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 them. selves 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 be lieve 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 rendered 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 negoti ation, 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 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 Execu tive 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. As to protocols, see App., vol. iii, § 131. See, also, infra, § 221. "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 President 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 |