Cyclopædia of Political Science, Political Economy, and the Political History of the United States

Edited by: Lalor, John J.
(?-1899)
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1881
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New York: Maynard, Merrill, and Co.
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1899
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Includes articles by Frédéric Bastiat, Gustave de Molinari, Henry George, J. B. Say, Francis A. Walker, and more.
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TREATIES.

III.267.1

TREATIES. A treaty is an agreement, league or contract between two or more nations or sovereigns, formally signed by commissioners properly authorized, and solemnly ratified by the several sovereigns or the supreme power of each state.

III.267.2

Historical View. This is the modern definition; in the ancient world, treaties were not so much contracted as they were dictated. A conqueror with an army at the gate of a capital was perfectly able to settle the terms by himself, and he would stay there until he had satisfactory pledges that the terms would be carried out. The treaty of peace of Antalcidas, B. C. 387, is a good instance. Tiribazus, with the Persian fleet in the Hellespont, summoned deputies from the Greek states, and read terms of peace as follows: "King Artaxerxes thinks it just that the cities in Asia and the islands of Clazomenæ and Cyprus should belong to him. He also thinks it just to leave all the other Grecian cities, both small and great, independent, except Lemnos, Imbros and Scyros, which are to belong to Athens, as of old. Should any parties refuse to accept this peace, I will make war upon them, along with those who are of the same mind, both by land and sea, with ships and with money." No parties refused to accept it. Very often, too, the conquered had to pay down so much gold or so many slaves or ships, by way of earnest; at the treaty made by the Romans, B. C. 190, Antiochus, just defeated at Magnesia, had to cede Asia Minor, to pay 1,500 talents within twelve years, and to give up his elephants, ships of war and even some guests at his court. This was a typical treaty of those days. Occasionally, however, even then, the treaty was more of a contract than this, and settled, and defined the relations of states among each other; the peace of Callias, B. C. 371, which settled the independence of the various Grecian states, and the terms on which they were to exist between themselves, was as much a manifestation of international law as many of the modern congresses have produced. Heffter has traced the history and growth of this branch of international law very clearly and briefly, and it may be useful before proceeding with the subject, to insert here his historical view of the matter, from the times we have alluded to until when Talleyrand, Nesselrode, Castlereagh, Bernstadt and Metternich, with other lesser lights, in 1814-15, formed a parliament to balance off the powers of the world against each other with the closest care.

III.267.3

—Treaties, together with the negotiations which precede them, are the most fruitful source of international law; they, and the spirit which leads to their enactment, show on what points nations and governments are in accord.

III.267.4

—In the ancient world, treaties were almost the only manifestation of any common principle of law. Nevertheless, they present little interest; they rarely go beyond the narrow circle of the needs of the moment. Sometimes they show us the misfortunes of the conquered; sometimes their object is the conclusion of a long or short armistice; occasionally also the establishment of business relations, or even that of a kind of dikéodosie founded on reciprocal rights. The treaties concluded between the states, or rather between the princes, of the middle ages, offer still less of interest. The state itself was then only an agglomeration of private affairs and needs: the prince disposed of peoples and countries as he would of his own fields. The feudal lords and the church alone enjoyed a certain protection which they in their turn accorded to others, and yet that was often insufficient.

III.267.5

—From the fifteenth century the turning point comes; a jurisprudence of political treaties begins to be formed, which is closely connected with the first steps of a European state-craft, and reflects in it the general spirit of later times. Innumerable treaties were concluded at that period, which often only wore a temporary mask for the true intentions of the parties, and which were rarely taken seriously. They would break them after a little with the same ease, to replace them by treaties of alliance with the enemies of those who had just been their allies. Wheresoever there might be any spoil to gain or share, each rushed to seize his part (le systéme copartageant, it was called). Marriages and dowries played a minor but very considerable part in the treaties of those days. With the religious struggles of the sixteenth century higher interests began to be considered. At first they were discussed within the states, but the movers of international politics soon began to try to profit by these religious struggles, without any scruples for the interests of any particular religion. In this sixteenth century the politics of commerce obtained a preponderating influence over the general affairs of Europe: especially after the insurrection of the united provinces against the Spanish monarchy, for the sake of colonial interests, the scene of war was changed to the most distant parts of the world.

