Page:The New International Encyclopædia 1st ed. v. 19.djvu/505

* TKEATY. 437 TREATY. the members of the German Bund of 1815-66 or the States of Argentina (q.v. ). Under the present tiierraan Empire the individual States en- joy the power to make treaties only with their immediate foreign neighbors, and only concerning postal an<l telegraph communication across the boundary between them. The Commonwealths of the United States are expressly forbidden to enter into treaty relations with foreign States or to make agreements among thcinselves except with the consent of Congress. The treaty-making power of a country is determined by its Constitution. In the United States it is vested in the President, acting by and with the advice and consent of the Senate, two-tliirds of the members concurring. The President exercises this power through the Department of State or through special plenipo- tentiaries appointed for the purpose. In mo- narchical countries the treaty-making power is usually a prerogative of the Crown, but an in- direct influence is frequently exercised by the legislature, especially when an appropriation of money is necessary to carry into clfect the stipu- lations of the treaty. In the German Empire treaties which relate to any subject already regu- lated by Imperial law require the approval of the legislature. In the French Kepublic the Presi- dent is empowered to negotiate treaties ; but if the treaty is one of peace or commerce, or involves the finances or the territory of the State, or re- lates to the personal or property rights of Frenchmen in foreign States, the approval of the two Chambers is necessary. With the few excep- tions of this kind, the negotiations and ratifica- tion of treaties in the European States are in the same hands, but they are distinct and sep- arate steps, and ratification may be withheld after the treaty has been negotiated. Every- where formal ratification is essential to the validity of a treaty. In the United States, where the negotiating and ratifying authorities are in different hands, the question of ratification assumes a double impor- tance, for it by no means follows that ratification is a matter of course. In several notable in- stances treaties negotiated by the President have been rejected by the Senate. Foreign govern- ments, therefore, negotiating with the President of the United States are presumed to know that negotiation is only the initial stage in the pro- cedure. The Senate has, moreover, claimed the right, and has exercised it in several instances, of ratifying only a part of a treaty instead of sending it back as a whole for revision. An im- portant question has arisen in the United States as to whether Congress is bound to enact the necessary legislation to carry into effect the stipulations of a treaty negotiated by the Presi- dent and duly ratified by the Senate. This ques- tion first arose in 1794 in connection with the unpopular Jay Treaty which called for an appro- priation of money to carry it into effect. The House of Representatives was at first inclined to refuse its concurrence, and only gave in after a sharp struggle, and then by a very close vote. It is impossible to say even now that the question has been decided one way or another. The rule now is to lay reciprocity treaties before Congress for its approval and for the enactment of the neces- sary legislation to carry them into effect. This practice has been followed in the case of reci- procity treaties with Mexico, Canada, and Cuba. Tiie question has also been raised as to how far the Government is l)ound by tlu^ action of its negotiator provided lie has not exceeded his in- structions. Formerly the rule prevailed that if the plenipotentiary acted in accordance with his full poioer his principal was bound by his action, since the knowledge of tlic full power "by the other party was a motive which induced him to ne- gotiate. Some writers, following the doctrines of the Roman law, still hold that the principals are in good faith bound by the acts of their duly au- thorized plenipotentiaries. Others make a dis- tinction in tliis respect between treaties proper and contracts, holding that, in view of the magni- tude of the interests involved in agreements be- tween States and the possibility of errors of judgment or of policy on the part of negotiators, a right of examination and of rejection is in- dispensable. It is now universally conceded that the principal may withhold his ratification from treaties negotiated strictly in pursuance of in- structions where it is found to be impossible from physical or other reasons to fulfill their stipulations, or on account of mutual error by which both ])arties were misled, or where a change of circumstances upon which the validity of the treaty was made to depend has occurred, or where ratification of the treaty would involve injury to a third party. The extent of the treaty-making power unless restricted by the Constitution is almost unlim- ited. It includes the acquisition of foreign ter- ritory; the disposal of domestic territory; the recognition of new States; the creation of servi- tudes: the formation of alliances; the granting of special privileges with respect to trade, com- merce, and residence ; the delimitation and recti- fication of boundaries ; the guarantee of terri- torial integrity; the neutralization of ship canals, etc., etc. It is a common provision in European constitutions to restrict the treaty- making power with regard to the cession of do- mestic territory by requiring the approval of the legislature in such cases. A constitutional ques- tion has been raised in the United States as to whether the ti'eaty-making power extends to the alienation of land belonging to a State, and on this point constitutional lawyers differ in opin- ion, but the better view seems to be that where doubt exists as to the right of a State to land which it claims the disputed territory may be ceded by treaty. On the other hand, it is con- tended that land to which the right of the State is undisputed cannot be disposed of without the consent of the State except in case of conquest, where transfer is inevitable as a means of ter- minating the war. The usual conditions essential to the validity of a treaty are, first, that the contracting parties shall possess the requisite capacity for entering into treaty engagements. Thus, neutralized States like Belgium and Switzerland are lack- ing in the capacity to enter into treaties which contemplate the waging of offensive war. In the second place, the plenipotentiaries who nego- tiate the treaty must be properly authorized. In the United States the President rarely if ever participates directly in the negotiations. This duty generally devolves upon the Secre- tary of State, although not infrequently the work is intrusted to a minister resident or to a special plenipotentiary or commissioner. Agree-