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CHAPTER VI.

I. NEGOTIATION, $ 130.

II. RATIFICATION AND APPROVAL.

(1) As to treaty making power, 131.

(2) As to legislation, ( 131a.

III. WHEN TREATY GOES INTO EFFECT, 132.

IV. CONSTRUCTION AND INTERPRETATION, Ø 133.

V. FAVORED NATION," ( 134.

VI. SUBSEQUENT WAR: EFFECT OF, Ø 135.

VII. SUBSEQUENT ANXEXATION: EFFECT OF, \ 136.

VIII. SUBSEQUENT REVOLUTION: EFFECT OF, 137.

IX. ABROGATION BY CONSENT, BY REPUDIATION, OR BY CHANGE OF CIRCUM-

STANCES, 137a.

X. TREATIES WHEN CONSTITUTIONAL ARE TIE SUPREME LAW OF TIIE LAND,

BUT MAY BE MUNICIPALLY MODIFIED BY SUBSEQUENT LEGISLATION, $ 138.

XI. JUDICIARY CANNOT CONTROL EXECUTIVE 1Y TREATY MAKING, Ø 139.

XII. SPECIAL TREATIES.

(1) Argentine Republic, ) 140.

(2) Austria-Hungary, \ 141.

(3) Barbary Powers, 0 141a.

(4) Bavaria, / 142.

(5) Brazil, $ 143.

(6) China, 144.

(7) Colombia and New Granada, 145.

(8) Costa Rica and Honduras, | 146.

(9) Denmark, Ø 147.

(10) France.

(a) Treaty of 1778, Ø 148.

(6) Convention of 1800–01, ) 148a.

(c) Treaty of 1803 (cession of Louisiana), | 1486.

(d) Subsequent treaties, \ 1480.

(11) Germany, 149.

(12) Great Britain.

(a) Treaty of 1783 (Peace), $ 150.

(6) Jay's treaty (1794), Ø 150a.

(c) Monroe-Pinkney and cognate negotiations, 8 1506.

(d) Treaty of Chent (1814), ) 150c.

(e) Conventions of 1815, 1818, 1500.

() Ashburton treaty (1842), 150e.

(9) Clayton-Bulwer treaty (1850), $ 150f.

(h) Treaty of Washington (1871) and Geneva tribunal, 150g.

(13) Hanseatic Republic, 151.

(14) Hawaii, 151a.

(15) Italy, Ø 152.

(16) Japan, 153.

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XII. SPECIAL TREATIES-Continued.

(17) Mexico, O 154.
(18) Netherlands, 155.
(19) Paraguay, 156.
(20) Peru, 157.
(21) Portugal, 158.
(22) Russia, Ø 159.
(23) Sardinia, $ 160.
(24) Spain,

(a) Treaty of 1795, \ 161.

46) Florida negotiations and treaty of 1816–20, 161a.
(25) Sweden and Norway, 0162.
(26) Switzerland, | 163.
(27) Tripoli, 164.
(28) Turkey, ) 165.
(29) Venezuela, Ø 165a.
(30) Wurtemberg, | 166.

I. NEGOTIATION.

$ 130.

As to diplomatic discretion and correspondence, see supra, 50 78 ff.
As to Indian treaties, see infra, 0 210.

When treaties are exchanged between two sovereigns, the better practice is for the representative of each sovereign to take priority over that of the other in the copy of the treaty which is to be retained by his own government.

Mr. Monroe, Sec. of Stato, to Mr. J. Q. Adams; Mar. 13, 1815. MSS. Inst.,

Ministers. “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 p!enipotentiary 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, Nov. 16, 1817. MSS. Inst., Ministers. “I deem it to be my duty to state that the recall of Mr. Trist, as commissioner of the United States, of which Congress was informed in my annual message, was dictated by a belief that his continaed presence with the Army could be productive of no good, but might do much harm by encouraging the delusive hopes and false impressions of the Mexicans, and that his recall would satisfy Mexico that the United States had no terms of peace more favorable to offer. Directions were given that any propositions for peace which Mexico might make should be received and transmitted, by the commanding general of our forces, to the United States.

