"When the consular officer is engaged in trade, professional business or manufacture, the papers and archives relating to the business of the consulate must be kept separate and apart from all others."

OTHER STATE AGENTS.

69. There may be agents of a state who have no acknowledged diplomatic or consular character such as secret agents, special commissioners, bearers of dispatches, etc.

It

may be that under special circumstances a state may desire to send, and another state may desire to receive, an agent whose status and business is not publicly disclosed. So far as the sending and receiving states are concerned, such an agent is entitled to all the privileges and immunities which appertain to his office. As his status is not publicly known, he cannot, without disclosing it, claim its privileges, and such a disclosure would not accord with his mission, nor would he expect to be accorded privileges by third powers.

Agents are also sometimes sent to ascertain the condition of affairs in a territory where insurrection prevails, and in a more public manner to a recognized belligerent.

Commissioners are often sent on special foreign service, which does not require the grant of any diplomatic or consular privileges. Such commissioners may be sent for various services, as to fix boundary lines, arrange for highways of commerce between states, make investigations, etc. They are usually accorded such courteous treatment as will facilitate the performance of their functions.

Bearers of public dispatches, even though not the regular dispatch agents of a state, would, if their character were established, be accorded reasonable exemptions.

Some other state agents, such as spies, and those engaged in other secret service without the consent, tacit or direct, of the state in which they are may be expelled or treated in such manner as the authorities of the state where they are found may determine.

Sometimes such agents, while secretly in a foreign state, are allowed to remain without interference, as when reporting the movements of insurgent leaders, anarchists, etc.

70. A treaty is an agreement between two or more states in conformity to law.

A treaty is the most formal agreement between states, and usually relates to matters of general concern, as a treaty of peace, or to matters of high importance, as cession of territory. "A treaty is primarily a compact between independent nations. It depends for the enforcement of its provisions on the interest and the honor of the governments which are parties to it." Treaties are usually in writing. Treaties may relate to any subject within the competence of the treaty-making power. The term "treaty" is also loosely used as the general term to designate any form of international agreement.

Separate articles, or sole articles, explanatory of a treaty, may be agreed upon at the time of the negotiation of the treaty, or at a subsequent date, and are separately ratified.

1 Edye v. Robertson, 112 U. S. 580, 5 Sup. Ct. 247, 28 L. Ed. 798; The Diamond Rings, 183 U. S. 182, 22 Sup. Ct. 59, 46 L. Ed. 138. 21 Butler, Treaty Making of the United States, § 3.

OTHER AGREEMENTS BETWEEN STATES.

71. (a) A convention usually relates to some specific subject rather than to matters of general character, as in the case of a treaty.

(b) A protocol, or procès verbal, generally referring to an agreement already made or to be made, is usually less formal than a convention, both in phrasing and arrangement. Protocols are sometimes formally ratified by the treaty-making power, and sometimes are simply the signed minutes of a conference.

(c) An agreement, an arrangement or a modus vivendi, usually prescribes in detail the line of conduct which will be followed in interstate relations under certain conditions.

(d) Declarations are usually in the form of reciprocal agreements, relating to the rights and privileges of the nationals of the states. The term "declaration" is also applied to the formal statement of the principles in accord with which states propose to act, or to the formal statement of the grounds for an action.

(e) Cartels are agreements concluded between belligerents in regard to intercourse in time of war.

(f) Sponsions, or agreements sub spe rati, are agreements made between representatives of states not properly commissioned, or agreements made by representatives in excess of authority.

The terms "treaty," "convention," "protocol," etc., are often used without clear distinction.

(a) Convention is the usual term given to agreements in regard to consular relations, naturalization, extradition, postal relations, and the like.

