further in its treaties than to recommend suitable legislation to the States.

Mr. Fish, Sec. of State, to Count de Colobiano, Feb. 1870, MS. Notes to
Italy, VII. 53.

By Art. VII. of the consular convention with France of Feb. 23, 1853,
the President engaged to recommend to the particular States "that
if, pursuant to their then existing laws, French subjects were not
then allowed to hold real estate in any State, that right might be
conferred upon them." (Mr. Fish, Sec. of State, to the governor of
Maine, May 9, 1870, 84 MS. Dom. Let. 422.)

In 1870 Mr. Bancroft, then American minister at Berlin, was furnished with a full power authorizing him to conclude with the government of Baden a treaty to regulate inheritances and marriages. In sending the full power, Mr. Fish, who was then Secretary of State, said that, in view of doubts which had been raised “by extreme constructionists touching the constitutional power of this government to conclude such a treaty, doubts in which I do not share," and in view also of the action of the Senate on several recent treaties to which the Department of State had “committed the purely executive branch of the government," he had thought it best, in advance of any negotiations, to obtain an expression of opinion from the Senate through the chairman of the Committee on Foreign Relations, the correspondence with whom on the subject he enclosed.

Mr. Fish, Sec. of State, to Mr. Bancroft, min. to Prussia, No. 193, April 22, 1870, MS. Inst. Prussia, XV. 121. The Committee on Foreign Relations" advised the negotiations of a treaty" for the purpose in question if possible. (Davis, Notes, Treaty Vol. (1776–1887), 1239, citing Mr. Sumner, chairman of Com. on For. Rel., to Mr. Fish, Sec. of State, April 21, 1870, MS. Misc. Let.)

"The estates of decedents are administered upon and settled in the United States under the laws of the State of which the decedent was a resident at the time of his death, and on this account, in the absence of any treaty regulations on the subject, interference in the disposition of such measures as may be prescribed by the laws of the particular State in such cases is not within the province of the Federal authorities."

Mr. Fish, Sec. of State, to Aristarchi Bey, May 19, 1874, MS. Notes to
Turkey, I. 115.

"Were the question whether a treaty provision which gives to aliens rights to real estate in the States to come up now for the first time, grave doubts might be entertained as to how far such a treaty would be constitutional. A treaty is, it is true, the supreme law of the land, but it is nevertheless only a law imposed by the Federal government, and subject to all the limitations of other laws imposed by

the same authority. While internationally binding the United States to the other contracting powers, it may be municipally inoperative because it deals with matters in the States as to which the Federal government has no power to deal. That a treaty, however, can give to aliens such rights, has been repeatedly affirmed by the Supreme Court of the United States (see Chirac r. Chirac, 2 Wheat. 259; Carneal . Banks, 10 Wheat. 181; Hauenstein e. Lynham, 100 U. S. 483); and consequently, however much hesitation there might be as to advising a new treaty containing such provisions, it is not open to this Department to deny that the treaties now in existence giving rights of this class to aliens may in their municipal relations be regarded as operative in the States."

Mr. Bayard, Sec. of State, to Mr. Miller, June 15, 1886, 160 MS. Dom.
Let. 481.

11. NEGOTIATION AND CONCLUSION.

1. FULL POWERS.

§ 739.

The negotiation and modification of treaties is a prerogative of the Executive, with which the courts cannot interfere.

Frelinghuysen v. Key, 110 U. S. 64; Great West. Ins. Co. v. United States, 19 Ct. Cls. 206; s. c., 112 U. S. 193, to the same effect; Angarica de la Rua v. Bayard, 4 Mackey, 310.

Where a diplomatic representative of the United States is entrusted with the negotiation of a treaty, a full power will be given to him. "In case of urgent need," a compact may be entered into "in the absence of specific instructions or powers;" but in such cases the agreement should be put into the form of a simple protocol, which should contain the explicit statement that it is signed subject to the approval of the signer's government.

Instructions to Diplomatic Officers of the United States (1897), §§ 242, 243, p. 99.

In 1894, when the Chinese and Japanese plenipotentiaries met at Hiroshima, in Japan, to conclude a peace, it was found that the powers of the Chinese plenipotentiaries authorized them "to meet and negotiate the mater with plenipotentiaries appointed by Japan," but directed them to "telegraph to Tsung-li yamên for the purpose of obtaining our command, by which you will abide."

The powers of the Japanese plenipotentiaries authorized them to conclude and sign "preliminaries of peace," and stated that the Emperor had "confided to them full powers for that purpose," and

would ratify all the stipulations they might agree on, if on examination such stipulations were found to be proper and in good and due form.

The Japanese plenipotentiaries declined to accept the powers of the Chinese plenipotentiaries, on the ground that they did not authorize the latter to conclude or sign anything, or even indicate the subject of negotiations, and were silent on the subject of ratification. The negotiations were suspended in order that the Chinese plenipotentiaries might obtain new powers, which they did.

For. Rel. 1894, App. I. 97–106.

2. FORMALITIES.

§ 740.

In transmitting to Congress the consular convention with France, which Dr. Franklin had concluded, Mr. Jay remarked Language. that it appeared to be in the French language, and he added that it seemed to be expedient " to provide that, in future, every treaty or convention which Congress may think proper to engage in should be formally executed in two languages, viz, the language of the United States, and such other language as the party contracting with them may prefer."

Mr. Jay, Sec. for For. Aff., to President of Congress, June 23, 1785, 1 MS.
Am. Let. 311.

