3. Treaties and guaran ties. § 109. Treaties of guaranty1 are to be classed among treaties as it respects their form, and as it respects their obof guaranty, jects among the means of securing the observance ties of trea- of treaties. They are especially accessory stipulations, sometimes incorporated in the main instrument, and sometimes appended to it, in which a third power promises to give aid to one of the treaty-making powers, in case certain specific rights, all or a part of those conveyed to him in the instrument, are violated by the other party. We say certain specific rights, because an engagement to afford assistance against the violation of all rights, would be, as Klüber remarks, a league or treaty of alliance. A guaranty may refer to any rights whatever, for instance, to the payment of a sum of money stipulated in a treaty, as when Russia, in 1776, guaranteed a Polish loan of 500,000 ducats; to the secure possession of ceded territory, to the integrity of a state, as the French emperor guaranteed the integrity of the Austrian states in the peace made at Vienna in 1809; to the rights of succession, as the famous pragmatic sanction of the Emperor Charles VI. (Append. ii., 1735) was guaranteed by Spain, France, the empire, etc., and the succession of the Bourbons in Spain by Austria, in the treaty of Vienna, 1735 (Append. ii.); to religious franchises, as in the guaranties of the treaties of Westphalia; to the maintenance of an existing constitution, which might imply help against revolted subjects; to national independence, as when in the peace of 1856 at Paris, the signatories to the treaty pledged themselves to sustain the national existence and integrity of Turkey, to any or to all of these. Guaranties often extend to all the provisions of a treaty; and thus approach to the class of defensive alliances.2 1 Comp. Vattel, ii., 16, § 235 seq.; Klüber, §§ 157-159; Heffter, § 97; Wheaton's Elements, iii., 2, § 12. 2 In the treaty of alliance with France, of February 6, 1778 (Article XI.), the United States guaranteed to his most Christian Majesty the then existing possessions of the Crown of France in America, as well as those which it might acquire by the future treaty of peace. When in 1793, France went to war with Great Guaranties may be given to each other by all the parties to a treaty, where there are more than two, or by certain parties to certain others, or by a third power to secure one of the principals in the transactions. At the peace of Aix-la-Chapelle, in 1748, the eight contracting powers gave mutual guaranties. At the peace of Westphalia, and at that of Paris, in 1763, all the powers concerned did the same. Sometimes a treaty renews or confirms previous ones, and the question may arise whether a general guaranty to such a treaty is also a guaranty to all past treaties which it includes. Thus, the treaty of Teschen 1 (Append. ii., 1779), which was guaranteed by Russia, renewed the treaties of Westphalia. Did then Russia become a guarantee to that peace? Certainly not in the same sense in which France and Sweden became such, when it was made (Append. ii., 1648), and, at most, only so far as the relations between those powers were concerned who were parties to the principal treaty. The political importance of general guaranties is none other than that of alliances framed in view of existing affairs. They are a mode of providing beforehand against infractions of rights by securing the pledge of a third party, and a convenient way of intervening in the affairs of other states, and of keeping up the present order of things. Whether they are justifiable in such cases depends not on the form which they take, but on the propriety of intervention. (Comp. § 43, note.) A guaranty requires the party making it, to give aid when called upon, and so much aid as he had stipulated, and in a case to which, in his judgment, the guaranty relates. If the party, on whose account he became a security, declines his Britain, the question was discussed in our cabinet whether the war was on the part of France a defensive one, and it was decided that it was not, and that a casus fœderis did not exist. (T. S.) But the guaranty in that case did not contemplate only what the parties engaged to do in a defensive war. In 1798, Congress renounced this treaty and that of amity and commerce of the same year with others, concluded before that date, because France had violated one or more articles of the original treaties. 1 Comp. De Martens, § 338. Origin of guaranties to treaties. assistance, he has nothing to do with the case further, unless indeed, grounds of public interest, apart from his obligation, make his intervention of importance. If the parties to a treaty alter it or add to it, he of course is not bound by his guaranty in regard to these new portions of the treaty; if the alterations are essential, it may be doubted whether his guaranty, made, perhaps, in view of another state of things, has not ceased to be obligatory. If, by the assistance promised, he cannot make good the injury, he is bound to nothing more, much less to compensation. If he guarantees a debt, and the payment is refused, he is not bound to make it good; for in this, according to Vattel,1 lies the difference between a surety and a guarantee, that the former is obliged to perform what the principal party has failed to do, while the latter is only bound to do his best to bring the