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left-hand place in the copy to be delivered to it. (d) The utmost care should be taken to insure the substantial equivalence of sense of the two texts, so as to exclude any erroneous effect due to translation. Though 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."

Instructions to Diplomatic Officers of the United States (1897), § 245, p. 100.

The alternat.

In the case of the treaty of Ghent, Great Britain took priority over the United States in both copies, and the American plenipotentiaries signed under those of Great Britain. In order that this might not be made a precedent, it was thought proper in the exchange of ratifications to advert to the circumstance and to say that it was not intended to imply any waiver by the United States of the rule that each sovereign should take priority over the other in the copy retained by his government.

Mr. Monroe, Sec. of State, to Mr. Adams, min. to England, March 13, 1815, MS. Inst. U. States Mins. VII. 388.

In the course of the instructions Mr. Monroe said: "In all other treaties between the United States and other powers, the ministers of each party sign in the same line. This was done in the treaty of peace with Great Britain and in the subsequent treaties with her government. In the treaty with France in 1803, the United States took rank in the instrument delivered to this government, which was reciprocated in that delivered to the government of France. In the treaty with Spain in 1795 Mr. Pinckney signed before the Prince of [the] Peace; the United States had rank likewise over Spain in-the instrument delivered to them. It is understood that, in the treaties between all powers, this principle of equality is generally if not invariably recognized and observed." (Ibid.)

It should be remarked, however, that both in the preliminary and in the definitive treaty of peace with Great Britain of 1782 and 1783, and in the Jay treaty of 1794, Great Britain was permitted to take rank of the United States in the text of both copies; so also in the convention of March 15, 1798, and of January 8, 1802. In the commercial convention of July 3, 1815, the alternat was observed, as has always since been the case.

"It is the practice of the European governments, in the drawing up of their treaties with each other, to vary the order of naming of the parties, and of the signatures of the plenipotentiaries, in the counterparts of the same treaty so that each party is first named, and its plenipotentiary signs first in the copy possessed and published by itself. This practice has not been invariably followed in the treaties to which the United States have been parties, and having been omitted

in the treaty of Ghent, it became a subject of instructions from this Department to your predecessor. The arrangement was therefore insisted on at the drawing up and signing of the commercial convention of July 3, 1815, and was ultimately acquiesced in on the part of the British government, as conformable to established usage. You will consider it as a standing instruction to adhere to it, in the case of any treaty or convention that may be signed by you."

Mr. Adams, Sec. of State, to Mr. Rush, min. to England, Nov. 6, 1817,
MS. Inst. U. States Ministers, VIII. 152.

See, to the same effect, Mr. Adams, Sec. of State, to Mr. Dearborn, min.
to Portugal, No. 2, June 26, 1822, MS. Inst. U. States Ministers, IX.
142.

This rule is embodied in the standing instructions to diplomatic officers of the United States, who are directed in all cases to adhere to the principle of the "alternat.” (Instructions (1897), § 244, p. 100.) Commissioners to execute a treaty must all agree to it, and subSignature. scribe their names and attach their seals thereto.

Lee, At. Gen., 1796, 1 Op. 66.

"The effect of adhesion to a treaty is to make the adhering power as much a party to all its provisions and responsibilities as though a like treaty had been concluded ad hoc between it and the other signatory. For example, were the United States to adhere to the proposed treaty between Great Britain and Zanzibar and effect such 'adhesion' 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, MS. Notes to Germany, X. 435; same to Sir L. S. S. West, May 6, 1885, MS. Notes to Great Britain, XX. 254.

3. PRESENTS.

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"A custom prevails among European sovereigns, upon the conclusion of treaties, of bestowing presents of jewelry, or other articles of pecuniary value, upon the minister of the power with which they were negotiated; the same usage is repeated upon the minister's taking leave at the termination of his mission. In Russia this present usually consists of a gold snuffbox with the portrait of the Emperor enchased in diamonds, the value of which is proportionate to the rank of the minister and to the degree of satisfaction which the Emperor thinks proper to manifest with his conduct during the mis

sion. The acceptance of such presents by ministers of the United States is expressly prohibited by the Constitution; and even if it were not, it can scarcely be consistent with the delicacy and reciprocity of intercourse with foreign powers for the ministers of the United States to receive from foreign princes such favors as the ministers of those princes to the United States never can receive from this government in return. The usage, exceptional in itself, can be tolerable only by its reciprocity. It is expected by the President that every offer of such present which may in future be made to any public minister or other officer of this government abroad will be respectfully but decisively declined.”

