■&/ 
 
LIBRARY OF CONGRESS 
 
 iiiiiii* 
 
THE ANNEXATION OF WEST 
 FLORIDA TO ALABAMA 
 
 BY 
 
 FRANCIS G. CAFFEY 
 
 OF THE MONTGOMERY BAR, 
 
 A PAPER READ BEFORE THE ALABAMA STATE BAR ASSOCIATION, 
 JUNE 28th. 1901. 
 
 [Keprluted from the Proceedings of the Assoeiiition. | 
 
THE ANNEXATION 
 OF 
 
 WEST FLORIDA TO ALABAMA. 
 
 HV 
 
 FRANCIS G. CAFFEV 01 Montgomery. 
 
 The pari of Alabama lying north of the thirty-firsl 
 degree of north latitude was ceded by Georgia to the 
 United States, and becanre a pari of Mississippi Terri- 
 tory in L802. in the cession ii is described as all of 
 the lands to which Georgia 1ms any claim within the 
 United States south of the State of Tennessee ami west 
 of a line "beginning on the western hank of the Chatta- 
 hoochee River, where (he same crossed the boundary 
 line between the United States and' Spain, running 
 thence up the said river," etc. The pari of Alabama 
 lying south of the thirty-firsi degree and the part of Flor- 
 ida south of this line, between the Apalachicola and 
 Chattahoochee rivers on the east, and the Perdido river 
 on the west, are within what was formerly known as 
 "West Florida." The portion of West Florida lying wesl 
 of the Perdido River was added to .Mississippi Territory 
 l.v an acl of Congress In L812 and was included in Ala- 
 bama Territory, when it was established, in L817. Bui 
 Spain did not finally give up all claim to it until L819. 
 
 In the Constitution of L819, ami in every Constitu 
 tion of this State sim • that time, following the terri- 
 torial ;i<i of L817, the boundaries of Alabama are de 
 scribed as "beginning ai the point where the 31s1 degree 
 of north latitude crosses the Perdido River: i hence easl 
 
to the western boundary line of the State of Georgia ; 
 thence along said line to the southern boundary of 
 the State of Tennessee"; thence along the boundaries 
 of the States of Tennessee and Mississippi to the Gulf 
 of Mexico; "thence eastwardly, including all islands 
 within six leagues of the shore, to the Perdido River; 
 thence up the said river to the beginning.'' 
 
 The portion of original West Florida which became 
 a part of the State of Florida has always been popularly 
 called West Florida. It contains a little more than 
 ten thousand Square miles of bind and constitutes about 
 one-fifth of tlie State of Florida; lias about one hun- 
 dred and eighty miles of sea coast and four harbors; 
 and is divided into eight coun'ties — Calhoun, Escambia, 
 Franklin, Jackson, Washington, Holmes, Santa Rosa, 
 ami Walton — the first live, curiously, bearing the same 
 names as counties in Alabama. 
 
 Florida was admitted into the Union in 1845, ami 
 before ami ever since the admission, West Florida has 
 been coveted by Alabama, and lias bad within it many 
 citizens who favored its annexation to this State 
 
 In L811 the inhabitants of West Florida petitioned 
 Congress to be incorporated into Mississippi Terri- 
 tory. The Constitutional Convention of L819 in this 
 State memorialized Congress to embrace all of wesi 
 Florida in the State of Alabama. 
 
 In the Constitution of L819 the preamble defines the 
 boundaries of this Slate and then adds "subject to such 
 enlargement as may be made by law in consequence of 
 any cession of territory by the United States, or either 
 of them." Art. VI, Sec 17. provides that "in all cases 
 of ceded territory acquired by the State" the General 
 Assembly may arrange the boundaries of counties, 
 and Art. VI, Sec. 22, that -'in the event of the annexa- 
 
 J F '02 
 
tion < f any foreigD territory to this State, by a cession 
 from the United States, laws may be passed, extending 
 to the inhabitants of such territory all the rights and 
 privileges which may be required by the terms <>!' such 
 cession, anything in this Constitution to fche contrary 
 notwithstanding." Each of the subsequent Constitu- 
 tions Of L861, 1865, 1868 mid 1875 contains the same 
 provision as the Constitution of L819 as to extending 
 such rights an<l privileges to acquired territory as is 
 required by the terms of cession, except that it is not 
 Limited t<> cession from the United States, because at 
 the time of their adoption all the territory adjoining 
 Alabama was pari of some State. (Constitution of 
 L861, Aim. VI, Sec. 21; of 1865, IN', Sec. 12; of L868, 
 IV, Sec. 37; <>f 1875, IV, Sec. 51.) These provisions 
 indicate that our constitution framers h: ve always 
 been alive to the question of annexation. 
 
 By a joint resolution of the Legislature of Alabama, 
 iu 1858 (Acts of L857-8, p. 432), Alabama proposed 
 to Florida that it ci'(\e to this State "all that portion of 
 Florida lying west of the Chattahoochee and Apala- 
 chicola Rivers;" and, under it, Governor .Moore ap- 
 pointed Judge <!. T. Velvorton, of Coffee County, as 
 commissioner, to procure the cession. Bui Florida re- 
 fused to agree to any t rausfer. 
 
 There were, doubtless, between 1819 and 1858-other 
 attempts to secure annexation, but none of them at- 
 tained enough prominence to be worthy of mention. 
 
 After the civil war, however, when public money was 
 freely spent in Alabaimi, the most serious attempt ever 
 undertaken to bring about annexation occurred, be- 
 tween L868 and 1873, ami it is with this movement 
 thai this paper will, for the most part, deal. 
 
