§ 115. Views of Professor Hall.-William E. Hall, whose works to-day rank among the leading English authorities on divided into two kinds, for neither of which is there a good term in the English language. The first, called in German a Bundesstaat, comprises those unions in which the central authority alone can deal with foreign powers and settle external affairs, the various members of the Confederation having control over their internal affairs only. In the second, called a Staatenbund, are included all Confederations where the States which have agreed to unite have retained for themselves the power of dealing directly with others in some matters, the remaining external affairs being reserved by the federal bond to the central authority. Unions of the first kind have been called Supreme Federal Governments, unions of the second kind Systems of Confederated States. The best examples of the former now in existence are the United States of America and the Swiss Confederation. No good example of the latter remains to the present time; but the German Bund from 1815 to 1866 exhibited to the world in full perfection the disadvantages of this kind of union. From the point of view of International Law, a Bundesstaat does not differ from an ordinary Sovereign State. It forms but one state in relation to foreign powers, though internally it may consist of many states. But as these states have no right of sending and receiving diplomatic missions, or making peace of war, foreign powers have as little to do with them as they have with the administrative divisions of an ordinary state. The case of a Staatenbund is different. It is a bundle of separate states, each of which retains some of the rights of external sovereignty while it is deprived of the remainder. Accordingly the states which compose it must be placed by International Law among those part-sovereign communities which we have to consider as the second class among its subjects. They are something more than administrative divisions of a larger whole. They are something less than Sovereign States.

"It is sometimes exceedingly difficult to refer a given Confederation to either of the types depicted above. The Swiss Confederation, for instance, was at its inception a union of the looser kind. It is now a Supreme Federal Government, or Bundesstaat. But at certain periods of its history it could hardly have been called one or the other with any 'regard to accuracy. At the present time the new German Empire, which was constituted in 1871 in consequence of the successful war with France, is in much the same predicament. The central authority makes war and peace, sends and receives ambassadors, and negotiates treaties for political and commercial objects. But the governments of some of the states which form the empire have the right of accrediting diplomatic representatives to foreign powers and receiving representatives from them to deal with matters not reserved to the Imperial Government. Moreover, Bavaria and Saxony have ministers for foreign affairs. Probably the diplomatists in question are not overwhelmed with work; for it is difficult to discover in the Constitution of the Empire any matters left for them to deal with. But since a right of sepa

international law, referred to the treaty-making power in the following words: "It follows from the position of a State

rate diplomatic intercourse with foreign powers is vested in the more important of the federated states, we are unable to say that the Confederation is a true Bundesstaat, however insignificant the deflections from that type may be. At the same time it is equally impossible to call it a Staatenbund, in view of the fact that for all practical purposes the central authority alone transacts the external business of the Union. There can, however, be no doubt that, if the Confederation lasts, the subordinate states will rapidly lose whatever control over their relations with foreign powers they may still possess." Lawrence's Principles of International Law, Boston, 1895, section 45, pp. 60-63.

DR. PHILLIMORE'S VIEWS.

"C. We now arrive at the second branch of this part of our subjectnamely, the consideration of several States under a Federal Union. The examples in modern times of this description of States are the following:

"1. The Germanic Confederation (Der Deutsche Bund) (a), the North German Confederation from 1866 to 1871, the German Empire since 1871.

"2. The Confederated Cantons of Switzerland.

"3. The United Republics of North America.

"4. The United Republics of Central and South America:-namely, first, The United Provinces of Guatemala, or the Republic of Central America; secondly, The United Provinces of Rio de la Plata, or the Argentine Republic.

"CI. States under a Federal Union may be classed under two principal heads:-First. Those which have retained their Independent and Individual Sovereignty, especially as to the adjustment of their external relations with other Nations, and belong to a system of Confederated States only for purposes of domestic and internal policy, and of mutual assistance and defence. (Staatenbund) (b).

"But the Laws of this Federal Body have only effect and force in the separate members of the system through the agency and application of the particular laws and jurisdiction of each individual Government; therefore, as far as Foreign Power is concerned, these Confederated States must be considered as individually responsible for their conduct, and as separate Independent States. In this class must be ranked the existing Germanic Confederation.

"Secondly. The Federal Union may be so adjusted that the management of the external relations of the respective members of the Union be absolutely vested in a Supreme Federal Power." Phillimore's International Law, 3d edition, London, 1899, vol. 1, pp. 156-157.

GARDNER'S INSTITUTES.

"Nations, by their fundamental laws, may respectively limit the authority of the treaty-making power; but if there be no limitation,

as a moral being, at liberty to be guided by its own will, that it has the power of contracting with another State to do any acts which are not forbidden, or to refrain from any acts which are not enjoined by the law which governs its international relations, and this power being recognized by international law, contracts made in virtue of it, when duly concluded, become legally obligatory.

"The antecedent conditions of a treaty may be stated as follows: The parties to it must be capable of contracting; the agents employed must be duly empowered to contract on their behalf; the parties must be so situated that the consent of both may be regarded as freely given; and the objects of the agreement must be in conformity with law.

"All States which are subject to international law are capable of contracting, but they are not all capable of contracting for whatever object they may wish. The possession of full independence is accompanied by full contracting power; but the nature of the bond uniting members of a confederation, or joining protected or subordinate States to a superior, implies either that a part of the power of contract normally belonging to a State has been surrendered, or else that it has never been acquired. All contracts, therefore, are void which are entered into by such States in excess of the powers retained by, or conceded to, them under their existing relations with associated or superior States."1

§ 116. Views of Professor Pomeroy.-John Norton Pomeroy, whose opinion upon the general subject is strengthened by the fact that he is one of the leading authorities upon contreaties of peace as well as others, may, by virtue of the nation's right of eminent domain, and of a general treaty-making power, alien any part of the public domain or property, and abandon for the public advantage, all private claims and property of the citizens of either contracting party upon the other, or its citizens. (Wheat. Int. L. p. 4, c. 4, Sec. 1, 2, 3).

"In the United States, if private property and private claims are abandoned by a treaty of peace, as was done by our treaty of peace of 1848 with Mexico, the Constitution requires Congress to pay our citizens for the private property so abandoned; and it has been done." Gardner's Institutes of American International Law, New York, 1860, p. 584. $ 115.

X, SS 107-108, pp. 339-340, 4th edi

1 Hall's International Law, chap. tion, Oxford and London, 1895.

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."

§ 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 Professor 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." cording to Halleck, "the treaty-making power of the State is determined by its own Constitution and fundamental law." 8 The views of Professor Glenn and Professor Lawrence on this point are quoted in the note to this section.1

Ac

2 Vattel on the Law of Nations, | foreign states, relative to their Chitty and Ingraham, Philadelphia personal or dynastic pretensions to 1870, p. 192.

8 Halleck's International Law, Sir Sherstone Baker's 3d English edition, London, 1893, vol. 1, p. 276.

GLENN.

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