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CHAPTER VI.

TREATIES (a).

XLIV. THE International obligations arising out of Natural or Customary Law may receive additions or restraints from specific Conventions or Treaties (6).

It has been already observed, that the consent of Nations is in some degree evidenced by the contents of Treaties, and

(a) Grotius, l. ii. c. xi. de promissis; c. xii. de contractibus; c. xiii. de jurejurando; c. xiv. de eorum qui summum imperium habent promissis et contractibus et juramentis; c. xv. de fœderibus et sponsionibus; c. xvi. de interpretatione.

Vattel, 1. ii. c. xii.-xvii.

Martens, 1. ii. c. ii. 46.

Klüber, s. 141, u. s. w.

Wheaton, Elem. vol. i. p. 38, &c.

Heffter, ss. 144, 175.

Fénelon, tom. xxii. pp. 293-4 (ed. 1824).

(b) "At nobis accuratius instituenda partitio est, ut primum dicamus fœdera alia idem constituere, quod juris est naturalis, alia aliquid ei adjicere.' -Grot. 1. ii. c. xv. s. 5.

"I can scarcely think that Ministers mean to contend that cession by Treaty does not give a right to possession. Where are we to look, therefore, to ascertain the right of a country to any place or territory, but to the last Treaty? To what would the opposite doctrine lead? France might claim Canada, ceded in 1763, or we Tobago, ceded in 1783. It might be urged that they took advantage of our dispute with our own Colonies, and that the Treaty gave no right. Canada, Jamaica, everything might be questioned. Where would be the power of Europe if these doctrines were to be acted on? Every country must continue in a state of endless perplexity, armament, and preparation. But, happily for mankind, a different principle prevails in the Law of Nations. There the last Treaty gives the right."-CHARLES JAMES Fox, Speech on the Russian Armament,

1792.

Du défaut de validité de plusieurs Traités diplomatiques conclus récemment par la France, par E. Clunet.

that they constitute an important part of International Law (c).

Treaties (Traités, Völkerverträge, Tractate) are the written portion of that Law which binds together the Society of States, and they occupy a place in that system, which, in some degree, corresponds to the place occupied by statutes in the system of the Municipal and Public Law of independent States (d).

Moreover, the Right to enter into lawful Conventions or Treaties with other States is as unquestionably inherent in every independent State, as the right to make lawful covenants is inherent in every individual.

The contract of the individual, therefore, and the statute of the independent State, both furnish analogies for the elucidation of this branch of our subject. It would be foreign to the object of this work to dwell upon the necessity of the study of International Treaties to the Historian and the Statesman; but it is proper to observe in this place, first, that existing Treaties contain the present Positive Law of Nations between the contracting parties; secondly, that abrogated Treaties often furnish a necessary means of construing those which are in force; while-if due and judicial regard be had to the occasion which produced them, the subject-matter of their stipulations, the object for which, and the epoch during which they were contracted, and the number and character of the nations which were parties to themthey are also of value as repositories of certain maxims of International Law, as records of the consent of nations to certain principles as regulating International Intercourse, and of the instrumental forms by which International consent is expressed and ratified (e). Upon a scrupulous fidelity in the observation of Treaties, not merely in their letter but in their spirit, obviously depends, under God, the peace of the world. Pacta sunt servanda is the pervading maxim of International, as it was of Roman jurisprudence (ƒ).

(c) Vide ante, vol. i. p. 46. (d) Warnkönig, Rechtsphilosophie, s. 218. (e) Vide ante, vol. i. pp. 46, 54, 68. (f) Dig. ii. 14, 1 pr.

The treaty-breaking State is the great enemy of Nations, the disturber of their peace, the destroyer of their happiness, the obstacle to their progress, the cause- -to sum up all charges of the terrible but necessary evil of War (g).

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"Fundamentum justitiæ est fides, i.e. dictorum conventorumque constantia et veritas "(h). To this remark of Cicero may be added the maxim which Ulpian puts in the form of a question: "Quid tam congruum fidei humanæ quam quæ "inter eos placuerunt servare?"

A Christian State, even in A.D. 1881, might be edified by the preamble to the Treaty between Nadir Shah, the Emperor of Persia, and the Sultan Mahmoud, Emperor of the Turks, in 1747. "Glory be to God" (it begins), "who among "other things has rooted out all hatred and enmity from the "bosoms of these nations, and has commanded them to keep "their Treaties inviolable, as the ever glorious book saith, "O ye who believe, keep your covenants" (i).

