Martens, Manuel Diplomatique, §6; Merlin, Repertoire, verb. Ministre Pub., sec. 5, § 7.)

§ 6. The question, with respect to what department of the government belongs the right of sending and receiving diplomatic agents, depends upon the municipal constitution of the state. In monarchical governments, this prerogative usually resides in the sovereign; in republics, it is generally vested in the chief executive, or in the President and his counsel, or the senate, conjointly. In the United States of America, the President alone receives a foreign minister, and the appointment of a minister to a foreign court is made by the President, with the advice and consent of the senate. In monarchical countries, there is also a distinction sometimes made in the rank of the representatives of a foreign state, with respect to the department of government which is to receive them, those of the highest rank being received by the sovereign, and those of a lower grade by the secretary, or minister of foreign affairs. But this subject will be more particularly discussed in another place. (Wheaton, Elem. Int. Law, pt. 3, ch. 1, §§ 7, 11, 12; Wildman, Int. Law, vol. 1, ch. 3; Vide post, chs. ix, x; Phillimore, On Int. Law, vol. 2, ch. 2; Horne, On Diplomacy, secs. 1, 2; Merlin, Repertoire, verb. Minister Pub. sec. 2, §1.)

§ 7. Many publicists have written at considerable length on the art of diplomacy, and some seem to have based their remarks on the idea that a peculiar tact, finesse, or talent for deception, not required, or even allowed, in other professions, was absolutely necessary to successful negotiation. Indeed, in the diplomacy of the middle ages, it was proclaimed, as a maxim of the art, that "dissimulation must be met by dissimulation, and falsehood by falsehood," and, at even later periods, and in the most refined courts of Europe, bribery, gallantry, and intrigue were regarded as the most effective arguments in the discussion of diplomatic questions. But such disreputable means of negotiation are now seldom resorted to, and the most able diplomatists of the present age are men as much distinguished for their exalted personal character and unimpeachable integrity, as for their talents and learning. While a knowledge of the rules of diplomacy, and of the laws regulating the international rights and duties

of states, are absolutely indispensible in a public minister, it may be remarked, that good manners and good temper seem peculiarly necessary in an officer so intimately connected with the etiquette of polite society and ceremonies of courts. (Heffter, Droit International, §§ 228-233; Flassan, De la Diplomatie, tome 1, pp. 235, 246, 247; Maichiavelli, Il Principe, discorsi 2; Mably, Droit des Gens, tome 1, pp. 15, et seq.; Merlin, Repertoire, verb. Ministre Public, sec. 3.)

§ 8. The right of a state to negotiate and contract public treaties with other nations, is, like the right of legation, a necessary incident to its sovereignty. This power exists in full vigor in every state which has not parted with this portion of its natural sovereignty, or has not agreed to modify its exercise by some compact with other states. Sovereign and independent states are sometimes restricted in their power to make new treaties by the conditions of alliances already formed with others. Such limitation affects the exercise of the power of negotiating treaties, but is not regarded as a modification of the power itself. But if, by alliance or otherwise, a state has parted with its general power to negotiate treaties and to contract obligations, it can no longer be regarded as completely sovereign and independent. It has lost one of the essential attributes of sovereignty. (Wheaton, Elem. Int. Law, pt. 3, ch. 2, §1; Vattel, Droit des Gens, liv. 2, ch. 12, § 155; Wildman, Int. Law, vol. 1, ch. 3; Vide Ante, chap. iii; Phillimore, On Int. Law vol. 2, § 44; Bowyer, Universal Public Law, ch. 20.)

§ 9. Martens admits that, in theory, every sovereign state has a right to form, with other powers, whatever treaties may appear to be conducive to its interests, provided such treaties do not violate the equal rights of others; but, he adds, the general practice of Europe has been very different, many of the smaller states, nominally sovereign and independent, being forced, against their will, to accede to treaties in the formation of which they were not even consulted. He gives a number of examples to prove the truth of his statement. There are, no doubt, numerous instances in the history of Europe where the well established principles of international law have been violated, and many states, nominally sovereign and independent, are really mere dependencies of their more

powerful neighbors. But these exceptions do not affect the general rule, and we do not understand them to be stated by Martens with any such object, but rather as instances of the abuse of power. The severe criticisms of Pinheiro-Ferreira on this part of Martens' work, are therefore uncalled for, if not unjust. (Martens, Precis du Droit des Gens, § 119; Pinheiro-Ferreira, Notes sur Martens, No. 63; Martens, Recueil des Traités, tome 5, p. 222; Vattel, Droit des Gens, liv. 2, ch. 12, § 155; Wildman, Int. Law, vol. 1, ch. 3; Horne, On Diplomacy, sec. 1, § 5.)

