or any of her colonies, laden only with the produce or manufactures of Spain, or any of her said colonies, shall be admitted into the port of New Orleans, and into all other ports of entry which may hereafter be established by law, within the territories ceded to the United States by the above-mentioned treaty, in the same manner as ships or vessels of the United States, coming directly from France or Spain, or any of their colonies, and without being subject to any other, or higher duty on the said produce or manufacture, than by law now is, or shall, at the time, be payable, by citizens of the United States on similar articles, imported from France or Spain, or any of their colonies, in vessels of the United States, into the said port of New Orleans, or other ports of entry in the territories above mentioned; or to any other, or higher tonnage duty, than by law now is, or shall at the time be, laid on the tonnage of vessels of the United States coming from France or Spain, or from any of their colonies, to the said port of New Orleans, or other ports of entry within the territories above mentioned." (2 U. S. Stats. 253.)

The provisions of this section gave New Orleans an advantage in the importation of French and Spanish products over all the ports of the States of the Union. Such advantage could only be justified upon the theory that the port at New Orleans was without the limits wherein the Constitution required that duties should be uniform.

Attention is also directed to certain legislation of Congress relating to the United States Bank and Louisiana. The original charter of the bank authorized the directors to establish branch banks "wheresoever they shall see fit within the United States." (Act Feb. 25,.1791, 1 U. S. Stats., sec. 15, p. 195.)

Upon the acquisition of Louisiana the bank desired to establish a branch in New Orleans. To enable it to do so Congress passed the following act:

AN ACT supplementary to the act intituled "An act to incorporate the subscribers to the Bank of the United States."

"Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That the president and directors of the Bank of the United States shall be, and they are hereby, authorized to establish offices of discount and deposit in any part of the territories or dependencies of the United States, in the manner and on the terms prescribed by the act to which this is a supplement.

"Approved March 23, 1804." (2 U. S. Stats., p. 274.)

The Constitution requires that

"Full faith and credit shall be given in each State to the public acts, records, and judicial proceedings of every other State." (Art. 4, sec. 1.)

The First Congress (1790) passed an act providing—

"That the records and judicial proceedings of the courts of any State shall be proved or admitted in any other court within the· United States by the attestation * * And the said records

*

and judicial proceedings, authenticated as aforesaid, shall have
such faith and credit given to them in every court within the
United States as * *
(Act of May 26, 1790, 1 U. S.

Stats., p. 122.)

*

When the province of Louisiana was acquired it was of course necessary to secure a like recognition in that territory for such public acts, records, and judicial proceedings.

To accomplish this the Eighth Congress (1804) passed "An act supplementary to the act intituled," etc., being the act above referred to. This act specifically divided all territory under the sovereignty of the United States into three classes, as follows:

(1) States of the Union.

(2) Territories of the United States.

(3) Countries subject to the jurisdiction of the United States. This classification appears in section 2 of said act, which is as follows:

"That all the provisions of this act, and the act to which this is a supplement, shall apply as well to the public acts, records, office books, judicial proceedings, courts, and offices of the respective Territories of the United States, and countries subject to the jurisdiction of the United States, as to the public acts, records, office books, judicial proceedings, courts, and offices of the several States." (Act of March 27, 1804, 2 U. S. Stats., pp. 298, 299.)

This classification, adopted by the Eighth Congress and approved by President Jefferson, is preserved to this day. Sections 905 and 906, Revised Statutes of the United States (1878), are as follows:

"905. The acts of the legislature of any State or Territory, or any country subject to the jurisdiction of the United States, etc. 906. All records and exemplifications of books which may be kept in any public office of any State or Territory, or any country subject to the jurisdiction of the United States," etc. Florida.-The fifteenth article in the Florida treaty was as follows:

"The United States, to give to His Catholic Majesty a proof of their desire to cement the relations of amity subsisting between the two nations, and to favour the commerce of the subjects of His Catholic Majesty, agree that Spanish vessels, coming laden only with productions of Spanish growth or manufacture, directly from the ports of Spain, or of her colonies, shall be admitted, for the term of twelve years, to the ports of Pensacola and St. Augustine, in the Floridas, without paying other or higher duties on their cargoes, or of tonnage, than will be paid by the vessels of the United States. During the said term no other nation shall enjoy the same privileges within the ceded territories. The twelve years shall commence three months after the exchange of the ratifications of this treaty."

