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.

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.

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