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." Wharton, Int. Law Digest, II. 14, citing 2 Fiore, droit int., § § 991, 993 (French trans. by Antoine), Paris, 1885. With those who maintain that a full power may be considered as a mandate, may be classed Phillimore (2nd ed.), II. 75. See, also, He^ter, § 87. (2) AMERICAN DISCUSSIONS. § 744. "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 be 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, Richardson's Messages, I. 61. "When one government has been solemnly pledged to another in a mutual engagement by its acknowledged and competent agent, and refuses to fulfil 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, British min., Oct. 19, 1809, ida treaty. The treaty of February 22, 1819, which provided for the cession of the Floridas by Spain to the United States, and for Case of the Flor- the mutual adjustment of various claims, stipulated for the exchange of ratifications within six months. Before the treaty was signed, Mr. Onis, the Spanish minister, delivered to Mr. Adams, who was then Secretary of State, his full powers, which contained the following clause: "Obliging ourselves, as we do hereby oblige ourselves and promise, on the faith and word of a king, to approve, ratify, and fulfill, and to cause to be inviolably observed and fulfilled, whatsoever may be stipulated and signed by you; to which intent and purpose, I grant you all authority and full power, in the most ample form, thereby as of right required." With reference to this passage, Mr. Adams, after citing Vattel, book 2, chapter 12, § 156, and Martens's Summary, book 2, chapter 1, § 3, said: "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 full power; and it gives to the United States the right, equally perfect, to compel the performance of that promise." Mr. Adams then proceeded to point out that, if the rejection or amendment of treaties by the United States should be cited, it was to be observed "that, by the nature of our Constitution, the full powers of our ministers never are or can be unlimited," but that whatever they signed must be submitted to the Senate, for its constitutional action, so that, if ratification was withheld or the treaty amended, "no promise or engagement of the state" was violated; while, in Spain, the King possessed “the sole, entire, and exclusive power of ratifying treaties," so that, when he promised to ratify whatever his minister should sign, he committed his own honor and that of his nation to the fulfillment of his promise." Mr. Adams also affirmed that Mr. Onis did not transcend his instructions. "It is too well known," declared Mr. Adams, "and they will not dare to deny it, that Mr. Onis's last instructions authorized him to concede much more than he did." 66 Mr. Adams, Sec. of State, to Mr. Forsyth, min. to Spain, Aug. 18, 1819, See also, Mr. Adams, Sec. of State, to Mr. Vives, Spanish min., May 8, "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, had solemnly promised to approre, 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 rules of 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 who has broken his covenant shall convey, and, further, shall make good to the other party all damages which he has sustained by the breach of contract. "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 can not be obtained by negotiation; and the resort to force is limited to the attainment of justice. The wrong received marks the boundaries of 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, namely, 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. They can not compel the King of Spain to sign the act of ratification, and, therefore, can not make the instrument a perfect treaty; but they can, and they are justified in so doing, take that which the treaty, if perfect, would have bound Spain to deliver up to them; 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 fulfil 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, chm. Com. For. Rel., Dec. 16, 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, Annual Message, Richardson's Messages, II. 55.) "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 from Senate's functions. Condition implied 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 cur government." Mr. Adams, Sec. of State, to Mr. Rush, Nov. 12, 1824, MS. Inst. U. President J. Q. Adams's message of Dec. 27, 1825, with correspondence 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, MS. Notes to "The ratifications are exchanged on the authority of powers conferred by the President. The power of ratification is not delegated. "As all treaties must receive this final ratification, the President may at will, so far as depends on his constitutional power, withhold from the Senate a treaty already negotiated. Of treaties thus withheld the Monroe-Pinkney treaty with Great Britain of December 31, 1806, a treaty with Mexico signed March 21, 1853, relative to a transit way across the Isthmus of Tehuantepec, an extradition convention with Colombia signed March 30, 1872, a convention with Switzerland signed February 14, 1885, for the protection of trademarks, and the convention adopted in April, 1890, by the First International American Conference for the establishment of a tribunal of arbitration, are examples. Or the treaty may be submitted, accompanied with recommendations for amendments. President Pierce in submitting on February 10, 1854, the Gadsden treaty of December 30, 1853, recommended certain amendments. President Cleveland in submitting, July 5, 1888, an extradition treaty signed May 7, 1888, with Colombia, called attention to changes suggested by the Secretary of State. On December 16, 1845, President Polk communicated to the Senate an extradition treaty, signed January 29, 1845, with Prussia and certain other German States, and at the same time suggested a modification of Article III., in which it was stipulated, contrary to the rule then consistently maintained by the United States, that the contracting parties should not be bound to deliver up their own citizens. The Senate having failed to make the amendment in its resolution of June 21, 1848, advising the ratification, the President, for this as well as for other reasons, refused to ratify the treaty. "So also treaties may be withdrawn from the consideration of the Senate either to effect changes by negotiation or to terminate proceedings on them. A treaty with Belgium, signed November 4, 1884, regulating the right of succession to and the acquisition of property, was withdrawn from the Senate by President Arthur by a message of February 17, 1885, and was not resubmitted. President Cleveland in messages of March 13, 1885, April 2, 1885, and March 9, 1893, requested the return of treaties concluded by his predecessors-November 18, 1884, with Spain for commercial reciprocity; December 1, 1884, with Nicaragua relative to the construction of an interoceanic canal; December 4, 1884, with the Dominican Republic for commercial reciprocity; an article signed June 23, 1884, with the Argentine Confederation supplementary to the treaty of commerce of July 27, 1853; and the Hawaiian annexation treaty signed February 14, 1893. President Roosevelt, in a message of December 8, 1902, requested the return of a commercial convention with the Dominican Republic signed June 25, 1900, together with an additional article thereto, and a conven |