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The recent interference 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 commenced before the exchange of ratifications. Such was the case with the Convention of the 15th July, 1840, between Austria, Great Britain, 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.” 1
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 effeot 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, dispens. ing 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.1 (a)
not a mere formality but a serious right; and that no treaty was completely conciuded till it had been ratified, and that if between the conclusion and ratification of the treaty grave events occurred, which changed the relations of the two powers and the circumstances under which the treaty had been made, it was a matter of right to refuse the ratification. Moniteur, 1 Février, 1843. Ortolan adds, that this doctrine is founded in reason. Diplomatie de la Mer, t. i. p. 94.
In the above cases, the power which gave the instructions to treat was identical with that which was competent to ratify; and the obligation of the executive is not to be confounded with his position, in those countries where, as in the United States, the internal Constitution requires for a ratification the concurrence of another department of the government.]
1 Murhard, Nouveau Recueil Général, tome i. p. 163.
(a) [It is presumed that there is a constitutional impediment to such an arrangement when the United States are a party, as the Senate must concur in
$ 6. The The municipal constitution of every particular State treatymak
determines in whom resides the authority to ratify treapower dependent on
In ties negotiated and concluded with foreign powers, so the munici- as to render them obligatory upon the nation. In absotution. lute 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, conse
every treaty. On occasion of the treaty concluded by Mr. Wheaton with Hanover, it was proposed to declare by a protocol, signed at the same time with the exchange of ratifications, that though the treaty had been concluded in English and French, in case of any disagreement as to its interpretation, the French copy should be deemed the original. It was, however, the opinion of Mr. Wheaton, in which the Secretary of State concurred, that no such declaration could be entered into without submitting the treaty anew to the Senate. Mr. Wheaton to Secretary of State, 8th July, 1840. But in exchanging the ratifications of the treaty between the United States and Great Britain, in relation to an interoceanic communication, the British plenipotentiary subjoined the following explanatory declaration :
“ In proceeding to the exchange of the ratifications of the convention, signed at Washington on the 19th of April, 1850, between her Britannic Majesty and the United States of America, relative to the establishment of a communication, by ship-canal, between the Atlantic and Pacific Oceans, the undersigned, her Britannic Majesty's plenipotentiary, has received her Majesty's instructions to declare that her Majesty does not understand the engagements of that convention to apply to her Majesty's settlement at Honduras, or to its dependencies. Her Majesty's ratification of the said convention is exchanged under the explicit declaration above mentioned. “Done at Washington, the 29th day of June, 1850.
“H. L. Bulwer." It appears from the printed documents that Mr. Clayton filed, on 5th of July, 1854, a memorandum in the Department of State, stating that he had received the above declaration on the day of its date ; that he wrote, in reply, on 4th of July, a note acknowledging that he had understood that British Honduras was not embraced in the Treaty of 19th of April, but, at the same time, declining to affirm or deny the British title ; and that, after signing the note of 4th of July, which he delivered to Sir Henry Bulwer, they immediately proceeded to exchange the ratifications of the treaty. Cong. Doc. 32d Cong. 2d Sess., Senate Ex. Doc. No. 12.]
quently, 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, (1. 19, D. de div. R. J. 50, 17.) 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.
es, how neces
The treaty, when thus ratified, is obligatory upon the $7. Auxcontracting States, independently of the auxiliary legis- lative mealative measures, which may be necessary on the part of a either, in order to carry it into cornplete effect. Where, sary, to the indeed, such auxiliary legislation becomes necessary, in a treaty. consequence of some limitation upon the treaty-making 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 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.
Commercial treaties, which have the effect of altering the
| Grotius, de Jur. Bel. ac Pac. lib. iii. cap. 20, $ 7. Vattel, Droit des Gens, liv. i. cb. 20, $ 244 ; ch. 2, 88 262–265. Kent's Comment. on American Law, vol. i. p. 164, 5th ed.
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 modi. fying the existing laws of trade and navigation, so as to adapt them to the stipulations of the treaty. 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.” (a)
| Lord Mahon's History of England from the Peace of Utrecht, vol. i. p. 24. 2 Kent's Comment. vol. i. p. 285, 5th ed.
