It BOOK II. variable; and there are certain things of which it is proper CHAP. XII. that each prince should be at liberty to dispose according to his own system. There are others that are freely granted to one king, and would not be allowed to his successor. therefore becomes necessary to consider the terms of the treaty, or the matter which forms the subject of it, in order to discover the intentions of the contracting powers. $187. Perpetual treaties, and those for a certain time. § 188. Trea ties made for the king and his successors. $ 189. Treaties made for the good of the kingdom. Perpetual treaties, and those made for a determinate period, are real ones, since their duration cannot depend on the lives of the contracting parties. In the same manner, when a king declares in the treaty that it is made "for himself and his successors," it is manifest that this is a real treaty. It attaches to the state, and is intended to last as long as the kingdom itself. . When a treaty expressly declares that it is made for the good of the kingdom, it thus furnishes an evident proof that the contracting powers did not mean that its duration should depend on that of their own lives, but on that of the kingdom itself. Such treaty is therefore a real one. Independently even of this express declaration, when a [207] treaty is made for the purpose of procuring to the state a certain advantage which is in its own nature permanent and unfailing, there is no reason to suppose that the prince by whom the treaty has been concluded, intended to limit it to the duration of his own life. Such a treaty ought therefore to be considered as a real one, unless there exist very powerful evidence to prove that the party with whom it was made granted the advantage in question only out of regard to the prince then reigning, and as a personal favour: in which case the treaty terminates with the life of the prince, as the motive for the concession expires with him. But such a reservation is not to be presumed on slight grounds: for, it would seem, that, if the contracting parties had had it in contemplation, they should have expressed it in the treaty. $ 190. How presump to be found ful cases. In case of doubt, where there exists no circumstance by which we can clearly prove either the personality or the tion ought reality of a treaty, it ought to be presumed a real treaty if it ed in doubt- chiefly consists of favourable articles,-if of odious ones, a personal treaty. By favourable articles we mean those which tend to the mutual advantage of the contracting powers, and which equally favour both parties; by odious articles, we understand those which onerate one of the parties only, or which impose a much heavier burden upon the one than upon the other. We shall treat this subject more at large in the chapter on the "Interpretation of Treaties." Nothing is more conformable to reason and equity than this rule. Whenever absolute certainty is unattainable in the affairs of men, we must have recourse to presumption. Now, if the contracting powers have not explained themselves, it is natural, when the question relates to things favourable, and equally advantageous to the two allies, to presume that it was their BOOK II. intention to make a real treaty, as being the more advan- CHAP. XII. tageous to their respective kingdoms: and if we are mistaken in this presumption, we do no injury to either party. But, if there be any thing odious in the engagements,-if one of the contracting states finds itself overburdened by them,— how can it be presumed that the prince who entered into such engagements intended to lay that burden upon his kingdom in perpetuity? Every sovereign is presumed to desire the safety and advantage of the state with which he is intrusted: wherefore it cannot be supposed that he has consented to load it for ever with a burdensome obligation. If necessity rendered such a measure unavoidable, it was incumbent on his ally to have the matter explicitly ascertained at the time; and it is probable that he would not have neglected this precaution, well knowing that mankind in general, and sovereigns in particular, seldom submit to heavy and disagreeable burdens, unless bound to do so by formal obligations. If it happens then that the presumption is a mistake, and makes him lose something of his right, it is a consequence of his own negligence. To this we may add, that, if either the one or the other must sacrifice a part of his right, it will be a less grievous violation of the laws of equity that the lat- [ 208 ] ter should forego an expected advantage, than that the former should suffer a positive loss and detriment. This is the famous distinction de lucro captando, and de damno vitando. We do not hesitate to include equal treaties of commerce in the number of those that are favourable, since they are in general advantageous, and perfectly conformable to the law of nature. As to alliances made on account of war, Grotius says with reason, that "defensive alliances are more of a favourable nature,-offensive alliances have something in them that approaches nearer to what is burdensome or odious."