The advantage over the ports of the several States of the Union thus stipulated for Pensacola and St. Augustine, was rendered effective by the act of March 3, 1821, by which the treaty was carried into effect. Section 2 thereof provided, that

"The laws of the United States relating to the revenue and its collection, subject to the modification stipulated by the fifteenth article of the said treaty, in favor of Spanish vessels and their carshall be extended to said territories." (3 U. S.

* * *

goes
Stat., p. 639.)

Here again we find both the Executive and the Senate, in exercising the treaty-making power, and the Congress, in legislating for terri

tory not included in the boundaries of the several States, dealing with said territory as being without the area covered by constitutional requirements for equality of duties.

It also presents another instance where Congress and the Executive considered it necessary for Congress to act in order that the revenue laws of the United States should be extended to newly acquired terri

tory.

It appears that in 1819, after the Florida treaty had been concluded, but prior to ratification and exchange, a question arose in relation to exports from Florida into New Orleans, and the Treasury Department decided

"That all goods which have been or may be imported from Pensacola before an act of Congress shall be passed, erecting it into a collection district, and authorizing the appointment of an officer to reside thereat, for the purpose of superintending the collection of duties, will be liable to duty."

(NOTE. I am unable to secure a copy of this circular, although search has been made therefor at the Treasury Department. The statement of fact and quotation are derived from the circular issued by the Treasury Department on July 29, 1845, with reference to Texas, as set forth in this memorandum under the heading "Tariff in Texas.")

When the United States acquired East and West Florida, the Louisiana law was taken for a model and the government of Florida was the same as had been that of Louisiana. (3 Stats., p. 637.) Monroe was President and followed Jefferson's example.

When the Florida bill was pending in Congress, an amendment was offered providing as follows:

"That all the principles of the United States Constitution, for the security of civil and religious freedom, and for the security of property, and the sacredness of rights to things in action; and all the prohibitions to legislation, as well as with respect to Congress as the legislatures of the States, be, and the same are hereby declared to be, applicable to the said Territory, as paramount acts." (Annals of Congress, first session Seventeenth Congress, vol. 2, p. 1374.)

In opposing this amendment, Mr. Rhea, of Tennessee, speaking for the Administration, said:

tion.

*

The people of Florida, (except citizens of the United States who may have removed there either temporarily or permanently) know little of our Constitution and laws; to these they are strangers. Many principles of the Constitution of the United States require laws of the United States to carry them into operaThat the Constitution of the United States shall obtain and have full force and effect in a territory not included within the bounds and limits of the territories of the old thirteen States, or either of them, but which has been acquired by treaty from any foreign power since the adoption of that Constitution, and that the inhabitants of such territory shall be entitled to all the rights, privileges, and immunities sanctioned and confirmed by the Constitution to citizens of the United States, it appears necessary and consistent with the Constitution of the United States that the sovereign people shall, by the Congress of the United

States, enact laws preparatory to and declaratory of the admission of such territory to a participation of the rights, etc., derived from the Constitution, and afterwards to be admitted a State of this Union on the same footing as one of the original thirteen States; the people of such new State will then have their full representation in both Houses of the Congress of the United States, and then the Constitution of the United States is in full operation in and over such new State, as it is in one of the original States." (Ib., p. 1375.)

The amendment was then voted down. Next an amendment was offered to authorize the people of Florida to elect their legislative council. This amendment received only 15 votes, and was lost. (Ib., p. 1377.)

