by granting actions bona fide in the cases we have already mentioned as well as others, of all of which Gaius gives us a careful enumeration in the passage (IV, 62) beginning: sunt autem bonae fidei iudicia haec; et empto vendito, locato conducto, negotiorum gestorum, mandati, depositae, etc.

In the next generation and in the pages of Livy we find the term jus gentium employed with significations of quite a different character from those familiar to the law courts. With Livy the term is more consonant to a description of public than of private affairs; for example (IV, 1, 2), when speaking of the reluctance of the patricians to entertain the project proposed by Canuleius of granting the jus conubium to the plebeians, he makes the patricians allude to the privileges of their order as the rights of the ancient gentes,-jura gentium. But for the most part Livy recognizes in our term jus gentium the conduct of embassies, the declaring of war, or conclusion of peace, as well as treaties.

The terms jus belli or jus belli et pacis, the law of war and peace, is also a familiar expression to him. Thus, in the instance of the traitorous Tarquinian ambassadors (II, 2, 7), he represents the immunity given by jus gentium as saving the envoys from punishment well merited by their treachery. Again (II, 12, 14) Porsenna spares Mucius really by reason of his bravery and devotion to Rome, though Livy makes Porsenna declare that he frees him by the custom of peoples or law of nations (jure belli liberum te intactum inviolatumque hinc dimitto). Again, when describing the celebrated incident at the Caudine Forks, Livy makes Postumius attempt a fictitious injury to the herald in order that war may be again declared between Rome and Samnium; and Postumius is made to declare, illum legatum fetialem a se contra ius gentium violatum.

Many other instances might be cited, but enough, we think, has been said to indicate the clear apprehension in the Roman mind of a system of at least formal international principles which tended to safeguard envoys and imposed upon nations certain formalities in the declaration of war or conclusion of peace. Such ceremonies were in the special charge of the collegium of fetiales, whose members exercised both priestly and diplomatic functions.

To this system the terms jus belli and jus gentium were readily applied. They are picturesquely described by Livy (I, 32). There was in them beyond doubt a suggestion of the universal, and this certainly constituted at least a foreshadowing of what we now term international law. In any event, as many passages in Livy and not a few in contemporary Roman authors well indicate, the phrase jus gentium connoted in the thought of the early empire a usage between peoples based on a clear apprehension of fundamental moral principles; nor is this supposition invalidated through the savage war usages so prevalent both in the early and later history of Rome. In fact, it is perhaps not too much to suppose that had Rome not won universal empire, the ancient world might well have witnessed the development of a rational system of international intercourse springing from clearly defined legal principles. Hence it was that the celebrated Isidore, Archbishop of Seville, in a famous passage of his encyclopædic work (Origines), alludes to the jus naturale as basis of a jus civile and a jus gentium, having, perhaps, in mind both of the systems to which the Romans applied this term and which we have noticed above.

It was not, however, until the period of the general awakening of the sixteenth century, signalized in legal literature by a series of works on the laws of war and diplomacy, that we find a conception not of a system of law binding individuals of different nationalities in their private rights, but rather aimed in the first instance at softening the rigors of war and upon this path arriving at outlines of a system of interstate relations governing peoples as such. We first find such a conception in the work of Ferdinand Velasquez, who died in 1566 at the age of fifty-five. His book was published at Venice in 1564, and found an echo in the work De Jure et Officiis Bellicis of Ayala, Judge Advocate of Spain in the Netherlands, who wrote apparently during actual experience of camp life and with a wide knowledge of Roman and Canon law. His successor in point of time was Albericus Gentilis, an Italian who found a home and professional vocation in Oxford, and who exhibited, in the famous work which to some extent inspired Grotius, every evidence of classical scholarship and a profound moral sense as well. The experience of Gentilis was of such varied character that his works (Jus Legationis and De Jure Belli)

may be said to have been in some part the legitimate products of wide participation in diplomacy and practical legal affairs. As an adviser of the English Court, Gentilis obtained a great reputation, and his works, familiar to every student of international law, may be readily classed among those which will not die.

We have noted at the outset that Grotius sat down to write his masterpiece in a spirit which sought to propound the first principles of a law between nations, as distinct from those of a system of jurisprudence governing courts when dealing with citizens in their private affairs; but he also endeavored to posit such a foundation in the moral consciousness of man. He looks at a system of law governing nations in their mutual intercourse, therefore, in the light of universal concepts drawn from the ancient ideas of an unwritten law of right reason combined with a system striving to develop the sense of equality and fairness in the personal dealings of men. It was in this manner that the true jus gentium, as well as the unwritten law of Cicero's thought, united in the greatest writer upon international law to found a science which cannot easily yield its place to any theories of the conduct of war or peace which shall sanction modes of international intercourse not in consonance with humanity and civilization. The atrocious doctrine of war necessity, the traitorous ambassador, must, in the future development of international relations, disappear. If the world is to be settled at all in the enjoyment of a definite system of international right, it must be settled in the light of such principles as these, principles which trace their inception and development far beyond definitely known periods of European history and are in fact as ancient as civilization itself.1

GORDON E. SHERMAN.

