BOOK II. the country, that they shall be allowed to return home in CHAP. XV. safety, it is manifest that they cannot be refused provisions; for they cannot return without them. In the same manner, in demanding or accepting an interview, full security is tacitly promised. Livy justly says, that the Gallo-Greeks violated the law of nations in attacking the consul Manlius at the time when he was repairing to the place of interview to which they had invited him.* The emperor Valerian, having been defeated by Sapor, king of Persia, sent to him to sue for peace. Sapor declared that he wished to treat with the emperor in person; and Valerian, having consented to the interview without any suspicion of fraud, was carried off by the perfidious enemy, who kept him a prisoner till his death, and treated him with the most brutal cruelty.† Grotius, in treating of tacit conventions, speaks of those in which the parties pledge their faith by mute signs. But we ought not to confound these two kinds of tacit conventions : for that consent which is sufficiently notified by a sign, is an express consent, as clearly as if it had been signified by the voice. Words themselves are but signs established by custom and there are mute signs which established custom renders as clear and as express as words. Thus, at the present day, by displaying a white flag, a parley is demanded, as expressly as it could be done by the use of speech. Security is tacitly promised to the enemy who advances upon this invita tion. CHAP. XVI. 8235. Guaranty. CHAP. XVI. OF SECURITIES GIVEN FOR THE OBSERVANCE OF TREATIES. CONVINCED by unhappy experience, that the faith of treaties, sacred and inviolable as it ought to be, does not always afford a sufficient assurance that they shall be punctually observed,-mankind have sought for securities against perfidy, for methods, whose efficacy should not depend on the good faith of the contracting parties. A guaranty is one of these means. When those who make a treaty of peace, or any other treaty, are not perfectly easy with respect to its observance, they require the guaranty of a powerful sovereign. The guarantee promises, to maintain the conditions. of the treaty, and to cause it to be observed. As he may find himself obliged to make use of force against the party who attempts to violate his promises, it is an engagement tha CHAP. XVI. no sovereign ought to enter into lightly, and without good BOOK II. reason. Princes indeed seldom enter into it unless when they have an indirect interest in the observance of the treaty, or are induced by particular relations of friendship. The gua- [236] ranty may be promised equally to all the contracting parties, to some of them, or even to one alone: but it is commonly promised to all in general. It may also happen, when several sovereigns enter into a common alliance, that they all reciprocally pledge themselves to each other as guarantees for its observance. The guaranty is a kind of treaty, by which assistance and succours are promised to any one, in case he has need of them, in order to compel a faithless ally to fulfil his engagements. no right to a treaty. Guaranty being given in favour of the contracting powers, 2 236. It or of one of them, it does not authorize the guarantee to in- gives the terfere in the execution of the treaty, or to enforce the obser- guarantee vance of it, unasked, and of his own accord. If, by mutual interfere unconsent, the parties think proper to deviate from the tenor asked in the of the treaty, to alter some of the articles, or to cancel it alto- execution of gether, or if one party be willing to favour the other by a relaxation of any claim,-they have a right to do this, and the guarantee cannot oppose it. Simply bound by his promise to support the party who should have reason to complain of the infraction of the treaty, he has acquired no rights for himself. The treaty was not made for him; for, had that been the case, he would have been concerned, not merely as a guarantee, but as a principal in the contract. This observation is of great importance: for care should be taken, lest, under colour of being a guarantee, a powerful sovereign should render himself the arbiter of the affairs of his neighbours, and pretend to give them law. But it is true, that, if the parties make any change in the articles of the treaty without the consent and concurrence of the guarantee, the latter is no longer bound to adhere to the guaranty; for the treaty thus changed is no longer that which he guarantied.(129) As no nation is obliged to do any thing for another nation, 237. Nawhich that other is herself capable of doing, it naturally fol- ture of the lows that the guarantee is not bound to give his assistance obligation it except where the party to whom he has granted his guaranty is of himself unable to obtain justice. If there arises any dispute between the contracting parties respecting the sense of any article of the treaty, the guarantee is not immediately obliged to assist him in favour of whom he has given his guaranty. As he cannot engage to support injustice, he is to examine, and to search for the true sense (129) This principle of the law of viduals. 5 Barn. & Cres. 269; 2 Dowl. nations in this respect precisely applies & R. 22; 5 Bing. 485.-C. to guaranties given by private indi imposes. BOOK II. CHAP. XVI. 2238. The guaranty cannot impair the of the treaty, to weigh the pretensions of him who claims his guaranty; and, if he finds them ill founded, he may refuse to support them, without failing in his engagements. It is no less evident that the guaranty cannot impair the rights of any one who is not a party to the treaty. If, therefore, it happens that the guarantied treaty proves derogatory rights of a to the rights of those who are not concerned in it,-the treaty third party. being unjust in this point, the guarantee is in no wise bound to procure the performance of it; for, as we have shown above, he can never have incurred an obligation to support injustice. [237] This was the reason alleged by France, when, notwithstanding her having guarantied the famous pragmatic sanction of Charles VI., she declared for the house of Bavaria, in opposition to the heiress of that emperor. This reason is incontestably a good one, in the general view of it: and the only question to be decided at that time was, whether the court of France made a just application of it. ? 239. Du guaranty. Non nostrum inter vos tantas componere lites. I shall observe on this occasion, that, according to common usage, the term guaranty is often taken in a sense somewhat different from that we have given to it. For instance, most of the powers of Europe guarantied the act by which Charles VI. had regulated the succession to his dominions;-sovereigns sometimes reciprocally guaranty their respective states. But we should rather denominate those transactions treaties of alliance, for the purpose, in the former case, of maintaining that rule of succession,-and, in the latter, of supporting the possession of those states. The guaranty naturally subsists as long as the treaty that ration of the is the object of it; and, in case of doubt, this ought always to be presumed, since it is required, and given, for the security of the treaty. But there is no reason which can naturally prevent its limitation to a certain period,-to the lives of the contracting powers, to that of the guarantee, &c. In a word, whatever we have said of treaties in general is equally applicable to a treaty of guaranty. ? 