(b) Protocols vary greatly, but generally are preparatory to a more formal agreement. A protocol was signed by the plenipotentiaries of the various powers at the conclusion of the so-called "Boxer Troubles" in 1900. A protocol, embodying the terms of a basis for the establishment of peace between the United States and Spain, was signed by the United States Secretary of State and the French Ambassador, representing Spain, on August 12, 1898 and was preliminary to the treaty For the nego

8 Foreign Relations U. S., 1901, Appendix, p. 306. tiations, signing, etc., see preceding pages.

of peace. The official minutes of a conference often take the form of a protocol, when signed by the accredited representatives.

(c) Arrangements, agreements, modi vivendi, take many forms and relate to many subjects. An arrangement was made between the United States and Great Britain in 1817 in regard to the naval force to be maintained upon the American boundary lakes. A reciprocal commercial agreement was entered into between the United States and France May 28, 1898.5 The United States and Great Britain have entered into many modi vivendi, particularly in regard to temporary adjustments of difficulties over fishing rights on the adjacent seas.

(d) Declarations frequently confer reciprocal trade-mark or copyright privileges upon the nationals of the states becoming parties thereto. The declaration of Paris of 1856 set forth the principles which the states proposed to follow in maritime warfare. A declaration of war usually sets forth the reasons for entering upon hostilities.

(e) Cartels are agreements between belligerents in regard to intercourse in time of war. Cartels have been made relating

4 "The naval force to be maintained upon the American lakes, by His Majesty and the government of the United States, shall henceforth be confined to the following vessels on each side; that is:

"On Lake Ontario, to one vessel, not exceeding one hundred tons burden, and armed with one eighteen-pound cannon.

"On the upper lakes, to two vessels, not exceeding like burden each, and armed with like force.

"On the waters of Lake Champlain, to one vessel, not exceeding like burden, and armed with like force.

"All other armed vessels on these lakes shall be forthwith dismantled, and no other vessels of war shall be there built or armed.

"If either party should hereafter be desirous of annulling this stipulation, and should give notice to that effect to the other party, it shall cease to be binding after the expiration of six months from the date of such notice.

"The naval force so to be limited shall be restricted to such services as will, in no respect, interfere with the proper duties of the armed vessels of the other party." 8 Stat. p. 231.

530 Stat. 1774.

• Modus vivendi respecting Fisheries on Newfoundland Treaty Coast, Oct. 6-8, 1906.

7 United States and Russian Agreement, March 28, 1874. Appendix, p. 487.

WILS. INT. L.-13

to telegraphic, mail, and like services, but most frequently relate to the exchange of prisoners.

(f) Sponsions, or agreements sub spe rati are often made where new conditions arise after negotiators are appointed, which make it seem expedient that an agreement should be made which is beyond their powers, and that it should be entered upon subject to subsequent rejection or ratification by their government. This form was more common in earlier times, when negotiators could not so easily communicate with their home governments and obtain extension of powers.

ESSENTIALS OF VALID TREATY.

72. It is generally recognized that the essentials of a valid treaty or contract between two or more states are:

(a) Capacity of the parties to contract.

(b) Duly empowered agents to act on behalf of the states. (c) Freedom of consent.

(d) An object in conformity to law.

(a) The capacity of a state to make a treaty may be limited in certain respects by its fundamental law, as is usually the case in states having written constitutions, even though the limitations are only implied, or may be limited by the relations which a state sustains to other states, as in the case of states whose existence is under restrictions, such as neutralized states.

(b) In every state certain agents have, under certain conditions, the power to bind their state by their contracts.10 If, however, these agents exceed their powers, the state is not bound. Where their acts are not ratified, and the state has received some material advantage as a result of the agreement

"The treaty power, as expressed in the Constitution, is in terms unlimited except by those restraints which are found in that instrument against the action of the government or of its departments, and those arising from the nature of the government and of that of the States." De Geofroy v. Riggs, 133 U. S. 258, 10 Sup. Ct. 295, 33 L. Ed. 642.

10 "He [the President] shall have power, by and with the advice and consent of the Senate to make treaties, provided two-thirds of the Senators present concur." Const. U. S., art. 2, § 2 (2).