able to reach a more objective point of view than has been developed. The scheme of arrangement chosen, which may be defined as violation according to kind, is:

1. Defective drafting, inducing more or less honest adverse action. 2. Bad faith in contracting.

3. Nonexecution or disregard.

4. Violation by hostile legislation.

5. Deliberate violation.

Historical instances will be cited under the conditions and after application of the tests already set forth.

I. DEFECTIVE DRAFTING

In treaties, above all other public documents, accuracy of language is essential to insure freedom from dispute. A treaty must mean exactly what it says, and it is in large measure due to the readiness with which fine distinctions of meaning may be expressed in French that that language has become the diplomatic tongue, in which all multipartite international treaties or conventions are officially signed and ratified. National translations are valid only as they are good translations, however official they may be. Bipartite treaties are ordinarily signed and ratified in two originals, one language of which is frequently indicated as controlling in case of dispute. It might be supposed that this variation of language would result in numerous difficulties, but it does not; and when it does, the difficulty is ordinarily one of interpretation which a little negotiation serves to dispel. And this is true notwithstanding the rather interesting fact that some official translations-usually all that municipal lawyers consult are inaccurate. It is another character of linguistic lapse that gives rise to treaty breach, the failure to say what is meant, or its left-handed expression. The misuse, or careless use, of language is too frequent upon the contracting parties; (3) the right recognized by a treaty to a certain state may not, therefore, be conceded to another state.

Pradier-Fodéré, Traité, 2, 716, sec. 1057, says that the four conditions of the validity of treaties, indispensable to their existence, are: capacity of the contractants; their consensus; a certain purpose forming the matter of the engagement; and a licit cause.

for it not to occur in the 100,000 and more pages of extant treaties, but it is rather surprising that it has given beginning to very few violations. A few may be cited to illustrate how diplomats sometimes nod in their mother tongues or their adoptive tongue, French.

A. PRIOR TO 1848

1. Toward the end of the year 1780 trouble broke out between Great Britain and the States General. Great Britain complained that the Dutch were carrying wood for the construction of vessels to her enemies. The controlling treaty of commerce of December 1, 1674, does not include building timber among the articles of contraband which the subjects of either were forbidden to carry to the enemies of the other, but the English maintained that this prohibition was included in that of aid for warlike objects, a prohibition expressed in the later treaties. France, on the other hand, demanded of the Republic that it convoy ships laden with timber cargoes for France. The English Ministry presented, on March 21, 1780, a memoir claiming warlike assistance from Holland in accordance with a separate article of the treaty of alliance of Westminster of March 3, 1678. The States General not having replied to this memoir, London declared on April 17, 1780, that the subjects of the United Provinces would henceforth be considered as those of neutral Powers not privileged by treaties. All specific provisions destined to favor the liberty of navigation and commerce of Dutch citizens as expressed in different treaties, and especially in the Treaty of Marine, concluded at London, December 1, 1674, were suspended; which naturally relieved England of the ambiguity.

2. Article IX of the Peace of Utrecht between France and Great Britain of April 11, 1713, has regard to Dunkirk, whose fortifications the French king agreed to raze and whose port he contracted to fill at his own expense within a period of five months after the peace, never to repair it. This clause was renewed in all subsequent treaties up to the Peace of Versailles of January 20, 1783, when France secured its final abolition. Louis XIV, taking advantage of the circumstance that the Treaty of Utrecht did not prohibit the right of replacing the

port of Dunkirk by another, began to develop Mardick, a village about a league from Dunkirk, where the port was deeper than the one filled up, and to which he made a canal. This bad faith, due to imperfect wording of the engagement, gave rise to complaints from England which led Louis XIV to issue an order of suspension of the works at Mardick in February, 1715.20

By Article IV of the Treaty of The Hague of January 4, 1717, regularizing the triple alliance of Westminster of May 25, 1716, the King of France promised to execute everything that he had promised in respect to the city of Dunkirk and to omit nothing which Great Britain believed necessary to the entire destruction of the port of Dunkirk. The article continues: "When this treaty is ratified the King of Great Britain and the Seigneurs of the States General may send commissioners to the place to be eye witnesses of the execution of this treaty."

By virtue of this clause in the triple alliance, British commissioners frequently visited Dunkirk to inspect the port, and violated the spirit of the treaty by exerting the right in time of war in 1744 and 1756. It was not until 1783 that France secured final freedom from the bothersome article. The recriminations in respect to Dunkirk continued until that time, and in 1744, among the causes of war with France, England gave French violation of the treaties forbidding the reëstablishment of fortification of Dunkirk. By the Convention of Aix la Chapelle of August 2, 1748, Article XVII, it was agreed that Dunkirk would remain fortified on the land side, as it then was, and that on the coast side the basis of the former treaties would be followed.

