sanction. In other cases, that is wherever the treaty-making power of the sovereign is final, the older writers held that he was bound by the acts of his agent, if the latter acted within the full power which he had received, even though he had gone contrary to secret instructions. But Bynkershoek defended another opinion which is now the received one among the text-writers, and which Wheaton has advocated at large with great ability. (Wheaton's El., B. III, 2,§ 5; Bynkershoek, Quæst. J. P., II, 7; de Martens, § 48.) If the minister has conformed at once to his ostensible powers and to his secret instructions, there is no doubt that in ordinary cases it would be bad faith in the sovereign not to add his ratification. But if the minister disobeys or transcends his instructions, the sovereign may refuse his sanction to the treaty without bad faith or ground of complaint on the other side. But even this violation of secret instructions would be no valid excuse for the sovereign's refusing to accept the treaty, if he should have given public credentials of a minute and specific character to his agent; for the evident intention in so doing would be to convey an impression to the other party that he is making a sincere declaration of the terms on which he is willing to treat. "But even when the negotiator has followed his private instructions, there are cases, according to Dr. Wheaton, where the sovereign may refuse his ratification. He may do so when the motive for making the treaty was an error in regard to a matter of fact, or when the treaty would involve an injury to a third party, or when there is a physical impossibility of fulfilling it, or when such a change of circumstances takes place as would make the treaty void after ratification. "All question would be removed, if in the full power of the nego tiators or in a clause of the treaty itself, it were declared that the sov ereign reserved to himself the power of giving validity to the treaty by ratification. This, if we are not deceived, is now very generally the case." Woolsey, 107. * Some publicists, especially Vattel, consider a minister as invested with the power of a mandatory, and hold that his acts are subject to the same rules as those by which the acts of mandatories are governed. Hence they conclude that as obligations entered into by a mandatory within the scope of his authority bind the mandatant, so the same obligations entered into by a plenipotentiary within the scope of his authority bind his sovereign. (Vattel, droit des gens, liv. II, ch. xii, § 156. Kluber, dr. des gens, § 141; Grotius, de jure belli, liv. II, ch. xi, § 12; Pufendorf, de jure naturæ, liv. III, ch. ix, § 2.) This theory has been rightly contested by other publicists, among whom are Schmalz, Bynkersoëk, Pinheiro-Ferreira, and Wheaton, and more recently by Calvo. (Bynkersoëk, Quest. jur. pub., liv. 11, ch. vii; Vergé, note sur Martens, § 48; Schmalz, dr. des gens, ch. iii, 53; Ortolan, Diplomatie de la mer, liv 1, ch. v; Wheaton, dr. int., t. 1, ch. ii, § 5; Heffter, dr. int., § 85; Calvo, dr. int., § 697.) These authors maintain that a mission confided by a sovereign to his diplomatic agents for the purpose of concluding an international convention on a specific basis cannot be assimilated to a mandate, and is not, therefore, governed by the rules by which mandates are governed. * As a matter of strict law we cannot accept the rule of Bluntschli that when the representatives of a state have received the necessary power to definitely conclude a treaty, the signature of the protocol or of the special docu * ment incorporating the treaty definitely binds the contracting parties (Dr. int., § 419), or that of Field (Int. Code, § 192), who admits the necessity of ratification only in cases in which the treaty itself expresses the condition of ratification. In our opinion, the power of contracting a binding international agreement is an act of sovereignty which only the person invested with such sovereignty is capable of performing. A minister is not such a person; he is only a negotiator. Nevertheless, according to the laws of diplomatic comity and of honor, it should be admitted that a sovereign ought not, unless for grave public reasons, to refuse to ratify a treaty signed by an envoy with full power. 2 Fiore, droit int., §§ 991, 993 (French Trans. by Antoine), Paris, 1885. "The rule that a treaty is vitiated by a material error is logically deducible from the notion of a contract. The rule, on the other hand, that a treaty concluded by an authorized agent who has not exceeded his instructions, has nevertheless no force till it is ratified, cannot be so proved; it appears at first sight to be at variance with ordinary legal analogies, and with morality; and jurists, trespassing beyond their proper province, have commonly laid down that ratification, under such circumstances, is a moral duty. It is, however, a settled rule, with the advantage which a settled rule possesses, of being a thing ascertained and indisputable. It is an extra precaution, an artificial safeguard, against improvident or ill considered engagements, exactly analogous to those rules of private law which require for certain private contracts a specified form of words, a notarial act, a payment of earnest, or a signature. That it is salutary and convenient is an opinion sound, I have no doubt, but which may be disputed like any other opinion; that it is a settied rule is a fact, which may be proved by evidence, like any other fact." Bernard on Diplomacy, 174. (2) AS TO LEGISLATION. "Having been a member of the general convention, and