III.267.6

—The first half of the seventeenth century is filled with the bloody slaughters of the holy wars, to which the congress of Westphalia put a final end. This was the congress where the diplomacy of the great powers celebrated a triumph. Its work on this occasion was for a long time a source of pride, but nevertheless, like a new Pandora, there escaped from its casket many gifts which were to be sources of distress. However, the treaty of Westphalia was to form the firm foundation of the status quo and of the balance of power of Europe, and at the same time it is the line of demarkation between an ancient and modern system of diplomacy. Up to that time in treaty negotiations diplomacy had relied on rights which were at least apparent to every one; after the treaties of Munster and Osnabruck its object was much less the re-establishment of rights which had been violated; it regulated matters more according to political rule, and in so doing destroyed many rights which had been established by the older methods. At the conclusion of the peace of Westphalia there comes, as if directly in consequence of it, a restless state of international policy, directed, sometimes to the acquisition of material advantages, sometimes to maintain the political equilibrium which had been re-established at the price of so many sacrifices. The policy of intervention is at its height, and with it the usage of European congresses and combinations. Governments find themselves perfectly free now that the états généraux have been suppressed. The Hague becomes the neutral green-room of the diplomatic struggle; it is the place where the cards are dealt, and where each tries to finish the game; a place where adversaries engaged outside in mortal struggles can meet each other freely.

III.267.7

—During the eighteenth century, or up to the French revolution, the international jurisprudence of Europe continues to present a system of political combinations, whose chief aim is to prevent as much as possible any threatening preponderance in the general equilibrium, unless the fortune of war or of circumstances throws one of the parties at the mercy of others. This arrangement of political affairs gave rise to a nerveless and colorless diplomacy, which pursues above everything the preservation of the status quo. But this conciliatory spirit disappears in its turn after the partition of Poland is effected, and after the revolution's success is assured. The victorious revolution dictates its treaties, the conquered are obliged to submit on account of their momentary needs. Senatus consulti, or simple manifestoes, announce to Europe what alterations are taking place in their midst. Then the Napoleonic policy arises, and treaties from the beginning of our century up to 1814 circle around it, either to strengthen it or to prepare that secret coalition which, when transformed into open resistance, created the political web of 1815. The preservation, and, when it is necessary, the alteration, of this web, was for a time the end of monarchical congresses and of ministerial conferences with their declarations and protocols, until the pentarchy was broken up by the energy of peoples and of governments jealous of their independence. The great business of European diplomacy, which only affected, sometimes in an indirect way, the public questions of the day, were in the second half of the last century the maritime rights of neutrals, and in our century at first the Napoleonic system on the continent, then the suppression of the slave trade, and finally, the commercial union of Germany, the international emancipation of trade, navigation, arts, literature and labor.

III.267.8

—The rough division may, therefore, be made, that, in the ancient world, treaties were usually for peace after a war, and were dictated rather than contracted; in the middle ages, treaties were often ostensibly contracted for states-manlike objects, but were never meant to be kept. "Each treaty plants the seeds of a new war." As Machiavelli says (Del Principe, 1532), "A prudent prince will not and ought not to observe his engagements when it would operate to his disadvantage, and the causes no longer exist which induced him to make them." Spinoza, another later writer, whose words, like those of Machiavelli, apply to the period we are speaking of, says very much the same. (Tract. Theol. Polit., cap. iii.) Of course these words apply to very modern times also, but in a less marked degree. Ever since the publication of the works of the early jurists, Gentilis and Grotius, the current has been setting in the other direction, and now the question rather is, how to enforce a treaty, than how to break it. The growth of the popularity of the principle of arbitration in the last ten or twenty years perhaps marks the commencement of a fourth period. (See ARBITRATION.)

