178 OF THE RIGHT OF CONTRACT § 103 at peace in an apprehended or an actual war. They are suggested by, and prevent the evils of that interference of nations in each other's affairs, for the preservation of the balance of power or the safety of the parties interfering, which is so common in modern history. Alliances at once offensive and defensive have one of the usual and more important characteristics of confederations. Sometimes a treaty-engagement is made to do a certain specific act of limited extent in contemplation of a possible future state of war, as to supply a certain amount of money or number of troops. The party entering into such a stipulation, if the agreement was general, and had no special reference to a particular war with a particular nation, is held not to have taken a belligerent attitude.* Much, however, would depend upon the amount of assistance promised, and it stands open to the party injured by such aid afforded to his rival, to regard it as an act of hostility or not, as he may think best. A treaty of alliance can bind the parties to no injustice (§ 101), nor justify either of them in being accessory to an act of bad faith on the part of another. Hence a defensive, still more an offensive alliance, can only contemplate, if lawful, the warding off of intended injustice. Where justice is doubtful, the benefit of the doubt, it is held, ought to accrue to the ally. It is held, also, that in cases where compliance is plainly useless, or would be ruinous, an ally is not obliged to aid his friend. With regard to defensive alliances, the question may arise, what constitutes a defensive war, since certain wars have been defensive in spirit, though offensive in form. The best answer seems to be, that clearly menaced injustice may be prevented by an ally;-that he ought not to wait until the formality of striking the blow arrives, but fulfil his obligation by giving aid, as soon as it is needed. Thus a defensive alliance scarcely differs from a justifiable offensive one. * Vattel, III. § 97; Wheaton's El. III. 2. § 14. 104. tion. A confederation is a union, more or less complete, of two or more states which before were independent. 2. of confederaIt aims to secure a common good, external, as mutual 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. (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 toward 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. § 105. 3. Treaties of guar Treaties of guaranty* are to be classed among treaties as it respects their form, and as it respects their objects among the means of securing the observance of anty, and guarantreaties. They are especially accessory stipulations, sometimes incorporated in the main instrument, and ties of treaties. * Comp. Vattel, II. 16, § 235, seq.; Klüber, §§ 157-159; Heffter, § 97; Wheaton's El. III. 2, § 12. 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 of Vienna, of 1809; to the right of succession, as the famous pragmatic sanction of the Emperor Charles VI. (Append. II. 1735) was guaranteed by Spain, France, the empire, ete., 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 Paris peace of 1856, England and France 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. 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 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* (1779, Append. II.), which was guaranteed by Russia, renewed * Comp. de Martens, § 338. 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. § 42, 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 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 promised, he cannot make good the injury, he is bound to nothing 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, lies the difference between 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 compliance with his engagement. Treaties of guaranty, when they pledge a stronger power to maintain the independence and integrity of a Origin of guaran weaker, do not differ greatly from those treaties ties to treaties. * Vattel, II. 16, § 240. Comp. Wheaton, u. s. 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 afterward (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 before 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 sovereigns. 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. First in 1505 the treaty of Blois 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.* Other modes of faith of treaties. § 106. Various other ways of securing the parties to a treaty against each other's want of good faith have been confirming the taken, some of which are obsolete while others are 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 * 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. |