4 
 
 In 1880 there was an annexation convention at Chip- 
 ley, Florida, which was largely attended by the people 
 of West Florida concerned and by some Alabamians; 
 but no steps were taken. 
 
 During the past year there has been a revival of the 
 agitation in favor of annexation in Florida, particu- 
 larly at Pensacola, and there have been interchanges 
 between the two States of visits of delegations of gen- 
 tlemen interested in the subject. Under an act of the 
 last General Assembly of Alabama (Acts 1900-1, p. 
 192), Messrs. William L. Martin, Richard C. Jones 
 and Samuel Blackwell have been appointed commis- 
 sioners on behalf of this State with authority to con- 
 summate terms of cession, subject to the ratification of 
 the Legislature and Governor. A resolution on the 
 subject is now pending before our Constitutional Con- 
 vention, and it is proposed to provide in the new Con- 
 stitution ample power for the Legislature to authorize 
 an issue of bonds to carry out the contract, if a pur- 
 chase should be made. But nothing more definite has 
 yet been accomplished 
 
 Iii December, L868, -I. L. Pennington, a Senator from 
 Lee County, introduced into the Legislature of Ala- 
 bama joint resolutions authorizing and directing the 
 Governor "to negotiate with the State Governmenl of 
 Florida for the annexation to the State of Alabama 
 of that portion of Florida lying west of the Chatta- 
 hoochee River." These were promptly passed, and in 
 January, L869, Governor Smith appointed commision- 
 eis, who went immediately to Tallahassee and remained 
 until they secured action by the Florida authorities. 
 
 The Alabama commissioners were .Mr. Pennington, the 
 author of the resolutions, who was a North Carolinian 
 
by birth, who had come to Alabama after the war and 
 become prominent as a republican politician; Charles 
 
 A. .Miller, the then Secretary of State, wlm had come 
 from .Maine subsequent to the war; and -Indue A. -J. 
 Walker, who had shortly before been ousted from the 
 Supreme Court bench by the reconstruction govern- 
 ment. 
 
 ()n their arrival at Tallahassee the commissioners ad- 
 dressed a letter to Governor Reid of Florida, who re- 
 plied favorably, and submitted their communication to 
 the Legislature with a recommendation that commis- 
 sioners he appointed to represent Florida in the negotia- 
 tions. \'>\ invitation, .Mi - . Pennington addressed the Leg- 
 islature, and on January 26th, joint resolutions, similar 
 to those which had been passed in Alabama, were adopted 
 by the Florida Legislature, directing the Governor to 
 appoint three commissioners who were authorized to go 
 to Montgomery as "the duly accredited agents of this 
 State to negotiate for said transfer." 
 
 The arguments used by the Alabama commissioners 
 in favor of annexation were, •'the regularity id' the 
 geometrical figure which it would give Alabama, and the 
 'improvement it would make in the outlines of Flor- 
 ida"; "|the homogeneity of tastes, sentiments, and inter- 
 ests between the peoples" of West Florida and Alabama, 
 which was asserted to be much greater than between Wesl 
 Florida and the other parts of thai State; and the impor- 
 tance to Alabama of Pensacola as a harbor for, and the 
 advantages which i hat city would derive from, the devel- 
 opment of the coal and iron of central Alabama. Benefit 
 of the Alabama railway endorsement law was also prom- 
 ised. In concluding his address bo the Legislature, Mr. 
 Pennington said : "Gentlemen, give as the harbor of Pen- 
 
6 
 
 saeola and we will connect it by rail with our capital 
 and our new system of railroads in ninety days 
 after the transfer shall have been made; and within two 
 years or less we will penetrate our mineral regions, 
 open ii]) a great internal highway from the Gulf to the 
 Northwest, build up a great commercial city of Pensa- 
 cola, winch will confer alike its benefits on your Slate 
 and our State, and enrich the people we propose to take 
 from you." 
 
 Under the resolutions of January 26th, Governor licit! 
 appointed to represent the State of Florida W. C. Pur- 
 liam, C. E. Dike and N. C. Moragne. The Montgomery 
 Advertiser of May 3, 1869, in commenting on an article 
 from the Eufaula News containing strictures upon these 
 gentlemen, says: "The Florida commissioners are 
 Messrs. Dike, Moragne and Purham. Mr. Dike has 
 been a citizen of Florida, and has edited the leading 
 Democratic paper, for many years. Dr. Moragne is a 
 Democrat, a Slate Senator, a gentleman of property, 
 influence and intelligence. Maj. Purham represents 
 West Florida more particularly, being a citizen of that 
 portion of (he Stale more immediately interested in the 
 negotiations, and is also a member of the Florida Slate 
 Senate from -Jackson County. It is true, he is a new 
 settler in Florida, but his record in the Legislature 
 shows that, although a Republican, he has not been con- 
 trolled by extreme partisan views." 
 
 The Florida commissioners came early in May. On 
 the 19th of thai month au agreement of cession was 
 signed. By this agreement Florida ceded West Florida 
 and conveyed all its public lands within that territory 
 to Alabama; provision was made for the transfer of 
 jurisdiction and also for the continuance of local officers 
 
and for local courts. As a consideration, Alabama 
 agreed to pay one million dollars in eight per cent, 
 thirty-year bonds; i<» pay in money the amount of solvent 
 taxes unpaid in the district at the time of consummation 
 of the agreement; to permit the counties to retain the 
 State taxes for one year thereafter for use in local im- 
 provements and construction of public buildings; to con- 
 firm the Florida charters of two named railroads; not to 
 grant any other railroad charters in the district for three 
 years, to give the benefil of the Alabama endorsement 
 law to these two roads and to no other road for the 
 period of three years. Lastly, it was provided thai the 
 agreement should not he of force until ratified and ap- 
 proved by the Slates of Alabama and Florida and :is- 
 sented to by Congress. 
 
