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GALLATIN TO MARIA CHAPMAN. - Albert Gallatin, The Writings of Albert Gallatin, vol. 2 [1879]

Edition used:

The Writings of Albert Gallatin, ed. Henry Adams (Philadelphia: J.B. Lippincott, 1879). 3 vols.

Part of: The Writings of Albert Gallatin, 3 vols.

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GALLATIN TO MARIA CHAPMAN.

New York, November, 1843.

My dear Mrs. Chapman,—

A severe cold which prostrated me has prevented an earlier acknowledgment of your letter of 19th October last. I was highly gratified by your kind recollection, but did not know that dear Miss Weston, who could not be forgotten, and Mrs. Maria Chapman, known to me only by the voice of fame, were one and the same being. I have read with pleasure the whole of the annual you sent me. To write anything for it is out of question. I never was but a poor writer in a language which is not my native tongue, and was compelled to confine myself to statements of facts and dry reasoning; now, with impaired faculties, and that writing has become a painful labor, I cannot produce anything fit to be published. I have, moreover, the defects of old age, and feel that I have become cross and fault-finder. I would not for any consideration say anything that might injure the holy cause in which you are engaged, and yet I must tell the truth, or what appears to me to be the truth. But to you, whom I love and respect, to you and not for publication, I may try to submit some desultory observations, which in that shape will at least be harmless.

GALLATIN TO D. DUDLEY FIELD.

New York, 17th December, 1844.

Dear Sir,—

I have received your note of yesterday, asking my opinion respecting the constitutional character of the resolution for annexing Texas by a legislative act, now before Congress. Had not that resolution been proposed, I should not have thought that there could be a difference of opinion on that subject.

A doubt has been suggested whether the general government has the right, by its sole authority, to add a foreign independent state to the Union; and I have ever been of opinion that conditions might occur in a treaty ratified by the President and Senate, such as any binding the United States to pay a sum of money, which would require the free assent of Congress before such conditions could be carried into effect. But it is unnecessary on this occasion to discuss those questions. That now at issue is simply this: In whom is the power of making treaties vested by the Constitution? The United States have recognized the independence of Texas; and every compact between independent nations is a treaty.

The Constitution of the United States declares that “the President shall have power, by and with the advice and consent of the Senate, to make treaties, provided two-thirds of the Senators concur.” This power is not given to Congress by any clause of the Constitution.

The intended joint resolution proposes that the treaty of annexation between the United States of America and the republic of Texas, signed on the 12th of April, 1844 (which treaty is recited verbatim in the resolution), shall, by the Senate and House of Representatives in Congress assembled, be declared to be the fundamental law of union between the said United States and Texas so soon as the supreme authority of the said republic of Texas shall agree to the same.

The Senate had refused to give its consent to the said treaty; and the resolution declares that it shall nevertheless be made by Congress a fundamental law binding the United States. It transfers to a majority of both Houses of Congress with the approbation of the President, and to two-thirds of both Houses without his approbation, the power of making treaties, which, by the Constitution, was expressly and exclusively vested in the President, with the consent of two-thirds of the Senate. The resolution is evidently a direct and, in its present shape, an undisguised usurpation of power and violation of the Constitution.

It would not be difficult to show that it is not less at war with the spirit than with the letter of that sacred instrument; and that the provision which requires the consent of two-thirds of the Senate was intended as a guarantee of the States’ rights, and to protect the weaker against the abuse of a treaty-making power, if vested in a bare majority. But the case appears to me so clear, that I would fear to obscure that which is self-evident by adding any argument to the simple recital of the constitutional provision and of the proposed resolution.

I have the honor to be, with high consideration and personal regard, dear sir, your most obedient servant.

GALLATIN TO D. D. FIELD.

New York, 10th February, 1845.

Dear Sir,—

The proceedings in Congress respecting the annexation of Texas, and the opinions expressed on the subject, induce me to submit the following observations in addition to my former letter to you on that subject.

Respectfully yours.

It is provided by the Constitution of the United States that:

1st. Article 2d, Section 2. The President shall have power, by and with the advice and consent of the Senate, to make treaties, provided two-thirds of the Senators present concur.

2dly. Article 4th, Section 3. New States may be admitted by the Congress into this Union, etc.

The constitutional question now under consideration is whether Texas, which has been recognized by the United States as an independent foreign state, can, by virtue of this last provision, be admitted by the sole authority of Congress into the Union as a new State.

It is a fundamental principle, universally recognized by all the jurists and publicists, that in the interpretation of the constitutions, statutes, treaties, deeds, and contracts, or compacts of every description, the construction must be made upon the whole instrument, and not merely upon disjointed parts of it, and that therefore every part of it must, if possible, be made to take effect; or, in other words, that one part of it must be so construed by another that the whole may if possible stand.