(a) [A treaty is, in its nature, a contract between two nations, not a legislative act, and does not, generally, effect of itself the object to be accomplished, but is carried into execution by the sovereign power of the respective parties to the instrument. In the United States, the Constitution declares a treaty to be the law of the land. It is, consequently, to be regarded in courts of justice as equivalent to an act of the legislature, whenever it operates of itself, without any legislative provision. But when the terms of the stipulation import a contract, when either of the parties engages to perform a particular act, the treaty addresses itself to the political, not the judicial department, and the legislature must execute the contract before it can become a rule for the court. Peters's Rep. vol. ii. p. 314. Foster et al. r. Neilson. Ibid. vol. vi. p. 735. United States r. Arredondo.
This subject has been frequently discussed, in connection with the Constitution of the United States, as to the treaty-making power of the President and Senate, and the legislative authority of Congress. It especially came under the consideration of the House of Representatives in 1796, on the bill making appropriations to carry into effect the Treaty of 1794 with Great Britain ; when President Washington sent a message to the House denying their right to call for the papers connected with the negotiation, and the act was passed, notwithstanding such refusal, by a majority of two votes. In 1816, after the Commercial Convention with England, the question was, whether it was necessary to pass a bill to make our revenue laws conform to the treaty stipulations, or whether the treaty
dom of con
By the general principles of private jurisprudence, , $ 8. Freerecognized by most, if not all, civilized countries, a con- sent, how
far necestract obtained by violence is void. Freedom of consent is essential to the validity of every agreement, and
itself operated, proprio vigore. In that case, a declaratory act was passed. U.S. Statutes at Large, vol. iii. p. 354. This point was also examined during the session of 1853-4, in the case of the appropriations required for the convention, then recently entered into by the President and Senate, with Mexico. The conclusion on all these occasions would seem to have been, that as the President and Senate are, by the Constitution, fully authorized to enter into treaties, whenever the aid of Congress is required to carry out its provisions, if the treaty be within the constitutional limits, free from fraud, and not destructive of any of the great rights or interests of the country, then there is a moral obligation to grant the aid required. When a treaty comes before the House of Representatives, they are not to proceed in the discussion and examination of it as an act of ordinary legislation. Such a construction would, in effect, repeal the constitutional provision respecting treaties, and nullify the whole power of the government in its intercourse with foreign nations. Congress. Globe, 1853-4. Appendix, p. 1020. These views were ably vindicated by Mr. Pinkney, in the case of the British Convention of 1815, and his argument has been preserved in Mr. Wheaton's Life of Pinkney, pp. 517-549.
That the omission of Congress to pass an appropriation act would be no answer to a foreign government for the non-fulfilment of treaty stipulations, is to be deduced from the ground taken by the United States with France, when the legislative power of the latter State refused to vote the moneys required by the Convention of 1831, by which indemnities were provided for the spoliation on American commerce. The subject was brought to the notice of Congress by President Jackson, in his Annual Message, in December, 1834 ; with a recommendation that a law should be passed authorizing reprisals upon French property, in case provision should not be made for the payment of the debt at the next session of the French Chambers. Annual Register, 1834, p. 361. Referring to this controversy, Mr. Wheaton said : “ Neither government has any thing to do with the auxiliary legislative measures necessary, on the part of the other State, to give effect to the treaty. The nation is responsible to the government of the other nation for its non-execution, whether the failure to fulfil it proceeds from the omission of one or other of the departments of its government to perform its duty in respect to it. The omission here is on the part of the legislature; but it might have been on the part of the judicial department. The Court of Cassation might have refused to render some judgment necessary to give effect to the treaty. The king cannot compel the Chambers, neither can he compel the Courts; but the nation is not the less responsible for the breach of faith thus arising out of the discordant action of the internal machinery of its constitution." Letter from Mr. Wheaton to Mr. Butler, then Attorney-General of the United States, Copenhagen, 20th January, 1835.]