 In transmitting the contract to Governor Smith, the 
 Alabama commissioners expressed the opinion that the 
 price offered was large. The total population was 26,67] 
 in 1867, and the amount of State revenues for that year 
 was only a little more than $31,000; hut they said this 
 was set-off by the fact that Alabama would acquire two 
 million acres of public lands estimated to be worth 
 $1.25 per acre. They said in conclusion : "It is scarcely 
 to lie conceived that Florida will reject the contract, if 
 she is willing under any circumstances to cede any pari 
 ,,C her territory. If she should, from a sentimenl i>\' 
 State pride, reject the contract, the subject had belter 
 be forever dropped, for we do not conceive thai a more 
 favorable opportunity or a fairer or more honorable 
 contract will ever be presented." 
 
 Governor Smith promptly approved the contract, 
 though he also thought thai "the price agreed to be paid 
 t was i more than the si .He. under all the circumstances 
 of the case, ought to give." 
 
8 
 
 When the agreement was made public, there was con- 
 siderable discussion of it in both States. In West Flor- 
 ida the feeling was strongly in favor of carrying it out. 
 In Alabama, the Montgomery Advertiser, while not 
 wholly disapproving, withheld its approval, and looked 
 with suspicion on the movement. The editor of the 
 Ilavneville Examiner strongly opposed it, and said : "We 
 are now in daily expectation of the announcement that 
 the sand-bank and gopher region west of the Apalachi- 
 cola has become part and parcel of the State of Alabama 
 by the payment of some million or so of dollars on the 
 part of the latter. We are to have another debt fastened 
 upon the impoverished people of the State. What pos- 
 sible good can be accomplished by this acquisition has 
 not been told us." He also pointed out that the people 
 of Alabama could use Pensacola as a harbor just as well 
 as if it were part of Alabama. 'The Eufaula News 
 thought the proposition was a good (me, both for 
 Alabama and for West Florida, but thought the 
 negotiators on tin 1 part of Florida were mere spec- 
 ulators who did nol represent the people of the Slate. 
 and would themselves personally profit out of the pro- 
 ceeds of sale. 
 
 On .June 25th Governor Reid issued a proclamation, 
 in accordance with the joint resolutions adopted by tin 
 Legislature of Florida, setting forth a copy of the agree- 
 ment, for an election in the counties composing West 
 Florida, for a vote for or against annexation. The 
 Alabama commissioners participated in the campaign, 
 and Mr. Pennington was specially active in making 
 speeches and distributing printed mat let- setting forth 
 the advantages of annexation. Be spent over a month 
 and travelled more than a thousand miles through the 
 
9 
 
 eighl counties by private conveyance during the canvass. 
 The commissioners expended in the campaign four thou- 
 sand dollars of the money authorized by the original 
 joini resolutions of the Legislature of Alabama to de- 
 fray the accessary incidental expenses incurred in con- 
 ducting the negotiations. 
 
 The election occurred on November 2, and in seven 
 counties the result was nearly l\v<> to one in favor of the 
 project. The total number of votes cast was L,823, of 
 which 1,162 were for and <i('»l against annexation. No 
 election was held in Jackson County, where the feeling 
 was strongly favorable. 
 
 When the Alabama Legislature convened on the loth 
 of November, Governor Smith sent them the agreemenl 
 of May 19th, and informed them that he would approve 
 favorable action on it. Later, he officially informed 
 them of the result of the election. 
 
 In January, 1870, a joini resolution was introduced 
 into the Alabama Legislature ratifying and confirming 
 the agreement, and requesting the Representatives and 
 instructing the Senators in ( 'ongress to secure the assent 
 of 1 kmgress thereto. Some opposition was developed, hut 
 the committee to whom the whole matter was referred 
 reported favorably a hill for annxation, saying thai they 
 were "satisfied that among the measures proposed for 
 the advancement of the interests of our State, none ex- 
 ceeds in importance, or is calculated to confer greater 
 or more substantial benefits upon Alabama than the ac- 
 quisition of this territory." In the latter pari of Feb- 
 ruary, however, action was postponed until the nexl 
 session, upon the assigned grounds thai the Legislature 
 of Florida had adjourned ami would not convene again 
 until January, L871, and thai the postponemenl would 
 
10 
 
 give the people of Alabama time to consider the bill and 
 instruct their Senators and Representatives how to vote 
 upon it. 
 
