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final act of ratification the merest ceremony. No new facts connected with the subject have come to light. The negotiation was so long on foot, and so fairly conducted, that neither surprise nor deception can be pretended. . . . Another distinction absolutely decisive is, that the conditional ratification proceeded from the Senate, who, sharing in treaties on the final ratification only, and not till then even knowing the instructions pursued in them, cannot be bound by the negotiation like a sovereign, who holds the entire authority in his own hands. When peculiarities of this sort in the structure of a Government are sufficiently known to other Governments, they have no right to take exception at the inevitable effect of them.”
Finally, after sixteen years, this convention was ratified by Spain, the ratifications being exchanged on December 21, 1818. It was annulled by Article X of the Florida Treaty of 1819.
3. The Florida Treaty of 1819.-The instructions of the Spanish King to Don Luis de Onis, who, with John Quincy Adams, negotiated the treaty of 1819, were as follows:
Obliging ourselves as we do hereby oblige ourselves and promise on the word and faith of a King, to approve, ratify, and fulfill, and cause to be inviolably observed and fulfilled, whatsoever may be stipulated and signed by you; to which extent and purpose, I grant you all authority and full power, in the most ample form, thereby as of right required.”
Shortly after the signature of the treaty, February 22, 1819, question arose concerning the eighth article relating to land grants made by the King to the Duke of Alagon, Captain of the Bodyguards; Count of Puñon Rostro, Treasurer of the Household, and Don Pedro de Vargas, His Majesty's Chamberlain. Adams had understood that the grants were annulled by the treaty. Upon pressure by Adams and Hyde de Neuville, the French Minister at Washington, who had acted as intermediary in the negotiation, De Onis said:
With the frankness and good faith which have uniformly actuated my conduct, and which distinguish the character of the Spanish nation, I have to declare to you, sir, that, when I proposed the revocation of all the grants made subsequently to the date above mentioned (January 24, 1818), it was with the full belief that it comprehended those made to the Duke of Alagon, as well as any others which had been stipulated at that period.”
27 Madison to Yrujo, October 15, 1804, American State Papers, Foreign Relations, II, 625; the conditional ratification referred to is the Jay Treaty of 1795. 28 American State Papers, Foreign Relations, IV, 657.
On August 18, 1819, Secretary Adams wrote Mr. Forsyth, the American Minister at Madrid, that the United States would hold Spain responsible “for all damages and expenses which arise from the delay or refusal to ratify, . . . .” ” and on December 16th he advised Mr. Lowndes, Chairman of the Foreign Relations Committee in the Senate, as follows:
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 nature 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 expense and damages which they may sustain by consequence of the refusal of Spain to ratify.”
The reasons for non-ratification by Spain were the permission of privateering expeditions from United States’ ports against Spanish vessels; the fear that ratification of the treaty and recognition of her American colonies as independent by the United States would be simultaneous acts; and, in general, the sympathy and aid alleged to be given those colonies by the United States. It was hinted that Spain would endeavor to show that De Onis had exceeded his instructions, but this point was not officially pushed by Spain.”
* De Onis to Adams, March 10, 1819, American State Papers, Foreign Relations, IV, p. 659.
so Instructions, VIII, 343.
si American State Papers, Foreign Relations, IV, 673.
** Upon being informed by Rush, the American Minister at London, that
the special envoy, General Vives, had told Lord Castlereagh that he should be able to convince the American Government that De Onis had exceeded his
4. One of the foremost examples of a refusal to ratify occurred in 1841, when a treaty between the King of Prussia and the King of Holland, which provided for the admission of the Grand Duchy of Luxemburg into the German Zollverein, was not ratified by Holland. The six weeks allotted for ratification having elapsed, a lively discussion arose concerning the right of a state to refuse ratification. In this discussion France played a leading part, since one of the reasons given by the Dutch King (Grand Duke of Luxemburg) for nonratification was the failure of the treaty to give most favored nation treatment to Luxemburg by Belgium and France.
