that the agent was duly authorized, the party thus acting is entitled to be indemnified or replaced in his former situation. (a) Fullpower and § 256. As to other public treaties: in order to enable a public minister or other diplomatic agent to conclude ratification. and sign a treaty with the government to which he is accredited, he must be furnished with a full-power, independent of his general letter of credence. Opinions of Grotius Puffen § 257. Grotius, and after him Puffendorf, consider and Pulle treaties and conventions, thus negotiated and signed, dorf. as binding upon the sovereign in whose name they are concluded, in the same manner as any other contract made by a duly authorized agent binds his principal, according to the general rules of civil jurisprudence. Grotius makes a distinction between the procuration which is communicated to the other contracting party, and the instructions which are known only to the principal and his agent. According to him, the sovereign is bound by the acts of his ambassador, within the limits of his patent full-power, although the latter may have transcended or violated his secret instructions. (a) This opinion of the earlier public jurists, founded upon the analogies of the Roman law respecting the contract of mandate or commission, has been contested by more recent writers. § 258. Bynkershoek lays down the true principles apOpinion of Bynker- plicable to this subject, with that clearness and practical shoek. precision which distinguish the writings of that great public jurist. In the second book of his Quæstiones Juris Publici, (cap. vii.) he propounds the question, whether the sovereign is bound by the acts of his minister, contrary to his secret instructions. According to him, if the question were to be determined by the ordinary rules of private law, it is certain that the principal is not bound where the agent exceeds his powers. But in the case of an ambassador, we must distinguish between the general (a) Grotius, de Jur. Bel. ac Pac. lib. ii. cap. 15, § 16; lib. iii. cap. 22, §§ 1-3. Vattel, Droit des Gens, liv. ii. ch. 14, §§ 209–212. Rutherforth's Inst. b. ii. ch. 9, § 21. (a) "Et in generali præpositione accidere potest ut nos obliget qui præpositus est, agendo contra voluntatem nostram sibi soli significatam: quia hi distincti sunt actus volendi: unus quo nos obligamus ratum habituros quicquid ille in tali negotiorum genere fecerit; alter, quo illum nobis obligamus, ut non agat nisi ex præscripto, sibi non aliis cognito. Quod notandum est ad ea quæ legati promittunt pro regibus ex vi instrumenti procuratorii, excedendo arcana mandata. Grotius, de Jur. Bel. ac Pac. lib. ii. cap. 11, § 12. Puffendorf, de Jur. Naturæ et Gent. lib. iii. cap. 9, § 2. full-power which he exhibits to the sovereign to whom he is accredited, and his special instructions, which he may, and generally does retain, as a secret between his own sovereign and himself. He refers to the opinion of Albericus Gentilis, (de Jure Belli, lib. iii. cap. xiv.) and that of Grotius above cited, that if the minister has not exceeded the authority given in his patent credentials, the sovereign is bound to ratify, although the minister may have deviated from his secret instructions. Bynkershoek admits that if the credentials are special, and describe the particulars of the authority conferred on the minister, the sovereign is bound to ratify whatever is concluded in pursuance of this authority. But the credentials given to plenipotentiaries are rarely special, still more rarely does the secret authority contradict the public full-power, and most rarely of all does a minister disregard his secret instructions. (a) But what if he should disregard them? Is the sovereign bound to ratify in pursuance of the promise contained in the full-power? According to Bynkershoek, the usage of nations, at the time when he wrote, required a ratification by the sovereign to give validity to treaties concluded by his minister, in every instance, except in the very rare case where the entire instructions were contained in the patent full-power. He controverts the position of Wicquefort, (L'Ambassadeur et ses Fonctions, liv. ii. § 15,) condemning the conduct of those princes who had refused to ratify the acts of their ministers on the ground of their contravening secret instructions. The analogies of the Roman law, and the usages of the Roman people, were not to be considered as an unerring guide in this matter, since time had gradually worked a change in the usage of nations, which constitutes the law of nations; and Wicquefort himself, in another passage, had admitted the necessity of a ratification to give validity to the acts of a minister under his full-power. (b) Bynkershoek (a) "Sed rarum est, quod publica mandata sint specialia; rarius, quod arcanum mandatum publico sit contrarium; rarissimum verò, quod legatus arcanum posterius spernat, et ex publico priori rem agat." Bynkershoek, Quæst. Jur. Pub. lib. ii. cap. 7. (b) "Sed quod olim obtinuit, nunc non obtinet, ut mores gentium sæpe solent mutari, nam postquam ratihabitionum usus invaluit, inter gentes tantum non omnes receptum est, ne fœdera et pacta, a legatis inita, valerent, nisi ea probaverint principes, quorum res agitur. Ipse Wicquefort (eodem opere, lib. i. § 16), necessitatem ratihabitionum satis agnoscit hisce verbis: Que les pouvoirs, quelques amples et absolus qu'ils soient, aient toujours quelque relation aux ordres secrets qu'on leur donne, qui peuvent être changés et altérés, et qui le sont souvent, selon les conjonctures et les révolutions des affaires." Ibid. 331 does not, however, deny that, if the minister has acted precisely in conformity with his patent full-power, which may be special, or his secret instructions, which are always special, even the sovereign is bound to ratify his acts, and subjects himself to the imputation of bad faith if he refuses. But if the minister exceed his authority, or undertake to treat points not contained in his full-power and instructions, the sovereign is fully justified in delaying, or even refusing his ratification. The peculiar circumstances of each particular case must determine whether the rule or the exception ought to be applied. (c) Opinion § 259. Vattel considers the sovereign as bound by the of Vattel. acts of his minister, within the limits of his credentials, unless the power of ratifying be expressly reserved, according to the practice already established at the time when he wrote. "Sovereigns treat with each other through the medium of their attorneys or agents, who are invested with sufficient powers for the purpose, and are commonly called plenipotentiaries. To their office we may apply all the rules of natural law which respect. things done by commission. The rights