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every description, the construction must be made upon the whole instrument, and not merely upon disjointed parts of it, and that therefore every part of it must, if possible, be made to take effect; or, in other words, that one part of it must be so construed by another that the whole may if possible stand.
It follows that if Texas can be admitted into the Union as a new State without its being admitted into the Union for that purpose, Congress may, by its sole authority, thus admit it; but that if a treaty is necessary, this can be effected only by the treaty-making power, which is not vested in Congress. Otherwise the provision which gives that power exclusively to the President, with the consent of two-thirds of the Senators present, would be nullified, and that power be transferred to Congress in violation of the express provision of the Constitution.
By the treaty and conventions for the acquisition of Louisiana it was provided that the United States should pay fifteen millions of dollars, and that the inhabitants of the ceded territory should be incorporated into the Union of the United States and admitted as soon as possible, according to the principles of the Federal Constitution, to the enjoyment of all the rights, advantages, and immunities of citizens of the United States; which last provision implied their admission into the Union as a new State or new States. Neither of these conditions could be carried into effect without the co-operation of Congress. That body appropriated and provided the funds required, and by several special laws has already erected a part of the ceded territory into three States. Thus the several provisions of the Constitution were made to stand and harmonize, and each to take effect.
In the same manner Congress may, by an analogous process, now resolve that Texas, whenever acquired in conformity with the Constitution, shall be admitted into the Union as a State or States. But territory can be acquired only by treaty or conquest. As this last mode is in this case out of the question, it is unnecessary to discuss in what cases conquest or occupation may, without the sanction of a treaty, confer a legitimate right. On this occasion, the mutual assent of at least two partiesTexas and the United States—is absolutely necessary. Call it agreement, compact, or by any other name, it is only by a treaty that the annexation of Texas can be effected. Every proposition heretofore offered for that purpose makes the assent of Texas, or, in other words, a compact or treaty with that republic, an indispensable condition.
Mr. Benton's proposition authorizes the negotiation of a treaty founded on the principle of the admission of Texas as a State, and would seem altogether unexceptionable so far as relates to the constitutional question, provided the treaty was made and ratified in the manner provided by the Constitution. But the proposed resolution leaves it optional with the President of the United States to submit the treaty for confirmation either to Congress or to the Senate. There is no option in the case. Congress has the right to say that if Texas be annexed, it shall be as a State; but it cannot dispense with the provisions of the Constitution and authorize the President to make the treaty otherwise than by and with the consent of two-thirds of the Senate. To substitute Congress for two-thirds of the Senators present cannot be effectual otherwise than by an amendment to the Constitution.
This attempt is unwarranted by any precedent. In the year 1796 the House of Representatives contended that wherever the stipulations of a treaty required the co-operation of Congress, the House had a right to grant or to refuse its assent; but it disclaimed any right to make treaties. The resolution of the House, proposed and sustained by Mr. Madison, and adopted by the unanimous vote of the Republican party (57 to 35), is as follows:
“Resolved, That it being declared by the Second Section of the Second Article of the Constitution, “That the President shall have power, by and with the advice and consent of the Senate, to make treaties, provided two-thirds of the Senators present concur,' the House of Representatives does not claim any agency in making treaties; but that when a treaty stipulates regulations on any of the subjects submitted by the Constitution to the power of Congress, it must depend for its execution, as to such stipulations, on a law or laws to be passed by Congress; and it is the constitutional right and duty of the House of Repre
hentatives in all such cases to deliberate on the expediency or inexpediency of carrying such treaty into effect, and to determine and act thereon as in their judgment may be most conducive to the public good.”
The President may alone negotiate; he cannot make a treaty. A treaty cannot be made without the consent of two-thirds of the Senators present. An attempt to substitute for that express provision of the Constitution the approbation of Congress, would give to the House of Representatives a direct agency in making treaties. Any law to that effect would be a nullity; it might be repealed at any time by another law,- for no law which is not in the nature of a contract, which the legislative body has a right to make, is binding on subsequent Congresses. In this instance the faith of the United States would not be pledged to Texas, because the compact or treaty was not made by the competent constitutional authority.
