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A Constitutional History of the United States|
Chapter XXXVI - The Annexation of Texas
by McLaughlin, Andrew C.
|By 1840, there was a strong antislavery sentiment at the north. The
abolitionists were no longer in danger of bodily assault; and the milder
advocates of emancipation were at least accorded toleration. A political party
opposed to slavery, the Liberty party, cast 7,069 votes in 1840, in the
campaign of log-cabins, coons, and hard cider. Trivial as this number was in a
total vote of over 2,400,000, it was significant. Thenceforward, the slavery
question had to be considered in party politics; it was no longer a matter of
merely social and religious agitation.
The Texas question began to loom on the horizon as early as 1836, when
Texas announced her independence from Mexico; but for various reasons, partly,
probably, because the commercial panic and depression were enough to keep men's
thoughts occupied with their own troubles, annexation did not become a matter
of serious concern until Tyler's term was fairly well advanced. Until very
recent years, northern historians have not uncommonly detected in the movement
for annexation little save the slaveholders' longing for more territory to be
tilled by slaves, a longing which degenerated into a dark-lantern conspiracy to
absorb the great southwest and to be carried forward despite the Constitution
itself. This interpretation will, however, not stand examination. By no means
all the slave-owners were advocates of western expansion. Furthermore, the
spirit of imperialism was coming into vogue. Annexation awakened the enthusiasm
of a people not devoid of self-glorification; it appealed to the
imagination and the spirit of the American people and especially to the buoyant
confidence of the men of the Mississippi valley who had been the vanguard of
But opposition to expansion grew when the form and result of the
proposal came into view. The antislavery forces saw nothing to please them in
the annexation of more slave territory. The movement for the absorption of
Texas was forwarded by the political incompetence of Mexico, by her facility in
revolutions, and by her cavalier manner of resisting pressure for the payment
of claims against her government.
At first Texas desired annexation to the United States, but later she
began to face about and appeared to have lost her enthusiasm. In the latter
part of Tyler's term (1843), the American administration was stirred by the
fear lest Texas succumb to the blandishments of Britain. That, of course, would
never do. Rumors spread to the effect that a plan was on foot for bringing
about the abolition of slavery with British encouragement or assistance. So the
subject of annexation was broached by Upshur, the American Secretary of State.
But Texas was coy, and when the Texas President, Houston, hesitated and
expressed doubt about the treaty's being agreed to by the Senate, he was
assured that there need be no fear on that score. Houston demanded a pledge
that American troops would be sent to repel Mexico — for Mexico
obstinately refused to recognize the fact of Texan independence — if that
country attacked Texas while negotiations were in progress. Such assurance
 was given. It already looked as if we were annexing a war.
In February, 1844, Upshur was killed by an explosion of a big gun on the
Princeton, and after a brief interval Calhoun came in as Secretary of
State. The stage was now set for annexation. Calhoun told the Texas
representatives in Washington that the President had ordered a strong naval
force to concentrate in the Gulf, "to meet any emergency", and that similar
orders had been issued to move "the disposable military forces on our
Southwestern frontier for the same purpose." He further said that "during the
pendency of the treaty of annexation," the President would "use all the means
placed within his power by the Constitution to protect Texas from all foreign
invasion."  A treaty of annexation was concluded April 12, 1844.
It provided for the cession of all the territories of Texas "to be annexed to
the said United States as one of their territories, subject to the same
constitutional provisions with their other territories." 
But to this consummation so devoutly wished by Calhoun and President
Tyler disappointing objections arose. The antislavery forces at the north were
hostile. There was objection even at the south, and a
presidential election was at hand. The question of annexation had received
little public attention for a considerable time and it now flashed upon the
scene. The senators were not content; the Whig leader, Clay, was not a natural
ally of Calhoun and he detested Tyler. Nothing could more fret and irk the
proud Kentuckian than a successful coup and a diplomatic victory for the
President. So the treaty was rejected (June 8, 1844). Calhoun's pretty house of
cards crumbled. Instead of the necessary two-thirds vote in its favor, over
two-thirds voted against it.