III.267.9

Theoretical View. For the history and discussion of the ideas and theories concerning treaties, we may refer to the works of writers on international law. Most of the questions dealt with even in so late writers as Wheaton and Lawrence are now practically settled as much as the older ones of Grotius and others, such as, whether a Christian nation can make a treaty with an infidel power. We may briefly allude to one or two questions on which different views are still sometimes expressed. Do treaties expire in case of a war or change in government in which either of the contracting parties is interested? To which the text books answer, treaties are of two kinds: 1. Transitory conventions, which are perpetual in their nature, so that, being once carried into effect, they subsist independent of any change in the sovereignty and form of government, and, although their operation may in some cases be suspended during war, they revive on the return of peace without any express stipulation. Such are cases of cession, boundary or extension of territory, or those creating a permanent servitude in favor of one nation within the territory of another. Exceptions to the latter class are such cases as a telegraph treaty, in which special war provisions are always inserted, which bind neutrals as well as belligerents, though perhaps in a different way. (Fischer's Die Telegraphic und das Völkerrecht, Leipzig, 1876.) 2. Treaties so called, or fœdera, of friendship, commerce, etc., expire of course when, first, either party loses existence as a perpetual state; second, the internal constitution is so changed as to render the treaty inapplicable, as concluded in view of a particular constitution, as when, by the French revolution, the French form of government was changed, third, war arises between the contracting parties; and fourth, by limitation of the treaty itself.

III.267.10

—But under whichever of these two heads the treaty falls, if, while a treaty is in force, a right vests under it, the expiration of the treaty can not extinguish that right. "The treaty had its full effect the instant a right was acquired under it; it had nothing further to perform; and its expiration or continuance afterward was unimportant." (U. S. Supreme Court, in reference to the treaty of 1800 with France.)

III.267.11

—Treaties are, in general, subject to very many of the rules to which contracts are subject. When a question arose between England and the United States as to the boundary line between this country and Canada, the question turning on the interpretation of certain treaties that had been entered into, England submitted to the emperor of Germany, the arbitrator, the following rules of interpretation for treaties, which are very similar to the rules of interpretation that might have been submitted in the case of a contract: 1. The words of a treaty are to be taken to be used in the sense in which they were commonly used at the time when the treaty was entered into. 2. In interpreting any expressions in a treaty, regard must be had to the context and spirit of the whole treaty. 3. The interpretation should be drawn from the connection and relation of the different parts. 4. The interpretation should be suitable to the reason of the treaty. 5. Treaties are to be interpreted in a favorable rather than an odious sense. 6. Whatever interpretation tends to change the existing state of things at the time the treaty was made, is to be ranked in the class of odious things.

III.267.12

—The antecedent conditions on which the validity of a treaty depends are also very much the same as in the case of a contract: the parties must be capable of contracting, the agents must be duly empowered, the object must be lawful and possible, there must be a mutual consent, etc. Another condition is often inserted in the text books, that the parties must give their consent freely, or must be so situated that the consent of both may be regarded as freely given, but it is difficult to see how this can be so.

III.267.13

—Another question arose especially concerning the declaration of the treaty of Paris, with respect to the effect of the flag on enemy's goods. Are, for instance, the United States bound by it? All other countries of importance have adhered to the rule there laid down, except the United States, and some foreign writers have considered the United States bound by this general uniformity of opinion. But we do not see any good reason for this view, and probably a foreign court would hesitate before applying the doctrine where an American was a party before it.

III.267.14

—Treaties are classified in a good many different ways. A note in Mr. Hall's book on international law (Oxford, 1880), sums up this matter briefly: "Most writers devote considerable space to a classification of treaties. Vattel, for example, divides them into equal treaties, by which 'equal, equivalent or equitably proportioned' promises are made; unequal treaties, in which the promises do not so correspond; personal treaties, which expire with the sovereign who contracts them; and real treaties, which bind the state permanently. De Martens arranges them under the heads of personal and real treaties, of equal and unequal alliances, and of transitory conventions, treaties properly so called, and mixed treaties. Of these last, the first kind, being carried out once for all, is perpetual in its effects; the duration of the second, which stipulates for the performance of successive acts, is dependent on the continued life of the state and other contingencies; and the third partakes of both characters. Heffter divides them into, 1, constitutive conventions, which have for their object either the constitution of a real right over another's property, or some obligation to give or to do or not to do something (e.g., treaties of cession, establishment of servitudes, treaties of succession); 2, regulating conventions for the political or social affairs of nations and of their governments (e.g., treaties of commerce); 3, treaties of alliance. Calvo distinguishes treaties, with reference to their form, into transitory and permanent; with reference to their nature, into personal and real; with reference to their effects, into equal and unequal, and simple and conditional; finally, with reference to their objects, into treaties of guarantee, neutrality, alliance, etc. It is not very evident in what way these and like classifications are of either theoretical or practical use." "Treaties included among those which have been supposed to express principles of law, appear to be susceptible of division into three classes: 1, those which are declaratory of law as understood by the contracting parties; 2, those which stipulate for practices which the contracting parties wish to incorporate into the usages of the law, but which they know to be outside the actual law; 3, those which are, in fact, mere bargains, in which, without any reference to legal considerations, something is bought by one party at the price of an equivalent given to the other." (Hall.)

