The guarantying party is bound to nothing more than to render the assistance stipulated. If it prove insufficient, he is not obliged to indemnify the power to whom his aid has been promised. Nor is he bound to interfere to the prejudice of the just rights of a third party, or in violation of a previous treaty rendering the guaranty inapplicable in a particular case. Guaranties apply only to rights and possessions existing at the time they are stipulated. It was upon these grounds that Louis XV. declared, in 1741, in favor of the Elector of Bavaria against Maria Theresa, the heiress of the Emperor Charles VI., although the court of France had previously guarantied the pragmatic sanction of that emperor, regulating the succession to his hereditary States. And it was upon similar grounds, that France refused to fulfil the treaty of alliance of 1756 with Austria, in respect to the pretensions of the latter power upon Bavaria, in 1778, which threatened to produce a war with Russia. Whatever doubts may be suggested as to the application of these principles to the above cases, there can be none respecting the principles themselves, which are recognized by all the text-writers. (b)

These writers make a distinction between a Surety and a Guarantor. Thus Vattel lays it down, that where the matter relates to things which another may do or give as well as he who makes the original promise, as, for instance, the payment of a sum of money, it is safer to demand a surety (caution) than a guaranty (garant). For the surety is bound to make good the promise in default of the principal; whereas the guarantor is only obliged to use his best endeavors to obtain a performance of the promise from him who has made it. (c) 144

§ 278. Treaties of alliance may be either defensive or Treaties offensive. In the first case, the engagements of the ally of alliance. extend only to a war really and truly defensive; to a war of aggression first commenced, in point of fact, against the other contracting party. In the second, the ally engages generally to

(b) Vattel, liv. ii. ch. 16, § 238. Flassan, Histoire de la Diplomatie Française, tom. vii. p. 195.

(c) Vattel, § 239.

[144 A statement of the principal European guaranty treaties is to be found in Phillimore's Intern. Law, ii. ch. 7. See also Klüber, § 157-9. Heffter, § 97. Woolsey, § 105.]-D.

co-operate in hostilities against a specified power, or against any power with whom the other party may be engaged in war. An alliance may also be both offensive and defensive.

Distinc

tion between

ance and

inct as of

limited succor and subsidy.

§ 279. General alliances are to be distinguished from general alli- treaties of limited succor and subsidy. Where one State stipulates to furnish to another a limited succor of troops, ships of war, money, or provisions, without any promise looking to an eventual engagement in general hostilities, such a treaty does not necessarily render the party furnishing this limited succor, the enemy of the opposite belligerent. It only becomes such, so far as respects the auxiliary forces thus supplied; in all other respects it remains neutral. Such, for example, have long been the accustomed relations of the confederated Cantons of Switzerland with the other European powers. (a)145

Casus fœderis of a defensive alliance.

§ 280. Grotius, and the other text-writers, hold that the casus fœderis of a defensive alliance does not apply to the case of a war manifestly unjust, that is, to a war of aggression on the part of the power claiming the benefit of the alliance. And it is even said to be a tacit condition annexed to every treaty made in time of peace, stipulating to afford succors in time of war, that the stipulation is applicable only to a just war. To promise assistance in an unjust war would be an obligation to commit injustice, and no such contract is valid. But, it is added, this tacit restriction in the terms of a general alliance can be applied only to a manifest case of unjust aggression on the part of the other contracting party, and cannot be used as a pretext to elude the performance of a positive and unequivocal engagement, without justly exposing the ally to the imputation of bad faith.

(a) Vattel, Droit des Gens, liv. iii. ch. 6, §§ 79-82.

[145 In the present state of national relations, it is difficult to conceive of a government maintaining amity with a nation to whose enemies it is furnishing military assistance, although limited, and in pursuance of a treaty obligation contracted prior to, and independently of, that war. A nation would be justified in treating any such government as an enemy generally in the war. The Swiss Confederation took the ground, in 1859, that the Swiss troops in foreign service were not contingents furnished by the Confederation, as a national act, but only voluntary organizations of Swiss citizens, having no more than a permission from the Swiss Government to enter into foreign service. This permission has since been withdrawn; and Swiss citizens cannot now enter foreign service without special permission of the Council of the Helvetic Union. Annuaire des deux Mondes, 1858-9, pp. 162, 299. Almanach de Gotha, 1861, p. 8.] — D.

In doubtful cases, the presumption ought rather to be in favor of our confederate, and of the justice of his quarrel. (a)148

The application of these general principles must depend upon the nature and terms of the particular guaranties contained in the treaty in question. This will best be illustrated by specific examples.

Great Brit

Holland.