knowing the principles upon which the Constitution was formed, I have ever enter tained but one opinion on this subject, and from the first establishment of this Government to this moment my conduct has exemplified that opinion, that the power of making treaties is exclusively vested in the President, by and with the advice and consent of the Senate, provided two-thirds of the Senators present concur; and that every treaty so made and promulgated thenceforward became the law of the land. It is thus that the treaty-making power has been understood by foreign nations, and in all the treaties made with them we have declared, and they have believed, that, when ratified by the President, with the advice and consent of the Senate, they became obligatory." * * "As, therefore, it is perfectly clear to my understanding that the assent of the House of Representatives is not necessary to the validity of a treaty; as the treaty with Great Britain exhibits in itself all the objects requiring legislative provision, and on these the papers called for can throw no light; and as it is essential to the due administration of the Government that the boundaries fixed by the Constitution between the different departments should be preserved, a just regard to the Constitution and to the duty of my office, under all the circumstances of this case, forbid a compliance with your request." President Washington, Special Message, Mar. 3, 1796, on Jay's treaty. "By the Constitution of the United States, the department of legislation is confined to two branches only of the ordinary legislature; the President originating and the Senate having a negative. To what subject this power extends has not been defined in detail by the Constitution, nor are we entirely agreed among ourselves. (1) It is admitted that it must concern the foreign nation, party to the contract, or it would be a mere nullity, res inter alios acta. (2) By the general power to make treaties, the Constitution must have intended to comprehend only those objects which are usually regulated by treaty, and cannot be otherwise regulated. (3) It must have meant to except out of these the rights reserved to the States, for surely the President and Senate cannot do by treaty what the whole Government is interdicted from doing in any way. (4) And also to except those subjects of legislature in which it gave a participation to the House of Representatives. This last exception is denied by some on the ground that it would leave very little matter for the treaty power to work on. The less the better, say others. "The Constitution thought it wise to restrain the Executive and Senate from entangling and embroiling our affairs with those of Europe. Besides, as the negotiations are carried on by the Executive alone, the subjecting to the ratification of the Representatives such articles as are within their participation is no more inconvenient than to the Senate. But the ground of this exemption is denied as unfounded. For, examine, c. g., the treaty of commerce with France, and it will be found that out of thirty-one articles there are not more than small portions of two or three of them which would not still remain as subjects of treaties, untouched by these exceptions." Mr. Jefferson, Man. of Parl. Prac. (N. Y., 1876), 110. "We conceive the constitutional doctrine to be that though the President and Senate have the general power of making treaties, yet wherever they include in a treaty matters confided by the Constitution to the three branches of legislature, an act of legislation will be requisite to confirm these articles, and that the House of Representatives, as one branch of the legislature, are perfectly free to pass the act or to refuse it, governing themselves by their own judgment whether it is for the good of their constituents to let the treaty go into effect or not. On the precedent now to be set will depend the future construction of our Constitution, and whether the powers of legislation shall be transferred from the President, Senate, and House of Representatives to the President, Senate, and Piamingo, or any other Indian, Algerine, or other chief." Mr. Jefferson to Mr. Monroe, Mar. 21, 1795. 4 Jeff. Works, 134. The precedents bearing on this question are as follows: Jay's treaty was approved by the Senate by the requisite two-thirds majority. Its ratification was proclaimed by the President on February 29, 1796, and this proclamation was communicated to the two houses of Congress on March 1, 1796. On the one side it was maintained that the power of the President and Senate as to treaties was absolute, and that the House of Representatives was bound, under the Constitu tion, to make the appropriations necessary to carry the treaty into effect. On the other side it was contended that under the Constitution the consent of the House was requisite to pass appropriations to carry the treaty into effect, and that this was as much known to the other contracting party as was the consent of the Senate to the preliminary adoption of the treaty. On the latter assumption the House, on March 24, 1796, called on the President for the facts relative to the treaty. On March 30, 1796, the President declined to give such information, his reasons being stated in a message given above. As to Jay's treaty, see also infra, § 150a. See also 8 Lodge's Hamilton, 386, 391. "The first impression (as to the treaty, when published after its ratification by the Senate) was universally and simultaneously against it. At length, however, doubts began to be thrown out in New York whether the treaty was as bad as was represented. The Chamber of Commerce proceeded to an address to the President, in which they hinted at war as the tendency of rejecting the treaty, but rested the decision with the constituted authorities. The Boston Chamber of Commerce followed the example, as did a few inland villages. As soon as it was known that the President had yielded his ratification, the British party were reinforced by those who bowed to the name of constituted authority and those who are implicitly devoted to the President. The principal merchants of Philadelphia, with others, amounting to about four hundred, took the lead in an address of approbation. * * It is pretty certain that a majority of the House disapproves the treaty, but it is not yet possible to ascertain their ultimate object, as matters now lie." Mr. Madison to Mr. Monroe, Dec. 20, 1795. 