The bill passed without amendment and was approved by President Monroe. The following is Benton's comment on the incident:

"This prompt rejection of Mr. Montgomery's proposition shows what the Congress of 1822 thought of the right of Territories to the enjoyment of any part of the Constitution of the United States. The only question between Mr. Montgomery's proposition and the clause already in the hill was as to the tenure by which these rights should be held-whether under the Constitution of the United States or under a law of Congress and the treaty of cession. And the decision was that they should be held under the law and the treaty. Thus a direct issue was made between constitutional rights on one hand and the discretion of Congress on the other in the government of this Territory, and decided promptly and without debate (for there was no speech after that of Mr. Rhea on either side) against the Constitution. It was tantamount to the express declaration: You shall have these principles which are in the Constitution, but not as a constitutional right, nor even as a grant under the Constitution, but as a justice flowing from our discretion, and as an obligation imposed by the treaty which transferred you to our sovereignty.'" (Benton's Abridgment, vol. 7, p. 295, note.)

Andrew Jackson, then a major-general, was appointed governor of Florida under this bill, and authorized by the President to exercise all the powers heretofore possessed by the Spanish governors of East and West Florida, and in addition the powers of the captain-general of Cuba and the intendant of Cuba. Jackson went to Florida and proceeded to exercise these powers in a style for which he is still famous. As a legislature he enacted many laws, some of which were afterwards repealed by Congress; as the supreme court and chancellor of the Territory he heard and determined many cases both in law and in equity, and as chief executive ar governor he extended his authority to issuing orders expelling certain inhabitants from the Territory.

Shortly after Jackson assumed control, a matter arose which squarely raised the question as to whether the Constitution was applied automatically to Florida.

Jackson learned that a Spanish military officer named Sousa had in his possession and refused to surrender certain documents relating to the claims of a private citizen to an estate. Jackson issued an order requiring the delivery of said documents to the American authorities. Instead of complying with the order, Sousa consulted the commander

of the Spanish forces, Colonel Callava, who instructed him to turn over said documents to the steward of the colonel's household, which instruction was obeyed. When Jackson learned of this, he caused the three Spanish officers to be seized and thrown into prison, searched the house of the colonel, and found and retained the documents. This action caused a sensation, and a great crowd of people marched to the residence of Judge Fromentin, the United States judge of the Territory, to whom application was made for a writ of habeas corpus. The United States judge issued the writ. When the writ was served, Jackson refused obedience to it on the ground that Congress had not extended the Constitution and laws of the United States to Florida. He also ordered Judge Fromentin to appear before him for contempt. The judge insisted that the inhabitants of Florida were entitled to the writ of habeas corpus by virtue of the treaty which guaranteed them the privileges and immunities of American citizens, and also because he thought the Constitution and laws of the United States were in force in Florida. In reporting this to the President, Jackson says:

*

*

*

"If it be not sufficient to strike him from the roll of judges, I must say that ignorance of law is no objection against anyone's holding a judicial station. Judge Fromentin was represented to me to be no lawyer, but I could not have formed such an idea of his want of legal knowledge as this transaction displays." (Annals of Congress, first session Seventeenth Congress, vol. 2, p. 2300.)

In the same report Jackson also says:

"The lecture I gave the judge when he came before me will, I trust, for the future, cause him to obey the spirit of his commission, aid in the execution of the laws and administration of the Government instead of attempting to oppose me."

Judge Fromentin appealed the controversy to Washington. He wrote to Secretary Adams as follows:

"The American flag, it is true-the flag of liberty-waves on our forts; a treacherous sign in Florida. Sir, the bohon upas tree of slavery overshadows us. (Ibid., p. 2381.)

"The question now to be decided is not the insignificant and unimportant question of the difficulty between General Jackson and myself. It is a question of country or no country, Constitution or no Constitution, liberty or slavery. The despotism which attacks the liberty of one of the meanest of the inhabitants of this country makes an attack upon the liberty of all. ** I speak not this now with reference only to the present occasion. But, sir, tyrants beget tyrants. Beware!" (Ibid., p. 2472.)

*

In spite of this distracted appeal President Monroe and his Secretary of State, John Quincy Adams, sustained Jackson. Their decision was communicated to Judge Fromentin by a letter wherein Secretary Adams says he is directed by the President

"To inform you that the laws of the United States relative to the revenue and its collection and those relating to the slave trade having been the only ones extended by act of Congress to the territories of Florida, it was to the execution only of them that your