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were alledged to be making in that City with the connivance, if not actual participation, of the Spanish authorities, by the procurement of surreptitious grants of land, particularly in the district of Feliciana. West Florida, then, not only as France had held it, but as it was in the hands of Spain, made a part of the Province of Louisiana; as much so as the jurisdiction or district of Baton Rouge constituted a part of West Florida.
What, then, is the true construction of the Treaties of St. Ildefonso, and of April, 1803, whence our title is derived? If any ambiguity exist in a grant, the interpretation most favorable to the grantee is preferred. It was the duty of the grantor to express himself in plain and intelligible terms. This is the doctrine, not of Coke only, (whose dicta, I admit, have nothing to do with the question,) but of the code of universal law. The doctrine is entitled to augmented force, when a clause only of the instrument is exhibited, in which clause the ambiguity lurks, and the residue of the instrument is kept back by the grantor. The entire Convention of 1762, by which France transferred Louisiana to Spain, is concealed, and the whole of the Treaty of St. Ildefonso, except a solitary clause. We are thus deprived of the aid which a full view of both of those instruments would afford. But we have no occasion to resort to any rules of construction, however reasonable in themselves, to establish our title. A competent knowledge of the facts connected with the case, and a candid appeal to the Treaties, are alone sufficient to manifest our right. The negotiators of the Treaty of 1803 having signed, with the same ceremony, two copies, one in English and the other in the French language, it has been contended that in the English version, the term "cede" has been erroneously used instead of "retrocede," which is the expression in the French copy. And it is argued that we are bound by the phraseology of the French copy, because it is declared that the Treaty was agreed to in that language. It would not be very unfair to inquire if this is not like the common case in private life, where individuals enter into a contract, of which each party retains a copy, duly executed. In such case, neither has the preference. We might as well say to France, we will cling by the English copy, as she could insist upon an adherence to the French copy; and if she urged ignorance on the part of M. Marbois, her negotiator, of our language, we might with equal propriety plead ignorance on the part of our negotiators of her language. As this,
however, is a disputable point, I do not avail myself of it; gentlemen shall have the full benefit of the expressions in the French copy. According to this, then, in reciting the Treaty of St. Ildefonso, it is declared by Spain, in 1800, that she retrocedes to France the Colony or Province of Louisiana, with the same extent which it then had in the hands of Spain, and which it had when France possessed it, and such as it should be after the Treaties subsequently entered into between Spain and other states. This latter member of the description has been sufficiently explained by my colleague.
It is said that since France, in 1762, ceded to Spain only Louisiana west of the Mississippi, and the Island of New Orleans, the retrocession comprehended no more that the retrocession ex vi termini was commensurate with, and limited by, the direct cession from France to Spain. If this were true, then the description, such as Spain held it, that is in 1800, comprising West Florida, and such as France possessed it, that is in 1762, prior to the several sessions, comprising also West Florida, would be totally inoperative. But the definition of the term retrocession, contended for by the other side, is denied. It does not exclude the instrumentality of a third party. It means restoration, or re-conveyance of a thing originally ceded, and so the gentleman from Delaware acknowledged. I admit that the thing restored must have come to the restoring party from the party to whom it is retroceded; whether directly or indirectly is wholly immaterial. In its passage it may have come through a dozen hands. The retroceding party must claim under and in virtue of the right originally possessed by the party to whom the retrocession takes place. Allow me to put a case: You own an estate called Louisiana. You convey one moiety of it to the gentleman from Delaware, and the other to me; he conveys his moiety to me, and I thus become entitled to the whole. By a suitable instrument I re-convey, or retrocede the estate called Louisiana to you as I now hold it, and as you held it; what passes to you? The whole estate, or my moiety only? Let me indulge another supposition-that the gentleman from Delaware, after he received from you his moiety, bestowed a new denomination upon it and called it West Florida-would that circumstance vary the operation of my act of retrocession to you? The case supposed is in truth the real one between the United States and Spain. France, in 1762, transfers Louisiana, west of the Mississippi, to Spain, and at the same time conveys the eastern portion of it, exclusive of New Orleans, to
when unseen and despised, is potent and controlling. The
END OF THE MEMOIR OF HENRY CLAY.