stitutional law of the United States, says: "The right to enter into treaties at will is certainly one of the most important that belong to States. As all States are equal, they all have the same capacity to contract with other bodies politic. Deprive a nation of any portion of this capacity, and we would reduce it from its position of equality, and at the same time would restrict its complete independence and sovereignty. The want of complete power, therefore, to enter into treaties is a sure badge of inferiority and dependence. The very definition indicates that all sovereign independent States have full capacity to enter into whatever treaties they please. The right of negotiating and contracting treaties is one of the rights most essential to sovereignty and equality. A protected State may, if it has retained its sovereignty, enter into treaties and alliances, unless the power has been expressly renounced or cannot be exercised consistently with the conditions of its protection. But so far as the capacity had been surrendered or restricted, just so far would the State have limited its attributes of sovereignty and equality."1 § 117. Constitutional limitations on treaty-making.— While the power to make treaties is vested in the highest power, its exercise may, of course, be subject to certain constitutional limitations. This is the case with the United States, the Constitution of which requires the ratification of treaties made by the Executive by a two-thirds vote of the Senate.1 The element of sovereignty in the Central Government, and the power of negotiation in the Executive thereof, however, are not affected by such limitations, as they do not detract from the completeness of the power, when it is properly and constitutionally exercised. This point was thoroughly appreciated as an elementary principle of international law prior to the adoption of the Constitution and even of the Articles of Confederation. § 116. treaty-making power of the United post. 1 Pomeroy's International Law, States, §§ 268-271 of this volume, Woolsey's Edition, chap. IX, §§ 258 -260, pp. 323-324, Boston and New York, 1886; See also views of Pro-| fessor Pomeroy as to extent of § 117. 1U. S. Constitution, article II, § 2, clause 2. Vattel who, at the middle of the eighteenth century was one of the leading authorities on international law, says: "Public treaties can only be made by the superior powers, by sovereigns, who contract in the name of the State. The sovereign who possesses the full and absolute authority has, doubtless, a right to treat in the name of the State he represents; and his engagements are binding on the whole nation. But all rulers of States have not a power to make public treaties by their own authority alone: some are obliged to take the advice of a senate, or of the representatives of the nation. It is from the fundamental laws of each State that we must learn where resides the authority that is capable of contracting with validity in the name of the State." According to Halleck, "the treaty-making power of the State is determined by its own Constitution and fundamental law." The views of Professor Glenn and Professor Lawrence on this point are quoted in the note to this section." 2 Vattel on the Law of Nations, Chitty and Ingraham, Philadelphia 1870, p. 192. Halleck's International Law, Sir Sherstone Baker's 3d English edition, London, 1893, vol. 1, p. 276. GLENN. foreign states, relative to their personal or dynastic pretensions to the government of a country. "The three classes of agreements mentioned above are all of such a nature as to form no part of public international law, as they are either made between a state and private individuals or by agents of the state in their individual char "Essentials of valid Treaty. "100. Treaties Defined. Treaties are agreements made and en-acter. tered into by one independent state with another, or others, in conformity to law, by which it places itself under an obligation. The following agreements are not considered treaties: "(a) Agreements entered into by a state with private individuals. "(b) Agreements concluded between a state and the church upon religious or political matters, and especially concordats of different states with the pope. "(c) Agreements concluded by sovereigns or sovereign dynasties, whether among themselves or with "101. The essentials of a valid treaty or contract between two or more independent 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) The object of the contract must be in conformity to law. "Every independent state is capable of entering into treaties with another state or states, but the fundamental law of a state may impose certain restrictions upon § 118. Commencement of modern period of international law. Although treaties and leagues existed in ancient and medieval times, they did not begin to assume the prominent part in the political history of the world which they have since attained, and now occupy, until the middle of the seventeenth century and shortly after Hugo Grotius, whose memory was so fitly celebrated by the American delegates to the Peace Conference at The Hague, had surprised all thinking men with his great book De Jure Belli ac Pacis, published in 1625. According to Dr. Wheaton, whose views in this respect have been generally adopted, the peace of Westphalia of 1648, which was evidenced by the treaty made at that time and place between the principal nations of Europe, may be chosen as the epoch from which the history of modern international law commences; this great transaction marks a most important era, not only in the history of international law, but also in the progress of European civilization.1 § 119. Disregard of colonies in treaties made by European powers as to American affairs.