New Mexico Historical Review New Mexico Historical Review
Volume 53 Number 4 Article 4
10-1-1978
The Legacy of the Treaty of Guadalupe Hidalgo The Legacy of the Treaty of Guadalupe Hidalgo
Donald C. Cutter
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THE
LEGACY
OF
THE
TREATY
OF
GUADALUPE
HIDALGO
DONALD
C.
CUTIER
Is
THE
TREATY
OF
GUADALUPE
HIDALGO
a milestone
or
a
millstone in the
cultural
history of the Southwest? This very im-
portant
treaty
in
American
diplomatic
and
military history has
been
much
discussed
and
frequently cussed.
At
Guadalupe
Hidalgo the Mexican
War
ended,
and
conflict
between Mexico
and
the United States ceased. The
war
concluded
at
that
conference table
must
be considered by
any
standards
a
rather
easy
conflict-the
end
was
clearly a
"victor's
peace."
By
standards
of most
wars
this
had
been almost too easy
and
resulted
in bringing
the
Mexican government
to
its knees
and
the Mexican
army
to
utter
defeat.
As
a result, some people thought
that
the
Treaty
of
Guadalupe
Hidalgo,
which
ended the
war,
had
been for-
mulated
at a
moment's
notice
and
therefore ought
not
to
be taken
too seriously.
Some people have felt otherwise.
Our
friend Reies L6pez Tije-
rina, for example, feels
that
the treaty was a Magna
Carta,
a bill of
rights
fOf
the Mexican people, formerly the Spanish people of the
Southwest. Clearly the
Treaty
of
Guadalupe
Hidalgo does have
the status of constitutional law as a document
of
constitutional
.
stature
under
article VI, clause 2
which
states
that"
All treaties
made
or
which
shall be
made
under the authority of the United
States shall
be
the
supreme
law
of the
land."
Therefore
by
the
United States Constitution, the
Treaty
of
Guadalupe
Hidalgo,
whether
some people like it
or
not,
is
the supreme
law
of the land.
It
was the end
product
of the
war
started in 1846
and
consum-
mated
by
treaty
in
February
two
years later.
The
strategy of the
war
was
very simple. The United States felt
that
it
had
a grievance against Mexico over the supposed invasion
0028-6206/78/100-0305$1.10/0
© Regents, University of New Mexico
306
NEW MEXICO HISTORICAL REVIEW 53:4 1978
of
that
area
which
subsequently
became
a
part
of the United States
as
part
of
the Texas annexation treaty.
As
the
result of a misunder-
standing
of
the national
boundary
lines,
the
United States
and
Mexico went
to
war
during
the
administration
of President Polk.
The
war
aim
was
simple-start
an
invasion of those areas desired
by
the
United
States-New
Mexico
and
California. A physical in-
vasion was begun
by
the United States Military
Department
of the
West and the United States Navy
cooperating
in
occupation
of
the
target
areas. An
occupation
of
northern
Mexico
was
mounted
under
the leadership of General
Zachary
Taylor,
and
when
things
had
been
pretty
well
put
into gear, the United States
war
strategy
required a duplication of the feat of
Hernan
Cortes,
with
the con-
quest of Veracruz, a
march
overland
to
Mexico City,
and
the final
reveling in the Halls of Montezuma.
The
war
plan
was implemented fairly well. But one strange
thing occurred, for along
with
the invasion force of the United
States Army
marched
the United States
peace
commissioner. He
was
an
executive agent, really a plenipotentiary of the government
of the United States.
What
a
show
of confidence it
was
to send the
peace envoy
with
the invading army!
It
was
a hitherto
unknown
move. Nicholas Trist,
much
belittled
by
various historians of the
past, and
at
times called a
"mere
clerk of the State
Department,"
was actually a
man
of importance.
He
was
really chief clerk of
the
department,
the highest civil service
appointment
in the State
Department. He was not a second-rater.
Furthermore,
he was bi-
lingual and-was chosen for
the
job
in
part
because of his linguistic
facility. He
had
served earlier as United States consul in
Havana.
As
Trist
emerges as a person, it
is
clear
that
he was a sincere
and
well-prepared
human
being
rather
than
some sort of a
martinet
being sent to Mexico to
carry
out
the wishes of the expansionist
president of the United States, James
K.
Polk.
