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and I never failed, when the occasion would admit of it, to justify yourself 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 justice 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
"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
promise and obligation, the United States have a perfect right to do what a court of chancery would do in a transaction of a similar character between individuals to compel the performance of the engagement as far as compulsion can accomplish it, and to indemnify themselves for all the damages and charges incident to the necessity of using compulsion, and they are further entitled to indemnity for all the expenses and damages which they may sustain by consequence of the refusal of Spain to ratify. The refusal to ratify gives them the same right to do justice to themselves as the refusal to fulfill would have given them if Spain had ratified and then ordered the governor of Florida not to deliver over the province."
Mr. Adams, Sec. of State, to Mr. Lowndes, Dec. 16, 1819. MSS. Report Book. See infra, § 161, f.
"It is shown by the law of nature that he who has made a promise to any one has conferred upon him a true right to require the thing promised; and that, consequently, not to keep a perfect promise is to violate the right of another, and is as manifest an injustice as that of depriving a person of his property. All the tranquillity, the happiness and security of the human race rests on justice, on the obligation of paying a regard to the rights of others. The respect of others for our rights of domain and property constitutes the security of our actual possessions. The faith of promises is our security for the things that cannot be delivered or executed on the spot. There would be no more security, no longer any commerce between mankind, did they not believe themselves obliged to preserve their faith and keep their word. This obligation is then as necessary as it is natural and indubitable between the nations that live together in a state of nature and acknowledge no superior upon earth to maintain order and keep peace in their society. Nations and their conductors ought then to keep their promises and their treaties inviolable. This great truth, though too often neglected in practice, is generally acknowledged by all nations." (Vattel, liv. 2, ch. 12, § 163.)
Adopted by Mr. Adams, Sec. of State, in his letter to Mr. Vives, May 6, 1820. MSS. Notes, For. Leg. Mr. Adams Sec. of State to Mr. Forsyth, Aug. 18, 1819. MSS. Inst., Ministers.
"Everything that has been stipulated by an agent in conformity with his full powers ought to become obligatory for the state from the moment of signing, without ever waiting for the ratification. However, not to expose a state to the errors of a single person, it is now become a general maxim that public conventions do not become obligatory until ratified. The motives of this custom clearly proves that the ratification can never be refused with justice, except when he who is charged with the negotiation, keeping within the extent of his public full powers has gone beyond his secret instructions and consequently
reudered himself liable to punishment; or when the other party refuses to ratify." (Martens, liv. 2, ch. 3, § 31.)
Adopted by Mr. Adams, Sec. of State, in letter to Mr. Vives, May 8, 1820. MSS. Notes, For. Leg.; also by Mr. Adams to Mr. Forsyth, Aug. 18, 1819, ut supra.
"The refusal to ratify a second treaty within the time stipulated, and then to send a minister to demand new conditions, the sanction of which was to depend upon the Government of Madrid without his becoming responsible for it, was an occurrence with which I have known no parallel."
Mr. Monroe, President, to Mr. Gallatin, May 26, 1820. 2 Gallatin's Writings, 140.
"It may be replied that in all cases of a treaty thus negotiated, the other contracting party being under no obligation to ratify the compact before it shall have been ascertained whether, and in what manner, it has been disposed of in the United States, its ratification can in no case be rendered unavailing by the proceedings of the Government of the United States upon the treaty; and that every Government contracting with the United States, and with a full knowledge that all their treaties until sanctioned by the constitutional majority of their Senate are, and must be considered, as merely inchoate and not consummated compacts, is entirely free to withhold its own ratification until it shall have knowledge of the ratification on their part. In the full powers of European Governments to their ministers, the sovereign usually promises to ratify that which his minister shall conclude in his name; and yet if the minister transcends his instructions, though not known to the other party, the sovereign is not held bound to ratify his engagements. Of this principle Great Britain has once availed herself in her negotiations with the United States. But the full powers of our ministers abroad are necessarily modified by the provisions of our Constitution and promise the ratification of treaties signed by them, only in the event of their receiving the constitutional sanction of our Government."
Mr. Adams, Sec. of State, to Mr. Rush, Nov. 12, 1824. MSS. Inst., Ministers.
atory of the action of the Senate in modifying the slave trade conven-
"The Government of His Britannic Majesty is well acquainted with the provision of the Constitution of the United States by which the Senate is a component part of the treaty-making power; and that the consent and advice of that branch of Congress are indispensable in the formation of all treaties. According to the practice of this Government, the Senate is not ordinarily consulted in the initiatory state of a negotiation, but its consent and advice are only invoked, after a treaty is concluded, under the direction of the President, and submitted to its consideration. Each of the two branches of the treaty-making authority
is independent of the other, whilst both are responsible to the States and to the people, the common sources of their respective powers. It results, from this organization, that, in the progress of the Government, instances may sometimes occur of a difference of opinion between the Senate and the Executive as to the expediency of a projected treaty, of which the rejection of the Colombian convention affords an example. The people of the United States have justly considered that, if there be any inconveniences in this arrangement of their executive powers, those inconveniences are more than counterbalanced by the greater security of their interests, which is effected by the mutual checks which are thus interposed. But it is not believed that there are any inconveniences to foreign powers of which they can with propriety complain. To give validity to any treaty, the consent of the contracting parties is necessary. As to the mode by which that consent shall be expressed, it must necessarily depend with each upon its own peculiar constitutional arrangement. All that can be rightly demanded in treating is to know the contingencies on the happening of which that consent is to be regarded as sufficiently testified. This information the Government of the United States has always communicated to the foreign powers with which it treats, and to none more fully than to the United Kingdom of Great Britain and Ireland. Nor can it be admitted that any just cause of complaint can arise out of the rejection by one party of a treaty which the other has previously ratified. When such a case occurs, it only proves that the consent of both, according to the constitutional precautions which have been provided for manifesting that consent, is wanting to make the treaty valid. One must necessarily precede the other in the act of ratification; and, if after a treaty be ratified by one party, a ratification of it be withheld by the other, it merely shows that one is, and the other is not, willing to come under the obligations of the proposed treaty.
"I am instructed by the President to accompany these frank and friendly explanations by the expression of his sincere regret that, from the views which are entertained by the Senate of the United States, it would seem to be unnecessary and inexpedient any longer to continue the negotiation respecting the slave convention with any hope that it can be made to assume a form satisfactory to both parties. The Government of His Britannic Majesty insists, as an indispensable condition, that the regulated right of search, proposed in the convention, should be extended to the American coasts as well as to those of Africa and of the West Indies. The Senate, even with the omission of America, thinks it unadvisable to ratify the Colombian convention, and it is, therefore, clearly to be inferred that a convention with His Britannic Majesty, with a similar omission, would not receive the approbation of the Senate. The decision of the Senate shows that it has made up its deliberate judgment without any regard to the relative state of the military or commercial marine, for all the considerations belonging to a