The war was at an end, and the treaty, as ratified by the
United States, was binding on both parties, and already executed in a
great degree. In this condition of things it was not competent for the
President alone, or for the President and Senate, or for the President,
Senate, and House of Representatives combined, to abrogate the treaty,
to annul the peace and restore a state of war, except by a solemn
declaration of war.
Had the protocol varied the treaty as amended by the Senate of the
United States, it would have had no binding effect.
It was obvious that the commissioners of the United States did not
regard the protocol as in any degree a part of the treaty, nor as
modifying or altering the treaty as amended by the Senate. They
communicated it as the substance of conversations held after the Mexican
Congress had ratified the treaty, and they knew that the approval of the
Mexican Congress was as essential to the validity of a treaty in all its
parts as the advice and consent of the Senate of the United States. They
knew, too, that they had no authority to alter or modify the treaty in
the form in which it had been ratified by the United States, but that,
if failing to procure the ratification of the Mexican Government
otherwise than with amendments, their duty, imposed by express
instructions, was to ask of Mexico to send without delay a commissioner
to Washington to exchange ratifications here if the amendments of the
treaty proposed by Mexico, on being submitted, should be adopted by the
Senate of the United States.
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