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THE MAKING OF THE TREATY OF 
 GUADALOUPE HIDALGO ON FE,B= 
 RUARY 2, 1848. THE, JAMES BRYCE 
 HISTORICAL PRIZE. ESSAY FOR 
 1905 * 4 BY JULIUS KLEIN 
 
The Making of the Treaty of Guadaloupe 
 Hidalgo, on February 2, 1848 
 
 THE JAMES BRYCE HISTORICAL PRIZE ESSAY 
 FOR 1905 
 
 BY 
 
 JULIUS KLEIN 
 
 [Reprinted from the UNIVERSITY CHRONICLE, Vol. VII, No. 4] 
 
 BERKELEY 
 
 THE UNIVERSITY PRESS 
 1905 
 
4 
 
TABLE OF CONTENTS. 
 
 PAGE 
 
 Introduction 3 
 
 Part I 6 
 
 (a) The treaty in its historical aspect 7 
 
 (1) Early attempts to gain California 7 
 
 (2) Account of the negotiations 8 
 
 (3) The opposition to the treaty and its final ratification. . 17 
 Part II 22 
 
 (a) The legal aspect of the treaty 23 
 
 (1) Its contents and legality 24 
 
 (2) The questions of international law involved 30 
 
 (3) Effect of the treaty upon the technical or legal exten 
 
 sion of boundaries 33 
 
 (4) The Constitution and the new territory 36 
 
 (5) Status of the acquisition and its inhabitants as af 
 
 fected by the treaty 40 
 
 (i) Private property rights 40 
 
 (ii) Public lands 41 
 
 (iii) Municipal lands 41 
 
 (iv) Political status of the inhabitants 42 
 
 (v) The existing government 43 
 
 (6) The rightful authority in control of the cession 44 
 
 (&) The politics and policy of the treaty 46 
 
 (1) President Polk s Mexican policy 47 
 
 (2) The all-of-Mexico movement 49 
 
 Conclusion 51 
 
 Appendices 53 
 
 A. Extracts from official correspondence with regard to Mex 
 ican relations, 1845-1848 53 
 
 B. Synopsis of the treaty 60 
 
 C. Extracts from the diary of President Polk 65 
 
 D. Map of the territory in question 69 
 
 List of authorities cited 71 
 
 NOTE. The numbers in brackets at foot of pages are the folio 
 numbers for the UNIVERSITY CHRONICLE, Vol. VII, No. 4. 
 
CKTHE 
 
 DIVERSITY 
 
 OF 
 
 THE MAKING OF THE TREATY OF 
 
 GUADALOUPE HIDALGO ON 
 
 FEBRUABY 2, 1848. 1 
 
 JULIUS KLEIN. 
 
 History has been defined as a series of evolutionary pro 
 cesses, not a mere sequence of events, or a procession of 
 happenings, of wars, of economic upheavals, and of exhibi 
 tions of statecraft, but a * series of processes, of constantly 
 changing movements out of which arise the progress and 
 civilization of man. The examination, therefore, of any 
 particular period or event in this course of evolution at once 
 raises the questions : How does it fit in with the great 
 scheme of evolutionary movement does it advance it or 
 retard it ? What is the effect of its coming upon the parti 
 cular form of this movement in progress at the time the 
 event occurred? 
 
 Applying this to the subject at hand, our investigation 
 will involve, in a word, the determination and study of the 
 general tendency or evolutionary process as we first called 
 it of which the treaty formed an element. It shall be our 
 object to inquire into and point out the relationship exist 
 ing between this vitally important document and the trend 
 of the powerful undercurrent, the exact nature of which 
 is to be determined. 
 
 Historical Prize Essay, 1905. 
 
 [247] 
 
In looking over the field one finds the writers upon the 
 Mexican War quite numerous; but the majority of their 
 works are contemporaneous American accounts those by 
 Cutts, Furber and Mansfield, for example full of vivid 
 battle pictures and gross exaggerations, inspired either by 
 a patriotism whose ardor was exceeded only by its blind 
 ness to sober judgment, or by a profound one might almost 
 say religious zeal in holding up war in all its horrors as 
 an argument for universal peace and arbitration. 1 And 
 because of this great variety of views, and of the numberless 
 opinions from more or less authoritative sources, which 
 have from time to time found expression with regard to the 
 Mexican War and the Treaty of Guadaloupe Hidalgo, it has 
 been deemed necessary to base this investigation in part 
 upon the more conservative statements of authorities of the 
 present day, but more largely we might say almost en 
 tirely upon material coming from sources first-hand. To 
 this end the Abridged Debates, the Executive Docu 
 ments, 2 and the Journals and Records of both houses of 
 Congress have been extensively used. In connection with 
 these, frequent reference will be found to official or semi 
 official correspondence with regard to Mexican relations. 3 
 Of primary importance as sources of material in a discus 
 sion of this nature are the Reports of the Supreme Court 
 of the United States. The importance and respect attached 
 to decisions of the judiciary have, since the time of the 
 Stuarts and before, been characteristic of Anglo-Saxon 
 governments. It is in the matters of constitutionality and 
 law that the Reports carry their greatest weight and upon 
 questions involving either or both of these two the support 
 
 1 E.g. Jay, Livermore, and Eipley, the last of whom Bancroft 
 considers to be "the most important of American authorities upon 
 the War apart from the official documents." Cf. Bancroft, vol. 
 V., p. 550. 
 
 2 These documents of course include the Presidential messages 
 as found both in Kichardson s "Messages 7 and in the publications 
 of the government. 
 
 3 Cf- Appendix A. 
 
of such recognized authority is deserving of the most pro 
 found consideration and attention. There is still another 
 source which has been found to be exceptionally useful in 
 the matter of furnishing an inner light upon the actual 
 policy and methods of the Administration in question; 
 we refer to the diary of President James K. Polk, 1 which 
 has only at a comparatively recent date been made avail 
 able to the public ; of its importance and exceptional value 
 as a source in this discussion more will be said at the 
 proper occasion. 2 It will be noted that all of the above, 
 Debates, Documents, Journals and Records, Court Reports, 
 official correspondence and the diary may be classed 
 as primary sources from which all arguments and state 
 ments, in order to have sufficient authority, must be de 
 duced, and beyond which there is no appeal. 
 
 Having selected our authorities it is important to con 
 sider next the method by which the material gathered 
 therefrom is to be handled. Various ways at once suggest 
 themselves. We might take the treaty as a whole, com 
 pare it minutely with instruments of a similar nature, 
 showing wherein it differs from and is similar to such 
 treaties as that of 1803 or of 1819; we might, in a word, 
 treat it on the whole as an example of diplomacy, as a 
 purely international document, viewing it only in its 
 light as the outcome of the relations existing at a particular 
 period of time between two nations. Again, it might be 
 regarded as the climax of a most important period of 
 American history; it might be shown to what extent it 
 actually did form the culminating point of the long pend 
 ing, though when it finally came, short and decisive 
 struggle between the two governments and peoples. In 
 deed, there are several points of view which might readily 
 be assumed in this discussion; but in order to make the 
 study of the subject thoroughly complete and exhaustive so 
 that the entire field may be thus covered and the more 
 
 1 Cf. Appendix C. 
 2 Vid. post (p. 290). 
 
 [249] 
 
important points selected for especial emphasis, it has 
 been thought best to divide the work into two general 
 parts and examine the treaty first from the one and then 
 from the other standpoint. Part I will deal with the 
 document in its purely historical aspects; in it we shall 
 attempt to show the steady trend of events and sentiments 
 that made the war and the treaty which closed it prac 
 tically inevitable; in this part will also be included an 
 account of the quite extraordinary conditions under which 
 the negotiations were completed and the document was 
 signed. In Part II, on the other hand, we shall endeavor 
 to dissect the various questions not so much with regard 
 to their historical setting, but rather in their political and 
 legal aspect. We appreciate the fact that the gradation 
 from historical investigation, pure and simple, shades off 
 almost imperceptibly into that research which is based 
 on the law and politics of the question; but arbitrary 
 as this division may at first seem, the object for which it 
 has been made and the distinction which has been drawn 
 will, it is hoped, become plainer as the discussion pro 
 gresses. 
 
 PAKT I. 
 
 "Had it not rained on the night of the 17th of June, 
 1815," writes Hugo, "the future of Europe would have 
 been changed." Had a certain train left the City of 
 Mexico on the 4th of December, 1847, the future of 
 America would have been changed. For some minor 
 reason of apparently no significance whatever, the special 
 train which was to have conveyed Mr. Nicholas P. Trist, 
 sometime Peace Commissioner of the United States, from 
 the Mexican capital to Vera Cruz on that date, was de 
 layed; and when it did depart some six days later Mr. 
 Trist, contrary to the specific instructions of his letter of 
 recall of October 6, 1847, did not accompany it for reasons 
 which we shall later investigate. In the interval follow 
 ing, negotiations were resumed and the Treaty of February 
 2, 1848, was the result. [250] 
 
In order that our conception of the treaty and its 
 setting may be deep-rooted and fundamental, a brief re 
 view of the relations between the United States and Mexico 
 as they existed before the breach in 1845 and 1846, has 
 been deemed essential. The causes which have been 
 ascribed to the war are numerous and varied. It shall 
 be our aim, however, in this part merely to give the events 
 as recorded in history; the discussion of the policy of 
 the President and his administration, and his interpre 
 tation of those events have been reserved for later con 
 sideration. 
 
 The agitation for the acquisition of California and 
 the vast stretch of territory intervening between that 
 province and Louisiana was begun as far back as 1835 V 
 In that year, Secretary of State Forsyth proposed the 
 purchase of California from Mexico but without favorable 
 response from that government. Commodore Jones of 
 the United States Navy, while cruising along that coast, 
 received the report that Great Britain had secured the 
 cession of California from Mexico, and he forthwith 
 landed a force at Monterey and declared the province 
 annexed to the United States; but ascertaining, upon later 
 investigation, that the report was without foundation, he 
 withdrew and sailed away. Congress by subsequent 
 action disavowed his act and the affair was dropped. 1 The 
 revolt of Texas from Mexico and the consequent disrup 
 tion of affairs in that country brought on a renewal of 
 the desire for the proposed acquisition. Mr. Butler, the 
 American Minister at Mexico, was instructed (August 16, 
 1835) to negotiate for a cession of all Mexican territory 
 north of the Rio Grande and 37 North Latitude; 2 but 
 this attempt also resulted in nothing. Previous to these 
 efforts on the part of the government to secure the coveted 
 prize, a number of fruitless attempts had been made on 
 
 1 House Ex. Doc. No. 166, 2nd Sess. 27th Cong. 
 
 2 House Ex. Doc. No. 42, 1st Sess. 25th Cong. 
 
 [2511 
 
the part of various private individuals to advance the 
 slaveholding interests of the South by securing practical 
 possession of the territory in question. We need merely 
 mention such attempts as that of forcible seizure in June, 
 1819, or that of colonization in 1821. 1 But all of these, 
 like the efforts of the government, were of no avail. The 
 first really vigorous attempt which we find the govern 
 ment making toward this end occurred when Mr. Slidell 
 was appointed Special Commissioner to Mexico to secure 
 the proposed change in the boundary. 2 
 
 The recognition and acquisition of Texas by the United 
 States are happenings which need not concern us here; 
 nor do the events which followed the long catalogue of 
 brilliant victories of the invading forces of the United 
 States under Generals Taylor and Scott deserve our 
 attention in this investigation. From the north and east 
 these two armies had pierced the vitals of the country 
 and were in possession of practically all important points. 
 Sparsely settled New Mexico and California fell as easily 
 won prizes to such leaders as Fremont, Kearney, and 
 Sloat. In spite of the hopelessness of the struggle, torn as 
 ^it was by constant internal disruptions, the bearing of the 
 Mexican government in its relations to the United States 
 was marked by a spirit of dignity and courage quite in 
 contrast to the attitude assumed by the northern republic 
 especially toward the later part of the struggle. 3 After 
 the capture of Vera Cruz by Scott, the President deter 
 mined to send a diplomatic representative of the govern 
 ment to accompany the army on its march to the capital 
 to be ready to negotiate the terms of a treaty at the first 
 available opportunity. 4 To this end on April 15, 1847, 
 
 1 Cf. Jay op. cit. for a more detailed account of these and other 
 similar expeditions. 
 
 2 House Ex. Doc. No. 69, pp. 33-34, 1st Sess. 30th Cong. Cf. 
 Appendix A (1), pp. 297-298. 
 
 3 Cf. Foster op. cit. p. 316. 
 
 4 Sen. Ex. Doc. No. 52, pp. 81-85, 1st Sess. 30th Cong. Cf. Appen 
 dix A (2), p. 299. 
 
 [252] 
 
he commissioned Mr. Nicholas P. Trist, Chief Clerk of 
 the Department of State, "to negotiate and conclude a 
 settlement of the existing differences and a lasting treaty 
 of peace" 1 with Mexico. Trist carried a projet of terms 
 acceptable to the administration which had been furnished 
 him by Secretary of State Buchanan. Among other things, 
 it called for the cession of the disputed strip between the 
 Nueces and the Rio Grande Rivers, of New Mexico, and 
 both Upper and Lower California, together with a guar 
 antee of a right of way across the Isthmus of Tehuantepec. 2 
 The governing body in the country at the time of his 
 arrival in fact the only federal authority then existing in 
 Mexico was "the sovereign constituent Congress" then 
 sitting in the City of Mexico a body "regularly elected 
 for the twofold purpose of, first, re-establishing (with 
 amendments) the constitution of 1824" that had been 
 annulled "by military violence and usurpation; and 
 secondly, of disposing of all questions connected with the 
 war." 3 From August 27, to September 7, 1847, during 
 an armistice declared for that purpose, Trist met similarly 
 empowered representatives of Mexico to accomplish the 
 object of his visit, but their labors were of no avail. In 
 compliance with his instructions, he demanded the 
 cession of Lower California and the other provinces as 
 named above. 4 These terms were immediately rejected by 
 the Mexican commissioners, who refused to give up Lower 
 California; in turn they submitted a counter-projet, 5 in 
 which they suggested the Nueces as a boundary, to which 
 Trist would scarcely listen. Following these mutual 
 rejections, negotiations were broken off, and hostilities 
 resumed. But already the government set up by the "con- 
 
 1 Sen. Eep. No. 261, p. 4, 2d Sess. 41st Cong. 
 
 2 Sen. Ex. Doc. No. 20, 1st Sess. 30th Cong. 
 
 3 Sen. Eep. No. 261, p. 4, 2d Sess. 41st Cong. 
 
 4 Art. IV, "Projet submitted by Mr. Trist" Sen. Ex. Doc. No. 
 20, p. 5, 1st Sess. 30th Cong. 
 
 5 This counter-projet is quoted in full in Kamsey s translation, 
 pp. 325-328. Cf. also Sen. Ex. Doc. No. 20, pp. 9-12, Is* Sess. 30th 
 Cong. 
 
 [253] 
 
10 
 
 stituent Congress" was going to pieces. "From that 
 event," says Trist, 1 referring to the declaration of the 
 armistice just alluded to, "dates the total dissolution of 
 the Mexican government. There has not been since that 
 moment any recognized authority in existence with whom 
 I could communicate." The marked similarity between 
 the condition of affairs at this stage of the war and that 
 which immediately followed the Franco-Prussian War, is 
 worthy of mention; the difficulty lay, not so much in the 
 agreement as to the terms of a settlement, as in the finding 
 of the properly constituted and stable treaty-making body 
 of the defeated country, with which negotiations might 
 be carried on. 
 
