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1845: GALLATIN TO D. D. 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. 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.

GALLATIN TO COMMODORE CHARLES STEWART.

New York, 16th October, 1845.

Sir,—

I return my thanks for your civility in communicating your intended publication, and beg leave to make the following observations:

I have not the slightest recollection of having ever assisted at any Cabinet council where the propriety of laying up the public ships during the war was discussed, or of having proposed that measure, or of its having been entertained by the Administration, or of you and Commodore Bainbridge remonstrating against it and addressing a letter to the President on the subject. If, in point of fact, I was party or privy to any such transactions, all I can say is that my memory has failed me much more than I am aware of. I pray you nevertheless to make no alteration in those parts of your publication where my name is mentioned. I wish all the facts within your own knowledge, whether they affect me or not, to be faithfully stated.

I mentioned to you this morning that you were mistaken in supposing that Congress had adjourned during the session, which continued without interruption from the 4th November, 1811, to the 6th July, 1812. I think that you express yourself too strongly (page 3) in saying that the determination of Mr. Madison and his Cabinet was an incontrovertible fact, and also (page 16) when you say that Commodore Rodgers certainly sailed on 21st June without orders. His letter, in which he acknowledges the receipt of orders dated 18th of June, is dated September 1, 1812, and Captain Porter’s letter, in which he says, “In pursuance of your orders of 24th of June, I sailed from Sandy Hook on 3d July,” is dated September 7.

I have the honor to be, &c.

GALLATIN TO EDWARD COLES.

New York, November 24, 1845.

My dear Sir,—

A severe cold prevented an immediate answer to your letter of the 12th on the subject of Commodore Stewart’s publication. He communicated his statement to me before he sent it to the publisher. I had two conversations with him on the subject, and addressed to him, on the 16th October, a short letter, a copy of which is enclosed. This, so far as I am concerned, appeared to me sufficient, and I had not intended to say anything more on that particular point. Your appeal to me in reference to Mr. Madison compels me to be more explicit.

I repeat what I wrote to Commodore Stewart, viz., that “I have not the slightest recollection of having ever assisted at any Cabinet council where the propriety of laying up the public vessels during the war was discussed, or of having proposed that measure, or of its having been entertained by the Administration, or of Commodores Bainbridge and Stewart having remonstrated against it and addressed a letter to the President on the subject. If, in point of fact, I was privy or party to any such transactions, all I can say is that my memory has failed me much more than I am aware of.”

I may have forgotten casual suggestions and conversations, but that I should not recollect such an important fact as a solemn decision by the Administration, twice ratified in Cabinet council, to lay up the navy during the war, appears to be incredible; the more so because it had been quite unusual to submit to the Cabinet the manner in which the land or naval forces authorized by Congress, and for which appropriations had been made, should be employed. This was arranged by the head of the Department, under the control of the President as commander-in-chief. On no occasion was I ever consulted, in or out of Cabinet, on those subjects prior to the year 1812. And I have a lively recollection of the two occasions on which the President called us together in that year to deliberate on measures of that character. First, in March or April, on the propriety of sending a force to occupy the then insulated post of Detroit and vicinity, which was approved of under the expectation of the impending war. But the amount of the force, the mode of execution, and all the details were left entirely to the discretion of the War Department. Secondly, in August following, immediately after receiving the news of General Hull’s disaster, when the subjects for discussion were the propriety of immediately creating a naval force on the Lakes, and whether any attempt should be made, before this was effected, to recover Detroit and the lost territory.

You must be sensible that my evidence is nevertheless only negative; and on that account I will mention the circumstances and facts which seem to render it probable that the reminiscences of Commodore Stewart may not in every respect be as correct as he thinks them to be, or that he was misled by erroneous information.

We have three versions which disagree either as to date or as to fact.

Dr. Thomas Harris published in the year 1837 a life of Commodore Bainbridge, which I had not seen at the time of Commodore Stewart’s publication, and which the author states to be founded on Commodore Bainbridge’s private journals and extensive correspondence, close intimacy and conversations with him, &c. In this he says that Commodore Bainbridge, having arrived at Boston from Europe in February, 1812, proceeded immediately to Washington, where he remained a few weeks during the deliberation of Congress on the subject of a declaration of war against Great Britain, and was ordered to the command of the navy-yard at Charlestown, Massachusetts; that before leaving the seat of government he heard that in a Cabinet council it was determined that our vessels of war should be placed in ordinary; that, having consulted with Commodore Stewart, they addressed a strong argumentative letter to the Secretary of the Navy remonstrating against that measure; that this letter had its effect, and our men-of-war were permitted to cruise; that, having gained this important point, Commodore Bainbridge departed for Boston, whence he was, after the declaration of war, ordered to Washington to take command of the Constellation and to fit her out with all possible despatch; that the order was obeyed; that after directing the necessary repairs he returned to Boston to make provision for his family; and that whilst there he was, on the resignation of Commodore Hull, appointed to the command of the Constitution.