There
can
be
no
doubt
that
this strange system of sending
him
with
the invading
expeditionary force
under
"Old
Fuss
and
Feathers"
Winfield
Scott was something other
than
normal
protocol
or
regular
pro-
cedure.
l
After a while in Mexico, Trist could find no one
with
whom
to
sign a treaty,
and
he finally
was
recalled
by
the President,
but
refused to acknowledge the order.
In
response to the message
CUTrER: GUADALUPE HIDALGO
307
which
recalled him, Trist wrote a thirty-two-page
memorandum
showing
why
he should
not
be recalled
at
that
particular
time. He
continued
to
negotiate a
treaty
with whomever he could find
who
could sign a
treaty
although
it was
hard
to find any real govern-
ment in Mexico at this time
with
whom
to treat.
President Polk
branded
Trist
an
impudent
and
unqualified
scoundrel,
and
indeed
by
administrative
evaluation
perhaps he
was just that.
Contemporary
Whig opinion,
that
of the opposition
party, said
that
after
Trist
finally
had
found someone capable of
signing a
treaty
with
him
that:
The
Treaty
of
Guadalupe
Hidalgo . . . negotiated by
an
unauthorized
agent
with
an
unacknowledged government, sub-
mitted by
an
accidental president to a dissatisfied senate has not-
withstanding these objections in form, been confirmed.
2
It
was
hardly
a highly
popular
treaty under those circumstances,
for there
had
grown
up
in the interval between the invasion of
Mexico
and
the
actual
consummation of military hostilities there,
two
diametrically opposed movements in the United States.
One
was the all-Mexico movement, the idea being to incorporate all of
that
defeated
nation
into the United States as a result of the out-
come of the
war,
and
this was growing in intensity. But far
away
in New
England
there
was
a countermovement occurring at the
same time,
which
touted the
war
as
being a Southern conspiracy
to get more slave territory in order
that
the institution could
ex-
pand
to
the West.
The
Treaty
of
Guadalupe
Hidalgo, probably the most
important
single
document
in
Southwestern history, confirmed the United
States claims to Texas,
which
previously
had
never been acknowl-
edged
by
any
Mexican government.
It
also confirmed the United
States conquest of New Mexico carried out by Stephen W. Kearny
and
the occupation of California carried out by Kearny, Sloat,
Stockton,
and
various
other
members of the United States Navy in
the Pacific.
For
some $15 million in indemnity
and
$3lJ4
million
in claims
that
had
been laid against the Mexicans
by
various
United States citizens, the
war
Came to a close.
It
stopped the all-
Mexico drive; it even stopped the discontent in New England.
308
NEW MEXICO HISTORICAL REVIEW 53:4 1978
If the
Treaty
of
Guadalupe
Hidalgo
is
a cornerstone to the
history-particularly
the legal
history-of
the area of the South-
west, how did it come into being? Was
Trist
totally responsible for
its creation?
Or
did
he follow orders
or
precedents? A recent study
by
Lieutenant Colonel Ralph
A.
Rowley indicates
that
the latter
is
true.
3
Trist followed very closely the instructions given to
him
when
he
left for Mexico in the first place, instructions based on precedents
already well established. There
is
hardly
an
original thought
or
phrase in the
Treaty
of
Guadalupe
Hidalgo; quite to the contrary,
it
is
based very clearly on existing precedents, including the North-
west Ordinance, the
Treaty
of Louisiana,
and
the
Treaty
of
Florida-parts
of
which
were copied out
verbatim
in the case of
the Mexican
War
treaty,
without
anything
by
way
of novel ap-
proach. Trist did not contribute a single idea
that
went
into the
treaty. Rather, he utilized a
draft
treaty
that
he carried along
with
him. This
draft
treaty
had
several
alternate
clauses
or
wordings,
but
by-and-Iarge Trist was
not
an
original thinker in the writing of
the treaty. The treaty
is
not
"Trist's
Treaty,"
but
really the treaty
of the State Department of the United States
based
on legal prec-
edents which already existed, namely Article III of the
Treaty
of
Louisiana, which indicates
that
the inhabitants of the ceded ter-
ritory would
be
incorporated
into the
Union
of
the
United
States
and
admitted
as
soon as possible,
according
to
the
principles
of
the
Federal
Con-
stitution, to the
enjoyment
of all the rights,
advantages
and
im-
munities of citizens of the
United
States;
and
in
the
meantime,
they
shall
be
maintained
and
protected
in
the
free
enjoyment
of
their
liberty,
property
and
religion
which
they
profess.