 Hearing of the failure of his efforts, the government 
 at Washington, on October 6, 1847, ordered Trist to desist 
 from further negotiations and to return "by the first 
 safe opportunity" to the United States; 2 the commanding 
 general of the American forces was thenceforth to look 
 after the interests of the country in the matter of arrang 
 ing the close of the war. Scott was instructed by Secre 
 tary of War Marcy (October 6, 1847) to "embrace the 
 proper occasion to notify the Mexican authorities of the 
 fact" of Trist s recall. "By both parties (i.e., the Puros 
 and Moderados, the war and peace party respectively) 
 the peace men were considered floored; this (i. e. Trist s 
 recall) was considered the coup de grace for them." 3 
 Thenceforth the peace party need expect no further 
 encouragement from the United States; the war would be 
 continued until the resources of Mexico were entirely 
 exhausted, until the invading armies were in possession of 
 every part of the country, when the name of Mexico would 
 vanish from the list of nations. This, in the opinion of 
 
 1 His dispatch of Sept. 27, 1847, to See y Buchanan, Sen. Eep. 
 No. 261, p. 5, 2d Sess. 41st Cong. 
 
 2 Cf. Appendix A (3), p. 301. 
 
 3 Trist s reply to Sec y Buchanan acknowledging the receipt of 
 his recall Sen. Eep. No. 261, p. 6, 2d Sess. 41st Cong. 
 
 [254] 
 
11 
 
 almost all who heard of it, would be the effect of Trist s 
 recall. 
 
 The "first safe opportunity" that presented itself, for 
 Trist s return was on December 10, 1847. A special train 
 was to have conveyed him from the capital on the 4th, 
 but it was delayed until the 10th ; had it left on the date 
 originally set, his return would have begun then, and any 
 future terms which the President might have granted would 
 have depended upon the later events of the war. 1 But the 
 short postponement of six days of the opportunity for his 
 departure resulted in the exact reversal of the whole table 
 of subsequent events. Years later Senator Sumner, in 
 the report of the committee appointed by the Senate to 
 investigate the negotiations in question, declared this 
 apparently insignificant incident to "constitute an event 
 that stands alone in history and is not likely ever to have 
 a parallel." 1 
 
 Since his arrival, Trist had been treated by Scott as an 
 unwelcome guest 3 whose presence would interfere with 
 military operations; the decided coolness of Scott s recep 
 tion and the lack of interest on the part of the latter in 
 the commissioner s coming in contact with the Mexican 
 representatives forced Trist to resort to the good offices of 
 the British Legation to accomplish his purpose. It was 
 during the interim mentioned in the previous paragraph, 
 that, through his correspondence with Mr. Edward Thorn 
 ton, Secretary of the Legation, 4 and led on to no small 
 extent by his own patriotic farsightedness, he determined 
 to "heed the spirit of his instructions without standing 
 upon the strict letter." Thus Scott by his very treatment 
 of Trist in forcing him into closer relationship with 
 Thornton, indirectly caused the strengthening of the de- 
 
 1 Cf. Appendix C, p. 309. 
 
 2 Beport of the Committee on Foreign Eelations, accompanying 
 Sen. Bill Xo. 1068, dated July 14, 1870. 
 
 3 Cf. Foster, op. cit. pp. 31G-et seq. 
 
 4 Cf. Appendix A (5), p. 302, note. 
 
 [255] 
 
12 
 
 termination of the former to disobey his recall, strike out 
 boldly upon his own responsibility, and secure a treaty 
 of peace conforming as closely as possible to his original 
 pro jet. It was upon his own decision that "the early 
 cessation of the war, or its indefinite protraction de 
 pended. * 
 
 It was indeed fortunate for both belligerents that Trist 
 made himself guilty of so " monstrous an insubordination, 
 as Von Hoist calls it. 2 This great authority finds difficulty 
 however in attributing a well-defined cause to the com 
 missioner s action; he does not know, he says, whether 
 to assign it to "vanity and naive audacity, or to a far- 
 seeing and lofty patriotism" before which the thought of 
 personal welfare was lost in the search for national well- 
 being. But there does not seem to be sufficient ground to 
 justify this question as to the sense which prompted him 
 to direct disobedience of express orders; a study of his 
 correspondence and dispatches, both private and official, 3 
 will, we think, bear out a justification for Trist s action 
 upon purely altruistic grounds. He felt that the ending 
 or protraction of the war rested in his hands. It was a 
 question of either assuming a personal risk and thus 
 accomplishing the actual purpose of his mission by secur 
 ing the peace which was desired, or of clearing himself of 
 all possible danger, and by strict obedience to what we 
 shall afterwards see was a hasty and ill-judged order upon 
 the part of the administration, allow the war to continue, 
 and the almost certain obliteration of Mexico to take place. 
 We owe it to the keenness of his insight into the outcome 
 of his action, to his entire disregard of his own security, 
 and to his firm adherence to what he adjudged to be the 
 real policy and welfare of his government; to these are 
 we indebted for the subsequent trend of events for the 
 
 1 Cf. Appendix A (4), p. 301. 
 
 2 Op. cit. Vol. Ill, p. 344. 
 
 3 These may be found quoted in full in connection with Sen. 
 Eep. No. 261, 2d Sess. 41st Cong.; also in Sen. Ex. Doc. No. 52, 
 1st Sess. 30th Cong. See also Appendix A (4 and 5), pp. 301-302. 
 
 12561 
 
13 
 
 avoidance of a line of policy the outcome of which would 
 have been a question of^the gravest doubt. "Strange and 
 unaccountable for its pertinacity" 1 as his behavior may 
 appear to some, "a circumstance most fortunate to the 
 United States" 2 as it may seem to others, none may ques 
 tion the gravity with which its outcome was fraught and 
 the vitally important question connected with it. History 
 records few events of a similar nature that had so much 
 depending upon their results few examples of such fixity 
 of purpose and adherence to principle in the face of such 
 iron-bound instructions. 
 
 The Mexican government was by this time indeed in 
 a state of collapse. It was a case of "Now or never," 
 as Trist says; 3 if the already wavering peace party were 
 not to receive immediate encouragement by his continuing 
 the negotiations, affairs might come to a close exactly con 
 trary to "the earnest wishes of both" republics. By the 
 Mexican constitution 4 the presidency if vacant was filled 
 temporarily by the presiding officer of the Supreme Court ; 
 but in September, 1847, the latter officer had died. Con 
 gress, whose duty it was to elect a successor to the position, 
 could be convened only by the proclamation of the presi 
 dent ; but by the resignation of Santa Anna there was no 
 one acting as chief executive, and affairs had thus reached 
 a dead level. From this brief sketch some idea of the 
 chaotic state of affairs may be formed; one can easily ap 
 preciate the delicate adjustment of things how the slight 
 est disturbance on the part of the war party would have 
 at once annihilated the last vestige of a Mexican Govern 
 ment and have established a condition of anarchy. It was 
 with the hope of preventing this that the leaders of the 
 Moderados (peace party) prevailed upon Pena y Peiia, 
 the able statesman then senior judge of the Supreme Court, 
 
 1 Chase, op. cit. p. 258. 
 
 2 Von Hoist, Vol. Ill, p. 344. 
 3 Cf. Appendix A (5), p. 302. 
 
 4 Cf. Hall, op. cit. II, Art. 79. 
 
 [257] 
 
14 
 
 to assume the office of provisional president, and the Con 
 gress could thus be summoned byjiis proclamation. Upon 
 its meeting, it immediately proceeded to elect a president 
 ad interim to serve until January 8, 1848, the date of the 
 regular election. In both these elections the friends of 
 peace narrowly missed defeat through a combination of 
 Santa Anna and the war party; they finally triumphed, 
 however, and at the opening of the year, an administration 
 decidedly in favor of closing the war, headed by General 
 Herrera, was installed. A report was made in the Congress 
 then meeting at Queretaro, regarding the condition of the 
 army; in it 65,000 troops were declared necessary to con 
 tinue the war with any prospect of success. The possi 
 bility of raising such a force was not to be considered for 
 a moment. The army of Mexico was in utter ruin and her 
 privateer commissions and certificates of citizenship were 
 drifting about the market without purchasers or even bid 
 ders. To the persistence of Trist and the Moderados is 
 Mexico indebted for the preservation of her national 
 state for the fact of her existence as a sovereign govern 
 ment at the close of so critical a period. A commission was 
 at once appointed by the newly installed executive to confer 
 with the American representative and negotiate for a 
 "treaty of peace, friendships, and limits." 
 
 Ever since his coming the presence of Trist was all that 
 kept the cause of peace alive; upon this was built the last 
 remnant of a government in the crumbling country. At 
 his instigation, acting as the representative of the United 
 States, and on the strength of his faithful assurances of the 
 sincerity and earnestness of his government s desire for 
 peace, "what was universally regarded as an impossibil 
 ity, n namely the building up of at least the semblance of a 
 government and the attainment of a settlement of the war, 
 was accomplished. 
 
 1 Sen. Eep. No. 261, p. 7, 2d Sess. 41st Cong. 
 L2581 
 
15 
 
 Shortly after that bolt out of the clear sky his recall by 
 the authorities at Washington he made known his line of 
 action for the immediate future. 1 He recognized the per 
 fect liberty of his government to disavow his proceedings 
 from then on, should it see fit to do so. This, in brief, was 
 his plan : With the consent of the Mexican government he 
 would continue the work of agreeing upon a treaty with the 
 commission with whom he had already been corresponding 
 for some months. It was, of course, to be distinctly under 
 stood that any terms or agreements which he might make 
 were, so far as his own government was concerned, to be 
 considered entirely invalid, and were to have no binding 
 force upon it. Though the stamp of absolute legality be 
 wanting on the result of their labors should they agree 
 upon a treaty nevertheless there was the possibility of its 
 securing the approbation of the proper authorities at Wash 
 ington. 
 
 Such in fact was the actual outcome of the difficulty, 
 and success thus crowned Trist s efforts. The Mexican 
 government on receiving official information 2 through Gen 
 eral Scott of Trist s recall, appreciated the true state of 
 affairs unlike the administration in power in the United 
 States, as we shall afterwards see and accepted these pro 
 posals after some hesitation. 3 It has been said that the 
 American envoy himself chose the place of meeting, the 
 little village of Guadaloupe Hidalgo, a suburb of the capi 
 tal, because of the veneration attached to it by the people 
 
 1 Dispatch to Sec y Buchanan, Dec. 6, 1847. House Ex. Doc. No. 
 69, 1st Sess. 30th Cong. 
 
 2 Cf. Sec y Marcy s letter of instructions to General Butler, Scott s 
 successor, Jan. 26, 1848. Sen. Ex. Doc. No. 52, p. 146, 1st Sess. 30th 
 Cong. 
 
 3 Scott had, by this time, changed his attitude toward peace (vid. 
 ante p. 255; the subsequent action of the Mexicans was largely due 
 to his encouragement, in the course of which he gave it as his con 
 fidential belief that any treaty which Mr. Trist might sign would be 
 duly ratified at Washington. Scott, Vol. II, pp. 576 et seq. 
 
 [259] 
 
16 
 
 of the country. 1 Their meetings were numerous, their con 
 ferences long ; but after six weeks of almost incessant nego 
 tiating, during which Trist, single handed, maintained the 
 principles and instructions of his commission with excep 
 tional grace and skill, 2 on the 2d of February, 1848, the 
 Treaty of Guadaloupe Hidalgo was signed the climax to 
 one of the most remarkable periods of diplomacy and policy 
 in American history. 
 
 The treaty consisted of twenty-three articles and an 
 additional and secret one extending the time for the ex 
 change of ratifications. Its provisions were very similar to 
 those contained in Trist s original projet which had been 
 rejected by the Mexican commissioners in August, 1847, in 
 accordance with Santa Anna s instructions. At the time 
 the treaty was signed the Mexican Congress was not in ses 
 sion ; a good number of the members, however, were then at 
 Queretaro, where the ratifications were subsequently ex 
 changed, and of these a large majority strongly approved of 
 the action taken, in spite of the fact that the American ne 
 gotiator had been stripped of all authority by his govern 
 ment. General Scott, immediately upon the completion of 
 Trist s labors, instead of prosecuting the war with vigor, 
 which he had a perfect right to do, and which was almost ex 
 pected of him, awaited the answer to his report of February 
 2, in which he had enclosed the treaty. 
 
 In the very midst of its discussions on various methods 
 of increasing the army and prosecuting the war, the Ameri 
 can Congress had this illegal treaty illegal so far as the 
 
 1 In his dispatch of Feb. 2, 1848, to See y Buchanan, notifying 
 him of the signing of the treaty, Trist says it was signed at the city 
 of Guadaloupe, a spot which, " agreeably to the creed of this country, 
 is the most sacred on earth." Cf. Senate Ex. Doc. No. 52, p. 102, 
 1st Sess. 30th Cong.; also Bancroft, Vol. V, p. 540. 
 
 2 The Mexican commissioners declared, in their final report, that 
 "if at any time the work of peace is consumated, it will be done by 
 negotiators adorned with the same estimable gifts which in our 
 judgment distinguished this minister (Trist)." Translated by order 
 of the Senate, Sen. Ex. Doc. No. 52, p. 345, 1st Sess. 30th Cong. 
 Cf. also Sen. Kep. No. 261, p. 5, 2d Sess. 41st Cong. 
 
 [260] 
 
17 
 
 United States was concerned dropped down upon it. Al 
 though the powers of the American envoy as such had been 
 revoked before the document had been signed, the presi 
 dent very properly regarded this as a matter resting be 
 tween Mr. Trist and his government, and on February 22, 
 1848, the treaty was therefore communicated to the Senate, 
 with the recommendation that it be ratified. 1 Then came 
 three long and anxious weeks of debate and argument, dur 
 ing which period the treaty hung in the balance. Many 
 writers on the subject convey the impression that with a 
 few unimportant amendments the document was readily 
 ratified by the Senate. Such, however, was not the case. 
 Even before it had been laid before that body for its con 
 sideration, since its arrival in Washington a short time 
 before, it had been thought of only as the entirely unauthor 
 ized product of the action of an envoy invested with no 
 official powers whatever; and thus, on account of its 
 illegal origin, how, it was asked, could the government set 
 its approving mark upon an agreement drawn up by one 
 who was totally without the proper authority to involve that 
 government in such an agreement? When the treaty was 
 laid before the Senate the same line of opposition was con 
 tinued. 2 But this was by no means the only objection ad 
 vanced; the opponents to the ratification came from all 
 sections of the country and belonged to both political 
 parties, and therefore, as might be naturally expected, were 
 moved by a number of very different motives. Some a 
 part of the Whigs, for example still were against the ac 
 quisition of any new territory whatsoever ; they argued that 
 so vast an acquisition with its "population of 150,000 
 hostile people, unwilling to be united to us and unfit to be 
 trusted with a participation in our free forms of govern 
 ment," would be a mill-stone upon the neck of the nation 
 and would inevitably drag the country down to utter 
 
 1 Cf. Appendix C, p. 311. 
 
 2 Cf. Sen. Ex. Doc. No. 52, 1st Sess. 30th Cong, for a detailed ac 
 count of the struggle for ratification. 
 
18 
 
 ruin the identical argument advanced against every exten 
 sion of our boundaries without exception from 1803 to 1898. 
 Had this branch of the opposition succeeded in its efforts 
 to strike out Article V, 1 the treaty would, without question, 
 have failed of endorsement by the majority required for 
 ratification. Then there were those who demanded more 
 territory than that given by Trist s agreement ; Mexico, they 
 said, had caused us sufficient trouble in the past to warrant 
 our making a far greater extension of our boundaries at 
 her expense ; indeed not a few advocated the absorption of 
 the whole of the conquered republic. The chief objection, 
 however, was raised against the document because of the 
 lack of proper authority back of it. Webster, for example, 
 introduced a resolution calling for the postponement of any 
 further consideration of the President s message of Feb 
 ruary 22, 1848, (the one referring the treaty to the Senate 
 for ratification), and "recommending that the president 
 nominate commissioners plenipotentiary, not fewer than 
 three, to proceed to Mexico for the purpose of negotiating 
 a treaty of peace, boundaries and indemnities due to 
 American citizens." 2 The adoption of such a resolution 
 would, of course, have meant the ignoring of Trist s docu 
 ment altogether, and would have necessitated the risk of 
 perhaps never securing the appointment of a corresponding 
 commission by the already tottering Mexican government. 3 
 And so the struggle for and against the treaty went on by 
 no means the mere passive formality of voting upon it, as 
 some authors would have us believe. It was here in the 
 Senate that its fate was to be decided, and the strenuous 
 efforts put forth by both defense and opposition shows how 
 well aware of this fact that body was. When the final vote 
 was taken, on March 16, 1848, and the ratification of the 
 treaty by the Senate was completed, the shifting of but 
 
 1 Cf. Appendix B, pp. 304-305. 
 
 2 Sen. Ex. Doc. No. 52, p. 4, 1st Sess. 30th Cong. 
 
 3 Senator Houston s resolutions of Feb. 28, 1848, as well as those 
 of various other Senators are of th&same substance as Webster s. 
 
