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INTRODUCTION

NAPOLEON III of France and Francis Joseph of Austria, each exercising of his own right sovereign powers, met and signed, July 11, 1859, the preliminary peace of Villafranca. A treaty thus concluded is perfected as an international compact immediately upon the signing. The Holy Alliance, which was, however, of a peculiarly personal nature, was likewise signed in person September 26, 1815, by the sovereigns of Russia, Prussia and Austria. The secret treaty of Tilsit of July 7, 1807, although not signed by the sovereigns themselves, embodied the results of the personal conference on the Niemen between the Czar Alexander and Napoleon I. For states, other than those in which the sovereign power is legally centered in a single person, to meet in their sovereign capacity, is quite inconceivable. The organization and powers of the agency through which such a state contracts are defined by its fundamental law, or constitution. Although in the ultra-democratic movement of 1793 in France, propositions were made to require the submission of treaties to the people, as sovereign, for approval, such a requirement is hardly to be contemplated. The delegation of authority to enter into treaties must of practical necessity be final, and an obligation constitutionally contracted is binding on the entire state. The determination of the agency in the different states intrusted with this power is the first step in a work on treaty-making.

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It is a principle of public law that a sovereign state is restrained only by self-limitations or by such as result from a recognition of like powers in others. Accordingly the full power to enter into treaties is an attribute of every such state, as likewise a limitation on its exercise is a first mark of dependence. It does not follow that the power resides unrestricted in the regularly constituted treaty-making organ. A subject with which it assumes to deal may be intrusted by the state to another organ of government, and the consent of that organ may be necessary to the exercise of the power. In a federal system of government the subject may possibly be reserved to the several States or even to the people, but the power nevertheless exists, and the presumption always is, if there is no express limitation to the contrary, that the state intended that the power vested in the regularly constituted organ should extend to all the usual subjects of international regulation, and should be sufficient to meet any exigency arising from contact with other states.

The powers of the special agents (for it would seldom be practicable for the treaty-making organs of two states to meet in conference) appointed to conduct and conclude negotiations, are defined by special commissions and instructions. By the earlier writers on international law, living at a time when the theory of personal sovereignty generally obtained, and the negotiator was the immediate agent of the sovereign, the rule of the Roman law, that the principal is bound by the agent acting within his powers, was applied to treaty negotiations.' The advantages of intrusting full and general

See Grotius, Bk. ii, ch. xi, sec. 12; Puffendorf, Bk. iii, ch. ix, sec. 2; Vattel, Bk. ii, ch. xii, sec. 156.

powers to the negotiators, and the importance of the trust have led recent writers quite generally to admit that, even if no reservation be made in the treaty or full powers, ratification, expressly or tacitly given, is essential to the validity of the treaty, and may for strong and substantial reasons be refused.' The qualification that the ratification may be refused, when the negotiator has acted within his powers, only for strong and substantial reasons, has application only in case his powers and instructions are given by the full treaty-making power of the state. For instance, in the United States a treaty is regularly negotiated on the authority of the President, while its ratification cannot be given without the authorization of the Senate. The plenipotentiary, commissioned and instructed by the President alone, acts not on the authority of the treaty-making power, but only on that of a separate branch of it. The act of the plenipotentiary is not the act of the state, for the President cannot thus delegate a power not intrusted to him. The negotiator can bind at most only his principal.

The maxim, “qui cum alio contrahit vel est, vel debet esse non ignarus conditionis ejus,” applies in the making of treaties. To know the powers of him with whom negotiations are conducted requires a knowledge not only of his special mandate and powers, the exhibition of which may always be demanded before the opening of the negotiations, but also of the fundamental law, or constitution, of the state which he professes to represent, as also of any limitations that may result from an incomplete sovereignty, as, for instance, in case of a semiindependent or permanently neutralized state. To the

See to the contrary, Phillimore (2d ed.), vol. ii, p. 75; Klüber (2d ed.), p. 202. See also, Heffter, sec. 87.

validity of a treaty it is essential that the contracting parties have power over the subject-matter, that consent be reciprocally and regularly given, that the object of the treaty be possible and lawful according to principles of international law.

Consent is considered as freely given in the case of treaties under conditions of misrepresentation and duress that might render contracts voidable. Says Wharton, “If suppressio veri abrogated treaties to the extent it abrogates contracts, few treaties would stand." ; In the negotiation of treaties the parties are supposed to be on the same footing, and with equal opportunities of ascertaining the facts. Treaties of peace cannot be avoided by the unsuccessful nation on the ground that concessions have been extorted by threat of the further use of force. “It was," says Vattel, “her own free choice to prefer a certain and immediate loss, but of limited extent, to an evil of a more dreadful nature, which,

' International Law Digest, vol. ii, sec. 133.

• During the negotiations leading up to the Webster-Ashburton treaty, a map supposed to be very favorable to the British contention as to the northeastern boundary, was unearthed by Jared Sparks in his researches in Paris. It was shown by Mr. Webster to the commissioners from Maine, but not to Lord Ashburton. Subsequently it became public by being sent to the Senate. In the midst of the popular outcry that followed in England, an English diarist records (Greville, February 9, 1843), “At the same time our successive governments are much to blame in not having ransacked the archives at Paris, for they could certainly have done for a public object what Jared Sparks did for a private one, and a little trouble would have put them in possession of whatever that repository contained.” Lord Ashburton, who had reason to complain, if such reason there were, in a communication of February 7, 1843, said, “The public are very busy with the question whether Webster was bound in honor to damage his own case by telling all. I have put this to the consciences of old diplomatists without getting a satisfactory answer. My own opinion is that in this respect no reproach can fairly be made.Ibid., pp. 177, 180.

though yet at some distance, she had too great reason to apprehend.": Phillimore draws a possible analogy in this respect to a private contract entered into to avoid, or to stop litigation, which, although the party was induced to enter into it through the apprehension of delay, expense, and the uncertain event of a lawsuit, is nevertheless binding. Force or intimidation applied, however, to the person of the negotiator, in whom is vested the full and final treaty-making power of the state—and unless the power were thus fully and finally vested, the right of ratification would render the use of force futile -vitiates the agreement. Such a case is hardly to be imagined at the present time, and the paucity of recent instances is attested by the uniformity with which writers refer to the concessions extorted from Ferdinand VII at Bayonne.

The importance of the subject-matter, the frequent changes in the personnel of the contracting organs, the inability to confirm by witness the utterances of a state, render it more necessary that contracts between nations should be carefully expressed in writing than contracts between individuals. While no particular form is essential to the validity of a treaty, it is the practice in formal treaties to make out and sign under seal as many counterparts as there are parties, one counterpart to be retained by each. In case of two parties only, which have no common language, each counterpart is usually made out in the languages of both. The texts sometimes appear on separate sheets but more often in parallel columns or on opposite pages, the text in the language of the nation by which the counterpart is to be retained occupying the left hand column or page.

'Bk. iv, ch. iv, sec. 37.

Vol. ii, pp. 71, 72.

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