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view of that subject would have urged the Senate to an acceptance of the Colombian convention. It is hoped, therefore, that His Britannic Majesty cannot fail to perceive that the Senate has been guided by no unfriendly feeling towards Great Britain."
Mr. Clay, Sec. of State, to Mr. Addington, Apr. 6, 1825. MSS. Notes, For. Leg. 5 Am. St. Pap. (For. Rel.), 783.
Mere signing, by the Executive, of a treaty containing a clause for its ratification, in the usual form, is no guarantee that the treaty should be ratified, nor does a payment of an installment of money by the Executive as a preliminary payment under such a treaty which provides for a lease of foreign property, bind the Government to future payments.
Mr. Evarts, Sec. of State, to Mr. Delmonte, Feb. 19, 1880. MSS. Notes, Dominican Republic.
Matters exclusively of Executive discretion or of Executive construction may be settled by protocols which, as only affecting Executive action, need not be submitted to the Senate. As an example of protocols of this class may be noticed the "protocol of a conference held at Madrid, on the 12th of January, 1877, between the Hon. Caleb Cushing, minister plenipotentiary of the United States of America, and his excellency Señor Don Fernando Calderon y Collantes, minister of state of His Majesty the King of Spain." Treaties and conventions, 1876. This protocol is given, infra, § 230.
"I have the honor to acknowledge the receipt of your note of the 22d ultimo, written from Shelter Island, New York, in relation to the exchange of the ratification of the consular convention between the United States and Belgium, signed by Mr. Delfosse and myself on the 9th of March last, wherein you make special reference to the action of the Senate of the United States in qualifying its approval of that instrument by suppressing the word 'alone' in the sixteenth line of the XIIth article, and at the instance of your Government request to be informed of the motives for the omission of that word, which is found in the previous convention of 1868. You also desire, if possible, to be furnished with the minutes of the debate which took place in the Senate respecting this change in the text of the convention.
"In reply I hasten to inform you that, in view of the independent and co-ordinate function of the Senate of the United States, under the Constitution, in the completion of treaties, the proceedings of that high body in executive session are held under the seal of secresy, and the results alone of its deliberations are communicated to the executive branch of the Government. Hence my inability, which I regret, to communicate to you the information you desire. To understand, however, the motive for the omission of the word 'alone' from the XIIth article of the present convention, it can only be necessary to go back to the like article of the previous convention of 1868 and examine the respective contexts. We find that formerly the word 'alone' was qualified by the addition of the phrase, 'without the exaction of any oath from the
consular officers,' showing that no formality was needed save the written request, without other support, in order to secure the return of deserters from national ships. In the revised convention, among other modifications suggested by experience, the qualifying clause quoted above was omitted as redundant. This redundancy extends to the word 'alone,' which, besides being superfluous to the sense of the clause where it occurs, is, in the English text, ambiguous. It will be perceived that, as it now stands, it may mean either that such written request, so supported, will be sufficient warrant for surrender, or that any other mode of procedure is inadmissible; and it follows that, while the first of these readings conforms with the sense of the French equivalent, either interpretation is redundant. It is, therefore, in my judgment, apparent that the motive for the action of the Senate, in striking out the word 'alone' from the clause in question, is found in the desire to remove, not merely a redundancy, but an ambiguity which had persisted, unnoticed before, from the previous redaction now abandoned, and thus to leave the article free from all obscurity of interpretation as to the sufficiency or necessity of the formality prescribed.
"If, as I take it, the equivalent word 'seule' in the Belgian text is redundant merely, without ambiguity, the question of its retention or suppression may very properly be left to the good judgment of your Government. Speaking in behalf of the Government of the United States, I, for my part, cannot perceive that in either case, whether seule' be retained or suppressed, any question as to the proper interpretation of the clause under consideration could arise.
"Trusting that the explanation thus tendered may be entirely satisfactory to your Government, and remove all obstacle to the speedy exchange of the ratifications of the convention, I avail myself of this opportunity to renew to you, sir, the assurances of my high consideration."
Mr. Evarts, Sec. of State to Mr. Neyt, Aug. 13, 1880. MSS. Notes, Belgium; For.
The proclamation of a ratified treaty can be made only by the Presi dent of the United States, and cannot be issued by the legation by whom the treaty is negotiated.
Mr. Blaine, Sec. of State, to Mr. Angell, Oct. 10, 1881. MSS. Inst., China.
