PART II. HISTORICAL REVIEW OF THE TREATY-MAKING POWER OF THE UNITED STATES. CHAPTER IV. THE TREATY-MAKING POWER AS AN ATTRIBUTE OF SOVEREIGNTY AND AS EXERCISED BY CENTRAL GOVERNMENTS OF CONFEDERATED POWERS. § 110. Ancient origin of treaties.-Treaties, leagues and compacts have been made from time immemorial between different powers, states, tribes, peoples and princes. The Bible records many instances of treaties and leagues; one very notable case was the compact made by the Children of Isreal with the Gibeonites when they were entering the Promised Land, and which is especially analogous to the question under consideration, as it was made between the chiefs of the two nations; notwithstanding the fraud by which the Gibeonites procured exemption from the general slaughter to which all the other tribes of Canaan had been doomed, the compact was suffered to remain inviolate, although the Children of Isreal themselves resented it, because the tribal chiefs in whom the power was vested had exercised it, and thus had plighted the faith of the nation, thereby binding all the tribes and members thereof, making it impossible for them to recede from the compact, although they meted out a prolonged punishment on the Gibeonites for the fraud and deceit which had been practiced. We are also told at a later period of the terrible retribution which resulted from Saul's violation of that treaty. The histories of Rome and Greece are replete with instances in which their relations with other peoples were established and maintained by treaties.3 § 111. Treaty-making always vested in highest powers; Professor Woolsey's views.-There are recorded instances of treaty-making during the entire known history of the world; in almost every case it will be found that the right has been vested in the highest governmental power; in fact, the right of negotiation with foreign powers has not only always been considered as a badge, or attribute, of complete nationality and sovereignty, but, as a general rule, the power of negotiation does not exist in those political bodies which lack any of the elements of complete nationality and sovereignty; nor can the right be exercised by any person or power other than the highest sovereign power or the duly qualified representatives thereof. That the right of making treaties is an essential attribute of sovereignty to be exercised only by the highest power, and that States which have parted with their sovereignty or any part thereof, have no treatymaking power, is a rule which has practically been admitted § 110. 1 Joshua, chap. IX, 3-27. 2 2 Samuel, chap. XXI, 1-12. Law of Nations, vol. 1, Cambridge, Engl. 1899, p. 34, for Jewish Treaties; pp. 47-61, for Roman Treaties; p. 78 for Saracen Treaties. by all writers on international law,1 and which has also been incorporated into the organic law of nearly all constitutionally governed countries. Professor Theodore S. Woolsey's views on this subject are expressed in his book on international law in the extract quoted in the note to this section.3 § 111. 1 See the provisions in constitutions as to treaty-making power collated in note to § 130 of this chapter, post. 2 For the serious consequences of departing from this rule in regard to treaties between the Indian tribes and the United States, see §§ 401-406, chap. XIV, Vol. II. 8 PROFESSOR WOOLSEY'S VIEWS. "Sec. 101. Of the right of contract and especially of treaties. A contract is one of the highest acts of human free will: it is the will binding itself in regard to the future, and surrendering its right to change a certain expressed intention, so that it becomes morally and jurally a wrong to act otherwise; it is the act of two parties in which each or one of the two conveys power over himself to the other in consideration of something done or to be done by the other. The binding force of contracts is to be deduced from the freedom and foresight of man, which would have almost no sphere in society or power of co-operation, unless trust could be excited. Trust lies at the basis of society; society is essential for the development of the individual; the individual could not develop his free forethought, unless an acknowledged obligation made him sure in regard to the actions of others. That nations, as well as individuals, are bound by contract, will not be doubted when we remember that they have the same properties of free will and forecast; that they could have no safe intercourse otherwise, and could scarcely be sure of any settled relations towards one another except a state of war, and that thus a state of society, to which the different needs and aptitudes of the parts of the world invite men would be impossible. We have already seen, that without this power a positive law of nations could not exist, which noeds for its establishment the consent of all who are bound by its provisions. National contracts are even more solemn and sacred than private ones, on account of the great interests involved of the deliberateness with which the obligations are assumed, of the permanence and generality of the obligations,-measured by the national life, and including thousands of particular cases,-and of each nation's calling, under God, to be a teacher of right to all within and without its borders. "Contracts can be made by states with individuals or bodies of individuals, or with other states. Contracts between states may be called conventions or treaties. Among the species of treaties those which put an end to a war and introduce a new state of intercourse, or treaties of peace, will be considered here, only so far as they partake of the general character of treaties: their relations to war will be considered in the chapter devoted to that subject. "Sec. 102. Treaties allowed under the law of nations are uncon § 112. Views of Professor Lawrence.