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about the Constitution of the United States. Following practice, the answer seems to depend upon whether the alleged want of competence arises (1) from a lack of original authority or (2) from operation of obscure constitutional limitations.

Foreign nations are supposed to know what organs the Constitution designates for concluding various types of international agreements. Thus they are supposed to know that in England power to make treaties is vested in the Crown in Council,49 that in France: 50

"The President of the Republic shall negotiate and ratify treaties. Treaties of peace and of commerce, treaties which involve the finances or the state, those relating to the person and property of French citizens in foreign countries, shall be ratified only after having been voted by the two chambers."

That in the United States. "The President shall have power, by and with the advice and consent of the Senate, to make treaties, provided two-thirds of the Senators present concur.” 51 Until these organs have authorized ratification, foreign nations can not hold the nation bound even though the authority conducting negotiations neglected to inform them or informed them erroneously as to the organs with constitutional competence. However, all agreements are not treaties. Certain military agreements, such as armistices, are usually within the inherent power of the Commander-in-Chief Others such as protocols and agreements of temporary effect are within the inherent power of the representative organ.52 The President has often concluded such agreements, notably the preliminaries of peace to end the Spanish and World Wars. If he permits the other nation to understand that such action is within his constitutional authority, is the United States bound, even though the Senate subsequently take a contrary view? Opinions have differed in the United States but foreign nations have actually held the United

48 Supra, sec. 13.

49 Anson, op. cit., vol. 2, pt. 1, p. 54; pt. 2, p. 108.

50 Constitutional Law of July 16, 1875, art. 8.

51 Const. Art. II, sec. 2.

52 Crandall, op. cit., p. III; Willoughby, op. cit., 1: 200-202, infra, secs. 161-172.

53 President Wilson took the position that the agreement of Nov. 5, 1918, and earlier exchanges of notes, upon the basis of which the armistice of November 11, 1918, was concluded with Germany, rendered ratification of a treaty in accordance with those terms obligatory upon the United States.

States bound.54 We believe that in such cases the United States is bound only if the President actually is within the scope of his constitutional powers. However, the extent of these powers is so obscure that the foreign nation is justified in accepting the President's own view of his powers and holding the United States accordingly unless that view is very obviously erroneous, i.e., unless the agreement in question is obviously of sufficient permanence and importance to constitute a "treaty."

31. Treaty Provisions Ultra Vires from Operation of Constitutional Limitations.

When an alleged want of constitutional competence in the agreement-making power arises from the operation of an obscure constitutional limitation, the foreign nation would seem entitled to accept the ostensible competence of the agreement-making authority absolutely and to hold the nation accordingly. Thus in England, if the Crown in Council ratifies a treaty on its own responsibility, the other party is entitled to insist upon its validity, even though the treaty is of a character which, according to the law of the Constitution, should have been submitted to parliament before ratification, if indeed there are any such.55 So the United States is bound by all agreements ratified by the treaty-making power, even though it may subsequently appear that the treaty-making "I am ready," he said in a speech at Spokane, Washington, Sept. 12, 1919, "to fight from now until all the fight has been taken out of me by death to redeem the faith and promises of the United States." (Sen. Doc. No. 120, 66th Cong., 1st Sess., p. 173.) President Wilson and the German delegation agreed as to the obligation of the preliminary agreement but differed as to the concurrence of the treaty therewith. See also Wright, Minn. Law Rev., 4: 35. The Senate appears to have paid little attention to arguments derived from the obligation of the preliminary agreements, in considering either the Spanish treaty of 1898 or the German treaty of 1919.

54 Thus Spain insisted that the preliminaries of peace of Aug. 12, 1898, were a binding obligation and protested against proposed terms of the definitive treaty on the ground of conflict (Benton, Int. Law and Diplomacy of Spanish-American War, Baltimore, 1908, p. 244) and Germany protested against proposed terms of the treaty of Versailles on the ground of conflict with the preliminary exchange of notes of Nov. 5, 1918. (See Text of German note of May 29, 1919, Int. Conciliation, 1919, p. 1203, and Official Summary, 66th Cong., 1st Sess., Senate Doc. No. 149, p. 83.)

55 Supra, note 49.

power acted in disregard of limitations imposed by the guarantees of the Constitution in favor of individual, state or other rights.50

Thus in negotiation of the Webster-Ashburton treaty involving a fixing of the Maine boundary and the cession to Great Britain of land claimed by that state, the British government was aware of the doubt which existed as to the competence of the United States treaty-making power to cede territory belonging to the state without that state's consent. They, therefore, refused to negotiate until assured by authority of the President that the constitutional difficulty had been eliminated, an assurance which was made possible by Maine's consent to the cession.57 So also, in 1854 France contended that the United States continued bound by the provision of the treaty of 1852 granting consuls immunity from compulsory process to serve as witnesses, in spite of the American contention that the provision was in violation of the guarantee of compulsory process

56" The fundamental laws of a state may withhold from the executive department the power of transferring what belongs to the state; but if there be no express provision of that kind, the inference is, that it has confided to the department charged with the power of making treaties, a discretion commensurate with all the great interests, and wants, and necessities of the nation. (Kent, Commentaries, 1: 166.)