 It is not improbable that the postponement of the 
 consideration of the bill was due to an investigation that 
 was instituted at that session of the Legislature into 
 the expenditures made by the commissioners, which 
 amounted in 1869 to $10,500. The original resolution 
 had placed no limit upon the commissioners, and had 
 directed the Auditor, upon the order of the Governor, 
 to draw his warrant upon the Treasurer out of any money 
 not otherwise appropriated, "to defray necessary inci- 
 dental expenses incurred in conducting this negotiation." 
 On January 12th, just before the commissioners left for 
 Tallahassee, they drew $500 each. This, they stated 
 in writing, at the request of the special committee of 
 the Legislature conducting the investigation for an ex- 
 planation, they expended in personal expenses at Talla- 
 hassee and in Montgomery. On the 17th of May, 1869, 
 just two days before the agreement was consummated, 
 they drew $5,000. Mr. Pennington says they entertained 
 l he Florida commissioners. Two of them were iu Mont- 
 gomery less than two weeks, and the third only a month. 
 Judge Walker says they were "hospitably entertained 
 at the Exchange Hotel." lie naively adds: "During 
 t heir stay live thousand dollars was drawn from the State 
 Treasury ami placed to the credit of Maj. Miller; six- 
 teen dollars of this sum were paid by me on hack bills, 
 which were presented to me." Maj. Miller was no more 
 definite in his statement than that he was "sure the 
 funds were expended according to the best judgment and 
 discretion of the commission, for the sole purpose of ac- 
 complishing the objects contemplated by the resolution 
 of the Legislature." 
 
11 
 
 Iii July the commissioners presented to the Auditor 
 a requisition approved by the Governor for $4,000 more 
 
 '•!<• be used in conducting the canvass in Wesl Florida." 
 The Auditor declined to draw the warrant, and submit- 
 ted the question of his authority to refuse t«> do so to 
 the Attorney-General; pending investigation the words 
 last quoted were stricken out of the requisition, and there 
 were inserted in a new requisition, in their place, the 
 following: "To defray the necessary incidental expen- 
 ses incurred in conducting the negotiations." The At- 
 torney-General, however, advised that the Auditor was 
 without discretion, the warrant was drawn in August, 
 and the commissioners frankly say that they \isv*\ this 
 money to influence the election. 
 
 The investigating committee were unable to procure 
 any itemized statement, except as to Judge Walker's 
 hack hills amounting to $16, and in their report they 
 say: "While we do not charge the commission or any 
 • me connected with the negotiation with appropriating 
 any of said sum for private purposes, we deem the ex- 
 penditure extravagant. We are of opinion thai the Legis- 
 lature did not contemplate an expenditure by virtue "f 
 said joint resolution to exceed $1,200 or $1,500 and that 
 the money drawn and expended amounting to four thou- 
 sand dollars or more for the purpose of influencing an 
 election in a neighboring State was contrary to the 
 spirii of said resolution and wrong in principle." 
 
 Another ground of opposition to the measure was the 
 provision therein for the endorsement ,,)' $16,000 per 
 mile id' the bonds of the Florida railroads radiating 
 from Pensacola. The Legislature of Alabama had i>.\ an 
 act "to amend the law establishing a system of internal 
 improvements in the State of Alabama," approved Sep- 
 
12 
 
 tember 22, 1868, provided for such an expenditure for 
 Alabama railroads, and it is noticeable that great par- 
 ticularity was used in the agreement to provide that 
 the same law should be applicable to specified Florida 
 railroads. Between the passage of this endorsement acl 
 in September, 1868, and the meeting of the Legislature 
 in November, 1869, Alabama railroad bonds had been 
 endorsed to the extent of $2,600,000. 
 
 There was, perhaps, no greater or more fruitful scheme 
 of thievery adopted by the reconstruction government 
 in Alabama than its piovisions as to railroads, and the 
 tacking on of the endorsement law to the annexation 
 agreement stamps it as partially, at least, a piece of 
 jobbery. 
 
 In Florida, meanwhile, Governor Held, in January, 
 1870, reported to the Legislature the result of the No- 
 vember election, and said that he presumed that no con- 
 siderable proportion of the people of the State of Florida 
 or their representatives would seriously entertain the 
 idea of ceding one-fifth of the territory and population 
 of the State and the finest harbor on the Gulf to another 
 State, almost without consideration. It has been charged 
 thai I he real ground of the Florida Governor's loss of 
 interest and subsequent failure to promote the project 
 was a disagreement between the persons concerned over 
 a division of the spoils. I have discovered no proof of 
 this charge; but the fact remains that, though the people 
 of West Florida continued the agitation in favor of 
 annexation, and there was, especially in the neighbor- 
 hood of Pensacola, strong popular opinion in favor of 
 I he measure, no further official Steps were ever taken 
 by the Florida Government to effect that end. 
 
 In Alabama the question came up before several sub- 
 sequent sessions of the Legislature, but no further ac- 
 
13 
 
 tion was taken until L873. In the session of 
 L870-71, a resolution favoring annexation was 
 adopted by the House, but failed in the Sen- 
 ate. During the session of L871-2, the only reference 
 to the subjecl was a join! memorial from the citizens of 
 West Florida, on which no action was taken. On March 
 22, 1ST.'}, Senator Wilson offered a joint resolution con- 
 templating the annexation of West Florida to the Stale 
 of Alabama by selling all that portion of her territory 
 west of the Tombigbee River, including Mobile, to the 
 State of Mississippi, which was read and indefinitely 
 postponed. On the same day a joint resolution propos- 
 ing a renewal of the negotiations for the annexation of 
 West Florida to Alabama was introduced into the House 
 ami referred to a selert committee, of which Samuel <!. 
 Jones was chairman, and he reported a hill which was 
 adopted. The act was entitled "to provide for the an- 
 nexation of West Florida to the State of Alabama, with 
 the assent of the State of Florida and the Congress of 
 the United Stales." It followed closely the terms of the 
 coiiii-.icl of .May L9, L869 ; authorized the issuance of one 
 million dollars of bonds, payable in thirty years bear- 
 ing interest at eighl per cent., to he paid to Florida as 
 consideration and compensation for the cession of the 
 
 soil and jnrisilid i if the part of Florida described, 
 
 intended to be conveyed, including the lauds belonging 
 I,, the Slate. It further provided that the Governor 
 should appoint three commissioners on the pari of Ala- 
 bama to tender these bonds to the State of Florida "and 
 to do nnd perform all acts and things which may be 
 requisite and necessary to perfect ami consummate the 
 cession of the territory aforesaid"; provided, thai they 
 