19 
 
 three votes from one side to the other would have changed 
 the result, 1 there being 38 yeas and 14 nays. 2 
 
 Why, it might be asked, did the Senate in the face of 
 such many-sided, vigorous opposition on the part of so 
 many of its members, endorse the result of Trist s negotia 
 tions ? It was simply and solely the accomplishment of that 
 mightiest of powers in the affairs of the United States 
 public opinion; the people wanted peace, and it was the 
 unanimity of this desire that forced the Senate to accept 
 the earliest opportunity that presented itself to conclude 
 the war. This grinding of the heel of oppression upon an 
 already beaten antagonist was becoming distasteful to the 
 body of American citizens ; the war must stop ; the tide 
 of public opinion," said Calhoun, 3 "is running with irre 
 sistible force against it. " " The press on all sides through 
 out the country united for once"* in the common cause for 
 peace : an already potent popular demand for the cessa 
 tion of hostilities steadily grew in strength and volume 
 as it rolled on. Before these forces (powers, they 
 might well be called) the Senate could not, dared not stand. 
 Having been ratified by the proper treaty-making 
 authority in the United States, the document was sent to 
 the Mexican Congress for endorsement. There again it had 
 to face an opposition almost the entire substance of whose 
 argument was the lack of properly sanctioned authority 
 back of the very negotiations upon which the treaty was 
 built. It was confirmed, however, as the only resort open 
 to the country, almost dismembered as it was by internal 
 disruptions, and shattered by the irresistible blows of an ex 
 ternal foe. On the 30th of May, of the same year, the 
 necessary ratifications were exchanged at Queretaro by the 
 American government through Messrs. Sevier and Clifford, 
 and by Senor Rosa, Minister of Foreign Relations, on the 
 
 1 Webster s Works, Vol. II, pp. 266-7. 
 
 2 Sen. Ex. Doc. Xo. 52, p. 36, 1st Sess. 30th Cong. 
 8 Works Vol. IV, p. 442. 
 
 4 Webster s Works, Vol. V, p. 266. 
 
 [263] 
 
20 
 
 part of Mexico. Thus was the treaty of Guadaloupe Hi 
 dalgo entered upon the pages of history as an actuality, a 
 document demanded by the force of public opinion in the 
 northern republic, imperative to the very existence of the 
 southern state ; questionable as was the legality of its origin, 
 it wrought sweeping changes in North American geography 
 and made subsequent history far different from what it 
 would probably have been. 
 
 It might be well to insert here the strange sequel to the 
 negotiations." Such wilful disobedience on Trist s part 
 roused the executive to severe measures; there being no 
 favorable response to the letter of recall of October 6, 1847, 
 an order for his arrest and forcible return to Washington 
 was given the military authorities then in Mexico. But by 
 the time this communication arrived, the treaty had al 
 ready been signed and the object of his mission accom 
 plished ; the order was, therefore, not executed and Trist re 
 turned to the United States of his own free will, April 8, 
 1848. Here he found an embarrassing and unfortunate 
 state of affairs awaiting him. Since the date of his recall 
 his name had been stricken from the roles of the State 
 Department his pay had been stopped before his work had 
 fairly begun and he had been dismissed in disgrace from 
 the service. It was not until twenty-two years afterward 
 that the government saw fit to correct this offense against 
 the dictates of fairness and good judgment. The negotia 
 tions described above, particularly the part which Trist 
 played in them, were made the subject of a special investi 
 gation and report by the Senate Committee on Foreign 
 Kelations, of which Mr. Sumner was chairman. 1 It was 
 left for the Congress of another generation to appreciate 
 the true value to his country of the services of the unjustly 
 disgraced envoy, and to some extent, at least, to make 
 recompense for the bad policy and the lack of fair-minded 
 ness of its predecessor. On the 20th of April, 1871, an 
 
 1 Sen. Rep. No. 261, 2d Sess. 41st Cong. 
 
 [264] 
 
21 
 
 appropriation was made in favor of Mr. Trist of $14,5 60. 1 
 Thus closed what might well be called a shaded period 
 in American history. "The United States was in the 
 wrong ; all the world knows it, all honest American citizens 
 acknowledge it." 2 And yet, though it was a war forced 
 into being by the one without the substantial basis of a 
 just provocation, and accepted by the other, weak and 
 divided as it knew itself to be, with an unaccountable lack 
 of foresight and consideration of results, nevertheless it 
 must be admitted that the outcome of the struggle as 
 embodied in the treaty, was one which, sooner or later, by 
 one way or another, because of the very characteristics of 
 the two peoples and the nature of their relations, was 
 bound to come about. In other words, given a strong, 
 energetic nation, full of life and activity, place that nation 
 beside a people of different blood, possessed of no virility, 
 listless and unprogressive in the very things which their 
 environment should encourage in such a situation there 
 can be but one outcome. "It is all but impossible for a 
 feeble state, full of natural wealth which her people do not , 
 use, not to crumble under the impact of a stronger and 
 more enterprising race." : The document under discussion 
 was but the natural, the inevitable result of the situation 
 and condition of affairs. Had the Mexican war never come 
 about, and had the treaty which closed it never been drawn 
 up, if the teachings of history from its very beginnings war 
 rant the making of any prophecy whatever, we have every 
 right to believe that there would have been another treaty, 
 at another time but that its substance would have been, 
 upon all the more important points at least, practically 
 identical with this one. Then the title of this discourse 
 would not have been what it is, but a change in name and 
 other minor details would suffice to make it suit this later, 
 imaginary document. The Treaty of Guadaloupe Hidalgo 
 
 1 17 Stat. at Large, 643. 
 
 2 Bancroft, Vol. V, p. 543. 
 
 3 Bryce, op. cit. Vol. II, p. 413. 
 
 [265] 
 
22 
 
 of February 2, 1848, was a thing prescribed to history, 
 which sooner or later it must record; such might not have 
 been its name, such might not have been its date, but in the 
 
 V ultimate, its substance and effect must come into being, 
 it made no difference when or where or under what cir 
 cumstances ; there was no alternative. 
 
 PAET II. 
 
 When one mentions the Treaty of Guadaloupe Hidalgo, 
 the first thought that naturally arises is of the radical 
 change in the boundary which it effected; the common 
 conception of the treaty, indeed, is that it was the means 
 of vast territorial expansion on the part of the United 
 States. "The masses think in events, not syllogisms." 
 The single events of the acquisition of California and New 
 Mexico meaning of course the Mexican provinces of those 
 names 1 is the distinguishing feature of this document in 
 the minds of most of those who have occasion to think of 
 it. In Part I our attention has been confined to a pure 
 and simple historical narrative of the events leading up 
 to and concerning the making of the treaty: the early 
 relations between the two countries have been briefly 
 indicated ; the beginnings and steady growth of the desire 
 to acquire the coveted territory up to the fulfilment of 
 this longing by the treaty; a sketch of the negotiations 
 and of the peculiar circumstances under which the docu 
 ment was signed; an account of the opposition to it and 
 its final ratification; and lastly, a statement of the im 
 portance of the subject under discussion, of its position in 
 the history of America all these topics have been dealt 
 with, more or less in detail, thus far. It will be our en 
 deavor, in this part, to discuss, not the historical events 
 of the period in and of themselves, but rather the political 
 aspect of the question, the points of law both international 
 and municipal which must of necessity demand considera- 
 
 1 Cf. Map, Appendix D, p. 313. 
 
 F266] 
 
23 
 
 tion in any thorough investigation of this character, and 
 to inquire into the policy and plan of action which lay 
 back of the whole series of events of this period of which 
 the treaty was the climax. The policy, the politics, and the 
 law of the treaty, will, in other words, concern us in this 
 part, as contrasted with the history of it, pure and simple, 
 as given in Part I. We are aware that this distinction 
 seems quite arbitrary, that "history is past politics;" but 
 taking the mere chronicle of events as given in Part I, we 
 think the contrast which has been drawn here between it 
 and the examination of the motives, political theories, and 
 judicial opinions concerning the document, which is to 
 follow, is based upon sufficient ground to warrant its being 
 made. 
 
 The first phase of the discussion which we shall take 
 up will be that concerning the law of the treaty, based 
 largely upon the decisions of the Supreme Court. In the 
 examination of this, the legal aspect of the question, it 
 has been thought best to systematize and arrange the 
 method of procedure by dividing the field into the fol 
 lowing distinctly separate parts: First, the legality of 
 the treaty a review of its articles and a brief inquiry 
 into their nature ; second, those questions of international 
 law involved a phase of the subject which any thorough 
 consideration of the treaty cannot omit; third, the effect 
 of the document upon the extension of the boundaries of 
 the United States when viewed from a purely technical, 
 legal standpoint: fourth, the relationship of the constitu 
 tion and the acquisition of the new territory, as affected by 
 the treaty; fifth, the effect it had upon the status, the 
 government and the law of the new possessions ; and sixth, 
 and last, the true legal authority in control of California 
 and the rest of the cession. 
 
 The first aspect, then, in which we shall inquire into 
 the law of the treaty as it has been called above, is in 
 regard to the context and legality of the document itself, 
 keeping constantly in mind that the examination is to be 
 
 [2671 
 
24 
 
 one from a purely legal standpoint. It is not intended 
 at this particular point, to examine each article of the 
 document in detail, for each of the more important ones 
 will be taken up under the various topics to which they 
 belong; a short summary of some parts of the treaty has, 
 however, been deemed necessary in order that we may 
 have a good foundation upon which to build our later 
 examination of the legal characteristics of the document 
 as a whole. 
 
 There are many possible arrangements of all the dif 
 ferent articles; a very convenient one, for example, would 
 be the separation of those that were temporary in their 
 effects, from those that are permanent; but for present 
 purposes a brief review of the various parts in their order 
 has been thought essential. 1 
 
 Article I declares a "firm and universal peace" be 
 tween the two republics. Although this is "one of the 
 usual formalities" common to all treaties of peace, this 
 declaration nevertheless has its significance which some 
 not many writers have carefully pointed out. 2 This 
 treaty effected an ending to the Mexican war; by this 
 stipulation, calling for a universal peace and implying a 
 perpetual one, it is not meant that there shall never again 
 be war between the two republics; the terms used apply 
 only to the particular war terminated by this document; 
 and as far as this struggle was concerned, the peace was 
 universal and perpetual hostilities could not be renewed 
 for the same cause ; but over any future cause for a breach 
 between the two republics, this article had no control 
 whatsoever. 
 
 In Articles II, III and IV, are found purely temporary 
 provisions regarding the handing over of the parts of the 
 conquered territory to Mexico. We shall have occasion to 
 
 1 Copies of the treaty in full are available in a number of works 
 9 U. S. Statutes, 922; Kipley, Vol. II, pp. 581-585; Snow, pp. 185- 
 192; Sen. Ex. Doc. No. 47, p. 681, 2d Sess. 48th Cong. 
 
 2 E.g. Wheaton, op. cit. 3, p. 610. 
 
 [268] 
 
25 
 
 refer to Article III at a later stage of the discussion in 
 dealing with another phase of the legal side of the treaty. 
 
 In Article V we come to what, without question, has 
 been rightly regarded as the most important part of the 
 document. About this all the rest is hung this embodied 
 the object of the war, all the rest is accessory to it. There 
 is no need of an explanation; it merely defines and fixes 
 the boundary between the two countries as it is today, 
 except for the subsequent addition of the so-called Gadsden 
 Purchase in 1853. 1 
 
 Articles VI and VII are of no especial importance and 
 are self-explanatory. 2 
 
 Articles VIII and IX, particularly the latter, merit 
 considerable attention in that similar articles are found in 
 every treaty of cession which the United States has entered 
 into in its history, and a comparison is for that reason 
 essential to a good understanding of the document. 
 Article VIII is merely supplementary to the one after it 
 and is therefore considered along with it. As originally 
 drawn up by Trist Article IX provided for the incorpora 
 tion of such Mexican inhabitants as remained in the ceded 
 territory with the intention of becoming citizens, 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. 3 This proved 
 unsatisfactory to the Senate; they did not wish to have it 
 implied that the "principles of the Federal Constitution 7 
 demanded or provided for the admission of newly made 
 citizens as soon as possible ; " on the contrary, as amended 
 by that body, this article gives Congress, not the Con 
 stitution, the power to exercise its discretion in admitting 
 them, at the time which shall be judged of by it as proper. 
 As amended this part of the treaty is in substance the 
 same as the provision regarding citizenship in the cession 
 
 1 Cf. Map, Appendix D, p. 313 ; also Appendix B, pp. 304-305. 
 
 2 Cf. Appendix B, p. 305. 
 
 3 Cf. Appendix B, p. 305. 
 
 [2691 
 
26 
 
 of 1803, and in all those of subsequent date; it is in con 
 formity especially with the more modern ideas on the sub 
 ject. We shall have occasion to refer to this subject of 
 citizenship later, when dealing with the question of the 
 legal status of the territory acquired and its inhabitants. 
 When the President sent the treaty to the Senate for 
 ratification he did so with the recommendation "to strike 
 out the tenth article;" this leads naturally to an inquiry 
 into its contents, and we find it indeed quite "unaccount 
 able how it should have found a place in the treaty." 1 It 
 is, to say the least, strange that such a stipulation should 
 have appeared in the document. Trist was given no 
 instructions whatever on this point; his projet specified 
 nothing with regard to it ; 2 we have been unable to find any 
 reason for his inserting it, either in his personal or official 
 correspondence. Suffice to say, the article appeared in the 
 paper signed at Guadaloupe Hidalgo, February 2, 1848; 
 but was stricken out, along with a few other less important 
 clauses, by the President and the Senate. Had it been 
 allowed to remain it would have meant the resuscitation 
 of any number of grants of lands in the ceded territory 
 which had become mere nullities, in that it would have 
 given grantees the same period of time after the exchange 
 of ratifications to perform the conditions on which the 
 grants were made, as they had been originally entitled to. 
 It would indeed have proved to be a most fruitful source 
 for otherwise unnecessary litigation; but the courts would 
 have been compelled, on the very face of it, to disregard 
 it as a violation of one of the most sacred of American 
 privileges the right to hold property justly acquired. 
 Here would have been a case where a treaty as the 
 "supreme law of the land" would have worked a most 
 appreciable stroke of injustice. Had the Mexican govern- 
 
 1 C/ ! . Appendix A (6), p. 303. 
 
 2 Cf. Message of the President to the Senate, Feb. 23, 1848, Sen. 
 Ex. Doc. 52, 1st Sess. 30th Cong.; also his message to the House, 
 Feb. 8, 1848, Benson s Debates, Vol. XVI, p. 303. 
 
27 
 
 ment insisted upon the retention of this article, we learn 
 from the instructions to the American commissioners sent 
 to exchange ratifications that "all prospect of immediate 
 peace is ended and you may give them an absolute assur 
 ance." Fortunately this was not found necessary and the 
 treaty was ratified without this stipulation regarding land 
 grants. 
 
 Article XI need not concern us; it was merely a tem 
 porary provision and was entirely abrogated shortly after. 1 
 
 The payment of fifteen millions of dollars by the United 
 States is arranged for in Article XII. During August of 
 1846 three millions of dollars were appropriated "to enable 
 the President to conclude a treaty of peace, limits, and 
 boundaries, with the Kepublic of Mexico, to be used by him 
 in event that the said treaty when signed * * * and 
 ratified * * * shall call for the same or any part 
 thereof. 2 And so, when the present document was signed, 
 there was need of an appropriation of but twelve millions, 
 as a part of the sum called for in Article XII was already 
 in the hands of the executive. Some writers 3 looked upon 
 this placing of three millions of dollars in the hands of the 
 executive almost without restriction as a preposterous 
 offense against the democratic nature of our government 
 this "vesting the President with the powers of a despot." 
 They did not realize the necessity of an unhampered, prop 
 erly timed action on the part of one officer. The whole 
 of the operations against the late insurrection in the Philip 
 pines was conducted by the President; Congress in its 
 official capacity knew nothing whatever of the trouble. So 
 too, this entrusting the executive with three millions was 
 merely the outcome of a need enforced by the condition 
 
 1 Cf. Appendix B, p. 307. 
 
 2 Sen. Ex. Doc. No. 107, p. 5, 2d Sess. 29th Cong. 
 
 3 E.g. Jay, op. cit. pp. 183 et seq.; speech by Senator Corwin, 
 quoted in Hart s "History by Contemporaries," p. 24; also a few 
 other contemporaneous authors. 
 