According to Commodore Stewart, it was after and not before the declaration of war that the determination to lay up the public ships and the revocation of that decision took place. He states that he and Commodore Bainbridge arrived at Washington on the 20th June; that on the 21st they were shown by Mr. Goldsborough, chief clerk of the Navy Department, a paper containing the orders which had just been drawn for Commodore Rodgers not to leave the waters of New York with his naval force; that on the same day the Secretary of the Navy informed them that it had been decided by the President and the Cabinet to lay up our vessels of war in the harbor of New York; that their interview with the President and the confirmation of the said decision took place on the same day; that on the 22d he and Commodore Bainbridge signed and presented their joint letter; that he obtained on the same day the command of the Argus, with instructions to proceed to sea, scour the West Indies and Gulf Stream, &c., and departed immediately, leaving Commodore Bainbridge at Washington; and that Commodore Bainbridge informed him on his return to Philadelphia that he had accomplished his purpose, that the ships were ordered to go to sea, and that the President had said that he would assume the responsibility. This revocation is stated to have taken place about the middle of July.

Mr. Goldsborough, the chief clerk above mentioned, in a letter dated 4th May, 1825, written in answer to one addressed to him by Commodore Bainbridge, confirms the fact of the joint letter of the two commodores to the Secretary of the Navy; and the date he assigns to it is subsequent to the declaration of war, and does not differ essentially from that given by Commodore Stewart. But instead of saying that he had shown to those two officers a paper just drawn, ordering Commodore Rodgers not to sail from New York, his expressions are: “That the opinion that it would be rash to contend on the ocean with the enemy; that prudence required that our few ships should be laid up in some safe port &c., prevailed too generally in the city, and that it was confidently reported that the majority of the Cabinet entertained the same opinion and had come to the determination to lay up all our ships in New York and to employ the officers and seamen of the navy in the ports on the seaboard; that he mentioned that report to the commodores, and that very soon afterwards it was confirmed by one of the members of the Administration” (clearly by the Secretary of the Navy). So far as relates to the interview with his first clerk, the communication to Commodore Bainbridge was made thirteen years after the incidents alluded to, and twenty years before Commodore Stewart’s publication.

With respect to the acts and intentions of Congress, Commodore Stewart appears to me to be clearly mistaken.

He was under the impression that Congress had adjourned in April, 1812, and met again in June following for the purpose of declaring war; a mistake which he corrected on my showing him that that body did sit without interruption from November, 1811, till the 6th of July, 1812. During that session two laws were passed respecting the navy. By the Act of the 24th of February, 1812, $2,800,000 were appropriated in conformity with the estimates of the Secretary of the Navy, for the expenses, among other objects, of keeping in active service all the public vessels then in commission, viz., four frigates, a corvette, three ships, and seven brigs or schooners,—which appropriation proved amply sufficient. By the Act of 30th March, 1812, the President was authorized to cause to be immediately repaired, equipped, and put in actual service the frigates Chesapeake, Constellation, and Adams; and a sum not exceeding $300,000 was, in conformity with the estimate of the Secretary of the Navy, appropriated for that object. That provision was carried into effect; but another inadequate annual appropriation of $200,000 towards rebuilding the Philadelphia, New York, Boston, and General Greene was only partially applied,—the three last-mentioned ships having proved not to be seaworthy, and the provision for the Philadelphia being apparently superseded by the Act of the 2d January, 1813.

It is quite true that, notwithstanding the report of the Secretary of the Navy and that of the naval committee, Congress did not provide for any increase of the navy till after the triumphs of the war of 1812. But there is an obvious difference between the amount of a naval force and the use to which it shall be applied. On this point no doubt was entertained, at the time, respecting the intentions of Congress. No member of that body expressed, within my knowledge, a wish or expectation that the ships should be laid up. The style of all the laws on that subject implies that they shall be actively employed. Above all, it cannot be supposed that, if intending to lock up the navy, Congress should by their last Act have ordered three more frigates to be repaired and equipped for sea service, and have incurred a useless expense of $300,000 for that purpose. The inference drawn by Commodore Stewart from that erroneous assumption is inadmissible. The reverse is the case. To have confined voluntarily and permanently the public ships in some safe port would have been in direct opposition to the tenor of the laws and to the intentions of Congress. That as commander-in-chief the President may, according to circumstances, order vessels to cruise or remain in port is true. But there is one thing which he is not authorized to do.

