CHAPTER II.

RIGHTS OF NEGOTIATION AND TREATIES.

THE power of negotiating and contracting public 1. Fatreaties between nation and nation exists in full vigor tracting by culty of conin every sovereign State which has not parted with this treaty, how portion of its sovereignty, or agreed to modify its exer- modified. cise by compact with other States.

limited or

Semi-sovereign or dependent States have, in general, only a limited faculty of contracting in this manner; and even sovereign and independent States may restrain or modify this faculty by treaties of alliance or confederation with others. Thus the several States of the North American Union are expressly prohibited from entering into any treaty with foreign powers, or with each other, without the consent of the Congress; whilst the sovereign members of the Germanic Confederation retain the power of concluding treaties of alliance and commerce, not inconsistent with the fundamental laws of the Confederation.1

The constitution or fundamental law of every particular State must determine in whom is vested the power of negotiating and contracting treaties with foreign powers. In absolute, and even in constitutional monarchies, it is usually vested in the reigning sovereign. In republics, the chief magistrate, senate, or executive council is intrusted with the exercise of this sovereign power.

No particular form of words is essential to the conclu-2. Form sion and validity of a binding compact between nations. of treaty, The mutual consent of the contracting parties may be given expressly or tacitly; and in the first case, either verbally or in

1 See Pt. I. ch. 2, §§ 23-24, pp. 59-72.

writing. It may be expressed by an instrument signed by the plenipotentiaries of both parties, or by a declaration, and counter declaration, or in the form of letters or notes exchanged between them. But modern usage requires that verbal agreements should be, as soon as possible, reduced to writing in order to avoid disputes; and all mere verbal communications preceding the final signature of a written convention are considered as merged in the instrument itself. The consent of the parties may be given tacitly, in the case of an agreement made under an imperfect authority, by acting under it as if duly concluded.1

§ 3. Cartels, truces,

and capitu

There are certain compacts between nations which are concluded, not in virtue of any special authority, lations. but in the exercise of a general implied power confided to certain public agents, as incidental to their official stations. Such are the official acts of generals and admirals, suspending or limiting the exercise of hostilities within the sphere of their respective military or naval commands, by means of special licenses to trade, of cartels for the exchange of prisoners, of truces for the suspension of arms, or capitulations for the surrender of a fortress, city, or province. These conventions do not, in general, require the ratification of the supreme power of the State, unless such a ratification be expressly reserved in the act itself.2

§ 4. Spon- Such acts or engagements, when made without sions. authority, or exceeding the limits of the authority under which they purport to be made, are called sponsions.

1 Martens, Précis, liv. 2, ch. 2, §§ 49, 51, 65. Heffter, § 87.

The Roman civilians arranged all international contracts into three classes. 1. Pactiones. 2. Sponsiones. 3. Fœdera. The latter were considered the most solemn; and Gaius, in the recently discovered fragments of his Institutes, speaking of the supposition of a treaty of peace concluded in the simple form of a mere pactio, says: "Dicitur uno casu hoc verbo (Spondesne? Spondeo.); peregrinum quoque obligari posse, velut si Imperator noster Principem alicujus peregrini populi de pace ita interrogetur: quod nimium subtiliter dictum est ; quia si quid adversus pactionem fiat, non ex stipulatu agitur, sed jure belli vindicatur." Comm. iii. § 94.)

2 Grotius, de Jur. Bel. ac Pac. lib. iii. cap. 22, §§ 6-8. Vattel, Droit des Gens, liv. ii. ch. 14, § 207.

These conventions must be confirmed by express or tacit ratification. The former is given in positive terms, and with the usual forms; the latter is implied from the fact of acting under the agreement as if bound by its stipulations. Mere silence is not sufficient to infer a ratification by either party, though good faith requires that the party refusing it should notify its determination to the other party, in order to prevent the latter from carrying its own part of the agreement into effect. If, however, it has been totally or partially executed by either party, acting in good faith upon the supposition that the agent was duly authorized, the party thus acting is entitled to be indemnified or replaced in his former situation.'

§ 5. Full

ratification.

As to other public treaties: in order to enable a public minister or other diplomatic agent to conclude and sign power and a treaty with the government to which he is accredited, he must be furnished with a full power, independent of his general letter of credence.

Grotius, and after him Puffendorf, consider treaties and conventions, thus negotiated and signed, as binding upon the sovereign in whose name they are concluded, in the same manner as any other contract made by a duly authorized agent binds his principal, according to the general rules of civil jurisprudence. Grotius makes a distinction between the procuration which is communicated to the other contracting party, and the instructions which are known only to the principal and his agent. According to him, the sovereign is bound by the acts of his ambassador, within the limits of his patent full-power, although the latter may have transcended or violated his secret instructions.2

1 Grotius, de Jur. Bel. ac Pac. lib. ii. cap. 15, § 16; lib. iii. cap. 22, §§ 1-3. Vattel, Droit des Gens, liv. ii. ch. 14, §§ 209–212. Rutherforth's Inst. b. ii.

ch. 9, § 21.

