Massachusetts. General Court, Report of a Joint Committee and Resolutions of the General Assembly of Massachusetts Adverse to the Annexation of Texas (February 27, 1845)
HOUSE OF REPRESENTATIVES,
January 31, 1845.
The Special Joint Committee, to whom was referred so much of the annual
message of his Excellency the Governor as relates to the annexation
of Texas, have had the subject under consideration, and submit the
following report and resolves.
For the committee:
The subject of this reference has suddenly become an object of great
national importance, and seems destined to engross most deeply the attention,
the interests, and the sympathies of our whole people.
With scarcely an interval for reflection and deliberation, the administration
of our National Government, for nearly the whole of the two past
years, has devoted itself with an untiring industry and sleepless vigilance
to the accomplishment of this object.
She has once and again raised her warning voice, and, with an unanimity
rarely equalled in her legislative proceedings, has solemnly declared that
Texas, with her consent, can never become a part of the American Union.
The Legislature of 1848 resolved, “That under no circumstances whatever
can the people of Massachusetts regard the proposition to admit Texas
into the Union in any other light than as dangerous to its continuance in
peace and prosperity, and in the enjoyment of those blessings which it is
the object of a free government to secure.”
The Legislature of 1844 resolved, “That the power to unite an independent
foreign State with the United States is not among the powers
delegated to the General Government by the Constitution of the United
Another and a more formal appeal is now made by his Excellency the
Governor, and the representatives of Massachusetts are again called upon
to say, whether the solemn, the repeated, and all but unanimous judgment
of their predecessors, shall stand as the judgment of the people, and the
whole people of Massachusetts, now and forever.
Why should it not so stand? Has the Constitution itself changed since
1843?—or have its great principles, deemed in 1844 so repugnant to the
admission of a foreign State, become less energetic, or less repulsive?
The Constitution of the United States is an act of the people's own
legislation. This, like all other mere legislation, is local, and has the force
and effect of law, only within the acknowledged territory of the legislation.
If this leading principle in the application of all law could in any case
be drawn into doubt, it would hardly seem possible to raise a doubt of its
fair application to the great Charter of our Union.
The people who ordained and established the Constitution were the people
who at that day had but just come out—gloriously, it is true—from a
seven years' conflict with one of the most powerful nations of the earth;
and had thus but recently extorted from that proud nation the acknowledgment
of their rights “to assume their separate and equal station among
the Powers of the earth.”
The “old thirteen”—colonies once—States then—and new outnumbering
Empires—bound together by the recollection of their common dangers
and triumphs, naturally felt anxious to give permanence and durability
to the results of their great revolutionary struggle.
They therefore, the men of the Revolution, made a Constitution imbodying
for national purposes the great principles out of which their great struggle
had arisen. They made a Constitution, in their own imperishable language,
“in order to form a more perfect union, to establish justice, insure
domestic tranquillity, and secure the blessings of liberty to themselves
and their posterity.”
These declared objects of those who made the Constitution are especially
worthy of notice at the present time. It was made “to establish justice,
and insure domestic tranquillity.” would these objects be effected
by the admission of fugitives from justice in all other quarters of the world
to the rights of citizens in this?
It was made “to secure the blessings of liberty to themselves and their
posterity.” Would these blessings be most constitutionally secured by the
spread of involuntary servitude, as far as may be in our power, to all other
regions of the earth?
It was made “in order to form a more perfect union;” this was the
leading object. Would this be promoted by the extension of our bounds
from the Atlantic to the Pacific, and from Terra del Fuego to the Arctic
ocean? But with whom was this more perfect union to be formed?—with
whom, but with those who had fought and triumphed together—with those
who had established by their counsels and their arms the perilous declaration
of 1776—“that these united colonies are, and of right ought to be,
free and independent States.”
It would hardly be expected, that those who had but just secured their
own independence, and become emancipated from foreign control, would
have their first sympathies aroused and their first energies directed to the
construction of a Government whose great and progressive benefits would
largely, if not principally, fall upon foreign States and foreign territories.
