I have considered the subject of the letter, referred to by your note of the 8th, with which I have been honored. The 3d. Art. of the treaty of cession secures to the Inhabitants of Louisiana, from the Govt. of the U.S. the protection of the ‘free enjoyment of their liberty property & religion.’ The act of the 31st. of Octo last, providing for, the taking possession, and the temporary Govt. of that country, is not to be in force untill the first day of Octo. next. Untill then, the act of the 26th. of march for erecting Louisiana into two territories & providing for their Govt. is to have no operation. The authority exercisable by the Presidt. in that country must therefore be looked for in the first-mentioned act. The power from thence derived, being a general delegation for particular objects, expressed in general terms in respect to the extent of its application, the principles of its limitation, and the mode of its being exerted, must exist in the subject matter, and the special circumstances of the particular case. The restraining expressions in the last act, were it in force, prohibiting the exerise of a power, inconsistent with the constitution could have little, or no practical meaning, in reference to a country for which this constitution was never made. Executive, or Legislative acts, in reference to Louisiana, however different, or the reverse, of what, the laws & the constitution tolerate, enjoin, or forbid, in the United, or the respective States, imply no militancy or inconsistency. The Question is not, what is the extent of the power of the U.S. in the New Territory, as against its inhabitants, or France; That power, appears to me, by the terms of the cession, to be unlimitted, with a saving of the rights of individuals to their property & religion. Liberty they had none—Nor can they, at present, claim any under the Constitution of the U.S—The real question is, what is the power delegated by law, to the Presidt. of the U.S, & how is it to be executed; as distinguished from that which as1 not been delegated.

By the act of the 31st. of Octo. 1803 the Presidt. is authorised to take possession of, and occupy the territories ceded by France to the U.S. and for the purpose & in order to maintain the authority of the United States therein to imploy any part of the army & navy of the U.S. &c— The 2d Sec. of the said act provides, untill a farther provision for the temporary2 Govt. of the territory shall be made, all the military, civil, and judicial powers exercised by the officers of the existing Govt. of the same, shall be vested in such person & persons and shall be exercised in such manner as the Presidt. of the U.S. shall direct for maintaining & protecting the inhabitants of Louisiana, and the free enjoyment of their liberty, property, and religion. The powers given by this last paragraph, are more limitted & particular in their objects, than those contained in the first. They have a primary reference to the protection of the inhabitants, & the regulation of their meums & tuums among themselves; are different from the powers given in the preceeding sec: yet are concurrent with them, & do in no degree limit them.

Independent of the Presidts. right to exercise the military Powers of the former existing Govt. or exercised by France which is given to him under the 2d Sec. of the 31st of Octo., he is authorised to take possession of and to occupy the territory, and to maintain the authority of the U.S therein. This possession & occupancy, in behalf of the US. & maintaining their authority therein, necessarily implies, such a protection of the rights of the public & extention of its right of possession, or to exclude individuals or companies from the occupancy of lands, to which they have no right, & yet claimed by them under the authority of Spain or France. The general and obvious intent of the law being an immediate & summary redress & prevention of wrongs, & the recovery & establishment of the Govt’s rights in the territory, I can have no doubt of the Presidt.’s authority to cause any part of the lands belonging to the public to be taken possession of, & of course to expel intruders therefrom—

If the power is given, another question is, in what manner shall it be executed? The principal means furnishd by the law are military. The instrument thus put into the hands of power, points out the mode of using it. The US. are now in possession not only as sovereigns, but as proprietors, of all the soil not the property of individuals by lawful grants. And being thus in possession, their servants may be directed to keep off, or expel wrong doers. Surely the President has the authority to cause any particular part of the territory exclusively belonging to the U.S to be taken the actual possession of, & to be occupied at pleasure by their troops—The very condition of this military occupancy will be the expulsion of squatters—

Difficulties may result from an indiscrete use of the military power by the immediate commanders. Its difficult previously to decide on all the cases in which it may act, or the manner of action. It would be desirable that the opposers of the measures of the Govt should be taken & delivered over to civil justice. But they may be obstinate, desperate, combine, and produce bloodshed. The treaty of cession, excepts from its grant of soil, the then existing rights of individuals. There must be some mode of knowing what the public rights, lots, squares, vacant lands & edifices were in the sense of the treaty, as distinguished from the excepted private property. The arrangement for determing where, and what those were in reference to the mode, is left to the discretion of the US. In doubtful cases, the burden of proof should be with the private claimant, and Govt. be considered as competent to suspend his possession, untill he shall have established his right—This must be correct, as applied to such, who may claim a right to possess, without actual instruments of conveyence, or who may have obtained such instruments since the cession by Spain to France, and which appear, to be such on the face of them. If the deed bears a date prior to the treaty of Ildefonso, will it be safe under the existing laws to presume fraud, or to trust the decision of such a question to a military commander? Would it not be best in all suspicious cases of this kind, and in all instances where the public records or documents which have been handed over to the American Govt. shall not authenticate the titles which individuals in actual possession may produce, to leave them to enjoy their existing settlement but to prevent their extention, untill their title can be properly investigated, and even to warn them of the consequences of remaining & making further improvements, unless their rights should be eventually established. Such a system with a report of the cases to the Executive with their special circumstances, would probably check the present evils, & may prevent new ones. I can see no objection to the preventing, or removing recent squatters, without titles, in the manner proposed—and also all future entries & possessions under titles of a post-treaty date or otherwise apparently defective on the face of them—

Accept Sir assurences of the esteem with which I have the honor to be most respectfully your most obt. Servt.