other to a compliance with his engagement. Treaties of guaranty, when they pledge a stronger power to maintain the independence and integrity of a weaker, do not differ greatly from those treaties of protection which were not unknown to the Middle Ages. Of such a description was the treaty between John of England and the king of the Isle of Man in 1205, which Mr. Ward notices in his history (ii., 159), and which soon afterward (in 1212) was changed into a treaty, whereby the king of England became the suzerain of the other. Guaranties in their modern form do not seem to have been in use much before the date of the treaties of Westphalia. Before this time, persons called conservators were sometimes appointed to watch over the execution of treaties, who might be ministers or governors of provinces, with power to adjust difficulties between the parties; and even private persons added their seals to that of their sovereign, and were bound to declare against him, if he broke his word. At the treaty of Senlis, in 1493, between Charles VIII. of France and the Emperor Maximilian, not only individual subjects but a number of towns attached their seals on behalf of their respective sove1 Vattel, ii., 16, § 240. Comp. Wheaton, u. s. reigns. The Sieur de Bevres, one of the sealers, declares, under his name, that, if the emperor and his son, Archduke Philip the Fair, should not observe their agreement, he would be bound to abandon them, and give favor and assistance to the king of France. The treaty of Blois in 1505 first mentions foreign princes as its conservators. They add their confirmation also to a peace made at Cambray seven years later. From this to modern guaranties the step was an easy one.1 § 110. other modes of confirming the faith of treaties. Various other ways of securing the parties to a treaty against each other's want of good faith have been taken, some of which are obsolete, while others are still in use. One way was to add to the solemnity of the oath which confirmed the treaty, by taking it over the bones of saints, the gospels, the wood of the true cross, the host, and the like. Another kind of religious sanction is found in the treaty of Cambray (the "paix des dames," Append. ii.) of August 5, 1529, in which the parties submitted themselves to the jurisdiction and censures of the church, even to the point of suffering the secular arm to be called in to support the ecclesiastical; and appointed procurators to appear at Rome on their behalf, and undergo the condemnation and fulmination of such censures, etc. Hostages. Another mode of securing the faith of treaties, formerly much in use, but now almost obsolete, was that of giving hostages, one of the last examples of which occurred after the peace of Aix-la-Chapelle, in 1748, when two British peers (Lords Sussex and Cathcart) remained on parole at Paris until Cape Breton should be restored to France. 1 See Mably, i., Part ii., 129-131, Amsterdam edit. of 1777, and Flassan, Hist. de la Diplom. Française, i., 244, in his remarks on a treaty between Louis XI. and the Emperor in 1482. 2 Comp. Mably, u. s. The provision is found in Art. XLVI. of the treaty (Dumont, iv., 2, 15), and is a striking proof of the small trust which the parties put in one another. They show in the same place a dread that the Pope might absolve one or the other, (as he had already done in the case of Francis,) from his oath and faith, and endeavor to guard against it. The understanding in giving hostages was that their freedom and not their lives secured the treaty: hence, when it was violated, they might be detained in captivity, but not put to death. Escape on their part would be gross treachery. On the fulfillment of the obligation they were of course free. The mode of treating them within the laws of humanity, as whether they should be confined, according to early practice, or be allowed to go about on parole, would depend on the pleasure of the party secured by them. It has been asked, whether a prince serving as a hostage could be detained, if he should inherit the crown during his captivity. Without doubt he might in the times when hostages were commonly given, because even sovereigns were then so detained. And if the practice prevailed now, it might be doubted whether the principle of exterritoriality would not have in such a case to be sacrificed.1 Treaties are also still confirmed by pledges, which generally consist in territories or fortresses put into the Pledges. hands of the other party, who more rarely contents himself with simple hypothecation without transfer.2 The occupation of the French fortresses by the allies, according to the terms of the second treaty of Paris, may be regarded as coming under this head, since it secured the payment of the indemnities (Append. ii., 1815), although it was equally intended to secure the Bourbon dynasty. At what § 111. Unless some other time is agreed upon, treaties are binding at the time when they are signed by an authorized ties begin to agent, and their ratification by their sovereign is rebe binding? troactive. time do trea If, then, an ambassador, in conformity with a full power received from his sovereign, has negotiated and signed a treaty, is the sovereign justified in withholding his ratification? This question has no significance in regard to states, by whose 1 Comp. Vattel, ii., chap. 16, §§ 245-261, and Ward's History, i., 172–175. 2 Comp. Klüber, § 156. |