Note 40 — Chapter XV · 39 On Treaties and on Engagements made by Delegates, Exceeding their Power.

On this subject the opinions of our author, and those of Vattel will reflect light upon each other. From the latter of whom, the following extracts will place the matter in a clear point of view. "If a public person, an ambassador, or a general of an army, exceeding the bounds of his commission, concludes a treaty or a convention without orders from the sovereign or without being authorised to do it by virtue of his office, the treaty is null, as being made without sufficient powers: it cannot become valid without the express or tacit ratification of the sovereign. The express ratification is a written deed by which the sovereign approves the treaty, and engages to observe it. The tacit ratification is implied by certain steps which the sovereign is justly presumed to take only in pursuance of the treaty, and which he could not be supposed to take without considering it as concluded and agreed upon. Thus, on a treaty of peace being signed by public ministers who have even exceeded the orders of their sovereigns, if one of the sovereigns causes troops to pass on the footing of friends through the territories of his reconciled enemy, he tacitly ratifies the treaty of peace. But if, by a reservatory clause of the treaty, the ratification of the sovereign be required—as such reservation is usually understood to imply an express ratification, it is absolutely requisite that the treaty be thus expressly ratified before it can acquire its full force. By the Latin term sponsio, we express an agreement relating to affairs of state, made by a public person, who exceeds the bounds of his commission, and acts without the orders or command of the sovereign. The person who treats for the state in this manner without being commissioned for the purpose, promises of course to use his endeavours for prevailing on the state or sovereign to ratify the articles he has agreed to: otherwise his engagements would be nugatory and illusive. The foundation of this agreement can be no other, on either side, than the hope of such ratification."—Vattel, b. ii. ch. xiv. sect. 208, 209, p. 219. "The general of an army, he proceeds, has indeed by virtue of his commission, a power to enter, as circumstances may require, into a private convention,—a compact relative to himself, to his troops, or to the occurrences of war: but he has no power to conclude a treaty of peace. He may bind himself, and the troops under his command, on all occasions where his functions require that he should have the power of treating; but he cannot bind the state beyond the extent of his commission."—Ibid. sect. 210. p. 220.