which may be traced back to the remotest time, sufficiently shows, that if one of the two parties duly offers his ratification, the other party cannot refuse his in return, except so far as his agent may have transcended the limits of his instructions, and consequently is liable to punishment; and that, at least regularly, it does not depend upon the unlimited discretion of one nation to refuse its ratification by alleging mere reasons of convenience" (q). Martens remarks, in a note to the third edition of his work, published after Klüber's had appeared, that the latter is of a contrary opinion, as to the obligation of one party to exchange ratifications when proposed by the other; "and as he (Klüber) considers the ratification as necessary only where it is reserved in the full power, or in the treaty itself (which is at present rarely omitted), it seems that this author deduces from this reservation the right of arbitrarily refusing the ratification, which I doubt" (r). This observation of Martens appears to be founded on a misapprehension of the meaning of Klüber. Although he has not, perhaps, guarded his meaning with sufficient caution, further examination has convinced us that neither Klüber, nor any other institutional writer, has laid down so lax a principle, as that the ratification of a treaty, concluded in conformity with a full power, may be refused at the mere caprice of one of the contracting parties, and without assigning strong and solid reasons for such refusal. The expressions used by Vattel, that "before a sovereign can honourably refuse to ratify that which has been concluded in virtue of a full power, he must have strong and solid reasons, and, in particular, he must show that his minister has deviated from his instructions," may seem to imply that he considered such deviation as a necessary ingredient in the strong and solid reasons to be alleged for refusing to ratify. But several classes of cases may be enumerated, in which, it is conceived, such refusal might be justified, even where the minister had not transcended or violated his instructions. Among these the following may be mentioned: 1. Treaties may be avoided, even subsequent to ratification, Justification upon the ground of the impossibility, physical or moral, of ful- of refusal to ratify. filling their stipulations. Physical impossibility is where the party making the stipulation is disabled from fulfilling it for want of the necessary physical means depending on himself. Moral (7) Martens, Précis, § 48. (r) Martens, Précis (3rd ed.), note f. impossibility is where the execution of the engagement would affect injuriously the rights of third parties. It follows, in both cases, that if the impossibility of fulfilling the treaty arises, or is discovered previous to the exchange of ratifications, it may be refused on this ground. 2. Upon the ground of mutual error in the parties respecting a matter of fact, which, had it been known in its true circumstances, would have prevented the conclusion of the treaty. Here, also, if the error be discovered previous to the ratification, it may be withheld upon this ground. 3. In case of a change of circumstances, on which the validity of the treaty is made to depend, either by an express stipulation (clausula rebus sic stantibus), or by the nature of the treaty itself. As such a change of circumstances would avoid the treaty, even after ratification, so if it take place previous to the ratification, it will afford a strong and solid reason for withholding that sanction. When treaties Every treaty is binding on the contracting parties from the begin to bind. date of its signature, unless it contains an express stipulation to the contrary. The exchange of ratifications has a retroactive effect, confirming the treaty from its date (s). The intervention in 1840 of four of the great European Powers in the internal affairs of the Ottoman Empire, affords a remarkable example of a treaty concluded by plenipotentiaries, which was not only held to be completely binding between the contracting parties, but the execution of which was actually cominenced before the exchange of ratifications. Such was the case with the Convention of the 15th July, 1840, between Great Britain, Austria, Prussia, Russia, and Turkey. In the secret protocol annexed to the treaty, it was stated that, on account of the distance which separated the respective courts from each other, the interests of humanity, and weighty considerations of European policy, the plenipotentiaries, in virtue of their full powers, had agreed that the preliminary measures should be immediately carried into execution, and without waiting for the exchange of ratifications, consenting formally by the present act, and with the assent of their courts, to the immediate execution of these measures. (8) Martens, Précis, § 48. Essai concernant les Armateurs, § 48. Klüber, Droit des Gens Moderne de l'Europe, § 48. Heffter, Das Europäische Völkerrecht, § 87. This anomalous case may, at first sight, seem to contradict the principles above stated, as to the necessity of a previous ratification, to give complete effect to a treaty concluded by plenipotentiaries. But further reflection will show the obvious distinction which exists between a declaration of the plenipotentiaries, authorized by the instructions of their respective courts, dispensing by mutual consent with the previous ratification; and a demand by one of the contracting parties, that the treaty should be carried into execution without waiting for the ratification of the other party (t). constitution. The municipal constitution of every particular State deter- The treatymines in whom resides the authority to ratify treaties negotiated dependent on making power and concluded with foreign Powers, so as to render them obli- the municipal gatory upon the nation. In absolute monarchies, it is the prerogative of the sovereign himself to confirm the act of his plenipotentiary by his final sanction. In certain limited or constitutional monarchies, the consent of the legislative power of the nation is, in some cases, required for that purpose. In some republics, as in that of the United States of America, the advice and consent of the Senate are essential, to enable the chief executive magistrate to pledge the national faith in this form. In all these cases, it is, consequently, an implied condition in negotiating with foreign Powers, that the treaties concluded by the executive government shall be subject to ratification