Part 72

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.

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: