SECTION IV.

OF TREATIES, AND ESPECIALLY TREATIES OF PEACE.

Importance of

Treaties in

Law.

THE formally-written conventions, by which States ascertain their legal relations to each other, have, naturally, considerable influence in determining, not only those relations, but also their moral relations. A Treaty, testifying, as it does in the most explicit manner, the deliberate assent and consent of two States at least, has a far wider operation in International forming InterSociety than a legal contract has in National Society. International legal relations are, at present, almost exclusively built upon the express or presumed acquiescence of States which share in them; and, therefore, a formal document which purports to register the nature and extent of that acquiescence on the part of two or more States, and in reference to a more or less limited subject-matter, properly carries with it enormous weight. A series, or assemblage, of such documents, in which a great variety of States take part, is equivalent to a legislative act, or the last decision of a supreme Court of Appeal. Even a single Treaty, in which a number of States take part, may, in connection with other circumstances, introduce,

Points of difference between Treaties and civil contracts.

and go far to substantiate, a wholly new principle of law, which will shortly be held binding on all States. In the case of an ambiguous or long-disputed point of law, even a single Treaty between not more than two States may, by adopting or excluding a particular interpretation, go far to terminate all controversy on the subject, or, at least, to prepare the question for exact logical treatment.

Treaties differ from the legal contracts which are made within the limits of a single State in the following (among other) particulars. In the first place, they are never negotiated by the true and sole parties to them, that is, by a State with a State, but by the mediation of what is, usually, a double agency. That is, the Executive Government of the day, in greater or less dependence on the Legislature, operates as the organ of the permanent State, and deputes its own envoys or delegates to arrange the terms of the engagement, reserving, of course, the right of giving constantly fresh directions, and of finally ratifying, or of not ratifying, the Treaty in its completed form.

In the second place, the only form of conveyance of territory known to International Law is that by Treaty. It is true that, in national law, the same document often contains both a contract and a conveyance; and some Courts of Law even place upon terms apparently designed

only to effect a contract, an interpretation by which a conveyance is actually effected quite as much as a contract. But in International Law, a conveyance, whether by way of gift, sale, partition, or exchange, can be effected in no other way than by Treaty. That is, territory can only pass by the force of the assent of the two States which are interested in the transaction, and it is a Treaty which registers this assent and engages both States, under the obligations of public honour and good faith, to adhere to and in every way support the arrangement, at any rate as between one another.

In the third place, as has been already noticed, Treaties go far to construct the law itself as binding on the parties to them, and afford most important testimony to the condition of the law as binding upon all States. This is, of course, not the case with ordinary contracts, which are, from first to last, under the control of rules of law, the application of which they can only modify within very sharply-defined limits.

It is important to point out these differences, because it is so common, in handling the subject of Treaties, to follow servilely the analogy of the contracts of civil life, and thereby to lose sight of certain precautions, which Treaties, in so far as they differ from those contracts, peculiarly demand.

Defects of
Treaties.

The difficult circumstances in which they are drawn up.

Treaties are made by States; and States, as was explained in an earlier part of this treatise, are in a condition of incessant flux and change, of a kind which can be very imperfectly calculated or predicted. Nevertheless, Treaties which include conveyances of territory, and affect to establish a permanent settlement in the political relations of States, have been often enough,-and even in recent times,-made in all the excitement, irritation, or exhaustion, which attend the close of a War.

Such Treaties, again, though held to be for ever binding on States, under all their vicissitudes of Governments and constitutions, are often made by a party in the State, temporarily paramount in influence, without concert with their rivals, without pledging the whole Legislature to their views, and without encountering public discussion in the country. The Treaties, too, are necessarily made by envoys, adjusted from moment to moment, according to the changing phases of the negotiation, with very incomplete facilities of communication between the Government and their representatives, and under circumstances, usually, of great pressure and haste.

Political hesitation, again, about their own future conduct, and the lurking propensity to reserve themselves the right of profiting by

of their pro

new emergencies which may present themselves, generally induce States to introduce vague and indeterminate stipulations into their Treaties, Indefiniteness of a kind which no two contractors in civil life visions. would ever consent to in drawing an ordinary written agreement. Treaties, or provisions in Treaties, for guaranteeing the independence of a small State, for neutralising States or territories, or for supporting a dynastic settlement in a newly-constituted or reformed State, are, proverbially, vague and large in their language, leaving it quite uncertain what is to be the exact moment and occasion of Intervention under the Treaty; whether the engagement is only a joint, or only a several one; whether Intervention is optional, or obligatory; what is the kind and amount of Intervention which is contemplated. Many recent cases illustrate the extreme danger and inconvenience of leaving all these points open, to be settled by every State at a juncture of great public excitement, in accordance with the caprice, either of its Government, or of a partially informed majority of its population, which may succeed in making themselves heard.

case,

The same hesitation, or indefiniteness of purpose, as well as the necessities of the lead to the language of Treaties being usually couched in a form peculiarly liable to generate difficulties and doubts in the matter of inter