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XII. SPECIAL TREATIES-Continued.
(17) Mexico, § 154.
(a) Treaty of 1795, § 161.
(b) Florida negotiations and treaty of 1816-20, § 161a.
(25) Sweden and Norway, § 162.
(27) Tripoli, § 164.
(28) Turkey, § 165.
(30) Wurtemberg, § 166.
As to diplomatic discretion and correspondence, see supra, §§ 78 ff.
When treaties are exchanged between two sovereigns, the better practice is for the representative of each sovereign to take priority over that of the other in the copy of the treaty which is to be retained by his own government.
Mr. Monroe, Sec. of State, to Mr. J. Q. Adams; Mar. 13, 1815. MSS. Inst.,
"It is the practice of the European Governments, in the drawing up of their treaties with each other, to vary the order of naming of the parties, and of the signatures of the plenipotentiaries, in the counterparts of the same treaty so that each party is first named, and its plenipotentiary signs first in the copy possessed and published by itself. This practice has not been invariably followed in the treaties to which the United States have been parties, and having been omitted in the treaty of Ghent, it became a subject of instructions from this Department to your predecessor. The arrangement was therefore insisted on at the drawing up and signing of the commercial convention of July 3, 1815, and was ultimately acquiesced in on the part of the British Government, as conformable to established usage. You will consider it as a standing instruction to adhere to it, in the case of any treaty or convention that may be signed by you."
Mr. Adams, Sec. of State, to Mr. Rush, Nov. 16, 1817. MSS. Inst., Ministers.
"I deem it to be my duty to state that the recall of Mr. Trist, as commissioner of the United States, of which Congress was informed in my annual message, was dictated by a belief that his continued presence
with the Army could be productive of no good, but might do much harm by encouraging the delusive hopes and false impressions of the Mexicans, and that his recall would satisfy Mexico that the United States had no terms of peace more favorable to offer. Directions were given that any propositions for peace which Mexico might make should be received and transmitted, by the commanding general of our forces, to the United States.
"It was not expected that Mr. Trist would remain in Mexico, or continue in the exercise of the functions of the office of commissioner, after he received his letter of recall. He has, however, done so, and the plenipotentiaries of the Government of Mexico, with a knowledge of the fact, have concluded with him this treaty. I have examined it with a full sense of the extraneous circumstances attending its conclusion and signature, which might be objected to; but, conforming as it does, substantially, on the main questions of boundary and indemnity, to the terms which our commissioner, when he left the United States in April last, was authorized to offer, and animated as I am by the spirit which has governed all my official conduct towards Mexico, I have felt it to be my duty to submit it to the Senate for their consideration, with a view to its ratification."
President Polk, Mexican Treaty Message, Feb. 22, 1848.
"Until about the beginning of the eighteenth century treaties between European powers were generally written in Latin, but it has since been customary for negotiators of countries which do not use the same language to prepare their treaties in both languages; for instance, in the case of an American negotiating with a German plenipotentiary, the English version would appear side by side, article for article, with the German; and in Spain, or in the Spanish-American Republics, the English and Spanish languages would be used in the same way. Treaties between the United States and the British Government have been signed in the English language only. Our treaties with Russia are an exception to the general rule, most of them being written in French and English.
"The French language is much used in diplomatic and social intercourse in Europe between persons of different nationalities. It is there generally so far regarded the common medium of communication that it is the exception to the rule to find a person in polite society who is not able to converse in and write it."
Mr. Fish, Sec. of State, to Miss Fraser, Nov. 18, 1874. MSS. Dom. Let.
"The effect of adhesion to a treaty is to make the adhering power as much a party to all its provisions and responsibilities as though a like treaty had been concluded ad hoc between it and the other signatory. For example, were the United States to 'adhere' to the proposed treaty between Great Britain and Zanzibar and effect such 'adhesion'
in such a way as to internationally bind themselves and Zanzibar, each and every provision would necessarily be enforceable as between the United States and Zanzibar, including the assumption on the part of the United States of control over certain subjects of future arrangement between Zanzibar and any third power."
Mr. Bayard, Sec. of State, to Mr. von Alvensleben, May 6, 1886. MSS. Notes,
Commissioners to execute a treaty must all agree to the same, subscribe their names and attach their seals thereto.
1 Op., 66, Lee, 1796.
As to presents to ministers negotiating treaties, see supra, § 110.
"Whenever a diplomatic agent of the United States is intrusted with the negotiation of a treaty or convention, a full power will be given to him.
"In case of urgent need a written international compact between a diplomatic agent and a foreign Government may be made in the absence of specific instructions or powers. In such cases it is preferable to give to the instrument the form of a simple protocol, and it should be expressly stated in the instrument that it is signed subject to the approval of the signer's Government.
"The diplomatic agents of the United States will adhere to the principle of the ‘alternat,' in all cases where they shall have occasion to sign any treaty, convention, or other document with the plenipotentiaries of other powers.
"For the convenience of diplomatic agents who may be instructed or empowered to negotiate and sign a treaty of convention with the Government of a country where another language than English is officially employed, the following explanatory regulations touching the clerical preparation of such instrument are given:
"A. The texts of the two languages should be neatly engrossed in parallel columns on the same sheet, if possible, or on opposite pages of the same document. Two separate copies in different languages are not advisable, although this expedient is sometimes resorted to in the Eastern countries.
"B. In the copy to be retained by the diplomatic agent and transmitted to this Government, the United States is named first, in all places where the alternative change may conveniently be made throughout both texts. Conversely in both texts throughout the treaty the foreign Government is first named in the copy which it retains.
