Page images
PDF
EPUB

that these daring acts of the popes, which were formerly very frequent, were violations of the law of nations, and directly tended to destroy all the bands that could unite mankind, and to sap the foundations of their tranquility, and to render the pope sole arbiter of their affairs." (Phillimore, On Int. Law, vol. 2, § 54; Vattel, Droit des Gens., liv. 2, ch. 15, § 223; Salignac, Hist. of Poland, vol. 4, p. 112; De Thou, Hist. de sui Temporis, lib. 17; Bougeau, Hist. de T. de Westphalie, vol. 6, p. 413; Choisy, Hist. de Chas. V., p. 282; Heffter, Droit International, § 94.)

§ 5. "Unhappy experience," says Vattel, "having shown that the faith of treaties, sacred and inviolable as it ought to be, does not always afford a sufficient assurance that they shall be punctually observed,- mankind have sought for securities against perfidy,- for methods, whose efficacy should not depend on the good faith of the contracting parties. A guarantee is one of those means. When those, who make a treaty of peace, or any other treaty, are not perfectly easy with respect to its observance, they require the guarantee of some powerful sovereign. The party who guarantees promises to maintain the conditions of the treaty and to cause it to be observed." The guarantee may be to all the contracting parties equally, or only to one of them. It is an agreement to cause the fulfillment of the conditions of the treaty, but it in no way affects the conditions themselves; the party guaranteeing, therefore, has no right to interfere between the contracting parties, and decide upon the interpretation which should be given to its stipulations. But if called upon by one of these parties for assistance to enforce the treaty against the other, he must judge for himself whether such assistance is justly due as against the party complained of. We have pointed out, in another chapter, the distinction between guarantee and surety, where the engagements relate to things to be done by the party for whom the obligation is contracted. Sometimes one of the contracting parties puts some of its property or possessions into the hands of another, for the security of its promises, debts, or engagements. Movable things thus remitted are called pledges, towns and provinces are given in pawn or mortgaged, and if the revenues are ceded as

an equivalent for the interest of the debt, it is the fact called antichresis. But these securities have no effect upon the obligations of the treaty. The party giving the security is no more excusable for refusing or neglecting to perform his engagements than if no securities whatever had been given. (Vattel, Droit des Gens, liv. 2, ch. 16, §§ 235, 241; Phillimore, On Int. Law, vol. 2, §§ 55, et seq.; Gunther, Europ. Volkerrecht, b. 2, p. 154; Riquelme, Derecho Pub. Int., lib. 1, tit. 1, cap. 15; Kluber, Droit des Gens Mod., § 156; Heffter, Droit Intertional, $$ 96, 97; Real, Science du Gouvernement, tome 5, ch. 3, sec. 8; Heineccius, Elem. Juris., p. 209.)

§ 6. Questions have sometimes arisen with respect to the duration of the guarantee, and the withdrawal or release of the security. The guarantee naturally subsists until the stipulations guaranteed are performed, unless a certain time has been agreed upon for its termination. A general and indefinite treaty of guarantee may be changed or modified the same as any other treaty. As soon as the debt is paid, or the particular engagement is accomplished for which the security was given, the security ends, and the pledge should be returned, or the towns or provinces, held in pawn or under mortgage, should be restored in the same condition in which they were received, so far as depends upon the holder. But this is not always done by those who thus hold the possession; "the temptation," says Vattel, "is delicious; they have recourse to a thousand quibbles,-a thousand pretenses, to retain an important place, or a country under their obedience. The subject is too odious for us to allege examples; they are well enough known, and sufficiently numerous, to convince every sensible nation that it is very imprudent to make over such securities. But if the debt be not paid at the appointed time, or if the treaty be not fulfilled, what has been given in security may be retained and appropriated, or the mortgage seized, at least until the debt be discharged, or a just compensation made. The house of Savoy had mortgaged the country of Vaud to the cantons of Berne and Fribourg; and these two cantons, finding that no payments were made, had recourse to arms, and took possession of the country. The duke of Savoy, instead of immediately satisfying their just demands, opposed force to force, and gave them still

further grounds of complaint; wherefore, the cantons, finally successful in the contest, have since retained possession of that fine country, as well for the payment of the debt as to defray the expenses of the war, and to obtain a just indemnification." (Vattel, Droit des Gens, liv. 2, ch. 16, §§ 243, 244; Gunther, Europ. Volkerrecht, b. 2, p. 154; Kluber, Droit des Gens Mod., § 156; Garden, De Diplomatie, liv. 4, sec. 1, § 1; Riquelme, Derecho Pub. Int., lib. 1, tit. 1, cap. 15; Heffter, Droit International, §§ 96, 97; Real, Science du Gouvernement, tome 5, ch. 3, sec. 8.)