§ 281. Thus, the States-General of Holland were en- Alliance gaged, previously to the war of 1756, between France between and Great Britain, in three different guaranties and de- ain and fensive treaties with the latter power. The first was the original defensive alliance, forming the basis of all the subsequent compacts between the two countries, concluded at Westminster in 1678. In the preamble to this treaty, the preservation of each other's dominions was stated as the cause of making it; and it stipulated a mutual guaranty of all they already enjoyed, or might thereafter acquire by treaties of peace, "in Europe only." They further guarantied all treaties which were at that time made, or might thereafter conjointly be made, with any other power. They stipulated also to defend and preserve each other in the possession of all towns and fortresses which did at that time belong, or should in future belong, to either of them; and that for this purpose when either nation was attacked or molested, the other should immediately succor it with a certain number of troops and ships, and should be obliged to break with the aggressor in two months after the party that was already at war should require it; and that they should then act conjointly, with all their forces, to bring the common enemy to a reasonable accommodation.

The second defensive alliance then subsisting between Great Britain and Holland was that stipulated by the treaties of barrier and succession, of 1709 and 1713, by which the Dutch barrier on the side of Flanders was guarantied on the one part, and the Protestant succession to the British crown, on the other; and it was mutually stipulated, that, in case either party should be attacked, the other should furnish, at the requisition of the injured party, certain specified succors; and if the danger should be such as to require a greater force, the other ally should be obliged to

(a) Grotius, de Jur. Bel. ac Pac. lib. ii. cap. 15, § 13; cap. 25, § 4. Bynkershoek, Quæst. Jur. Pub. lib. i. cap. 9. Vattel, Droit des Gens, liv. ii. ch. 12, § 168; liv. iii. ch. 6, §§ 86-96.

[146 See note No. 147, infrà, Treaty Obligations to Aid in Defensive Wars.] — D.

augment his succors, and ultimately to act with all his power in open war against the aggressor.

The third and last defensive alliance between the same powers, was the treaty concluded at the Hague in 1717, to which France was also a party. The object of this treaty was declared to be the preservation of each other reciprocally, and the possession of their dominions, as established by the treaty of Utrecht. The contracting parties stipulated to defend all and each of the articles of the said treaty, as far as they relate to the contracting parties respectively, or each of them in particular; and they guarantee all the kingdoms, provinces, states, rights, and advantages, which each of the parties at the signing of that treaty possessed, confining this guaranty to Europe only. The succors stipulated by this treaty were similar to those above mentioned; first, interposition of good offices, then a certain number of forces, and lastly, declaration of war. This treaty was renewed by the quadruple alliance of 1718, and by the treaty of Aix-la-Chapelle, 1748.

versy be

tween Great

Contro- § 282. It was alleged on the part of the British court, that the States-General had refused to comply with the Britain and terms of these treaties, although Minorca, a possession in General. Europe which had been secured to Great Britain by the treaty of Utrecht, was attacked by France.

the States

Two answers were given by the Dutch government to the demand of the stipulated succors : —

1. That Great Britain was the aggressor in the war; and that, unless she had been first attacked by France, the casus fœderis did not arise.

2. That admitting that France was the aggressor in Europe, yet it was only in consequence of the hostilities previously commenced in America, which were expressly excepted from the terms of the guaranties.

Lord

§ 283. To the first of these objections it was irresistibly Liverpool's replied by the elder Lord Liverpool, that although the reply. treaties which contained these guaranties were called defensive treaties only, yet the words of them, and particularly that of 1678, which was the basis of all the rest, by no means expressed the point clearly in the sense of the objection, since they guarantied "all the rights and possessions" of both parties, against "all kings, princes, republics, and states;" so that if

either should "be attacked or molested by hostile act, or open war, or in any other manner disturbed in the possession of his states, territories, rights, immunities, and freedom of commerce," it was then declared what should be done in defence of these objects of the guaranty, by the ally who was not at war, but it was nowhere mentioned as necessary that the attack of these should be the first injury or attack. "Nor," continues Lord Liverpool, "doth this loose manner of expression appear to have been an omission or inaccuracy. They who framed these guaranties certainly chose to leave this question, without any further explanation, to that good faith which must ultimately decide upon all contracts between sovereign States. It is not presumed that they hereby meant, that either party should be obliged to support every act of violence or injustice which his ally might be prompted to commit through views of interest or ambition; but, on the other hand, they were cautious of affording too frequent opportunities to pretend that the case of the guaranties did not exist, and of eluding thereby the principal intention of the alliance; both these inconveniences were equally to be avoided; and they wisely thought fit to guard against the latter, no less than the former. They knew that in every war between civilized nations, each party endeavors to throw upon the other the odium and guilt of the first act of provocation and aggression; and that the worst of causes was never without its excuse. They foresaw that this alone would unavoidably give sufficient occasion to endless cavils and disputes, whenever the infidelity of an ally inclined him to avail himself of them. To have confined, therefore, the case of the guaranty by a more minute description of it, and under closer restrictions of form, would have subjected to still greater uncertainty a point which, from the nature of the thing itself, was already too liable to doubt they were sensible that the cases would be infinitely various; that the motives to self-defence, though just, might not always be apparent; that an artful enemy might disguise the most alarming preparations; and that an injured nation might be necessitated to commit even a preventive hostility, before the danger which caused it could be publicly known. Upon such considerations, these negotiators wisely thought proper to give the greatest latitude to this question, and to leave it open to a fair and liberal construction, such as might be expected from friends,