“It was not expected that Mr. Trist would remain in Mexico, or continue in the exercise of the functions of the office of commissioner, after he received his letter of recall. He has, however, done so, and the plenipotentiaries of the Government of Mexico, with a knowledge of the fact, have concluded with him this treaty. I have examined it with a full sense of the extraneous circumstances attending its conclusion and signature, which might be objected to; but, conforming as it does, substantially, on the main questions of boundary and indemnity, to the terms which our commissioner, when he left the United States in April last, was authorized to offer, and animated as I am by the spirit which has governed all my official conduct towards Mexico, I have felt it to be my duty to submit it to the Senate for their consideration, with a view to its ratification."

President Polk, Mexican Treaty Message, Feb. 22, 1848.

As to criticisms on this negotiation, see infra, ( 154. “Until about the beginning of the eighteenth century treaties between European powers were generally written in Latin, but it has since been customary for negotiators of countries which do not use the same language to prepare their treaties in both languages; for instance, in the case of an American negotiating with a German plenipotentiary, the English version would appear side by side, article for article, with the German; and in Spain, or in the Spanish-American Republics, the English and Spanish languages would be used in the same way. Treaties between the United States and the British Government have been signed in the English language only. Our treaties with Russia are an exception to the general rule, most of them being written in French and English.

6 The French language is much used in diplomatic and social intercourse in Europe between persons of different nationalities. It is there generally so far regarded the common medium of communication that it is the exception to the rule to find a person in polite society who is not able to converse in and write it.”

Mr. Fish, Sec. of State, to Miss Fraser, Nov. 18, 1874. MSS. Dom. Let. “ 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 bad 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, cach 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. MSS. Notes,

Germ. Same to Sir L. West, May 6, 1885. MSS. Notes, Gr. Brit. Commissioners to execute a treaty must all agree to the same, and subscribe their names and attach their seals thereto.

1 Op., 66, Lee, 1796.

As to presents to ministers negotiating treaties, see supra, ý 110. “Whenever a diplomatic agent of the United States is intrusted with the negotiation of a treaty or convention, a full power will be given to

him.

" In case of urgent need a written international compact between a diplomatic agent and a foreign Government may be made in the absence of specific instructions or powers. In such cases it is preferable to give to the instrument the form of a simple protocol, and it should be ex. pressly stated in the instrument that it is signed subject to the approval of the signer's Government.

"The diplomatic agents of the United States will adhere to the prin. ciple of the alternat,' in all cases where they shall have occasion to sign any treaty, convention, or other document with the plenipotentiaries of other powers.

“For the convenience of diplomatic agents who may be instructed or empowered to negotiate and sign a treaty of convention with the Gov. ernment of a country where another language than English is officially employed, the following explanatory regulations touching the clerical preparation of such instrument are given:

“A. The texts of the two languages should be neatly engrossed in parallel columns on the same sheet, if possible, or on opposite pages of the same document. Two separate copies in different languages are not advisable, although this expedient is sometimes resorted to in the East. ern countries.

“B. In the copy to be retained by the diplomatic agent and transmitted to this Government, the United States is named first, in all places where the alternative change may conveniently be made throughout both texts. Conversely in both texts throughout the treaty the foreign Government is first named in the copy which it retains.

"0. The language of the Government which is to retain and publish the convention should always occupy the left-hand place in the copy to be delivered to it.

“D. The utmost care should be taken to insure the substantial equiv. alence of sense of the two texts, so as to exclude any erroneous effect due to translation. While 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.

“E. Inasmuch as in this country the pleasure of the Senate must be awaited before the treaty can be ratified, and as delays may accordingly supervene, it is the preference of this Government that it be provided

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