4
Many problems were created. In all fairness, however, this was
the first time
that
a large
group
of non-Anglo-speaking people,
non-Anglo culture people,
were
accessioned
into
the United States.
Granted, Louisiana
had
been
acquired
earlier,
but
there were only
a handful of people in all of Louisiana.
The
United States
had
ac-
quired
Florida long after it
had
reached its zenith
and
was
well
into its decline. There were few
if
any real inhabitants of the area.
CUTTER: GUADALUPE HIDALGO
309
It
was a first,
and
for the United States, a unique situation to
which
it could not become accustomed. The assimilation into the
body politic of people
who
were not of the same political, social,
religious,
and
even economic background as the people of the
United States,
was
a novelty.
It
is
no wonder
that
culture conflict
ensued as a result of the great differences of bringing together
two
distinctly different systems of life, systems of law, systems of exist-
ence.
The
cultural
conflict
that
exists in the Southwest
as
a result
of the
Treaty
of
Guadalupe
Hidalgo
is
a culture conflict on almost
every level.
The
acquisition of new people for the United States
brought
to the surface
many
tensions. The first of these related to
the problem of Indians
who
might
raid
across the border from one
country
to the other.
For
example, Mexico thought
that
the United
States
might
arm
the Apaches
and
have them sweep south of the
Gila River
boundary
between the two countries
as
a result of the
terms of the
Treaty
of
Guadalupe
Hidalgo. This would enable the
Indians to
plunder
and
loot the people of northern Sonora;..thereby
serving as a diversion for Americans
who
were moving into the
area
to the
north
of the Gila River boundary. This problem was
solved five years
and
a few million dollars later by the Gadsden
Purchase,
which
bought
the area
and
did away with the source of
concern.
The
second of the problems pertained to the boundary line of the
Gila River.
The
Gila was specified as the boundary between the
United States
and
Mexico, such
boundary
to follow the principal
course of
that
stream. Which, indeed, was the principal course of
the Gila? Was it the south fork, the central fork,
or
the
north
fork?
The
Americans knew
that
it was the south fork; the Mexicans were
certain
that
it was the
north
fork, while all geographers know
that
it
is the central fork.
But
neither Mexico
nor
the United States was
willing to give
up
its extreme stand. When they began to negotiate,
they never looked
to
historians for the answer, but
rather
looked
for the most favorable possible interpretation of their nation's
position in the matter.
In
an
effort to locate the
boundary
line, there was a mistake
made
on
the longitude
and
latitude of
EI
Paso. Somehow the nego-
tiators'
EI
Paso drifted
much
farther north, thereby precluding
any
logical
calculation
which
might be
made
concerning.
the
boundary. .
310
NEW MEXICO HISTORICAL REVIEW 53:4 1978
It
soon became
apparent
that
the
United
States needed a
new
boundary
line to
accommodate
its desires for a
southern
railroad
route to the Pacific. Consequently, the
United
States eventually
sent a railroad
man
to Mexico
to
negotiate a
treaty
in
1853, the
Gadsden
Treaty
or
Treaty
of Mesilla, as it
is
sometimes called,
which
added
that
area to
round
out
the
physiographic
destiny of
the United States in the area of
the
Southwest. But
did
it really ac-
complish its goal? No; somehow a mistake
was
made.
The
negoti-
ators did not realize
that
the
traditional
boundary
between
Upper
and
Lower California
was
considerably
farther
south
than
the one
established.
If
they
had
known
where
it was, they
could
have
rounded
off the
area
and
included
the
mouth
of the
Colorado
River within the United States
and
averted
many
future
problems
of the division of
waters
called for in
the
Treaty
of
Guadalupe
Hidalgo
and
under
international
law.
The
boundary
line contro-
versy, however, was largely solved
by
the
Gadsden
Purchase
and
the American checkbook.
Other
problems included filibustering activities. Some Amer-
icans, dissatisfied
with
the
terms
of the
Treaty
of
Guadalupe
Hidalgo, set
out
from various
places
north
QLthe
international
boundary
to foment problems in Sonora
and
Baja California,
and
even over the line from Texas into
Tamaulipas
and
Nuevo Leon.
The
result was
certain
hard
feelings
at
an
international
level.