in the manner prescribed by the fundamental laws of the State. "He who contracts with another," says Ulpian, “knows, or ought to know, his condition." ("Qui cum alio contrahit, vel est, vel debet esse non ignarus conditionis ejus" (u).) But, in practice, the full powers given by the Government of the United States to their plenipotentiaries always expressly reserve the ratification of the treaties concluded by them, by the President, with the advice and consent of the Senate. sary to the The treaty, when thus ratified, is obligatory upon the contracting Auxiliary legislative States, independently of the auxiliary legislative measures, which measures, may be necessary on the part of either, in order to carry it into how far necescomplete effect. Where, indeed, such auxiliary legislation becomes validity of a treaty. necessary, in consequence of some limitation upon the treatymaking power, expressed in the fundamental laws of the State, or necessarily implied from the distribution of its constitutional powers-such, for example, as a prohibition of alienating the (t) Martens, Nouveau Recueil Général, tome i. p. 163. Cf. Holland, European Concert on the Eastern Question, pp. 90 seq. (u) L. 19, D. de div. R. J. 50, 17. American Courts on commencement of treaties. national domain-then the treaty may be considered as imperfect in its obligation, until the national assent has been given in the forms required by the municipal constitution. A general power to make treaties of peace necessarily implies a power to decide the terms on which they shall be made; and, among these, may properly be included the cession of the public territory and other property, as well as of private property included in the eminent. domain annexed to the national sovereignty. If there be no limitation expressed in the fundamental laws of the State, or necessarily implied from the distribution of its constitutional authorities on the treaty-making power in this respect, it necessarily extends to the alienation of public and private property, when deemed necessary or expedient (x). Commercial treaties, which have the effect of altering the existing laws of trade and navigation of the contracting parties, may require the sanction of the legislative power in each State for their execution. Thus the commercial treaty of Utrecht, between France and Great Britain, by which the trade between the two countries was to be placed on the footing of reciprocity, was never carried into effect-the British Parliament having rejected the Bill which was brought in for the purpose of modifying the existing laws of trade and navigation, so as to adapt them to the stipulations of the treaty (y). In treaties requiring the appropriation of moneys for their execution, it is the usual practice of the British Government to stipulate that the king will recommend to parliament to make the grant necessary for that purpose. Under the Constitution of the United States, by which treaties made and ratified by the President, with the advice and consent of the Senate, are declared to be "the supreme law of the land," it seems to be understood that the Congress is bound to redeem the national faith thus pledged, and to pass the laws necessary to carry the treaty into effect (z). The Supreme Court of the United States has laid down as a principle of international law that, respecting the rights of either Government under it, a treaty is considered concluded and binding from the date of its signature. In this regard the exchange of ratifications has, as stated in the text, a retroactive effect, confirming the treaty from its date. But a different rule prevails where the treaty operates on individual rights. The principle of (y) Lord Mahon, History of England from the Peace of Utrecht, vol. i. (x) Grotius, De Jur. Bel. ac Pac. on P. 24. relation does not apply to rights of this character, which were vested before the treaty was ratified. In so far as it affects them, it is not considered as concluded until there is an exchange of ratifications (a). The reason of the rule is this. In America a treaty is something more than a contract, for the Federal Constitution declares it to be the law of the land. 'If so, before it can become a law, the Senate, in whom rests the authority to ratify. it, must agree to it. But the Senate is not required to adopt or reject it as a whole, but may modify or amend it; thus in 1897 the Senate rejected a proposed treaty with Great Britain providing for the reference of future disputes between the parties to a court of arbitration, and in 1900 in a treaty relating to the Panama Canal it introduced amendments which Great Britain did not accept. As the individual citizen on whose rights of property it operates has no means of knowing anything of it while before the Senate, it would be wrong in principle to hold him bound by it, as the law of the land, until it was ratified and proclaimed. And to construe the law, so as to make the ratification of the treaty relate back to its signing, thereby divesting a title already vested, would be manifestly unjust (b). By the general principles of private jurisprudence, recognised by most, if not all, civilized countries, a contract obtained by violence is void. Freedom of consent is essential to the validity of every agreement, and contracts obtained under duress are void, because the general welfare of society requires that they should be so. If they were binding, the timid would constantly be forced by threats, or by violence, into a surrender of their just rights. The notoriety of the rule that such engagements are void, makes the attempt to extort them among the rarest of human crimes. On the other hand, the welfare of society requires that the engagements entered into by a nation under such duress as is implied by the defeat of its military forces, the distress of its people, and the occupation of its territories by an enemy, should be held binding; for if they were not, wars could only be terminated by the utter subjugation and ruin of the weaker party. Nor does inadequacy of consideration, or inequality in the conditions of a treaty between nations, such as might be sufficient to set aside a contract as between private individuals on the ground of gross inequality or (a) U. S. v. Arredondo (1832), 6 lace, 34. Peters, 735. (b) Haver v. Yaker (1869), 9 Wal See also U. S. v. Reynes (1850), 9 Howard, 148, 289; Foster v. Neilson (1829), 2 Peters, 314. Freedom of consent, how far necessary to the validity of treaties. |