3. The approach of the French army of Maillebois and the movements of a Prussian corps under the Prince of Anhalt-Dessau, made George II lose hope of guaranteeing the Electorate of Hanover from invasion in 1741. He sent a minister to Paris to announce his intention of maintaining neutrality, and Louis XV sent to Hanover M. de Bussy, minister to London, who signed with Barons Munchausen and Steinberg, the ministers of George II, on October 28, 1741, the treaty

20 Schoell, Histoire Générale des Traités de Paix, II, 106; Hall, op. cit., 1st ed., 284; Phillimore, op. cit., 2, sec. LXXIII. The treaty of Utrecht as to Dunkirk stipulates "nec dicta munimenta, portus, moles, aut aggeres, denuo unquam reficiantur.”

of neutrality of Hanover, in which it was forgotten to state how long the neutrality should run, a fact which gave a pretext for its speedy rupture.21

4. Three separate secret articles were attached to the quadruple alliance of Warsaw of January 8, 1745, between the King of Poland, the Elector of Saxony, the King of Great Britain, the Queen of Hungary and the United Provinces. "To put the Kingdom of Poland more in a state of being useful in the public cause," says the third article, "the King of England and the Queen of Hungary promise to aid the King of Poland in his salutary views to this end, the more so (d'autant) as they shall be able to do it, without violating the laws and constitutions of the said Kingdom." The King of Poland desired to assure the succession to his son, but there is an equivocation in the particle d'autant (more so), in place of which it is doubtless necessary to read autant (simply meaning as much as) or en tant (indicating in so far as). It is not evident that this mistake really led to any difficulty, but it is obviously erroneous, as pointed out by Wenck.22

5. Imperfect wording of Article IX of the Treaty of Aix la Chapelle, April 30, 1748 (preliminary), October 18, 1748 (definitive) gave rise to a dispute in America. This article ordered the restitution of American conquests made during the war, adding that everything should be restored "sur le pied qu'elles etoient ou devoient être avant la guerre" (on the basis they were or ought to be before the war). The devoient être (ought to be) offered the English a pretext constantly to undertake new expeditions against the French in the north, where the boundaries had never been delimited by treaty. On the other hand, the English replied to this charge that they were only repressing French attempts to extend their boundaries at the expense of their neighbors. The principal difference related to the boundaries of Arcadia or Nova Scotia, which had been ceded by Article XII of the Treaty of Utrecht, "conformably to its ancient boundaries," which, however, were unknown. Commissioners charged with solving this and other difficul

III,

21 Schoell, Histoire Générale des Traités de Paix, II, 320-322; Garden, ibid., 260.

22 F. A. Wenck, Codex juris gentium recentissimi, 2, 471; Schoell, op. cit., II, 361; Garden, op. cit., III, 321-322.

ties sat at Paris from September, 1750, to 1755, when on June 8th the English, convinced that France was simply drawing out the conferences to regain her strength, resumed hostilities.

6. An instance of an ill-advised treaty provision is furnished in Article XXVI of the Pacte de Famille of Paris, August 15, 1761, between the branches of the House of Bourbon. By the article the two powers took the engagement reciprocally to confide to each other all alliances which they might effect in the future and to report to each other the negotiations which they might pursue, especially those affecting their common interests. Since the pact stipulated that either must come to the aid of the other in case of war, this provision had some reason; but, since the two states had many interests not in common, it was very difficult to have the engagements executed with entire good faith. Many times Spain complained that France was not abiding by the provision, while France made similar recriminations. The pact, however, was still in existence as late as 1790, when the King of Spain demanded France to make common cause with him. The French National Constituent Assembly, after examining the extent of the engagement, decreed on August 24 that the nation would fulfill the defensive and commercial obligations it had contracted. Article II of the Treaty of Paris of February 10, 1763, between France, Spain, England and Portugal, says that the contractant will religiously observe all previous treaties in all respects in which they are not abrogated by the present treaty, and will not permit any privilege, grace or indulgence contrary to those treaties, unless accorded by the present treaty. Abbé de Mably claims that this article revokes Article XXIII-XXIV of the Pacte de Famille, but this seems not to be case, for those articles refer to commerce, and the treaty under discussion is purely political.

7. At the negotiation of Udine, before the Treaty of Campo Formio, the French demanded the application of French laws to the Belgian émigrés. This question was mingled with the reunion of Mantua to the Cisalpin Republic and the establishment of the Rhine as a boundary. September 27, 1797, Bonaparte proclaimed the reunion of Mantua to the Cisalpin Republic, leaving to the Court of Vienna the alternative between war and the renunciation of this city, which was regarded as 23 Schoell, III, 89, 90, 107, 123.