* We could not dispense with the preceding brief summary of those discussions, lest we should in this part of our treatise leave a disgusting chasm. They are, however, but seldom resorted to in modern practice, as sovereigns at present generally take the prudent precaution of explicitly ascertaining the duration of their treaties. They treat for themselves and their successors,-for themselves and their kingdoms,— for perpetuity,-for a certain number of years, &c.—or they treat only for the time of their own reign,-for an affair peculiar to themselves,-for their families, &c. Since public treaties, even those of a personal nature, con- § 191. The cluded by a king, or by any other sovereign who is invested obligations and rights with sufficient power, are treaties of state, and obligatory on resulting the whole nation (§ 186), real treaties, which were intended * De Jure Belli et Pacis, lib. ii. cap. xvi. § 16. BOOK II. to subsist independently of the person who has concluded CHAP. XII. them, are undoubtedly binding on his successors; and the from a real obligation which such treaties impose on the state passes treaty pass successively to all her rulers as soon as they assume the pubto the suc- lic authority. The case is the same with respect to the rights acquired by those treaties: they are acquired for the state, and successively pass to her conductors. cessors. It is at present a pretty general custom for the successor to confirm or renew even real alliances concluded by his predecessors and prudence requires that this precaution should not be neglected, since men pay greater respect to an obligation which they have themselves contracted, than to one which devolves on them from another quarter, or to which they have only tacitly subjected themselves. The reason is, that, in the former case, they consider their word to be engaged, and, in the latter, their conscience alone. $192. Trea- The treaties that have no relation to the performance of ties accom- reiterated acts, but merely relate to transient and single acts plished once for all and which are concluded at once,—those treaties (unless indecd perfected. it be more proper to call them by another name*)—those conventions, those compacts, which are accomplished once for all, and not by successive acts, -are no sooner executed than [209] they are completed and perfected. If they are valid, they have in their own nature a perpetual and irrevocable effect: nor have we them in view when we inquire whether a treaty be real or personal. Puffendorft gives us the following rules to direct us in this inquiry-"1. That the successors are bound to observe the treaties of peace concluded by their predecessors. 2. That a successor should observe all the lawful conventions by which his predecessor has transferred any right to a third party." This is evidently wandering from the point in question: it is only saying that what is done with validity by a prince, cannot be annulled by his successors. And who doubts it? A treaty of peace is in its own nature made with a view to its perpetual duration : and, as soon as it is once duly concluded and ratified, the affair is at an end; the treaty must be accomplished on both sides, and observed according to its tenor. If it is executed upon the spot, there ends the business at once. But, if the treaty contains engagements for the performance of successive and reiterated acts, it will still be necessary to examine, according to the rules we have laid down, whether it be in this respect real or personal,-whether the contracting parties intended to bind their successors to the performance of those acts, or only promised them for the time of their own reign. In the same manner, as soon as a right is transferred by a lawful convention, it no longer belongs to the state that * See Chap. XII. § 153, of this book. Law of Nature and Nations, book 8, c. 9, § 8. has ceded it; the affair is concluded and terminated. But, BOOK II. if the successor discovers any flaw in the deed of transfer, CHAP. XII. and proves it, he is not to be accused of maintaining that the convention is not obligatory on him, and refusing to fulfil it; -he only shows that such convention has not taken place: for a defective and invalid deed is a nullity, and to be considered as having never existed. accomplish The third rule given by Puffendorf is no less useless with $193. Trearespect to this question. It is, "that if, after the other ally ties already has already executed something to which he was bound by ed on the virtue of the treaty, the king happens to die before he has one part. accomplished in his turn what he had engaged to perform, his successor is indispensably obliged to perform it. For, what the other ally has executed under the condition of receiving an equivalent, having turned to the advantage of the state, or at least having been done with that view, it is clear, that, if he does not receive the return for which he had stipulated, he then acquires the same right as a man who has paid