240. Treaties with surety. ? 241. curities, and mortgages. When there is question of things which another may do or give as well as he who promises, as, for instance, the payment of a sum of money, it is safer to demand a security than a guaranty for the surety is bound to make good the promise in default of the principal,-whereas the guarantee is only obliged to use his best endeavours to obtain a performance of the promise from him who has made it. A nation may put some of her possessions into the hands. Pawns, se- of another, for the security of her promises, debts, or engagements. If she thus deposits movable property, she gives pledges. Poland formerly pledged a crown and other jewels to the sovereigns of Prussia. But sometimes towns and provinces are given in pawn. If they are only pledged by a deed which assigns them as security for a debt, they serve as a mortgage: if they are actually put into the hands of the creditor, or of him with whom the affair has been transacted, he holds them as pledges: and, if the revenues are ceded to him as an equivalent for the interest of the debt, the transaction is called a compact of antichresis. BOOK II. CHAP. XVI. she The right which the possession of a town or province con- 242. A fers upon him who holds it in pledge, extends no further than nation's to secure the payment of what is due to him, or the perform-right over ance of the promise that has been made to him. He may holds as a therefore retain the town or the province in his hands, till he pledge. is satisfied: but he has no right to make any change in it; for that town, or that country, does not belong to him as pro- [ 238 ] prietor. He cannot even interfere in the government of it, beyond what is required for his own security, unless the empire, or the exercise of sovereignty, has been expressly made over to him. This last point is not naturally to be presumed, since it is sufficient for the security of the mortgagee, that the country is put into his hands and under his power. Further, he is obliged, like every other person who has received a pledge, to preserve the country he holds as a security, and, as far as in his power, to prevent its suffering any damage or dilapidation: he is responsible for it; and if the country is ruined through his fault, he is bound to indemnify the state that intrusted him with the possession of it. If the sovereignty is deposited in his hands together with the country itself, he ought to govern it according to its constitution, and precisely in the same manner as the sovereign of the country was obliged to govern it; for the latter could only pledge his lawful right. 8 she is As soon as the debt is paid, or the treaty is fulfilled, the 2 243. How term of the security expires, and he who holds a town or a province by this title is bound to restore it faithfully, in the same state in which he received it, so far as this depends on him. But to those who have no law but their avarice, or their ambition-who, like Achilles, place all their right in the point of their sword*-a tempting allurement now presents itself: they have recourse to a thousand quibbles, a thousand pretences, to retain an important place, or a country which is conveniently situated for their purposes. The subject is too odious for us to allege examples: they are well enough known, and sufficiently numerous to convince every sensible nation, that it is very imprudent to make over such securities. obliged to restore it. But if the debt be not paid at the appointed time, or if the ? 244. How treaty be not fulfilled, what has been given in security may she may apbe retained and appropriated, or the mortgage seized, at least propriate it until the debt be discharged, or a just compensation made. * Jura negat sibi nata, nihil non arrogat armis.-HORAT. to herself. BOOK II. The house of Savoy had mortgaged the country of Vaud to CHAP. XVI. the cantons of Bern and Fribourg; and those two cantons, finding that no payments were made, had recourse to arms, and took possession of the country. The duke of Savoy, instead of immediately satisfying their just demands, opposed force to force, and gave them still further grounds of complaint wherefore the cantons, finally successful in the contest, have since retained possession of that fine country, as well for the payment of the debt, as to defray the expenses of the war, and to obtain a just indemnification. 8215. Finally, there is, in the way of security, another precauHostages. tion, of very ancient institution, and much used among nations -which is, to require hostages. These are persons of consequence, delivered up by the promising party, to him with [239] whom he enters into an engagement, to be detained by the latter until the performance of the promises which are made. to him. In this case, as well as in those above mentioned, the transaction is a pignorary contract, in which free men are delivered up, instead of towns, countries, or jewels. With respect to this contract, therefore, we may confine ourselves to those particular observations which the difference of the things pledged renders necessary. 246. What right we have over hostages. 247. Their is pledged. The sovereign who receives hostages has no other right over them than that of securing their persons, in order to detain them till the entire accomplishment of the promises. of which they are the pledge. He may therefore take precautions to prevent their escaping from him: but those precautions should be moderated by humanity towards men whom he has no right to use ill; and they ought not to be extended beyond what prudence requires. It is pleasing to behold the European nations in the present age content themselves with the bare parol of their hostages. The English noblemen who were sent to France in that character, in pursuance of the treaty of Aix-la-Chapelle, in 1748, to stay till the restitution of Cape Breton, were solely bound by their word of honour, and lived at court, and at Paris, rather as ministers of their nation than as hostages. The liberty of the hostages is the only thing pledged: and liberty alone if he who has given them breaks his promise, they may be detained in captivity. Formerly they were in such cases put to death;-an inhuman cruelty, founded on an error. It was imagined that the sovereign might arbitrarily dispose of the lives of his subjects, or that every man was the master of his own life, and had a right to stake it as a pledge when he delivered himself up as a hostage. ? 248. When be sent back. As soon as the engagements are fulfilled, the cause for they are to which the hostages were delivered no longer subsists: they then immediately become free, and ought to be restored without delay. They ought also to be restored, if the reason for which they were demanded does not take place: to detain |