III.267.15

—It has now been practically settled, that, whatever powers an agent may have been given, a treaty must be ratified by the sovereign or proper authority before it can be considered as binding. Usually the crown or supreme power of the land is the treaty-making and treaty-ratifying power, but in England especially, and to a certain extent in some other countries, any treaty involving money matters has to be passed upon by the popular assembly, and, as a general rule, where any decided step is about to be taken by treaty, the opinion of parliament is first obtained, though, perhaps, informally.

III.267.16

—In Sweden the king makes peace in conjunction with the senate.

III.267.17

—In Germany the executive has power to make war, but, when offensive, only with the consent of the bundesrath; it has power to make peace in all cases. By article 11 of the constitution (reichs-verfassung), the executive has the power to make treaties with the limitation that the consent of the legislature is necessary when the provisions refer to subjects under the power of the legislature. These are as follows: Article 4. Foreign commerce and intercourse, colonization and emigration, financial system, weights and measures, patents and copyrights, rights of assembly, post and telegraph, sanitary police, laws of contract and private law, commercial law, railroads, settlement, residence and citizenship of different states, military system. These are the powers which the different German states reserve to themselves the right to deal with, and, therefore, no treaty can be made concerning any of them without permission from the legislature.

III.267.18

—In France, by article 9 of the constitution (Lois Constitutionelles, July 16, 1875), the president may declare offensive war with the consent of the legislature. By article 8, the president is to negotiate and ratify treaties alone, unless they involve questions of peace, commerce, finance, status of persons and rights of property of Frenchmen in foreign countries, cession of territory by or to France; in these cases the consent of the legislature is necessary.

III.267.19

—In the United States the makers of the constitution tried a new method of enforcing a treaty by enacting, that all treaties should be considered as the supreme law of the land, and providing for their ratification by the senate. But another clause gives the house of representatives control over all foreign commerce and other matters often dealt with in treaties. By section 8 of article 1, of the constitution, "The congress shall have power—1. To lay and collect taxes, duties, imposts and excises * * *; 3. To regulate commerce with foreign nations, and among the several states and with the Indian tribes; 4. To establish a uniform rule of naturalization * * *; 10. To define and punish piracies and felonies committed on the high seas, and offenses against the law of nations." Now, these are all of them matters also dealt with in treaties which are to be entered into and ratified (by section 2 of article 2) by the president, "by and with the advice and consent of the senate, provided two-thirds of the senators present concur." And such treaties are also, by the constitution, to have the same force and effect as if they were the supreme law of the land. The treaties on the above and other subjects often, therefore, in their provisions, come into conflict with the laws of congress, especially with those in connection with commercial subjects, which usually spring from the house of representatives, and an interesting series of questions has in consequence been brought before our courts. To take one recent case out of many. By article 4 of a treaty between the United States of America and his majesty the king of Denmark, concluded at Washington, April 26, 1826, and thereafter duly ratified and proclaimed, and renewed by article 5 of the treaty entitled "Convention between the United States of America and his Majesty the King of Denmark, for the discontinuance of the Sound Dues," concluded at Washington, April 11, 1857, and thereafter duly ratified by the senate, and proclaimed, and which is still in full force and effect, it is provided that: "No higher or other duties shall be imposed on the importation into the United States of any article, the produce or manufacture of the dominions of his majesty the king of Denmark, * * than are or shall be payable on the like articles, being the produce or manufacture of any other foreign country." By article 1 of the treaty entitled "Convention between the United States of America and his Majesty the King of the Hawaiian Islands," concluded at Washington, Jan. 30, 1875, and thereafter duly ratified and proclaimed on the part of the United States, and to carry which into effect the necessary law has been duly passed (Aug. 15, 1876) by the congress of the United States, and which is still in full force and effect, it is provided as follows: "The United States of America hereby agree to admit all the articles named in the following schedule, the same being the growth and manufacture, or produce, of the Hawaiian islands, into all the ports of the United States, free of duty." The schedule following said article includes: "Muscovado, brown and all other unrefined sugars," of grades therein mentioned, and all "syrups of sugar-cane, melado and molasses." Certain merchants having imported such goods from Denmark, claimed that the aforesaid articles imported were, under and by virtue of the aforesaid treaty with Denmark, entitled to be admitted into this port free from the payment of any duty whatsoever, for the reason that "like articles, being the produce or manufacture of (any) a foreign country," to wit, the Hawaiian islands, are, pursuant to the treaty with that country, admitted into all the ports of the United States free of duty. The collector of New York collected duties on the goods, and the merchants, having paid under protest, brought suit against the collector to recover the money. Judge Wallace, in the United States circuit court, decided in favor of the collector, chiefly on the ground, apparently, that congress may annul or repeal a treaty, as far as it is municipal law, provided its subject matter be, under the constitution, within the legislative jurisdiction of congress, and that in this case there had been such a repeal of the clause in question by implication, by the tariff legislation of congress. As Judge Curtis says, "If an act of congress should levy a duty upon imports, which an existing commercial treaty declares shall not be levied, so that this treaty is in conflict with the act," the later act of congress "gives the rule of decision in a judicial tribunal of the United States, in a case to which one rule or the other must be applied." This rule is well established, now, in our courts. See other cases, such as, Ropes vs. Clinch, 8 Blatchford, 304; Cherokee Tobacco, 11 Wall, 616; Gray vs. Clinton Bridge, Woolworth, 150.

III.267.20

—Take another case, one analogous to which has recently arisen: Suppose the United States, by treaty with another country, takes away from its own residents or citizens, in certain cases, some constitutional right, such as trial by jury; are the American courts in those cases estopped by the treaty from seeing that such right is not withheld from those under its jurisdiction? The other country would probably expect us to fulfill our treaty, but the courts would probably hold that even the supreme law of the land was to be governed by our constitution. These considerations lead us to the last division of our subject, the enforcement of treaties and the growth of the powers of courts of justice in that regard.

III.267.21

Enforcement of Treaties. The following distinctions may perhaps be usefully made in connection with this part of the subject. After the sovereign or supreme power of a state has entered into a treaty obligation, its fulfillment or enforcement usually comes under the jurisdiction and control of the sovereign or head of the nation himself, by or with the aid of one of three powers of the land: 1, the legislature or council of state; 2, the army and navy department; or, 3, the law and courts of justice of the country. Consequently, while the different obligations of treaties are theoretically enforceable by the nation itself, they may for practical purposes be said to be under the control of one of the above mentioned departments. The executive and legislative branches have control of such clauses in treaties as deal with peace or war, cession of territory or of money, of guarantee, neutrality or intercourse. The head of the army or navy in action is almost wholly in charge of the humane and moral clauses of modern treaties, such as those which deal with aid to the wounded, etc.; and of truces and cartels, and other laws of war, and of railroad and telegraph or cable treaties, so far as the war clauses are concerned. The judicial power is responsible for the carrying out of naturalization and extradition treaties, commercial engagements, the laws of prizes, some of the effects of treaties concerning war and peace, such as the rights of seizure, embargo, blockade, etc., and the clauses of treaties which affect the rights of citizens and foreigners in their individual and private capacity.