Concerning this treaty, the French Minister of Foreign Affairs, Guizot, said:
Un débat s'est élevé en Europe entre le Roi de Prusse et le Roi des Pays-Bas, sur la ratification d'un traité. On avait soutenu que la ratification d'un traité ne pouvait être refusée que lorsque le negociateur avait outrepassé ses pouvoirs et qu'on le désavouait. J'avais repoussé cette doctrine, quoique parfaitement désintéressé dans la question, en appuyant le Roi des Pays-Bas qui la repoussait, j'avais soutenu que le droit de ratification n'était pas une pure forme; que c'était un droit sérieux, réel ; qu'aucun traité n'était conclu et complet avant d'avoir été ratifié, et que si entre la conclusion et la ratification il survenait des faits graves, des faits nouveau, évidents, qui changeassent les relations des deux puissances et le circonstances au milieu desquelles le traité avait été conclu, le refus de ratification etait un droit. J'avais soutenu cela en principe, je n'avais au contraire qu'à mettre en pratique ceux que je venais de soutenir.33
An article, supposed to have been inspired from official sources, appeared in the Journal of The Hague, November 2, 1841, in which it was held that the instrument drawn up by negotiating ministers was only a treaty project and that the acceptance or rejection was a free right of the sovereign. A note to the Prussian representative, instructions, and in answer to a question, Adams replied: "I said that he [De Neuville] had told me so [that De Onis had not exceeded his instructions). Onis had told me that by his instructions he could have ceded the Kingdom of Mexico. The Marquis of Casa Yrujo had told Mr. Erving ten times that Onis had 'carte blanche.' The Duke of San Fernando did not pretend that Onis had transcended his instructions, and how could he?” (J. Q. Adams, Memoirs, IV, 466.)
33 Mémoires pour servir a l'histoire de mon temps, VI, p. 161.
October 29, 1841, stated that non-ratification was a bounden duty (Gewissenspflicht), since the interests of the country were at stake.34 Commenting on the matter, Wurm said:
Es ist klar, dass man im Haag die Sache weit schwieriger nahm, als die Doktrin des Journal de la Haye uns glauben machen will. Keineswegs glaubte man an ein Recht, nach freier Willkür zu ratifiziren oder nicht zu ratifiziren, sondern nach allem, was vorangegangen, glaubte man sich formell verpflichtet, zu ratifiziren; dies Bewusstsein der formellen Verbindlichkeit war so stark, dass nur die “Gewissenspflicht” uberweigen konnte, und auch diese nur, nachdem sie in Berlin approbirt zu sein schein.35
Although it appears that this treaty was never ratified, the following year Luxemburg did enter the Zollverein. Undoubtedly the discussion provoked by the refusal of the Dutch King to ratify, had considerable influence in determining that ratification is an essential factor in treaty-making.
5. In 1842, the French King, Louis Philippe, refused to ratify the treaty concluded between Austria, England, France, Prussia, and Russia, relating to suppression of the slave trade and the right of visit.36
6. A treaty of extradition was concluded between the United States and Prussia and other German States, in 1845. President Polk sent the treaty to the Senate and desired a change in Article III, which stipulated that the contractants need not deliver their own citizens. President Polk thought that since the United States had already done this in several instances, it should not be precluded by the treaty. The Senate advised ratification of the treaty, but did not favor Polk's amendment; the President, therefore, refused to ratify, giving as another reason, the instability of the German states. 37
7. In 1849, President Taylor refused even to transmit to the Senate a treaty negotiated by Mr. Hise with Mr. Silva of Nicaragua. This was a convenient method of refusing to ratify without receiving the advice and consent of the Senate. Doubtless the President knew
34 Wegmann, Staatsvertraege, pp. 34-35.
that he could not accept the treaty, no matter what the action of the Senate might be.38
8. On February 1, 1889, the Senate voted 38 to 15 against a resolution advising ratification of an extradition treaty between the United States and Great Britain, signed at London, June 25, 1886.39
9. As in the case of the Florida Treaty of 1819, the Senate voted twice on the question of advising ratification of a treaty concluded August 11, 1874, with Turkey. The letter of transmission, written by President Cleveland, February 27, 1889, gives clearly the facts in this case:
I herewith transmit a report of the Secretary of State and accompanying documents relative to a naturalization treaty between the United States and Turkey, ... as to the proclamation of which the advice and consent of the Senate is desired. The advice and consent of the Senate were given to the ratification of the convention on the 22d day of January, 1875, but with certain amendments which were not fully accepted by the Ottoman Porte. Because of such nonacceptance the treaty has never been proclaimed. Finally the Turkish Government, after the passage of fourteen years, has accepted the amendments as tendered. But in view of the long period that has elapsed since the Senate formally considered the treaty, I have deemed it wiser that, before proclaiming it, the Senate should have an opportunity to act upon the matter again, my own views being wholly favorable to the proclamation. 40
The Senate advised ratification on February 28th.
10. When the arbitration treaty with Great Britain was sent to the Senate in 1897, that body desired that Articles VIII and X be stricken out, and to the clause providing that arbitrators be appointed “by the President of the United States,” the words “and appointed by and with the advice and consent of the Senate," be added. On May 6, 1897, the Senate advised against ratification.“1
11. The reciprocity agreement of 1911 between the United States and Canada was rejected by adverse action of the latter.
38 See letter of Secretary Evarts to President Hayes, March 8, 1880, Senate Bx. Doc., 112, 46th Cong., 2d Sess.
89 Executive Journal, United States Senate, XXVI, 446.