Another of the legacies of
the
Treaty
of 1848 resulted
from
the
transient
nature
of the
boundary
line
itself-the
Rio
Grande,
sep-
arating
Mexico
and
the United States. Rivers,
which
frequently
change
course
at
floodtime,
are
notoriously
poor
boundaries.
The
creation
of bane
os
as they
are
called,
banks
of
earth
that
shifted
from one side to the
other
of the river sometimes several times
within
the same decade,
caused
problems
which
finally
have
found
settlement
and
vindication
for Mexico
in
the
Chamisal
negotiations. This
is
the
recent
settlement
between
the United
States
and
Mexico over the largest of these
great
accretions of
land
which
shifted sides of the river
in
historic times.
The
United States
agreed to
what
was
essentially the
Mexican
position
concerning
such
shifting river beds.
There
were also
land
title fights,
creating
in the
area
of the
Southwest a need for title
insurance
to
establish
quiet
title
to
land,
312
NEW
MEXICO HISTORICAL REVIEW 53:4 1978
..
system whereby the crown
withdrew
its interest in such
wealth
upon payment by the exploiter of one-fifth of the precious metals
or
commodities
that
were extracted.
This
quinto, as it was called,
permitted individuals to
participate
with
the government in ex-
ploitation,
but
gave government 20% of the value of all produc-
tion. The United States government
won
the Mexican
war
through
the expenditure of the common
treasure
of the United States since
it was from the national treasury
that
the funds came. Did the
United States government in the signing of the
Treaty
of Guada-
lupe Hidalgo in essence say such rights
were
granted
to all people
who
did not previously have subsurface mineral rights?
Or
did
the
United States
as
sovereign over the
new
territory assume the
same
rights
as
the nation which transferred the sovereignty? Would it
take a specific act of the Congress stating
that
Congress was now
making surface rights
and
subsurface rights
part
and
parcel of the
same ownership pattern,
much
as
th~
old Anglo concept of owner-
ship
in
fee
simple?
The
military governor of California,
Richard
Barnes Mason,
United States Army,
attempted
to get miners in California to
pay
the quinto. The gold rush,
which
followed closely on the heels of
military victory,
had
brought
military
occupation
of California,
and
Mason thought
that
it was his
duty
to
go into the Sierra
Nevada
and
collect the 20% from
any
miners found there. He was
not
successful in this attempt, for it was too
impractical
for
him
to
try
to collect. But he argued,
and
many
legal scholars could argue,
that
the United States as a result of the
war
had
the same right as
the prior sovereign
had had
over the land;
and
without
any
specific congressional
authorization
to convey the subsurface
mineral rights to the owners of the surface, it seems possible
that
the United States government
is
still technically the owner of all
subsurface mineral rights in all of
the
area of the Mexican Cession
and
.of
the Gadsden Purchase
area
as well. Obviously this
is
not a
question to be changed by merely addressing it,
but
it
is
an
un-
resolved matter.
5
Another legacy
is
community
property
and
women's rights in
such community property. Women, those frail flowers of Hispanic
civilization, were cloaked
with
extra special protection
under
His-
panic
law. By extension this
same
special status followed
them
in
CUTTER:
GUADALUPE
HIDALGO
313
the interpretation·of the
Treaty
of 1848.
Each
southwestern state
interprets
community
property
laws considerably differently from
the others.
It
would
take several hours even to
broach
the subject
of these differences
from
state to state. Suffice it here to say
that
community
property
laws
are
very important in the area of the
Southwest
and
are
a
property
rights legacy of
the
Treaty
of
Guadalupe
Hidalgo.
Finally there is the
problem
of citizenship,
and
it
is
in this area
of the
treaty
that
the United States failed most seriously. Those
new persons taken into the United States were to be
admitted
as
soon as possible
according
to the principles of the federal constitu-
tion to the enjoyment of all the rights, advantages,
and
immunities
of citizens of the United States.
How
long
did
this take in New
Mexico?
From
1848 until 1912. Anything less
than
full citizen-
ship-that
is, being a resident of the Territory of New
Mexico-did
not
fulfill these promises.
That
same legal recourse
accorded
other
citizens of the United States was not available. Worse
than
that,
the people of New Mexico
did
not even know about the system of
American
law
that
was
now
being superimposed upon them.