 [271] 
 
of things at the time and entirely in accord with law and 
 equity. 1 
 
 All Articles from XIII to XX inclusive, excepting XIII 
 which will be discussed directly, are unimportant in this 
 discussion and will not concern us here. 2 
 
 The claims of American citizens against Mexico, which 
 were finally settled by Article XIII, had served as long 
 standing sources of trouble between the two republics. 
 Far back in Jackson s administration there was a strong 
 effort made on the part of the State Department to stir 
 up trouble over certain trivial matters of this kind; but 
 try as it might, the department could muster but eighteen 
 claims and of these, it confessed it was "not in possession 
 of positive proof." 3 From that time down to the Treaty 
 of 1848 constant reference was made to the inumerable 
 "outrages upon the property and persons of American 
 citizens," but by Article XIII of the present treaty they 
 are set aside once and for all. Regarding the right 
 of the government to do this there can be no doubt. The 
 Supreme Court as early as 1796 held that the treaty-making 
 power of the United States could control and dispose of 
 the claims of citizens in any manner it thought "necessary 
 to preserve the peace and welfare of the country." 4 
 
 The remaining parts of the treaty may be disposed of 
 with a few words. Article XXI while apparently guar 
 anteeing arbitration as a means of settling any future 
 trouble, in reality does nothing of the sort, for the provision 
 is made that there be peaceful settlement of all differences 
 unless one of the parties deems such a means of adjusting 
 the difficulty "altogether incompatible with the nature of 
 
 1 Cf. Elrnes, op. cit. 632, for a legal statement of this question; 
 Eev. Stats. 291; Bandolph, op. cit. p. 23; Wilson, op. cit. Vol. IV, 
 pp. 122-123. 
 
 2 Cf. Appendix B, pp. 307-308. 
 
 3 House Ex. Doc. No. 105, p. 26, 2d Session. 24th Cong. 
 
 4 Ware vs. Hylton, 3 Dallas, 199; cf. also Butler, op. cit. Vol. 
 II, p. 285. 
 
 12721 
 
29 
 
 the difference," 1 which leaves things practically as they 
 were before. 
 
 The rest of the treaty Articles XXII and XXIII, as 
 well as the "additional and secret article" which was later 
 stricken out by the Senate are self-explanatory and need 
 no comment. 2 
 
 We come now to the question as to the legality of the 
 treaty itself, taken as a whole. This need not concern us 
 long; indeed, were it not for the fact that at the time of 
 the discussion of the document in the Senate much of the 
 argument of the opposition was based upon the alleged 
 illegality of the agreement because of Trist s behavior 
 after being recalled, we should be tempted to forego any 
 discussion of this point. As far back as 1806 a statute 
 was passed forbidding any negotiations by anyone except 
 the duly accredited appointees of the President. 3 Polk, 
 however, very properly looked upon Trist s obedience or 
 disobedience as a matter resting solely between the latter 
 and his government. Though all of his acts after the date 
 of his recall could be avowed or not by the authorities at 
 Washington, yet "Mexico was not capable of taking such 
 exception." 4 She had full and official knowledge of the 
 American envoy s recall, and since, acting under this 
 knowledge, her representatives had negotiated a treaty 
 with him, it rested only with the United States whether 
 or not the result of Trist s procedure should stand. On 
 February 22, 1848, the President submitted the docu 
 ment to the Senate with the recommendation that it be 
 ratified. By the executive action so taken the invalidity 
 in which it had originated was cured, and it became trans 
 muted into a genuine treaty, "so far as the President s 
 sole authority was competent to impart this character to 
 
 1 Cf. Appendix B, p. 309. 
 -Ibid. pp. 308-309. 
 
 3 Cf. Hart, "Actual Government/ p. 441. 
 
 4 Folk s message of Feb. 29, 1848, Sen. Ex. Doc. No. 60, 1st 
 Sess. 30th Cong. 
 
 [273] 
 
30 
 
 it/ 1 Trist was an appointee of the President, equipped 
 by order of the latter with an outline of terms acceptable 
 to the administration; his recall came through the execu 
 tive ; in a word, being a representative of that department 
 of the government, he was responsible to it alone ; therefore 
 any breach of orders on his part was something resting only 
 between his principal and himself. For that reason, we 
 may say that by submitting the treaty to the Senate and 
 recommending its ratification, the President destroyed the 
 effects which its unauthorized origin may have had. Re 
 garding the powers of the Mexican commissioners, there 
 can be no doubt as to their authority to sign any agree 
 ment they saw fit. They derived their full powers on 
 the 30th of December, 1847, from the President ad interim 
 (General Anaya) " constitutionally elected to that office 
 by the sovereign constituent Congress." We thus have 
 the treaty upon an indisputably legal basis, binding upon 
 both parties. 
 
 We come now to the second phase of the examination 
 of the document from a legal standpoint, namely, a sum 
 mary of the general questions of international law involved 
 in an acquisition of territory such as this treaty set forth. 
 In a discussion of this kind it is of course natural to expect 
 any number of questions of international jurisprudence 
 to come up, and in fact many do arise ; but it is merely 
 those few which are especially concerned in the subject 
 before us that deserve attention. The power to acquire ter 
 ritory in general, and the exercise of that power by the 
 United States in particular; the agents through whom the 
 negotiations may be carried on; and, lastly, the question 
 whether or not the treaty should have specified for the ask 
 ing of the consent of the inhabitants of the ceded territory ; 
 these are the points to be looked over in this connection. 
 
 First, as regards the power to acquire territory, but 
 particularly the assertion of that power by the United 
 
 1 Sen. Eep. No. 261, 2d Sess. 41st Cong. 
 
 12741 
 
31 
 
 States, which is so manifest in this treaty. The right to 
 cede and acquire territory is one of the most elementary 
 privileges of a sovereign state. 1 A government not fully 
 possessed of sovereign powers has no right to extend its 
 boundaries. The acquisition of new possessions may, there 
 fore, be set down as a prerequisite to complete sovereignty, 
 and wherever that right be deficient the government in 
 question is not a sovereign state. Being in possession of 
 all essentially sovereign powers, the United States holds 
 this right of acquiring territory * over which together with 
 all the inhabitants thereon, it may extend its sovereignty. * 
 Most truthfully did Daniel Webster declare to Calhoun 
 that his government has the power "to acquire territory 
 and other property anywhere, and govern it as it pleases/ 
 The methods of such acquisition are various but only 
 one of them need concern us here. The ownership of land 
 asserted by force of arms sufficient to make such owner 
 ship a fact, is recognized as legal, 3 nor is a treaty absolutely 
 necessary. It is the custom now, however, in order that 
 there may be no doubt as to the actual sovereignty of the 
 territory involved, to embody the cession in a treaty. In 
 the case before us this embodiment took the form, not 
 of specification of the lands ceded, as was the case in the 
 Treaty of Paris in 1898, but merely of a detailed definition 
 of the boundary line. 4 The possession of the ceded province 
 is dated, not from the treaty, but from the date of the 
 completion of the conquest. "The conquest of California 
 by the * * * United States," declares the Supreme 
 Court, "is regarded as having become complete on the 
 7th of July, 1846. On that day the government of the 
 United States succeeded to the rights and authorities of 
 the government of Mexico. 5 
 
 1 Phillimore, op. cit. Vol. I, 268-270. 
 
 2 American Ins. Co. vs. Canter, 1 Peters, 511. 
 
 3 Phillimore, op. cit. Vol. I, 255. 
 
 4 Cf. Article V, Appendix B, pp. 304-305. 
 
 5 Merryman vs. Bourne, 9 Wallace, 592. 
 
 [275] 
 
32 
 
 Let us see now whence comes this power. The court 
 declares it to be * * vested by the Constitution in the United 
 States." 1 But with the Treaty of Guadaloupe Hidalgo, as 
 with all other treaties involving the acquisition of territory, 
 there was advanced the protest of its being an infringement 
 upon constitutional right. Though there have been but 
 two bases in the constitution for defending the extension 
 of the boundaries of the United States, 2 nevertheless the 
 Court, Congress, and the Nation, recognizing this as a 
 sovereign state, have declared this right to acquire terri 
 tory to be an inherent privilege and element of sovereignty. 
 
 Eegarding the authority which must be back of negotia 
 tions the dictates of international law are brief and to 
 the point. Agents who are commissioned to negotiate 
 treaties may not exceed the limits of their instructions 
 or the prescriptions of their full powers. Any agree 
 ments which they may enter into beyond their authority 
 and the whole of Trist s treaty comes under this head 
 are called sponsions and are valid only when approved 
 by the sponsor s government. 3 It is very fortunate in 
 this regard, that the treaty was not drawn up under the 
 Roman law, still prevalent among some of the nations 
 of Latin origin, by which the nation is bound by its agents 
 acts. Had the tenth article, for example, been allowed to 
 stand, as would have been the case under such a system 
 of law, the result would have indeed been disastrous. The 
 violation of this article would have inevitably come 
 about, as has been pointed out above, 4 and consequently 
 the whole instrument would have become void by one of 
 the first laws of the intercourse of nations. 5 
 
 1 U. S. Lyon et al. vs. Huckabee, 16 Wallace, 414. 
 
 2 Art. 1, 8, Cl. 11. Granting Congress the power to carry 
 on war. Art. II, 2, Cl. 2. Granting the President and Senate 
 the power to make treaties. 
 
 3 Phillimore, Vol. II, p. 74; also Wharton, 130-132. 
 
 4 Vid. ante, pp. 270-271. 
 
 G Cf. Phillimore, Vol. Ill, 35. 
 
 [276] 
 
33 
 
 It is necessary to say but a word regarding the ques 
 tion as to whether or not the consent of the inhabitants 
 should have been called for by the treaty, as is many 
 times suggested every time an acquisition of territory is 
 made. 1 From the very beginning of its policy of expan 
 sion the United States has never asked this consent, having 
 acted upon the basis that it had the right to acquire the 
 land in question if the ceding power had the right to give 
 it. The inhabitants of Louisiana were the subjects of 
 Spain, France, and the United States all in the course of 
 one month without their consent being asked. Indirectly, 
 however, the government has always consulted the wishes 
 of the population of the ceded lands so as not to force 
 the condition of citizenship upon them. Article VIII 
 provides for this in the instrument under examination, 
 and all previous and subsequent documents of the same 
 nature have a similar provision. 
 
 We have, thus, a brief review of the questions of in 
 ternational law concerned in the treaty, and we turn now 
 to an inquiry into the law in the matter of boundary 
 extension as evidenced in the document. A question of 
 this character, involving the boundaries of a nation, is, 
 as the Court has well said, "more a political than a legal 
 question." 2 in the discussion of which the pronounced will 
 of the legislature is entitled to due respect from the 
 judiciary. But even so, the legal phase of this investiga 
 tion into boundary extension is by no means a minor one; 
 in fact, in this particular case, the rulings of the court 
 have played an especially important part, and an examina 
 tion of them is essential to a thorough understanding of the 
 remaining legal questions of the treaty still to be discussed. 
 
 It is not the purpose of this particular part of the 
 investigation to tell of the wonderful stretch of land 
 acquired by the treaty, 3 of the hundreds of thousands of 
 
 1 Cf. Butler, Vol. I, p. 85, for a review of this subject. 
 - Foster et al. vs. Neilson, 2 Peters, 253, 309. 
 3 Cf. Map, Appendix D, p. 313. 
 
 [277] 
 
34 
 
 square miles of territory which, for the most part, is but 
 now beginning to show its true worth, nor of the para 
 mount position which the control of ten degrees of sea 
 coast and plenty of good harbors on the Pacific has given 
 the United States. It is only the movement of the boun 
 daries, in and of itself the legal aspect of this move 
 ment and not the extent of territory which may be affected 
 the mere question of the changing of boundaries, in other 
 words, is what concerns us here. The main point brought 
 out by an examination of the Court decisions is that the 
 boundaries of the United States are fixed solely by the 
 political branches of the government (i.e., Congress and 
 the executive) ; this they may accomplish through the 
 treaty-making power, which was the means resorted to in 
 this case, or by legislation, or by any one of several dif 
 ferent means. This, then, is the important point to remem 
 ber in this connection: the extent of the boundaries of 
 the United States and the limits of the exercise of its 
 sovereignty depend, not upon the conquest of its arms, but 
 upon the action of its political authorities. The best ex 
 pression of this element of political power is found in the 
 opinions and judgments of the judiciary and it is 
 therefore included rather under what we have taken the 
 liberty to call the law of the treaty, than under 
 the subsequent heading of the politics of the treaty. 
 For it is from the Supreme Court that we get the 
 statement that "the boundaries of the United States 
 as they existed when war was declared against Mexico were 
 not extended by the conquest; * * they remained 
 
 unchanged, and every place which was out of the limits of 
 the United States, as previously established by the political 
 authorities of the government, was still foreign." 1 Ac 
 cording to this, then, the Treaty of Guadaloupe Hidalgo, 
 being the expression of the will of these political authori- 
 
 1 Fleming et al. vs. Page, 9 Howard, 616 ; cf. also U. S. vs. Kice. 
 4 Wheaton (U.S.), 246. 
 
 [278] 
 
35 
 
 ties of the government, was the thing that legally fixed the X 
 boundary of the country. Conquest, as one of the simplest 
 laws of nations, constitutes a valid title, as has been set 
 forth above; 1 and so the territory held by conquest, as re 
 garded by all other nations, was a part of the United States 
 belonging to it "as exclusively as any territory within our 
 established boundaries, but yet it was not a part of the 
 Union, 2 for it was not within the jurisdiction of the laws 
 and usages of nations to fix the relations which should exist 
 between a sovereign state and such places as it might hold 
 by right of conquest. That was reserved for the political 
 departments of the government to determine, and they did 
 so through the treaty-making power. In the treaty under 
 discussion, the fixing of the boundaries was readily dis 
 posed of by the simple plan of designating the northern 
 boundary of Mexico. The reason for this is quite plain; 
 the United States being in possession of practically all of 
 the important points of Mexico, including the capital, chief 
 towns and strongholds, according to the law of conquest 
 as supported by the usages of nations, its title to not only 
 Upper California and New Mexico, but the whole republic, 
 was perfected; the question therefore, was, not what pro 
 vinces should be ceded by Mexico, but how much should be 
 restored by the United States. 3 The Treaty of Guadaloupe 
 Hidalgo, is, then, in a strict sense of the word, not a treaty 
 of cession; is makes no pretense at cession; it is a mere 
 treaty of peace wherein the rights of the United States as 
 secured by conquest are recognized and acknowledged by 
 Mexico. 4 The title of the United States, as said before, 
 commences and is dated from the completion of the con 
 quest, its jurisdiction is considered established from that 
 
 1 Vid. ante. p. 275. 
 
 - Fleming et al. vs. Page, 9 Howard, 603 et seq., 615. 
 
 s Cf. Magoon s Reports, p. 41. 
 
 4 Ibid., p. 277. 
 
 [279] 
 
36 
 
 time on, and into this matter the treaty did not enter. 1 In a 
 word, by way of summary, the instrument in question is, 
 strictly speaking, not one of cession of various lands to the 
 United States; it is merely one of peace a reiteration of 
 rights already secured by conquest; but the business of 
 fixing the boundaries of the republic, being reserved to the 
 political divisions of the government, was accomplished by 
 them through this document. 
 
 We come now to the fourth of the divisions or phases 
 into which the discussion of the legal aspect of the treaty 
 has been divided, namely, the question as to the force of the 
 Constitutional and Federal laws over the ceded territory, 
 in other words, the inter-relation of the treaty, the Consti 
 tution and the fundamental law of the United States, with 
 reference to the newly acquired lands. 
 