Beyond peradventure, the impulse of the administration — the zeal
of Upshur, Calhoun, and Tyler — was stirred by the menacing prospect of a
free Texas. The annexation was not a proslavery conspiracy, in
the sense that the slaveholders in general plotted for more slave territory;
nor, as we have said, was land-hunger confined to the south; but Calhoun
believed the safety of the southern institution was endangered and he resented
the assumption of Britain that her duty called upon her to bring freedom to the
world. The correspondence which he carried on implied an obligation to defend
slavery as a subject of national concern. What had then become of the local
character of slavery, an institution for the south alone?  As he
had shown in earlier years that slavery was endangered and the union imperiled
by northern abolitionists, so now he saw the same menace in the establishment
of a free state on the borders of the union.
By the time the vote on the treaty was taken in the Senate, annexation
was involved in partisan politics. Tyler was without a party. The Whigs, who
could not abide him because he had opposed their fiscal measures and had not
been guided by their peerless leader, Clay, were not willing to give the
President the satisfaction of success in his Texas plans. Before the treaty was
rejected by the Senate, the Democrats had nominated James K. Polk for president
and demanded the re-annexation of Texas "at the earliest practicable
period...." The Whigs had nominated Clay on a platform saying nothing about
Texas. Van Buren and Clay had announced their opposition to immediate
annexation. And when Van Buren was not nominated by his party, some of his
partisans were naturally in ill humor. A decision by the Senate on the merits
of annexation was therefore quite impossible; when the vote was taken, all the
affirmative votes but one came from the Democratic senators.
President Tyler was not to be balked by the rejection of the treaty; in
the early summer, he sent documents to the House and also a message, which
suggested the advisability of finding a way to reach the coveted goal: "...
while I have regarded the annexation to be accomplished by treaty as the most
suitable form in which it could be effected, should Congress deem it proper to
resort to any other expedient compatible with the Constitution and likely to
accomplish the object I stand prepared to yield my most prompt and active
co÷peration. The great question is not as to the manner in which it shall
be done, but whether it shall be accomplished or not."  He thus
threw upon the House the responsibility of deciding the question. There spoke
the arch constitutionalist! A man who had been at various times extravagantly
solicitous about constitutional restraints, and so anxious and wary that he had
broken with his party because of some highly technical objections to a bank
measure, now declared the method of annexing an area larger than France was of
no consequence provided the act be done.
The election of 1844, with Clay the Whig candidate and Polk the
Democratic, resulted in a Democratic victory. Though there was much shouting
for the re-annexation of Texas and the re-occupation of Oregon, it is not
perfectly evident that the country, by electing Polk, voted for Texas. There
were other issues. But the movement for annexation was taken up by the
administration with new confidence and assurance. In his final annual message
(December, 1844), Tyler recurred to the subject so near to his heart. He
declared that Mexico was threatening Texas, though her inability to reconquer
the region "had been exhibited ... by eight (now nine) years of fruitless and
ruinous contest", and that it was the will of both the people and the states
that Texas be annexed "promptly and immediately." He recommended that the terms
of annexation already agreed upon by the two governments be adopted by Congress
"in the form of a joint resolution or act to be perfected and made binding on
the two countries when adopted in like manner by the Government of Texas."
Before the end of January, after much talk and considerable excitement,
the House passed a joint resolution for the admission of Texas as a state, the
final vote being 120 to 98. In the course of the debate the idea
had grown clearer that Congress was entitled to act under the clause of the
Constitution providing that "New States may be admitted by the Congress into
this Union...." The resolution announced that Congress consented that the
territory properly included within and rightfully belonging to the Republic of
Texas might be erected into a state, with the consent of the existing
government, in order that it might be admitted into the union. The consent of
Congress was based on certain conditions:
(1) that such state was to be formed subject to the adjustment by the
United States government of all questions of boundary which might arise with
(2) that certain public property was to be ceded to the United States;
(3) that additional states, not exceeding four in number, might, with
the consent of Texas, be formed out of her territory, and such new states as
might be formed south of the parallel thirty-six thirty should be admitted into
the union with or without slavery, as the people of each state asking admission
should desire, but that in any state formed out of territory north of that line
slavery should be prohibited.
The slavery question of course had come into the debate. The most
zealous of the antislavery men denounced the whole scheme and plan of
annexation as one intended to protect and foster the peculiar institution of
the south. "They had been told," said C. B. Smith of Indiana, "by gentlemen
themselves who advocated this measure, that it was a southern question —
that Texas was to be annexed for the purpose of strengthening and fortifying
the institution of slavery — that they demanded that this territory should
be annexed as a guaranty for the preservation of their rights. Let him ask, had
they any right to make such a demand?"  There was also a desire
among some of the northern men to gain for the north a share of the new region,
not so much, it appeared at times, to save that share from slavery because
slavery was evil as to secure a portion of the booty, an area into which free
settlers might move.