-"We begin with Sovereign States. In order clearly to understand their nature and the nature of their subjection to International Law, it will be necessary to pass through an ascending series of conceptions, beginning with the comparatively rudimentary one of a state. A state may be defined as A political community, the members of which are bound together by the tie of common subjection to some central authority, whose commands the bulk of them habitually obey. This central authority may be vested in an individual or a body of individuals; and, though it may be patriarchal, it must be something more than parental; for a family as such is not a political community and therefore not a state. The methods by which the central authority is created are outside our present subject. Whether a political community is governed by a line of hereditary monarchs, or by persons elected from time to time by the votes of a greater or less number strained acts of independent powers, placing them under an obligation to do something which is not wrong, or, "1. Treaties can be made only by the constituted authorities of nations, or by persons specially deputed by them for that purpose. An unauthorized agreement, or a sponsio, like that of the consul Postumius at the Caudine Forks, does not bind the sovereign,-it is held,—for the engager had no power to convey rights belonging to another. And yet it may be morally wrong in a high degree for the sovereign to violate such an engagement of a subordinate; for it might be an act of extreme necessity, to which the usual forms of governmental proceedings would not apply. Moreover the actions of military or naval commanders must be to a certain extent left without positive restrictions, and usage might be pleaded for many transactions of this nature. Again, from the nature of the case a faction, a province, or an integral part of a close confederation has no treaty-making power; although a loose confederation, like the Germanic, might exist, while conceding such a prerogative to its members. Individuals, or other dependent bodies, can make commercial arrangements with a foreign power, unless their laws forbid; but the arrangements apply to a particular case, and obligate none else; they are like any other private contracts; nor has a government over such a contracting party anything to do in the premises, save to protect and, if expedient, to afford its redress against injustice. Political engagements, or such as affect a body politic, can be made only by politi cal powers. And the actual sovereign alone, or a power possessing the attributes of sovereignty at the time, can bind a nation by its engagements." Woolsey's Introduction to the study of International Law, § 101 -102, pp. 158-159, 6th ed. New York, 1891 of its members, it is a state provided that the obedience of the bulk of the people is rendered to the authorities. If there is no such obedience, there is anarchy; and in proportion as obedience is lacking the community runs the risk of losing its statehood. A mere administrative division of a greater whole, such as a French Department or an English County, would not be called a state; but we should not refuse the title to a community like Canada which is not entirely free from political subjection, though we should probably indicate the absence of complete self-government by speaking of it as a Dependent State. "We have seen what is meant by a state. If we add to the marks already given in our definition of it, the further mark that the body or individual who receives the habitual obedience of the community does not render the like obedience to any earthly superior, we arrive at the conception of a Sovereign or Independent State, which possesses not only internal sovereignty, or the power of dealing with domestic affairs, but external sovereignty also, or the power of dealing with foreign affairs. The commonwealths which compose the American Union possess all the features we have enumerated as the distinguishing marks of states. They are, therefore, rightly so called; but historical and political reasons have sometimes caused them to be alluded to as Sovereign States. Strictly speaking, this is a mistake. By the Constitution of the United States all dealings with foreign powers are left to the central government. The Executive and Legislature of any and every state in the Union are devoid of the slightest power to act in these matters, and have to submit to what is done by the authorities at Washington. They have none of the attributes of external sovereignty. They cannot make war or peace, nor can they send agents to foreign powers or receive agents from them. In other words, they are states, but they are not Sovereign States.' § 113. Views of Henry Wheaton.-"The power of nego § 112. § 144, pp. 263-264, for Professor 1 Lawrence's Principles of Inter-Lawrence's views as to treaty-maknational Law, § 43, pp. 56-57, Bos- ing power of confederations. See ton, 1895. See also same volume, also note to § 114, post. |