instructed... I am happy, however, to believe that no exigency, requiring the use of force, by the United States, against Mexico or any other power, is likely to result from the negotiation with Texas." Mr. Murphy was directed to countermand his instructions to Lieutenant Davis so far as they conflicted with these views.

Subsequently, on April 11, 1844, Mr. Calhoun, who had then become Secretary of State, replied to Mr. Van Zandt's note of the 17th of January, as follows: "I am directed by the President to say that the Secretary of the Navy has been instructed to order a strong naval force to concentrate In the Gulf of Mexico, to meet any emergency; and that similar orders have been issued by the Secretary of War to move the disposable military forces on our southwestern frontier for the same purpose. Should the exigency arise to which you refer in your note to Mr. Upshur, I am further directed by the President to say that, during the pendency of the treaty of annexation, he would deem it his duty to use all the means placed within his power by the Constitution to protect Texas from all foreign invasion." (S. Doc. 349, 28th Cong. 1st sess. 11.)

"In regard to the orders which have been heretofore given to the officers in command of the military and naval force of the United States in the Gulf of Mexico and on the frontiers of Texas, you may assure the Government of Texas that there will be no material change, except that the communications made to it by the officer commanding the military as well as the naval force, will be made through the chargé d'affaires of the United States."

Mr. Calhoun, Sec. of State, to Mr. Howard, chargé d'affaires to Texas, June 18, 1844, MS. Inst. Texas, I. 100.

The Mexican minister at Washington having protested, in the name of his Government, against the joint resolution of March 1, 1845, for the annexation of Texas, as a violation of the rights of Mexico, and having in consequence of it demanded his passports," he was informed that the Government of the United States did not consider this joint resolution as a violation of any of the rights of Mexico, or that it afforded any just cause of offense to his Government; that the Republic of Texas was an independent power, owing no allegiance to Mexico, and constituting no part of her territory or rightful sovereignty and jurisdiction." Diplomatic intercourse was, however, suspended by the Mexican Government both at the City of Mexico and at Washington.

"Since that time Mexico has, until recently, occupied an attitude of hostility toward the United States has been marshaling and organizing armies, issuing proclamations, and avowing the intention to make war on the United States, either by an open declaration, or by invading Texas. Both the congress and convention of the people of Texas invited this Government to send an army into that territory, to protect and defend them against the menaced attack. The moment the terms of annexation offered by the United States were accepted

by Texas, the latter became so far a part of our own country as to make it our duty to afford such protection and defense. I therefore deemed it proper, as a precautionary measure, to order a strong squadron to the coasts of Mexico, and to concentrate an efficient military force on the western frontier of Texas.”

President Polk, first annual message, Dec. 2, 1845, S. Doc. 1, 29 Cong. 1 sess. 5.

July 13, 1869, the Secretary of the Navy wrote to Commander Owen that Gen. Babcock was proceeding to San Domingo with instructions from the President. Commander Owen was directed to "remain at Samana, or on the coast of San Domingo, while General Babcock is there, and give him the moral support of your guns."

November 6, 1869, Capt. Balch was instructed by the Secretary of the Navy to be ready to receive on board three officers ordered by the President to take passage to San Domingo. Gen. Babcock," it was added, will have certain orders from the President of the United States.

You are directed to conform to all his wishes and orders, and to convey him to such points as he may desire to visit."@

In December, 1869, advices were received at Washington that General Saget, the Haytian leader who had just overthrown the Government of Salnave, which was friendly to the United States, had, during the pendency of the negotiations between the United States and San Domingo, assisted Gen. Cabral, who was then in arms against the Dominican Government, with war steamers and troops.

The Haytian Government had been notified that any military movement against San Domingo would be considered as a hostile act against the United States. The Secretary of the Navy therefore instructed Admiral Poor, January 29, 1870, to proceed to Port au Prince and inform the Haytian authorities that the United States was determined to protect the existing Dominican Government with all its power. He was then to proceed to San Domingo and use his force to give the most ample protection to that Government, against any power attempting to interfere with it. If the Haytians attacked the Dominicans with their ships, he was to destroy or capture them. Instructions of a similar purport were given to other naval officers.

Admiral Poor proceeded to Port au Prince and acquainted the government there with the nature of his instructions. He learned afterwards, unofficially, that the authorities were displeased at what they considered a menace on the part of the United States, accompanied with force.

On March 8, 1870, Admiral Poor reported his arrival at San Domingo City on the 5th of that month. Cabral, he said, seemed to

❝See infra, § 121, where the purport of General Babcock's formal instructions of July and November, 1869, is given.

have made no active movement since the United States declared its intentions with regard to San Domingo.

S. Ex. Doc. 34, 41 Cong. 3 sess. 6, 10, 11, 12, 14, 15, 16. Resolutions offered in the Senate by Mr. Sumner, condemnatory of the orders given to the Navy in this instance, as involving an unlawful assumption by the President of the war-making power, were laid on the table, March 29, 1871, by a vote of 39 to 16. (Cong. Globe, 42 Cong. 1 sess. (1871), part 1, pp. 232, 250, 294, 305, et seq.; also, Appendix, pp. 51 et seq.)

"Negotiations are pending between the United States and President Baez of the Dominican Republic, relative to the Bay of Samana.

"It has come to the knowledge of this Department that in case of the overthrow of the government of President Salnave in Hayti, those who may succeed him may possibly be disposed to interfere with the internal peace of the Dominican Republic. This Government will look with disfavor upon any such attempt, and you will not fail to make that clear to any government that may exist in Hayti. You will also, in case it comes to your knowledge that any attempts are to be made from Hayti or elsewhere to interfere with the domestic peace of Dominica pending these negotiations, without delay communicate your information to the nearest officer in command of a vessel of war of the United States and to this Department. And you will at all times and in every way in your power, discourage any such attempts."