My name is mentioned as having proposed that our ships should be employed in the defence of New York, which, if I did, was a very silly suggestion; since, ignorant as I am of military and naval affairs, yet I had always understood that frigates, whether in or out of port, could not stand seventy-fours, and that when in port they were protected by forts, not that they could be used to protect forts. In point of fact, though some additions were made afterwards, New York was at the time when war was declared already defended on the most commonsense plan, for which I would be at a loss to assign the author. Every one with whom I ever conversed agreed that, if ships of the line succeeded in passing the outward defences (Governor’s, Ellis, and Bedloe’s Islands), the only efficient way to defend the city was by forts erected at convenient distances on the North River, both in the city itself and on the opposite New Jersey shore. And it will be seen by the report of the Secretary of War of 3d December, 1811, that two of those forts were already erected. No naval aid but that of the gunboats was suggested; and it was the general opinion of the officers consulted that, though useful in some cases, they could not, from various causes, render any efficient aid in the defence of the harbor of New York. As to the plan of dismantling the frigates and converting them into floating batteries, having never heard it discussed, I can form no judgment of its practicability or efficiency. But it is the measure to which I have alluded in saying that there were things which the President was not authorized to do. Congress has always reserved to itself the right and exercised exclusively the power to prescribe not only the amount but the species of the military or naval force. The President might no more convert a frigate into a dismantled floating battery than he might build seventy-fours under a law authorizing the building of sixteen-gun ships, or raise a regiment of dragoons under a law authorizing one of artillery. When Congress wanted floating batteries, they passed a law (9th March, 1814) for that purpose, designating them by that name.

There are also some facts and some acts of the Navy Department which it is difficult to reconcile with the supposition that there was at any time any determination by the Administration, adopted at meetings of the Cabinet, to lay up all the public ships at some port, and not to risk them at sea.

It appears certain that all the ships had been ordered immediately before the declaration of war to unite at New York as a common place of rendezvous. Commodore Stewart thinks that Commodore Rodgers sailed with his squadron on the 21st June without orders. That he had orders is, however, certain. In his letter of 1st September, 1812, to the Secretary of the Navy he says, “The United States, Congress, and Argus did join me on the 21st June, with which vessels, this ship, and the Hornet I accordingly sailed in less than an hour after I received your orders of the 18th of June, accompanied by your official communication of the declaration of war.” These orders have not been published. In the mean while, it seems incredible that Commodore Rodgers should have sailed if he had not been at least permitted to do it by those orders or other previous instructions. Commodore Stewart was appointed to the command of the Argus on the 22d of June for the express purpose of making a cruise in the West Indies. And Commodore Porter, giving an account of his first cruise, in his letter of September 7, 1812, to the Secretary of the Navy, says, “In pursuance of your orders of the 24th of June, I sailed from Sandy Hook on the 3d of July,” &c. Thus three frigates and two smaller vessels put to sea on the 21st June, after having received orders dated the 18th June. Those to Commodore Stewart for a cruise are of the 22d. Those of Commodore Porter to sail on a cruise with a frigate (Essex) are dated the 24th. And yet the two commodores were told that the determination by the President and Cabinet to lay up all the vessels had been adopted prior to the 21st, and was confirmed the evening of that day. In order to remove every doubt, it seems necessary that the orders of the 18th June to Commodore Rodgers, and indeed all the orders issued by the Navy Department during the months of June and July, 1812, should be published. They must have been recorded, and although some loose papers may have been destroyed at the time of the capture of Washington, the records were saved, since Mr. Goldsborough appeals to them in his letter of the year 1825 to Commodore Bainbridge.

The strongest evidence adduced by Commodore Stewart is the statement of his interviews with the Secretary of the Navy. Owing to circumstances irrelevant to any question now at issue, my intercourse with Mr. Hamilton was very limited. He may have been inefficient; he certainly was an amiable, kind-hearted, and honorable gentleman. From his official reports he appears to have been devoted to the cause of the navy; and I never had heard him express opinions such as he is stated to have entertained on that subject. Yet his official instructions of 18th June and 3d July, 1812, to Commodore Hull, which I saw for the first time in Mr. Ingersoll’s work, evince an anxiety bordering on timidity, a fear to assume any responsibility, and a wish, if any misfortune should happen, to make the officer solely responsible for it. But admitting Commodore Stewart’s reminiscences to be entirely correct, and putting myself out of question, it is clear that they do not affect Mr. Madison.

