The Congressional Globe, Volume 14: Twenty-Eighth Congress, Second Session Page: 405
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Jan. 1845.
APPENDIX TO THE CONGRESSIONAL GLOBE.
405
28th Cose 2d Sess.
Annexation of Texas—Mr. Collamer.
H. of Reps.
acquiring any of the territory of a foreign nation can
alone he lound m the treaty-making power. If
anything can he drawn in precedent from the acqui-
sition of ilie territory of Louisiana or Florida, ifc
confirms thi* view. But we are not left to mere
speculation on our individual conjectures, nor on
cases ot supposed executive usurpation. Nor do
those cases rest alone on acquiescence for authority.
In the case of the American Insurance Company
against Canter, reported in the 1st of Petefs's
Report, Chief Justice Marshall, delivering the
opinion of the Supreme Court, decides "the
constitution giving power to make war and
make treaty, enables us to acquire territory by con-
quest or treaty." In that same case it was also
holden that when once the territory is obtained by
treaty, then the power of legislation by Congress
extends over it; and it seems as clearly to me that
until then it could not.
If, then, we respect and regard this judicial expo-
sition ot constitutional power, it settles conclusively
the present question, it decides these points: 1st.
That obtaining of foreign territory, except by war
and conquest, is in the treaty-making power. 2d.
That the obtaining of territory, and the making that
into a State, or in any way exercising power of le-
gislation over it, are two distinct and independent
powers, and not the incidents of each other. 3d.
That the territory must be obtained before the legis-
lative posver of Congress can be exercised over it.
4th. That obtaining territory by legislation is a usur-
pation of the treaty-making power.
Legislation implies jurisdiction; that is, laws can
be made by no nation but to operate "withm its own
territories, and on those who owe allegiance and
obedience.
''Allegiance (says the Supreme Court) is transfer-
red with the transfer of territory," by treaty. The
idea of legislating for territory not then within our
jurisdiction, involves a political paradox. It con-
founds the first principles of civil government. To
transfer allegiance and jurisdiction peaceably, re-
quires the consent and compact of two nations; and
that is a treaty. This measure is all an ill-disguised
attempt to take an appeal from the treaty-making
power It is an attempt to exercise a jurisdiction
before it is obtained. We should remember the old
recipe for cooking a lobster. "First, catch a lob-
ster.'1 So much for the proposition to admit Texas
as a territory to this government.
Let u* now examine the project to admit it as a
State. This seems to me subject to all the same ob-
jections, and many in addition. Admitting it as a
State, clearly is a taking it into our territory, as I
have befoie defined that term, whether we leave
Texas her public lands or not. It is taking it into
our jurisdiction, and so making it part of our terri-
tory, as much as Virginia is. Now, because Con-
gress has power to admit new States, yet they must
not from that deduce the contingent or incident
power to acquire the territory from abroad, to make
them, when that power of acquisition is, as before
shown, substantially granted to the treaty-making
power. It cannot be disguised that this attempt to
annex Texas as a State, by its consent, is a com-
pact, requiring the agreement of two nations, and,
when completed, not subject to repeal by one party,
or by Congress, and therefore it is a usurpation by
Congress of the treaty-making power.
The constitution, art. 4, sec. 3, says:
"New grates may he admitted by the Congress into this
Union, but no new State shall be formed or erected withm
the jurisdiction of any other State, nor any State be formed
by ihu junction oi two or more States, or parts ot States,
Vithout tilt; consent of the legislatures of the States con-
cerned."
This, it is insisted, grants to Congress power to
admit foreign States, because the power is granted
m such unlimited terms.
What was the intent of the convention, as ex-
pressed in this, grant of power? That must be as-
certained by the words used, read with reference to
the state of circumstances and subject-matter then
existing, and comparing the same with other pro-
visions m the same instrument.
It is to be observed that the States to be admitted
were new States. Now if the power intended to be
conveyed was to admit foreign countries, as is now
insisted, the more appropriate word would have
been other States or countries.