Soon after the Senate had received the House's joint resolution, the
chairman of the committee on foreign relations presented a report and offered
resolutions for the rejection of the House's measure. Some of the senators were
naturally desirous of safeguarding the special authority of the Senate as part
of the treaty-making power. But a treaty needed a two-thirds vote, so something
must be done. R. J. Walker of Mississippi now made a clever proposal; it gave
the senators still anxious to preserve the senatorial prerogative an
opportunity of escape — to appear to hold their position and still in
reality to yield. The Walker amendment proposed that, if the President deemed
it more advisable to negotiate instead of submitting the resolution of
annexation to Texas as an "overture", he might negotiate; and perhaps some of
the defenders of senatorial authority may have actually believed that Tyler
would adopt that method. The subterfuge was eagerly grasped; the House
resolution as amended was passed a few hours after the Walker proposal was
offered. But the victory was a narrow one: twenty-seven to twenty-five. When
the resolution with the Walker amendment was returned to the House for
concurrence, it was accepted by a vote of 132 to 76.
The line of cleavage in the House was drawn along partisan boundaries;
two southern Whigs voted in the affirmative; two northern Democrats voted in
the negative. Thus there appeared again that highly interesting alignment. For,
though the issue was not distinctly between freedom and slavery, and was not
distinctly sectional, the fact remains that annexation was opposed by many at
the north because of opposition to the extension of slaveholding territory, and
the movement for annexation came more and more to be looked upon as a movement
for the advancement of slaveholders' interests. Some of the northern Democrats
were soon to break away from party shackles, but if one desires to explain the
character and make-up of the Democratic party, or — if the reader prefers
— if one desires to understand the national as distinguished from the
sectional character of the party, he is called upon to go as far back in
history as the Texas struggle and to account, if he can, for the votes of that
The defense of the treaty-method of annexation rested on the fact that
negotiations with a foreign state must be carried on before admission, and also
on the federative nature of the union; the Senate representing the states was
the suitable body to determine whether a foreign state should be admitted to
the privileges of association with the existing members of the union.
Extremists were capable of carrying this doctrine further; Massachusetts
adopted resolutions declaring that she had never delegated the power to admit
into the union states or territories beyond the original territory of the
union; that there was no precedent for the admission of a foreign state, and as
the power was beyond the competence of Congress, an act of admission would not
be binding on the people of Massachusetts.
The southern advocates of annexation, earnest and determined, might have
taken more seriously the warnings of Senator Archer: if Congress had the power
by a majority vote to admit states and to place stipulations and conditions,
might not mere numbers prevail and the malignant spirit of abolitionism have
its way? The power of one more than one-third of the senators to prevent
annexation of a foreign state should be defended and protected by persons or
sections fearing the development of popular power in the union. This position,
we may notice, ought to have been closely adhered to by all persons especially
solicitous for the retention of states' rights; there are at least some grounds
for asserting that the framers of the Constitution, recognizing the sweep of
the treaty-making power, consigned to the Senate participation in
treaty-making, partly because in that body the states, large and small, were
Furthermore, as Texas was a foreign sovereign state, arrangements or
agreement for annexation could be carried on and conclusions reached only by
the governmental authority in the American system charged with the duty of
conducting foreign affairs. On this point Archer was emphatic. If the results
of such negotiations should be the formal consent of both parties to the
annexation of the foreign state, could such an understanding and agreement be
considered less than a treaty? Even if final admission into the union must be a
matter for congressional discretion, must not the terms of agreement with a
foreign state be reached by negotiations and formulated in a treaty?
The arguments in favor of annexation by joint resolution rested, as we
have seen, on the power of Congress to admit new states. That Texas was at the
time a foreign state, and that the resolution for admission stipulated terms,
did not bewilder the advocates of congressional power; the grant of power
involved the right to make all adequate and incidental provisions. In more than
one respect the joint resolution is a curious product. There appears to have
been an idea that the Missouri Compromise line would then or ultimately divide
the land annexed in such a way as to exclude slavery from a considerable
portion. But as a matter of fact no very large portion of the
region, actually annexed, was north of thirty-six thirty. The final paragraphs
of the resolution are the strangest. So anxious were the senators, as the
fourth of March approached, to get through with the whole annexation business,
that they seized upon Walker's amendment with avidity; if the president did not
wish to present to Texas the resolution as an "overture", he might negotiate.