The first and most pressing want would demand the earliest remedy.
The people, who had deeply felt the want of “a more perfect union” among
themselves during the perilous progress of the Revolution, would have
much more naturally provided in the first place for that pressing evil. The
States that had but just been emancipated from foreign thraldom would he
much more anxious “to establish justice, and insure domestic tranquillity”
at home, than to extend the area of either freedom or slavery abroad.
The territory embraced in our great national act of July 4, 1776, became
by that act and the treaty with Great Britain of 1783 “the United
States of America,” for whom this Constitution was “ordained and established.”
The extended domains of Louisiana and Florida then belonged in full
dominion to Spain, and were no more intended to be embraced at that time,
or in all time to come, in the term “United States of America,” for whom
this Constitution was formed, than Spain herself. They were no more in
the minds and purposes of those who made and those who adopted the
Constitution, than Mexico or Brazil, Patagonia or the Celestial Empire.
The committee think this is entirely clear on the face and in the terms
of the Constitution itself. But it is equally clear from the history of the
times which preceded and the circumstances which occasioned its formation.
The Constitution was not the work of men who had nothing to do but
to provide means to foster and cherish the same great interests throughout
the whole range of the abounding and expended country, from the torrid
to the frigid zone.
Great as was the desire for union, the diversities of origin, of habits and
manners, of climate, of soil and productions—but, more than all else—of
“the peculiar institutions” of a large and powerful section of the country;
these had already created all but insuperable difficulties, in arranging and
adjusting the one to the other.
But how could conflicting interests have been adjusted, or opposing interests
compromised, if the nation itself had not then assumed its form and
established its bounds? Interests could never have been balanced or adjusted,
or their extent or importance known among the States, until the
national boundaries had not only been ascertained, but been fixed, established,
and rendered immovable. The great compromise of the Constitution
—the admitted slave representation in Congress, and in the election
of President—proves this, the committee, think beyond all contradiction.
This great surrender of an equality of rights on the part of the free States
consists in, granting representation to a species of property, which, if not
entirely a “tropical production,” is found only in those States under the
influence of a peculiar climate and peculiar institutions—and in excluding
all other property, whatever in amount, or wherever situated, entirely from
Would the free States of this Union have ever consented to admit this
element of slave property to representation at all, if the claim had then
been made as now, that the Constitution gave power to extend the Union
over the slave climate to the equator? Would the same elements of compromise
But it is said, that although the Constitution was originally and in terms
confined to a well known and well defined territory, that it nevertheless
contains an inherent power of indefinite expansion, by express powers
granted for that purpose, and that the Constitution itself provides that Congress
may admit new States into the Union.
The Constitution, article 4, section 3, provides, that “new States may
be admitted by Congress into the Union; but no new State shall be formed
or erected within the jurisdiction of any other State, nor any State be
formed by the junction of two or more States or parts of States, without
the consent of the Legislatures of the States concerned, as well as of Congress.”
These are the limitations on the powers granted. These limitations all
palpably apply to the territory within the then existing Union; and the
committee deem the argument not only fair, but irresistible, that the power
and its limitations were intended by the people to apply to the same, and
only to the same, subject matter.
The Constitution, article 7, provides that “the ratification of the conventions
of nine States shall be sufficient for the establishment of this Constitution
between the States so ratifying the same.”
Here, then, is a case presented where the Union under the Constitution
might have gone into rightful operation, and “four States” out of the
“original thirteen” might have been excluded from its benefits.
Was not this a case in point for the application of this express power to
admit new States without travelling out of the bounds of the original Union?
A case, too, appealing with great force and effect, both to the interests and
the sympathies of the whole Union?
It is well known, that when the Constitution was formed, in 1789, the
ordinance of the old confederation of July 13, 1787, was in full force and
effect in relation to the Northwestern Territory. This Territory now constitutes
the States of Ohio, Indiana, Illinois, and Michigan.
