Hostages

cution of

§ 286. The execution of a treaty is sometimes secured by hostages given by one party to the other. The most for the exerecent and remarkable example of this practice occurred treaties. at the peace of Aix-la-Chapelle, in 1748; where the restitution of Cape Breton, in North America, by Great Britain to France, was secured by several British peers sent as hostages to Paris. (a)

tation of

§ 287. Public treaties are to be interpreted like other Interprelaws and contracts. Such is the inevitable imperfection treaties. and ambiguity of all human language, that the mere words alone of any writing, literally expounded, will go a very little way towards explaining its meaning. Certain technical rules of inter- . pretation have, therefore, been adopted by writers on ethics and public law, to explain the meaning of international compacts, in cases of doubt. These rules are fully expounded by Grotius and his commentators; and the reader is referred especially to the

(Comm. i. 50-52) seems to be, that a treaty obligation to aid in a defensive war cannot, as of right, be insisted upon, if the ally first actually declares and commences the war, whatever may have been the balance of right and wrong in the previous relations of the belligerent nations. The nation undertaking the obligation so worded is not bound to look beyond the fact that the war is commenced by its own ally. At the same time, Kent holds, that, even if the war be strictly defensive in its form, the guarantor is not bound to render aid, if justice is, in his opinion, clearly against his ally. (Ib. 51.) Woolsey seems also of opinion, that the defensive war referred to in such treaties is to be determined by its moral character, as a wardingoff of injustice, and not at all by its military character; and that the aid is due, if the war begins in offensive operations by the ally, provided they be necessary to anticipate injustice; and is not due, although the ally be invaded, if his cause is bad. (Introd. § 103.) But if the treaty is, in terms, to aid in all defensive wars, and the war is strictly a defensive war against an invasion, how can the ally refuse assistance, and still consider the treaty as binding? The true position in such a case is, that, while the treaty does require the stipulated aid, the misconduct of the nation which brought the invasion upon itself may be so gross as to absolve the other party from his obligation. In other words, if a nation chooses to make a clear agreement to lend aid in a defensive war, and the true construction of that term refers to the military character of the war, and not to its moral aspects solely, then the question of the causes of the defensive war is addressed, not to the construction of the treaty obligation, but to an excuse in ethics for not fulfilling the obligation.

For the arguments on the obligation upon the United States of the French treaty of 1778, see Tucker's Life of Jefferson, i. 414, 421, and Hamilton's Works, iv. 366, 382. As to defensive wars, in their military as distinguished from their moral character, see Halleck's Intern. Law, 329; Klüber, Droit des Gens, § 236; Phillimore's Intern. Law, iii. § 67; Kent's Comm. i. 50, note; Ortolan, Règles Intern. ii. 5; Rayneval, Droit Nat. liv. iii. ch. 2; Bello, Derecho Intern. Part II. ch. 1, § 3.] — D.. (a) Vattel, liv. ii. ch. 16, §§ 245-261.

principles laid down by Vattel and Rutherforth, as containing the most complete view of this important subject. (a)148

Diplomatic

§ 288. Negotiations are sometimes conducted under Mediation. the mediation of a third power, spontaneously tendering its good offices for this purpose, or upon the request of one or both of the litigating powers, or in virtue of a previous stipulation for that purpose. If the mediation is spontaneously offered, it may be refused by either party; but if it is the result of a previous agreement between the two parties, it cannot be refused without a breach of good faith. When accepted by both parties, it becomes the right and the duty of the mediating power to interpose its advice, with a view to the adjustment of their differences. It thus becomes a party to the negotiation, but has no authority to constrain either party to adopt its opinion. Nor is it obliged to guaranty the performance of the treaty concluded under its mediation, though, in point of fact, it frequently does so. (a) 149 § 289. The art of negotiation seems, from its very nahistory. ture, hardly capable of being reduced to a systematic science. It depends essentially on personal character and qualities, united with a knowledge of the world and experience in business. These talents may be strengthened by the study of history, and especially the history of diplomatic negotiations; but the want of them can hardly be supplied by any knowledge derived merely from books. One of the earliest works of this kind is that commonly called Le Parfait Ambassadeur, originally published in Spanish by Don Antonio de Vera, long time ambassador of Spain at Venice, who died in 1658. It was subsequently published by the author in Latin, and different translations appeared in Italian and French. Wicquefort's book, published in 1679, under the title of L'Ambassadeur et ses Fonctions, although its principal object is to treat of the rights of legation, contains much valuable information upon the art of negotiation. Callières, one of the French plenipotentiaries at the treaty of Ryswick, published, in 1716, a work entitled De la manière de négocier avec les Souverains,

(a) Grotius, de Jur. Bel. ac Pac. lib. ii. cap. 16. Vattel, liv. ii. ch. 17. Rutherforth's Inst. b. ii. ch. 7.