III.267.22

—The distinction as to what classes of treaties come before the courts, is pointed out by the late Chief Justice Marshall, in the case of Foster vs. Neilson (2 Peters, 314): "Our constitution declares a treaty to be the law of the land. It is consequently to be regarded in courts of justice as equivalent to an act of the legislature, whenever it operates of itself, without the aid of any legislative provision. But when the terms of stipulation import a contract, when either of the parties engages to perform a particular act, the treaty addresses itself to the political, not the judicial department, and the legislature must execute the contract before it can become a rule for the court. * * This seems to be the language of contracts, and if it is, the ratification and confirmation which are promised must be the act of the legislature. Until such act shall be passed, the court is not at liberty to disregard the existing laws on the subject." That is, a treaty is a contract, and before the courts can accept a treaty as the supreme law of the land, for them to enforce, it must, by the action of congress, be changed from a contract into a law, unless, as another judge says, "the treaty itself gives a rule of law in respect to private rights, capable of execution without the aid of further legislation, and operating directly upon the interest which is the subject of the judicial inquiry." And if the treaty does not come within either of these rules, that must be decided by the courts, too; therefore, especially in this country, the power of the courts, whether used positively or negatively, in the enforcement of treaties and their obligations, is very great.

III.267.23

—In Ware vs. Hylton, 3 Dallas, 199, certain Virginians owed money to some Englishmen in 1774. In 1777 the legislature passed a law to sequester British property, providing that Virginian citizens owing money to English subjects might pay the same to the Virginian government and get a discharge for their debt. The debtors in this case took advantage of this act. In 1783 a treaty was entered into between the United States and Great Britain, by the fourth clause of which it was agreed "that creditors on either side shall meet with no legal impediment to the recovery of the full value, in sterling money, of all bona fide debts heretofore contracted." The supreme court held, reversing the decision of the lower court, that the treaty of the United States annulled the law of Virginia, and gave the right to the Englishmen to recover their debt.

III.267.24

—In the case of the United States vs. The Schooner Peggy, 1 Cranch, 103, a French ship had been captured and condemned as a prize by the United States circuit court of Connecticut in 1800. A writ of error was prosecuted to the supreme court, and before the hearing a treaty was entered into between the United States and France, one of the clauses of which was to the effect that property captured and not yet definitely condemned should be mutually restored. The court held that the sentence of the circuit court was not definitive, and ordered the prize to be restored. The court said: "In mere private cases between individuals a court will and ought to struggle hard against a construction which will, by a retrospective operation, affect the rights of parties, but in great national concerns, where individual rights acquired by war are sacrificed for national purposes, the contract making the sacrifice ought always to receive a construction conforming to its manifest import."

III.267.25

—Chirac vs. Chirac, 2 Wheaton, 112, is a decision as to the effect of treaties on the title to real property, and decided, among other points, what we have already seen, that a treaty providing for the rights of subjects of one country, claiming lands by inheritance in another, is perpetual in its effect. If it expires by lapse of time, any right that has previously arisen in consequence of its existence is not extinguished by its expiration. "The treaty had its full effect the instant a right was acquired under it; it had nothing further to perform; and its expiration or continuance afterward was unimportant."

III.267.26

—The United States vs. Watts, 14 Federal Reporter, 130, is an extradition case, where the United States had extradited the defendant for having committed one offense, tried him for it, and then proceeded to try him for another. The court discharged the prisoner, after examining both the executive and legal authorities on the question. Mr. Hamilton Fish, the secretary of state, had contended that the receiving power has the right, if so inclined, after having tried the extradited person on the charge on which he had been surrendered, with a bona fide intent and effort to convict him on that one charge, to try him for any other offense of which he may have been guilty. (Messages and Documents, Dep. of State, May, 1876.) Lord Derby denied this, and the United States court in this case agreed with Lord Derby, saying: "It results as a necessary consequence of the duty imposed on the courts to respect and obey the stipulations of a treaty as the supreme law of the land, that they are also charged with the duty of determining its meaning and effect, and this duty they must conscientiously and fairly perform, even though the construction they feel compelled to give to it should differ from that given to it by the political branch of the government."

III.267.27

—The cases we have mentioned are typical instances from our reports as to how our courts have enforced various provisions of treaties, even against the apparent interests of their own country and countrymen, and many other similar cases might be cited, both from our own and from the European law reports.

