4. Treaties expire by their own limitation, 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.

revived and

confirmed

newal of

§ 276. Most international compacts, and especially Treaties. treaties of peace, are of a mixed character, and contain articles of both kinds, which renders it frequently diffi- on the recult to distinguish between those stipulations which are peace. perpetual 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 fretreaties contemplate a permanent arrangement of territorial and other national rights: ... it would be against every principle of just interpretation to hold them extinguished by the event of war. . . . We think that treaties stipulating for permanent rights and general arrangements, and professing to aim at perpetuity and to deal with the case of war as well as of peace, do not cease on the occurrence of war, but are, at most, only suspended while it lasts; and, unless they are waived by the parties, or new and repugnant stipulations are made, they revive in their operation at the return of peace." Woolsey considers the survival of treaty stipulations after war as a special question in each case, depending upon the nature of the stipulation and its circumstances. Not only do those survive which contemplate a war, but those which are in their nature permanent; as recognition of independence, cessions of territory, and adjustment of boundaries. (Introd. § 152.) The older text-writers made the survival of treaty rights dependent upon the origin of the war. If the war arose in the breach of the treaty, the provisions were annulled; but, if the war was what was called a new war, - that is, one arising from a cause independent of the treaty, though the exercise of rights acquired under the treaty would be interrupted by the war, they would not be lost, unless by conquest. (Grotius, liv. iii. ch. 20, §§ 27, 28. Vattel, liv. iv. ch. 4, § 42.) Kent notices this distinction without remark. Woolsey says of it, "This rule, which would be a very important one if admitted, and yet perhaps one attended with practical difficulties, is not, so far as we are informed, insisted on by later text-writers, nor introduced into the code of nations." (Introduction, § 152.) Indeed, it seems plain that the test of survival is to be found in the nature of the provision, and not in the origin of the war. If, indeed, the war amounts to a mutual abrogation of the treaty, the rights under it cease, from that fact; but, if the war has its origin in a breach of the treaty by one party, the rights of the other under the treaty cannot be affected. They may be lost by the result of the war, - that is, by conquest, as any other right may be; but not by the fact that the other party begins a war for the purpose of escaping the obligation of the treaty in respect to those rights. So, if a war arises from a cause independent of the treaty, the survival of any clause in the treaty must depend upon its nature, and the circumstances under which it was made. See also the debate in the House of Commons on the Declaration of Paris of 1856. Speeches of Sir George Lewis and Mr. Bright of March 11 and 17, 1862, and of the Earl of Derby of Feb. 7, 1862. Despatch of Mr. Marcy to Mr. Mason of Dec. 8, 1856. Phillimore's Intern. Law, iii. App. 21.]-D.

quently 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. (a)

Treaties

§ 277. The convention of guaranty is one of the most of guaranty. 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 guaranty 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 accessory obligation. (a)

The guaranty may be stipulated by a third power not a party to the principal treaty, by one of the contracting parties in favor 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.

(a) Wheaton's Hist. Law of Nations, 435-445, 538-551.

(a) Vattel, Droit des Gens, liv. ii. ch. 16, §§ 235-239. Klüber, Droit des Gens Moderne de l'Europe, Part. II. tit. 2, sect. 1, ch. 2, §§ 157, 158. Martens, Précis, &c. § 63.

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 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 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 recognized by all the text-writers. (b)

These writers make a distinction between a Surety and a Guarantor. Thus Vattel 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 guaranty (garant). For the surety is bound to make good the promise in default of the principal; whereas the guarantor is only obliged to use his best endeavors to obtain a performance of the promise from him who has made it. (c)144

§ 278. Treaties of alliance may be either defensive or Treaties offensive. In the first case, the engagements of the ally of alliance. 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

(b) Vattel, liv. ii. ch. 16, § 238. Flassan, Histoire de la Diplomatie Française, tom. vii. p. 195.

(c) Vattel, § 239.

[ A statement of the principal European guaranty treaties is to be found in Phillimore's Intern. Law, ii. ch. 7. See also Klüber, § 157-9. Heffter, § 97. Woolsey, § 105.]-D.

co-operate 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.

Distinc

tion between

§ 279. General alliances are to be distinguished from general alli- treaties of limited succor and subsidy. Where one State stipulates to furnish to another a limited succor of troops,

ance and

treaties of

limited ships of war, money, or provisions, without any promise succor and subsidy. looking to an eventual engagement in general hostilities, 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. (a)145

Casus § 280. Grotius, and the other text-writers, hold that fœderis of the casus fœderis of a defensive alliance does not apply a defensive alliance. to 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 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.

(a) Vattel, Droit des Gens, liv. iii. ch. 6, §§ 79-82.

[145 In the present state of national relations, it is difficult to conceive of a government maintaining amity with a nation to whose enemies it is furnishing military assistance, although limited, and in pursuance of a treaty obligation contracted prior to, and independently of, that war. A nation would be justified in treating any such government as an enemy generally in the war. The Swiss Confederation took the ground, in 1859, that the Swiss troops in foreign service were not contingents furnished by the Confederation, as a national act, but only voluntary organizations of Swiss citizens, having no more than a permission from the Swiss Government to enter into foreign service. This permission has since been withdrawn; and Swiss citizens cannot now enter foreign service without special permission of the Council of the Helvetic Union. Annuaire des deux Mondes, 1858-9, pp. 162, 299. Almanach de Gotha, 1861, p. 8.]—D.

In doubtful cases, the presumption ought rather to be in favor of our confederate, and of the justice of his quarrel. (a) 146

The application of these general principles must depend upon the nature and terms of the particular guaranties contained in the treaty in question. This will best be illustrated by specific examples.

Great Brit

Holland.

§ 281. Thus, the States-General of Holland were en- Alliance gaged, previously to the war of 1756, between France between and Great Britain, in three different guaranties and de- ain and fensive treaties with 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 guaranty of all they already enjoyed, or might thereafter acquire by treaties of peace, "in Europe only." They further 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 and 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 succor it with a certain number of troops and ships, and should 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 succors; and if the danger should be such as to require a greater force, the other ally should be obliged to

(a) 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.

[146 See note No. 147, infrà, Treaty Obligations to Aid in Defensive Wars.] — D.