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.
And again:
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.