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Subject Area: Political Theory

1844: GALLATIN TO D. DUDLEY FIELD. - 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 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.