The enquirer. [volume] (Richmond, Va.) 1804-1815, 1810-01-20


! disaNowing the late arrangement. Mr..
Canning says, Mr.. Erskine was authorised
/, to make the arrangement on those condi-
| tioDs only, and these have not obtained!
/ call upon gentlemen to deny the statement
have made. They cannot. To our dis
grace IL is on record, & the record before US.
The course pursued by the gentleman from
Connecticut (Mr. Dana in discussing the
resolution before the House. renders il ne.
cessary to bring into view the whole OF the
late arrangement & disavowal. The gentle
man has told US
1. That the whole correspondence is
founded on an error on the part Of our own
executive, viz: that Mr.. Erskine could
make stipulations binding On his govern
ment in virtue of his general letter OF Gre
dence.
| 9. That in all cases where stipulations
are to be made by minister binding on his
government. there must be full power, OF.
as the gentleman terms it, patent power
,. That 1T was the duty ofthe executive of
the United States to have demanded of Mr.
Erskine, az preliminary to negotiation, the
production of the authority under which he
acted, whether it was contained in q full
power or instructions
The gentleman from Connecticut, (Mr.
Dana,) who on this occasion has certainly
displayed both learning and industry, seems
to have viewed the arrangement entered
into with Mr.. Erskine, as formal treaty,
and has applied to. it principles net Mt all
applicable TO what it really was, viz apre
! ,iminary arrangement to be succeeded by
treaty. All the authorities cited by the
gentleman are applicable only to treaties
embracing regulations of permanent cha
racter. The gentleman has correctly cited
various cases under the authority Of the u.
States: ], President Jefferson to Messrs
Monroe and PiDkney, letters of credenc-
and full power-President Adams, esvoys TO
France, letters of credence and full power
ans lastly, the case of MIR. Ha",mond under
General Washington's administration, who
had presented letters of credence, and was
nevertheless called upon to produce a sepa-
rate power.
In all these cases the ministers were to
form treaty. The last case between Mr..
Hammond and Mr.. Jefferson, embraced not
only treaty of commerce, but the adjust
'sent OF difficulties produced by failure on
ooth SIDES to execute Certain articles of a
treaty concluded under the old confederate
on. itnevcr has been doubted, but that n
separate power, independent of the letter of
credence. is necessary for the formation of
treaty embracing regulations of perma-
nent Character. The full power or patent
power, Oh which the gentleman from Con
4 "SN'iSul Ids sdiO 50 HUGH, was original
| ly designed to bind Princes to ratify the acts
OF their agents. 1t was much in use in the
10th, 18th, and part of the 18th centuries
when Princes were prone TO pelfidy. and
ocing considered according to Wicquefort,
as power Of attorney, absolutely bound the
sovereign. Indeed, the same author relates
instances where treaties were published be-
fore ratification, & says, that the ratification
Is not of the essence of treaty. 1t isnot.
however, doubted but that according to the
present usage OF nations, whether treaty is
concluded IN virtue OF a fell power or not,
sovereigns claim the right, to use the lam
guage OF Vattel, "not to lay any stres, upon
their treaties, util they have signed upon
and ratified them"--vid. Vattel, b. 2. chap.
:, sec 156.-By the same writer, the dis
| tlncuon is clearly laid down, between trea.
| ~ embracing permanent regulations, and
what are perInsd conventions on public af-
ialrs-vid. book 2. chap 12 sec. 2O7. The
reference which the gentleman has made
to the message OF President Madison. in
support OF his doctrine Of fall power, is "a
Their an unfortunate one.-Here Mr. +. rca;!
| the following extract
In consequence Of the provisions of the
act InterdiCting commercial intercourse
with Great Britain and France, our minis
tiers at London and Paris, were, without de-
lay, instructed to let it be understood by the
French and British governments, that the
! authority vested in the executive to renew
commercial intercourse with their respect
i've nations, would be exercised in the case
specified by that act.
Soon after these instructions were des
patched, it was found that the British 90
| vernment, anticipating. from early proceed.
| ings OF Congress, at their last session, the
state OF our laws, which has had the effect
OF placing the two belligerent powers on a
footing OF equal restrictions, and relying on
the conciliatory disposition of the United
States, hsd transmitted to their legation here,
provisional instructions, not only to offer
satisfaction for the attack on the frigate
| chesapeake, and to make known the deter
mination OF his Britannia majesty to send
an envoy extraordinary with powers to con
ciude treaty on all the points between the
two countries but, moreover, to signify his
Willingness, in the mean time to withdraw
MS orders in council. in the persuasion that
the intercourse with e.. Britain would be
renewed on the part Of the u. States"
Here then the form in which this ar
lrangement was made, is stated officially to
the gentleman from Connecticut. The ar
| ran6ement has none of the chara cteristic
features OF treaty. 1t has never, until the
present time, been considered as treaty
lt was stated by the President, az it really
was, as mere preliminary arrangement,
contemplating only a temporary withdrawal
OF CERTAIN measures, until the general relati-
ons CT the two countries could be fixed by for.
NAL treaty. On this part of the subject, to
wit: THAT the arrangement with Mr.. Frs
kline cannot be considered as Il formal trea
! y'---ttle observations of the rr ntlemau from