what he did not owe; and, therefore, the successor is obliged to allow him a complete indemnification for what he has done or given, or to make good, on his own part, what his predecessor had engaged to perform." All this, I say, is foreign to our question. If the alliance is real, it still subsists, notwithstanding the death of one of the contracting parties; if it is personal, it expires with them, or either of them ($183). But, when a personal alliance comes to be dissolved in this manner, it is quite a different question to [210] ascertain what one of the allied states is bound to perform, in case the other has already executed something in pursuance of the treaty and this question is to be determined on very different principles. It is necessary to distinguish the nature of what has been done pursuant to the treaty. If it has been any of those determinate and substantial acts which it is usual with contracting parties mutually to promise to each other in exchange, or by way of equivalent, there can be no doubt that he who has received, ought to give what he has promised in return, if he would adhere to the agreement, and is obliged to adhere to it: if he is not bound, and is unwilling to adhere to it, he ought to restore what he has received, to replace things in their former state, or to indemnify the ally from whom he has received the advantage in question. To act otherwise, would be keeping possession of another's property. In this case, the ally is in the situation, not of a man who has paid what he did not owe, but of one who has paid beforehand for a thing that has not been delivered to him. But, if the personal treaty related to any of those uncertain and contingent acts which are to be performed as occasions offer,-of those promises which are not obligatory if an opportunity of fulfilling them does not occur,-it is only on occasion likewise that the performance of similar acts is due BOOK II. in return: and, when the term of the alliance is expired, CHAP. XII. neither of the parties remains bound by any obligation. In a defensive alliance, for instance, two kings have reciprocally promised each other a gratuitous assistance during the term of their lives: one of them is attacked: he is succoured by his ally, and dies before he has an opportunity to succour him in his turn: the alliance is at an end, and no obligation thence devolves on the successor of the deceased, except indeed that he certainly owes a debt of gratitude to the sovereign who has given a salutary assistance to his state. And we must not pronounce such an alliance an injurious one to the ally who has given assistance without receiving any. His treaty was one of those speculating contracts in which the advantages or disadvantages wholly depend on chance: he might have gained by it, though it has been his fate to lose. We might here propose another question. The personal alliance expiring at the death of one of the allies, if the survivor, under an idea that it is to subsist with the successor, fulfils the treaty on his part in favour of the latter, defends his country, saves some of his towns, or furnishes provisions for his army,-what ought the sovereign to do, who is thus succoured? He ought, doubtless, either to suffer the alliance to subsist, as the ally of his predecessor has conceived that it was to subsist (and this will be a tacit renewal and extension of the treaty)-or to pay for the real service he has received, according to a just estimate of its importance, if he does not choose to continue that alliance. It would be in such a case as this that we might say with Puffendorf, that he [211] who has rendered such a service has acquired the right of a man who has paid what he did not owe. $194. The liance ex The duration of a personal alliance being restricted to the personal al persons of the contracting sovereigns,-if, from any cause whatsoever, one of them ceases to reign, the alliance exof the con- pires: for they have contracted in quality of sovereigns; and he who ceases to reign no longer exists as a sovereign, though he still lives as a man. pires if one tracting powers ceases to reign. Kings do not always treat solely and directly for their $195. Trea-kingdoms; sometimes, by virtue of the power they have in ties in their their hands, they make treaties relative to their own persons, own nature or their families; and this they may lawfully do, as the welpersonal. fare of the state is interested in the safety and advantage of the sovereign, properly understood. These treaties are personal in their own nature, and expire, of course, on the death of the king or the extinction of his family. Such is an alliance made for the defence of a king and his family. § 196. Alli ance con cluded for It is asked, whether such an alliance subsists with the king and the royal family, when, by some revolution, they are dethe defence prived of the crown. We have remarked above (§ 194), that of the king a personal alliance expires with the reign of him who contracted it: but that is to be understood of an alliance formed and the |