["allegiance, must pledge and hypothecate his lands "and goods, and procure a crowd of sureties to do the "same.' In the perpetual peace' concluded between "Francis the First and Henry the Eighth in 1527, "two archbishops, eleven bishops, twenty-eight nobles "and thirteen borough towns are inserted as such "sureties on the English side. Lastly, he must deliver hostages or promise to deliver them. These are the "common forms employed in framing treaties by the "lawyers of the reigns of Louis the Eleventh, Louis "the Twelfth, and Francis the First; and they are 66 66 repeated again with a patience and a prolixity which "are amazing, when we observe how quickly and with "what levity the treaties themselves were broken." Professor Mountague Bernard adds, that " of all these 66 multiplied securities none survive. Hostages have "not been given in Europe since the Earls of Sussex "and Cathcart were sent to Paris in 1748, as pledges "for the restitution of the conquests made by Great "Britain during the war of the Austrian Succession. "The ancient and pious formula, 'in the name of Almighty God,' which stands at the head of the "Treaty of Paris, 1856, remains a last relic of the "natural sentiment that a great public act, such as 66 6 66 a treaty of peace, is suitably clothed with the "solemnities of religion." The only securities for the observance of treaties attainable in the present day, over and above the constantly increasing force of public opinion, are (1) subsidiary treaties of guarantee entered into by third parties, and (2) the occupation of territory by way of a material pledge. The latter is often resorted to in order to enforce some of the terms of a treaty of peace, especially in respect of paying the expenses incurred by the victorious party in conducting the war.* [* It is worth notice that on the late occasion of Russia demanding a revision of the Treaty of Paris of 1856, one of the earliest steps in the proceedings taken by the plenipotentiaries at London was to re [An important question has been raised in modern times, especially between England and the United States, as to whether treaties existing between two States are, or are not, annulled by the mere fact of the breaking out of a war between those States. The point was largely discussed, both very recently and in 1815, in reference to the rival claims of the citizens of the United States and of Canada in respect of fisheries on the Canadian coast. The claims of the opposing parties rested upon the legal operation of the war of 1812 between Great Britain and the United States, upon the treaties entered into by the two governments in 1783 and 1794.* The conclusion reached by the American minister, Mr. J. Q. Adams, in his communication with Earl Bathurst in 1815, would certainly seem to be most reasonable and likely to command general assent should a like controversy be stirred again. It was to the effect that "there were many "exceptions to the rule by which the treaties between "nations are mutually considered as terminated by the "intervention of a war; that these exceptions extend to "all engagements contracted with the understanding "that they are to operate equally in war and peace, or exclusively during war; to all engagements by which "the parties superadd the sanction of a formal compact to principles dictated by the eternal laws of 66 66 assert in emphatic terms the binding force of treaties unless their provisions are specially relaxed by a friendly arrangement made by the contracting parties. The Protocol of the first sitting of the 17th January, 1871, is in the following words:-"Les plenipotentiaires de l'Allemagne du Nord, de l'Autriche-Hongrie, de la Grande Bretagne, de l'Italie, de la Russie, et de la Turque, réunis aujourd'hui en conférence, reconnaissent que c'est un principe essentiel du droit des gens qu'aucune puissance ne peut se délier des engagements d'un traité, ni en modifier les stipulations, qu'à la suite de l'assentiment des parties contractantes, au moyen d'une entente amicale. En foi de quoi lesdits plenipotentiaires ont signé le présent Protocole. Fait à Londres, ce 17 Janvier, 1871." Annual Register, 1871.] [* See for a general account of the discussion and a résumé of the main arguments, Wheaton's "Elements," Part III. chap. II.] ["morality and humanity; and, finally, to all engage"ments which, according to the expression of the "British note, are in the nature of perpetual obliga"tion." The somewhat vague expression in the last sentence is controlled and defined by making it exactly comprehend the treaty of peace of 1783, by which it was affected to settle the permanent relations of Great Britain and the United States. The engagements mentioned in the sentence immediately preceding are explained to be such as have in view the abolition of the slave-trade. It depends on the constitution of a State in what person or persons the authority to make a