of protecting themselves— 
 before their being invested with that sover- 
 eignty which became their birth-right by an 
 express stipulation recognize 1 as the supreme law 
 of the land ; whilst they were, to some extent, de- 
 pendent on the United States — " en attendant"— (the 
 words of the French text)— while they were waiting 
 for ,their independence and their incorporation into 
 the Union, France took apeoial care to demand the 
 guarantee that they should be maintained and pro- 
 tected in the free enjoyment of their liberty, property 
 and the religion which they professed. Were they 
 sold, then, to the United States according to the com- 
 mon acceptation of the word and the popular im- 
 pression ? Was it because the United States agreed to 
 pay to France a certain sum of money which was a 
 mere reimbursement of all her expenses in her former 
 colony? As well might it be said that Texts sold 
 herself to the United States because Bhe stipulated the 
 payment of a certain sum of money as a condition of 
 her incorporation into the Union. 
 
 As long as Louisiana remained a territory, if its in- 
 habitant* had been robbed of any of their existing 
 rights, if they had been oppressed in their persons and 
 attacked in their property aud religion, France, who, 
 in virtue of the treaty of cession, had retained a right 
 of supervision over the destinies of her former colony, 
 would undoubtedly hive had the right to interfere. 
 
 But as soon as Louisiana was incorporated in the Union 
 as a sovereign State, the protective- stipulation on the 
 part of France ceased, because Louisiana was hereafter 
 to look to herself for protection. The act of Congress 
 authorizing the territory of Orleans, which had been 
 carved ont of the province of Louisiana, to form a State 
 constitution, was not a voluntary, spontaneous and 
 independent act, originating in the liberality or munifi- 
 cence of that body. It was no boon, no gift, no grant 
 from the United Stateb ; it was simply the execu- 
 j tion of the treaty of cession— the accomplishment 
 of the generous will of France. It is therefore to 
 the treaty of cession that Louisiana is to look back 
 for Ler sovereignty, and not to the United States, 
 who had merely bound themselves to accept 
 that sovereignty, and to carry it into effect. If A 
 cedes to B all his rights of property in a slave, and 
 stipulates that B shall emancipate that slave as 
 soon as possible, the act by which B emancipates that 
 slave is really the act of A, and it i9 to A that the slave 
 is indebted for emancipation, and not to B. Thus the 
 act by which the United States Incorporated Louisiana 
 in the Union being prescribed by France, and being 
 an unavoidable obligation on the part of the United 
 States, was in reality the act of France. The United 
 States were a mere ministerial agent chosen by Franca 
 [ to secure that independence which she instructed her 
 I minister to inform the Louisianians that she had pro- 
 ' vided for them. 
 
 In support of the correctness of my views, I beg, 
 | dear sir, to refer yon to the debates in Congress on 
 i the discussion of the bill providing for the carrying 
 into effect of the treaty of cession. Mr. Pickering, of 
 1 Massachusetts, opposed it in the Senate, on the ground 
 r of its unconstitutionality. Alluding to the third article 
 j of the treaty, he said, that it " stipulated the admission 
 | of a foreign country as an associate in the Union." 
 I He added, "I have never doabted the right of the 
 United States to acquire new territory, ei'hor by pur- 
 chase or conquest, and to govern the territory so ac- 
 quired as a dependent province." But be denied that 
 such was the case with Loaisiana. He maintained, 
 justly, that she was acquired as a State to which had 
 been secured the right of independence ani self- 
 government, and not as a " dependent province." He 
 further said, ,; that if the United States failed to exe- 
 cute, within a reasonable time, the engagement 
 assumed in the third artiole, the French Government 
 would have the right to declare the whole treaty null 
 and void." 
 
 Mr. Tracy, of Connecticut, followed in the wake of 
 Mr. Piokeriug. He considered that the United States 
 had acquired a State and not a Territory. " If dons 
 at all," he said, " it mast be done by universal consent 
 of all the States, or partners of our political association; 
 and this universal consent, I am positive, can never b* 
 obtained to snch a pernicious measure as the admission 
 of Louisiana, of a world— and such a world ! —into our 
 Union. This would be absorbing the Northern States, 
 and rendering them as insignificant in the Union as 
 they ought to be, if by their own consent the new 
 measure should be adopted." Northern insignificance ! 
 I avail myself of this opportunity to call your attention, 
 by the way, to this apprehension of Northern insignifi- 
 cance, and Northern decline, compared with Southern 
 
m 
 
 importance acd Southern prosperity, as one of the 
 secret springs of that deadly hostility and jealousy 
 enteiUined by one section of the conDtry agai . 
 other. 
 
 The whole drift of Mr. Adams's argument i 
 subject shows that be also thougbt i fa 
 not acquired as a dependent province. Mr. Griswold, 
 of Com Id in the House : " It is i 
 
 was intecded to incorporate tho i 
 ceded Territory in the Union by tho treaty it*eir, or to 
 pledge the faith of the nation that such en incorpora- 
 tion should take place within a reasonable tim< 
 complained that it was the admission of a new p 
 in a firm without the consent of all the pa«-(i 
 was the incorporation of a foreign nation into the 
 Union; it destroyed the perfect Union contfn 
 between the original partie», by inferposing an alien 
 and a stranger to i ' otrs of governm . 
 
