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sion. The acceptance of such presents by ministers of the United States is expressly prohibited by the Constitution; and even if it were not, it can scarcely be consistent with the delicacy and reciprocity of intercourse with foreign powers for the ministers of the United States to receive from foreign princes such favors as the ministers of those princes to the United States never can receive from this government in return. The usage, exceptional in itself, can be tolerable only by its reciprocity. It is expected by the President that every offer of such present which may in future be made to any public minister or other officer of this government abroad will be respectfully but decisively declined."

Mr. Adams, Sec. of State, to Mr. Middleton, min. to Russia, No. 2, June 7, 1820, MS. Inst. U. States Ministers, IX. 14.

4. VALIDITY.

§ 742.

The term "validity," as applied to treaties, admits of two descriptions-necessary and voluntary. By the former is meant that which results from the treaties having been made by persons authorized by, and for purposes consistent with, the Constitution. By voluntary validity is meant that validity which a treaty, voidable by reason of violation by the other party, still continues to retain by the silent acquiescence and will of the nation. It is voluntary, because it is at the will of the nation to let it remain or to extinguish it. The principles which govern and decide the necessary validity of a treaty are of a judicial nature, while those on which its voluntary validity depends are of a political nature.

Jones v. Walker, 2 Paine, 688.

A consideration is essential to give effect to a contract, but it is possible to conceive of a treaty which has no consideration.

Whart. Com. Am. Law, § 157.

As to the position of the United States in reference to the effect of silence in treaties, see 3 Phill. Int. Law (3d ed), 799.

Coercion, while invalidating a contract produced by it, does not invalidate a treaty so produced. Thus there can be no question of the binding force of the treaty which followed the French-German war which led to the dethronement of Napoleon III., though its terms were assented to under coercion. The same may be said of the consent of France to the settlement enforced by the allies after Waterloo, and so of the treaty by which Mexico ceded California and the adjacent territory to the United States. On the other hand, a treaty

produced by material fraud or by physical force applied to the negotiator may be repudiated.

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See Woolsey Int. Law, § 104; Crandall, Treaties, Their Making and Enforcement, 14-15.

"It is commonly laid down that neither the plea of 'duress' nor that of 'lasio enormis' (a degree of hardship, that is, so plain and gross that the sufferer can not be supposed to have contemplated what he was undertaking)—pleas recognized, directly or circuitously, in one form or another, by municipal law both ancient and modern can be allowed to justify the nonfulfilment of a treaty. To cases of personal duress this, of course, does not apply. Any force or menace applied to the person of a negotiator is on the face of it unlawful, because a consent wrung from the pain or terror of an individual can not with any pretense of reason be regarded as the consent of the nation. The cession, therefore, extorted from Ferdinand the Seventh at Bayonne, the engagements obtained a few years back from Mr. Eden by the chiefs of Bhootan, were void: They were beyond the reason, and therefore beyond the scope, of the rule. But the intolerable hardships and sufferings inflicted by France on Prussia after the battle of Jena did not invalidate the peace of Tilsit or the series of subsequent conventions which bound the conquered but unsubdued nation in fetters of steel."

Bernard, Lectures on Diplomacy, 184.

III. RATIFICATION.

1. QUESTION OF DUTY.

(1) OPINIONS OF WRITERS.

§ 743.

"On the 21st of July it was ordered that the Secretary of Foreign Affairs attend the Senate to-morrow and bring with him such papers as are requisite to give full information relative to the consular convention between France and the United States. Jay was the Secretary thus ordered.' He was holding over, as the new Department was not then created. The bill to establish a Department of Foreign Affairs had received the assent of both Houses the previous day, but had not yet been approved by the President. Jay appeared, as directed, and made the necessary explanations. The Senate then resolved that the Secretary of Foreign Affairs under the former Congress be requested to peruse the said convention, and to give his opinion how far he conceives the faith of the United States to be engaged, either by former agreed stipulations or negotiations entered

into by our minister at the court of Versailles, to ratify in its present sense or form the convention now referred to the Senate. Jay made a written report on the 27th of July that in his judgment the United States ought to ratify the convention; and the Senate gave its unanimous consent. The statute to carry the convention into effect was passed the 14th of April, 1792."

Davis's Notes, U. S. Treaty Volume (1776–1887), 1294, citing Annals of
Congress, 1 Cong. 1 sess. 52 et seq.

For Jay's report, see Exec. Journal of the Senate, I. 7; Dip. Cor. 1783-
1789, I. 304–322.

"At this time, to avoid all danger and difficulty, princes reserve to themselves the right of ratifying that which has been concluded by their minister in their name. The full power is merely a commission, cum libera. If this commission were to have its full effect, it should be given with the utmost circumspection; but, as princes can be constrained to fulfill their obligations only by force of arms, the custom has arisen of relying upon their treaties only after they have sanctioned and ratified them. Whatever the minister has concluded remaining ineffectual until the ratification of the prince, there is less danger of giving him a full power. But to refuse, with honor, to ratify that which has been concluded in virtue of a full power, the sovereign must have strong and solid reasons for it, and, particularly, he must show that his minister has transcended his instructions."

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Vattel, book 2, chap. 12, § 156, cited by Mr. Adams, Sec. of State, to Mr. Forsyth, min. to Spain, Aug. 18, 1819, Am. State Papers, For. Rel. IV. 657; same to Mr. Vives, Span. min., May 8, 1820, id. 685, 686.

See Crandall, Treaties, Their Making and Enforcement, 12-14.

Everything that has been stipulated by an agent, in conformity to his full powers, ought to become obligatory for the state, from the moment of signing, without even waiting for the ratification. However, not to expose a state to the errors of a single person, it is now become a general maxim that public conventions do not become obligatory till ratified. The motive of this custom clearly proves that the ratification can never be refused with justice, except when he who is charged with the negotiation, keeping within compass with respect to his public full powers, has gone beyond his secret instructions, and consequently has rendered himself liable to punishment, or when the other party refuses to ratify."

Martens, Summary of the Law of Nations, book 2, chap. 1, § 3, cited in Mr.
Adams, Sec. of State, to Mr. Forsyth, min. to Spain, Aug. 18, 1819,
Am. State Pap. For Rel. IV. 657, 658; same to Mr. Vives, Span. min.,
May 8, 1820, id. 685, 686.

"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, can not 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 settled rule is a fact, which may be proved by evidence like any other fact."

Bernard, Lectures on Diplomacy, 173.

"If, then, an embassador, in conformity with a full power received from his sovereign, has negotiated and signed a treaty, is the sovereign justified in withholding his ratification? This question has no significance in regard to states, by whose form of government the engagements made by the executive with foreign powers need some further 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 Elements, Book 1, 2 §5; Bynkershoek, Quæest. J. P., 11, 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.

"And 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 negotiators or in a clause of the treaty itself, it were declared that the sovereign 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, § 111.

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"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. 11, ch. xii, 156. Kluber, Dr. des Gens, § 141; Grotius, De Jure Belli, liv. II, ch. xi, § 12; Pufendorf, De Jure Naturæ, liv. m, ch. ix, § 2.) This theory has been rightly contested by other publicists, among whom are Schmalz, Bynkersoek, Pinheiro-Ferreira, and Wheaton, and more recently by Calvo. (Bynkersoek, 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 can not 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 document 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

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