[148 Wildman's Intern. Law, 176-185. Woolsey's Introd. §§ 109, 150.]—D. (a) Klüber, Droit des Gens Moderne de l'Europe, Part. II. tit. 2, § 1; ch. 2, § 160. [149 See note 40, ante, on Mediation. Also, North American Review, April, 1866, article on International Arbitrations.] — D.

which obtained considerable reputation. The Abbé Mably also attempted to treat this subject systematically, in an essay entitled Principes des Négotiations, which is commonly prefixed as an introduction to his Droit Publique de l'Europe, in the various editions of the works of that author. A catalogue of the different histories which have appeared of particular negotiations would be almost interminable; but nearly all that is valuable in them will be found collected in the excellent work of M. Flassan, entitled L'Histoire de la Diplomatie Française. The late Count de Ségur's compilation from the papers of Favier, one of the principal secret agents employed in the double diplomacy of Louis XV., entitled Politique de tous les Cabinets de l'Europe pendant les Règnes de Louis XV. et de Louis XVI., with the notes of the åble and experienced editor, is a work which also throws great light upon the history of French diplomacy. A history of treaties, from the earliest times to the Emperor Charlemagne, collected from the ancient Latin and Greek authors, and from other monuments of antiquity, was published by Barbeyrac, in 1739. (a) It had been preceded by the immense collection of Dumont, embracing all the public treaties of Europe, from the age of Charlemagne to the commencement of the eighteenth century. (b) The best collections of the more modern European treaties are those published at different periods by Professor Martens, of Göttingen, including the most important public acts upon which the present conventional law of Europe is founded. To these may be added Koch's Histoire abregée des Traités de Paix depuis la Paix de Westphalie, continued by Schöll. A complete collection of the proceedings of the Congress of Vienna has also been published in German, by Klüber. (c)150

(a) Histoire des Anciens Traités, par Barbeyrac, forming the first volume of Dumont's Supplément au Corps Diplomatique.

(b) Corps Universel Diplomatique du Droit des Gens, &c. 8 tomes, fol. Amsterd. 1726-1731. Supplément au Corps Universel Diplomatique. 5 tomes, fol. 1739. (c) Acten des Wiener Congresses in den Jahren 1814 und 1815; von J. L. Klüber. Erlangen, 1815 und 1816. 6 Bde. 8vo.

[15 Appendix II. to Woolsey's Introduction contains a list of the most important treaties since the Reformation, with a brief statement of their provisions. See also Phillimore's Intern. Law, iii. 650, Index, title "Treaties."]-D.

PART FOURTH.

INTERNATIONAL RIGHTS OF STATES IN THEIR HOSTILE RELATIONS.

Redress.

means between na

tions.

CHAPTER I.

COMMENCEMENT OF WAR, AND ITS IMMEDIATE EFFECTS.

§ 290. THE independent societies of men, called States, by forcible acknowledge no common arbiter or judge, except such as are constituted by special compact. The law by which they are governed, or profess to be governed, is deficient in those positive sanctions which are annexed to the municipal code of each distinct society. Every State has therefore a right to resort to force, as the only means of redress for injuries inflicted upon it by others, in the same manner as individuals would be entitled to that remedy were they not subject to the laws of civil society. Each State is also entitled to judge for itself, what are the nature and extent of the injuries which will justify such a means of redress.

Among the various modes of terminating the differences between nations, by forcible means short of actual war, are the following:

1. By laying an embargo or sequestration on the ships and goods, or other property of the offending nation, found within the territory of the injured State.

2. By taking forcible possession of the thing in controversy, by securing to yourself by force, and refusing to the other nation, the enjoyment of the right drawn in question.

3. By exercising the right of vindictive retaliation, (retorsio facti,) or of amicable retaliation, (rétorsion de droit); by which

.

last, the one nation applies, in its transactions with the other, the same rule of conduct by which that other is governed under similar circumstances.

4. By making reprisals upon the persons and things belonging to the offending nation, until a satisfactory reparation is made for the alleged injury. (a)

§ 291. This last seems to extend to every species of Reprisals.

forcible means for procuring redress, short of actual war, and, of course, to include all the others above enumerated. Reprisals are negative, when a State refuses to fulfil a perfect obligation which it has contracted, or to permit another nation to enjoy a right which it claims. They are positive, when they consist in seizing the persons and effects belonging to the other nation, in order to obtain satisfaction. (a)

Reprisals are also either general or special. They are general, when a State which has received, or supposes it has received, an injury from another nation, delivers commissions to its officers and subjects to take the persons and property belonging to the other nation, wherever the same may be found. It is, according to present usage, the first step which is usually taken at the commencement of a public war, and may be considered as amounting to a declaration of hostilities, unless satisfaction is made by the offending State. Special reprisals are, where letters of marque are granted, in time of peace, to particular individuals who have suffered an injury from the government or subjects of another nation. (b)

Reprisals are to be granted only in case of a clear and open denial of justice. The right of granting them is vested in the sovereign or supreme power of the State, and, in former times, was regulated by treaties and by the municipal ordinances of different nations. Thus, in England, the statute of 4 Hen. V., cap. 7, declares, "That if any subjects of the realm are oppressed in time of peace by any foreigners, the king will grant marque in due form to all that feel themselves grieved;" which form is specially pointed out, and directed to be observed in the statute. So, also, in France, the celebrated marine ordinance of Louis XIV., of 1681, prescribed the forms to be observed for obtaining special letters of

(a) Vattel, liv. ii. ch. 18. Klüber, Droit des Gens Moderne de l'Europe, § 234. (a) Klüber, § 234, note c.

(b) Bynkershoek, Quæst. Jur. Pub. lib. i. Duponceau's Transl. p. 182, note.