37"The negotiations for a convention to settle the boundary question can hardly be said to have made any positive progress, since last year. . . . The interest of both parties, undoubtedly, requires a compromise, and I have no doubt that the position which Maine has assumed is the only obstacle to bringing such a compromise about. The English government can not treat with us about a compromise, unless we say we have authority to consummate what we agree to; and although I entertain not the slightest doubt of the just authority of this government to settle this question by compromise, as well as in any other way, yet in the present position of affairs, I suppose it will not be prudent to stir, in the direction of compromise without the consent of Maine." (Mr. Webster, Sec. of State, to Mr. Kent, Gov. of Maine, Dec. 21, 1841, Moore, Digest, 5: 174, infra, sec. 50.) The terms of the agreement with Maine and Massachusetts were included in article 5 of the treaty with Great Britain. The same principle doubtless applies to constitutional limitation upon the treaty power arising from rights guaranteed to individuals and the rights and privileges of departments of the national government as well as rights guaranteed the states. The tendency, however, has been to minimize the application of these limitations and where necessity presses as in treaties of peace to end a disastrous war, doubtless the ostensible authority of the executive even of a de facto government would fully bind the nation. (Kent, op. cit., 1: 166–167, Wright, Am. J. Int. Law, 13: 249-250, infra, sec. 32.)

for obtaining witnesses to persons accused of crime in the Fifth Amendment of the Constitution, and thus beyond the competence of the treaty-making power. The United States acquiesced after a considerable controversy and made amends for the arrest of the French consul which had actually occurred, although instructions were issued to avoid the inclusion of such provisions in future treaties.58

It appears that foreign nations are expected to know what organs are authorized by the Constitution to conclude international agreements of various kinds, but with respect to constitutional limitations upon the power of these organs, they are entitled to infer from the statements or silence of the President at the time, that the Constitution has been followed.

"It is a principle of international law," says Willoughby, "that one Nation in its dealings with another Nation is not required to know, and, therefore, is not held to be bound by, the peculiar constitutional structure of that other Nation. It is required, indeed, to know what is the governmental organ through which treaties are to be ratified." 59

32. Treaty Made under Necessity.

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One general exception to this rule may be noticed. In case of necessity any treaty whatever, even if made under mere de facto authority, is valid under international law. While international law recognizes coercion of the negotiators of a treaty as grounds for voiding a treaty, it does not so recognize coercion of the state. All commentators agree that in case an unfortunate war necessitated, the treaty power might cede state territory without state consent or impair the Republican form of government in a state by accepting a monarchical protectorate. This would be valid even though the government under the Constitution were overthrown and a de facto government with neither President nor Senate set up in its stead were the only authority concerned in making the treaty. It has been suggested that the phraseology of Article VI, whereby treaties are supreme law if made “under the authority of the United States" and need not, as statutes, "be made in pursuance" of the 58 Moore, Digest, 5: 80, 167.

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59 Willoughby, op. cit., 1: 515. 60 Crandall, op. cit., p. 4.

61 Crandall, op. cit., pp. 227-229; Wright, Am. Jl. Int. Law, 13: 250.

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Constitution, gives authority for this plenary power of treaty making. If that were accepted, however, it would free the treaty power of constitutional restrictions in times of tranquility as well as of necessity, a view which is not accepted. The better view seems to admit that such a treaty would be unconstitutional in its origin but would be valid under international law upon the principle of self-preservation.

C. With Reference to the Meeting of International Responsibilities. 33. United States Bound by International Law and Treaty.

Are foreign nations entitled to consider the President's interpretation of the international responsibilities of the United States as authoritative? We have noticed that the United States, as a sovereign nation, is under international responsibilities, only in so far as such responsibilities have been accepted by organs acting within. their apparent constitutional powers. General international law is presumed to have been tacitly accepted by the United States on becoming a member of the family of nations. Treaties are formal

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62 See Congressman D. J. Lewis, Feb. 17, 1917, Cong. Rec., 64th Cong., 2d Sess., p. 4205, quoted, Wright, Am. Jl. Int. Law, 13: 249, and Holmes, J. in Mo. v. Holland, U. S. Sup. Ct., April 19, 1920: "Acts of Congress are the supreme law of the land only when made in pursuance of the Constitution, while treaties are declared to be so when made under the authority of the United States. It is open to question whether the authority of the United States means more than the formal acts prescribed to make the convention." See also Kent, Commentaries, 1: 166, 176. The different phraseology was actually introduced to assure the validity of treaties concluded by the United States before 1789. Rawle, On the Constitution, p. 66; Farrand, op. cit., 2: 417.

63 Supra, sec. 24

64 Maine, International Law, N. Y., 1888, p. 37, infra, sec. 258. Duponceau, Jurisdiction of the Courts of the U. S., Philadelphia, 1824, p. 3, has expressed the same view: "The law of nations, being the common law of the civilized world, may be said indeed to be a part of the law of every civilized nation; but it stands on other and higher grounds than municipal customs, statutes, edicts or ordinances. It is binding on every people and on every government. It is to be carried into effect at all times under the penalty of being thrown out of the pale of civilization or involving the country in war. Every branch of the national administration, each within its district and its particular jurisdiction, is bound to administer it. It defines offenses and affixes punishments and acts everywhere propria vigore, whenever it is not altered or modified by particular national statutes or usages not inconsistent with its great and fundamental principles. Whether

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