 Were limited |<. the amOUnl above described, and pro 
 
14 
 
 vided, further, that upon the acceptance by the State 
 of Florida of the tender and ratification by Congress of 
 the act of cession, "the cession herein provided shall be 
 complete and the bonds of the State hereinbefore men- 
 tioned shall be executed and delivered by the authorities 
 of the State of Alabama to the State of Florida in full 
 satisfaction and compensation of the cession of the ter- 
 ritory aforesaid." 
 
 The vote in the House on the adoption of the bill was, 
 yeas 49, nays 21). Mr. Manning raised the point of order 
 that it required two-thirds of all the members of the 
 House to pass the bill, but the speaker overruled it. When 
 the bill came up in the Senate, Mr. Peter Hamilton of 
 M'obile proposed to amend it by providing that the com- 
 missioners should report to the next session of the Gen- 
 eral Assembly what they had done under the act, and 
 the same should not be binding on the State until rati- 
 fied by the Legislature. This amendment was laid on 
 the table and the bill was passed by a vote of ayes 19, 
 noes G. Mr. Hamilton then made the point that the bill, 
 not having the concurrence of two-thirds of the Senate, 
 was lost; but the president overruled the point, and an- 
 nounced that the bill had passed. Mr. Hamilton there- 
 upon filed and had spread upon the record his protest, 
 which was joined in by Senators Cooper, Cunningham 
 and Terrell, upon the grounds (1 ) that as the bill pro- 
 vided for raising "money on the credit of this State" il 
 could not become a law under Art. IN', Sec. :>L\ of the 
 Constitution of L868, "without the concurrence of two- 
 thirds of the members of each Bouse"; (2) that under 
 Ait. I V, Sec. 37, of the same Constitution, making it the 
 duty of the Genera] Assembly to enact laws extending 
 to the citizens of the newly acquired territory "all the 
 
i^> 
 
 rights and privileges wliicli may be required by the terms 
 of the acquisition," the Legislature must reserve to itself 
 the exercise of this duty, and it had beeD undertaken by 
 the ad to confer it upon the commissioners; and (3) 
 that the financial condition of the State did not justify 
 i lie pa viiient of t he proposed price. 
 
 So far as ! have been able to discover, nothing official 
 was ever done under the act of 1S7:», though the subject 
 was discussed further for several years. The Democrats 
 under Governor Houston came into power shortly after, 
 the Constitution of 1875 prohibited the State from Lend- 
 ing money or its credit in aid of internal improvements, 
 and the matter of annexation was dropped until the 
 Chipley Convention of 1889, referred to above. The 
 movement of 1868-73 had certain artificial aids in the 
 concurrent railway schemes and the prevailing reck- 
 lessness in spending the State's money, which will prob- 
 ably never exist again. It remains to be seen whether 
 the movement of L900-1 will lake substantial shape. 
 
 Although net perhaps just now a matter of practical 
 importance, it may not be without interest to examine 
 some of the legal questions suggested by the contract 
 of L869 and the act of 1873. The constitutions of Ala- 
 bama have always contemplated annexation, and im- 
 pliedly, if not expressly, recognized the power of the 
 State to contract for cessions id' foreign territory. Bui 
 ;in examination of the history of the States and the pro- 
 visions of the Federal Constitution makes it clear that 
 no such provision in our Slate Constitution was acces- 
 sary. 
 
 At the tiaie of the adoption of the Articles of Confed- 
 eration there existed disputes ;is to the boll llibl ries be 
 tweon eleven Of the States. These arose, for the most 
 
16 
 
 part, out of the conflicting- terms of grants made by the 
 British crown to the various colonies. For the purpose 
 of settling these, it was provided by Article IX, Sec. 2, 
 that "the United States in Congress assembled shall * 
 * * be the last resort on appeal in all disputes and 
 differences now subsisting or that hereafter may arise 
 between two or more Stales concerning boundary, juris- 
 diction, or any other cause whatever"; and par- 
 ticular provision was made for the appointment 
 of commissioners to conduct the negotiations. 
 In Article VI, Section 2, it was further pro- 
 vided: "No two or more States shall enter into any 
 treaty, confederation, or alliance whatever between them 
 without the consent of the United States in Congress 
 assembled, specifying accurately the purposes for which 
 the same is to be entered into and how long it shall 
 continue." 
 
 There was no national judiciary provided for in the 
 Articles of Confederation, but when the Constitution of 
 the United States was adopted it provided a federal 
 judiciary and contained a provision in Art. Ill, Sec. 2, 
 as follows: "The judicial power shall extend * * * 
 to controversies between two or more States." Under 
 this clause in the Constitution, the Supreme Court of 
 I lie [Jnited States has determined a great ninny boun- 
 dary disputes, and has had occasion to expound the law 
 relating to boundaries. 
 
