February 8, 1849: Message Regarding the Treaty of Guadalupe Hidalgo
To the House of Representatives of the United States:
In reply to the resolutions of the House of Representatives of the 5th instant, I communicate herewith a report from the Secretary of State, accompanied with all the documents and correspondence relating to the treaty of peace concluded between the United States and Mexico at Guadalupe Hidalgo on the 2d February, 1848, and to the amendments of the Senate thereto, as requested by the House in the said resolutions.
Amongst the documents transmitted will be found a copy of the instructions given to the commissioners of the United States who took to Mexico the treaty as amended by the Senate and ratified by the President of the United States. In my message to the House of Representatives of the 29th of July, 1848, I gave as my reason for declining to furnish these instructions in compliance with a resolution of the House that "in my opinion it would be inconsistent with the public interests to give publicity to them at the present time." Although it may still be doubted whether giving them publicity in our own country, and, as a necessary consequence, in Mexico, may not have a prejudicial influence on our public interests, yet, as they have been again called for by the House, and called for in connection with other documents, to the correct understanding of which they are indispensable, I have deemed it my duty to transmit them.
I still entertain the opinion expressed in the message referred to, that--
As a general rule applicable to all our important negotiations with foreign powers, it could not fail to be prejudicial to the public interests to publish the instructions to our ministers until some time had elapsed after the conclusion of such negotiations.
In these instructions of the 18th of March, 1848, it will be perceived that--
The task was assigned to the commissioners of the United States of consummating the treaty of peace, which was signed at Guadalupe Hidalgo on the 2d day of February last, between the United States and the Mexican Republic, and which on the 10th of March last was ratified by the Senate with amendments.
They were informed that--
This brief statement will indicate to you clearly the line of your duty. You are not sent to Mexico for the purpose of negotiating any new treaty, or of changing in any particular the ratified treaty which you will bear with you. None of the amendments adopted by the Senate can be rejected or modified except by the authority of that body. Your whole duty will, then, consist in using every honorable effort to obtain from the Mexican Government a ratification of the treaty in the form in which it has been ratified by the Senate, and this with the least practicable delay. * * * For this purpose it may, and most probably will, become necessary that you should explain to the Mexican minister for foreign affairs, or to the authorized agents of the Mexican Government, the reasons which have influenced the Senate in adopting these several amendments to the treaty. This duty you will perform as much as possible by personal conferences. Diplomatic notes are to be avoided unless in case of necessity. These might lead to endless discussions and indefinite delay. Besides, they could not have any practical result, as your mission is confined to procuring a ratification from the Mexican Government of the treaty as it came from the Senate, and does not extend to the slightest modification in any of its provisions.
The commissioners were sent to Mexico to procure the ratification of the treaty as amended by the Senate . Their instructions confined them to this point. It was proper that the amendments to the treaty adopted by the United States should be explained to the Mexican Government, and explanations were made by the Secretary of State in his letter of the 18th of March, 1848, to the Mexican minister for foreign affairs, under my direction. This dispatch was communicated to Congress with my message of the 6th of July last, communicating the treaty of peace, and published by their order. This dispatch was transmitted by our commissioners from the City of Mexico to the Mexican Government, then at Queretaro, on the 17th of April, 1848, and its receipt acknowledged on the 19th of the same month. During the whole time that the treaty, as amended, was before the Congress of Mexico these explanations of the Secretary of State, and these alone, were before them.
The President of Mexico, on these explanations, on the 8th day of May, 1848, submitted the amended treaty to the Mexican Congress, and on the 25th of May that Congress approved the treaty as amended, without modification or alteration. The final action of the Mexican Congress had taken place before the commissioners of the United States had been officially received by the Mexican authorities, or held any conference with them, or had any other communication on the subject of the treaty except to transmit the letter of the Secretary of State.
In their dispatch transmitted to Congress with my message of the 6th of July last, communicating the treaty of peace, dated "City of Queretaro, May 25, 1848, 9 o'clock p.m.," the commissioners say:
We have the satisfaction to inform you that we reached this city this afternoon at about 5 o'clock, and that the treaty, as amended by the Senate of the United States, passed the Mexican Senate about the hour of our arrival by a vote of 33 to 5. It having previously passed the House of Deputies, nothing now remains but to exchange the ratifications of the treaty.