It is equally well known, that this ordinance provided that not less than
three nor more than five States should be formed in certain proportions
out of this Territory, and ultimately be admitted into the old confederation.
This obligation to admit “these new States,” when they arrived at maturity,
devolved, of course, on the Union, under the Constitution; and
this provision of the Constitution became necessary to carry this obligation
Here, then, are legal and constitutional provisions by which “five new
States,” and “four of those then existing,” might have required this express
power to admit new States, to have brought them within the fold, and given
them their clear legal inheritance—an admission into the Union.
This number of “new States,” equal to those authorized by the Constitution
to establish the constitutional Union, to say nothing of those “new
States” that might under the constitutional provision be formed with the
consent of Congress and the States out of the original States and Territories,
is sufficient to show the necessity of such a power, and the propriety
of its application, and of its application alone to the territory within the
then existing Union.
The power, then, relied upon to expand the Union to an indefinite extent
will only show, when rightly applied, the provident care of those who
draughted that instrument, to provide for the performance within the then
existing Union of all existing duties.
There is another express power in the Constitution, which the committee
are of opinion is in direct conflict with the power now claimed to admit
a foreign State into the Union, in whatever manner such power may
It is now proposed by a mere act of legislation to bring Texas into the
Union as a State, with all the rights of a State; and its citizens, foreigners,
of course,) with all the rights of citizens in all the States. Congress are
authorized “to establish” the rule—not to apply it. Would not, then, a
legislative or a treaty admission of Texas destroy all pretence of uniformity
in the rule?
But, not to dwell longer on the particular clauses of the Constitution, the
committee are constrained to believe, and to declare that belief, that the
Constitution of the United States, as originally formed and adopted, gave
no power to any or all the departments of the National Government to admit
a foreign State or foreign territory into our constitutional Union.
But it is said, whatever may be the language of the Constitution, or whatever
the people who adopted it may have intended in regard to the admission
of “new States,” the practical construction has become fully settled
and established by the admission of Louisiana, and the full recognition
of that act, for more than forty years, by the people.
The basis on which this position rests demands grate consideration. It
abandons, of course, all express and original power in the Constitution to
admit, and places the right of admission of new States solely on the long-continued
acquiescence of the people.
This subjects those who maintain this right on the precedent of Louisiana,
and that alone, to the charge of having added to the Constitution, by mere
assumption, a power that could only have been rightfully added by an
amendment of that instrument. If the power is claimed by the acquiescence
of the people merely, it must begin and end in the precedent itself.
Mere submission to a palpable assumption of power, without right, can never
prove more than that those who submit believe the evils of resistance
But such submission to power, merely assumed, can never be drawn into
precedent or extended by construction. It may, like the judgment of a
court in a particular case, not founded on, but in opposition to the law of
the land, sustain itself until reversed. But it sustains itself in solitary
singleness and sadness, without imparting to the Constitution, or those
who administer it, any right whatever to apply it as a precedent to any
The acquiescence of the people may sanction, for the time being, the
very act to which it applies, but can never be applied to a new case, or to
sanction additional infractions of the original instrument.
The assumption of the power to admit Louisiana can never authorize
the admission of Texas. It has no resemblance to an original power in
the Constitution. That may, of course, apply to all new cases which
arise within the same principle; but acquiescence merely tolerates the
very act to which it applies, and while it applies, and that alone.
In 1803, under the Presidency of Mr. Jefferson, a treaty was concluded
with France, by which the United States obtained a cession of the entire
claim of France to the territory known as Louisiana. This treaty, thus
negotiated, was ratified by the Senate of the United States; and Louisiana,
admitted as a Territory by the treaty, and formed into a Territorial Government,
has since been considered as forming a part of the United States.
The States of Louisiana, Missouri, and Arkansas, have already been admitted
into the Union, as States formed out of the territory thus acquired.
The treaty-making power under our Government can only be exercised
among sovereign and independent States, and is applied to regulate the
interests and provide for the future intercourse of such parties.