§ 10. The right of semi-sovereign and dependent states to contract, by treaty, is, like their right of legation, to be determined by the nature of their connection with, or dependence on others. We have already shown that a colony, or ordinary dependency, is a part of a state, but cannot itself be regarded as a distinct political organization, possessing the essential attributes of a state; that the mere fact of dependence, or of feudal vassalage and the payment of tribute, or of occasional obedience, or of habitual influence, does not destroy, although it may greatly impair, the sovereignty of the states so situated. We have also shown the effects of a protectorate, of a confederation, and of a union, upon the sovereignty of the protected, confederated, and united states. The powers of such states to contract, by treaty, will necessarily depend upon the character of the relations thus formed with others. Thus, the sovereign members of the Germanic confederation, could each make treaties of alliance and commerce, not inconsistent with the fundamental laws of the confederation; while in the Swiss confederation, as remodeled by the federal pact of 1815, the diet, consisting of one deputy from each of the twenty-two cantons, had the exclusive power of concluding treaties of peace, alliance and commerce with foreign powers. Again, the several states constituting the United States of America, are expressly prohibited by the federal constitution from entering into any treaty, agreement or compact with foreign powers, without the consent of the federal congress. A foreign power, treating with a semi-sovereign, dependent or confederated state, is bound to know how far such state is capable of contracting obligations by treaty. If it contract with a state incapable

of entering into such engagements, the treaty is necessarily invalid. (Heffter, Droit International, §§ 200, et seq.; Pando, Derecho Internacional, pt. 3, cap. 1, § 2; Riquelme, Derecho Pub. Int, lib. 1, tit. 1, cap. 15; Wheaton, Elem. Int. Law, pt. 3, ch. 2, § 1; Vattel, Droit des Gens, liv. 2, ch. 12, § 55; Constitution of the United States, art. 1, sec. 10; Story, Com. on the Constitution, §§ 1347, et seq.)

§11. The treaty-making power of a state is determined by its own constitution, or fundamental law. In monarchical governments it is usually vested in the reigning sovereign, sometimes, however, subject to restrictions. In republics it is usually vested in the chief executive, either alone or conjointly with a council or senate. By the constitution of the United States of America, the President has power, by and with the advice and consent of the senate, to make treaties, provided that two-thirds of the senators present concur. This power is general, and, of course, embraces all sorts of treaties, for peace or war. The President has, therefore, no power to terminate a war by a treaty of peace, without the concurrence of two-thirds of the senators present. This, however, does not prevent his entering into a truce with any enemy for the suspension of hostilities. That power results from his office as commander-in-chief of the army and navy of the United States. Military conventions, as shown hereafter, form a part of the commercia belli, and do not require the treatymaking power of the state, either for their negotiation or ratification. (Wheaton, Elm. Int. Law, pt. 3, ch. 2, § 6; Story, Com. on the Constitution, § 1502; Kent, Com. on Am. Law, vol. 1, pp. 284, 285; Heffler, Droit International, §§ 81, et seq.; Bello, Derecho Internacional, pt. 1, cap. 9, §.1; Riquelme, Derecho Pub. Int., lib. 1, tit. 1, cap. 15.)

§12. The question, how far, under the positive law of nations, ratification by the state in whose name the treaty is made, by its duly authorized minister or diplomatic agent, furnished with full power, is essential to the validity of the treaty, was at one time the subject of much doubt and discussion. But it is now the settled usage to require such ratification, even where this pre-requisite is not reserved by the express terms of the treaty itself. The municipal constitution of the state determines in whom the power of ratifica

cation resides. By the constitution of the United States of America, treaties are negotiated and concluded under the authority of the President, but the advice and consent of the senate is essential to enable him to pledge the national faith, by making a treaty the supreme law of the land. (Wheaton, Elem. Int. Law, pt. 3, ch. 2, §5; Vattel, Droit des Gens, liv. 2, ch. 12, § 156; Adair, Mission to the Court of Vienna, p. 54; Martens, Precis du Droit des Gens, §48; Kluber, Droit des Gens Mod., § 48; Heffter, Droit International, § 87; Wildman, Int. Law, vol. 1, ch. 4; Garden, De Diplomatie, liv. 4, sec. 1, §1; Riquelme, Derecho Pub. Int., lib. 1, tit. 1, cap. 15.)

§ 13. There are, however, certain compacts or conventions relating to the pacific intercourse of belligerent nations which may be concluded, not in virtue of any special authority vested by the state in its agents, but in the exercise of a general implied power incidental to their official stations. Such as the official acts of generals and admirals suspending hostilities within the limits of their respective commands, truces, capitulations, cartels for the exchange of prisoners, special licenses to trade, ransom of captured property, etc. Such compacts do not, in general, require the ratification of the supreme power of the state, unless such ratification be expressly reserved in the act itself. These will be more particularly discussed in another place. Bello, Derecho Internacional, pt. 1, cap. 9, §4; Wheaton, Elem. Int. Law, pt. 3, ch. 2, § 3; Grotius, de Jur. Bel. ac Pac., lib. 3, cap. 22, §§ 6-8; Vattel, Droit des Gens, liv. 2, ch. 14, §207; Polson, Law of Nations, sec. 5; Vide Post, chap. xxvii.)

§ 14. But sometimes compacts or engagements of this kind are made by officers without proper authority, or exceeding the limits of the authority under which they purport to be made, as, for example, a truce for the suspension of arms beyond the limits of the command of the general who makes it. Such acts are called sponsions, and must be confirmed by express or tacit ratification to make them binding. The former is given in positive terms and with the usual forms; the latter is implied, from the fact of acting under the agreement as if bound by its stipulations. Mere silence is not sufficient, though good faith requires that the party who refuses its ratification, should notify the other without undue