The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1866-05-20

Lorente be false since is to be found the counter
reasons on the margin and since Mr. Bem dez de Gas
o is pleased, In his speech, 70 show that he had
ceeded in having il accepted by Mr. Vale Restra And
with regard thereto must say that although Mr. Ber,
mudez de Castro may have found justicatory reason
for the insertion OF that clause In the fact that similar
clauses had been inserted in the other treaties with
American republics. the case was neither identical nor
analogous, inasmuch as there already existed prior
their respe tive bad zen received II
these two facts did not amount to solemn recognition
OF the independence OF Peru the part of SPAIN it fol-
lows tnat the most authentic facts prove nothing and II
they did amount ~ such recognt on the compulsory
seron OF the new clause had other object than TO
impose new humiliation upon Peru.
Mr.. Bermudez de Castro supposes that the Peruvian
government has carried its desire of conceang the truth
OF the acts TO such point as 70 present in the manifest
the occurrences OF the 9th February 1866, evil
dence OF the ilLwill Of SPAN The Spaniards are
charged with being the aggressors, when, according to
the Minister Of States version, the sailors who that
day landed in perfect confidence the innocent VIC
TINS OF an I'm expected attack Mr. BermudeZ dc Castro
s.es tt On the Sth OF Fepruary General Parea gave
leave to part of the officers and OF his vessels
ashore, and that at the moment when they landing
unarmed defenceess and quiet they assaulted by
the popuace-by agents in dIsguse-who followed and
ill-treated them
Mr. Bermudez de Castro undoubtedly accepted General
Pareas not unprecedented version of these occurrences
but from the official documents OF Peru it appears,
lst-That although the superintendent of Police Of
Caao was unable the day after the affair, to state
positively whether the prOvocation had been given by
The Spanish sailors or by the people of the town 1t
was generally said that the former armed, and pro-
which led TO all the disorder page 1873 of the Colec
tion.) 2dThat from and after the day subsequent TO
the Simultaneous salute by the Spanish vessels and
the port of Caao boats had come of every morning
and at various hours OF the day nlled with
people belonging to the Spanish ships, TO procure
provisions and for other purposes, and that OF
the commanders and officers of the squadron landed and
pass into some OF the streets and that neither these
nor the others had occasion TO complain of the behavior
Of the townspeope page 1867 Had the events in ques
ton taken place depicted by Mr. Bermudez de Castro
1t not true that it is more probable they would have oc-
CURED on the first day on which the Spanlards came
ashore2 Some melting cause was needed to move the
people Of Caao to do the 9th Of February what they
had not done on the preceding days and that cause was
none other than the aggression of the spanish sailors
What the Callao Superintendent Of Police was unable
to assert at once in positive manner although IL was
the general voice, was afterwards fully proved in the
proceedings instituted for the purpose of asceranng the
true Of the In the collection Of
documents page 1877 your Excellency will find the
declarations of six Witnesses which clearly show that
the provocatlon came from the spanards, and that
the first victim was child. II seems superduous
for me to note to your Excellency that those de-
caratons are corroborated by more than twenty
others, upon the same point, contained in the record
tproceso In the tumult which ensued the weapons
used by the people stones while the Spanards we're
seen now attacking and then defending themselves with
daggeB aid revolvers. The truth of the case then in
stead OF being concealed was presented fully and as
appears in the only documents worthy Of belief
Mr. Bermudez de Castro has also occupied himself with
that part the manifest which demonstrated the
legal judicial rights which the Peruvian nation and
government had TO refuse TO recognize the validity OF
the treaty Of 9th january. Mr. Bermudez dc Castro
most trivial principles Of common law and the law of
nations IN order TO refute the assertions Of the manifest
and to prove that a solemn treaty should always be
respected especially when the greater part Of its
clauses have already been uned that all the premises
all the consequences set down in the manifest would be
good for protest against the government which made
and ratified the treaty. in said government should
have acted contrary to the constitution Of the country
but that neither the Minister of state his
have anything TO do with that tor when General Pezet
thought proper to make the treaty TO sanction and to
ratify il, it did not belong to the Spanish govern
within the constitution Of Peru; in fine that the
legality Of the ratification and execution Of the treaty
was question Of internal policy tor which the Peruvian
government alone could be responsible, This doctrine Of
the Minister Of State confirmed by Mr.. Lorente
Minister of the same rank who, in his perOraon char
acterzed as frivolous pretexts the reasons given in the
manifest.