2 Madison's Writings, 64. "The situation is truly perplexing. It is clear that a majority, if brought to the merits of the treaty, are against it. But as the treaty is not regularly before the House, and as application to the President brings him personally into the question, with some plausible objections to the measure, there is great danger that enough will fly off to leave the opponents of the treaty in a minority." Mr. Madison to Mr. Jefferson, Dec. 27, 1795; ibid., 69. "The business of the treaty with Great Britain remains as it stood. A copy of the British ratification has arrived, but the Executive waits, it seems, for the original, as alone proper for communication. In the mean time, although it is probable that the House, if brought to say yea or nay directly on the merits of the treaty, will vote against it, yet a majority cannot be trusted on a question applying to the President for the treaty." Mr. Madison to Mr. Monroe, Jan. 26, 1796; ibid., 73. To same effect, Mr. Madison to Mr. Jefferson, Jan. 31, 1796; ibid., 75. "We are at length embarked in the discussion of the treaty, which was drawn in rather abruptly by a proposition calling on the President for papers. The point in debate is the constitutional right of Congress in relation to treaties. There seems at present strong reasons to conclude that a majority will be in favor of the doctrine that the House has S. Mis. 162-VOL. II-2 17 a constitutional right to refuse to pass laws for executing a treaty, and that the treaty power is limited by the enumerated powers. Whether the right ought, in the present case, to be executed, will be a distinct question on the merits of the treaty, which have not yet come into discussion. I understand that the treaty party expect success on this question, but despair on every other." Mr. Madison to Mr. Jefferson, Mar. 13, 1796; ibid., 88. "The newspapers will inform you that the call for the treaty papers was carried by 62 against 37. You will find the answer of the President herewith inclosed. The absolute refusal was as unexpected as the tone and tenor of the message are improper and indelicate. I think there will be sufficient firmness to face it with resolutions declaring the constitutional powers of the House as to treaties, and that, in applying for papers, they are not obliged to state their reasons to the Executive." Same to same, Apr. 4, 1796; ibid., 89. "This measure of the Executive produced two propositions, asserting the right of the House to judge of the expediency of treaties stipulating on legislative subjects, and declaring that it was not requisite in a call for papers to express the use to be made of them. It was expected that a long and obstinate discussion would have attended these defensive measures. Under that idea, I entered into a free but respectful review of the fallacy of the reasons contained in the message, and the day being nearly spent, the committee rose and an adjournment succeeded. The next morning, instead of a reply, the question was called for, and taken without a word of argument on the subject. The two resolutions were carried by 57 against 35; and six members, who, not foreseeing the early call for the question, had not taken their seats, soon appeared and desired to have their names added to the majority. This was not permitted by the rules of the House." Same to same, Apr. 11, 1796; ibid., 94. "The treaty question was brought to a vote on Friday in committee of the whole. Owing to the absence (certainly casual and momentary) of one member and the illness of another, the committee were divided, 49 and 49. The chairman (Muhlenberg) decided in the affirmative, saying that in the House it would be subject to modification, which he wished. In the House, yesterday, an enemy of the treaty moved a preamble reciting that although the treaty was highly objectionable, yet, considering all circumstances, particularly the duration for two years, &c., and confiding in the efficacy of measures that might be taken for stopping the spoliations and impressments, etc.' For this ingredient, which you will perceive the scope of, all who meant to persevere against the treaty, with those who only yielded for the reasons expressed in it, ought to have united in voting, as making the pill a bitter one to the treaty party, as well as less poisonous to the public interests. A few wrong heads, however, thought fit to separate, whereby the motion was lost by one vote. The main question was then carried in favor of the treaty by 50 against 48. This revolution was foreseen, and might have been mitigated, though not prevented, if sooner provided for. But some, who were the first to give way to the crisis under its actual pressure, were not averse to prepare for it. The progress of this business through |