A treaty is then the contract of at least two parties, and presupposes
those parties to exist, and remain in existence, in a condition to fulfil the
guaranties of the treaty. It never has been applied, and the committee
believe never can be applied, to annihilate or extinguish politically either
of the contracting parties. A State has no right to be felo de se—by treaty,
or in any other manner. Texas proposed all this by the treaty of April,
Louisiana, in 1803, made no claim to be an independent State. She
was an appendage or colonial possession of France, and was transferred
as such—not by herself—but France. The act of cession in no way impaired
the functions of the Government of France—she still remained after
the treaty, as before, with full power, as an independent nation, to sustain
and fulfil all the obligations incurred by the treaty.
Yet no fact in our history is better established, than that Mr. Jefferson,
the great author of this important national act, himself doubted its constitutional
authority, and deemed an amendment of the Constitution itself necessary,
to extend a rightful power over the territory, or to admit it as a
State into the Union.
But more than forty years have passed away, and all branches of the National
Government, and of all the several States, have in various forms
acknowledged the States formed out of the territory thus acquired to belong
to the Union. Let this question, then, rest in peace.
Texas claims the right, under delegated powers of Government essentially
the same as those intrusted to our National and State Governments,
and acting under and in pursuance of those powers, to transfer the country,
the inhabitants, and all their rights and immunities, to a foreign
Power. The committee believe this to be a claim without precedent and
without right. The powers of all rightful Governments create a trust,
which those only who are called to execute the trust may rightfully carry
The committee are not able to see, if the delegated powers of the Government
of Texas, exercised by the officers elected to administer it, are
deemed in any form sufficient to transfer the people, the country, and all
the functions of the Government of Texas, to the United States—why, if
it had so pleased the commissioners who negotiated the treaty of April,
1844, and two-thirds of the Senate, the whole people and territory of
these United States might not, with equal power and equal authority, have
been transferred to Texas. This would have placed the people of the
United States in at least a new, if not a position to be desired. It would
have placed them where they might have been left to grope their way for
the future, by the dim twinkling of “the lone star of Texas,” rather
than to march on to the fulfilment of higher and more glorious destinies,
under the more ample folds and brighter and purer light of our own star-spangled
and revolutionary banner.
The committee believe that the people of the United States have never
delegated power to any or all the departments of Government, to transfer
the United States, or the people thereof, to any foreign Power; and that
Texas, in this regard, has no greater powers. They believe that the
powers of Government are a trust incapable of transfer, and granted to be
applied only to their legitimate ends; and that therefore all the organized
powers of the Government of Texas could never rightfully transfer her
Government, territory, and people, to the United States, with any more
or greater effect than all the organized powers of the Governments of the
But it this were otherwise, and if all the organized powers of the Government
of Texas, in any or in all forms, were competent to transfer the
people and territory to this Union, the committee believe there is no rightful
power in all or any of the departments of our National Government to
But it is said, further, that Congress may, as an ordinary act of legislation,
declare war; that war may lead to conquest; and thus territorial acquisition
may be forced on the country by the simple action of a clearly
defined power of legislation; and that if this be so, what Congress may do
by legislation, “forcibly if they must,” they may do by legislation, “peaceably
if they can.” But this argument takes for granted what is by no
Congress may, it is true, by a simple act of legislation, place the country
in a state of war. Congress may raise armies, and the Executive, as
commander-in-chief, may overrun foreign territory and hold it by conquest.
But this right of Congress, if right at all, it must always be remembered,
is but a temporary right. It is a right merely to hold and occupy the country
until peace takes place. It is the treaty of peace, and that alone, which
settles all rights of conquest in war, and all rights of territory at its close.
And although war, under our Constitution, is a legislative power, peace
is not—peace being attainable only by treaty; and that power being clearly
placed by the Constitution in the President and two-thirds of the Senate,
excludes, of course, the legislative power from any participation in the act
of peace, and thus leaves the argument without any foundation whatever.