66

Mr. Fish, Sec. of State, to Mr. Bassett, min. to Hayti, Dec. 22, 1869, MS.
Inst. Hayti, I. 172.

'Representations have been made to this Government by that of the Dominican Republic, that the Government of Hayti is constantly putting in jeopardy the tranquillity of that Republic by conniving at the organization of factions in Hayti and by furnishing war materials to Dominican insurgents. It is also represented that this is done despite professions of strict neutrality on the part of the Haytian Government.

"It is presumed that that Government must be aware that, at this juncture especially, the Government of the United States is peculiarly interested in the exemption of the Dominican Republic both from internal commotions and from invasions from abroad. If, therefore, there should be any just foundation for the complaint of the Dominican Government adverted to, this Government expects that at least so long as the relations of the United States with that Republic shall continue to be as intimate and as delicate as they now are the Haytian Government will as a proof of its good will towards us do everything which may be in its power towards avoiding any cause for such complaint.

"You will address a note to this effect to the Haytian Minister for Foreign Affairs.”

Mr. Fish, Sec. of State, to Mr. Bassett, min. to Hayti, Nov. 16, 1870, MS. Inst.
Hayti, I. 197.

(3) QUESTION AS TO ANNEXATION BY A NEUTRAL PENDING WAR.

$ 85.

"As the question may arise, how far in a state of war one of the parties can of right convey territory to a neutral power, and thereby deprive its enemy of the chance of conquest incident to war, especially when the conquest may have been actually projected, it is thought proper to observe to you, 1st, That in the present case the project of peaceable acquisition by the United States originated prior to the war, and consequently before a project of conquest could have existed. 2d, That the right of a neutral to procure for itself by a bona fide transaction property of any sort from a belligerent power ought not to be frustrated by the chance that a rightful conquest thereof might thereby be precluded. A contrary doctrine would sacrifice the just interests of peace to the unreasonable pretensions of war, and the positive rights of one nation to the possible rights of another. A restraint on the alienation of territory from a nation at war to a nation. at peace is imposed only in cases where the proceeding might have a collusive reference to the existence of the war, and might be calculated to save the property from danger, by placing it in secret trust, to be reconveyed on the return of peace. No objection of this sort can be made to the acquisitions we have in view. The measures taken on this subject were taken before the existence or the appearance of war; and they will be pursued as they were planned, with the bona fide purpose of vesting the acquisition forever in the United States."

Mr. Madison, Sec. of State, to Messrs. Livingston and Monroe, plenipoten-
tiaries to France, May 28, 1803, Am. State Papers, For. Rel. II. 562.
The discussion contained in the foregoing passage, which was written in the
expectation that a final rupture of the Peace of Amiens would take place
pending negotiations with France for the cession of New Orleans, proved
to be speculative, since the treaty ceding Louisiana to the United States
was concluded more than two weeks before the war between France and
Great Britain was renewed. The treaty of cession and the convention for
the payment of 60,000,000 francs to France, were signed in French May
2, 1803, and in English two or three days later; the convention relating
to the payment of American claims was signed on the 8th or 9th of May,
but all were antedated as of April 30. (Adams's History of the United
States, II. 42.)

See, as to Mexico's attitude with reference to Texas, supra, § 84; infra, § 103.

(4) PROPERTY THAT PASSES BY CESSION.

§ 86.

Case of Louisiana.

By Art. II. of the treaty of April 30, 1803, by which France ceded Louisiana to the United States, it was declared that the cession included the designated islands belonging to Louisiana, all public lots and squares, vacant lands, and all public buildings, fortifications, barracks, and other edifices which are not private property," as well as "the archives, papers and documents, relative to the dominion and sovereignty of Louisiana and its dependencies." The province was surrendered to the United States on December 30, 1803, and a record was made of the transaction by the commissioners who were concerned in it. The commissioners on the part of the United States were William C. C. Claiborne and James Wilkinson; the commissioner on the part of France was Peter Clément Laussart, colonial prefect. The procès verbal recited that the commissioners met at the city hall, and that, the full powers of the commissioners having been delivered, the French commissioner delivered to the commissioners of the United States "the keys of the city of New Orleans," at the same time declaring that he discharged "from their oaths of fidelity to the French Republic the citizens and inhabitants of Louisiana who should choose to remain under the dominion of the United States."

Am. State Papers, For. Rel. II. 581–582.

Messrs. Claiborne and Wilkinson communicated the documents to Mr. Madison, Secretary of State, with a letter of Dec. 20, 1803.

66

In a letter of Dec. 27, 1803, Messrs. Claiborne and Wilkinson enclosed to the Secretary of State an original copy" of the procès verbal of the delivery. They said that the "barracks, magazines, hospital, and publick storehouses" in the city of New Orleans were still in the occupancy of the Spanish authorities; they considered these buildings as appendages of of the military posts and essential to their defense." "The public records, archives, &c., recognized in the treaty are not yet delivered. The prefect has given us assurances that these documents are now arranging and will soon be in a state for delivery. The fort at Piakemine's and the blockhouse at the Balize have been taken possession of by a detachment of our troops, and measures will immediately be taken by Genl. Wilkinson to occupy the post at Natchitoches on the Red River." In another letter of March 11, 1804, they stated that the French commissioner had declared that "France had expected us to take her cannon and military stores, that being disappointed in that expectation, and the war which is now raging preventing their being transported to the territories of France, be should reserve a portion of the public storehouses and magazines for the preservation of the property of France." They proposed "to receive the cannon and military stores of France in this city by way of deposit and to keep them in safety, ready to be restored when it might be more convenient to remove them from the province. . . . He still persists in his determination to reserve a portion of the storehouses and magazines for the use of France." (MSS. Dept. of State.)