 An examination of the opinions and the various expres 
 sions of the leaders of the administration with regard to the 
 discussion as to the laws in force over the territory, is per 
 haps the best preliminary step necessary to an understand 
 ing of the question. By the conclusion of the war through 
 the treaty, the military government which had, throughout 
 the hostilities, regulated virtually all the affairs of the ter 
 ritory occupied, ceased to derive any further power from 
 that law of war which justified its existence. "But," Sec 
 retary Buchanan asks, 2 "was there for this reason no 
 government in California" after the ratification of the 
 treaty? Yes; the termination of the war left an existing 
 government de facto it is true, but demanded by the very 
 law of necessity a government which was to exist until 
 definite provision by Congress for territorial administration 
 should come about. "But above all," he declares, 3 "the 
 
 1 Cf. Leitensdorf er vs. Webb, 20 Howard 176, for a recognition by 
 the Supreme Court of this jurisdiction; it here sustains the establish 
 ment of courts of justice directly after the conquest, by the military 
 government in New Mexico. 
 
 2 Letter of Oct. 7, 1848 House Ex. Doc. No. 1, 2d Sess. 30th Cong. 
 
 3 Ibid. 
 
 [280J 
 
37 
 
 Constitution of the United States, * * * was extended 
 over California on the 30th of May, 1848, the day on which 
 our late treaty with Mexico was finally consummated." 
 This statement is to be borne in mind the ratification of 
 the treaty extended the Constitution in force over the terri 
 tory annexed ; we shall have occasion to refer to it shortly. 
 Turning to another expression of the attitude of various 
 members of the administration upon this subject, we have 
 Secretary of the Treasury Walker s circular to "collectors 
 and other officers of the customs," of the same date as the 
 above October 7, 1848. By the treaty with Mexico he 
 declares, California was annexed to the United States * and 
 the Constitution is extended over that territory and is in 
 full force throughout its limits;" another straightforward 
 declaration on the part of the administration of its stand 
 upon this question of the inter-relation of treaty and Con 
 stitution. These are but two examples chosen as typical 
 from a number of similar ones. 1 
 
 Let us stop right here and examine the radical difference 
 between the statements given above and the character of 
 all declarations of Congress, of the Court (with one excep 
 tion) 2 or of the executive upon the same question before or 
 since that time, respecting the relative position of 
 this treaty, or similar ones, and the Constitution and 
 Federal law. Upon this question the rulings of the 
 court are perfectly plain, straight to the point, and 
 directly opposed to the position taken by the adminis 
 tration with regard to the Treaty of Guadaloupe 
 Hidalgo and the territory mentioned therein. It declares 
 two propositions to be established beyond controversy: 
 (1) This country, as a sovereign nation, may acquire 
 and govern new territory; this has already been dis- 
 
 1 Others are letters of instructions from Sec y of War Marcy to 
 Col. Mason in California, also various communications of other 
 Cabinet members as well as the President. Cf. Ex. Doc. No. 1, 2d Sess. 
 30th Cong.; also Magoon s Reports, p. 102. 
 
 2 This lone exception is Mr. Chief Justice Taney s famous decis 
 ion in Dred Scott vs. Sandford, 19 Howard, 393. 
 
 [281] 
 
38 
 
 cussed 1 and will not concern us here. (2) "The government 
 of territory acquired and held by the United States be 
 longs primarily to Congress and secondarily to such 
 agencies as Congress may establish for that purpose." 2 
 "These two propositions are so elementary," the court 
 later declared, 3 "they so necessarily follow from the condi 
 tion of things arising upon the acquisition of new territory 
 that they need no argument to support them. They are self- 
 evident." It is hardly possible to distort or misread such 
 a statement as that; the meaning is perfectly clear; a mis 
 interpretation is practically impossible. Numerous other 
 cases 4 might be cited wherein the judgment is the same, 
 giving Congress or its creations the sole power over all 
 newly acquired territory. Not once does the Constitution 
 enter into consideration ; not once is the interpretation made, 
 which we find in the case of the Polk administration, that 
 any treaty confirming a cession immediately upon its ratifi 
 cation, brought the Constitution into power over the new 
 lands. 5 
 
 A word as to the arguments advanced by the adminis 
 tration in defending the theory that the treaty brought the 
 ceded territory under the Federal law. Secretary Walker, 
 in the circular mentioned above, declares by way of a proof 
 of this doctrine, that Congress * by several enactments sub 
 sequently to the ratification of the treaty, has distinctly 
 recognized California as a part of the Union;" these en 
 actments, he maintained, were but a proof of the apprecia 
 tion of Congress of the fact that the instrument under dis 
 cussion put the cession under the Constitution. True it is 
 
 1 Vid. ante., pp. 274-275. 
 
 2 Snow vs. United States, 18 Wallace, 319-320. 
 
 3 Mormon Church vs. United States, 136 U. S., 43. 
 
 *E.g. Snow vs. United States, 18 Wallace, 317, 320; Murphy vs. 
 Kamsey, 114 U. S., 15, 44; United States vs. Gratist et al., 14 Peters, 
 524, 527. 
 
 5 This is true, excepting, of course, the Dred Scott decision already 
 referred to, which may be disregarded since it has long since been 
 ignored and over-ruled by both Court and Congress. 
 
39 
 
 that the authorities in California enforced the tariff and 
 navigation laws of the United States; true, also, that the 
 Supreme Court sustained their action. 1 But this was done, 
 not because the Constitution, by virtue of the treaty, was 
 in force over the territory, as Secretary Walker and the rest 
 of the administration would have us believe, but because 
 Congress by its enactments 2 had extended the boundaries of 
 the United States over the new territory. Nor did Congress 
 itself believe with the executive department that, by act of 
 the treaty, the laws of the country extended over California 
 or any other part of the cession ; for if it did concur in such 
 an opinion, why should it enact a statute "to extend the 
 revenue laws of the United States over the territory and 
 waters of Upper California ? ; Why did the very first Con 
 gress that met see fit to take similar action by extending the 
 provisions of some previous revenue measures over Rhode 
 Island and North Carolina after those states had ratified the 
 already adopted Constitution ? 4 By way of confirmation of 
 a state of things already brought about in the latter case 
 by the ratification of the Constitution and in the former by 
 the signing of the treaty ? No ; the court as quoted above, 
 has given the reason: "The government of territory ac 
 quired and held by the United States belongs primarily to 
 Congress and secondly to such agencies as Congress may es 
 tablish for that purpose;" the Constitution is absolutely 
 without power in such matters; congressional action alone 
 is backed by the proper authority in cases of this sort. How, 
 then, could this treaty the product, it must be remem 
 bered, not of Congress, but of the treaty-making power, an 
 entirely different institution in the government how could 
 this document, in the face of what has just been said, en 
 force the Constitution and the laws of the United States 
 
 1 Cross et al. vs. Harrison, 16 Howard 164, 189-197. 
 
 2 Such as that of Aug. 12, 1848, providing for post roads 9 U. S. 
 Stats., chap. 166, p. 301 ; or that of Aug. 14, 1848, regarding civil and 
 diplomatic expenses 9 U. S. Stats., chap. 175, p. 320. 
 
 3 9 U. S. Stats., chap. 112, p. 400. 
 4 1 U. S. Stats., pp. 99, 126. 
 
 [283] 
 
40 
 
 over the new territory ? Such would indeed be a manifest 
 infringement upon the privileges and authority of Con 
 gress. 
 
 Closely associated with this question of the relation be 
 tween the Constitution and the treaty, is the one concerned 
 with the status and government of the new territory and its 
 inhabitants as influenced by the instrument under discus 
 sion ; to this, the fifth phase of the law of the treaty, we 
 now come. The investigation of this particular point may 
 best be divided under three convenient heads: first, the 
 property private, municipal, and government in the 
 ceded territory and the effect of the treaty and the cession 
 upon it ; second, the inhabitants, their allegiance and poli 
 tical rights, and the influence of the change of conditions 
 upon their status ; and lastly, the government existing in the 
 new lands at the time of the cession, and the effect of the 
 transfer of ownership, as enforced by the treaty, upon it. 
 
 First, then, as to the effects of the treaty upon the 
 status of property of all different kinds private, municipal 
 and government. "Their (i.e., the inhabitants ) right of 
 property remained undisturbed," says the court. 1 When 
 the formal transfer of the lands in question was made 
 through the treaty, that instrument did nothing to alter the 
 rights of holding property or the relations of the inhabitants 
 to one another. We have a strong proof of the maintenance 
 of these property-holding relations in the well-taken argu 
 ment advanced in Congress by those opposed to the intro 
 duction of slavery into the new territory. The pro-slavery 
 adherents attempted to give slavery a legal basis in the ces 
 sion by a construction of such acts as the Missouri Com 
 promise. This was well met by the opposition who argued 
 that, since by the laws of Mexico slavery had been pro 
 hibited in the new territory, and since, as the Supreme 
 Court says, as quoted above, "rights of property remained 
 undisturbed" in the ceded lands, therefore it would require 
 
 1 Leitendorf er vs. Webb, 20 Howard, 177. 
 
 [284] 
 
41 
 
 an act of Congress to overturn this "undisturbed" condi 
 tion of the laws of property by specifically legislating 
 slavery into the territory in question. 1 The laws regulating 
 the relations of the inhabitants to each other and to their 
 belongings were to remain unchanged, unaffected by the 
 treaty, unless Congress legislated otherwise. We have here 
 an excellent proof of the stability which the law of private 
 property maintained throughout the changing of the boun 
 daries as set forth in the treaty. 
 
 With public lands, however, the case was different; for 
 with the transfer of sovereignty over the territories came 
 the surrender by the ceding nation of every vestige of its 
 sovereignty before it withdrew. The holding of public 
 lands being an attribute of the sovereign power in the 
 country, it follows as a consequence so natural that it 
 scarcely merits attention, that these lands, along with the 
 other elements of governing authority, reverted to the new 
 ruling government. 
 
 On the other hand, with regard to the lands and prop 
 erties of the pueblos or municipalities, be it said that they 
 did not revert to the central government to be subject to re 
 distribution or even entire retention by that authority, as 
 one might be led to expect. On the contrary, we find the 
 Supreme Court of California maintaining that such was not 
 the effect of the conquest, that these municipal lands did 
 not become a part of the national domain by the cession 
 which was given formal expression in the Treaty of Guada- 
 loupe Hidalgo, but that they continued to be the public 
 property of the municipalities as before the war, unless 
 legislative measures to the contrary were passed by the 
 state. 2 The rulings of the State Court on this point 
 
 1 Cf. on this point Butler op. cit. Vol. II, p. 166. Additional sup 
 port and defense of the sacredness of the rights of private property 
 from interference or being affected by the transfer is found in Ameri 
 can Ins. Co. vs. Canter, 1 Peters, 511. 
 
 2 Hart vs. Burnett, 15, California, 530; White vs. Moses, 21 Cali 
 fornia, 34; cf. also Magoon s "Keports," pp. 383, 464-465. 
 
 [285] 
 
42 
 
 namely, that the treaty had no effect whatever upon the 
 pueblo or municipal lands was later referred to and fol 
 lowed by the United States Supreme Court. 1 
 
 Let us turn now to the consideration of the effects of the 
 document upon the political status of the inhabitants their 
 allegiance and their rights as citizens. The treaty, as has 
 been said, did not affect the laws of private property or 
 change the ownership of municipal lands; but what it did 
 do, besides to confer the public lands upon the new sover 
 eign, was to give it the right to claim, as another element 
 of its sovereignty in the ceded territory, the allegiance of 
 all who remained therein with the intention of becoming 
 citizens. 2 As regards the status of their political rights, 
 the treaty itself makes some provisions; in Article IX we 
 find that those Mexicans who, by complying with certain 
 prescribed conditions, showed their intentions to become 
 citizens of the United States, were to be " incorporated into 
 the Union and admitted" to enjoy the rights of citizens, 
 "at the proper time (to be judged of by the Congress of the 
 United States)/ 3 Save for guarantees given them in the 
 treaty the inhabitants must submit to "such conditions as 
 the new master shall impose."* As can be seen by an ex 
 amination of the stipulation from the document in question 
 which is quoted above, it is very apparent that all the 
 inhabitants by the act of cession were not forthwith en 
 dowed with citizenship ; their fitness for that position and 
 the expediency of conferring it upon them were matters 
 "to be judged of by Congress." The guarantees extended 
 by the United States in the treaty were, of course, binding 
 upon this government, as Mr. Justice Story has ably 
 pointed out ; 5 but so far as citizenship itself was concerned, 
 
 1 Merryman vs. Bourne, 9 Wallace, 592. 
 
 2 Leitensdorf er vs. Webb, 20 Howard, p. 177; on the general 
 principles of this point see Phillimore, Vol. Ill, pp. 576-596; also 
 Wharton, op. cit., Vol. I, Sects. 3-5. 
 
 3 Cf. Appendix B, p. 306. 
 
 * American Ins. Co. vs. Canter, 1 Peters, 541. 
 
 6 < Commentaries on the Constitution. Vol. II, p. 203. 
 
 [286] 
 
43 
 
 there the treaty merely held out the hope ; it left the actual 
 award to the discretion of Congress. 
 
 Before leaving this subject of the status of affairs in 
 general in the ceded territory as affected by the treaty, we 
 might include a statement of the condition of the govern 
 ment of the lands in question and look for the effects of the 
 treaty there, if there be any. At the time of the signing of 
 that document the existing government in the lands con 
 cerned was purely military; it had originated in the exer 
 cise of a belligerent right recognized by the laws and usages 
 of nations; it was the creation of the President acting, 
 through the officers in the field, as commander-in-chief . The 
 question is now, when peace was declared was that exist 
 ing government forthwith, by the signing of the treaty, 
 demolished ? Such was the opinion of President Polk, who 
 declared it merely a government whose existence was com 
 pelled "by the laws of nations and of war" and it would 
 "cease on the conclusion of a treaty of peace." 1 It being 
 the work of the President through the military authorities, 
 he might have destroyed it by withdrawing them. Congress 
 could have put an end to it, but that was not done. The 
 right inference to be drawn from the inaction of both is, 
 that it was meant to be continued until it had been legis 
 latively changed. No presumption of a contrary intention 
 can be made. 2 This government did not cease as a matter 
 of course when the territory was ceded, "or as a necessary 
 consequence of the restoration of peace. " 3 " The great law 
 of necessity," as Buchanan called it, was largely responsi 
 ble for its continuance. The President seems to have mis 
 understood the difference between government by the code 
 of war and government through military occupation, upon 
 which the court has laid considerable stress in the case cited 
 above. What the treaty under discussion did do was, not 
 
 1 House Ex. Doc. No. 70, 1st Sess. 30th Cong. For a similar as 
 sertion on this part see House Ex. Doc. No. 69, 1st Sess. 30th Cong.; 
 also House Ex. Doc. No. 1, p. 12, 2d Sess. 30th Cong. 
 
 2 Cross et al. vs. Harrison, 16 Howard, 207. 
 
 3 This is later supported and followed in Dow vs. Johnson, 100 
 U. S., 168. 
 
 [287J 
 
44 
 
 to abolish the government existing in the ceded territory at 
 the time of its signature, but merely to strengthen the title 
 of the United States to lands already secured by conquest, 
 and to make those lands no longer a seat of war. The in 
 strument did not affect the existing government, military as 
 it was, as Polk would have us believe ; on the contrary, as 
 has been already pointed out and as the court has since then 
 often affirmed, it only put an end to the condition of actual 
 war in the country, and enforced and gave final basis to the 
 title of the United States to the lands involved. 
 
 In brief, we may summarize the effects of the making 
 .of the treaty upon the property, the inhabitants and the 
 
 \ then existing government in the cession, thus: first, both 
 private and municipal property remained unaffected by the 
 transfer of sovereignty, whereas the public lands, since the 
 possession of them is an attribute of the sovereign power, 
 reverted to the new owner ; second, the allegiance of the in 
 habitants, like the government lands, became due the new 
 sovereign state, and their political rights in so far as the 
 treaty did not already determine them, were fixed according 
 to the will of the government now vested with the su 
 preme power over them ; and third, the existing government 
 was not discontinued immediately upon the making of the 
 treaty through any power of that instrument. 
 
