156 WRIGHT— CONCLUSIVENESS OF THE ACTS 



for obtaining witnesses to persons accused of crime in the Fifth 

 Amendment of the Constitution, and thus beyond the competence 

 of the treaty-making power. The United States acquiesced after a 

 considerable controversy and made amends for the arrest of the 

 French consul which had actually occurred, although instructions 

 were issued to avoid the inclusion of such provisions in future 

 treaties.^^ 



It appears that foreign nations are expected to know what 

 organs are authorized by the Constitution to conclude international 

 agreements of various kinds, but with respect to constitutional 

 limitations upon the power of these organs, they are entitled to 

 infer from the statements or silence of the President at the time, 

 that the Constitution has been followed. 



" It' is a principle of international law," says Willoughby, " that one 

 Nation in its dealings with another Nation is not required to know, and, 

 therefore, is not held to be bound by, the peculiar constitutional structure of 

 that other Nation. It is required, indeed, to know what is the govern- 

 mental organ through which treaties are to be ratified." ^^ 



32. Treaty Made under Necessity. 



One general exception to this rule may be noticed. In case of 

 necessity any treaty whatever, even if made under mere de facto au- 

 thority, is valid under international law. While international law rec- 

 ognizes coercion of the negotiators of a treaty as grounds for void- 

 ing a treaty, it does not so recognize coercion of the state.®° All com- 

 mentators agree that in case an unfortunate war necessitated, the 

 treaty power might cede state territory without state consent or 

 impair the Republican form of government in a state by accepting 

 a monarchical protectorate.^^ This would be valid even though 

 the government under the Constitution were overthrown and a de 

 facto government with neither President nor Senate set up in its 

 stead were the only authority concerned in making the treaty. It 

 has been suggested that the phraseology of Article VI, whereby 

 treaties are supreme law if made " under the authority of the United 

 States " and need not, as statutes, " be made in pursuance " of the 



58 Moore, Digest, 5 : 80, 167. 



59 Willoughby, op. cit., i : 515. 

 ^'■'^ Crandall, op. cit., p. 4. 



ci Crandall, op. cit., pp. 227-229; Wright, Am. Jl. Int. Laxv, 13: 250. 