 It is recognized in international law, as one of the at- 
 tributes of sovereignty, that a nation has power to 
 contract with other nations and to cede territory. The 
 ( 'oust it ul ion of the United States is a grant of power 
 from the people of the States in convention assembled, 
 and except in so far as powers which the separate States 
 
17 
 
 \\ ould have ;is sovereignties are real ricted, <>r are express- 
 ly or by necessary implication granted i<> the Federal 
 Government, the Slates retain all powers which they 
 
 would have had as independent members of the family of 
 nations By Article I, Section 10, (Manse 3, of the 
 Federal Constitution, it is provided: "No State 
 shall, without the consent of Congress * * * 
 enter into any agreement or compact with an- 
 other State." With the exception of this limita- 
 tion, the States retain the full power which they 
 would have had as independent nations to contract with 
 each other in reference to territory and to cede parts of 
 their territory to another. CJnder the original jurisdic- 
 tion winch the Supreme Court has under the Constitu- 
 tion over "controversies between States," the usual 
 course of procedure, where boundaries are in dispute, is 
 for one State to tile a hill in equity against the other for 
 determination of the dispute. There has been a large 
 variety of these cases, hut nearly all of them have been 
 where there has been a dispute in reference to boundary 
 as to which the States concerned could not agree. In 
 Several, however, the question has turned upon the 
 validity id' a contract and negotiations between the 
 States. In these cases the Supreme Court has taken 
 occasion to interpret clause :{ of Sec. 10, Art. I, of the 
 < 'oust it ut ion. 
 
 In Poole v. Flecger, 11 Peters L85, decided in 1837, 
 the question came up collaterally. Kentucky and Ton- 
 ee had by a compact made in L820, which was as- 
 sented to by Congress, settled a dispute as to their bound- 
 daries, and Story, J., said : "It cannot be doubted that 
 li is a part of the general righl of sovereignty belonging 
 to independent nations to" establish ami ti\ the disputed 
 
18 
 
 boundaries between their respective territories. * * 
 * It is a right equally belonging to the States of this 
 Union, unless it has been surrendered under the Consti- 
 tution of the United States. So far from there beiiii» 
 any pretense of such a general surrender of the right, 
 that it is expressly recognized by the Constitution, and 
 guarded in its exercise by a single limitation or restric- 
 tion, requiring the consent of Congress. The Constitu- 
 tion declares that 'no State shall, without the consent 
 of Congress, enter into any agreement or compact with 
 another State'; thus plainly admitting that, with such 
 consent, it might be done/' 
 
 In Rhode Islam! v. Massachusetts, 12 Peters 725, de- 
 cided the following year, referring to the same clause of 
 the Constitution, Baldwin, J., says : "By this surrender 
 of the power, which before the adoption of the Consti- 
 tution was vested in every State of settling these con- 
 tested boundaries, as in the plentitude of their sover- 
 eignty they might, they could settle them neither by 
 war, or, in peace, by treaty, compact, or agreement, with- 
 out the permission of the new legislative power which 
 the States brought into existence by their respective 
 and several grants in conventions of the people. If 
 Congress consented, then the States were in (his re- 
 sted restored to their original inherent sovereignty; 
 such co: sent being the sole limitation imposed by the 
 Constitution, when given, left the States as they were 
 before, * * * whereby their compacts became of 
 binding force, and finally so! tied the boundary between 
 them, operating with the same effed as a treaty between 
 Sovereign powers. * * * In looking to the practi- 
 cal construction of this clause of the Constitution re- 
 lating to agreements and compacts by the States, in sub- 
 
19 
 
 mitting those which relate to boundaries to Congress 
 for its consent, its giving its consent, and the action of 
 this court upon them, it is most manifest that by univer- 
 sal consent and action, the words agreement and com- 
 pact are construed to include those which relate to 
 boundary ; vet that word, boundary, is not used. No one 
 has ever imagined that compacts of boundary were ex- 
 cluded because not expressly named; mi the contrary, 
 they are held by the States, Congress, and this court, t<» 
 he included by necessary implication, the evident con- 
 sequence resulting from their known object, subject- 
 matter, the context, and historical reference to t In- 
 state of the times and country. No such exception has 
 been thought of, as it would render the clause a perfect 
 nullity for all practical purposes, especially the one 
 evidently intended by the Constitution, in giving to 
 Congress the power of dissenting to such compacts. 
 Not to prevent the States from settling their own boun- 
 daries, so far as merely affected their relations to each 
 other, hut to guard againsl the derangement of their 
 federal relations with the other States of the 1'nion 
 and the Federal Governmenl which might ho injuriously 
 affected if the contracting States might act upon their 
 boundaries at their pleasure. * * * Hound hand 
 ami foot by the prohibitions of the Constitution, a com- 
 plaining State can neither treat, agreeor fight with its 
 adversary without the consent of Congress; a resort to 
 
 the judicial power is tl nly means left for legally 
 
 adjusting or persuading a Slate which has posession 
 
 of disputed territory to enter into an agreement <>r 
 compact relating ton controverted boundary. * * 
 There can he hut two tribunals under the Constitution 
 who can act on the boundaries of States, the legisla- 
 
20 
 
 tive or the judicial power; the former is limited in ex- 
 press terms to assent or dissent where a compact or 
 agreement is referred to them by the States, and as the 
 latter can be exercised only by this court when a State 
 is a party, the power is here, or it cannot exist." 
 