On the next day (the 26th of May) the commissioners were for the first time presented to the President of the Republic and their credentials placed in his hands. On this occasion the commissioners delivered an address to the President of Mexico, and he replied. In their dispatch of the 30th of May the commissioners say:
We inclose a copy of our address to the President, and also a copy of his reply. Several conferences afterwards took place between Messrs. Rosa, Cuevas, Conto, and ourselves, which it is not thought necessary to recapitulate, as we inclose a copy of the protocol, which contains the substance of the conversations. We have now the satisfaction to announce that the exchange of ratifications was effected to-day.
This dispatch was communicated with my message of the 6th of July last, and published by order of Congress.
The treaty, as amended by the Senate of the United States, with the accompanying papers and the evidence that in that form it had been ratified by Mexico, was received at Washington on the 4th day of July, 1848, and immediately proclaimed as the supreme law of the land. On the 6th of July I communicated to Congress the ratified treaty, with such accompanying documents as were deemed material to a full understanding of the subject, to the end that Congress might adopt the legislation necessary and proper to carry the treaty into effect. Neither the address of the commissioners, nor the reply of the President of Mexico on the occasion of their presentation, nor the memorandum of conversations embraced in the paper called a protocol, nor the correspondence now sent, were communicated, because they were not regarded as in any way material; and in this I conformed to the practice of our Government. It rarely, if ever, happens that all the correspondence, and especially the instructions to our ministers, is communicated. Copies of these papers are now transmitted, as being within the resolutions of the House calling for all such "correspondence as appertains to said treaty."
When these papers were received at Washington, peace had been restored, the first installment of three millions paid to Mexico, the blockades were raised, the City of Mexico evacuated, and our troops on their return home. The war was at an end, and the treaty, as ratified by the United States, was binding on both parties, and already executed in a great degree. In this condition of things it was not competent for the President alone, or for the President and Senate, or for the President, Senate, and House of Representatives combined, to abrogate the treaty, to annul the peace and restore a state of war, except by a solemn declaration of war.
Had the protocol varied the treaty as amended by the Senate of the United States, it would have had no binding effect.
It was obvious that the commissioners of the United States did not regard the protocol as in any degree a part of the treaty, nor as modifying or altering the treaty as amended by the Senate. They communicated it as the substance of conversations held after the Mexican Congress had ratified the treaty, and they knew that the approval of the Mexican Congress was as essential to the validity of a treaty in all its parts as the advice and consent of the Senate of the United States. They knew, too, that they had no authority to alter or modify the treaty in the form in which it had been ratified by the United States, but that, if failing to procure the ratification of the Mexican Government otherwise than with amendments, their duty, imposed by express instructions, was to ask of Mexico to send without delay a commissioner to Washington to exchange ratifications here if the amendments of the treaty proposed by Mexico, on being submitted, should be adopted by the Senate of the United States.
I was equally well satisfied that the Government of Mexico had agreed to the treaty as amended by the Senate of the United States, and did not regard the protocol as modifying, enlarging, or diminishing its terms or effect. The President of that Republic, in submitting the amended treaty to the Mexican Congress, in his message on the 8th day of May, 1848, said:
If the treaty could have been submitted to your deliberation precisely as it came from the hands of the plenipotentiaries, my satisfaction at seeing the war at last brought to an end would not have been lessened as it this day is in consequence of the modifications introduced into it by the Senate of the United States, and which have received the sanction of the President. * * * At present it is sufficient for us to say to you that if in the opinion of the Government justice had not been evinced on the part of the Senate and Government of the United States in introducing such modifications, it is presumed, on the other hand, that they are not of such importance that they should set aside the treaty. I believe, on the contrary, that it ought to be ratified upon the same terms in which it has already received the sanction of the American Government. My opinion is also greatly strengthened by the fact that a new negotiation is neither expected nor considered possible. Much less could another be brought forward upon a basis more favorable for the Republic.
The deliberations of the Mexican Congress, with no explanation before that body from the United States except the letter of the Secretary of State, resulted in the ratification of the treaty, as recommended by the President of that Republic, in the form in which it had been amended and ratified by the United States. The conversations embodied in the paper called a protocol took place after the action of the Mexican Congress was complete, and there is no reason to suppose that the Government of Mexico ever submitted the protocol to the Congress, or ever treated or regarded it as in any sense a new negotiation, or as operating any modification or change of the amended treaty. If such had been its effect, it was a nullity until approved by the Mexican Congress; and such approval was never made or intimated to the United States. In the final consummation of the ratification of the treaty by the President of Mexico no reference is made to it. On the contrary, this ratification, which was delivered to the commissioners of the United States, and is now in the State Department, contains a full and explicit recognition of the amendments of the Senate just as they had been communicated to that Government by the Secretary of State and been afterwards approved by the Mexican Congress. It declares that--
Having seen and examined the said treaty and the modifications made by the Senate of the United States of America, and having given an account thereof to the General Congress, conformably to the requirement in the fourteenth paragraph of the one hundred and tenth article of the federal constitution of these United States, that body has thought proper to approve of the said treaty, with the modifications thereto, in all their parts; and in consequence thereof, exerting the power granted to me by the constitution, I accept, ratify, and confirm the said treaty with its modifications, and promise, in the name of the Mexican Republic, to fulfill and observe it, and to cause it to be fulfilled and observed.
