Part 23

WASHINGTON, August 6, 1850.

To the Senate and House of Representatives:

I herewith transmit to the two Houses of Congress a letter from his excellency the governor of Texas, dated on the 14th day of June last, addressed to the late President of the United States, which, not having been answered by him, came to my hands on his death; and I also transmit a copy of the answer which I have felt it to be my duty to cause to be made to that communication.

Congress will perceive that the governor of Texas officially states that by authority of the legislature of that State he dispatched a special commissioner with full power and instructions to extend the civil jurisdiction of the State over the unorganized counties of El Paso, Worth, Presidio, and Santa Fe, situated on its northwestern limits.

He proceeds to say that the commissioner had reported to him in an official form that the military officers employed in the service of the United States stationed at Santa Fe interposed adversely with the inhabitants to the fulfillment of his object in favor of the establishment of a separate State government east of the Rio Grande, and within the rightful limits of the State of Texas. These four counties, which Texas thus proposes to establish and organize as being within her own jurisdiction, extend over the whole of the territory east of the Rio Grande, which has heretofore been regarded as an essential and integral part of the department of New Mexico, and actually governed and possessed by her people until conquered and severed from the Republic of Mexico by the American arms.

The legislature of Texas has been called together by her governor for the purpose, as is understood, of maintaining her claim to the territory east of the Rio Grande and of establishing over it her own jurisdiction and her own laws by force.

These proceedings of Texas, may well arrest the attention of all branches of the Government of the United States, and I rejoice that they occur while the Congress is yet in session. It is, I fear, far from being impossible that, in consequence of these proceedings of Texas, a crisis may be brought on which shall summon the two Houses of Congress, and still more emphatically the executive government, to an immediate readiness for the performance of their respective duties.

By the Constitution of the United States the President is constituted Commander in Chief of the Army and Navy, and of the militia of the several States when called into the actual service of the United States. The Constitution declares also that he shall take care that the laws be faithfully executed and that he shall from time to time give to the Congress information of the state of the Union.

Congress has power by the Constitution to provide for calling forth the militia to execute the laws of the Union, and suitable and appropriate acts of Congress have been passed as well for providing for calling forth the militia as for placing other suitable and efficient means in the hands of the President to enable him to discharge the constitutional functions of his office.

The second section of the act of the 28th of February, 1795, declares that whenever the laws of the United States shall be opposed or their execution obstructed in any State by combinations too powerful to be suppressed by the ordinary course of judicial proceedings or the power vested in the marshals, the President may call forth the militia, as far as may be necessary, to suppress such combinations and to cause the laws to be duly executed.

By the act of March 3, 1807, it is provided that in all cases of obstruction to the laws either of the United States or any individual State or Territory, where it is lawful for the President to call forth the militia for the purpose of causing the laws to be duly executed, it shall be lawful for him to employ for the same purposes such part of the land or naval force of the United States as shall be judged necessary.

These several enactments are now in full force, so that if the laws of the United States are opposed or obstructed in any State or Territory by combinations too powerful to be suppressed by the judicial or civil authorities it becomes a case in which it is the duty of the President either to call out the militia or to employ the military and naval force of the United States, or to do both if in his judgment the exigency of the occasion shall so require, for the purpose of suppressing such combinations. The constitutional duty of the President is plain and peremptory and the authority vested in him by law for its performance clear and ample.

Texas is a State, authorized to maintain her own laws so far as they are not repugnant to the Constitution, laws, and treaties of the United States; to suppress insurrections against her authority, and to punish those who may commit treason against the State according to the forms provided by her own constitution and her own laws.

But all this power is local and confined entirely within the limits of Texas herself. She can possibly confer no authority which can be lawfully exercised beyond her own boundaries.

All this is plain, and hardly needs argument or elucidation. If Texas militia, therefore, march into any one of the other States or into any Territory of the United States, there to execute or enforce any law of Texas, they become at that moment trespassers; they are no longer under the protection of any lawful authority, and are to be regarded merely as intruders; and if within such State or Territory they obstruct any law of the United States, either by power of arms or mere power of numbers, constituting such a combination as is too powerful to be suppressed by the civil authority, the President of the United States has no option left to him, but is bound to obey the solemn injunction of the Constitution and exercise the high powers vested in him by that instrument and by the acts of Congress.

Or if any civil posse, armed or unarmed, enter into any Territory of the United States, under the protection of the laws thereof, with intent to seize individuals, to be carried elsewhere for trial for alleged offenses, and this posse be too powerful to be resisted by the local civil authorities, such seizure or attempt to seize is to be prevented or resisted by the authority of the United States.

The grave and important question now arises whether there be in the Territory of New Mexico any existing law of the United States opposition to which or the obstruction of which would constitute a case calling for the interposition of the authority vested in the President.

The Constitution of the United States declares that--

This Constitution, and the laws of the United States which shall be made in pursuance thereof, and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land.

If, therefore, New Mexico be a Territory of the United States, and if any treaty stipulation be in force therein, such treaty stipulation is the supreme law of the land, and is to be maintained and upheld accordingly.

In the letter to the governor of Texas my reasons are given for believing that New Mexico is now a Territory of the United States, with the same extent and the same boundaries which belonged to it while in the actual possession of the Republic of Mexico, and before the late war. In the early part of that war both California and New Mexico were conquered by the arms of the United States, and were in the military possession of the United States at the date of the treaty of peace.

By that treaty the title by conquest was confirmed and these territories, provinces, or departments separated from Mexico forever, and by the same treaty certain important rights and securities were solemnly guaranteed to the inhabitants residing therein.

By the fifth article of the treaty it is declared that--

The boundary line between the two Republics shall commence in the Gulf of Mexico 3 leagues from land, opposite the mouth of the Rio Grande, otherwise called Rio Bravo del Norte, or opposite the mouth of its deepest branch if it should have more than one branch emptying directly into the sea; from thence up the middle of that river, following the deepest channel where it has more than one, to the point where it strikes the southern boundary of New Mexico; thence westwardly, along the whole southern boundary of New Mexico (which runs north of the town called Paso) to its western termination; thence northward along the western line of New Mexico until it intersects the first branch of the river Gila (or, if it should not intersect any branch of that river, then to the point on the said line nearest to such branch, and thence in a direct line to the same); thence down the middle of the said branch and of the said river until it empties into the Rio Colorado; thence across the Rio Colorado, following the division line between Upper and Lower California, to the Pacific Ocean.

The eighth article of the treaty is in the following terms:

Mexicans now established in territories previously belonging to Mexico, and which remain for the future within the limits of the United States as defined by the present treaty, shall be free to continue where they now reside or to remove at any time to the Mexican Republic, retaining the property which they possess in the said territories, or disposing thereof and removing the proceeds wherever they please without their being subjected on this account to any contribution, tax, or charge whatever.

Those who shall prefer to remain in the said territories may either retain the title, and rights of Mexican citizens or acquire those of citizens of the United States; but they shall be under the obligation to make their election within one year from the date of the exchange of ratifications of this treaty; and those who shall remain in the said territories after the expiration of that year without having declared their intention to retain the character of Mexicans shall be considered to have elected to become citizens of the United States.

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.