 In the recent case of United States v. Texas, 143 U. 
 S. 621, the court, referring to boundary disputes which 
 existed at the time of- the adoption of the Constitution, 
 say : "The necessity for the creation of some tribunal 
 for the settlement of these and like controversies that 
 might arise, under the new government to be formed, 
 must, therefore, have been perceived by the framers of 
 the Constitution, and, consequently, among the contro- 
 versies to which the judicial power of the United States 
 was extended by the Constitution we find those between 
 two or more States. And that a controversy between 
 two or more States in respect to boundary is one to 
 which, under the Constitution, such judicial power ex- 
 tends, is no longer an open question in this court." 
 
 So in Virginia v. West Virginia, 11 Wall. 39, Miller, 
 J., says : "We consider, therefore, the established doc- 
 trine of this court to be, that it has jurisdiction of ques- 
 tions of boundary between two States of this Union, 
 and that this jurisdiction is not defeated, because in 
 deciding that question it becomes necessary to examine 
 into and construe compacts or agreements between 
 those States, or because the decree which the court 
 may render, affects the territorial limits of the political 
 jurisdiction and sovereignty of the States which are 
 parties to the proceeding." 
 
 In the last case cited, and also in the case of Vir- 
 ginia v. Tennessee, 148 U. S. 503, in both of which there 
 was an express compact between the contracting States 
 
21 
 
 in reference to boundary, it was held that such consent 
 need no1 be express, bul might be implied. In the Ten- 
 nessee case Congress provided for federal appointments 
 of officials, elections were held under its authority, 
 taxes were laid and revenues collected up to the line 
 agreed upon. The court say such use of the territory 
 mi different sides of the boundary designated in a single 
 instance would not, perhaps, be considered as abso- 
 lute proof of the consent of Congress, but such exercise 
 of jurisdiction and hum acquiescence therein is con- 
 clusive pi-oof of assent. In the West Virginia case. 
 where a statute of Virginia provided that elections might 
 be held in the counties to determine whether they should 
 l>e annexed to West Virginia, which had theretofore 
 been established, and the Governor of Virginia should 
 ascertain and certify the result to the Governor of 
 West Virginia, it was held that the ascertainment and 
 certification by the Governor of Virginia to the Gov- 
 ernor of West Virginia was conclusive, and Congress, 
 having given iis consent, it could not he gone behind 
 and investigated; ami that a subsequent statute of Vir- 
 ginia, repealing theacl of the Virginia Legislature under 
 which the election was held, was without effect, as the 
 cession was then a completed transaction. 
 
 It is evident, therefore, that any State of the United 
 States may cede ;i pari of its territory to another State. 
 provided and provided only — that Congress uives iis 
 assent thereto. Under the accepted doctrine in Ala- 
 bama the power on the part of this State to enter into 
 such an agreement rests in the legislative department. 
 because there is not in our state Constitution a limita- 
 tion upon the exercise of such power by the Legislature. 
 It is also clear from the foregoing that if an agree- 
 
22 
 
 incut of cession by one State of a part of its territory 
 to -mother State is entered into and such an agreement 
 assented to by Congress, the Constitution provides a 
 tribunal* namely, the Supreme Court of the United 
 States, nJi irh will enforce such agreement. 
 
 It is almost axiomatic in the history of this country 
 that the feeling in favor of State integrity is so strong 
 that no State will ever give up any part of its terri- 
 tory. Even Texas, which has sufficient territory to make 
 a dozen New England States, will never, in all 
 probability, give up an inch of her territory voluntarily, 
 and, while in the cases of Virginia and Tennessee, and 
 Tennessee and Kentucky, contracts in reference to ter- 
 ritory were entered into, they really, in both cases, 
 were the outcome of disputes as to lines which had long 
 previously been established. The only instance in the 
 history of this country that I know of where any por- 
 tion of the territory of one State has ever been, by ex- 
 press contract, without any previous boundary dispute, 
 ceded to another, was the case of the two counties of 
 Berkley and Jefferson, coded by Virginia to West Vir- 
 ginia; and it may be fairly said that there was never 
 an expression of the will of the people of Virginia in 
 favor of that. When the civil war came on dual gov- 
 ernments were erected and maintained in the Slate of 
 Virginia, and the so-called Poindexier government, rep- 
 resenting the Unionists, which was subsequently recog- 
 nized by (lie Federal Government as being the Lawful 
 government, erected out of the territory of Virginia the 
 new Stale of West Virginia, which was admitted into 
 Hie Union. The statute providing for the erection of 
 this now State, and subsequent statutes, provided that 
 certain counties, including Berkley and Jefferson, 
 
23 
 
 might, if in ;iii election thereafter to be held, they favored 
 it, be annexed to West Virginia, While the election in 
 the two counties subsequently held was ascertained to 
 be favorable to annexation by the Union Governor of 
 Virginia, the annexation of these two counties was, in 
 a sense, a parcel of the original movement for the erec- 
 tion of the separate Stale of West Virginia, and the 
 election was not held at the time of the original an- 
 nexation because those two counties at that time were 
 in the control of the Confederate forces; and, further, 
 the election subsequently held was participated in only 
 l>y a small proportion of the people. Furthermore, Vir- 
 ginia received no consideration for the territory parted 
 with. This has been aptly termed the "rape of Vir- 
 ginia," and it is notable that the only other serious 
 movement in this country for the cession of one part of 
 a siate to another by contract occurred during recon- 
 struction times, when aliens were, for the most part, 
 in control of the governments in both Stales concerned. 
 The West Florida movement differs from any other in 
 that it was proposed by one State to pay another Slate 
 money for a pari of its territory. 
 
 The point made by Senator Hamilton on the act of 
 1st:: under the Constitution of L868 prohibiting the bor- 
 rowing or raising of money on the credit of the State, 
 without the concurrence of two-thirds of the members 
 of each house, was probably sound; but there can be no 
 doubt that under Art. XI, Sec. : > ,, of the present Consti- 
 tution, absolutely prohibiting, after its ratification, any 
 new debt being "created against or incurred by this 
 Stale, or its authority, except to repel invasion or sup- 
 press insurreel ion." it would require a constitutional 
 amendment to authorize the payment of any mone\ or 
 
24 
 
 the incurring of any obligation to pay money for West 
 Florida. This, however, is purely a question of domestic 
 law, which could not stand in the way if the people of 
 the State were sufficiently anxious for annexation. It 
 does not affect the power of the State to acquire for- 
 eign territory by cession. 
 
 If the proposition now pending in this State assumes 
 more definite shape, the Constitutional Convention, now 
 in session, will probably authorize an issue of bonds to 
 use in making the purchase. A most serious obstacle, 
 though, would probably be the amount which would be 
 expected to be paid. As appears by the report of the 
 Alabama commissioners, the total population of the ter- 
 ritory concerned was, in 1867, 26,671. The population 
 now is 99,061. As also appears by the report, there 
 were in 1867 two million acres of land belonging to the 
 State of Florida of the average value of f 1.25 per acre, 
 which would have been acquired by this State, in addi- 
 tion to the five per cent, of the proceeds of the sale of 
 public lands, whereas now the public lands amount to 
 much less, and are not worth more than fifty cents per 
 acre. On the other hand, the State revenue from the 
 district concerned in 1N<;7 was only $31,245.92, whereas 
 in 1899 the total taxes for State purposes were 
 $71,792.43, and the State licenses, not included in State 
 taxes, were $25,808.19, making a total of State revenue 
 of $97,600.62. If these eight counties were annexed to 
 Alabama under present conditions we should probably 
 have to pay out of the State treasury for additional 
 Stale officers the salaries of one chancellor $2,500, one 
 circuit judge $2,500, one solicitor $2,400, making 
 $7,400. In addition to this, on the b:isis of appropria- 
 tions for public schools for the past year, it is probable 
 
25 
 
 thai about. |30,()00 would he assigned as the proper pro- 
 portion of the territory added, and ii is reasonable to 
 
 suppose that there would be souk- increase in the ex- 
 pense of other public institutions, such as the deaf, dumb 
 and blind and insane asylums, amounting to, say, 
 |10,000. On this basis, the total expenditure by the 
 State mi accounl of this territory would be $47, -loo a 
 veal-. If taxation and licenses remained on the same 
 basis as under the Florida laws of L899, the return there- 
 from for State purposes being $97,600, there would be 
 a net gain to the state revenue of $50,000. With this 
 not return, and without acquiring any public lands 
 from Florida, Alabama could easily afford to pay one 
 million dollars, which it could probably borrow now at 
 least at 1 per cent. The yearly interest would be $40,000, 
 leaving $10,000 a year to go into a sinking fund. It is 
 mil within the range of probability, however, thai, if 
 the Stale of Florida were willing at all to pari with any 
 of its territory, it would ever again fix the price at 
 so small an amount as one million dollars. 
 
 Pensacola has grown to be a considerable city, and the 
 total value of the real estate, personal property, rail- 
 roads and telegraphs in the counties concerned is shown 
 by the Florida comptroller's report to have been assessed 
 for taxes in 1899 at neatly $13,000,000. This would 
 come to Alabama instead of the "sand-banks and gopher 
 hills" which the editor of the llayueville Examiner 
 thought we were about to acquire in L869. It is but 
 reasonable that the price should be proportionately in- 
 creased. One of the main arguments used in L869 was 
 that annexation was necessary in older to build up 
 Pensacola and the iron ami coal industries of central 
 Alabama. These ate now of no force, and time has 
 
26 
 
 shown that the editor of the Hayneville Examiner was 
 right in saying that Alabama iron and coal would be 
 as much shipped through Pensacola as a Florida town 
 as they would be if it became a part of Alabama, But, 
 if there is a conclusive and final objection to annexation 
 by Florida, it is the same that has always existed in 
 the mind of every State — that it would never part, 
 under any circumstances , or for any price, with any 
 part of its territory because of its love for State integ- 
 rity and its State pride. 
 
 That there was considerable strength behind the 
 movement of 1868 to 1873 is beyond doubt; but 
 the reigns of government in both Alabama and Florida 
 were at that time in the hands of reconstructionists, 
 and a large proportion of the people of both States, 
 imbued with the love of their States, were disfranchised. 
 
 That annexation would be of advantage to Alabama 
 is undoubted; it would add to the influence of the State 
 in the Federal Government; the annexed territory 
 would eventually bring large net tax returns to the 
 State treasury; much material wealth and population 
 would be added. But I do not undertake to forecast the 
 result of the present movement, nor do I express any 
 opinion as to whether it should succeed. I have only 
 undertaken to give some historical facts and to discuss 
 some legal projwsitions bearing on the matter. 
 
 The responsibility for the failure of the negotiations 
 of 1868-73 rests, so far as the record shows, on Florida. 
 Having rejected Alabama's proposition then, the oppo- 
 nents of annexation may say, as said the Alabama 
 commissioners in their report to Governor Smith 
 in 18()«): "The subject had better be forever 
 dropped, for we do not conceive that a more 
 favorable opportunity * * * will ever be pre- 
 senter' than the one of 1868-73. 
 
002 489 017 P