III.267.28

—From the times of Sir Leoline Jenkins (1625-84) the English admiralty courts have been very determined, in prize cases, in seeing that justice was done in all cases where foreigners were concerned, even where the foreigners were allies of a hostile country. Sir William Scott, in maintaining, later, this tradition of his court, gave a great impetus to the enforcement of international law, especially in following and observing the treaty rights of neutral or other foreigners. We may note one instance, taken at random from the English reports, the case of The Fama, 5 Robinson, 106, which was as follows: In 1803 some goods in a ship sailing from New Orleans to Havre de Grace were seized by an English vessel, England then being at war with France. By the treaty of Idelfonso, 1796, Louisiana had been ceded to France. The New Orleans merchant claimed that the treaty was a secret treaty, and had not yet been carried into effect by the handing over of Louisiana to the French, wherefore it still remained a Spanish possession, and he should have restitution. Sir William Scott agreed to this view of the matter, and decided that the national character of a place agreed to be surrendered by treaty, but not actually transferred, continues as it was under the character of the ceding country, and ordered restitution by the English captors to the New Orleans merchant. All of which shows that the courts of law in civilized nations are the most effective enforcing agencies for treaties between nations, as for contracts between individuals, and that their jurisdiction is rapidly growing, and trenching on our next class. The next class of sanctions for treaties are those of the executive. They are to be employed where, as Livy says, "they are made by the command of the supreme power, and whereby the whole nation is made liable to the wrath of God if they infringe it." And the wrath of God or the fear of man is still about all that causes their fulfillment when either country would rather break them. The jurists of all ages have tried to find some way in which these national treaties could be enforced, and they have appealed, to a great extent in vain, to the better feelings and aspirations of monarchs and popular assemblies. The methods, other than physical force, employed by nations to enforce a treaty obligation, have been: 1. The performance, by way of ratification, of religious rites and ceremonies, or the use of threats or influence by officers of different religions. In ancient times all treaties were entered into with the most sacred religious rites, and if these or any other formalities were left out, the treaty was not considered binding. But this kind of sanction only caused an obedience to the letter of the treaty, as, to use an extreme instance, when Antiochus stipulated in a treaty to give up half his fleet to the Romans, and Labeo carried that clause into effect by sawing every ship belonging to the monarch into two. The power of religious threats in the enforcement of treaties has been best exemplified in the case of the Roman church. By the use of excommunications and interdicts that church often was able to cause international agreements to be carried into effect, when one side of those who had entered into the agreement endeavored to draw back; but the selfishness with which the church used this power, and the power it also claimed and exercised of releasing princes from treaty obligations, neutralized all the good effect on international morality it might otherwise have caused. The ratification of a treaty was a very solemn affair, transacted in some great cathedral, in the presence of all the pomp and power of the church and of the nations involved. The ambassadors who had drawn up the treaty would there in due form solemnly touch the cross, the holy evangels, and the holy letters, and swear by their honor to observe and carry out fully, really and in good faith all the articles that were contained in the treaty. (Peace of Munster, 1648.) The most modern example is perhaps the alliance between France and Switzerland in 1777, which was solemnly confirmed by the oath of the contracting parties in public in the cathedral of Solcure. The emperor of Germany was addressed always as semper Augustus; the king of France, as most Christian; the king of Spain, as most Catholic; the king of England, as defender of the faith; the king of Portugal, as most faithful; and the king of Hungary as his apostolic majesty. 2. The handing over of territory, money or hostages, as a pledge for the fulfillment of a treaty, was also a means much used in ancient times, and it was successful so far as it went. It has gradually fallen into disuse, except as regards the occupation of territory. The last occasion on which hostages were given, was at the treaty of Aix la-Chapelle, in 1748. 3. There remain the methods by which third parties are made or become responsible for the carrying out of a treaty; such as armed intervention, mediation, arbitration or guarantee. These methods, leaving arbitration out of consideration, are found to be of little use at the present time. The third country, on the one side, is likely to have the weight of any interference neutralized by a third power interfering on the other side. There are probably no countries with which the great powers of Europe have not at some time or other in their history entered into a treaty of guarantee, and most of these treaties have not expired. Lastly, we come to those conventions between nations and clauses in treaties which practically have to be left to the enforcement, if at all, of the commanders and officers of any conflicting forces. The "modern rules of war," as they are called, as relating to the treatment of the wounded and of prisoners, as to the use of railroads or telegraphs, as to truces or neutrals, and blockades or searches, must be left, in the nature of things, to the discretion and judgment of the officers who are in command at the time, and they are not only responsible to their own country but to many other countries both in indirect and direct ways. At the Brussels conference of 1874 the project of an international convention on these matters was proposed, but was not effected. The conference expressed some general views on the rules which should govern occupation of a hostile country by a military force, the treatment of prisoners, aid to the sick and wounded, etc. The presence of foreign military and press representatives with a modern army, must be noted as one of the greatest influences in matters falling under this head. There are certain treaties, however, which neither the efforts of law courts nor the commands of authorities, which are, as we have seen, the only two sanctions of treaties, can ever hope to enforce. These are treaties made by a nation with some alien and weaker nation living in its midst. From the treaties of Rome with Latium, Spain with the Moors, and Germany with the Bohemians, down to the treaties of England with Ireland or India, and the United States with the Chinese and Indians, treaties have only been used as one means of extermination and violence. Perhaps there never was a series of treaties between two peoples so systematically entered into for the purpose of breaking as those between the United States and the Indian tribes of North America. They were considered at first as independent nations capable of entering into treaties, but in 1871 congress passed an act to the effect that they were not nations capable of contracting with the United States by treaty; since then, the term convention has been used, but the name has made very little difference. The contracts have been uniformly broken. The law courts, where appealed to, have almost invariably, as far as possible, endeavored to enforce the rights of the Indians, but the jurisdiction necessary has usually in these cases been given by law to officers of the army or agents of the executive who have usually sided, either openly or through lack of positive action, with the immigrating violators of the public faith.