It is next observable that the new States to be ad-
mitted were evidently such as were to be formed or
erected by the authority of Congress; for it is provided
that no new State shall be formed or erected within
the jurisdiction of another, &c.; and therefore I con-
clude the new States mentioned were States to be
new formed within their jurisdiction.
The state of circumstances to which I allude was
this. The country then within the territorial limits
of the nation was composed of the thirteen States,
with known, definite limits. Beyond the limits of
those several States, but belonging to the nation,
was a large tract of territory west of the Ohio, to
which the several States had ceded all their right,
and which, by the terms of the cessions, the nation
was bound to erect into new States when inhabited;
and besides that was more territory, which had
never been claimed by any of the several States, but
which was, together with the States, ceded to this
country by the treaty of 1783, from England. Over-
all this country, without the limits of the several
States, the constitution gave the control to Congress.
It was expected the same would become inhabited,
and new States would be wanted therein, and possi-
bly other States might be wanted within the exist-
ing States, as some—Kentucky, and Vermont, and
Frankland—had been then applied for. In view of
these circumstances this article was formed, and
should now be read and construed. It is obvious
there was then in the country subject-matter re-
quiring both the provisions of this section, ajid to
which both apply; and so, having an existing sub-
ject-matter and natural application to which it then
reasonably referred within the country and within
its jurisdiction, it seems to me unreasonable now to
refer either clause to a new subject-matter, and to
say the first clause was intended to give, and did
give to Congress the power to admit to our Union
countries never within our jurisdiction.
The constitution was formed for the United States,
for the country then known by that name. Not
for the then existing States merely, but for that
whole country, and nothing but that country.
Hence, in the introduction, they say, "do ordain
and establish this constitution for the United States
of America." If the principle now contended for is
true, and the spirit now addressed be successfully
indulged, we may go on in acquisition, until it will
not be the United States of America merely. But
the framersof the constitution having thus stated, m
the beginning, that it was formed for the United
States, did not think it necessary to repeat that at
every section, or add it anew to every grant of pow-
er, in order to restrict its action withm our jurisdic-
tion. The grants of power are all, without limita-
tion, m express words, to our own territory. Thus
it is said "Congress shall have power to lay and
collect taxes." This is entirely unqualified and
unlimited as to territory. If it should be asked,
where may Congress lay and collect taxes, any man
and every man would answer, Congress may lay
and collect taxes only within that country then with-
in the jurisdiction of the United States. Congress
has power "to establish post offices and post roads;"
and if asked where may they do this, any man
would answer, in the Union. In precisely the same
way is the article now under discussion worsied.
"New States may be admitted by Congress into the
Union." If it be asked, where must such States
be? Why not as promptly answer, within our ju-
risdiction?
To say this section was intended to give and did
give to Congress the power to admit foreign States
at once into this Union, as now insisted, is to hold
that Congress can, as to this subject, make a treaty;
for it requires the consent of both nations, when by
another clause of the same instrument, they had
committed all the management of our foreign re-
lations, by the treaty-making power, to another de-
partment.
Every instrument must be so construed as that all
the provisions may stand and be operative, if possi-
ble. It is quite clear that Congress cannot, under
this section, admit Texas, unless this article grants
the unlimited power to admit any foreign country.
Undoubtedly it was intended that whenever a State
was admitted it was to be represented in Congress.
Indeed, it is difficult to understand what is meant by
admitting a State into the Union, unless that State is
to be represented in making the laws that arc to be
binding on her. The constitution provides that 110
person can be a senator unless he has been nine
years a citizen of the United States, nor a repre-
sentative in Congress unless he has been seven
years a citizen of the United States. Is it possible
to give force to this provision and at the same time
to hold that foreign States, Russia, or China, or any
other, can by Congress be at once admitted to this
Union? It could not have been so intended, and it
is a forced and unnatural construction of that clause,
to extend it beyond others, and say it goes beyond
the limits of our territorial jurisdiction.
