CHAPTER V. OF THE RIGHT OF CONTRACT AND ESPECIALLY OF TREATIES. : § 97. Of contract, es states. A CONTRACT is one of the highest acts of human free-will: it is the will binding itself in regard to the future, and surrendering its right to change a certain expressed inten- pecially between tion, so that it becomes morally and jurally a wrong to act otherwise; it is the act of two parties in which each or one of the two conveys power over himself to the other in consideration of something done or to be done by the other. The binding force of contracts is to be deduced from the freedom and foresight of man, which would have almost no sphere in society, or power of co-operation, unless trust could be excited. Trust lies at the basis of society; society is essential for the development of the individual the individual could not develop his free forethought unless an acknowledged obligation made him sure in regard to the actions of others. That nations, as well as individuals, are bound by contract will not be doubted when we remember that they have the same properties of free-will and forecast; that they could have no safe intercourse otherwise, and could scarcely be sure of any settled relations toward one another except a state of war, and that thus a state of society for which the portions of the world are destined would be impossible. We have already seen that without this power a positive law of nations could not exist, which needs for its establishment the consent of all who are bound by its provisions. National contracts are even more solemn and sacred than private ones, on account of the great interests involved, of the deliberateness with which the obligations are assumed, of the permanence and generality of the obligations measured by the national life, and including thousands of particular cases and of each nation's calling, under God, to be a teacher of right to all within and without its borders. With whom can tracts? Contracts can be made by states with individuals or bodies of individuals, or with other states. Contracts between states may be called conventions or treaties. Among states make conthe species of treaties, those which put an end to a war and introduce a new state of intercourse, or treaties of peace, will be considered here only so far as they partake of the general character of treaties; their relations to war will be considered in the chapter devoted to that subject. § 98. Treaties, allowed under the law of nations, are unconstrained Lawful treaties, acts of independent powers, placing them under an obligation to do something which is not wrong, or : what? 1. Treaties can be made only by the constituted authorities of nations, or by persons specially deputed by them for that purpose. An unauthorised agreement, or a sponsio, like that of the consul Postumius at the Caudine Forks, does not bind the sovereign-it is held for the engager had no power to convey rights belonging to another. And yet it may be morally wrong for the sovereign to violate such an engagement of a subordinate; for it might be an act of extreme necessity, to which the usual forms of governmental proceedings would not apply. Again, from the nature of the case a faction, a province, or an integral part of a close confederation, has no treaty-making power; although a loose confederation, like the Germanic, might exist, while conceding such a prerogative to its members. Individuals, or other dependent bodies, can make commercial arrangements with a foreign power, unless their laws forbid; but the arrangements apply to a particular case, and obligate none else; they are like any other private contracts; nor has a government over such a contracting party anything to do in the premises, save to protect and, if expedient, to procure it redress against injustice. Political engagements, or such as affect a body politic, can be made only by political powers. Only the actual sovereign, or power possessing the attributes of sovereignty at the time, can bind a nation by its engagements. Treaties made by § 99. 2. If the power of a sovereign or of a government is limited by a ground-law, written or unwritten, a treaty cana sovereign with not override that constitution. No one can lawfully limited powers. exercise power, which does not, of right, belong to him. Thus, under constitutional forms, where the treaty-making power is placed in particular hands, no others can exercise it, and where it is limited in extent, it cannot be lawfully exercised beyond that limitation. Where, however, an unlimited power of making treaties is given to a government, or to some department of it, the public domain and property may be alienated, or individual rights may be sacrificed for public purposes.2 And yet even the most absolute despot may make treaties, which neither his subjects nor third powers ought to regard as binding. Could the house of Romanoff, for instance, resign the throne of Russia to whom it pleased? The true view here is, that the province 1 Compare Vattel, book ii. §§ 208-212. 2 Kent, i. 166, 167. of absolutism is not to dispose of the national life, but to maintain it without those checks on the exercise of power which exist elsewhere. No power, however uncontrolled, was given to destroy a nation, or can lawfully do so. An interesting inquiry here arises, whether the treaty-making power in a federative union, like the United States, can alienate the domain of one of the states without its consent. Our govern ment, when the north-eastern boundary was in dispute, declared that it had no power to dispose of territory claimed by the state of Maine. 'The better opinion would seem to be,' says Chancellor Kent, 'that such a power of cession does reside exclusively in the treaty-making power under the constitution of the United States, although a sound discretion would forbid the exercise of it without the consent' of the interested state. But it might be asked whether the treaty-making power is not necessarily limited by the existence of states, parties to the confederation, having control for most purposes over their own territory. Could the treaty-making power blot out the existence of a state which helped to create the union, by ceding away all its domain? Such fearful power was never lodged in the general government by the constitution, and could never be lawfully exercised in the ordinary contingencies of the confederation. Only in extreme cases, where the treaty-making power is called upon to accept the fact of conquest, or to save the whole body from ruin by surrendering a part, could such an exercise of power be justified. (Compare §§ 52, 153.) $100. binding on a na 3. A treaty, in which the treaty-making power flagitiously sacrifices the interests of the nation which it re- Treaties obtained presents, has no binding force. In this case the by foul means not treacherous act of the government cannot be justly tion. regarded as the act of the nation, and the forms ought to give way to the realities of things. Moreover, the other party to the treaty ought not to draw advantage from the iniquity of an agent whom it has itself tempted. What, for example, was the cession worth which the King of Spain made of his rights to the crown to Bonaparte in 1807, and who could think himself bound by such an act, even if it lay within the competence of the sove-. reign? 