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mode, would have been irrevocable. But the independence of the United States was precisely the question upon which a previous war between them and Great Britain had been waged. Other nations might acknowledge their independence without a treaty, because they had no right or claim of right to contest it; but this acknowledgment, to be binding upon Great Britain, could have been made only by treaty, because it included the dissolution of one social compact between the parties, as well as the formation of another. Peace could exist between the two nations only by the mutual pledge of faith to the new social relations established between them; and hence it was, that the stipulations to that treaty were in the nature of perpetual obligation, and not liable to be forfeited by a subsequent war, or by any declaration of the will of either party, without the assent of the other.1
The above analysis of the correspondence which took place relating to this subject, has been inserted as illustrative of the general question, how far treaties are abrogated by war between the parties to them; but the particular controversy itself was finally settled between the two countries on the basis of compromise, by the convention of 1818, in which the liberty claimed by the United States in respect to the fishery within the British jurisdiction and territory, was confined to certain geographical limits.
ties ration of
in certain cases.
$ 10. Trea- Treaties, properly so called, or fædera, are those of
ape- friendship and alliance, commerce, and navigation, which cease which, even if perpetual in terms, expire of course :
1. In case either of the contracting parties loses its existence as an independent State.
2. Where the internal constitution of government of either State is so changed, as to render the treaty.inapplicable under circumstances different from those with a view to which it was concluded.
Here the distinction laid down by institutional writers between
1 Mr. J. Q. Adams to Lord Castlereagh, Jan. 22, 1816. American State Papers, fol. edit. 1834, vol. iv. p. 356.
2 Vide supra, pt. 2, ch. iv. § 8, p. 236.
real and personal treaties becomes important. The first bind the contracting parties independently of any change in the sovereignty, or in the rulers of the State. The latter include only treaties of mere personal alliance, such as are expressly made with a view to the person of the actual ruler or reigning sovereign, and though they bind the State during his existence, expire with his natural life or his public connection with the State.1
3. In case of war between the contracting parties; unless such stipulations as are made expressly with a view to a rupture, such as the period of time allowed to the respective subjects to retire with their effects, or other limitations of the general rights of war. Such is the stipulation contained in the 10th article of the Treaty of 1794, between Great Britain and the United States, providing that private debts and shares or moneys in the public funds, or in public or private banks belonging to private individuals, should never, in the event of war, be sequestered or confiscated. There can be no doubt that the obligation of this article would not be impaired by a supervening war, being the very contingency meant to be provided for, and that it must remain in full force until mutually agreed to be rescinded. 2
4. Treaties expire by their own liinitation, unless revived by express agreement, or when their stipulations are fulfilled by the respective parties, or when a total change of circumstances renders them no longer obligatory.
firmed on the renewal
Most international compacts, and especially treaties $11. Trea
ties revived of peace, are of a mixed character, and contain articles and con of both kinds, which renders it frequently difficult to the distinguish between those stipulations which are per- of peace. petual in their nature, and such as are extinguished by war between the contracting parties, or by such changes of circumstances as affect the being of either party, and thus render the compact inapplicable to the new condition of things. It is for this reason, and from abundance of caution, that stipulations are
i Vide ante, pt. i. ch. 2, § 11, p. 36.
? Vattel, liv. iii. ch. 10, § 175. Kent's Comment on American Law, vol. i. p. 175. 5th ed:
frequently inserted in treaties of peace, expressly reviving and confirming the treaties formerly subsisting between the contracting parties, and containing stipulations of a permanent character, or in some other mode excluding the conclusion that the obligation of such antecedent treaties is meant to be waived by either party. The reiterated confirmations of the treaties of Westphalia and Utrecht, in almost every subsequent treaty of peace or commerce between the same parties, constituted a sort of written code of conventional law, by which the distribution of power and territory among the principal European States was permanently settled, until violently disturbed by the partition of Poland and the wars of the French revolution. The arrangements of territory and political relations substituted by the treaties of Vienna for the ancient conventional law of Europe, and doubtless intended to be of a similar permanent character, have already undergone, in consequence of the French, Polish, and Belgic revolutions of 1830, very important modifications, of which we have given an account in another work.1
$ 12. Trea
The convention of guaranty is one of the most usual ties of gua- international contracts. It is an engagement by which
one State promises to aid another where it is interrupted, or threatened to be disturbed, in the peaceable enjoyment of its rights by a third power. It may be applied to every species of right and obligation that can exist between nations; to the possession and boundaries of territories, the sovereignty of the State, its constitution of government, the right of succession, &c.; but it is most commonly applied to treaties of peace. The guaranty may also be contained in a distinct and separate convention, or included among the stipulations annexed to the principal treaty intended to be guaranteed. It then becomes an accessary obligation.