III.267.29

—A recent writer, Mr. Hall, (in his "Rights and Duties of Neutrals," p. 7), says he "does not discover any ground for the claim (of treaties) to exceptional reverence. They differ only from other evidences of national opinion in that their true character can generally be better appreciated," and he proceeds to attack them from the point of view of international law, as misleading and useless. On the other hand, other writers on international law have almost universally considered treaties as the principal "constituent part" of their subject. Possibly, as Napoleon the Great said, they are very often "Forms which, however necessary to disguise the dependence of weak states, prove, in the case of strong ones, only a desire to deceive," especially in the case of those which we have called national treaties. Whichever of these views may be correct, we have seen that treaties have always played an important part in the history of the world, and that their usefulness to the general progress of mankind has always increased more when enforced and fulfilled than when broken—Authorities. The works on INTERNATIONAL LAW are also authorities on our subject. Besides the authorities given under that head in volume II. of this work, we may add the works on International Law of Twiss, Westlake, Ward, Hall, Woolsey and Sheldon Amos. The last edition of Heffter, 1881; the Rights and Duties of Neutrals, Hall, London, 1874; the International Law article (Prof. E. Robertson) in the Encyclopædia Britannica; Mrs. Jackson's Century of Dishonor, New York, 1882; and the congressional and departmental reports of various Indian commissions on that branch of the subject; Fischer's Die Telegraphie und das Völkerrecht. Leipzig, 1876, on that branch. The following is a list of the collections of treaties which have been made: The Argument and Proceedings at the Genera Arbitration, 1873; Manning's Law of Nations, edition Sheldon Amos, London, 1875; International Commercial Law, Leone Levi, London, 1863. Also the following compilations of treaties and matters relating thereto: Calvo, Recucil des Traités; Moreuil, Recueil des Traités diplomatiques, 1853; Jean Dumont et T. Rousset, Corps Universel Diplomatique du Droit des Gensou Recueils des Traités de Paix, d'Alliance, etc.; Barbeyrac (Jean), Histoire des anciens Traités jusqu' à Charlemagne; Saint Prest (J. Y.), Histoire des Traités de Paix du 17e Siècle; Negociation sécrètes touchant la Paix de Munster et d'Osnaburg; Martens (George Frederic de) Recueil de Traités d'Alliance, de Paix, de Treue, de Neutralité, de Commerce, etc., 1761-1808; also a supplement; M. le Comte de Garden, Histoire générale des Traités de Paix; Koch, Histoire Abrégée des Traités de Paix depuis la Paix de Westphalia; Rousset, Supplement to the Corps Universel of Dumont; Wenk (F. A. G.), Coder Juris Gentium Recentissimi, Leipzig, 1781; Robinet, Dictionnaire Universel, 32 vols., 1787; Schmauss (J. J.), Corpus Juris Gentium, 1730.

EUSTACE CONWAY.

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