But this is not all. Besides the treaty with France, there is another between Hayti and Dominica. I have no copy of it. The resolution which I introduced the other day calls for it. I became acquainted with it through the protest which I hold in my hand, made by the Government of Hayti to Mr. Seward, as Secretary of State, and dated at Washington the 5th of February, 1868, against the sale and purchase of the Bay of Samana. In the course of this protest I find the following allegation:—
“That there is a treaty between the Government of Hayti and that of San Domingo to the effect that no part of the island can be alienated by either of the two Governments.”
Now the point which I present to the Senate, and seek to impress, is, that Hayti, having these claims on Dominica, is interdicted from their pursuit by an American commodore.
But perhaps I may be told—I see my friend, the Senator from Indiana, is taking notes—that the American commodore was justified under the Law of Nations. I meet him on that point. How could he be justified? How could the Law of Nations sanction such a wrong? The only ground would be, that during the pendency of the negotiation, or while the treaty was under consideration, the Government of the United States would protect the territory to be transferred. I have seen that impossible pretension put forth in newspapers. I call it “impossible.” It is unfounded in the Law of Nations. Our ships, during the negotiation of the treaty and during its consideration in the Senate, had no more right or power in those waters than before the negotiation. Only when the treaty was consummated by the act of the Senate giving to it advice and consent, could we exercise any semblance of jurisdiction there. Every effort at jurisdiction until that time was usurpation. I read now from Wheaton’s authoritative work on International Law, page 337,[263] being part of the section entitled, “The treaty-making power dependent on the municipal constitution”:—
“In certain limited or constitutional monarchies the consent of the legislative power of the nation is in some cases required for that purpose. In some republics, as in that of the United States of America, the advice and consent of the Senate are essential, to enable the chief executive magistrate to pledge the national faith in this form. In all these cases it is consequently an implied condition, in negotiating with foreign powers, that the treaties concluded by the executive government shall be subject to ratification in the manner prescribed by the fundamental laws of the State.”
The Chief Magistrate can pledge the national faith only according to the Constitution.
Now I turn to another place in this same authoritative work, being page 718,[264] and read as follows:—
“A treaty of peace binds the contracting parties from the time of its signature.”
Then follows an emphatic note from the very able commentator, Mr. Dana:—