In the first interview of the commodores with Mr. Hamilton, he enumerates with great force all the reasons that could be alleged against the public ships of the United States being able to escape capture or destruction by the British navy, and dwells on its superiority not only in numbers but in skill and experience. The contrast between him and the President is remarkable. In the interview with Mr. Madison he says to Mr. Hamilton that they ought not to despair of our navy, and that though small it would perform its duty; and after hearing Commodore Bainbridge’s observations, he adds, “It is victories we want; if you give them to us and afterwards lose your ships, they can be replaced by others.” In the next interview, late in the evening, with Mr. Hamilton, he states that the Cabinet still persisted in their opinion of laying up the ships, and that Mr. Monroe was the only member who advocated their being sent to sea. He then reiterates his objections, and expresses the remarkable sentiment “that his conscience would never acquit him if, by sending our vessels to sea, the germ of our navy should be lost.” It seems impossible not to infer that the Secretary of the Navy was himself the principal obstacle to the active employment of the public ships. Indeed, if he had in that council united his voice to that of Mr. Monroe, and supposing Mr. Eustis and myself to have been present and to have taken the opposite side, the Cabinet would have been equally divided; and Mr. Madison, with such views of the subject as he entertained and had expressed, would without hesitation have decided in favor of the opinion of the Secretaries of State and of the Navy.

It is now claimed that the final decision of the President was almost wrested from him by the persevering interference of two meritorious officers. Yet it is somewhat remarkable that amidst the universal exultation at the first naval victories and the multiplied complaints from almost every quarter of the incapacity of the Administration,—complaints which compelled the Secretary of War to resign,—not a single hint or allusion should have appeared in any of the contemporaneous newspapers or other publications to the fact now asserted, that those naval exploits which consoled the nation for the disasters by land would never have occurred had the President and Cabinet been left to act according to their own views. The secret was admirably well kept. But it is to be regretted that the account now given of these transactions should not have been made public till after the death of Mr. Madison and of Mr. Hamilton, who were in fact the officers responsible for a proper employment of the navy, and that not even a copy of the joint letter should have been preserved. The well-earned fame of Commodores Bainbridge and Stewart, and of other brave, skilful, and meritorious officers of the navy, rests on their notorious and undisputed deeds, and on the great moral effect which these produced. It seems to me to be due to the memory of the dead that the President and Secretary of the Navy should also be judged by their public deeds, as sustained by official documents, rather than by the reminiscences of conversations held more than thirty years ago, and by the belief sincerely, but, as I think, erroneously entertained by Commodores Bainbridge and Stewart, that their joint letter could have had any effect on Mr. Madison’s determination.

For myself, I have no reason to complain. Commodore Stewart in mentioning my name only repeats what he heard another say, and he ascribes to me none but honorable motives and opinions, which, as he believed, were generally those of the public at large. He says, indeed, that out of the navy he knew at Philadelphia but one man who thought otherwise. My associations were, however, more fortunate. From my numerous connections and friends in the navy, and particularly from conversations with Commodore Decatur, who had explained to me the various improvements introduced in our public ships, I had become satisfied that our navy would, on equal terms, prove equal to that of Great Britain; and I may aver that this was the opinion not only of Mr. Madison, but of the majority of those in and out of Congress with whom I conversed. The apprehension, as far as I knew, was not on that account, but that by reason of the prodigious numerical superiority of the British there would be little chance for engagements on equal terms, and that within a short time our public ships could afford no protection to our commerce. But this did not apply to the short period immediately subsequent to the declaration of war, when the British naval force in this quarter was hardly superior to that of the United States. The expectation was general, and nowhere more so than in New York, where the immediate capture of the Belvidere was anticipated, that our public ships would sail the moment that war was declared. In keeping them in port at that time, the Administration would have acted in direct opposition to the intentions of Congress and to public opinion.

I was present at the ball and near Mrs. Madison when the flag of the Macedonian was introduced. I did not hear the observations ascribed to Mr. Madison on that occasion, and my impression had been that he was not present.

This letter is too long, and nothing could have induced me to write so much on a subject unimportant to me but the fact that I am, besides yourself, the only survivor of those who enjoyed the intimate confidence of my best and revered friend, James Madison.

Please to accept the assurance of my high regard and sincere attachment.