The
fiduciary responsibility,
that
responsibility of the
guardian
to the
ward
that
actually
should have existed between these newly-
minted Americans
and
their
government, failed
to
materialize
after the signing of the
Treaty
of Guadalupe Hidalgo.
The
western
American
Indians have
made
considerable use of
this fiduciary non-feasance. While I served as historian for the
California Indians
in
their claims case in the 1950s it became ap-
parent
that
they utilized the lack of government concern for In-
dian
rights in the Mexican Cession area
with
telling effectiveness.
They asserted
that
the government's error rested on the fact
that
the Indians were citizens of Mexico
and
therefore should have
been
made
citizens of the United States immediately.
The
United
States government's failure has been
of
great importance
to
the
Indians. .
There
is
potential Hispanic use of the same aspects of the
Treaty
of
Guadalupe
Hidalgo since the Hispanic residents of the Mexican
Cession were
in
the
case of New Mexico
and
Arizona not
made
citizens until 1912.
It
hardly
seems
that
the government could
argue
that
these people
had
been
"maintained
and
protected·in the _
314
NEW MEXICO HISTORICAL REVIEW 53:4 1978
full enjoyment of their
property."
Lack of any serious
attempt
to
assume a fiduciary responsibility
is
certainly one of the first
charges against the United States. Local New Mexicans lacked
understanding of the legal system
that
was imposed
upon
them.
No one came to explain it to
them
or
to
act
as their wise counsel.
As
a
matter
of fact, even if they
had
understood, as
far
as
land
titles were concerned, all Hispanic residents of New Mexico were
thought to be guilty of
land
fraud
until they
had
proved
that
they
were
innocent,
rather
than
vice versa.
The
cornerstone of Amer-
ican
jurisprudence
is
that
one
is
innocent
until proved guilty,
but
those who claimed land
under
Mexican
and
Spanish title were
thought to be guilty until proved innocent. They
had
to prove
that
they owned the
land
they utilized
rather
than
the United States
government proving
that
they
did
not
own
the
land
which
they oc-
cupied at the time of the signing of
the
treaty.
In
this regard the
United States government was guilty not only of malfeasance,
but
also of non-feasance of responsibility.
There
can
be no doubt
that
the United States government, either
by
acts of commission
or
acts
of omission, did not live up to
the
obligations which it willingly
accepted
and
wrote into the
Treaty
of
Guadalupe
Hidalgo.
The
door
is
ajar.
The
Treaty
of
Guadalupe
Hidalgo was not
fully implemented. Justice has been delayed,
but
it does not need
to suffer total defeat.
The
Treaty
of
Guadalupe
Hidalgo
is
a
major
item
of
unfinished business on the agenda of sources of cultural
conflict throughout the Southwest. But the
problem
is
not
insolu-
able-a
Hispanic
Land
Claims Commission
is
in order.
One
pat-
terned
after the
Indian
Claims Commission could prove to be the
best answer
to
an
otherwise unsatisfactory situation.
NOTES
1.
For
biographical sketches of Nicholas P. Trist, see Louis
Martin
Sears,
"Nicholas
P.
Trist, A
Diplomat
with
Ideals,"
Mississippi Valley Historical
Review
II
(926):85-92;
Jack Northup,
"NicholasTrist's
Mission into Mexico: A
Reinterpretation,"
Southern Historical Quarterly
71
(968):321-46;
Norman
A.
Graebner,
"Party
Politics
and
the
Trist
Mission," Journal
of
Southern History 19
(1953):137-56.
CUITER:
GUADALUPE HIDALGO
315
2.
Bayard
Tuckerman,
ed., The Diary
of
Philip Hone, 1828-1851, 2 vols.
(New York,
1910),2:347.
3. Ralph
A.
Rowley, "U.S. Acquisition of the Spanish Borderlands: Problems
and
Legacy"
(Ph.D. diss., University of New Mexico, 1975), has
an
excellent
ex-
position of these problems.
4. Clive Perry, ed., The Consolidated Treaty Series, 155 vols. (New York,
1969); see vol. 57, pp. 27-48, for
Treaty
for the Cession of Louisiana,
and
vol.
102, pp. 29-59, for
Treaty
of
Guadalupe
Hidalgo.
5.
Hubert
Howe Bancroft, History
of
California, 1848-59, 7 vols. (San
Fran-
cisco, 1884-90), 6:400.