value. Such was also the former usage of Holland and Venice, which was justified on the ground of public utility, as an inducement to attack pirates. The salvage for recapture from pirates in Great Britain, is also one-third the value of the captured property. With respect to restitution and salvage in case of the recapture from pirates of the property of alien friends, the rule of reciprocity is usually followed. Hautefeuille objects to the allowance of salvage in such cases, or at least to so large a salvage as one-third of the value, and refers with approbation to the treaty of 1783, between the United States and Sweden, by which it was agreed that property retaken from pirates, by a ship of war or privateer, should be restored entire to the true proprietor. (Brown, Civil and Admirality Law, vol. 2, ch. 3, p. 461; Loccenius, de Jur. Marit., lib. 2, cap. 2, No. 4; Grotius, de Jur. Bel ac Pac., lib. 3, cap. 9, § 17; Wheaton, Elem. Int. Law, pt. 4, ch. 2, § 12; Phillimore, On Int. Law, vol. 3, §§ 411, 412; The Calypso, 2 Hagg. Rep., p. 213; Valin, Com. sur l'Ordonnance, liv. 3, tit. 9, § 10; Pothier, Traité de Proprieté, No. 101; Hautefeuille, Des Nations Nuetres, tit. 13, ch. 3; Dalloz, Repertoire, verb. Prises Maritimes, sec. 3; De Cussy, Droit Maritime, lib. 1, tit. 3, § 30.)

§ 27. The rules of joint capture, given in a preceding chapter, are equally applicable to joint recapture. It is held in England, that although the prize act only mentions recaptures by ships and boats, it does not intend to exclude those made by the assistance of land forces. Where an island was taken by a joint naval and military force, the ships recaptured were held liable to be adjudged under this act, and to be condemned to the captors, or to be restored on payment of salvage, as the case might be. Moreover, a land force may be entitled to sustain a claim of salvage for recapture of vessels in a maritime port, without the coöperation of a naval force, where the recapture is a necessary and immediate result of a military operation directed to the capture of the place within whose port the property is lying. Thus, where the delivery of captured English vessels resulted from the reöccupation of Oporto by the allied army under the Duke of Wellington, which was effected by military operations and a battle fought in the neighborhood for that object, the army

was held to be entitled to salvage. It was also held that this claim of salvage would attach upon property landed and warehoused by the enemy, where it remained to be reclaimed by the owners on the recapture of the place, and was resumed and returned on board as parts of the cargoes of the vessels so recaptured. (Wildman, Int. Law, vol. 2, p. 287; The Ceylon, 1 Dod. Rep., pp. 116, 119; The Progress, Edw. Rep., p. 210; The Wanstead, Edw. Rep., p. 268; The Spankler, 1 Dod. Rep., pp. 360, 361; The Dorothy Foster, 6 Rob. Rep., p. 88.)

§ 28. But a distinction is made where vessels of the same country are recaptured in native ports by a native army alone, or with the coöperation of allied forces. Thus, in the case of Oporto, it was held that although salvage was due for the recapture of English vessels in that port, none could be allowed for the Portuguese vessels recaptured at the same time. By the reöccupation of the port by the forces of the state, the rights of the former sovereign were restored, and his subjects were entitled to receive their property back as it stood before the irruption of the enemy. The whole would revert instantly to the former owners, on the well established principle of postliminy. "The history of the world has produced no instance in which a claim of salvage for the rescue of a capital city, by the native army, has been made and allowed, and, therefore, on principle and practice, the claim is not sustainable. That is the state of the transaction in its simplest form. But, suppose allies be coöperating with the native army in the recapture, in that case the army coming as allies, and associated with the native army, compose part of the same body; they are pursuing the same objects, and stand in every respect on the same footing; they would have the same rights and no more, and the proportion of force can make no difference. The whole together must be considered as one army in every respect, where native property is concerned; and if the native army would not be entitled to salvage, the armies of the allies can claim none." (Heffter, Droit International, § 187, et seq.; Wildman, Int. Law, vol. 2, p. 288; The Progress, Edw. Rep., p. 219.)

CHAPTER XXXVI.

THE OBSERVANCE AND INTERPRETATION OF TREATIES.

CONTENTS.

1. Violation of the faith of treaties, how punished-22. Use of an oath or asseveration-3. Conditions to make a treaty binding - 24. Attempts of the Popes to annul the obligation of treaties - 5. Guarrantees and securities 6. Duration of guarrantees and withdrawal of pledges — 87. Dissolution and termination of treaties — 28. Effect of loss of sovereignty -¿9. Debts previously contracted - 10. Remarks of Kent and Wheaton on the interpretation of treaties — § 11. Rules of Grotius — § 12. Of Vattel - 13. Collision of stipulations - 14. Rules of Rutherforth - 15. Of Paley16. Minute rules of other writers - 17. Objections to arbitrary formulae 18. Importance of well-established principles.