There are other weighty objections against the annexation of Texas; but if this has become unavoidable, let at least the Constitution be respected. It is impossible to foresee the baneful consequences which may attend the violation of one of its most important conservative provisions. It has a tendency to promote anarchy, and threatens the permanence of the Union. It would certainly be a most fatal precedent. There is no compact or treaty of peace, commerce, alliance, or for any other purpose whatever, and with any foreign nation whatever, that may not on the same ground be made by the sole authority of Congress, without regard to the constitutional guarantee, which, by requiring the consent of two-thirds of the Senate, protects the States and the people against the abuse of the treaty-making power.
GALLATIN TO COMMODORE CHARLES STEWART.
NEW YORK, 16th October, 1845. Sir, I return my thanks for your civility in communicating your intended publication, and beg leave to make the following observations:
I have not the slightest recollection of having ever assisted at any Cabinet council where the propriety of laying up the public ships during the war was discussed, or of having proposed that measure, or of its having been entertained by the Administration, or of you and Commodore Bainbridge remonstrating against it and addressing a letter to the President on the subject. If, in point of fact, I was party or privy to any such transactions, all I can say is that my memory has failed me much more than I am aware of. I pray you nevertheless to make no alteration in those parts of your publication where my name is mentioned. I wish all the facts within your own knowledge, whether they affect me or not, to be faithfully stated.
I mentioned to you this morning that you were mistaken in supposing that Congress had adjourned during the session, which continued without interruption from the 4th November, 1811, to the 6th July, 1812. I think that you express yourself too strongly (page 3) in saying that the determination of Mr. Madison and his Cabinet was an incontrovertible fact, and also (page 16) when you say that Commodore Rodgers certainly sailed on 21st June without orders. His letter, in which he acknowledges the receipt of orders dated 18th of June, is dated September 1, 1812, and Captain Porter's letter, in which he says, In
pursuance of your orders of 24th of June, I sailed from Sandy Hook on 3d July,” is dated September 7.
I have the honor to be, &c.
GALLATIN TO EDWARD COLES.
NEW YORK, November 24, 1845. MY DEAR SIR, -A severe cold prevented an immediate answer to your letter of the 12th on the subject of Commodore Stewart's publication. He communicated his statement to me before he sent it to the publisher. I had two conversations with him on the subject, and addressed to him, on the 16th October, a short letter, a copy of which is enclosed. This, so far as I am concerned, appeared to me sufficient, and I had not intended to
say anything more on that particular point. Your appeal to me in reference to Mr. Madison compels me to be more explicit.
I repeat what I wrote to Commodore Stewart, viz., that "I have not the slightest recollection of having ever assisted at any Cabinet council where the propriety of laying up the public vessels during the war was discussed, or of having proposed that measure, or of its having been entertained by the Administration, or of Commodores Bainbridge and Stewart having remonstrated against it and addressed a letter to the President on the subject. If, in point of fact, I was privy or party to any such transactions, all I can say is that my memory has failed me much more than I am aware of.”
I may have forgotten casual suggestions and conversations, but that I should not recollect such an important fact as a solemn decision by the Administration, twice ratified in Cabinet council, to lay up the navy during the war, appears to be incredible; the more so because it had been quite unusual to submit to the Cabinet the manner in which the land or naval forces authorized by Congress, and for which appropriations had been made, should be employed. This was arranged by the head of the Department, under the control of the President as commander-in-chief. On no occasion was I ever consulted, in or out of Cabinet, on those subjects prior to the year 1812. And I have a lively recollection of the two occasions on which the President called us together in that year to deliberate on measures of that character. First, in March or April, on the propriety of sending a force to occupy the then insulated post of Detroit and vicinity, which was approved of under the expectation of the impending war. But the amount of the force, the mode of execution, and all the details were left entirely to the discretion of the War Department. Secondly, in August following, immediately after receiving the news of General Hull's disaster, when the subjects for discussion were the propriety of immediately creating a naval force on the Lakes, and whether any attempt should be made, before this was effected, to recover Detroit and the lost territory.
You must be sensible that my evidence is nevertheless only negative; and on that account I will mention the circumstances