§ 7. Treaties may be dissolved, or their stipulations may terminate in various ways. Some expire by their own limitation, while others are terminated by war between the contracting parties; some are permanent in their nature, and although their operation may be suspended during war, they revive on the return of peace, unless expressly abrogated or altered by a new compact; while others again have reference to both peace and war, or exclusively to a state of war, and consequently continue in force, notwithstanding an entire interruption of pacific relations between the contracting parties. Thus, treaties made for a fixed period of time, or for a specified object, expire on the termination of the time designated, or the accomplishment of the object specified. Treaties of alliance, of succor and subsidy, of commerce and navigation-in fine, all stipulations having reference exclusively to pacific relations, cannot be construed to subsist after such relations have become hostile. Nor is a positive declaration of war necessary to produce this result. In our difficulties with France, in 1798-9, no public war was declared, but the two states were regarded as in hostile relation to each other, and subsisting treaties were held to be dissolved. Stipulations, which relate to boundaries, to the tenure of property, to public debts, etc., and which are permanent in their nature, are suspended by war, but revive as soon as hostilities cease. The treaties of 1783 and 1794, between the United States and Great Britain, respecting confiscations and alienage, were of a permanent character, and the supreme court held that they were not abrogated by the war of 1812, although their enforcement was, for the time being, suspended. Stipulations relating to prizes, priso

ners of war, blockades, contraband, etc., are unaffected by a declaration of war between the contracting parties, and can only be annulled by new treaties, or in the manner provided in the instruments themselves. (Vattel, Droit des Gens., liv. 2, ch. 12, §§ 183-197; Wheaton, Elem. Int. Law, pt. 3, ch. 2, §§ 9, 10; Kent, Com. on Am. Law, vol. 1, p. 177; Riquelme, Derecho Pub. Int., lib. 1, tit. 1, cap. 15; Heffter, Droit International, §§ 98, 99; Wildman, Int. Law, vol. 1, p. 176; Martens, Precis, du Droit des Gens., § 58; Garden, De Diplomatie, liv. 4, sec. 1, § 1; Benton, Thirty Years, etc., vol. 1, p. 487; Bas v. Tingy, 4 Dallas Rep., p. 37; Webster's Works, vol. 4, p. 162.)

§ 8. But the obligations of treaties, even where some of their stipulations are, in their terms, perpetual, expire in case either of the contracting parties loses its existence as an independent state, or in case its internal constitution is so changed as to render the treaty inapplicable to the new condition of things. With respect to alliances, Vattel remarks, that "when a people are forced to receive laws, they may legally renounce their preceding treaties, if he, with whom they are constrained to enter into an alliance, requires it from them. As they then lose a part of their sovereignty, their ancient treaties fall with the powers that had concluded them. This is a necessity that cannot be imputed to them, and since they had a right to submit themselves absolutely, and to renounce all sovereignty, if it became necessary for their preservation; by a much stronger reason they have a right, under the same necessity, to abandon their allies. But a generous people will try every resource before they will submit to so severe and humiliating a law." (Vattel, Droit des Gens, liv. 2, ch. 12, § 176; Wheaton, Elem. Int. Law, pt. 3, ch. 2, § 10; Wildman, Int. Law, vol. 1, ch. 4.)

§ 9. A distinction must be made between obligations and debts already incurred, and those which would be incurred if the treaty had not been terminated before its time by such a change in the circumstances of one of the contracting parties as to render it inapplicable. A change of condition, as the partial loss of its sovereignty and independence,- will not, in general, release such a state from obligations already

incurred, although it may prevent any new ones from occurring out of the same instrument, the stipulations of which are no longer applicable or obligatory. (Wheaton, Elem. Int. Law, pt. 3, ch. 2, § 10; Phillimore, On Int. Law, vol. 1, § 137; Suarez, de Legibus, etc., p. 109; Bello, Derecho International, pt. 1, cap. 9, § 3; Heffter, Droit International, §§ 98, 99; Kluber, Droit des Gens, Mod., § 165, note a.)

§ 10. Treaties of every kind," says Kent, "are to receive a fair and liberal interpretation, according to the intention of the contracting parties, and to be kept with the most scrupulous good faith. Their meaning is to be ascertained by the same rules of construction and course of reasoning which we apply to the interpretation of private contracts." The same general rule is laid down by Wheaton, but he adds: "Such is the inevitable imperfection and ambiguity of all human language, that the mere words alone of any writing, literally expounded, will go a very little way toward explaining the meaning. Certain technical rules of interpretation have, therefore, been adopted by writers on ethics and public law, to explain the meaning of international compacts, in cases of doubt." These rules are most fully expounded by Grotius, Vattel, Rutherforth and Paley. We will give a brief outline of the principles of interpretation, as laid down by these authors. (Kent, Com. on Am. Law, vol. 1, p. 174; Wheaton, Elem. Int. Law, pt. 3, ch. 2, § 17; Phillimore, On Int. Law, vol. 2, §§ 64, et seq.)

§ 11. Grotius has devoted an entire chapter to the interpretation of difficult and ambiguous terms. He sets out with the saying of Cicero, that, "When you promise, we must consider rather what you mean, than what you say." But as inward motives are not in themselves discernible, we can determine what they were only from the words used, and conjectures drawn from other parts of the treaty, and from the peculiar circumstances of the particular case. These, he says, must sometimes be considered together, and sometimes separately. Words are not to be strictly construed according to their etymology, but according to their common use, as, "Use is the judge, the law, and rule of speech." Technical words, or terms of art, are to be con

« PreviousContinue »