1 Authorities: Agraphos Nomos, R. Hirzel; Peregrinenrecht und Jus Gentium, J. Baron; Römische Rechtsgeschichte, 1, 450 seq., Karlowa; Les Institutions Juridiques des Romains, E. Cuq., 1, 457 seq.; Le Droit des Gens dans les Rapports de Rome avec les Peuples de l'Antiquité, M. Chauveau; Mommsen, Römisches Staatsrecht, 2, 1, p. 185 seq.; Clark, Practical Jurisprudence.

TREATIES AND THE CONSTITUTIONAL SEPARATION OF

POWERS IN THE UNITED STATES

THE Constitution wholeheartedly accepted Montesquieu's theory 1 of the separation of the powers of government into three departments, and the courts have maintained as a fundamental principle of constitutional law that no department shall exercise powers properly belonging to either of the others.2 The treaty-making power is established in Article II of the Constitution dealing with the executive, and consequently treaty-making has been ordinarily considered one power of the executive department. It is, however, stated that "the executive power shall be vested in a President of the United States of America," 3 whereas the treaty-making power is vested in the President acting "by and with the advice and consent of the Senate - provided two-thirds of the senators present concur." 4 Furthermore "treaties made ... under the authority of the United States" are "the supreme law of the land." Thus, both by composition and function the treaty-making power appears to be fully as much legislative as executive, a situation. emphasized by Hamilton in the Federalist. 6

5

1 Montesquieu, L'Esprit des Lois, liv. xi, c. 6. See also Garner, Introduction to Political Science, New York, 1910, pp. 406 et seq.

2 Kilbourne v. Thompson, 103 U. S. 188; Interstate Commerce Commission v. Brimson, 154 U. S. 447. The principle is implied from the first section of the first three articles of the Constitution. See also Farrand, Records of the Federal Convention, 2: 56, 77; the Federalist, Nos. 47, 48; J. P. Hall, Constitutional Law, Chicago, 1910, p. 16.

3 Art. 2, sec. 1, cl. 1.

Art. 2, sec. 2, cl. 2. Executive participation in treaty-making was an afterthought. The treaty power under the Articles of Confederation was vested in Congress (Art. 9). In the first draft of the Constitution prepared by the Federal Convention, the treaty power was vested in the Senate alone (Report of Committee on Detail, Aug. 6, 1787, Art. 9; Farrand, Records of the Federal Convention, 2: 183), and proposals were made to vest it in Congress (Farrand, 2: 297, 392, 538). Art. 6, sec. 2.

The Federalist, No. 75. The treaty power is really neither executive nor legislative, since its ends transcend the domestic purposes of ordinary legislation as

Regarding the treaty-making power as a distinct department of government, the question of constitutionality might arise, in case it attempted to perform or delegate functions assigned by the Constitution to another department.

TREATY POWER AND LEGISLATIVE POWER

The Constitution states that "all legislative powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives." But as treaties are made the supreme law of the land, it is clear that some legislative authority is vested in the treaty-making power. A treaty could scarcely be regarded as a usurpation of the powers of Congress and unconstitutional simply because it was legislative. To so regard it would destroy the meaning of the phrase in Article VI. Question could only arise in case the treaty concerned matters specifically assigned by the Constitution to Congress.

1. The Constitution provides that "no money shall be drawn from the treasury, but in consequence of appropriations made by law." In accord with the resolutions 10 adopted by Congress after the extensive much as its means, characterized by the contraction of permanent obligations of general effect, differ from the methods of ordinary execution and administration. John Locke divided the departments of government into legislative, executive, and federative, attributing to the latter the function of dealing with foreign nations. The "federative" thus corresponds to the treaty-making power and is distinguished from the executive or power of law enforcement and administration. (Locke, Two Treatises of Government, c. xii, secs. 143, 144, 146.) A combination of the classifications of Locke and Montesquieu suggests a fourfold classification of departments of government into legislative, judicial, executive, and federative. See also E. Root, this JOURNAL, 1: 278.

Art. 1, sec. 1, cl. 1.

The inconsistency was seen by some members of the Federal Convention who thought that treaties should not become “law” “till ratified by legislative authority." (Farrand, 2: 297, 392, 538.) See also remarks by Gallatin in debate on the Jay Treaty, 1796, Annals, 4th Cong., 1st sess., p. 464. Some legislative power has also been vested in American ministers in countries where the United States enjoys extraterritorial jurisdiction. They exercise a limited power to legislate for citizens of the United States, even in criminal matters. (Rev. Stat., sec. 4086; Cushing, Att. Gen., 1855, 7 Op. 495, 504; Moore, 2: 617.)

Art. 1, sec. 9, cl. 7.

10 This resolution, which was largely the work of Madison, agreed that the