Whatever importance may be ascrbed in the Spanish
Senate to the judgment Of two statesmen versed IN inter-
national affairs cannot but be astonshed that such
men, before such body and in the presence Of Europe
should emit opinions direct opposition the rules Of
common law and Of that law Of nations TO which they
have just appealed.
It Is principle Of common law that contracts made by
incompetent persons or by any one who enters into an
obligation anoher's without sufficient authority,
null and Of no effect whatever; and that nulity not
only authorizes the party 70 against
po acto exempts him from the fulnment thereof That
which applies TO contracts between individuals also ap
plies to compacts between nations
ut is important" says Bello IN his Elements OF In
ernaonal Law part one, chapter one section four ITO
m exactly N VIVA. or oScy TINS
the constitution Of the state, for compac,s entered into
with any other authority are null 1t Is moreover ne
cesssay that the acts Of such sovereignty should not
transcend the sphere OF the powers conferred upon by
the constitution for every contracs in which they should
be exceeded would also be null Further on the author
in speaking particularly Of public treaties chapter nine
section one refers to the doctrine above transcribed,
maintaining that treaties null among other causes,
when the contracting parties incompetent and when
the requirements Of the constitution have been omitted
Kent in his commentaries on American Laws, speak,
ing Of the ratification OF treaties, says Part H. Sec
tha of ic
sary to give effect to treaty II is not the law Of the
land until that concurrence Is given"
Kluber teaches that treaties only be concluded in
valid manner by the authority (which usually is the
governmen which represents the State towards fore gn
nations either Immediately BY itself or through The
TO the constitutional laws OF the state and he adds that
the constitution may require the concurrence mandate
ratification Of Diet Of Senate of an Assembly, Of
the people, Of the representatives OF nation, &c Part
IL, tit H., sec. l, chap -
Martens in his summary of the Law Of Modern Nations
In Europe book 2, chap q 4sD in speaking Of the
authority Of the negotators Of treaty sets forth the
following doctrine THE validity OF treaty depending
essentially on the mutual consent OF both parties, Is
necessary that he who signs treaty in the OF the
state shall have been sufficiently authorized by the la
have concluded IT. IL belongs TO the positive copstitu-
ton of every State to determine how far sovereign In
monarchies may, by himself or such council in iepub
lies by ITSELF bind nation by treaties signed by them
which they may authorize their subordinaes TO sign
Whatever may be promised by the chief his subord
nate outside Of the limits OF the authority conferred
Isponio) which only he obligatory upon the nation
through the Subsequent consent thereof either expressed
implied
Wheaton is still more explicit in his Elements OF In
ternaional Law. Part ii., chap. sec o. He states
as foovs;-"Thc municipal constitution Of every par
tcuar state determines whom resides the authority
to raty treaties negotiated and concluded with foreign
Powers, 10 render them obligatory upon the nation
In absolute chies II Is the prerogative Of the
reign himself 20 confirm the act OF his penpotentary
by his final sanction In certain limited or constitu.
ona monarchics the consent Of the legislative power Of
the nation IT, In required Tor that purpose
In republics in that Of the United States Of
America the advice and consent Of the
al enable the chief executive magistrate pledge
the national faith this FORM In all these is,
consequently, an implied condition in negotiating with
foreign Powers that the treaties concluded by the
tive government shall be subject 10 ratification In the
prescribed by the fundamental laws OF the State
He who contracts with another says Uipan, knows
ought TO know, his condition. QUi aho ccmrda
rei ct vel debt use garus cond,onis Gus H. ~ d.
de div X j., so, Ivy
No quotations were, nor should any have been made
In the manifest; but principles of common and nterna-
tonal Law were invoked, which, being, according TO Mr..
Bermudez de Castro, very trivial II 70 be pre-
sumed would be but familiar 20 tho statesmen Of
spain. The teachings OF the writer's international
law which have just mentioned clearly show that a
question which relates 10 the nature Of the powers with
which government Is clothed to pledge the national