2" Et in generali præpositione accidere potest ut nos obliget qui præpositus est, agendo contra voluntatem nostram sibi soli significatam: quia hi distincti sunt actus volendi: unus, quo nos obligamus ratum habituros quicquid ille in tali negotiorum genere fecerit; alter, quo illum nobis obligamus, ut non agat nisi ex præscripto, sibi non aliis cognito. Quod notandum est ad ea quæ legati promittunt pro regibus ex vi instrumenti procuratorii, excedendo arcana mandata. Grotius, de Jur. Bel. ac Pac. lib. ii. cap. xi. § 12. Puffendorf, de Jur. Naturæ et Gent. lib. iii. cap. ix. § 2.

This opinion of the earlier public jurists, founded upon the analogies of the Roman law respecting the contract of mandate or commission, has been contested by more recent writers.

Bynkershoek lays down the true principles applicable to this subject, with that clearness and practical precision which distinguish the writings of that great public jurist. In the second book of his Quæstiones Juris Publici, (cap. vii.) he propounds the question, whether the sovereign is bound by the acts of his minister, contrary to his secret instructions. According to him, if the question were to be determined by the ordinary rules of private law, it is certain that the principal is not bound where the agent exceeds his powers. But in the case of an ambassador, we must distinguish between the general full-power which he exhibits to the sovereign to whom he is accredited, and his special instructions, which he may, and generally does retain, as a secret between his own sovereign and himself. He refers to the opinion of Albericus Gentilis, (de Jure Belli, lib. iii. cap. xiv.) and that of Grotius above cited, that if the minister has not exceeded the authority given in his patent credentials, the sovereign is bound to ratify, although the minister may have deviated from his secret instructions. Bynkershoek admits that if the credentials are special, and describe the particulars of the authority conferred on the minister, the sovereign is bound to ratify whatever is concluded in pursuance of this authority. But the credentials given to plenipotentiaries are rarely special, still more rarely does the secret authority contradict the public full-power, and most rarely of all does a minister disregard his secret instructions.1 But what if he should disregard them? Is the sovereign bound to ratify in pursuance of the promise contained in the full-power? According to Bynkershoek, the usage of nations, at the time when he wrote, required a ratification by the sovereign to give validity to treaties concluded by his minister, in every instance, except in the very rare case where the entire instructions were contained in the patent full-power. He controverts the position

1" Sed rarum est quod publica mandata sint specialia, rarius quod arcanum mandatum publico sit contrarium, rarissimum verò, quod legatus arcanum posterius spernat, et ex publico priori rem agat." Bynkershoek, Quæst. Jur. Pub. lib. ii. cap. vii.

of Wicquefort, (l'Ambassadeur et ses Fonctions, liv. 2, § 15,) condemning the conduct of those princes who had refused to ratify the acts of their ministers on the ground of their contravening secret instructions. The analogies of the Roman law, and the usages of the Roman people, were not to be considered as an unerring guide in this matter, since time had gradually worked a change in the usage of nations, which constitutes the law of nations; and Wicquefort himself, in another passage, had admitted the necessity of a ratification to give validity to the acts of a minister under his full-power.1 Bynkershoek does not, however, deny that, if the minister has acted precisely in conformity with his patent full-power, which may be special, or his secret instructions, which are always special, even the sovereign is bound to ratify his acts, and subjects himself to the imputation of bad faith if he refuses. But if the minister exceed his authority, or undertake to treat points not contained in his full-power and instructions, the sovereign is fully justified in delaying, or even refusing his ratification. The peculiar circumstances of each particular case must determine whether the rule or the exception ought to be applied.2

Vattel considers the sovereign as bound by the acts of his

1 "Sed quod olim obtinuit, nunc non obtinet, ut mores gentium sæpe solent mutari, nam postquam ratihabitionem usus invaluit, inter gentes tantum non omnes receptum est, ne fœdera et pacta, a legatis inita, valerent nisi ea probaverint principes, quorum res agitur. Ipse Wicquefort (eodem Opere, 1. 1, sect. 16,) necessitatem ratihabitionum satis agnoscit hisce verbis: Que les pouvoirs, quelques amples et absolus qu'ils soient, aient toujours quelque relation aux ordres secrets qu'on leur donne, qui peuvent être changés et altérés, et qui le sont souvent, selon les conjonctures et les revolutions des affaires." Ibid.

2"Non tamen negaverim, si legatus publicum mandatum, quod forte speciale est, vel arcanum, quod semper est speciale, examussim sequutus, foedera et pacta ineat, justi principis esse ca probare, et nisi probaverit, malæ fidæi reum esse, simulque legatum ludibrio; sin autem mandatum excesserit, vel fæderibus et pactis nova quædam sint inserta, de quibus nihil mandatum erat, optimo jure poterit princeps vel differe ratihabitionem, vel plane negare. Secundum hæc damnaverim vel probaverim negatas ratihabitiones, de quibus prolixè agit Wicquefort, (d. L. ii. sect. 15.) In singulis causis, quas ipse ibi recenset, ego nolim judex sedere, nam plurimum facti habent, quod me latet, et forte ipsum latuit. Non immeritò autem nunc gentibus placuit ratihabitio, cùm mandata publica, ut modo dicebam vix unquam sint specialia, et arcana legatus in scriniis suis servare solent, neque adeo de his quicquam rescire possint, quibuscum actum est." Ibid.