154; WRIGHT— CONCLUSIVENESS OF THE ACTS 



States bound.^* We believe that in such cases the United States 

 is bound only if the President actually is within the scope of his 

 constitutional powers. However, the extent of these powers is 

 so obscure that the foreign nation is justified in accepting the 

 President's own view of his powers and holding the United States 

 accordingly unless that view is very obviously erroneous, i.e., 

 unless the agreement in question is obviously of sufficient perma- 

 nence and importance to constitute a " treaty." 



31. Treaty Provisions Ultra Vires from Operation of Constitutional 

 Limitations. 

 When an alleged want of constitutional competence in the agree- 

 ment-making power arises from the operation of an obscure con- 

 stitutional limitation, the foreign nation would seem entitled to 

 accept the ostensible competence of the agreement-making author- 

 ity absolutely and to hold the nation accordingly. Thus in England, 

 if the Crown in Council ratifies a treaty on its own responsibility, 

 the other party is entitled to insist upon its validity, even though 

 the treaty is of a character which, according to the law of the 

 Constitution, should have been submitted td parliament before 

 ratification, if indeed there are any such.^^ So the United States 

 is bound by all agreements ratified by the treaty-making power, 

 even though it may subsequently appear that the treaty-making 



" I am ready," he said in a speech at Spokane, Washington, Sept. 12, 1919, 

 " to fight from now until all the fight has been taken out of me by death 

 to redeem the faith and promises of the United States." (Sen. Doc. No. 

 120, 66th Cong., ist Sess., p. 173.) President Wilson and the German dele- 

 gation agreed as to the obligation of the preliminary agreement but differed 

 as to the concurrence of the treaty therewith. See also Wright, Minn. Lazv 

 Rev., 4: 35. The Senate appears to have paid little attention to arguments 

 derived from the obligation of the preliminary agreements, in considering 

 either the Spanish treaty of 1898 or the German treaty of 1919. 



s*Thus Spain insisted that the preliminaries of peace of Aug. 12, 1898, 

 were a binding obligation and protested against proposed terms of the defini- 

 tive treaty on the ground of conflict (Benton, Int. Law and Diplomacy of 

 Spanish-American War, Baltimore, 1908, p. 244) and Germany protested 

 against proposed terms of the treaty of Versailles on the ground of conflict 

 with the preliminary exchange of notes of Nov. 5, 1918. (See Text of 

 German note of May 29, 1919, Int. Conciliation, 1919, p. 1203, and Official 

 Summary, 66th Cong., ist Sess., Senate Doc. No. 149, p. 83.) 



's Supra, note 49. 