 The sixth and last phase of the making of the treaty in 
 its legal aspect, which needs no considerable attention, is 
 that concerned with the inquiry as to what is the actual 
 power in the United States government vested with the con 
 trol of the great stretch of territory the cession of which was 
 confirmed by this instrument. What was that institution, 
 or power, or authority, within the machinery of the state, 
 which, immediately upon the signing of the treaty, took 
 charge of the new acquisition? 1 There has often been ad- 
 
 1 It was quite possible to have classified this inquiry under one of 
 the groups immediately preceding; it was, however, reserved for 
 separate discussion because it seemed, to a certain extent, to sum 
 marize the others, or rather, to cover the essential point in back of 
 the most of them. 
 
 [288] 
 
45 
 
 vanced the argument that the President and the Senate, act 
 ing through their treaty-making powers, can establish the 
 relations which are to exist between the Federal government 
 and foreign territory, the acquisition of which has been 
 formally embodied in a treaty of their making. In other 
 words, to apply this to the case at hand, the treaty-making 
 department of our government, by inserting in the Treaty 
 of Guadeloupe such stipulations as it saw fit, could regulate 
 the relation to exist between the national state and its new 
 acquisition. This theory is doing nothing more nor less 
 than vesting in the President and the upper house, powers 
 which in a monarchy belong to the king and the king s 
 council. Under all governments and throughout all times 
 it is the sovereign that determines the status or even the 
 making of additions to the land, the conditions which shall 
 be imposed upon any who are to participate in the govern 
 ment of which it is the head, or their relations to the rest of 
 the realm. In a monarchy, ideally conceived, the sovereign 
 power is vested in the king and his council; but in a re 
 public, ideally conceived, the people constitute the sover 
 eign. So too, in the case before us the President and the 
 Senate are not endowed with sovereign power, but the peo 
 ple are, and such being the case, it is they the people 
 who, through their representatives, regulate the status of 
 newly acquired territories. The Treaty of Guadaloupe 
 Hidalgo, as the expression of the will of the treaty-making 
 power of the United States, could not dictate to the sover 
 eign power in such matters as the regulation of the position 
 to be occupied in the nation by the newly acquired territory 
 and its inhabitants, or on any of the other questions sug 
 gested above, the settlement of which is reserved to the peo 
 ple, as the sovereign, through their representatives, namely. 
 Congress. Though in this particular case it did not exer 
 cise it, that department of the government has the right to 
 supersede or displace any treaty or any part of a treaty 
 by legislation. The people, as the sovereign power of the 
 United States, acting by means of Congress, by allowing the 
 
46 
 
 Treaty of Guadaloupe Hidalgo to stand as ratified on May 
 30th, 1848, gave their tacit consent thereto, and it is upon 
 this consent, and not upon the will of the treaty-making 
 power, as expressed in that instrument, that its force and 
 legality depends. 
 
 We have now come to the second subject or phase of the 
 discussion of the two into which Part II was divided, 
 namely, the politics or, perhaps more correctly, the policy 
 lying back of the treaty; thus far we have been concerned 
 only with a chronicle of the bare historical facts and with 
 the stereotyped legal aspects of the subject ; it shall be our 
 endeavor before concluding this essay to examine those sub 
 tle points of statecraft, the lines of policy, of political 
 theory underlying the making of the treaty and of which 
 that instrument was the embodiment, the outgrowth. And 
 then, before we close, in connection with this line of thought, 
 some little consideration will be given to a movement, which, 
 had it not been for the making of this instrument, would 
 at one stroke have changed the map and probably the fu 
 ture of North America. 
 
 In the entire history of the United States there are very 
 few opportunities of getting an inner light upon the 
 motives and ideas actually regulating the policy of the 
 government. But one of these few is presented in 
 the diary of President Polk. 1 Through it we can get 
 an insight into his ability, the firmness of his policy 
 and purpose, and the independent and steadfast one 
 might almost say stubborn manner in which he car 
 ried it out. Though far outshone by the more famous 
 statesmen of his time, he was by no means led by them, for, 
 even after making all proper allowances for the fact that 
 the narrative is his own personal account, nevertheless the 
 fact stands out beyond question that it was he who formed 
 and followed out the policy of the administration it was 
 he who, as a climax to one of the most important periods in 
 
 1 Cf. Appendix C, p. 309 et seq. 
 
 [290] 
 
47 
 
 American history, when it rested with him alone to change 
 the face of the continent, gave his sanction to the Treaty of 
 Guadaloupe Hidalgo and thus started it on its way to rati 
 fication. Honest and fixed in his principles, he worked for 
 what he firmly believed to be the ultimate good of the coun 
 try ; " he toiled and despoiled for the glory of the American 
 Union. 
 
 The particular element of his policy in which we are 
 concerned is his management of the annexation of Texas, by 
 a mixture of diplomacy and bloodshed, so as to secure from 
 Mexico, through the treaty before us, a stretch of territory 
 the extent of which was not contemplated even by his own 
 supporters. 
 
 Much has been said and written of the acquisition of 
 California and New Mexico as a purely pro-slavery move 
 ment. It has often been declared to be "the judgment of 
 history" 1 that this addition was made "for the purpose of 
 strengthening the institution of slavery." Von Hoist re 
 fers to the President as "der Sklavenhalter Polk" 2 and sug 
 gests that slavery extension was at the bottom of the war 
 and the treaty which closed it. Such might well have been, 
 and probably was, the incentive to almost all the support 
 which the extension of the boundaries had amongst the peo 
 ple and statesmen of the time. But such was not the incen 
 tive which moved Polk in the formation of his policy and 
 the consequent action of the administration in endorsing 
 the treaty (for it must be remembered that the President s 
 plans were the administration s plans; as was pointed out 
 before, he was led by no one in the formation of his policy). 
 The President realized, as the majority of the defenders of 
 his action in making the acquisition did not, that the en 
 vironments of California and New Mexico were most un 
 favorable for the introduction of slavery. "From the 
 nature of the climate and products in much the larger 
 
 1 Foster,op. cit., p. 321. 
 
 2 Op. cit., Vol. II, p. 272. 
 
 [2911 
 
48 
 
 portion of it, it (slavery) could never exist and in the re 
 mainder the probabilities are it would not." 1 In none of 
 his private papers or correspondence, or in his diary, do we 
 find any basis for an argument justifying the ascription of 
 Folk s action with regard to the acquisition of territory to 
 this slavery extension motive which influenced so many of 
 his supporters. It must be remembered that it was the 
 President and not his adherents, who set the stamp of legal 
 ity upon the treaty 2 and thus made possible the retention 
 of those lands already won by conquest. We must look 
 elsewhere for the cause of the action taken by the executive. 
 Underlying all the expressions of his opinion upon the 
 subject we find the one ruling motive of expansion expan 
 sion in the simplest, complete sense of the word ; he felt it 
 incumbent upon himself to advance the flag, to broaden the 
 extent of the sovereignty of the United States, to acquire 
 territory. That is the motive out of which sprang the so- 
 called Mexican policy of the administration, which found its 
 culmination in the Treaty of Guadaloupe Hidalgo. This 
 policy in brief was to support the pretentious claims of the 
 revolutionists in Texas, whose annexation was the burning 
 question at the time of his coming to office, and then on be 
 coming involved in strained relations or even war with 
 Mexico, to bring about by any means whatever justifiable 
 or otherwise the acquisition of a large part of the lands of 
 that republic. 3 And such indeed was the result. It is, 
 then, to this spirit of expansion, expansion for its own sake, 
 
 1 Message to Congress, Dec. 5, 1848 Ex. Doc. No. 1, p. 14, 2d 
 Sess. 30th Cong. 
 
 2 Via. ante., pp. 273-274. 
 
 3 It has not been deemed advisable to insert in the text the many 
 assertions of the President upon which the above argument 
 is based; a full list of them would include practically all of his 
 writings upon the war ; following are a few of them : Benton s De 
 bates/ 7 Vol. XVI, p. 215; Richardson s "Messages," Vol. IV, p. 
 587; ibid. p. 494; House Ex. Doc. No. 70, 1st Sess. 30th Cong.; House 
 Ex. Doc. No. 4, p. 22, 2d Sess. 29th Cong. All through the diary 
 there is the constant suggestion of this eagerness for expansion, cf. 
 Appendix C, entries of Sept. 4 and 7, Nov. 9, 1847, and Feb. 21, 1848, 
 pp. 309-312 inclusive. 
 
 [292] 
 
49 
 
 which was so evident as the backbone of Folk s Mexican 
 policy, and not to the sentiment for the extension of slavery 
 which moved so many to support his policy, it is to the 
 possession by the executive of that powerful love for lands, 
 more lands" that we owe the great bound taken by the 
 limits of the country as given legal voice to in the treaty 
 before us for discussion. 
 
 But, it may be asked, what prevented this expansion 
 policy being carried to an extreme ? What forbade the ex 
 tension of the boundary line so as to include not only Cali 
 fornia and New Mexico, but some of the contiguous pro 
 vinces as well, why not the whole of Mexico? Even the 
 suggestion of such an inquiry as this might bring a smile 
 to some, but we soon shall see the necessity of the serious 
 consideration of this question, for behind it lies the secret 
 the real importance of the treaty. 
 
 Some of the more recent writers have commented upon 
 the marked similarity existing between the Mexican and the 
 Spanish wars the resemblance not only in general aspects 
 but in detail as well. But in following out the comparison 
 there arises this natural question : since, by the victory at 
 Manila Bay the United States felt it incumbent upon itself 
 to retain the Philippines, how did it happen that the Rio 
 Grande was fixed as the boundary in 1848, and not the 
 Isthmus of Tehuantepec? The country was completely at 
 the mercy of the conqueror far more so than the islands 
 taken in 1898; central government it had none; further 
 more it was contiguous territory. Why was it, then, that 
 the whole of Mexico did not become a part of its more 
 powerful neighbor by a very simple change in the treaty 
 which closed the war? 
 
 Before answering this, let us go back a bit. The news 
 of the steadily increasing list of triumphs of American 
 arms, climaxed by the capture of the City of Mexico itself 
 in September, gave rise to a very natural feeling among 
 the American people, namely, the sentiment that the de- 
 
 [293] 
 
50 
 
 mands for indemnity be increased; until finally there 
 evolved from this an active agitation to incorporate all 
 of Mexico into the Union. As time went on the movement 
 grew in strength; nor were its supporters confined to any 
 particular section of the country or party. The many 
 advocates of slavery greeted it with eagerness as an oppor 
 tunity to enlarge their institution; others of the same 
 class were against it. The movement found its strongest 
 support amongst those who were indifferent or even 
 opposed to slavery. Secretary Walker, who was opposed to 
 slavery though a southerner by adoption, became the sup 
 porter of the " all-of -Mexico " movement in the cabinet. 1 
 The newspapers took up the plan with vigor ; the National 
 Era," one of the chief anti-slavery organs in the country, 
 advocated "the admission of all the individual Mexican 
 states as fast as they should apply for it. 2 The movement 
 was already beginning to take on a definite shape. Its 
 acceptance was looked upon as inevitable not only at home 
 but abroad as well. Bancroft wrote to Buchanan from 
 London that people are beginning to say that it would be 
 a blessing to the world if the United States would assume 
 the tutelage of Mexico." 3 Still it grew and grew; it was 
 already becoming formidable; 4 all that was necessary to 
 gain its object was a little time. Suddenly, from a quarter 
 where it least awaited attack, it received its coup de grace. 
 By depriving it of that essential extention of time, the mak 
 ing of the Treaty of Guadaloupe Hidalgo gave this "all- 
 of -Mexico" movement its finishing stroke, and the Rio 
 Grande, not Tehuantepec, was to be the boundary. 
 
 1 Cf. Appendix C, p. 311. 
 
 2 National Era of Aug. 3, 1847, and Feb. 3, 1848 ; cf. Bourne 
 op. tit., p. 236. 
 
 3 G. T. Curtis "Buchanan," Vol. I, p. 576. We may note here 
 that the movement was receiving support in Mexico as well the 
 Puros (war) party, by urging the injudicious continuation of the 
 war, hoped to force the United States into keeping the whole country, 
 cf. Eipley op. cit. Vol. II, p. 526. 
 
 * Von Hoist says, regarding this movement, Die Bewegung war 
 stark genug, um die ernstesten Besorgnisse zu rechtf ertigen. " Vol. 
 II, p. 274. 
 
 [294] 
 

 51 
 
 It is only by recent writers that the gravity of this 
 movement and the importance of the fact that it was 
 crushed are being realized. The arguments advanced as 
 to the agency or force to which the credit of checking and 
 destroying it are due are various. The realization that every 
 expansion meant another slavery crisis; the fact that the 
 power in Congress was in the hands of the Whigs, a 
 strictly anti-expansionist party, who had been elected over a 
 year before this and therefore did not represent public 
 opinion as it was then: these are but two of a number \ 
 of theories advanced to give basis to the failure of theij 
 movement. And yet, neither of them cover the true reason, ~ 
 which, it seems to us, is two-fold in its nature : first, the / *V ) 
 sudden appearance upon the field of the treaty, as the 
 result of Trist s disobedience of orders, and then, second, 
 (though this is in a way dependent upon the first) the 
 opposition of Polk to any such movement (for, expan 
 sionist though he was, he believed in moderation) 1 
 these two resulted in the ratification of the treaty and 
 the effectual extermination of what portended to be, 
 indeed, in all probability, what would have been one of 
 the most sweeping and lasting movements in its effects, 
 known to American, if not world history. 
 
 At the very outset of this investigation it was set down 
 as the object in view to "inquire into and point out the 
 relationship existing between this vitally important docu 
 ment and the trend of the powerful undercurrent, the 
 exact nature of which was to be determined." This 
 "powerful undercurrent" with regard to which the treaty 
 was to play such an important part was simply that on- 
 sweeping movement for the acquisition of all of Mexico 
 the movement which, had it attained its end, would have 
 
 1 Of. Appendix C, p. 311, entry for Xov. 23, 1847. We wish also to 
 note here that this essay was written before the appearance of the 
 article on "The Treaty of Guadalupe-Hidalgo, " by Mr. Jesse S. 
 Beeves in the American Historical Review, V, 309-325, January, 
 1905, in which will be found an interesting discussion of this point 
 and of the subject as a whole. 
 
 [295] 
 
52 
 
 wrought havoc with subsequent American history. This 
 movement was that one of the "evolutionary processes" 
 (which go to make up history) with which we were con 
 cerned in this work. The instrument in question as the 
 outcome of Trist s disobedience and Folk s diplomacy and 
 firmness in a policy of expansion (though it be only a 
 moderate one), acted as the direct and immediate cause 
 of the failure of this " all-of -Mexico " movement and 
 therein lies its significance, therein is seen the effect of its 
 coming upon history. That in a word, sets forth the con 
 sequence of the making of the Treaty of Guadaloupe 
 Hidalgo ; the fact that it was made at the time and under 
 the circumstances and the position it took with regard to 
 the movement then in progress ; upon these rests its position 
 in American history as a document of the most funda 
 mental importance. Extraordinary in its origin, far 
 reaching and penetrating in its effects, by virtue, not only 
 of the results which it accomplishes, but of the condition 
 of affairs which it avoided, it stands as a landmark in the 
 history of American diplomacy. 
 
 [2961 
 
53 
 
 APPENDICES. 
 
 APPENDIX A. Extracts from official correspondence with 
 regard to the negotiating of a treaty of 
 peace or settlement with Mexico, 1845- 
 1848. 
 
 APPENDIX B. Synopsis of the treaty signed at Guadaloupe 
 Hidalgo, February 2, 1848. 
 
 APPENDIX C. Extracts from the diary of President Polk. 
 
 APPENDIX D. Map of the territory involved. 
 
 APPENDIX A. 
 Extracts from official correspondence with regard to 
 
 the negotiating of a treaty of peace or settlement with 
 
 Mexico, 1845-1848. 
 
 (1) Secretary of State Buchanan to Mr. Slidell. Nov. 
 10, 1845. 
 
 (2) Secretary Buchanan to Mr. Trist, Apr. 15, 1847. 
 
 (3) Secretary Buchanan to Mr. Trist. Oct. 6, 1847. 
 