A ratification by one sovereign of a treaty by another sovereign to which, when signed by him, he attached an explanatory note, is a ratification of the explanation, if constitutionally made.
Clark v. Braden, 16 How., 635.
"If, then, an embassador, in conformity with a full power received from his sovereign, has negotiated and signed a treaty, is the sovereign justified in withholding his ratification? This question has no significance in regard to states, by whose form of government the engagements made by the executive with foreign powers need some further
sanction. In other cases, that is wherever the treaty-making power of the sovereign is final, the older writers held that he was bound by the acts of his agent, if the latter acted within the full power which he had received, even though he had gone contrary to secret instructions. But Bynkershoek defended another opinion which is now the received one among the text-writers, and which Wheaton has advocated at large with great ability. (Wheaton's El., B. III, 2, § 5; Bynkershoek, Quæst. J. P., II, 7; de Martens, § 48.) If the minister has conformed at once to his ostensible powers and to his secret instructions, there is no doubt that in ordinary cases it would be bad faith in the sovereign not to add his ratification. But if the minister disobeys or transcends his instructions, the sovereign may refuse his sanction to the treaty without bad faith or ground of complaint on the other side. But even this violation of secret instructions would be no valid excuse for the sovereign's refusing to accept the treaty, if he should have given public credentials of a minute and specific character to his agent; for the evident intention in so doing would be to convey an impression to the other party that he is making a sincere declaration of the terms on which he is willing to treat.
"But even when the negotiator has followed his private instructions, there are cases, according to Dr. Wheaton, where the sovereign may refuse his ratification. He may do so when the motive for making the treaty was an error in regard to a matter of fact, or when the treaty would involve an injury to a third party, or when there is a physical impossibility of fulfilling it, or when such a change of circumstances takes place as would make the treaty void after ratification.
"All question would be removed, if in the full power of the nego tiators or in a clause of the treaty itself, it were declared that the sovereign reserved to himself the power of giving validity to the treaty by ratification. This, if we are not deceived, is now very generally the case."
Woolsey, § 107.
Some publicists, especially Vattel, consider a minister as invested with the power of a mandatory, and hold that his acts are subject to the same rules as those by which the acts of mandatories are governed. Hence they conclude that as obligations entered into by a mandatory within the scope of his authority bind the mandatant, so the same obligations entered into by a plenipotentiary within the scope of his authority bind his sovereign. (Vattel, droit des gens, liv. II, ch. xii, § 156. Kluber, dr. des gens, § 141; Grotius, de jure belli, liv. II, ch. xi, § 12; Pufendorf, de jure naturæ, liv. III, ch. ix, § 2.) This theory has been rightly contested by other publicists, among whom are Schmalz, Bynkersoëk, Pinheiro-Ferreira, and Wheaton, and more recently by Calvo. (Bynkersoëk, Quest. jur. pub., liv. II, ch. vii; Vergé, note sur Martens, § 48; Schmalz, dr. des gens, ch. iii, 53; Ortolan, Diplomatie de la mer, liv 1, ch. v; Wheaton, dr. int., t. 1, ch. ii, § 5; Heffter, dr. int., § 85; Calvo, dr. int., § 697.) These authors maintain that a mission confided by a sovereign to his diplomatic agents for the purpose of concluding an international convention on a specific basis cannot be assimilated to a mandate, and is not, therefore, governed by the rules by which mandates are governed. As a matter of strict law we cannot accept the rule of Bluntschli that when the representatives of a state have received the necessary power to definitely conclude a treaty, the signature of the protocol or of the special docu
ment incorporating the treaty definitely binds the contracting parties (Dr. int., § 419), or that of Field (Int. Code, § 192), who admits the necessity of ratification only in cases in which the treaty itself expresses the condition of ratification. In our opinion, the power of contracting a binding international agreement is an act of sovereignty which only the person invested with such sovereignty is capable of performing. A minister is not such a person; he is only a negotiator. Nevertheless, according to the laws of diplomatic comity and of honor, it should be admitted that a sovereign ought not, unless for grave public reasons, to refuse to ratify a treaty signed by an envoy with full power.