 Mem'' no I that " » new world was to he 
 
 . it wb 
 whl b rbt .- • - .hi. at otherwise possess iu 
 
 the national com Tne other speakers on this 
 
 side of the question, traveling over the same | 
 and paraphrasing the same arguments, asserted tb i f if 
 the United States could acquire territory, it was not to 
 make it a part of the Confederacy as a State, but to 
 hold it as a colony forever, or as a sort of subordinate 
 dependency. [Gayarre's History of Louisiana, vol. 3. 
 
 " It has been said," observed one of the speakers 
 " that the treaty does not iu fact incorporate the peo- 
 ple of the ceded territory iuto the Union, but stipu- 
 lates that they shall be incorporated and admitted ac- 
 cording to the principles of the Federal Constitution ; 
 or, in other words, the treaty only pledges the faith of 
 
 On this point I will observe that there is no difference 
 in principle between a direct incorporation by the 
 words of a treaty, and a stipulation that an incorpora- 
 tion shall take place, because if the faith of the nation 
 is pledged in the latter oase, the incorporation must 
 take place, and it is of no consequence whether the 
 treaty gives the iaoorporation, or produces the law 
 which gives it. ,: 
 
 Those on the other side, who thought that the United 
 States had the Constitutional power to acquire Loni >i 
 ana according to the stipulations of the treaty, did D01 
 differ, at least most of them, with their adversaries an 
 to the interpretation put on the 3d Article. The para- 
 doxical John Randolph, of Roanoke, was the only on© 
 who, as far as I am aware, interpreted the treaty witl; 
 his characteristic eccentricity. He maintained thai 
 by the 3d Article, the Louisianians had eniy becom-* 
 entitled to the blessings of jury trial, liberty of con] 
 science and a few other rights and immunities. Ba 
 this construction of the treaty is evidently so erront 
 ous that it scarcely deserves refutation, notwithstand- 
 ing the reFpect due to the memory of its distinguished 
 author. 
 
 Prom what precedes, it seems demonstrated tl 
 treaty of cession had created the State of Lou 
 and opcued to her the doors of admission into tl ■ 
 Union. The Uuited States had no discretionary ji >wi • 
 left them to reject their new associate, and to do auel.t 
 beyond the arrangement of those formalities which 
 were to attend her introduction into the bosom of ther 
 
 Eeat sisterhjod ot sovereignties. It was not a depen- 
 nt territory which they acquired, it was a 8tate, or 
 France b. oreicjnty of Loni- 
 
 iiarja, \ ■ the Unite' I *i had 
 
 wsnrned the mere'; giving away 
 
 :be emblematic sceptre and the crown. Hut the pontiff 
 who annoints the brows of royalty, only consen-tes 
 
 • 
 in 1811, to authorizt the Territory of Orleans to form a 
 Government, and to enable it 
 "to be admitted iuto the Union on " an<<i'ial footing with 
 the original States/' was merely the discharge of an 
 obligation, and only the evidence, the recognition, 
 the con-ecration of the sovoreignty already secured to 
 Louisiana. That colony, I say, became a sovereign and 
 independents' )♦:• by the liit of France, with the assent 
 of the United States, as completely as the Thirteen Co- 
 lonies of Great Britain had acquired their independence 
 by their own achievements, backed by the assistance 
 nfthat ion of 
 
 na into the Uuion, it, way necessarily assumed 
 that she also delegated, like the original States, those 
 powers which the Federal Government was to exercise 
 for the benefit of the whole Confederacy, and it 
 necessarily followed that she could not have received 
 from that Federal Government those which she retained. 
 In that respect, she rnusi. accept no inferiority to the 
 original States. She was not created by them, but in- 
 corporated into them, according to the principles of 
 the Federal Constitution, in virtue of the stipulation of 
 a benignant parent who emancipated her, and set her 
 free forever from a 
 
 Now, it seems evident to my mind that the Consti- 
 tution whi^h became binding upon Louisiana on the 
 bar adoption, no more and no less than upon 
 the original States, having been set. asi^te by some c* 
 the contracting parties, in the name of a higher law in- 
 voked by them ; that the equality of Louisiana in the 
 Union having been disregarded ; that her rights as one of 
 its members having been trampled upon ; that the pro- 
 perty and lives of her oitisieus being put in peril by the 
 action of a majority of her partuers in the confedera- 
 cy ; that the Uuion itself beiDg dissolved by systematic 
 violations of the Constitution, and by the seoession of 
 one or more States, the sovereignty possessed by 
 France in Louisiana, and transferred to the United 
 States and to Louisiana herself on her incorporation 
 into them, reverts in full to Louisiana and to the other 
 States which were formed out of her territory, as soon 
 as the United States no longer exist according to the 
 principles of the Federal Constitution and the stipula- 
 tions, the sense and spirit of the original compact. The 
 sovereignty which emanated from the treaty of 1803, 
 an 1 which has been exercised since 1812, with tbe ex- 
 ception of certain delegated powers, cannot perish, and 
 must sit forever enthroned in Louisiana, whether the 
 Union survives the present crisis, or is torn into prema- 
 ture destruction. Sovereignty once acquired can not 
 be lost, except by complete and permanent suljugation, 
 or by voluntary abdication. 
 
 Hoping that these crude remaiks may be suggestive 
 to your enlightened miud of thoughts more worthy of 
 the subject, and more conducive to the facilitation of 
 your labors in the Convention, I remain, with much 
 respect, &c, Charles Gayabkb. 
 
pH8.5