 (4) Mr. Trist to Secretary Buchanan. Nov. 27, 1847. 
 
 (5) Mr. Trist to a "confidential friend at Queretaro." 
 Dec. 4, 1847. 
 
 (6) Secretary Buchanan to the Mexican Minister of 
 Foreign Relations. Mar. 18, 1848. 
 
 (1) Secretary Buchanan to Mr. Slidell. Nov. 10, 1845. 1 
 "The question of boundary may, * * * be ad 
 justed in such a manner between the two republics as to 
 cast the burden of the debt due to American claimants 
 upon their own government, whilst it will do no injury 
 to Mexico. The fact is but too well known to the world, 
 that the Mexican government is not now in a condition 
 to satisfy these claims by the payment of money. 
 
 1 House Ex. Doc. No. 69, pp. 33-43, 1st Sess. 30th Cong. By this 
 letter Mr. Slidell was appointed to act as commissioner to Mexico 
 to ameliorate the then already strained relations between the two 
 republics. 
 
 [297] 
 
54 
 
 "Mexico would part with a remote and detached 
 province (by ceding New Mexico), the possession of which 
 can never be advantageous to her; and she would be re 
 lieved from the trouble and expense of defending its 
 inhabitants against the Indians. But the President desires 
 to deal liberally by Mexico. You are therefore authorized 
 to assume the payment of all the just claims of our citi 
 zens against Mexico; and, in addition, to pay five millions 
 of dollars, in case the Mexican government shall agree to 
 establish the boundary between the two countries from 
 the mouth of the Rio Grande, up the principal stream to 
 the point where it touches the line of New Mexico ; thence 
 west of the river, along the exterior line of that province, 
 so as to include the whole within the United States, until 
 it again intersects the river; thence up the principal 
 stream of the same to its source, and thence due north, 
 until it intersects the 42d degree of north latitude. 1 
 
 "There is another subject of vast importance to the 
 United States and will demand your particular attention. 
 From information possessed by this department it is to be 
 seriously apprehended that both Great Britain and France 
 have designs upon California. * * * Whilst this gov 
 ernment does not intend to interfere between Mexico and 
 California, it would vigorously interpose to prevent the 
 latter from becoming either a British or a French colony. 
 The government of California is now but 
 nominally dependent upon Mexico; and it is more than 
 doubtful whether her authority will ever be reinstated. 
 Under these circumstances, it is the desire of the President 
 that you shall use your best efforts to obtain a cession of 
 that province from Mexico to the United States. * * * 
 Money would be no object when compared with the value 
 of the acquisition. 
 
 1 Cf. Map, Appendix D, p. 313. 
 
 [298] 
 
55 
 
 (2) Secretary Buchanan to Mr. Trist. Apr. 15, 1847.* 
 * * * Without any certain information, however, 
 as to its disposition (i.e., that of the Mexican government 
 to conclude a treaty), the President would not feel justified 
 in appointing public commissioners for this purpose, and 
 inviting it to do the same. After so many overtures rejected 
 by Mexico, this course might not only subject the United 
 States to the indignity of another refusal, but might, in 
 the end, prove prejudicial to the cause of peace. The 
 Mexican government might thus be encouraged in the mis 
 taken opinion, which it probably already entertains, 
 respecting the motives which have actuated the President 
 in his repeated efforts to terminate the war. 
 
 "He deems it proper, notwithstanding, to send to the 
 headquarters of the army a confidential agent, fully 
 acquainted with the views of this government, and clothed 
 with full powers to conclude a treaty of peace with the 
 Mexican government, should it be so inclined. In this 
 manner he will be enabled to take advantage at the pro 
 pitious moment, of any favorable circumstances which 
 
 might dispose that government to peace. 
 
 ******* 
 
 "Whilst it is of the greatest importance to the United 
 States to extend their boundaries over Lower California, 
 as well as New Mexico and Upper California, you are not 
 to consider this as a sine qua non to the conclusion of a 
 treaty. You will, therefore, not break off negotiations if 
 New Mexico and Upper California can alone be acquired. 
 In that event, however, you will not stipulate to pay more 
 than twenty millions of dollars for these two provinces 
 without the right of passage and transit across the Isthmus 
 of Tehuantepec. 
 
 ^en. Ex. Doc. No. 52, pp. 81-85, 1st Sess. 30th Cong. Also 
 Sen. Eeport No. 261, pp. 4-6, 2d Sess. 41st Cong. Mr. Trist is by 
 this letter given the appointment of confidential peace commissioner 
 to Mexico. 
 
 [299] 
 
56 
 
 1 The extension of our boundaries over New Mexico 
 and Upper California, for a sum not to exceed twenty 
 millions of dollars is to be considered a sine qua non of any 
 treaty. You can modify, change, or omit the other terms 
 of the pro jet if needful, but not so as to interfere with this 
 ultimatum. 
 
 (3) Secretary Buchanan to Mr. Trist. Oct. 6, 1847.* 
 ******* 
 
 "On the 2d instant, there was received at this depart 
 ment from Vera Cruz, a printed document in Spanish, 
 which purports to give a history in detail of the origin, 
 progress, and unsuccessful termination of your negotiations 
 
 with the Mexican commissioners. 
 
 ******* 
 
 "Your original instructions were formed in the spirit 
 of forbearance and moderation. * * * The terms * * 
 to which you were authorized to accede, were of the most 
 liberal character, considering our just claims on Mexico, 
 and our success in the war. New Mexico, the Californias, 
 several of the northern states and most of the important 
 ports of Mexico, were then in our possession; and yet we 
 were at that time willing freely to surrender most of these 
 conquests, and even to make an ample compensation for 
 those which we retained. 
 
 "Circumstances have entirely changed since the date 
 of your original instructions. A vast amount of treasure 
 has since been expended; and, what is of infinitely more 
 value, the lives of a great number of our most valuable 
 citizens have been sacrificed in the prosecution of the 
 war. 
 
 * * * rpj^ M ex i can government have not only 
 rejected your liberal offers, but have insulted our country 
 by proposing terms the acceptance of which would degrade 
 us in the eyes of the world. They must attribute 
 
 our liberality to fear, or they must take courage from our 
 
 x House Ex. Doc. No. 69, pp. 54-56, 1st Sess. 30th Cong. This 
 letter recalled Mr. Trist and annulled his commission. 
 
 [300] 
 
57 
 
 supposed political divisions. Some such cause is necessary 
 to account for their strange infatuation. In this state of 
 affairs, the President, believing that your continued pres 
 ence with the army can be productive of no good, but may 
 do much harm by encouraging the delusive hopes and false 
 impressions of the Mexicans, has directed me to recall you 
 from your mission, and to instruct you to return to the 
 United States by the first safe opportunity. He has deter 
 mined not to make another offer to treat with the Mexican 
 government, though he will be always ready to receive and 
 consider their proposals. They must now first sue for 
 
 peace. 
 
 ******* 
 
 "Should you have concluded a treaty before this dis 
 patch shall reach you, which is not anticipated, you will 
 bring this treaty with you to the United States, for the 
 consideration of the President; but should you upon its 
 arrival be actually engaged in negotiations with Mexican 
 commissioners, these must be immediately suspended; but 
 you will inform them that the terms which they may have 
 proposed, will be promptly submitted to the President on 
 your return. You are not to delay your departure, how 
 ever, awaiting the communication of any terms from these 
 commissioners, for the purpose of bringing them to the 
 United States." 
 
 (4) Mr. Trist to Secretary Buchanan. Nov. 27, 1847. l 
 ******* 
 
 "I knew, and I felt, that upon my own decision 
 depended, according to every human probability, the early 
 cessation of the war, or its indefinite protraction. The 
 alternative presented by the position in which I found 
 myself was, on the one hand, to keep on safe ground so far 
 as I was personally concerned, and destroy the only pos 
 sible chance for peace ; on the other hand, to assume respon- 
 
 1 Sen. Ex. Doc. 52, pp. 96-99, 1st Sess. 30th Cong. Mr. Trist here 
 gives reasons for the extraordinary action which he later took. 
 
 [301J 
 
58 
 
 sibility, and keep that chance alive, with some prospect by 
 no means to be despised under such circumstances that 
 
 the adoption of our projet might come to pass. 
 
 ******* 
 
 "The only possible way in which a treaty can be made 
 is, to have the work done on the spot ; negotiation and rat 
 ification to take place at one dash. The complexion of the 
 new Congress, which is to meet at Queretaro on the 8th of 
 January (1848) is highly favorable. This will be the last 
 chance for a treaty. I would recommend, therefore, the 
 immediate appointment of a commission on our part." 
 
 (5) Mr. Trist to a "confidential friend at Queretaro." 
 Dec. 4, 1847* 
 
 "I should not now make the offer (to negotiate after 
 being recalled) but for my clear and perfect conviction on 
 these three points: First, that peace is still the desire 
 of my government: Secondly, that if the present oppor 
 tunity be not seized at once, all chance for making a 
 treaty at all will be lost for an indefinite period probably 
 forever: Thirdly, that this is the utmost point to which 
 the Mexican government can, by any possibility, venture. 
 * * * Knowing as I do, that peace is the earnest wish 
 of both (republics), is it, can it be my duty to allow this 
 last chance for peace to be lost, by my conforming to a 
 determination of that government (i.e., his own), taken 
 with reference to a supposed state of things in this country 
 entirely the reverse of that which actually exists y * * * 
 Now or never is the word; and I need not say to you that 
 this word is uttered in all sincerity. 
 
 (6) Secretary Buchanan to the Minister of Foreign 
 Relations of the Mexican Republic. Mar. 18, 1848. 2 
 
 "In recurring to the amendments adopted by the 
 
 1 House Ex. Doc. No. 69, pp. 63-65, 1st Sess. 30th Cong. Written 
 to Mr. Edward Thornton, at that time Secretary of the British 
 Legation at the City of Mexico. 
 
 1 Sen. Ex. Doc. No. 60, pp. 66-72, 1st Sess. 30th Cong. 
 
 [302] 
 
59 
 
 Senate, it affords me sincere satisfaction to observe that 
 none of the leading features of the treaty have been 
 changed. Neither the delineation of the boundaries 
 between the two republics; nor the consideration to be 
 paid to Mexico for the extension of the boundaries of 
 the United States; * * * nor indeed, any other stipu 
 lation of national importance to either of the parties, has 
 been stricken from the treaty by the Senate. 
 
 "I ought perhaps here to note a modification in the 
 ninth article, as adopted by the Senate, of the analagous 
 articles of the Louisiana and Florida treaties. 1 Under 
 this modification, the inhabitants of the ceded territories 
 are to be admitted into the Union at the proper time (to 
 be judged of by the Congress of the United States). 
 Congress, under all circumstances and under all treaties, 
 are the sole judges of this proper time ; because they, and 
 they alone, under the Federal Constitution, have power 
 to admit new states into the Union. That they will always 
 exercise this power as soon as the condition of the inhabit 
 ants of any acquired territory may render it proper can 
 not be doubted. * * * 
 
 "It is truly unaccountable how this (the tenth) 
 article should have found a place in the treaty. 2 * * * 
 If it were adopted it would be a mere nullity on the face 
 of the treaty, and the judges of our courts would be com 
 pelled to disregard it. It is our glory that no human 
 power exists in this country which can deprive one indi 
 vidual of his property, without his consent, and transfer it 
 to another. If grantees of lands in Texas, under the 
 Mexican government, possess valid titles, they can main 
 tain their claims before our courts of justice. If they have 
 forfeited their grants by not complying with the conditions 
 on which they were made, it is beyond the power of this 
 government, in any mode of action, to render these titles 
 
 1 Article III of the Treaty of 1803, and Articles V and VI of 
 the Treaty of 1819. 
 
 2 Cf. Appendix B, pp. 306-307. 
 
 [303] 
 
60 
 
 valid, either against Texas or any individual proprietor. 
 To resuscitate such grants, and to allow the grantees the 
 same period after the exchange of the ratification of this 
 treaty, to which they were originally entitled, for the pur 
 pose of performing the conditions on which these grants 
 had been made, * * * would work manifest in 
 justice. 9 
 
 APPENDIX B. 
 
 Synopsis of the Treaty of peace, friendship, limits, 
 and settlement between the United States of America and 
 the Mexican republic. Dated at Guadaloupe Hidalgo, 
 February 2, 1848. m 
 
 Article I. Declaration of "firm and universal peace" 
 between the two republics. 
 
 Article II. Provisional suspension of hostilities. 
 
 Article III and IV. Provision for the evacuation of 
 Mexican territory by the forces of the United States. 
 
 Article V. * * The boundary line between the two repub 
 lics shall commence in the Gulf of Mexico, three leagues 
 from land, opposite the mouth of the Rio Grande, other 
 wise 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 westerly, 
 along the whole southern boundary of New Mexico (which 
 runs north of the town called Paso) to its western ter 
 mination; 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 
 
 1 The more important articles are given in full ; as are also such 
 parts as were amended or stricken out by the United States Senate. 
 
 [304] 
 
such branch, and thence in a direct line to the same) ; 
 thence down the middle of the said river, until it empties 
 into the Rio Colorado ; thence across the Rio Colorado, fol 
 lowing the division line between Upper and Lower Cali 
 fornia, to the Pacific ocean. n 
 
 The rest of this article deals with minor provisions 
 regarding the boundary, including the appointment of a 
 commissioner and surveyor by each of the two govern 
 ments to "designate the boundary line with due pre 
 cision. 
 
 Articles VI and VII. Free navigation of the Gulf of 
 California and the Colorado and Gila Rivers to vessels and 
 citizens of the United States. 2 
 
 Article VIII. Citizenship of such Mexicans as were 
 in the ceded territory at the time of its transfer of owner 
 ship. Those who remained "in the said territory after 
 the expiration of one year from the date of the exchange 
 of ratification of this treaty" were considered to have 
 elected to become citizens of the United States. 
 
 Article IX. Following is the more important part of 
 this article as drawn up by Mr. Trist and the Mexican 
 commissioners at Guadaloupe Hidalgo, February 2, 1848 : 
 "The Mexicans who, in the territories aforesaid, shall not 
 preserve the character of citizens of the Mexican republic, 
 conformably with what is stipulated in the preceeding 
 article, shall be incorporated into the Union of the United 
 States, and be admitted as soon as possible, according to 
 the principles of the Federal Constitution, to the enjoy 
 ment of all the rights of citizens of the United States. In 
 the meantime, they shall be maintained and protected in 
 the enjoyment of their liberty, their property, and the 
 civil rights now vested in them according to the Mexican 
 laws. With respect to political rights, their condition shall 
 
 1 Cf. Map, Appendix D, p. 313. 
 
 2 These two articles were amended by Article IV of the Treaty 
 of 1853, which concluded the so-called Gadsden Purchase. 
 
 [305] 
 
62 
 
 be on an equality with that of the inhabitants of Louisiana 
 and the Floridas, when these provinces, by transfer from 
 the French republic and the crown of Spain, became ter 
 ritories of the United States. 
 
 The Senate, in its consideration of the treaty, struck 
 out the above paragraph and substituted the following, 
 which was the reading of the article in full as finally 
 adopted : 
 
 "The Mexicans who, in the territories aforesaid, shall 
 not preserve the character of citizens of the Mexican 
 republic, conformably with what is stipulated in the pre- 
 ceeding 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." 1 
 
 Article X. (This article was stricken out by the Senate. 
 Following is the text of its more important paragraphs) : 
 
 "All grants of land made by the Mexican government 
 * * * in territories previously appertaining to Mexico, 
 and remaining for the future within the limits of the 
 United States, shall be respected as valid, to the same 
 extent that the same grants would be valid if the said 
 territories had remained within the limits of Mexico. But 
 the grantees of land in Texas * * * who, by reason 
 of the circumstances of the country, since the beginnings 
 of the troubles between Texas and the Mexican govern 
 ment, may have been prevented from fulfilling all the 
 conditions of their grants, shall be under obligation to ful 
 fill the said conditions within the periods limited in the 
 same, respectively; such periods to be now counted from 
 
 1 This was adopted in the Senate by a vote of 42 to 4 ; Sen. Ex. 
 Doc. No. 52, p. 21, 1st Sess. 30th Cong. 
 
 [306] 
 
63 
 
 the date of the exchange of ratifications of the treaty; in 
 default of which, the said grants shall not be obligatory 
 upon the State of Texas, in virtue of the stipulations con 
 tained in this article. 
 