What was or is an "overture"? On its face, the resolution purported to be an
enabling act for the admission of a state. Was an enabling act an "overture"?
But if instead of overturing, the President negotiated, then he might either
submit the results of his labors to the Senate as a treaty or to Congress in
the form of "articles". What precise meaning should be assigned to the term
"articles"? Doubtless no one knew and doubtless no one knows. Whether the
President overtured or treated, Texas was to be admitted — that was the
crux of the matter —; Congress was committed to admission.
Probably never was there a stranger hybrid among resolutions. But Tyler
did not procrastinate. He hurried off a messenger to Texas to attain the
consummation of his long-cherished hopes. Of course Texas was ready to come in.
The terms proposed were accepted, a state constitution was ratified in the
early autumn, and in December (1845) the final resolution admitting the state
was passed by Congress.
The procedure followed in the annexation of Texas did not constitute a
conclusive precedent in favor of annexation of territory by joint resolution.
Over fifty years later (1898) the Hawaiian Islands were annexed by a joint
resolution; but the method of annexing Texas did not constitute
a proper precedent for the annexation of a land and people to be retained as a
possession or in a territorial condition. Congressional authority for
annexation of Texas rested on the constitutional power to admit new states;
Hawaii was not and is not a state.
Upon principle, it appears a reasonable conclusion that Congress, and
not the treaty-making power, has the final authority to bring foreign
territories into full participation in the union. To the present
writer two steps would seem to be necessary: (1) a treaty for annexation (which
ought, if it promises admission into the union, to say, lest the foreign
country misunderstand, that actual admission depends upon Congress) and (2) an
act of Congress for admission.
 See, for example, the speech of W. J. Brown of Indiana in
the House (January 14, 1845). Let the Mexicans discharge one gun, "and Mexico
would soon be stricken from the roll of nntions [sic], and over her
capitol would float the banner of freedom. At the banks of the Del Norte ...
our empire would not cease; but fifty years would not pass before it carried
all of Mexico; and a century would not pass before it might be found ... on the
coast of Patagonia." Congressional Globe, 28 Cong., 2 sess., p. 137.
 The American charge in Texas was charged with suffering
his zeal to go too far. But the statement said to be sent on the President's
authority was not essentially different: that the President "was not
indisposed, as a measure of prudent precaution, and as preliminary to the
proposed negotiation, to concentrate in the Gulf of Mexico, and on the Southern
borders of the United States, a naval and military force to be directed to the
defence of the inhabitants and territory of Texas at a proper time...."
Senate Documents, 28 Cong., 1 sess., V, no. 349, p. 10. See also
Ibid., p. 5.
 Ibid., p. 11.
 The treaty is in Calhoun, Works, V, p. 322 ff.,
and in Senate Documents, 28 Cong., 1 sess., V, no. 341, p. 10 ff.
 But not by any means in the whole south. "Even before the
treaty was rejected mass-meetings at Ashley and Beaufort [South Carolina]
declared in favor of giving up the Union rather than Texas, and called for a
convention of the slave states to consider the question of annexing Texas to
the Union, or, if the United States would not accept it, to the southern
states." G. P. Garrison, Westward Extension, pp. 141-142.
 Ibid., p. 27 ff.; letter from Calhoun to B. E.
Green, April 19, 1844, Works, V, pp. 347-348; letter from the same to
Edward Everett, April 27, 1844, Correspondence of John C. Calhoun, Am.
Hist. Asso. Report for 1899, II, p. 579; see also, Richardson,
Messages and Papers, IV, pp. 311-312.
 That question was directly asked by The Democratic
Review in January, 1845. See XVI, p. 8.
 See Garrison, op. cit., pp. 120-121. Tyler had
announced (May 15, 1844) as his opinion that the United States having by treaty
acquired a title to Texas which required only the action of the Senate to
perfect it (!), no other power could be permitted to acquire any portion of the
territory, pending the Senate's deliberations, without placing itself in a
hostile attitude toward the United States and justifying the use of force to
repel the invasion. Thus we find that a situation may be entirely created by
the president and bring on a war; and in such a war the United States is to be
considered the aggrieved and offended party, its territory wantonly and
offensively invaded. These questionings appear rather trivial in comparison
with the main fact of actual annexation; and now that we can see beyond the
vapors of sectional and partisan animosities, it seems probable that no nation
then — and no nation now — would tolerate the intrusion of a rival
during the process of courtship.