§1. "As all nations," says Vattel, "are interested in maintaining the faith of treaties, and causing it to be everywhere regarded as sacred and inviolable, so likewise they are justifiable in forming a confederacy for the purpose of repressing him who disregards it." ** * "Such a sovereign deserves to be treated as an enemy of the human race." The foregoing remarks of Vattel, with respect to nations combining together for the punishment of a state which violated its treaty stipulations, are not sustained by later authorities. A plain and indisputable violation of a treaty is, undoubtedly, a violation of the law of nations. While a treaty imposes on the one hand a perfect obligation, it produces.

on the other a perfect right. To violate a treaty is, therefore, to violate a perfect right of him with whom it was contracted. Moreover, such violations are injurious to other states who are not parties to the treaty, for, in the words of Vattel, "we can no longer depend on the conventions to be made, if those that are made are not maintained." Nevertheless, they cannot be classed with piracy, or violence to the person of an ambassador. One who openly violates the obligations of a treaty, will incur the disgrace of infamy and the reproach of mankind, but, so far as penal consequences are concerned, it is only the injured party who is justified in resorting to open and solemn war for the purpose of inflicting punishment. (Vattel, Droit des Gens, liv. 2, ch. 15, §§ 221, 222; Wheaton, Elem. Int. Law, pt. 4, ch. 4, § 8; Phillimore, On Int. Law, vol. 2, § 44; Kent, Com. on Am. Law, vol. 1, p. 181; Riquelme, Derecho Pub. Int., lib. 1, tit. 1, cap. 15; Heffler, Droit International, § 104.)

§ 2. The use of an oath, in treaties, does not constitute a new obligation, nor does it strengthen the obligation already contracted. The most that could ever be said of it was, that it gave some additional solemnity to the act, and imposed a personal obligation upon the sovereign who took the oath, or gave commission to another to swear for him. It could neither give validity to an invalid treaty, nor a preeminence to one treaty above another. The custom, once generally received, of swearing to treaties, has now entirely passed away. "Even children," says Vattel, "know that an oath does not constitute the obligation to keep a promise or treaty; it only gives additional strength to that obligation, by calling God to bear witness. A man of sense, or a man of honor, does not think himself less bound by his word alone, by his faith once pledged, than if he had added the sanction of an oath." The most modern example of the use of the oath, was in the alliance between France and Switzerland, in 1777. Asseverations are sometimes used in engagements or treaties between sovereigns; such as, we promise in the most sacred manner; with good faith; solemnly; irrevocably; and pledge our royal words, etc. These are now regarded as mere forms of expression, showing that the parties entered into the engagement with reflection, deliberation, and a full knowledge of what they were

doing. The words added nothing to the obligation of the treaty. But the formal and deliberate manner in which treaties are now made and ratified, render such forms of expression entirely superfluous. Even a tacit engagement is as much binding, as one made in express terms. Thus, everything which is necessarily understood in a treaty, and without which its stipulations cannot be carried out, is equally obligatory with the stipulations themselves. (Vattel, Droit des Gens, liv. 2, ch. 15, §§ 225, 229; Phillimore, On Int. Law, vol. 2, § 54; Wenck, Jus. Gentium, pp. 305, 306; Riquelme, Derecho Pub. Int., lib. 1, tit. 1, cap. 15; Heffter, Droit International, § 96.)

§3. Martens says, that in order to make a treaty obligatory, the following five things are necessarily supposed: 1st, That the parties have power to contract. In other words, that the person or authority making the treaty, or ratifying it, had full power for that purpose. 2d, That they have consented. The form of such consent is entirely unimportant, provided it is fully and clearly declared. 3d, That they have consented freely. The consent must have been a voluntary act of the contracting party. The plea of fear, however, cannot be opposed to the validity of treaties between nation and nation, except, at most, in cases where the injustice of the violence employed is so manifest as not to leave the least doubt. 4th, That the consent is mutual. 5th, That the execution is possible. The last two requisites are too plain to require explanation or comment. (Martens, Precis du Droit des Gens, § 48; Vattel, Droit des Gens, liv. 2, ch. 12, §§ 157, et seq.; Phillimore, On Int. Law, vol. 2, § 45; Riquelme, Derecho Pub. Int., lib. 1, tit. 1, cap. 15; Real, Science du Gouvernement, tome 5, ch. 3, sec. 7.)

§ 4. The popes at one time claimed the authority to absolve sovereigns from their engagements and to annul the obligations of treaties, under whatsoever solemnities they might be contracted. Vattel mentions a number of instances where, he says, they have undertaken to break the treaties of sovereigns, "to unloose a contracting power from his engagements, and to absolve him from the oaths by which he had confirmed them." * * * "Who does not see