2 Fiore, droit int., §§ 991, 993 (French Trans. by Antoine), Paris, 1885.
"The rule that a treaty is vitiated by a material error is logically deducible from the notion of a contract. The rule, on the other hand, that a treaty concluded by an authorized agent who has not exceeded his instructions, has nevertheless no force till it is ratified, cannot be so proved; it appears at first sight to be at variance with ordinary legal analogies, and with morality; and jurists, trespassing beyond their proper province, have commonly laid down that ratification, under such circumstances, is a moral duty. It is, however, a settled rule, with the advantage which a settled rule possesses, of being a thing ascertained and indisputable. It is an extra precaution, an artificial safeguard, against improvident or ill-considered engagements, exactly analogous to those rules of private law which require for certain private contracts a specified form of words, a notarial act, a payment of earnest, or a signature. That it is salutary and convenient is an opinion sound, I have no doubt, but which may be disputed like any other opinion; that it is a settled rule is a fact, which may be proved by evidence, like any other fact."
Bernard on Diplomacy, 174.
(2) AS TO LEGISLATION.
"Having been a member of the general convention, and knowing the principles upon which the Constitution was formed, I have ever entertained but one opinion on this subject, and from the first establishment of this Government to this moment my conduct has exemplified that opinion, that the power of making treaties is exclusively vested in the President, by and with the advice and consent of the Senate, provided two-thirds of the Senators present concur; and that every treaty so made and promulgated thenceforward became the law of the land. It is thus that the treaty-making power has been understood by foreign nations, and in all the treaties made with them we have declared, and they have believed, that, when ratified by the President, with the advice and consent of the Senate, they became obligatory." "As, therefore, it is perfectly clear to my understanding that the assent of the House of Representatives is not necessary to the validity of a treaty; as the treaty with Great Britain exhibits in itself all the objects requiring legislative provision, and on these the papers called for can throw no light; and as it is essential to the due administration of
the Government that the boundaries fixed by the Constitution between the different departments should be preserved, a just regard to the Constitution and to the duty of my office, under all the circumstances of this case, forbid a compliance with your request."
President Washington, Special Message, Mar. 3, 1796, on Jay's treaty.
"By the Constitution of the United States, the department of legis. lation is confined to two branches only of the ordinary legislature; the President originating and the Senate having a negative. To what subject this power extends has not been defined in detail by the Constitution, nor are we entirely agreed among ourselves. (1) It is admitted that it must concern the foreign nation, party to the contract, or it would be a mere nullity, res inter alios acta. (2) By the general power to make treaties, the Constitution must have intended to comprehend only those objects which are usually regulated by treaty, and cannot be otherwise regulated. (3) It must have meant to except out of these the rights reserved to the States, for surely the President and Senate cannot do by treaty what the whole Government is interdicted from doing in any way. (4) And also to except those subjects of legislature in which it gave a participation to the House of Representatives. This last exception is denied by some on the ground that it would leave very little matter for the treaty power to work on. The less the better, say
"The Constitution thought it wise to restrain the Executive and Senate from entangling and embroiling our affairs with those of Europe. Besides, as the negotiations are carried on by the Executive alone, the subjecting to the ratification of the Representatives such articles as are within their participation is no more inconvenient than to the Senate. But the ground of this exemption is denied as unfounded. For, examine, e. g., the treaty of commerce with France, and it will be found that out of thirty-one articles there are not more than small portions of two or three of them which would not still remain as subjects of treaties, untouched by these exceptions.""
Mr. Jefferson, Man. of Parl. Prac. (N. Y., 1876), 110.
"We conceive the constitutional doctrine to be that though the President and Senate have the general power of making treaties, yet wherever they include in a treaty matters confided by the Constitution to the three branches of legislature, an act of legislation will be requisite to confirm these articles, and that the House of Representatives, as one branch of the legislature, are perfectly free to pass the act or to refuse it, governing themselves by their own judgment whether it is for the good of their constituents to let the treaty go into effect or not. On the precedent now to be set will depend the future construction of our Constitution, and whether the powers of legislation shall be transferred from the President, Senate, and House of Representatives to the President, Senate, and Piamingo, or any other Indian, Algerine, or other chief."
Mr. Jefferson to Mr. Monroe, Mar. 21, 1795. 4 Jeff. Works, 134.
The precedents bearing on this question are as follows:
Jay's treaty was approved by the Senate by the requisite two-thirds majority. Its ratification was proclaimed by the President on February 29, 1796, and this proclamation was communicated to the two houses