"C. The language of the Government which is to retain and publish the convention should always occupy the left-hand place in the copy to be delivered to it.
"D. The utmost care should be taken to insure the substantial equivalence of sense of the two texts, so as to exclude any erroneous effect due to translation. While a strictly literal translation is often harsh, and sometimes impossible, the absolute identity of the idea conveyed is indispensable. To this end the punctuation of the two texts should also be attentively scrutinized and brought into substantial conformity.
"E. Inasmuch as in this country the pleasure of the Senate must be awaited before the treaty can be ratified, and as delays may accordingly supervene, it is the preference of this Government that it be provided
that the ratification and the exchange of ratifications shall be effected 'as soon as possible' rather than within a specified time."
Printed Pers. Inst., Dip. Agents, 1885.
Coercion, while invalidating a contract produced by it, does not invalidate a treaty so produced. Thus there can be no question of the binding force of the treaty which followed the French German war which led to the dethronement of Napoleon III, though its terms were assented to under coercion. The same may be said of the consent of France to the settlement enforced by the allies after Waterloo, and so the treaty by which Mexico ceded California and the adjacent territory to the United States. On the other hand a treaty produced by material fraud or by physical force applied to the negotiator, may be repudiated.
See Woolsey Int. Law, § 100.
"It is commonly laid down that neither the plea of 'duress' nor that of laesio enormis' (a degree of hardship that is so plain and gross that the sufferer cannot be supposed to have contemplated what he was undertaking)-pleas recognized, directly or circuitously, in one form or another, by municipal law, both ancient and modern, can be allowed to justify the non-fulfillment of a treaty. To cases of personal duress this, of course, does not apply. Any force or menace applied to the person of a negotiator is on the face of it unlawful, because a consent wrung from the pain or terror of an individual cannot within any pretense of reason be regarded as the consent of the nation. The cession, therefore, extorted from Frederick the Seventh, at Bayonne, the engagements obtained a few years back from Mr. Eden by the chiefs of Bhootan, were void. They were beyond the reason, and therefore beyond the scope, of the rule. But the intolerable hardships and sufferings inflicted by France on Prussia after the battle of Jena did not invalidate the peace of Tilsit, or the series of subsequent conventions which bound the conquered but unsubdued nation in fetters of steel."
Bernard on Diplomacy, 185.
II. RATIFICATION AND APPROVAL.
(1) AS TO TREATY-MAKING POWER.
"It is said to be the general understanding and practice of nations, as a check on the mistakes and indiscretions of ministers or commissioners, not to consider any treaty, negotiated and signed by such officers, as final and conclusive, until ratified by the sovereign or Government from whom they derive their powers. This practice has been adopted by the United States respecting their treaties with European nations, and I am inclined to think it would be advisable to observe it in the conduct of our treaties with the Indians; for, though such treaties, being, on their part, made by their chiefs or rulers, need not be ratified by them, yet, being formed on our part by the agency of subordinate officers, it seems to me both prudent and reasonable that their acts should not be binding on the nation, until approved and ratified by the Government. It strikes me that this point should be well considered
and settled, so that our national proceedings in this respect may become uniform, and be directed by fixed and stable principles."
President Washington, Special Message, Sept. 17, 1789.
The propriety of a partial approval of a treaty by the Senate was doubted by the British Government in 1804.
See Mr. Monroe, minister to England, to the Sec. of State, June 3, 1804. MSS. Dept. of State. 3 Am. St. Pap. (For. Rel.), 93. As to these negotiations, see infra, § 150b.
As to the modifications by the Senate of the convention with France of 1800, see infra, § 148a.
As to action of Senate on Dallas-Clarendon Treaty, see infra, § 150e.
Mr. Jefferson's explanation of his non-acceptance of the treaty negotiated by Messrs. Monroe and Pinkney with Great Britain is as follows: "You heard in due time from London of the signature of a treaty there between Great Britain and the United States. By a letter we received in January from our ministers at London we found they were making up their minds to sign a treaty in which no provision was made against the impressment of our seamen, contenting themselves with a note received in the course of their correspondence from the British negotiator, assuring them of the discretion with which impressment should be conducted, which could be construed into a covenant only by inferences, against which its omission in the treaty was a strong inference, and in its terms totally unsatisfactory. By a letter of February the 3d they were immediately informed that no treaty not containing a satis factory article on that head would be ratified, and desiring them to resume the negotiations on that point. The treaty having come to us actually in the inadmissible shape apprehended, we, of course, hold it up until we know the result of the constructions of February the 3d. I have but little expectation that the British Government will retire from their habitual wrongs in the impressment of our seamen, and am certain that without that we will never tie up our hands by treaty from the right of passing a non-importation or non-intercourse act, to make it her interest to become just."
Mr. Jefferson, President, to Mr. Bowdoin, April 2, 1807. 5 Jeff. Works, 64. See further, infra, § 150b. As to Mr. Monroe as a negotiator, see supra, § 107.
To Mr. Monroe Mr. Jefferson afterwards wrote as follows: "The treaty was communicated to us by Mr. Erskine on the day Congress was to rise. Two of the Senators inquired of me in the evening whether it was my intention to detain them on account of the treaty. My answer was 'that it was not; that the treaty containing no provision against the impressment of our seamen, and being accompanied by a kind of protes tation of the British ministers, which would leave that Government free to consider it as a treaty or no treaty, according to their convenience, I should not give them the trouble of deliberating on it.' This was substantially and almost verbally what I said whenever spoken to about it,