The republic. [volume] (Washington [D.C.]) 1849-1853, 1850-08-29

against the position taken by tue President If il is
said, this territory rightfully belong TO Texas, the
extension OF the laws OF Texas the persons v-
ing there is violation of their liberty, and in
Irngement, consequently, NJ the guarantees of the
treaty. When, therefore, il is urged, the Presi-
dent determines that il Is his duty to protect these
persons against forcibe subsection 20 Texan laws,
he, III fact, passes ON the claim of Texas, and de-
cldes that claim not To be good. This certainly
was not the intention Of the President; he expresses
no opinion on the question OF the utleot Texas, and
dlsclalm5 all authority to examine and pass upon
1t; neither do think that his decision involves any
such consequence. The President does not go be-
yond the fact of possession The possession of the
territory is In the United States. is he not bound
TO maintain that possession? Has he any authority
TO abandon 1t! Whether the right or claim of Tex
be good or otherwise, she certainly has not that
wnlch Is requisite, in law, to make perfect title.
think Blackstone lays it down, that to constitute
perfect title three things required possession,
the right of possession and the right of property.
NOW Texas certainly has not possession; neither
mas she the right of possession; she has not been
disselZed by the United States nor by any one UNI
der whom the United States holds. She never bad
possession. Her claim, then, good or bad, is re-
duced to the jas propetats or 1t is, as lawyers say,
Jus me'tim, a mere right Such rights confer no au-
thorlty To disturb the possession OF one who holds
adversely; they cannot be enforced by Executive
power, and are without efficacy until judicially re.
cognised and declared If the President should sit
IN Judgment ON the claim Of Texas, and, determn-
ing II TO be well founded, abandon to her territory
coded TO and possessed by the United States, he
would be guilty OF what he is Justly accuscd-the
usurpation Of judicial power. May not the Presi-
dent OF the United States maintain the possession of
the public property Is it not his duty to maintain
possession OF the ships of war, forts, arsenas, and
navy yards of the United States? If officers of the
United States should iorcibly dispossess man of
his property, it may be that the President might
order that possession TO be restored; but could he
listen to and adludicate upon a mere claim of pro-
perty? Can IL make any difference whether the
claim is TO one species OF property another? Or
whether, instead OF proprietary right it is claim
OF jurisdiction or sovereignty? If the State of Ma
ryland should attempt to exercise jurisdiction over
the District of Columbia the ground that the
act OF cesson was void, that the title of the Uni
ted States had become for eted could the President
entertain and determine the validity of such claim?
1t Is with surprise that have heard from the gen
teman from Georgia, (Nlr. ToomBs,) the decara
uon that the status quo, or In other Words the fact
OF possession, can make difference; it seems TO
me, so far as the executive power is concerned, to
make all the difference in the world.
But 1t 10 said that the Territory of New Mexico
Is not In the possession of the United States. do
not know that 1t Is claimed to be in the possession
OF Texas and in this view Of the case the posses.
sion, suppose, must be considered vacant.
w hat are the facts The territory was conquered
by the arms OF the United States; it passed imme-
dately from the jurisdiction Of Mexico to the uris
dlction OF the United States, and never has been
tor a moment under any other jurisdiction. 1t was
coded to the United States by the treaty of peace
not, indeed in 80 many words-neither was Cali
lorna ceded IN words-but the boundaries were 40
fixed as to include it, and there is title either in
this Government or in Texas except by that ccs
sion When conquered, possession taken in
the name OF the United States and not in the name
Of Texas and the commanding general promised
to the inhabitants on both sides of the Rio randc
protection against all persons whatsoever. Now,
what Mr. Polk, when President, may have said or
what his Secretary of War may have said, subsc.
quenty and after the treaty of peace, affect
the character of the conquest no part of the res
gesia. 1t may affect the subsequent possession 80
lar as that possession depends upon military
patton, but 1t cannot relate back to the original
taking. But do not, for myself place the pos
session OF the United States, since the treaty of
peace, upon the military occupation of the Terri
tory. regard the actual possession residing in
the people dwelling there, who are, in fact, sep
arately organized community, living under their
own laws. The question, then, Is, under whom
do these people hold? to whom do they render
fealty: whose jurisdiction do they acknowledge!
1t Is lndisputable that they have always held adj
ver5cly 10 Texas and denied her authority; and it
Is equally indisputabe that they have constantly,
since the treaty OF peace, acknowledged the au-
thority OF the United States, and exercised the
power oil self government that necessity has de-
VOWED upon them, IN subordination to that author
ity. They framed territorial government aud
aeked Congress to adopt it, They have since
formed State government, and prayed to be adj
United as State into the Union 1t is impossible
that there can be more explicit recognition of the
jurisdiction OF this Government. Their possession
possession, Just as the possession OF tena nj
is the possession of his landlord II is precisely like
the possession for several years of Oregon; and it
Is inseparable in principle from the possession Of
all the Territories of the United States, whether
organized or unorganiZcd.
1t Is alleged that the President, to be consistent,
should seek to disposscss the people of Texas Of
that part Of the ceded territory lying south of New
Mexico. What have already said is an answer
To this objection. The question of title NAV be the
same; but the difference that possession makes, H.,
far the Executive power is concerned an cs-
sential and controlling fact. If gentlemen would
read with attention what they severely criticse,
they would lind the limits OF Executive authority
and the line that separates the powers of the differ
ent departments of the Government, very clearly
and accurately defined in the message itself
"Thc Executive Government of the United States
has power authority to determine what was
the true line Of boundary between Mexico and the
United States before the treaty of Guadalupe Hi.
dalgo; nor has ii any such power now, since the
question has become question between the State
of Texas and the United States. So far as this
boundary is doubtful, that doubt can only be re-
moved by some act of Congress, 60 which the as-
sent oil the State OF Texas may be necessary, or by
some appropriate mode Of legal adjudication; but,
in the mean time, If disturbances or collisions
arise, should be threatened, il is absolutely in
cumbent on the Executive Government, however
painful the duty, TO take care that the laws are
faithfully maintained. And he can regard only
the actual state OF things II existed the date Of
the treaty, and is 'bound to protect all inhabitants
who were then established and who now remain
north and east Of the line Of demar kation in the
full enjoyment OF thcr HbCrty and property, hC-
cording TO the provisions Of the ninth article Of the
treaty.
see here nothing to add, and there is nothing
thatI would take away.
The gentleman from Georgia (Nlr. TooMbs) sug-
gests another ground upon which the decision Of
the President involves denial of the rights Of Tex
as lie says that the rights guaranteed by the 9th
article Of the treaty reserved only TO the per
cons described in the eighth article that IT, 10 Mex
leans established in territories "gyeviously belong
ing 10 MeIicO;" and that, therefore the President
virtually maintains that New Mexico, east Of tho
Rio Grande, belonged 10 Mexico before the treaty.
Well. who prctends otherwise Does not every
man-cvery man out Of Texas at least-placc the
title ofTexas upon the acts, engagements, and al.
missions Of this Government l. not her right il
she have any, through this Government and under
the cession? Does not the gentleman from Georgia
think 70 HIMSELF
Mr. TooNBs. ] do myself but the President ha 2
no right to determine the question judcially.
Mr. DUER. Hc does not determine iudiciay
lIis determination binds affects no right.
II would not even protect those who should act I'M
der HE authority. Every executive officer, in one
sense must interpret the law; he must read aud
what il is that he is required TO do but this s
judicial Interpretation.
Suppose the Presidents had expressed an opinion
that New Mexico did not belong to Mexico before
the treaty. would that have ncc ted fayorablv tho