of the agent are determined by the instructions that are given him. He must not deviate from them; but every promise which he makes, within the terms of his commission, and within the extent of his powers, binds his constituent. "At present, in order to avoid all danger and difficulty, princes reserve to themselves the power of ratifying what has been concluded in their name by their ministers. The full-power is but a procuration cum libera. If this procuration were to have its full effect, they could not be too circumspect in giving it. But as princes cannot be compelled to fulfil their engagements otherwise than by force of arms, it is customary to place no dependence on (c) "Non tamen negaverim, si legatus publicum mandatum, quod forte speciale est, vel arcanum, quod semper est speciale, examussim sequutus, fœdera et pacta ineat, justi principis esse ea probare, et, nisi probaverit, malæ fidei reum esse, simulque legatum ludibrio; sin autem mandatum excesserit, vel fœderibus et pactis nova quædam sint inserta, de quibus nihil mandatum erat, optimo jure poterit princeps vel differe ratihabitionem, vel plane negare. Secundum hæc damnaverim vel probaverim negatas ratihabitiones, de quibus prolixè agit Wicquefort, (lib. ii. § 15.) In singulis causis, quas ipse ibi recenset, ego nolim judex sedere, nam plurimum facti habent, quod me latet, et forte ipsum latuit. Non immeritò autem nunc gentibus placuit ratihabitio, cùm mandata publica, ut modo dicebam, vix unquam sint specialia, et arcana legatus in scriniis suis servare solent, neque adeo de his quicquam rescire possint, quibuscum actum est." Ibid. § 260 their treaties until they have agreed to and ratified them. Thus, as every agreement made by the minister remains invalid until sanctioned by the ratification of the prince, there is less danger in giving the minister a full-power. But before a sovereign can honorably refuse to ratify that which has been concluded in virtue of a full-power, he must have strong and solid reasons, and, in particular, he must show that his minister has deviated from his instructions." (a) The slightest reflection will show how wide is the difference between the power given by sovereigns to their ministers to negotiate treaties respecting vast and complicated international concerns, and that given by an individual to his agent or attorney to contract with another in his name respecting mere private affairs. The acts of public ministers under such full-powers have been considered from very early times as subject to ratification. (b) "The ert Adair. § 260. The reason on which this practice is founded is Opinion clearly explained by a veteran diplomate whose long ex- of Sir Robperience gives additional weight to his authority. forms in which one State negotiates with another," says Sir Robert Adair, "requiring, for the sake of the business itself, that the powers to transact it should be as extensive and general as words can render them, it is usual so to draw them up, even to a promise to ratify; although, in practice, the non-ratification of preliminaries is never considered to be a contravention of the law of nations: The reason is plain. A plenipotentiary, to obtain credit with a State on an equality with his master, must be invested with powers to do, and agree to, all that could be done and agreed to by his master himself, even to the alienating the best part of his territories. But the exercise of these vast powers, always under the (a) Vattel, Droit des Gens, liv. ii. ch. 12, § 156. (b) One of the earliest recorded examples of this practice was given in the treaty of peace concluded, in 561, by the Roman Emperor Justinian, with Cosroes I., King of Persia. Both the preliminaries and the definitive treaty, signed by the respective plenipotentiaries, were subsequently ratified by the two monarchs, and the ratifications formally exchanged. Barbeyrac, Histoire des Anciens Traités, Partie II. p. 295. It has been very justly observed that this example of the exchange of formal ratifications, at a period of the world like that of Justinian, which invented nothing, but only collected and followed the precedents of the preceding ages, is conclusive to show that this sanction was then deemed necessary by the general usage of nations to give validity to treaties concluded under full powers. Wurm, die Ratification von Staatsverträgen, deutsche vierteljahrs-Schrift, Nr. 29. understood control of non-ratification, is regulated by his instructions." (a) Opinion § 261. The exposition of the approved practice of naof Klüber. tions, from which alone the law of nations applicable to this matter can be deduced, conclusively shows that a full-power, however general, and even extending to a promise to ratify, does not involve the obligation of ratifying in a case where the plenipotentiary has deviated from his instructions. Yet the contrary doctrine, inferred, as we have seen, by the earlier public jurists, from the analogies of private law in respect to the obligation of contracts, concluded by procuration, is countenanced by a modern writer of no inconsiderable merit. Klüber asserts that "public treaties can only be concluded in a valid manner by the ruler of the State, who represents it towards foreign nations, either immediately by himself, or through the agency of plenipotentiaries, and in a manner conformable to the constitutional laws of the State. A treaty concluded by such a plenipotentiary is valid, provided he has not transcended his patent full-power; and a subsequent ratification is only required in the case where it is expressly reserved in the full-power, or stipulated in the treaty itself, as is usually the case at present in all those conventions which are not, such as military arrangements are, of urgent necessity. The ratification by one of the contracting parties does not bind the other party to give his in return. Except in the case of special stipulations, a treaty is deemed to take effect from the time of the signature, and not from that of the ratification. A simple sponsion, an engagement entered into for the State, whether made by the representative of the State or his agent, unless he has full authority for making it, is not binding, except so far as it is ratified by the State. The question whether a treaty, made in the name of the State, by the chief of the government with the enemy, while the former is a prisoner of war, is binding on the State, or whether it is to be regarded even as a sponsion, has given rise to serious disputes." (a) Opinion § 262. Martens concurs with Klüber so far as to admit, of Martens. that what he calls the universal law of nations, "does not require a special ratification to render obligatory the engagement (a) Adair, Mission to the Court of Vienna, p. 54. |