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SIR:

TO DON FRANCISCO DIONISIO VIVÉS 1

DEPARTMENT OF STATE, WASHINGTON, May 8, 1820.

In the letter which I had the honor of writing to you on the 3d instant, it was observed that all reference would readily be waived to the delays which have retarded the ratification by his Catholic Majesty of the treaty of the 22d February, 1819, and all disquisition upon the perfect right of the United States to that ratification, in the confident expectation that it would be immediately given upon the arrival of your messenger at Madrid, and subject to your compliance with the proposal offered you in the same note, as the last proof which the President could give of his reliance upon the termination of the differences between the United States and Spain by the ratification of that treaty.

This proposal was, that, upon the explanations given you on all the points noticed in your instructions, and with which you had admitted yourself to be personally satisfied, you went to Congress on the 9th. Messages and Papers of the Presidents, II. 71; Adams, Memoirs, May 6–9, 1820.

Poletica had intimated to Nesselrode in February, 1820, that the Missouri question would interfere with a settlement of the Florida question, and added: "Il est malheureux pour Monsieur Adams d'y compter des ennemis trés influents dans les deux Chambres [of Congress] et d'avoir en même temps à se garder des antagonistes même dans le Cabinet. Depuis quelque temps Monsieur Adams parait fort à battre et plus réservé que jamais: personne ne doute que ses chances pour arriver un jour à la Présidence ne soient presque entièrement détruites. On s'attend même à le voir déplacé après la réelection du Président actuel l'année prochaine. Dans ce cas je serai du nombre de ceux qui auront quelques raisons de le regretter. Mes relations personelles avec ce Ministre continuent à être très amicales: mais depuis la réunion du Congrès elles sont devenues très rares."

1 Printed in American State Papers, Foreign Relations, IV. 685.

should give the solemn promise, in the name of your sovereign, which by your note of the 19th ultimo,1 you had declared yourself authorized to pledge, that the ratification should be given immediately upon the arrival of your messenger at Madrid; which promise the President consented so far to receive as to submit the question for the advice and consent of the Senate of the United States, whether the ratification of Spain should, under these circumstances, be accepted in exchange for that of the United States heretofore given. But the President has, with great regret, perceived by your note of the 5th instant that you decline giving even that unconditional promise, upon two allegations: one, that, although the explanations given you on one of the points mentioned in your note of the 14th ultimo are satisfactory to yourself, and you hope and believe will prove so to your sovereign, they still were not such as you were authorized by your instructions to accept; and the other, that you are informed a great change has recently occurred in the government of Spain, which circumstance alone would prevent you from giving a further latitude to your promise previous to your receiving new instructions.

It becomes, therefore, indispensably necessary to show the absolute obligation by which his Catholic Majesty was bound to ratify the treaty within the term stipulated by one of its articles, that the reasons alleged for his withholding the ratification are altogether insufficient for the justification of that measure, and that the United States have suffered by it the violation of a perfect right, for which they are justly entitled to indemnity and satisfaction—a right further corroborated by the consideration that the refusal of ratification necessarily included the non-fulfilment of an

1 Printed in American State Papers, Foreign Relations, IV. 681. 2 Ib., 684.

other compact between the parties which had been ratified the convention of August, 1802.

While regretting the necessity of producing this proof, I willingly repeat the expression of my satisfaction at being relieved from that of enlarging upon other topics of an unpleasant character. I shall allude to none of those upon which you have admitted the explanations given to be satisfactory, considering them as no longer subjects of discussion between us or our governments. I shall with pleasure forbear noticing any remarks in your notes concerning them, which might otherwise require animadversion.

With the view of confining this letter to the only point upon which further observation is necessary, it will be proper to state the present aspect of the relations between the contracting parties.

The treaty of 22d February, 1819, was signed after a succession of negotiations of nearly twenty years' duration, in which all the causes of difference between the two nations had been thoroughly discussed, and with a final admission on the part of Spain that there were existing just claims on her government, at least to the amount of five millions of dollars, due to citizens of the United States, and for the payment of which provision was made by the treaty. It was signed by a minister who had been several years residing in the United States in constant and unremitted exertions to maintain the interests and pretensions of Spain involved in the negotiation - signed after producing a full power, by which, in terms as solemn and as sacred as the hand of a sovereign can subscribe, his Catholic Majesty had promised to approve, ratify, and fulfil whatever should be stipulated and signed by him.

You will permit me to repeat that, by every principle of natural right, and by the universal assent of civilized nations,

nothing can release the honor of a sovereign from the obligation of a promise thus unqualified, without the proof that his minister has signed stipulations unwarranted by his instructions. The express authority of two of the most eminent writers upon national law to this point were cited in Mr. Forsyth's letter of 2d October, 1819, to the Duke of San Fernando. The words of Vattel are: "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 transcended his instructions." 1 The words of Martens are:

Every thing that has been stipulated by an agent in conformity to his full powers, ought to become obligatory on the state from the moment of signing, without ever 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 until 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 the extent of his public full powers, has gone beyond his secret instructions, and consequently rendered himself liable to punishment, or when the other party refuses to ratify.2

In your letter of the 24th ultimo, you observe that these positions have already been refuted by your government, which makes it necessary to inquire, as I with great reluctance do, how they have been refuted.

The Duke of San Fernando, in his reply to this letter of Mr. Forsyth, says, maintains, and repeats "that the very authorities cited by Mr. Forsyth literally declare that the sovereign, for strong and solid reasons, or if his minister has

1 Liv. 2, ch. 12, § 156.

2 Liv. 2, ch. 3, § 31.

exceeded his instructions, may refuse his ratification; (Vattel, book 2, chap. 12,) and that public treaties are not obligatory until ratified." Martens, book 2, chap. 3. In these citations the Duke of San Fernando has substituted for the connective term and, in Vattel, which makes the proof of instructions transcended indispensable to justify the refusal of ratification, the disjunctive term or, which presents it as an alternative, and unnecessary on the contingency of other existing and solid reasons. Vattel says the sovereign must have strong and solid reasons, and particularly must show that the minister transcended his instructions. The Duke of San Fernando makes him say the sovereign must have strong and solid reasons, or if his minister has exceeded his instructions. Vattel not only makes the breach of instructions indispensable, but puts upon the sovereign the obligation of proving it. The Duke of San Fernando cites Vattel not only as admitting that other reasons, without a breach of instructions, may justify a refusal of ratification, but that the mere fact of such a breach would also justify the refusal, without requiring that the sovereign alleging should prove it. Is this refutation?

The only observation that I shall permit myself to make upon it is, to mark how conclusive the authority of the passage in Vattel must have been to the mind of him who thus transformed it to the purpose for which he was contending. The citation from Martens receives the same treatment. The Duke of San Fernando takes by itself a part of a sentence"that public treaties are not obligatory until ratified." He omits the preceding sentence, by which Martens asserts that a treaty signed in conformity to full powers is in rigor obligatory from the moment of signature, without waiting for the ratification. He omits the part of the sentence cited, which ascribes the necessity of a ratification to

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