The guaranty may be stipulated by a third power not a party to the principal treaty, by one of the contracting parties in favor
1 Wheaton, Hist. Law of Nations, pp. 435-445, 538-551.
2 Vattel, Droit des Gens, liv. ii. ch. 16, SS 235-239. Klüber, Droit des Gens Moderne de l'Europe, pt. ii. tit. 2, sect. 1, ch. 2, SS 157, 158. Martens, Précis, &c., $ 63.
of another, or mutually between all the parties. Thus, by the treaty of peace concluded at Aix-la-Chapelle in 1748, the eight high contracting parties mutually guaranteed to each other all the stipulations of the treaty.
The guaranteeing party is bound to nothing more than to render the assistance stipulated. If it prove insufficient, he is not obliged to indemnify the power to whom his aid has been promised. Nor is he bound to interfere to the prejudice of the just rights of a third party, or in violation of a previous treaty rendering the guaranty inapplicable in a particular case. Guaranties apply only to rights and possessions existing at the time they are stipulated. It was upon these grounds that. Louis XV. declared, in 1741, in favor of the Elector of Bavaria against Maria Theresa, the heiress of the Emperor Charles VI., although the court of France had previously guaranteed the pragmatic sanction of that Emperor, regulating the succession to his hereditary States. And it was upon similar grounds, that France refused to fulfil the treaty of Alliance of 1756 with Austria, in respect to the pretensions of the latter power upon Bavaria, in 1778, which threatened to produce a war with Russia. Whatever doubts may be suggested as to the application of these principles to the above cases, there can be none respecting the principles themselves, which are recognized by all the text writers.
These writers make a distinction between a Surety and a Guarantee. Thus Vatte) lays it down, that where the matter relates to things which another may do or give as well as he who makes the original promise, as, for instance, the payment of a sum of money, it is safer to demand a surety (caution) than a guarantee (garant). For the surety is bound to make good the promise in default of the principal; whereas the guarantee is only obliged to use his best endeavors to obtain a performance of the promise from him who has made it.2
Treaties of alliance may be either defensive or offen
13. Treasive. In the first case, the engagements of the ally ex- ties of allitend only to a war really and truly defensive; to a war of
'Vattel, liv. ii. ch. 16, § 238. Flassan, Histoire de la Diplomatie Française, tom. vii. p. 195.
2 Vattel, $ 239.
aggression first commenced, in point of fact, against the other contracting party. In the second, the ally engages generally to coöperate in hostilities against a specified power, or against any power with whom the other party may be engaged in war. An alliance may also be both offensive and defensive.
General alliances are to be distinguished from treaties tinction be of limited succor and subsidy. Where one State stipufacanierelates to furnish to another a limited succor of troops,
enties ships of war, money, or provisions, without any promise succour , looking to an eventual engagement in general hostilities, and subsidy.
such a treaty does not necessarily render the party furnishing this limited succor, the enemy of the opposite belligerent. It only becomes such, so far as respects the auxiliary forces thus supplied ; in all other respects it remains neutral. Such for example, have long been the accustomed relations of the confederated Cantons of Switzerland with the other European powers
frederis of a defensive
$ 15. Casus Grotius, and the other text writers, hold that the
a casus fæderis of a defensive alliance does not apply to alliance. the case of a war manifestly unjust, that is, to a war of aggression on the part of the power claiming the benefit of the alliance. And it is even said to be a tacit condition annexed to every treaty made in time of peace, stipulating to afford succors in time of war, that the stipulation is applicable only to a just war. To prornise assistance in an unjust war would be an obligation to commit injustice, and no such contract is valid. But, it is added, this tacit restriction in the terms of a general alliance can be applied only to a manifest case of unjust aggression on the part of the other contracting party, and cannot be used as a pretext to elude the performance of a positive and unequivocal engagement, without justly exposing the ally to the imputation of bad faith. In doubtful cases, the presumption ought rather to be in favor of our confederate, and of the justice of his quarrel.?
I Vattel, Droit des Gens, liv. üi. ch. 6, SS 79-82. • 2 Grotius, de Jur. Bel. ac Pac. lib. ii. cap. 15, $ 13; cap. 25, $ 4. Bynkershoek, Quæst. Jur. Pub. lib. i. cap. 9. Vattel, Droit des Gens, liv. ii. ch. 12, $ 168; liv. iii. ch. 6, SS 86-96.