4th. That the States and Territories admitted since the adoption of the
Constitution, out of territory not then within the Union, are admitted by
the general consent and acquiescence of the States and people in the acts
5th. That this general consent and acquiescence form no precedent for
other cases, and impose no duty on any State of the Union to extend it
to any State or territory not now within the bounds of the Union.
6th. That the power to admit States and territories not within the bounds
of the Union at the adoption of the Constitution, having never been delegated,
is reserved to the Commonwealth of Massachusetts, or the people
thereof, and can only be rightfully exercised in such manner as they shall
Such being the result of the examination of the powers of the National
Government under the Constitution of the United States to admit Texas
into the Union, the labors of the committee might have come to a close.
It might perhaps be deemed, under other circumstances, and those of a
less pressing and embarrassing character, more respectful to the authorities
of the United States to presume that no attempt would be actually
made to push the powers of the National Government beyond the constitutional
limits in the admission of a foreign State. But when it is considered
that the attempt has not only been made once, but has been repeated
already—that it is urged on by all the force that can be applied to
it by a section of the country, and by an interest in that section which has
hitherto known no result in political action but success, it may be proper
for the people of Massachusetts, through their Representatives, to declare
the grounds on which not only her opposition to the admission of Texas
is now placed, but will be hereafter maintained. The decisive, unanswered,
and unanswerable objection, is the want of constitutional power
She forbears to inquire into the expediency of the admission of Texas
or any other foreign State into this Union. If benefits ten times greater
than have ever been presented by the glowing imaginations of its most
passionate admirers were certain to follow the admission of Texas, she
would still say, “the Union as it is,” until altered by the power that
She forbears to inquire into these, not because they are not of the highest
importance in themselves, but for the reason, that when a clear principle
obstructs her way, she can never be trade to pass over it or around it.
But if, instead of submitting the question of the admission of Texas to
Congress, or to any or all the departments of the National Government, it
was now submitted directly to the people of Massachusetts, what would
and ought to be the answer?
His Excellency the Governor, in that part of his message referred to
the committee, says, in relation to the admission of Texas into the Union:
“It is too obvious to require argument, that slavery, with the considerations
connected with it, is the leading motive which impels the movement for
the hasty consummation of this important measure.”
Massachusetts is compelled to say, that the whole evidence before her,
in regard to this matter, renders it impossible for her to doubt that the acquisition
of political power, by the extension of the slave interest into
Texas, and the greater security to that interest by the increased power
thus to be obtained, have driven forward this measure with an earnestness,
an impetus, and an energy, which nothing but a superior earnestness, impetus
Massachusetts will take no ground on this matter which she is not able
and willing to maintain. She has already declared, through her Executive,
that “as a State, she ever has maintained, and ever will maintain,
the whole of the Constitution of the United States.” In this, while her
constitutional obligations remain, she never will falter.
But when it is proposed to her people to enter into relations with States
or territories to which the provisions of the Constitution do not extend;
and when she is asked by such extension to place every three of her own
freemen on a political equality with every five persons in Texas, who are
bound down to everlasting servitude by a Constitution which “secures,”
as it is said, “in the most nervous and clear language, the rights of the
master to his slave,” she has but one answer to make; and she makes this
answer calmly, and deliberately, and firmly, Massachusetts will never consent
to enter into any such relations.
She will never consent, where she is not already bound, to place her
own free sons on any other basis than perfect equality with freemen; and,
last of all, and more than all, she will never, by any act or deed, give her
consent to the further extension of slavery to any portion of the world.
House of Representatives, February 20, 1845.—Passed.
SAMUEL II. WALLEY, JR., Speaker.
In Senate, February 22, 1845.—Passed.
LEVI LINCOLN, President.
February 22, 1845.—Approved.
GEORGE N. BRIGGS
SECRETARY'S OFFICE, February 24, 1845.
A true copy. Attest:
JOHN G. PALFREY,