"Until about the beginning of the eighteenth century treaties between
European powers were generally written in Latin, but it has since
been customary for negotiators of countries which do not use the
same language to prepare their treaties in both languages.

Our treaties with Russia are an exception to the general rule, most of them being written in French and English." (Mr. Fish, Sec. of State, to Miss Fraser, Nov. 18, 1874, 105 MS. Dom. Let. 221.)

With reference to the form of treaties with a country where a language other than English is officially employed, the standing instructions of diplomatic officers of the United States contain the following directions: "(a) The texts in the two languages should be engrossed in parallel columns on the same page, if possible, or on opposite pages of the same sheet. Two separate copies in different languages are not advisable, although this expedient is sometimes resorted to in eastern countries. (b) In the copy of the treaty to be retained by the diplomatic representative for transmission to this government, the United States should be named first throughout both texts in all places where the alternative change may be made conveniently. Conversely, in both texts, throughout the copy the foreign government is to retain, it should be first named. (c) The language of the respective government should always occupy the

left-hand place in the copy to be delivered to it. (d) The utmost care should be taken to insure the substantial equivalence of sense of the two texts, so as to exclude any erroneous effect due to translation. Though a strictly literal translation is often harsh and sometimes impossible, the absolute identity of the idea conveyed is indispensable. To this end, the punctuation of the two texts should also be attentively scrutinized and brought into substantial conformity."

Instructions to Diplomatic Officers of the United States (1897), § 245, p. 100.

The alternat.

In the case of the treaty of Ghent, Great Britain took priority over the United States in both copies, and the American plenipotentiaries signed under those of Great Britain. In order that this might not be made a precedent, it was thought proper in the exchange of ratifications to advert to the circumstance and to say that it was not intended to imply any waiver by the United States of the rule that each sovereign should take priority over the other in the copy retained by his government.

Mr. Monroe, Sec. of State, to Mr. Adams, min. to England, March 13, 1815, MS. Inst. U. States Mins. VII. 388.

In the course of the instructions Mr. Monroe said: "In all other treaties between the United States and other powers, the ministers of each party sign in the same line. This was done in the treaty of peace with Great Britain and in the subsequent treaties with her government. In the treaty with France in 1803, the United States took rank in the instrument delivered to this government, which was reciprocated in that delivered to the government of France. In the treaty with Spain in 1795 Mr. Pinckney signed before the Prince of [the] Peace; the United States had rank likewise over Spain in the instrument delivered to them. It is understood that, in the treaties between all powers, this principle of equality is generally if not invariably recognized and observed." (Ibid.)

It should be remarked, however, that both in the preliminary and in the definitive treaty of peace with Great Britain of 1782 and 1783, and in the Jay treaty of 1794, Great Britain was permitted to take rank of the United States in the text of both copies; so also in the convention of March 15, 1798, and of January 8, 1802. In the commercial convention of July 3, 1815, the alternat was observed, as has always since been the case.

"It is the practice of the European governments, in the drawing up of their treaties with each other, to vary the order of naming of the parties, and of the signatures of the plenipotentiaries, in the counterparts of the same treaty so that each party is first named, and its plenipotentiary signs first in the copy possessed and published by itself. This practice has not been invariably followed in the treaties to which the United States have been parties, and having been omitted

in the treaty of Ghent, it became a subject of instructions from this Department to your predecessor. The arrangement was therefore insisted on at the drawing up and signing of the commercial convention of July 3, 1815, and was ultimately acquiesced in on the part of the British government, as conformable to established usage. You will consider it as a standing instruction to adhere to it, in the case of any treaty or convention that may be signed by you."

Mr. Adams, Sec. of State, to Mr. Rush, min. to England, Nov. 6, 1817,
MS. Inst. U. States Ministers, VIII. 152.

See, to the same effect, Mr. Adams, Sec. of State, to Mr. Dearborn, min.
to Portugal, No. 2, June 26, 1822, MS. Inst. U. States Ministers, IX.
142.

This rule is embodied in the standing instructions to diplomatic officers of the United States, who are directed in all cases to adhere to the principle of the "alternat." (Instructions (1897), § 244, p. 100.) Commissioners to execute a treaty must all agree to it, and subSignature. scribe their names and attach their seals thereto.

Lee, At. Gen., 1796, 1 Op. 66.

"The effect of adhesion to a treaty is to make the adhering power as much a party to all its provisions and responsibilities as though a like treaty had been concluded ad hoc between it and the other signatory. For example, were the United States to adhere' to the proposed treaty between Great Britain and Zanzibar and effect such 'adhesion in such a way as to internationally bind themselves and Zanzibar, each and every provision would necessarily be enforceable as between the United States and Zanzibar, including the assumption on the part of the United States of control over certain subjects of future arrangement between Zanzibar and any third power."

166

Mr. Bayard, Sec. of State, to Mr. von Alvensleben, May 6, 1886, MS. Notes to Germany, X. 435; same to Sir L. S. S. West, May 6, 1885, MS. Notes to Great Britain, XX. 254.

3. PRESENTS.

§ 741.

A custom prevails among European sovereigns, upon the conclusion of treaties, of bestowing presents of jewelry, or other articles of pecuniary value, upon the minister of the power with which they were negotiated; the same usage is repeated upon the minister's taking leave at the termination of his mission. In Russia this present usually consists of a gold snuffbox with the portrait of the Emperor enchased in diamonds, the value of which is proportionate to the rank of the minister and to the degree of satisfaction which the Emperor thinks proper to manifest with his conduct during the mis