These arguments have, some of them, been pre-
sented by others, and especially the last, and I have
watched carefully and for many days for an answer,
but have heard none, except one, much used in this
debate on that side—that is, the answer by petitio
principii, to wit: "This power is granted to Con-
gress, and therefore it is to be treated as the exer-
cise of a legitimate power, and all other matters and
provisions must give way or be forced to conform
to it."
It has been said by some that as Congress has the
power to declare war they have the power of con-
quest, and therefore the right to acquire peaceably.
This is bad reasoning every way. There are many
powers incident to war, but they can only be exer-
cised in war. Such are the powers ofblockade and
the seizure of goods contraband of war. These are
powers which cannot be exercised in peace. Nei-
ther can conquest, or any of its incidents or conse-
quences. But even if at war, Congress has no pow-
er of conqucst. The President is the commander
of the army, and he is not bound to conquer. Con-
quest, like acquisition by treaty, is executive, and
no law-making cas or should supersede it. If le-
gislation can do it, then the two-thirds of both.
Houses may Override the executive power.
It is said that Vermont and the manner of its ad-
mission by Congress furnishes a parallel case to
Texas, and a precedent for admitting Texas as a
State by legislation. Was Vermont a foreign State?
What, briefly, are the facts? During the war of
1756, commonly in America called the old French
war, Vermont was an unbroken wilderness. In the
prosecution of that war the people of New England
had occasion to explore that country in their expe-
ditions against the Indians and the French in Can-
ada, and they discovered that fertility of soil in her
valleys and on her hill-tops for which she is distin-
guished above the great part of New England. The
jurisdiction of that country was claimed by the
royal governor of New Hampshire, and the lands
were purchased of him. The settlement from 1762
to the revolution progressed rapidly. As early as
1765 the royal governor of New York claimed the
territory then called the New Hampshire grants.
In 1769 the King, in council, decided it was within
the province of New York. The jurisdiction of
New York was spread over it, and counties formed,
and civil government established, and to this the
people submitted, and were represented in the New
York legislature. But now the New York govern-
ment insisted that the settlers on the New Hamp-
shire grants should again buy their lands of the
governorof New York. They declined so to pur-
chase, insisting they were crown lands, and they had
purchased them of a crown governor, and paid into the
crown exchequer, and now ought not to be required
by another representative of the same crown to buy
the land again. To this the governor was deaf, and
he proceeded to grant the land to others, and eject-
ments were brought. It was then that resistance
commenced. This was about the same time that
resistance commenced in this country to England,
and in that Vermont deeply participated, and so
carried on, through all the struggle, two wars at the
same time. In January, 1777, she declared
her independence, adopted a constitution, and
organized her government, which she has ever since
sustained. She was, however, nu foreign nation to the
struggle of the revolution; and though she was neg-
lected by Congress, and all protection was with-
drawn from her frontiers by Congress and New
York, and she was compelled to cajole and deceive
the British authorities in Canada; and though her
representatives were refused admission to Congress,
yet she ever remained faithful to America, and al-
ways kept General Washington informed of all
their movements. The first conquest in the revolu-
tion was by Green Mountain boys from the grants,
headed by Allen, who demanded the surrender of
Ticonderoga in the iliime of God and the Continen-
tal Congress. When the vaunting Burgoyne en-
tered from Canada, with his imposing army of in-
vasion, he says, in his journal:
"The Hampshire grants, in particular, a country unpeo-
pled, and almost unknown in the last war, now abounds m
the mo-st active and most rebellious race on the continent,
and hangs like a gathering storm upon my left."
That gathering storm burst upon him in a mortal
tornado on the plains of Bennington. After the
revolution our people no more asked Congress to
admit their representatives. They had been always
refused, because New York claimed it was within
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United States. Congress. The Congressional Globe, Volume 14: Twenty-Eighth Congress, Second Session, legislative document, 1845; Washington D.C.. (https://texashistory.unt.edu/ark:/67531/metapth2366/m1/829/: accessed April 26, 2024), University of North Texas Libraries, The Portal to Texas History, https://texashistory.unt.edu; crediting UNT Libraries Government Documents Department.