Upon an examination of this protocol, when it was received with the ratified treaty, I did not regard it as material or as in any way attempting to modify or change the treaty as it had been amended by the Senate of the United States.
The first explanation which it contains is:
That the American Government, by suppressing the ninth article of the treaty of Guadalupe and substituting the third article of the treaty of Louisiana, did not intend to diminish in any way what was agreed upon by the aforesaid article (ninth) in favor of the inhabitants of the territories ceded by Mexico. Its understanding is that all of that agreement is contained in the third article of the treaty of Louisiana. In consequence, all the privileges and guaranties--civil, political, and religious--which would have been possessed by the inhabitants of the ceded territories if the ninth article of the treaty had been retained will be enjoyed by them without any difference under the article which has been substituted.
The ninth article of the original treaty stipulated for the incorporation of the Mexican inhabitants of the ceded territories and their admission into the Union "as soon as possible, according to the principles of the Federal Constitution, to the enjoyment of all the rights of citizens of the United States." It provided also that in the meantime they should be maintained in the enjoyment of their liberty, their property, and their civil rights now vested in them according to the Mexican laws. It secured to them similar political rights with the inhabitants of the other Territories of the United States, and at least equal to the inhabitants of Louisiana and Florida when they were in a Territorial condition. It then proceeded to guarantee that ecclesiastics and religious corporations should be protected in the discharge of the offices of their ministry and the enjoyment of their property of every kind, whether individual or corporate, and, finally, that there should be a free communication between the Catholics of the ceded territories and their ecclesiastical authorities "even although such authority should reside within the limits of the Mexican Republic as defined by this treaty."
The ninth article of the treaty, as adopted by the Senate, is much more comprehensive in its terms and explicit in its meaning, and it clearly embraces in comparatively few words all the guaranties inserted in the original article. It is as follows:
Mexicans who, in the territories aforesaid, shall not preserve the character of citizens of the Mexican Republic, conformably with what is stipulated in the preceding article, shall be incorporated into the Union of the United States and be admitted at the proper time (to be judged of by the Congress of the United States) to the enjoyment of all the rights of citizens of the United States, according to the principles of the Constitution, and in the meantime shall be maintained and protected in the free enjoyment of their liberty and property and secured in the free exercise of their religion without restriction.
This article, which was substantially copied from the Louisiana treaty, provides equally with the original article for the admission of these inhabitants into the Union, and in the meantime, whilst they shall remain in a Territorial state, by one sweeping provision declares that they "shall be maintained and protected in the free enjoyment of their liberty and property and secured in the free exercise of their religion without restriction."
This guaranty embraces every kind of property, whether held by ecclesiastics or laymen, whether belonging to corporations or individuals. It secures to these inhabitants the free exercise of their religion without restriction, whether they choose to place themselves under the spiritual authority of pastors resident within the Mexican Republic or the ceded territories. It was, it is presumed, to place this construction beyond all question that the Senate superadded the words "without restriction" to the religious guaranty contained in the corresponding article of the Louisiana treaty. Congress itself does not possess the power under the Constitution to make any law prohibiting the free exercise of religion.
If the ninth article of the treaty, whether in its original or amended form, had been entirely omitted in the treaty, all the rights and privileges which either of them confers would have been secured to the inhabitants of the ceded territories by the Constitution and laws of the United States.
The protocol asserts that "the American Government, by suppressing the tenth article of the treaty of Guadalupe, did not in any way intend to annul the grants of lands made by Mexico in the ceded territories;" that "these grants, notwithstanding the suppression of the article of the treaty, preserve the legal value which they may possess; and the grantees may cause their legitimate titles to be acknowledged before the American tribunals;" and then proceeds to state that, "conformably to the law of the United States, legitimate titles to every description of property, personal and real, existing in the ceded territories are those which were legitimate titles under the Mexican law in California and New Mexico up to the 13th of May, 1846, and in Texas up to the 2d of March, 1836." The former was the date of the declaration of war against Mexico and the latter that of the declaration of independence by Texas.
