gation by giving aid, as soon as it is needed.1 Thus, a defensive alliance scarcely differs from a justifiable offensive one.

§ 108.

A confederation is a union, more or less complete, of two or more states which before were independent. It 2. Of conaims to secure a common good, external, as mutual federation. protection against powerful neighbors, or internal, as commerce and community of justice by means of common institutions. If, by the terms of the league, the parts are so far united together as to act through one organ in all external relations, and if this organ has many of the properties of sovereignty in internal affairs, the resulting government is not a league of states (a Staatenbund, as the Germans call it), but a state formed by a league (a Bundesstaat). But the two have no exact limits to separate them.

States have, as far as others are concerned, an entire right to form such leagues, or even to merge their existence in a new state, provided, however, that no obligation towards a third power is thereby evaded, and no blow is aimed at its safety. When so constituted, a union must be respected by other powers, who are henceforth to accommodate their diplomatic and commercial intercourse to the new order of things. If any of the members came into the union with debts on their heads, the obligation to pay them is not cancelled by the transaction; or if in any other way owing to the new state of things foreign states are wronged, compensation is due. In the opposite case, when a league or union is dissolved, the debts still remain, justice requiring not only that they be divided between the members in a certain ratio, but also that each of the members be in some degree holden to make good the deficiencies of the others. Comp. § 38.

1 Comp. Wheaton, Elements, u. s., iii., 2, § 13.

3. Treaties

and guaran

ties.

1

$109.

Treaties of guaranty 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.

メ

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 prom-
ised, he cannot make good the injury, he is bound to noth-
ing 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 be-
tween 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 com-
pliance 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 after-
ward (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 be-
fore 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 sove-
1 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.

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

other modes

of confirming the faith

of treaties.

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,2 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.