"The rule that a treaty is vitiated by a material error is logically deducible from the notion of a contract. The rule, on the other hand, that a treaty concluded by an authorized agent who has not exceeded his instructions, has nevertheless no force till it is ratified, can not be so proved; it appears at first sight to be at variance with ordinary legal analogies, and with morality; and jurists, trespassing beyond their proper province, have commonly laid down that ratification under such circumstances is a moral duty. It is, however, a settled rule, with the advantage, which a settled rule possesses, of being a thing ascertained and indisputable. It is an extra precaution, an artificial safeguard, against improvident or ill-considered engagements, exactly analogous to those rules of private law which require for certain private contracts a specified form of words, a notarial act, a payment of earnest, or a signature. That it is salutary and convenient, is an opinion, sound, I have no doubt, but which may be disputed like any other opinion; that it is a settled rule is a fact, which may be proved by evidence like any other fact." Bernard, Lectures on Diplomacy, 173. "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 sanction. In other cases, that is wherever the treaty-making power of the sovereign is final, the older writers held that he was bound by the acts of his agent, if the latter acted within the full power which he had received, even though he had gone contrary to secret instructions. But Bynkershoek defended another opinion which is now the received one among the text-writers, and which Wheaton has advocated at large with great ability. (Wheaton's Elements, Book 111, 2 §5; Bynkershoek, Quæest. J. P., 11, 7; de Martens, $48.). If the minister has conformed at once to his ostensible powers and to his secret instructions, there is no doubt that in ordinary cases it would be bad faith in the sovereign not to add his ratification. But if the minister disobeys or transcends his instructions, the sovereign may refuse his sanction to the treaty without bad faith or ground of complaint on the other side. But even this violation of secret instructions would be no valid excuse for the sovereign's refusing to accept the treaty, if he should have given public credentials of a minute and specific character to his agent; for the evident intention in so doing would be to convey an impression to the other party, that he is making a sincere declaration of the terms on which he is willing to treat. "And even when the negotiator has followed his private instructions, there are cases, according to Dr. Wheaton, where the sovereign may refuse his ratification. He may do so when the motive for making the treaty was an error in regard to a matter of fact, or when the treaty would involve an injury to a third party, or when there is a physical impossibility of fulfilling it, or when such a change of circumstances takes place as would make the treaty void after ratification. "All question would be removed, if in the full power of the negotiators or in a clause of the treaty itself, it were declared that the Sovereign reserved to himself the power of giving validity to the treaty by ratification. This, if we are not deceived, is now very generally the case." Woolsey, § 111. * * * "Some publicists, especially Vattel, consider a minister as invested with the power of a mandatory, and hold that his acts are subject to the same rules as those by which the acts of mandatories are governed. Hence they conclude that as obligations entered into by a mandatory within the scope of his authority bind the mandatant, so the same obligations entered into by a plenipotentiary within the scope of his authority bind his sovereign. (Vattel, Droit des Gens, liv. II, ch. xii, $156. Kluber, Dr. des Gens, § 141; Grotius, De Jure Belli, liv. II, ch. xi, § 12; Pufendorf, De Jure Naturæ, liv. III, ch. ix, § 2.) This theory has been rightly contested by other publicists, among whom are Schmalz, Bynkersoek, Pinheiro-Ferreira, and Wheaton, and more recently by Calvo. (Bynkersoek, Quest. Jur. Pub., liv. 11, ch. vii; Vergé, Note sur Martens, § 48; Schmalz, Dr. des Gens, ch. iii, 53; Ortolan, Diplomatie de la Mer, liv. 1, ch. v; Wheaton, Dr. Int., t, 1, ch. ii, §5; Heffter, Dr. Int., § 85; Calvo, Dr. Int., § 697.) These authors maintain that a mission confided by a sovereign to his diplomatic agents for the purpose of concluding an international convention on a specific basis cannot be assimilated to a mandate, and is not, therefore, governed by the rules by which mandates are governed. As a matter of strict law we can not accept the rule of Bluntschli that when the representatives of a state have received the necessary power to definitely conclude a treaty, the signature of the protocol or of the special document incorporating the treaty definitely binds the contracting parties (Dr. Int., § 419), or that of Field (Int. Code, § 192), who admits the necessity of ratification only in cases in which the treaty itself expresses the condition of ratification. In our opinion, the power of contracting a binding international agreement is an act of sovereignty which only the person invested with such sovereignty is capable of performing. A minister is not such a person; he is only a negotiator. Nevertheless, according to 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." 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 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 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, |