Mr. Adams, Sec. of State, to Mr. Middleton, min. to Russia, No. 2, June 7, 1820, MS. Inst. U. States Ministers, IX. 14.

4. VALIDITY.

§ 742.

The term “validity," as applied to treaties, admits of two descriptions-necessary and voluntary. By the former is meant that which results from the treaties having been made by persons authorized by, and for purposes consistent with, the Constitution. By voluntary validity is meant that validity which a treaty, voidable by reason of violation by the other party, still continues to retain by the silent acquiescence and will of the nation. It is voluntary, because it is at the will of the nation to let it remain or to extinguish it. The principles which govern and decide the necessary validity of a treaty are of a judicial nature, while those on which its voluntary validity depends are of a political nature.

Jones v. Walker, 2 Paine, 688.

A consideration is essential to give effect to a contract, but it is possible to conceive of a treaty which has no consideration.

Whart. Com. Am. Law, § 157.

As to the position of the United States in reference to the effect of silence in treaties, see 3 Phill. Int. Law (3d ed), 799.

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 of 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, § 104; Crandall, Treaties, Their Making and Enforcement, 14-15.

"It is commonly laid down that neither the plea of 'duress' nor that of 'læsio enormis' (a degree of hardship, that is, so plain and gross that the sufferer can not 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 nonfulfilment 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 can not with any pretense of reason be regarded as the consent of the nation. The cession, therefore, extorted from Ferdinand 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, Lectures on Diplomacy, 184.

III. RATIFICATION.

1. QUESTION OF DUTY.

(1) OPINIONS OF WRITERS.

$743.

"On the 21st of July it was ordered that the Secretary of Foreign Affairs attend the Senate to-morrow and bring with him such papers as are requisite to give full information relative to the consular convention between France and the United States. Jay was the Secretary thus ordered.' He was holding over, as the new Department was not then created. The bill to establish a Department of Foreign Affairs had received the assent of both Houses the previous day, but had not yet been approved by the President. Jay appeared, as directed, and made the necessary explanations. The Senate then resolved that the Secretary of Foreign Affairs under the former Congress be requested to peruse the said convention, and to give his opinion how far he conceives the faith of the United States to be engaged, either by former agreed stipulations or negotiations entered

into by our minister at the court of Versailles, to ratify in its present sense or form the convention now referred to the Senate. Jay made a written report on the 27th of July that in his judgment the United States ought to ratify the convention; and the Senate gave its unanimous consent. The statute to carry the convention into effect was

passed the 14th of April, 1792."

Davis's Notes, U. S. Treaty Volume (1776-1887), 1294, citing Annals of
Congress, 1 Cong. 1 sess. 52 et seq.

For Jay's report, see Exec. Journal of the Senate, I. 7; Dip. Cor. 1783–
1789, I. 304–322.

"At this time, to avoid all danger and difficulty, princes reserve to themselves the right of ratifying that which has been concluded by their minister in their name. The full power is merely a commission, cum libera. If this commission were to have its full effect, it should be given with the utmost circumspection; but, as princes can be constrained to fulfill their obligations only by force of arms, the custom has arisen of relying upon their treaties only after they have sanctioned and ratified them. Whatever the minister has concluded remaining ineffectual until the ratification of the prince, there is less danger of giving him a full power. But to refuse, with honor, to ratify that which has been concluded in virtue of a full power, the sovereign must have strong and solid reasons for it, and, particularly, he must show that his minister has transcended his instructions."

66

Vattel, book 2, chap. 12, § 156, cited by Mr. Adams, Sec. of State, to Mr. Forsyth, min. to Spain, Aug. 18, 1819, Am. State Papers, For. Rel. IV. 657; same to Mr. Vives, Span. min., May 8, 1820, id. 685, 686.

See Crandall, Treaties, Their Making and Enforcement, 12-14.

Everything that has been stipulated by an agent, in conformity to his full powers, ought to become obligatory for the state, from the moment of signing, without even 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 till ratified. The motive 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 compass with respect to his public full powers, has gone beyond his secret instructions, and consequently has rendered himself liable to punishment, or when the other party refuses to ratify."

Martens, Summary of the Law of Nations, book 2, chap. 1, § 3, cited in Mr.
Adams, Sec. of State, to Mr. Forsyth, min. to Spain, Aug. 18, 1819,
Am. State Pap. For Rel. IV. 657, 658; same to Mr. Vives, Span. min.,
May 8, 1820, id. 685, 686.

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