 Richardson, Messages and Papers, IV, pp.
 Ibid., IV, p. 341 ff.
 January 25, 1845. Congressional Globe, 28 Cong.,
2 sess., p. 194. Twenty-two northern Democrats voted against it; six southern
Whigs voted for it.
 This last clause providing for free states north of
thirty-six thirty was an amendment presented by Stephen A. Douglas, on the last
day. Ibid., p. 193. It is noteworthy because it came from Douglas, and
because it did not provide against slavery in a territory but laid down
a restriction on the admission of a state. That such a provision should have
been thus acquiesced in is significant of the anxiety to get Texas without
further discussion and delay.
 Ibid., p. 109. See, as another example, the
speech of E. S. Hamlin of Ohio. Ibid., p. 118. One florid speech from
Yancey of Alabama was a powerful defense of Calhoun and of slavery as a
national institution. Ibid., appendix, p. 88. See also the speech of J.
R. Giddings. Ibid., appendix, p. 342 ff.
 See, for example, the speech of Jacob Brinkerhoff of
Ohio. Ibid., p. 132.
 Ibid., appendix, p. 237.
 "The same causes made it indispensable to give to the
senators, as representatives of states, the power of making, or rather
ratifying, treaties." "... the small states would not consent to confederate
without an equal voice in the formation of treaties." Speech of W. R. Davie, a
member of the Federal Convention of 1787, in the North Carolina convention,
July 28, 1788. Elliot, Debates (1866 ed.), IV, p. 120. See also, pp.
123-124. And see Ibid., p. 27, for a speech of Spaight in the North
Carolina convention, July 24, 1788, and Washington's message to the House,
March 30, 1796, in Richardson, Messages and Papers, I, pp. 195-196.
 T. H. Benton, in his Thirty Years' View, II, p.
633, calls attention to the prominence given to the Missouri Compromise line.
Notice Buchanan's remarks quoted by Benton, Ibid., in which he glories
in the solution of the slavery problem by the reŰstablishment of the
Compromise line of 1820. The sanctity of the line of demarcation was certainly
emphasized by the resolution, but it should be noticed, however, that the
resolution did not actually deal with slavery in a territory, but with slavery
in the states that might be formed.
 Joint resolution for annexing the Hawaiian Islands, July
7, 1898: "Whereas the Government of the Republic of Hawaii having, in due form,
signified its consent, in the manner provided by its constitution, to cede
absolutely and without reserve to the United States of America all rights of
sovereignty of whatsoever kind in and over the Hawaiian Islands and their
dependencies, and also to cede and transfer to the United States the absolute
fee and ownership of all public, Government, or Crown lands, public buildings
or edifices ... belonging to the Government of the Hawaiian Islands, together
with every right and appurtenance thereunto appertaining: Therefore,
"Resolved by the Senate and House of Representatives of the United
States of America in Congress assembled, That said cession is accepted,
ratified, and confirmed, and that the said Hawaiian Islands and their
dependencies be, and they are hereby, annexed as a part of the territory of the
United States and are subject to the sovereign dominion thereof, and that all
and singular the property and rights hereinbefore mentioned are vested in the
United States of America."
 In the case of Downes v. Bidwell, 182 U. S. 244,
312 (1901) Justice White, accepting the judgment of the Court, gave an opinion
in which Justices Shiras and McKenna concurred, and said, "... it seems to me
impossible to conceive that the treaty-making power by a mere cession can
incorporate an alien people into the United States without the express or
implied approval of Congress." This did not refer to the admission of a state
into the union, but to the incorporation of a people as the consequence of
annexation; but the argument against admission of a state by treaty would
naturally be much stronger. The treaty-making power, it would appear, can annex
but not fully incorporate without the consent of Congress. The right to admit
new states is a congressional power. The statement of Senator Huntington of
Connecticut in 1845 is noteworthy: "Now, I take leave to say that the power to
annex foreign territory by treaty, and the power to admit New States into the
Union by an act of Congress, are not concurrent, but distinct powers. Each is
independent of the other, and neither can exercise both, nor can one exercise
the authority conferred on the other. The one acquires territory; the other
admits States." Congressional Globe, 28 Cong., 2 sess., appendix, p.