The objection to the tenth article of the original treaty was not that it protected legitimate titles, which our laws would have equally protected without it, but that it most unjustly attempted to resuscitate grants which had become a mere nullity by allowing the grantees the same period after the exchange of the ratifications of the treaty to which they had been originally entitled after the date of their grants for the purpose of performing the conditions on which they had been made. In submitting the treaty to the Senate I had recommended the rejection of this article. That portion of it in regard to lands in Texas did not receive a single vote in the Senate. This information was communicated by the letter of the Secretary of State to the minister for foreign affairs of Mexico, and was in possession of the Mexican Government during the whole period the treaty was before the Mexican Congress; and the article itself was reprobated in that letter in the strongest terms. Besides, our commissioners to Mexico had been instructed that--
Neither the President nor the Senate of the United States can ever consent to ratify any treaty containing the tenth article of the treaty of Guadalupe Hidalgo, in favor of grantees of land in Texas or elsewhere.
Should the Mexican Government persist in retaining this article, then all prospect of immediate peace is ended; and of this you may give them an absolute assurance.
On this point the language of the protocol is free from ambiguity, but if it were otherwise is there any individual American or Mexican who would place such a construction upon it as to convert it into a vain attempt to revive this article, which had been so often and so solemnly condemned? Surely no person could for one moment suppose that either the commissioners of the United States or the Mexican minister for foreign affairs ever entertained the purpose of thus setting at naught the deliberate decision of the President and Senate, which had been communicated to the Mexican Government with the assurance that their abandonment of this obnoxious article was essential to the restoration of peace.
But the meaning of the protocol is plain. It is simply that the nullification of this article was not intended to destroy valid, legitimate titles to land which existed and were in full force independently of the provisions and without the aid of this article. Notwithstanding it has been expunged from the treaty, these grants were to "preserve the legal value which they may possess." The refusal to revive grants which had become extinct was not to invalidate those which were in full force and vigor. That such was the clear understanding of the Senate of the United States, and this in perfect accordance with the protocol, is manifest from the fact that whilst they struck from the treaty this unjust article, they at the same time sanctioned and ratified the last paragraph of the eighth article of the treaty, which declares that--
In the said territories property of every kind now belonging to Mexicans not established there shall be inviolably respected. The present owners, the heirs of these, and all Mexicans who may hereafter acquire said property by contract shall enjoy with respect to it guaranties equally ample as if the same belonged to citizens of the United States.
Without any stipulation in the treaty to this effect, all such valid titles under the Mexican Government would have been protected under the Constitution and laws of the United States.
The third and last explanation contained in the protocol is that--
The Government of the United States, by suppressing the concluding paragraph of article 12 of the treaty, did not intend to deprive the Mexican Republic of the free and unrestrained faculty of ceding, conveying, or transferring at any time (as it may judge best) the sum of the $12,000,000 which the same Government of the United States is to deliver in the places designated by the amended article.
The concluding paragraph of the original twelfth article, thus suppressed by the Senate, is in the following language:
Certificates in proper form for the said installments, respectively, in such sums as shall be desired by the Mexican Government, and transferable by it, shall be delivered to the said Government by that of the United States.
From this bare statement of facts the meaning of the protocol is obvious. Although the Senate had declined to create a Government stock for the $12,000,000, and issue transferable certificates for the amount in such sums as the Mexican Government might desire, yet they could not have intended thereby to deprive that Government of the faculty which every creditor possesses of transferring for his own benefit the obligation of his debtor, whatever this may be worth, according to his will and pleasure.
It can not be doubted that the twelfth article of the treaty as it now stands contains a positive obligation, "in consideration of the extension acquired by the boundaries of the United States," to pay to the Mexican Republic $12,000,000 in four equal annual installments of three millions each. This obligation may be assigned by the Mexican Government to any person whatever, but the assignee in such case would stand in no better condition than the Government. The amendment of the Senate prohibiting the issue of a Government transferable stock for the amount produces this effect and no more.
The protocol contains nothing from which it can be inferred that the assignee could rightfully demand the payment of the money in case the consideration should fail, which is stated on the face of the obligation.
With this view of the whole protocol, and considering that the explanations which it contained were in accordance with the treaty, I did not deem it necessary to take any action upon the subject. Had it varied from the terms of the treaty as amended by the Senate, although it would even then have been a nullity in itself, yet duty might have required that I should make this fact known to the Mexican Government. This not being the case, I treated it in the same manner I would have done had these explanations been made verbally by the commissioners to the Mexican minister for foreign affairs and communicated in a dispatch to the State Department.