XLV. Different writers have adopted different arrangements of this part of International Jurisprudence as to the merits of which it might be difficult to decide. Perhaps the following preliminary considerations may contribute to a clear conception of the subject.

Treaties may be considered

First, as to their subject, e.g., whether they relate to a matter of Natural Right, which, like a declaratory enactment, only adds another sanction to existing Law; or whether they contain some obligation as to what was previously optional or indifferent, as the abandonment of a right, the concession of a privilege, or the imposition of a servitus (j).

(g) Vattel, 1. ii. c. xv. passim, s. 220. "La foi des traités, cette volonté ferme et sincère, cette constance invariable à remplir ces engagements, dont on fait la déclaration dans un traité, est donc sainte et sacrée entre les nations, dont elle assure le salut et le repos; et si les peuples ne veulent pas se manquer à eux-mêmes, l'infamie doit être le partage de quiconque viole sa foi."

Klüber, s. 145.

(h) Cic. de Offic. i. 7.

(j) Vide ante, vol. i. pp. 389–392.

(i) Wenck, pp. 305–6.

Secondly, with respect to their object, whether it be of a permanent or transitory character, whether it relate exclusively to the contracting parties, or have for its object to guarantee the safety of possessions of a Third Power. Treaties of guarantee deserve a special consideration.

Thirdly, with respect to the contracting parties, e.g. whether they be both Christian, or whether they be Christian on the one side and Heathen or Infidel on the other, or whether they be Christian on the one side and on the other Mahometan, and whether within or without Europe (k).

Fourthly, with respect to the period of time in which they were contracted; that is to say

1. Whether they were contracted before or after the Treaty of Westphalia, 1648 (1). This was the first fundamental pact of Europe which struck at the root of the foreign temporal authority of the Pope,-the last relics of which disappeared from the code of International Law when this great statute was engrafted on it, and introduced, within certain limitations, the principle of intervention on the ground of religion. This Treaty recognised as its foundation that the Balance of Power was necessary for the safety of nations, and though the equilibrium effected by it related chiefly, if not exclusively, to the German nations of Europe, it gave stability to many principles of International Law, and a consistent form to what was at that time a great ingredient of the liberties of Europe, the confederation of the German States; and lastly, this Treaty formed the basis of many succeeding Conventions, which, without a reference to it, would be unintelligible (m).

(k) See Hertslet's Commercial Treaties for a variety of Treaties between Christian Powers and African Princes.

(1) Koch, Hist. des Tr., Introd. p. 30.

(m) "Denique per hanc pacem (Westphalicam) suscitatum est Jus illud Gentium, quod recentiori ætate enatum, hodieque etiam bello ac pace magna auctoritate floret, recte agentibus aliorum amicitiam ac societatem conciliat, legum violatoribus communem gentium indignationem ac bella parit."-Klinkhamer, De bello propter successionem Regni Hispanici gesto, Pace Rheno-Trajectina composito, 1829. Amstelodami.

2. Whether before or after the Treaty of Utrecht (1713), which again affirmed the principle of the Balance of Power as a necessary safeguard for the liberties of nations, and which laid down as an inevitable consequence the two propositions, that the Crown of Spain should not be worn by the sovereign of another European territory, and that the Low Countries should not be added to the compact and magnificent domain of France.

3. Whether before or after the period intervening between the Treaty of Utrecht (1713) and the breaking out of the French Revolution (1791), during which Prussia and Russia had entered as new elements into the European system, and a new power in another hemisphere, the United States of North America, had taken its place in the community of States, and not a little affected their International relations for all time to come.

4. Whether it be during the twenty-five years' war of the French Revolution, and before that great adjustment of the European system, the Treaty of Vienna (1815).

5. Whether it be between that period and the present time, which embraces a long period of International peace, since 1854 unhappily interrupted by wars, the end and the consequences of which no political sagacity can clearly foresee. During this latter period, many Republics in Central and Southern America, as well as Belgium, Greece, Roumania and Servia in Europe, have become members of the great community of States; during this period European Turkey has been recognised as being, and has claimed to be entitled to the rights and bound by the obligations incident to members not only of the general, but of the European community of nations (n); during this period the barrier which shut out China and Japan from the commerce of the western hemisphere has been broken down (o); during this period France has lost not the least valuable portion of her territory, and Prussia has been

(n) Vide ante, vol. i. p. 92. (0) Vide ante, vol. i. pp. 283, 472.

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