4. Treaties obtained by false representations, or by force, are not binding. The rule for nations here is the same Nor those obtained by false which in all law holds good for individuals. In the statements or by former case, the consideration which led to the mak- force. ing of the treaty did not exist, but a false statement was purposely made in order to bring about the contract. In the latter case, the engagement was not the free act of an independent will. But this rule will not invalidate a treaty, where one of the parties acts under a wrong judgment, or has a false impression for which the other is not responsible. For the consideration is not real objective good, but the expectation of good, which may not be realised. Having, under the sway of this expectation, influenced the conduct of the other party, he has brought himself under obligation. Thus, if a garrison capitulates under a mistake as to the force of the besieging army or the probability of relief, and discovers the mistake before the capitulation takes effect, this is still binding. Again, when we speak of force invalidating a treaty, we must intend unjust duress or violence practised on the sovereign or the treaty-making agent. A disadvantageous treaty made to prevent further conquest, or to release the sovereign or others from lawful captivity, is as binding as any other; for a fair advantage of war has been used to obtain terms which otherwise would not have been conceded. Thus, when Pope Paschal II. was taken prisoner in 1111, by the Emperor Henry V., or John of France in 1356 by Edward III. of England at Poitiers, or Francis I. in 1525 at Pavia, by the officers of Charles V., the treaties made to procure their liberty were respectively binding, so far as nothing immoral was involved in their articles, or the persons making the treaties did not transcend their powers. In the case of Paschal, the feeling of the age, or at least of the stricter party in the church, regarded the practice of lay investitures, to which he gave his consent, as something irreligious; and it was claimed that he was under compulsion when he performed the act. But why, if he renounced his engagement as constrained and unlawful, did he not return to his imprisonment? John, with true feudal honour, when a prince of his blood violated his stipulation, put himself again into the hands of the English king; while Francis, unlike his ancestor, and unlike St. Louis, who kept his faith with the Saracens, given almost in fear of death, neither stood to his engagements nor went back into captivity at Madrid. In the case of Francis, it may be doubted whether the estates of Burgundy could be transferred without their consent to another sovereign : feudal law, not then extinct, would not give such power into the hands of the suzerain without the vassal's concurrence. But why did he make a treaty if not free, and why, if not able to execute it, did he not restore all things, as far as in him lay, to their condition anterior to the treaty ? 1 1 Compare Flassan, Diplom. Française, i. 323, seq., and Ward's Hist. ii. 361. § 101. 5. A treaty can never obligate to do an unlawful act, for neither party can give consent to do evil in expec- Treaties to do an tation of a good to be received. Thus a treaty con- unlawful act not tradicting a prior treaty with another power is void, binding. and, if observed, an act of injustice. Thus, too, a combination to commit injustice, for example, to put down liberty or religion, or to conquer and appropriate an independent country, as Poland, is a crime which no formalities of treaty can sanction. This rule, it is true, is not one of much practical application to the concerns of nations, for beforehand, most of the iniquities of nations are varnished over by some justifying plea, and the only tribunal ir the case is the moral indignation of mankind, while, after the crime has triumphed, mankind accept the new order of things, rather than have a state of perpetual war. But the rule is useful, so far as it sanctions the protests of innocent states, and their combinations to resist the power and danger of combined injustice. § 102. Kind of treaties. Treaties are of various kinds. They may define private relations, like commercial treaties, or political relations. They may be temporary, or of unlimited duration; and among the latter, some, or some provisions which they contain, may be dissolved by war, and others, intended to regulate intercourse during war, may be perpetual. They may secure co-operation merely, as treaties of alliance, or a closer union, as confederations, or the uniting of two or more states into one. All the intercourse of nations may come under the operation of treaties; and they may reach to the explanation or alteration—as far as the parties are concerned-of international law. Hence the importance of collections of treaties, and of the history of diplomatic intercourse. Besides these leading divisions, treaties may differ from one another in many ways. They may, for instance, be made by the treaty-making powers in person or by their agents, may be open or secret or with articles of both kinds, may be absolute or conditioned, may contain promises of performance on one or on both sides, may be attended or not with a pecuniary payment, be revocable at the will of either party or irrevocable. They may be principal or accessory, preliminary or definitive. They may be simple, consisting of one engagement, or contain many articles, some leading, others subordinate. They may contain new provisions, or confirm or explain old treaties. Thus some of the more important treaties, as those of Westphalia and Utrecht, have been confirmed many times over.1 1 Compare Klüber, §§ 146, 147. |