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the key of Italy. The Austrian Ministry, having decided to yield the point, relaxed its attitude also on the integrity of the Empire from the side of the Rhine and let itself be dazzled by a system of compensation, in which the prospect of being able to aggrandize itself on the Bavarian side was presented to it. Instead of deciding the third litigious question, regarding the émigrés of Belgium, it was avoided by the use of an equivocal expression which would conciliate those affected by the provision of the French law but which left to the bad faith of the French executive directory a pretext for violating the treaty of Campo Formio. This treaty was drawn up October 17, 1797, and Article IX says:
In all the countries ceded, acquired or exchanged by the present treaty, there will be accorded to all inhabitants and property holders whatsoever the withdrawal of the sequestration placed upon their properties, effects and revenues, on account of the war which has taken place between his Imperial and Royal Majesty and the French Republic, without their being (sans qu'ils puissent être) disturbed in this regard in their properties or persons. Those who in the future shall desire to cease living in the said countries shall have to make the declaration thereof three months after the publication of the definitive treaty of peace; they will have the term of three years to sell their movable and immovable property, or to dispose of them according to their desire.
The Austrian plenipotentiaries believed that they had protected the émigrés by the first part of this article, but the French executive directory immediately found a method of eluding this stipulation by pretending that this article could be alleged in favor of those who at the time of signing the treaty were still living in Belgium and not in favor of the old inhabitants, that is, the émigrés. Definite charges of violating the above provision were made by Austria at the Congress of Seltz in 1798. At that time the French negotiator, in eighteen conferences from May 30th to July 5th, was studiously unaware of the condition of the émigrés, and Austria was unable to obtain redress.24
8. The treaty of Mequinez of March 1, 1799, and that of Laraiche of March 6, 1845, established, by intention if not specific provisions, peace between Morocco and Spain at Ceuta. The convention of August 24, 1859, mentioned the other Spanish presidios but was silent
24 Schoell, V, 46, 48, 52, 123.
in respect to Ceuta. At that time it was thought that the tribes of its vicinage were less savage and turbulent than elsewhere and there was not the same need of adopting means of protection against them. The negotiators were deceived in this.25 At the very moment the convention was signed the Anjera tribe committed a particularly grave act of hostility against Ceuta. They rushed the fort built at the Spanish boundary, destroyed its walls, threw the arms of Spain into the water, and massacred the sentinels. A first exchange of diplomatic notes was fruitless, and it was not until after a military campaign that Spain was able to negotiate a treaty of peace and amity at Tetuan on April 26, 1860, which assured the protection of Spanish presidios in general, and, in Article III, of Ceuta in particular. The tribal outbreak seems not to have been in violation of the specific terms of any treaty, though perhaps constructively in contravention of Article XV of that of 1799 and Article I of that of 1845.
9. According to the armistice of Alexandria of June 16, 1800, between France and the Austrian army in Italy, the latter was to occupy Tuscany. This provision was not carried over to the preliminary articles of Paris of July 28, 1800. The French General Brune profited by this fact to occupy Tuscany, although Count de Saint Julien, the French negotiator at Paris, had been promised by the Emperor that the extraordinary levies that had been made were to cease.26
10. Article I of the treaty for the cession of Louisiana by France to the United States of April 30, 1803, has a unique form. It reads:
Whereas by the third Article of the Treaty concluded at St. Ildefonso the 9th Vendemiaire an 9 (1st October, 1800) between the First Consul of the French Republic and his Catholic Majesty it was agreed as follows:
“His Catholic Majesty promises and engages on his part to cede to the French Republic six months after the full and entire execution of the conditions and stipulations herein relative to his Royal Highness the Duke of Parma, the Colony or Province of Louisiana with the same extent that it now has in the hands of Spain, and that it had when France possessed it; and such as it should be after the Treaties subsequently entered into between Spain and other States."