treaty vests. For instance, in England the sovereign can make a treaty without consulting parliament, as of necessity, though it is customary to acquaint parliament with the fact of such a negotiation having been completed, and in some cases-especially if money be needed to carry it into effect-the treaty is laid on the tables of the two Houses before it is ratified. In the United States, the treaty-making power is the President and Senate, of which latter body two-thirds must concur. In the negotiation of a treaty, of course the several parties cannot be expected to acquaint themselves with the limitations on the authority of the person or persons who are de facto recognised in their own State as its representatives. So far as the authority of diplomatic agents is concerned, the case has been already examined. It would no doubt be held a grave discredit to a government if they made a treaty which the constitutional forms of their own country did not enable them to carry into effect; and thus, while a general obligation lies upon an executive government to take all the needful steps at home to carry into effect a treaty they have concluded, there is also a like general moral obligation on the legislative authority of a State to lend its aid for the same purpose. The mode of drawing treaties is rather a matter of [diplomatic than of strictly legal science and art. But the doubly representative character of all the persons who conclude them has had the effect of making the process of drawing them a tedious and harassing one. The result has been much the same as with English acts of parliament. The same document has been at once technical and popular in verbiage, loose and pedantically precise in the use of terms and phrases, sweeping and minute in the comprehension of materials. Every element, in fact, which could lead to vacillation of construction and difficulties of interpretation, even on the part of disinterested judges, has rioted to the full. It may be expected that one of the indirect consequences of the revived study of Roman Law in England and of the growing desire to have the Law of Nations re-published in a systematic form, will be the introduction of a common language of universal application in the wording of treaties. In this way the difficulties of interpretation which remain will be reduced to those which are incidental to the imperfection and flux of language itself.*] [* On this subject, Sir H. S. Maine's remarks in his essay on Roman Law and Legal Education (Cambridge Essays, 1856) will be found apposite: :—“Englishmen, however—and the critics alluded to are mostly Englishmen, will always be more signally at fault than the rest of "the world in attempting to gain a clear view of the Law of Nations. "They are met at every point by a vein of thought and illustration "which their education renders strange to them; many of the techni"calities delude them by consonance with familiar expressions, while "to the meaning of others they have two most insufficient guides in "the Latin etymology and the usage of the equivalent term in the non"legal literature of Rome * There cannot be a doubt that 66 our success in negotiation is sometimes perceptibly affected by our 66 neglect of Roman Law; for, from this cause, we and the public, or "negotiators of other countries constantly misunderstand each other. "It is not rarely that we refuse respect or attention to diplomatic "communications, as wide of the point and as full of verbiage or con“ceits, when, in fact, they owe those imaginary imperfections simply "to the juristical point of view from which they have been conceived "and written. And on the other hand, state papers of English origin, M. K 66 66 66 "which, to an Englishman's mind ought, from their strong sense and "directness, to carry all before them, will often make but an incon"siderable impression on the recipient from their not falling in with "the course of thought which he insensibly pursues when dealing with a question of public law. In truth, the technicalities of Roman Law are as really, though not so visibly, mixed up with questions of diplomacy as are the technicalities of special pleading with points of "the English common law. So long as they cannot be disentangled, English influence suffers obvious disadvantage through the imperfect "communion of thought. It is undesirable that there should not be among the English public a sensible fraction which can completely "decipher the documents of international transactions, but it is more "than undesirable that the incapacity should extend to our statesmen " and diplomatists. Whether Roman Law be useful or not to English lawyers, it is a downright absurdity that, on the theatre of inter"national affairs, England should appear by delegates unequipped "with the species of knowledge which furnishes the medium of intel"lectual communication to the other performers on the scene."] 66 |