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 Pledges. Treaties are also still confirmed by pledges, which generally consist in territories or fortresses put into the hands of the other party, who more rarely contents himself with simple hypothecation without transfer. 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. § 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. At what 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. form of government the engagements made by the executive with foreign powers need some further sanction. In other cases, that is wherever the treaty-making power of the sovereign is final, the older writers held that he was bound by the acts of his agent, if the latter acted within the full power which he had received, even though he had gone contrary to secret instructions. But Bynkershoek defended another opinion which is now the received one among the text-writers, and which Wheaton has advocated at large with great ability.1 If the minister has conformed at once to his ostensible powers and to his secret instructions, there is no doubt that in ordinary cases it would be bad faith in the sovereign not to add his ratification. But if the minister disobeys or transcends his instructions, the sovereign may refuse his sanction to the treaty without bad faith or ground of complaint on the other side. But even this violation of secret instructions would be no valid excuse for the sovereign's refusing to accept the treaty, if he should have given public credentials of a minute and specific character to his agent; for the evident intention in so doing, would be to convey an impression to the other party, that he is making a sincere declaration of the terms on which he is willing to treat. And even when the negotiator has followed his private instructions, there are cases, according to Dr. Wheaton, where the sovereign may refuse his ratification. He may do so when the motive for making the treaty was an error in regard to a matter of fact, or when the treaty would involve an injury to a third party, or when there is a physical impossibility of fulfilling it, or when such a change of circumstances takes place as would make the treaty void after ratification. All question would be removed, if in the full power of the negotiator or in a clause of the treaty itself, it were declared that the sovereign reserved to himself the power of giving validity to the treaty by ratification. This, if we are not deceived, is now very generally the case. 1 Wheaton's Elements, Book iii., 2, § 5; Bynkershoek, Quæst. J. P., ii., 7 ; De Martens, § 48. treaties. § 112. Treaties, like other contracts, are violated, when one party Violation of neglects or refuses to do that which moved the other party to engage in the transaction. It is not every petty failure or delay to fulfill a treaty, which can authorize the other party to regard it as broken, above all, if the intention to observe it remains. When a treaty is violated by one party, in one or more of its articles, the other can regard it as broken, and demand redress, or can still require its observance.1 Interpreta § 113. - The laws of interpretation in the case of treaties are substantially the same as in the case of the other contion of trea- tracts. Some writers, as Grotius and Vattel, go at ties. large into this subject.2 The following are among the most important of these laws: 1. The ordinary usus loquendi obtains, unless it involves an absurdity. When words of art are used, the special meaning which they have in the given art is to determine their sense. 2. If two meanings are admissible, that is to be preferred which is least for the advantage of the party for whose benefit a clause is inserted. For in securing a benefit he ought to express himself clearly. The sense which the accepter of conditions attaches to them ought rather to be followed than that of the offerer. 3. An interpretation is to be rejected, which involves an absurdity, or renders the transaction of no effect, or makes its parts inconsistent. 4. Obscure expressions are explained by others more clear 1 Thus as the Constitution of the United States requires the consent of two thirds of the Senate before a treaty can have full validity, it is no violation of obligation if the Senate makes an alteration in a treaty laid before them for their concurrence; as when the second article of the convention of 1800 with France was expunged and another proposed in its place. To this the French consul or government agreed. No treaty can be absolutely ratified until the Senate takes action upon it. (Comp. the second note on § 109.) 2 Grotius, ii., 16; Vattel, ii., chap. 17. Comp. Wildman, vol. i., 176-185. in the same instrument. To discover the meaning, the connection and the reasons for an act must be considered. 5. Odious clauses, such as involve cruelty or hard conditions for one party, are to be understood strictly, so that their operation shall be brought within the narrowest limits; while clauses which favor justice, equity, and humanity are to be interpreted broadly, Sometimes clauses in the same treaty, or treaties between the same parties are repugnant. Some of the rules here applicable are Repugnant clauses and conflicting 1. That earlier clauses are to be explained by later treaties. ones, which were added, it is reasonable to suppose, for the sake of explanation, or which at least express the last mind of the parties. So also later treaties explain or abrogate older ones. 2. Special clauses have the preference over general, and for the most part prohibitory over permissive. In treaties made with different parties the inquiry in cases of conflict touches the moral obligation as well as the meaning. Here the earlier treaty must evidently stand against the latter, and if possible, must determine its import where the two seem to conflict.. In general, conditional clauses are inoperative, as long as the condition is unfulfilled; and are made null when it becomes impossible. Where things promised in a treaty are incompatible, the promisee may choose which he will demand the performance of, but here and elsewhere an act of expediency ought to give way to an act of justice.1 1 For some remarks on the language used in making treaties, which logically belong here, see § 158. PART II. INTERNATIONAL LAW AND USAGE IN A STATE OF WAR. CHAPTER I. ON THE RIGHTS OF SELF-DEFENSE AND REDRESS OF INJURIES PERTAINING TO NATIONS, OR OF WAR, CAPTURE, PEACE is the normal state of mankind, just as society and of war in orderly government are natural; and war, like bargeneral. barism, must be regarded as a departure from the natural order of things. But as the present state of nature in the individual, being abnormal and unnatural in the higher sense, leads to injuries, trespasses on rights and attempts at redress, so is it in the society of nations. International law assumes that there must be "wars and fightings" among nations, and endeavors to lay down rules by which they shall be brought within the limits of justice and humanity. In fact, wars and the relations in which nations stand to one another, as belligerent or neutral, form the principal branch of international law, so much so that in a state of assured and permanent peace there would be little need of this science, the tendency of which, therefore, justly estimated, is to bring about a time when it shall itself lose the greater part of its importance. In the sections of this chapter we shall need to consider war as to its notion and moral ground, the mode of commencing it, |