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(1) CONSENT OF THE POPULATION.

§ 83.

"The principle that the wishes of a population are to be consulted when the territory which they inhabit is ceded has not been adopted into international law, and can not be adopted into it until title by conquest has disappeared.'

Hall, Int. Law, 4th ed. 49. See this author's discussion of the question, id.

48-50.

"Before passing in review the objections which you, under instructions from Count Okuma, renew to the proposed annexation [of the Hawaiian Islands to the United States], I desire to notice a declaration in the opening of your note which can not be passed over in silence. In referring to the sentiments of the population of Hawaii, you say: 'It is understood that only a small fraction of their number favor annexation.' You omit to state how this understanding has been ascertained, nor is it clear what is the purpose for which the statement is introduced.

"It can not be that one so well informed in the history of international relations as Count Okuma could have wished to suggest thereby the propriety of appealing from the action of the Government to the population.' In international comity and practice the will of a nation is ascertained through the established and recognized government, and it is only through it that the nation can speak. This is shown in the relations of the United States with Japan. The first intercourse of this Government with the Empire was had, with an authority which held a divided, if not disputed, sovereignty. Later, when all power and legislation was centered in the Emperor, this Government recognized him as the sole exponent of the public will. When parliamentary government was established the changed relation was accepted by the United States. No inquiry was thought proper to ascertain whether these various changes received the sanction of the population.' The present Government of the Hawaiian Islands, recognized by Japan and other countries, has been in existence for a series of years, during which time public peace and social order have been maintained, and the country has enjoyed an era of unprecedented prosperity. The Government of the United States sees no reason to question its complete sovereignty, or its right to express the national will.”

Mr. Sherman, Sec. of State, to Mr. Toru Hoshi, Jap. min., Aug. 14, 1897, MS.
Notes to Jap. Leg. I. 533, 535.

(2) PROTECTION OF TERRITORY PENDING ANNEXATION.

$ 84.

In answer to the resolution of the Senate of the 13th instant requesting to be informed whether, since the commencement of the

negotiations which resulted in the treaty now before the Senate for the annexation of Texas to the United States, any military preparation has been made or ordered by the President for or in anticipation of war, and, if so, for what cause, and with whom was such war apprehended, and what are the preparations that have been made or ordered; has any movement or assemblage or disposition of any of the military or naval forces of the United States been made or ordered with a view to such hostilities; and to communicate to the Senate copies of all orders or directions given for any such preparation or for any such movement or disposition or for the future conduct of such military or naval forces,' I have to inform the Senate that, in consequence of the declaration of Mexico communicated to this Government and by me laid before Congress at the opening of its present session, announcing the determination of Mexico to regard as a declaration of war against her by the United States the definitive ratification of any treaty with Texas annexing the territory of that Republic to the United States, and the hope and belief entertained by the Executive that the treaty with Texas for that purpose would be speedily approved and ratified by the Senate, it was regarded by the Executive to have become emphatically its duty to concentrate in the Gulf of Mexico and its vicinity, as a precautionary measure, as large a portion of the home squadron, under the command of Captain Conner, as could well be drawn together, and at the same time to assemble at Fort Jesup, on the borders of Texas, as large a military force as the demands of the service at other encampments would authorize to be detached. For the number of ships already in the Gulf and the waters contiguous thereto and such as are placed under orders for that destination, and of troops now assembled upon the frontier, I refer you to the accompanying reports from the Secretaries of the War and Navy Departments. It will also be perceived by the Senate, by referring to the orders of the Navy Department which are herewith transmitted, that the naval officer in command of the fleet is directed to cause his ships to perform all the duties of a fleet of observation and to apprise the Executive of any indication of a hostile design upon Texas on the part of any nation pending the deliberations of the Senate upon the treaty, with a view that the same should promptly be submitted to Congress for its mature deliberation. At the same time it is due to myself that I should declare it as my opinion that the United States having by the treaty of annexation acquired a title to Texas which requires only the action of the Senate to perfect it, no other power could be permitted to invade and by force of arms to possess itself of any portion of the territory of Texas pending your deliberations upon the treaty without placing itself in a hostile attitude to the United States and justifying the employment of any military means at our disposal to drive back the invasion. At the same time, it is my opinion that Mexico or any other power will find in your approval of the

treaty no just cause of war against the United States, nor do I believe that there is any serious hazard of war to be found in the fact of such approval. Nevertheless, every proper measure will be resorted to by the Executive to preserve upon an honorable and just basis the public peace by reconciling Mexico, through a liberal course of policy, to the treaty."

President Tyler, special message of May 15, 1844, S. Doc. 341, 28 Cong. 1 sess. 74-81. Both the message and the accompanying papers are given in the document here cited. The message itself may be found in Richardson, Messages and Papers of the Presidents, IV. 316.

See Benton's Thirty Years' View, II. 642, 643; Cong. Globe, 42 Cong. 1 sess. (1871), part 1, p. 294 et seq.

The treaty of annexation, which was signed at Washington April 12, 1844, was rejected by the Senate. This was followed by the adoption by Congress of the joint resolution of March 1, 1845, looking to the admission of Texas as a State into the Union, an end consummated by the joint resolution of Dec. 29, 1845. (Infra, § 103.)

In connection with President Tyler's message, supra, it may be stated that on January 17, 1844, Mr. Van Zandt, chargé d'affaires of Texas, inquired of Mr. Upshur, then Secretary of State of the United States, whether, if a treaty for the annexation of Texas to the United States should be signed, the President of the United States would, pending its ratification, give to Texas, if the latter should desire it, the protection of the military and naval forces of the United States. Mr. Van Zandt referred to the fact that an armistice had been proclaimed between Mexico and Texas and suggested the possibility of its termination by Mexico, should a treaty of annexation to the United States be concluded.

No answer was made to this inquiry by Mr. Upshur; but it appears that, in response to a similar inquiry, assurances such as were desired were immediately given by Mr. Murphy, United States chargé d'affaires in Texas, to the Government of that Republic on his own responsibility. Mr. Murphy also sent a secret "order" to Lieutenant Davis, U. S. S. Flirt, to advise any United States vessels of war which he might fall in with that they probably would soon be directed to assemble in the Gulf of Mexico, and to prevent any invasion of the Texan coast which might be meditated by Mexico or by any power giving her aid.

March 11, 1844, Mr. Nelson, who, on the death of Mr. Upshur, was acting as

Secretary of States ad interim, informed Mr. Murphy that the President perceived with regret that he had given pledges which were beyond the line of his instructions and which committed the President to measures for which he had no constitutional authority to stipulate. The employment of the Army or Navy against a foreign power with which the United States was at peace, said Mr. Nelson, "is not within the competency of the President; and whilst he is 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 defense of the inhabitants and territory of Texas at a proper time, he can not permit the authorities of that Government or yourself to labor under the misapprehension that he has power to employ them at the period indicated by your stipulations . . . In any emergency that may occur, care will be taken that the commanders of the naval and military forces of the United States shall be properly

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." a

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.

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