 "The foregoing stipulation in regard to grantees of 
 land in Texas is extended to all grantees of lands in the 
 territories aforesaid, elsewhere than in Texas, put in pos 
 session under such grants; and in the default of the ful 
 filment of the conditions of any such grant, within the new 
 period, which as above stipulated, begins with the day of 
 the exchange of ratifications of this treaty, the same shall 
 be null and void. n 
 
 Article XI. The United States to exercise strict con 
 trol over the "Indians and savage tribes" inhabiting the 
 ceded territory. One unimportant change was made in 
 this article before final ratification. 2 
 
 Article XII. The payment to be made by the United 
 States to Mexico. The original of this article contained 
 a cumbersome and somewhat lengthy description of the 
 mode of payment to be followed out. As amended by the 
 Senate and as finally adopted, that part specifying the 
 sum to be paid read thus : 
 
 "In consideration of the extension acquired by the 
 boundaries of the United States, as defined in the fifth 
 article of the present treaty, the government of the United 
 States engages to pay to that of the Mexican republic the 
 sum of fifteen millions of dollars. 
 
 Following the above comes a brief outline of the mode 
 of payment. 
 
 Article XIII. The United States to pay all claims due 
 to Mexico from the conventions of 1839 and 1843. 
 
 Articles XIV and XV. The Mexican government 
 exonerated from all just claims of American citizens; the 
 
 1 Stricken out by a vote of 44 to 11 ; Sen. Ex. Doc. No. 52, p. 18, 
 1st Sess. 30th Cong. 
 
 2 This article was abrogated by Article II of the Treaty of 1853. 
 
 [307] 
 
64 
 
 same to be paid by the United States to an amount not 
 exceeding three and one-quarter millions of dollars. 
 
 Article XVI. The right to fortify its own territory 
 guaranteed each of the contracting parties. 
 
 Article XVII. Kevival of the "treaty of amity, com 
 merce, and navigation" of 1831 for a period of eight years 
 following the ratification of the present treaty. 
 
 Articles XVIII, XIX, and XX. Arrangement of tem 
 porary duties and tariffs. 
 
 Article XXI. "If unhappily any disagreement should 
 hereafter arise between the governments of the two repub 
 lics, * * the said governments * * * do promise 
 to each other, that they will endeavor in the most sincere 
 and earnest manner, to settle the differences so arising, 
 * using for this end mutual representations and 
 pacific negotiations ; and if by these means they should not 
 be enabled to come to an agreement, a resort shall not on 
 this account be had to reprisals, aggressions, or hostilities 
 of any kind, by the one republic against the other, until 
 the government of that which deems itself aggrieved, shall 
 have maturely considered * * * whether it would 
 not be better that such difference should be settled by the 
 arbitration of commissioners appointed on each side, or 
 by that of a friendly nation ; and should such a course be 
 proposed by either party, it shall be acceded to by the 
 other, unless deemed by it altogether incompatible with 
 the nature of the difference, or the circumstances of the 
 case. 
 
 Article XXII. Rules to be observed in case of the 
 possible outbreak of war, concluding with the following 
 paragraph : 
 
 "And it is declared that neither the pretense that war 
 dissolves all treaties, nor any other whatever, shall be con 
 sidered as annulling or suspending the solemn covenant 
 contained in this article * * V 
 
 Article XXIII. Provision for the exchange of ratifica- 
 
 [308] 
 
65 
 
 tions "in four months from the date of the signature of 
 the present treaty." 
 
 In the original treaty as drawn up on February 2, 
 1848, there was appended an "additional and secret 
 article which ran thus : 
 
 "In view of the possibility that the exchange of the 
 ratifications of this treaty may, by the circumstances in 
 which the Mexican republic is placed, be delayed longer 
 than the term of four months fixed by its twenty-third 
 article for the exchange of ratifications of the same, it is 
 hereby agreed that such delay shall not in any manner, 
 affect the force and validity of this treaty, unless it should 
 exceed the term of eight months, counted from the date 
 of the signature thereof. 
 
 This article is to have the same force and virtue as if 
 inserted in the treaty to which this is an addition/ 1 
 
 APPENDIX C. 
 
 Extracts from the diary of President Polk. 2 
 "Sept. 4 (1847). If the war is still further prolonged, 
 I said I would be unwilling to pay the sum which Mr. 
 Trist had been authorized to pay, in settlement of a boun 
 dary by which it was contemplated that the United States 
 would acquire New Mexico and the Calif ornias; and that 
 if Mexico continued obstinately to refuse to treat, I was 
 decidedly in favor of insisting on more territory than the 
 provinces named. I expressed the opinion further that as 
 our expenses had been greatly enlarged by the obstinacy 
 of Mexico in refusing to negotiate, since Mr. Trist s instruc 
 tions were prepared in April last, if a treaty had not been 
 
 1 This additional article was stricken out by the Senate by 
 a vote of 48 to 2 and the treaty therefore received its final ratifica 
 tion without it. Sen. Ex. Doc. No. 52, p. 14, 1st Sess. 30th Cong. 
 
 2 There is a type-written transcript of this unpublished docu 
 ment in the Lenox Library, New York, prepared by George Bancroft. 
 These extracts have been collected from Bourne, op. cit. pp. 230-241; 
 Schouler "Historical Briefs," pp. 121-124; Hart "History told by 
 Contemporaries," Vol. IV, pp. 32-34. 
 
 [309] 
 
66 
 
 made when we next heard from Mexico, that his instruc 
 tions should be modified." The President writes that he 
 had Trist recalled "because his remaining longer with the 
 army could not probably accomplish the objects of his mis 
 sion, and because his remaining longer might and probably 
 would impress the Mexican government with the belief that 
 the United States were so anxious for peace that they 
 would ultimately conclude one on Mexico s terms. Mexico 
 must now sue for peace, and when she does we will hear 
 her propositions. 
 
 "Sept. 7 (1847). The distinct question submitted (to 
 the Cabinet) was whether the amount which Mr. Trist had 
 been authorized to pay for the cession of New Mexico and 
 the Californias, and the right of passage through the 
 Isthmus of Tehuantepec should not be reduced, and whether 
 we should not now demand more territory than we now 
 did. All seemed to agree that the maximum sum to be paid 
 for the cession above described should be reduced. Mr. 
 Buchanan suggested that this sum be reduced from 30 to 
 15 millions. * * * He suggested also that the line 
 should run on the parallel of 30 or 31 30 of North 
 Latitude from the Rio Grande to the Gulf of California, 
 instead of on the parallel of 32 which Mr. Trist had been 
 authorized to accept. * * * I expressed myself as 
 being entirely agreed to reduce the sum to be paid from 
 30 to 15 millions and to modify the line as suggested by 
 Mr. Buchanan. 
 
 "Nov. 9 (1847). My views were in substance that we 
 would continue the prosecution of the war with an in 
 creasing force, hold all the country we had conquered, or 
 might conquer, and levy contributions upon the enemy to 
 support the war, until a just peace was obtained; that we 
 must have indemnity in territory, and that, as a partial 
 indemnity, the Californias and New Mexico should under 
 no circumstances be restored to Mexico, but that they 
 should henceforward be considered a part of the United 
 States and permanent territorial governments be estab- 
 
 [310J 
 
67 
 
 lished over them; and that if Mexico protracted the war 
 additional territory must be acquired as further indemnity. 
 * * * I am fixed in my course, and I think that all the 
 cabinet except Mr. Buchanan still concur with me, and he 
 may do so yet. 
 
 "Nov. 23 (1847). Mr. Walker (Secretary of the 
 Treasury) was for taking the whole of Mexico, if neces 
 sary, and he thought the construction placed upon Mr. 
 Buchanan s draft 1 by a large majority of the people would 
 be that it looked to that object. I replied that I was not 
 prepared to go to that extent, and furthermore that I did 
 not desire that anything I said in the message should be 
 so obscure as to give rise to doubt or discussion as to what 
 my true meaning was; that I had in my last message 
 declared that I did not contemplate the conquest of 
 Mexico. 
 
 "Jan. 4, .( 1848). This information (i.e. that Trist had 
 renewed negotiations in spite of his recall) is most surpris 
 ing. Mr. Trist has acknowledged the receipt of his letter 
 of recall; he possesses no diplomatic powers. He is acting 
 no doubt upon General Scott s advice. He has become the 
 perfect tool of Scott. He is in this measure defying the 
 authority of his government. * * * He may, I fear, 
 greatly embarrass the government. 
 
 "Feb. 21, (1848). I decided that under all circum 
 stances I would submit it (the treaty) to the Senate for 
 ratification, with a recommendation to strike out the tenth 
 article. I assigned my reasons (to the Cabinet) for this de 
 cision. They were, briefly, that the treaty conformed on the 
 main question of limits and boundaries to the instructions 
 given Mr. Trist in April last, and that though, if the 
 treaty was now to be made, I should demand more, per 
 haps, to make the Sierra Madre the line, yet it was doubt- 
 
 1 This refers to a paragraph drawn up by Mr. Buchanan for the 
 annual message, saying that, in event of the occupation of the whole 
 of Mexico by the United States forces, "we must fulfill that destiny 
 which Providence may have in store for both countries. 
 
 [311] 
 
68 
 
 ful, whether this could ever be obtained by the consent of 
 Mexico. I looked to the consequences of its (the treaty s) 
 rejection. A majority of one branch of Congress is opposed 
 to my administration; they have falsely charged that the 
 war was brought on and is continued by me, with a view to 
 the conquest of Mexico, and if I were now to reject a treaty 
 made upon my own terms as authorized in April last, with 
 the unanimous approbation of the Cabinet, the probability 
 is, that Congress would not grant either men or money to 
 prosecute the war. Should this be the result, the army now 
 in Mexico would be constantly wasting and diminishing in 
 numbers, and I might at last be compelled to withdraw 
 them, and then lose the two provinces of New Mexico and 
 Upper California which were ceded to us by this treaty. 
 Should the opponents of my administration succeed in 
 carrying the next presidential election, the great proba 
 bility is that the country would lose all the advantages 
 secured by this treaty. I adverted to the immense value of 
 Upper California, and concluded by saying that if I were 
 now to reject my own terms as offered in April last, I did 
 not see how it was possible for my administration to be 
 sustained. 
 
 "Feb. 29, (1848). From what I learn, about a dozen 
 Democrats will oppose it (the treaty), most of them be 
 cause they wish to acquire more territory than the line of 
 the Rio Grande and the provinces of New Mexico and 
 Upper California will secure. * * *." 
 
 [312] 
 
[313] 
 
71 
 
 SOURCES CITED AND USED IN THE PREPARA 
 TION OF THIS ESSAY. 
 
 PEIMAEY. 1 
 Benton, Thos. H. 
 
 11 Abridgment of the Debates of Congress, 1789-1856." 17 
 
 vols., 1861. 
 Elmes, Webster. 
 
 11 Executive Departments of the United States at Washington." 
 
 1 vol., 1880. 
 Hall, Frederick. 
 
 "The Laws of Mexico a Compilation and Treatise." 3 
 
 vol., 1885. 
 Hart, Albert Bushnell, editor. 
 
 "American History Told by Contemporaries." 4 vols., 1897-1901. 
 Eeports, Supreme Court, of the United States. 
 Eevised Statutes of the United States. 1 vol., 2d ed., 1878. 
 Eichardson, James Daniel, editor. 
 
 "A Compilation of the Messages and Papers of the Presidents, 
 
 1789-1899." 
 
 Senate and House Executive Documents, Journals and Eecords. 2 
 Statutes at Large of the United States. Vols. 1-30, 1789-1899. 
 Treaties and Conventions of the United States. 1 vol., 1889. 
 Wharton, Francis. 
 
 "A Digest of the International Law of the United States, taken 
 from Documents . . . and Decisions." 3 vols., 2d 
 ed., 1887. 
 
 SECONDAEY. 
 
 Bancroft, Hubert Howe. 
 
 "History of Mexico." 6 vols., 1885. 
 
 1 Though rts proper place is in this list of primary sources the 
 diary of President Polk has not been entered here as it has not 
 been published as a separate and complete volume. Cf. Appendix C. 
 
 2 Those cited are mainly from the 1st and 2d Sessions, 30th Con 
 gress; specific reference will, however, be given as each document is 
 noted. 
 
 1 315] 
 
72 
 
 Bikle, Henry Wolfe. 
 
 An Essay on the Constitutional Power of Congress over the 
 Territory of the United States." 1 vol., 1901. 
 
 Bourne, Edward G. 
 
 "Essays in Historical Criticism." 1 vol., 1901. 
 
 Bryce, James. 
 
 "The American Commonwealth." 2 vols., 3d ed., rev., 1895. 
 
 Butler, Charles Henry. 
 
 The Treaty-making Power of the United States. 2 vols., 1902. 
 
 Chase, Lucien B. 
 
 A History of the Polk Administration. 1 vol., 1850. 
 
 Cutts, James Madison. 
 
 "The Conquest of California and New Mexico in the years 1846- 
 1847." 1 vol., 1847. 
 
 Foster, John W. 
 
 "A Century of American Diplomacy, 1776-1876." 1 vol., 1902. 
 
 Furber, G. C. 
 
 "The Mexican War." 1 vol., 1848. 
 
 Hart, Albert Bushnell. 
 
 "Actual Government as Applied under American Conditions." 
 
 1 vol., 2d ed., rev., 1904. 
 
 "Foundations of American Foreign Policy." 1 vol., 1901. 
 Hittell, Theodore H. 
 
 "History of California." 4 vols., 1885. 
 Hoist, Hermann Eduard von. 
 
 The Constitutional and Political History of the United States. 
 
 Lalor s and Mason s Translation. 1 8 vols., 1881. 
 Jay, William. 
 
 "A Review of the Causes and Consequences of the Mexican 
 
 War." 1 vol., 2d ed., 1849. 
 Jenkins, John S. 
 
 "History of the War Between the United States and Mexico." 
 
 1 vol., 1859. 
 Ladd, H. O. 
 
 History of the War with Mexico. 1 vol. 
 Livermore, Abiel Abbott. 
 
 "The War with Mexico Reviewed." 1 vol., 1850. 
 
 1 On important points the original work has been consulted, 
 "Verfassung und Demokratie der Vereinigten Staaten von 
 Amerika." 4 vols., 1873, 1878, 1881, and 1884. 
 
 [316] 
 
73 
 
 Magoon, Charles E. 
 
 Eeports on the Law of Civil Government under Military Occupa 
 tion by the Forces of the United States. " 1 vol., 1902. 
 Mansfield, Edward D. 
 
 < < The Mexican War. I vol. 1848. 
 Phillimore, Sir Eobert. 
 
 "Commentaries on International Law." 4 vols., 3d ed., 1879. 
 Bamsey, Albert C., translator. 
 
 "History of the War between Mexico and the United States." 
 
 1 vol., 1850. 
 Eandolph, Carman F. 
 
 The Law and Policy of Annexation. 1 vol., 1901. 
 Eeid, Whitelaw. 
 
 "Problems of Expansion." 1 vol., 1900. 
 Eipley, E. S. 
 
 "The War with Mexico." 2 vols., 1849. 
 Schouler, James. 
 
 "A History of the United States of America under the Con 
 stitution." 6 vols., rev. ed., 1899. 
 
 "Historical Briefs." 1 vol., 1896. 
 Scott, Lieut. General Winfield. 
 
 "Memoirs." 2 vols., 1864. 
 Snow, Freeman. 
 
 "Treaties and Topics in American Diplomacy." 1 vol., 1894. 
 Wheaton, Henry. 
 
 "Elements of International Law." W. B. Lawrence, editor. 
 
 1 vol., 1855. 
 Wilson, Woodrow. 
 
 "A History of the American People." 5 vols., 1902. 
 Wright, General M. J. 
 
 2 Submitted by Mr. Magoon as law officer of the Division of In 
 sular Affairs to Secretary of War Eoot, and published by order of 
 the latter. They may therefore be regarded as official documents. 
 
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