and confirmed on the renew kinds, which renders it frequently difficult to distinguish. between those stipulations which are perpetual in their nature, al of peace. 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 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 very important modifications in consequence of the late French revolution 1830, by which the alliance between the great powers has been broken into two confederacies, repugnant in their origin and principles, and continually threatening to disturb a settlement which has not yet acquired that solidity which general acquiescence and the lapse of time can alone give to such transactions. § 10. Guaran tees. The convention of guarantee is one of the most usual 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 guarantee may also be contained in a distinct and separate convention, or included among the stipulations annexed to the principal treaty intended to be guarantied. It then becomes an accessary obligation,11 The guarantee may be stipulated by a third power not a party to the principal treaty, by one of the contracting parties in favour 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 guarantied to each other all the stipulations of the treaty. The guarantying 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 guarantee inapplicable in a particular case. Guarantees 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 favour of the elector of Bavaria against Maria Theresa, the heiress of the emperor Charles VI., although the court of France had previously guarantied 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 recognised by all the text writers.12 These writers make a distinction between á Surety and a Guarantee. Thus Vattel lays it down, that where the mat 11 Vattel, Droit des Gens, liv. ii. ch. 16, §§ 235–239. Kluber, Droit des Gens Moderne de l'Europe, pt. ii. tit. 2, sect. 1, ch. 2, §§ 157, 158. 12 Vattel, liv. ii. ch. 16, § 238. Flassan, Histoire de la Diplomatie Française, tom. vii. p. 195. § 11. Treaties of alliance. § 12. between ter 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 endeavours to obtain a performance of the promise from him who has made it.13 Treaties of alliance may be either defensive or offensive. In the first case, the engagements of the ally extend only to a war really and truly defensive; to a war of aggression first commenced, in point of fact, against the other contracting party. In the second, the ally engages generally to cooperate 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 of Distinction limited succour and subsidy. Where one state stipulates to general al- furnish to another a limited succour of troops, ships of war, liance and treaties of money, or provisions, without any promise looking to an limited suc- eventual engagement in general hostilities, such a treaty does cour and subsidy. § 13. deris of a not necessarily render the party furnishing this limited succour 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.14 Grotius, and the other text writers, hold that the casus Casus fo- fœderis of a defensive alliance does not apply to the case of a war manifestly unjust, i. e. 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 defensive alliance. 13 Vattel, § 239. 14 Vattel, Droit des Gens, liv. iii. ch. 6, §§ 79–82. made in time of peace, stipulating to afford succours in time of war, that the stipulation is applicable only to a just war. To promise 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 favour of our confederate, and of the justice of his quarrel.15 The application of these general principles must depend upon the nature and terms of the particular guarantees contained in the treaty in question. This will best be illustrated by specific examples. between Great Bri Holland. Thus the States-General of Holland were engaged, pre- Alliance viously to the war of 1756, between France and Great Britain, in three different guarantees and defensive treaties with tain and the latter power. The first was the original defensive alliance, forming the basis of all the subsequent compacts between the two countries, concluded at Westminster in 1678. In the preamble to this treaty, the preservation of each other's dominions was stated as the cause of making it; and it stipulated a mutual guarantee of all they already enjoyed, or might thereafter acquire by treaties of peace," in Europe only." They farther guarantied all treaties which were at that time made, or might thereafter conjointly be made, with any other power. They stipulated also to defend and preserve each other in the possession of all towns or fortresses which did at that time belong, or should in future belong, to either of them; and, that for this purpose, when either nation was attacked or molested, the other should immediately succour it with a certain number of troops and ships, and should 30 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, §§ 86-96. be obliged to break with the aggressor in two months after the party that was already at war should require it; and that they should then act conjointly with all their forces, to bring the common enemy to a reasonable accommodation. The second defensive alliance then subsisting between Great Britain and Holland was that stipulated by the treaties of barrier and succession of 1709 and 1713, by which the Dutch barrier on the side of Flanders was guarantied on the one part, and the Protestant succession to the British crown on the other and it was mutually stipulated, that in case either party should be attacked, the other should furnish, at the requisition of the injured party, certain specified succours; and if the danger should be such as to require a greater force, the other ally should be obliged to augment his succours, and ultimately to act with all his power in open war against the aggressor. The third and last defensive alliance between the same powers was the treaty concluded at the Hague in 1717, to which France was also a party. The object of this treaty was declared to be, the preservation of each other reciprocally, and the possession of their dominions, as established by the treaty of Utrecht. The contracting parties stipulated to defend all and each of the articles of the said treaty, as far as they relate to the contracting parties respectively, or each of them in particular; and they guaranty all the kingdoms, provinces, states, rights, and advantages, which each of the parties at the signing of that treaty possessed, confining this guarantee to Europe only. The succours stipulated by this treaty were similar to those above-mentioned; first, interposition of good offices, then a certain number of forces, and, lastly, declaration of war. This treaty was renewed by the quadruple alliance of 1718, and by the treaty of Aix la Chapelle, 1748. It was alleged on the part of the British court that the States-General had refused to comply with the terms of these treaties, although Minorca, a possession in Europe, which had been secured to Great Britain by the treaty of Utrecht, was attacked by France. |