It follows that if Texas can be admitted into the Union as a new State without its being admitted into the Union for that purpose, Congress may, by its sole authority, thus admit it; but that if a treaty is necessary, this can be effected only by the treaty-making power, which is not vested in Congress. Otherwise the provision which gives that power exclusively to the President, with the consent of two-thirds of the Senators present, would be nullified, and that power be transferred to Congress in violation of the express provision of the Constitution.

By the treaty and conventions for the acquisition of Louisiana it was provided that the United States should pay fifteen millions of dollars, and that the inhabitants of the ceded territory should be incorporated into the Union of the United States and admitted as soon as possible, according to the principles of the Federal Constitution, to the enjoyment of all the rights, advantages, and immunities of citizens of the United States; which last provision implied their admission into the Union as a new State or new States. Neither of these conditions could be carried into effect without the co-operation of Congress. That body appropriated and provided the funds required, and by several special laws has already erected a part of the ceded territory into three States. Thus the several provisions of the Constitution were made to stand and harmonize, and each to take effect.

In the same manner Congress may, by an analogous process, now resolve that Texas, whenever acquired in conformity with the Constitution, shall be admitted into the Union as a State or States. But territory can be acquired only by treaty or conquest. As this last mode is in this case out of the question, it is unnecessary to discuss in what cases conquest or occupation may, without the sanction of a treaty, confer a legitimate right. On this occasion, the mutual assent of at least two parties—Texas and the United States—is absolutely necessary. Call it agreement, compact, or by any other name, it is only by a treaty that the annexation of Texas can be effected. Every proposition heretofore offered for that purpose makes the assent of Texas, or, in other words, a compact or treaty with that republic, an indispensable condition.

Mr. Benton’s proposition authorizes the negotiation of a treaty founded on the principle of the admission of Texas as a State, and would seem altogether unexceptionable so far as relates to the constitutional question, provided the treaty was made and ratified in the manner provided by the Constitution. But the proposed resolution leaves it optional with the President of the United States to submit the treaty for confirmation either to Congress or to the Senate. There is no option in the case. Congress has the right to say that if Texas be annexed, it shall be as a State; but it cannot dispense with the provisions of the Constitution and authorize the President to make the treaty otherwise than by and with the consent of two-thirds of the Senate. To substitute Congress for two-thirds of the Senators present cannot be effectual otherwise than by an amendment to the Constitution.

This attempt is unwarranted by any precedent. In the year 1796 the House of Representatives contended that wherever the stipulations of a treaty required the co-operation of Congress, the House had a right to grant or to refuse its assent; but it disclaimed any right to make treaties. The resolution of the House, proposed and sustained by Mr. Madison, and adopted by the unanimous vote of the Republican party (57 to 35), is as follows:

“Resolved, That it being declared by the Second Section of the Second Article of the Constitution, ‘That the President shall have power, by and with the advice and consent of the Senate, to make treaties, provided two-thirds of the Senators present concur,’ the House of Representatives does not claim any agency in making treaties; but that when a treaty stipulates regulations on any of the subjects submitted by the Constitution to the power of Congress, it must depend for its execution, as to such stipulations, on a law or laws to be passed by Congress; and it is the constitutional right and duty of the House of Representatives in all such cases to deliberate on the expediency or inexpediency of carrying such treaty into effect, and to determine and act thereon as in their judgment may be most conducive to the public good.”

The President may alone negotiate; he cannot make a treaty. A treaty cannot be made without the consent of two-thirds of the Senators present. An attempt to substitute for that express provision of the Constitution the approbation of Congress, would give to the House of Representatives a direct agency in making treaties. Any law to that effect would be a nullity; it might be repealed at any time by another law,—for no law which is not in the nature of a contract, which the legislative body has a right to make, is binding on subsequent Congresses. In this instance the faith of the United States would not be pledged to Texas, because the compact or treaty was not made by the competent constitutional authority.

There are other weighty objections against the annexation of Texas; but if this has become unavoidable, let at least the Constitution be respected. It is impossible to foresee the baneful consequences which may attend the violation of one of its most important conservative provisions. It has a tendency to promote anarchy, and threatens the permanence of the Union. It would certainly be a most fatal precedent. There is no compact or treaty of peace, commerce, alliance, or for any other purpose whatever, and with any foreign nation whatever, that may not on the same ground be made by the sole authority of Congress, without regard to the constitutional guarantee, which, by requiring the consent of two-thirds of the Senate, protects the States and the people against the abuse of the treaty-making power.