If the minister is recalled on account of a misunderstanding between the two governments, the peculiar circumstances of the case must determine whether a formal letter of recall is to be sent to him, or whether he may quit the residence without wait ing for it; whether the minister is to demand, and whether the sovereign is to grant him, an audience of leave.

Where the diplomatic rank of the minister is raised or lowered, as where an envoy becomes an ambassador, or an ambassador has fulfilled his functions as such, and is to remain as a minister of the second or third class, he presents his letter of recall, and a letter of credence in his new character.

Where the mission is terminated by the death of the minister, his body is to be decently interred, or it may be sent home for interment; but the external religious ceremonies to be observed on this occasion depend upon the laws and usages of the place. The secretary of legation, or, if there be no secretary, the minister of some allied power, is to place the seals upon his effects, and the local authorities have no right to interfere, unless in case of necessity. All questions respecting the succession ab intestato to the minister's movable property, or the validity of his testament, are to be determined by the laws of his own country. His effects may be removed from the country where he resided, without the payment of any droit d'aubaine or detraction.

Although in strictness the personal privileges of the minister expire with the termination of his mission by death, the custom of nations entitles the widow and family of the deceased minister, together with their domestics, to a continuance, for a limited period, of the same immunities which they enjoyed during his lifetime.

It is the usage of certain courts to give presents to foreign ministers on their recall, and on other special occasions. Some governments prohibit their ministers from receiving such presents. Such was formerly the rule observed by the Venetian Republic, and such is now the law of the United States.1

1 Martens, Precis, &c., liv. vii. ch. 10, §§ 240-245. Manuel Diplomatique, ch. 7, §§ 60-65.

CHAPTER II.

RIGHTS OF NEGOTIATION AND TREATIES.

culty of con

THE power of negotiating and contracting public 1. Fatreaties between nation and nation exists in full vigor tracting by in every sovereign State which has not parted with this treaty, how portion of its sovereignty, or agreed to modify its exer- modified. cise by compact with other States.

limited or

Semi-sovereign or dependent States have, in general, only a limited faculty of contracting in this manner; and even sovereign and independent States may restrain or modify this faculty by treaties of alliance or confederation with others. Thus the several States of the North American Union are expressly prohibited from entering into any treaty with foreign powers, or with each other, without the consent of the Congress; whilst the sovereign members of the Germanic Confederation retain the power of concluding treaties of alliance and commerce, not inconsistent with the fundamental laws of the Confederation.1

The constitution or fundamental law of every particular State must determine in whom is vested the power of negotiating and contracting treaties with foreign powers. In absolute, and even in constitutional monarchies, it is usually vested in the reigning sovereign. In republics, the chief magistrate, senate, or executive council is intrusted with the exercise of this sovereign power.

No particular form of words is essential to the conclu- § 2. Form sion and validity of a binding compact between nations. of treaty. The mutual consent of the contracting parties may be given expressly or tacitly; and in the first case, either verbally or in

1 See Pt. I. ch. 2, §§ 23-24, pp. 59-72.

writing. It may be expressed by an instrument signed by the plenipotentiaries of both parties, or by a declaration, and counter declaration, or in the form of letters or notes exchanged between them. But modern usage requires that verbal agreements should be, as soon as possible, reduced to writing in order to avoid disputes; and all mere verbal communications preceding the final signature of a written convention are considered as merged in the instrument itself. The consent of the parties may be given tacitly, in the case of an agreement made under an imperfect authority, by acting under it as if duly concluded.1

§3. Cartels, truces,

There are certain compacts between nations which and capitu are concluded, not in virtue of any special authority, lations. but in the exercise of a general implied power confided to certain public agents, as incidental to their official stations. Such are the official acts of generals and admirals, suspending or limiting the exercise of hostilities within the sphere of their respective military or naval commands, by means of special licenses to trade, of cartels for the exchange of prisoners, of truces for the suspension of arms, or capitulations for the surrender of a fortress, city, or province. These conventions do not, in general, require the ratification of the supreme power of the State, unless such a ratification be expressly reserved in the act itself.2

§ 4. Spon- Such acts or engagements, when made without sions. authority, or exceeding the limits of the authority under which they purport to be made, are called sponsions.

1 Martens, Précis, liv. 2, ch. 2, §§ 49, 51, 65. Heffter, § 87.

The Roman civilians arranged all international contracts into three classes. 1. Pactiones. 2. Sponsiones. 3. Fœdera. The latter were considered the most solemn; and Gaius, in the recently discovered fragments of his Institutes, speaking of the supposition of a treaty of peace concluded in the simple form of a mere pactio, says: "Dicitur uno casu hoc verbo (Spondesne? Spondeo.); peregrinum quoque obligari posse, velut si Imperator noster Principem alicujus peregrini populi de pace ita interrogetur: quod nimium subtiliter dictum est ; quia si quid adversus pactionem fiat, non ex stipulatu agitur, sed jure belli vindicatur." Comm. iii. § 94.)

2 Grotius, de Jur. Bel. ac Pac. lib. iii. cap. 22, §§ 6-8. Vattel, Droit des Gens, liv. ii. ch. 14, § 207.

These conventions must be confirmed by express or tacit ratification. The former is given in positive terms, and with the usual forms; the latter is implied from the fact of acting under the agreement as if bound by its stipulations. Mere silence is not sufficient to infer a ratification by either party, though good faith requires that the party refusing it should notify its determination to the other party, in order to prevent the latter from carrying its own part of the agreement into effect. If, however, it has been totally or partially executed by either party, acting in good faith upon the supposition that the agent was duly authorized, the party thus acting is entitled to be indemnified or replaced in his former situation.'

ratification.

As to other public treaties: in order to enable a public § 5. Full minister or other diplomatic agent to conclude and sign power and 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.

Grotius, and after him Puffendorf, consider treaties and conventions, thus negotiated and signed, 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.2

1 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.

2 "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. xi. § 12. Puffendorf, de Jur. Naturæ et Gent. lib. iii. cap. ix. § 2.

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.

Bynkershoek lays down the true principles applicable to this subject, with that clearness and practical 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 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.1 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

1"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. vii.