And whereas in pursuance of the Treaty and particularly of the
25 Rouard de Card, Les Relations de l'Espagne et du Maroc, 68–89. 26 Schoell, V, 354.
third article the French Republic has an incontestable title to the domain and to the possession of the said Territory - The First Consul of the French Republic desiring to give to the United States a strong proof of his friendship doth hereby cede to the said United States in the name of the French Republic forever and in full sovereignty the said territory with all its rights and appurtenances as fully and in the same manner as they have been acquired by the French Republic in virtue of the above mentioned Treaty concluded with his Catholic Majesty.27
That the wording of the last paragraph was intentional must be obvious. The fact was that when the American negotiators in Paris were discussing the matter with the French they could get no legal proof of the exact state of execution of the Treaty of San Ildefonso, but it was certain that it had not been completely executed on the part of France, which had promised to secure the recognition by the European Powers of the King of Etruria, and on the part of Spain, which had sought pretexts to avoid the return of Louisiana to France. Under these circumstances, the Americans desired a more specific definition of the boundaries of Louisiana than France was able to furnish geographically. Historical researches failed to provide the necessary facts, and the French negotiator, M. de Marbois, said affairs were too pressing to reach an agreement as to boundaries with Spain, which would probably have to consult its American authorities. Therefore it was agreed that the San Ildefonso article of cession should be incorporated bodily into the Franco-American treaty of cession. “Article I may in time give rise to difficulties,” said M. de Marbois. “They are now insurmountable; but if they do not halt you, I desire that your principals should at least know that you have been informed of them." Commenting on this incident, which in reality caused no trouble, Count de Garden makes these just remarks on ambiguity in treaties:
It is important not to introduce ambiguous clauses into treaties. However, the American plenipotentiaries made no objections; and if in appearing to be resigned to these general terms from necessity they in fact found them preferable to more precise provisions, it is necessary to admit that the event justified their foresight. The coasts of
72 Appended to the treaty also is the full text of the Treaty of San Ildefonso. See Malloy, Treaties, Conventions, etc., 506-511; Compilation of Treaties in Force, 257–262.
the Pacific were not certainly included in the cession, but the United States has long been established there.
The French negotiator in rendering a report to the first Consul (Napoleon) of the conference remarked the obscurity of this article and the inconvenience of a provision so uncertain. He got as a reply to his remark: "If the obscurity was not there, it might have been good politics to put it in.” We have related this reply to have occasion to say that the article was well justified by circumstances and that political science disavows all obscure stipulations. If they are some times convenient at the time of a difficult negotiation, they may in future be the subject of the greatest embarrassment.28
11. On September 2-5, 1807, the British fleet bombarded Copenhagen. It will be remembered that Nelson at Copenhagen six years before, himself a subordinate, on being informed that his superior ilag officer was signaling to cease firing, put the telescope to his blind eye; and, after pointing it long and hard in the proper direction, asserted that he saw nothing, and continued fighting. On September 5 General Peymann asked for an armistice to treat as to a capitulation, which was signed the 7th. Article III states that vessels and ships of all kinds, as well as all naval 'stores and stocks thereof, belonging to his Danish Majesty, would be placed under guard of persons designated by the British commander-in-chief. These persons were to take possession without delay of the docks and all magazines and ships at them. The Danish Prince Royal sent orders to General Peymann to destroy the fleet rather than to allow its being delivered up. The officer carrying this order was captured at the moment when he was entering Copenhagen. Partly due to this unsuccessful coup, the English translated Article III very broadly, and it was charged that they extended the words "naval stores" to cover the destruction of all dock machinery which they could not carry away. The North German newspapers were particularly bitter on this point, but the English papers on the contrary alleged that they left the Danes so large a quantity of naval stores that they were able to equip a new fleet immediately after the leaving of the English ships.? 28 Garden, op. cit., VIII, 75.
29 Schoell, IX, 68–71.
B. AFTER 1848
It would not be true to say that imperfect wording of treaties no longer serves to create violation, but it is an obsolescent form of intentional breach. States in these days struggle for stability rather than temporary diplomatic advantages. Disputes over the wording of their engagements occur, but ordinarily they are honest disputes and are settled by negotiations, court or arbitral interpretation. The controversy over the Panama Canal tolls exemption even gives an instance of settlement of such a dispute by legislative action before any possible violation; for in essence the difference was whether the treaty stipulation of equal treatment "to all nations" was intended to include or exclude the United States. Both the opinion of the President and the testimony of surviving negotiators pointed to an original intention to include the United States, and Congress accepted that view. Imperfect wording of treaties at present most frequently occurs in the relations between states of different civilizations, especially those with nonoccidental languages.
12. On July 3, 1880, was signed the convention of Madrid to regulate protection in Morocco. Of this treaty the Arabic original is alone recognized by the Moorish Government, as being that signed for the Sultan. Literally translated, this says in Article 5: “They [the foreign representatives] have no right to employ even one Moorish subject against whom there is a claim (daawah)”; and further on in paragraph 4: “No protection shall be given to anyone who is under prosecution (jarîmah) before the sentence is given by the authorities of the country.” As nearly as it can be translated, daâwah sharâîah (or, as it is more commonly called, daawah only) means a civil case, and jarîmah a criminal one. In the English text of the treaty (translated from the French original) the sentence quoted above read: “They shall not be permitted to employ any subject of Morocco who is under prosecution,” and, “The right of protection shall not be exercised toward persons under prosecution for an offense or crime,” etc. From this the Moors argue, with a good show of right, that no one under prosecution, whether the suit be civil or criminal, can be protected by a foreign power, the fact being that they do not know the distinction between them that we do, and that according to their copy of the treaty, both civil and criminal cases prevent protection.30
30 Budgett Meakin, The Moorish Empire, 228 note; Treaties, Conventions, etc., 1776–1909, 1223; Treaties in Force, 563.