-From that time it became the settled custom of the great powers of Europe to the method of entering into such making treaties rests with those agreements, which must be taken into consideration by the parties to the contract. In the United States and other confederations the executive or treaty-making power cannot finally conclude treaties without the consent of the legislative bodies. The latter have to concur, and up to the time that this final consent of the concurring body has been obtained the other parties to the contract can withdraw their assent, unless this right has been waived." Glenn's International Law, St. Paul, 1895, pp. 139-142. LAWRENCE. authorities to whom it is confided 1 Wheaton's History of the Law of Nations, p. 69, New York, 1845; Walker's History of the Law of "We will now pass on to consider the treaty-making power and its methods of action, in so far as they are dealt with by International Nations, Cambridge, 1899, p. 147Law. In each state the right of 148. adjust all matters of dispute at the conclusion of every war by treaties. During the seventeenth and eighteenth centuries the American possessions of the European powers were in the early stages of development, their value was uncertain, and they were frequently used as make-weights in the adjustment of European disputes. The vast tracts of sparsely settled territory on the western side of the Atlantic were parceled out, sold, exchanged or otherwise disposed of, or affected in some manner, either as to the ownership thereof, or the sovereignty thereover, without any regard whatever to the wishes of the inhabitants, but simply according to the relative strength of the European nations, which were constantly engaged in warfare with each other, and which often found these possessions available in forcing settlements, or obtaining concessions, in their European controversies. Thus the treaty of Utrecht in 1713, and the treaty terminating the French and English war in 1763, as well as other treaties, greatly altered the relations of the American colonies to their European motherlands, notwithstanding the fact that the colonists had no voice whatever in framing or ratifying them.' During this period the frequent transfers from one nation to another of colonial possessions, and sovereignty thereover, as well as the frequent similar transfers of European possessions § 119. 1Some of the principal treaties made by European powers prior to 1783 and which affected American colonies were as follows: was one of the contests finally resulting in the overthrow of the French power in America. By Section 7 it is provided as follows: "The most Christian King shall restore to the said King of Great Britain, all countries, islands, forts, and colonies, wheresoever situated, which the English did possess before the declaration of this present war. And in like manner the King of Great Britain shall restore to the most Christian King all countries, islands, forts, and colonies, wheresoever situated, which the French did possess before the said declaration of war; and this restitution shall be made, on both sides, within the space of six months, or (1) The Treaty of Ryswick, between England and France concluded September 10-20, 1697, being "Articles of Peace between the most Serene and Mighty Prince William the Third, King of Great Britain, and the most Serene and Mighty Prince Lewis the Fourteenth, the most Christian King, concluded in the Royal Palace at Ryswick, the 10-20 day of September, 1697." This treaty was the conclusion of the war of the Palatinate, known as King William's, or Frontenac's War, which | sooner if it can be done. firmly established, as a principle of international law, the right of sovereign powers to negotiate and conclude treaties affecting territory, and the transfer thereof, by and through the highest sovereign power having jurisdiction over the transferred territory, without regard to the wishes of the people, or, as it has been lately expressed, "the consent of Section 8 provided for the formali- ship between his Britannic Maties in connection with the trans-jesty, the most Christian King, and fer. For a summary of this treaty the States General of the United and references to the authorities | Provinces; concluded at Aix-larelating thereto see Macdonald's Chapelle, the 18th day of October, Select Charters of American His- N. S. 1748; to which the Empress, tory, pp. 222, 223. See also Chal- Queen of Hungary, the Kings of mers' Collection of Treaties, vol. I, Spain and Sardinia, the Duke of pp. 332-340. Modena, and the Republic of Genoa, have acceded." By this treaty, at the conclusion of the War of the Austrian Succession, known in America as King George's War, Art. V provided: "V. All the conquests that have been made since the commencement of the war, or which, since the conclusion of the preliminary articles, signed the 30th of April last may have been or shall be made, either in Europe, or the East or West Indies, or in any other part of the world whatsoever, being to be restored without exception, in conformity to what was stipulated by the said preliminary articles, and by the declarations since signed; the high contracting parties engage to give orders immediately for proceeding to that restitu (2) The Treaty of Utrecht, between England and France, March 31-April 11, 1713, being "The Treaty of Peace and Friendship between the most Serene and most Potent Princess Anne, by the grace of God, Queen of Great Britain, France, and Ireland, and the most Serene and most Potent Prince Lewis the XIVth, the most Christian King, concluded at Utrecht, the 31-11 day of March-April, 1713." This treaty was concluded between France and Great Britain on the termination of the war of the Spanish succession, which in America was known as Queen Anne's War. Arts. X-XV (quoted at length in Macdonald's Select Charters) relate to the restoration by France to Great Britain of Hudson Bay and Newfoundland, France retaining tion. Canada. It appears in Chalmers' Collection of Treaties, vol. I, pp. 340-390. See also Macdonald's Select Charters of American History, pp. 229-232. (3) The Treaty of Aix-la-Chapelle, October 18, 1748, between England, France, The Netherlands, and other powers, being "The Definitive Treaty of Peace and Friend Art. IX provided for the details for the restoration of the conquered territory. An abstract of this treaty, together with memorandum of authorities in regard thereto, will be found in Macdonald's Select Charters of American History, pp. 251-253. See also Chalmers' Collection of Treaties, vol. I, pp. 424-442. |