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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, Germ. Same to Sir L. West, May 6, 1885. MSS. Notes, Gr. Brit. Commissioners to execute a treaty must all agree to the same, and 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 prin ciple 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 equiv alence 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,
As to action of Senate on Dallas-Clarendon Treaty, see infra, § 150e.
Mr. Jefferson's explanation of his non-acceptance of the treaty nego tiated 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 protestation 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,
and I never failed, when the occasion would admit of it, to justify your self and Mr. Pinkney by expressing my conviction that it was all that could be obtained from the British Government; that you had told their commissioners that your Government could not be pledged to ratify because it was contrary to your instructions; of course, that it should be considered but as a project, and in this light I stated it publicly in my message to Congress on the opening of the session."
President Jefferson to Mr. Monroe, Mar. 10, 1808. 5 Jeff. Works, 254. See infra, § 150b.
That Mr. Monroe was greatly disappointed and hurt at this action of the Administration is shown by the Monroe Papers, on deposit in the Department of State.
For a detailed account of the Monroe-Pinkney negotiations, see infra, § 150b; and as to Mr. Monroe, see supra, § 107; infra, § 150b.
"It has sometimes been assumed that the President's rejection of the treaty formed by Monroe and Pinkney was the origin of all the hostile feeling in England against us and the foundation of the war of 1812. Canning did afterwards complain that the President had no right to approve what he pleased and condemn what he pleased in the treaty, and instruct the American ministers to attempt to procure amendments in the latter points and consider the former settled. He required that the whole subject be reopened from the beginning, if any part of it was reopened. But in glancing through Monroe's correspondence until he asked his audience of leave, we do not observe an intimation that the rejection of the treaty was complained of or treated as an offensive, and much less a hostile, act."
3 Randall, Life of Jefferson, 235. See infra, § 150b.
"When one Government has been solemnly pledged to another in a mutual agreement by its acknowledged and competent agent, and refuses to fulfill the pledge, it is perfectly clear that it owes it, both to itself and to the other party, to accompany its refusal with a formal and frank disclosure of sufficient reasons for a step which, without such reasons, must deeply injure its own character, as well as the rights of the party confiding in its good faith."
Mr. R. Smith, Sec. of State, to Mr. Jackson, Oct. 19, 1809. MSS. Notes, For. Leg. 3 Am. St. Pap. (For. Rel.), 311. As to the negotiations with Erskine and Jackson, see supra, § 107; infra, § 150b.
"These facts will, it is presumed, satisfy every impartial mind that the Government of Spain has no justifiable cause for declining to ratify the treaty. A treaty concluded in conformity with instructions is obligatory in good faith in all its stipulations, according to the true intent and meaning of the parties. Each party is bound to ratify it. If either could set aside without the consent of the other there would no longer be any rules applicable to such transactions between nations. By
this proceeding the Government of Spain has rendered to the United States a new and very serious injury. It has been stated that a minister would be sent to ask certain explanations of this Government, but if such were desired, why were they not asked within the time limited for the ratification? Is it contemplated to open a new negotiation respecting any of the articles or conditions of the treaty? If that were done, to what consequences might it not lead? At what time and in what manner would a new negotiation terminate? By this proceeding Spain has formed a relation between the two countries which will justify any measures on the part of the United States which a strong sense of injury and a proper regard for the rights and interests of the nation may dictate."
President Monroe, Third Annual Message, 1819. As to the negotiations to which this message refers, see infra, § 161.
"The obligation of the King of Spain, therefore, in honor and in jus tice to ratify the treaty signed by his minister is as perfect and unqualified as his royal promise in the power, and it gives to the United States the right equally perfect to compel the performance of that promise."
Mr. Adams, Sec. of State, to Mr. Forsyth, Aug. 18, 1819. MSS. Inst., Ministers. "I have the honor to state that the President considers the treaty of 22d February last as obligatory upon the honor and good faith of Spain; not as a perfect treaty (ratification being an essential formality to that), but as a compact which Spain was bound to ratify-as an adjustment of the differences between the two nations, which the King of Spain by his full power to his minister has solemnly promised to approve, ratify, and fulfill. This adjustment is assumed as the measure of what the United States had a right to obtain from Spain, from the signature of the treaty. The principle may be illustrated by reference to municipal law, relative to transactions between individuals. The difference between the treaty unratified and ratified, may be likened to the difference between a covenant to convey lands and the deed of conveyance itself. Upon a breach of the covenant to convey, courts of equity decree that the party has broken his covenant, shall convey, and further shall make good to the other party all the damage which he has sustained by the breach of cov enant.
"As there is no court of chancery between nations, their differences can be settled only by agreement or by force. The resort to force is justifiable only when justice cannot be obtained by negotiation-and the resort to force is limited to the attainment of justice. The wrong received marks the boundaries to the right to be obtained.
"The King of Spain was bound to ratify the treaty; bound by the principles of the law of nations applicable to the case; and further bound by the solemn promise in the full power. He refusing to perform this