on 3 pre drawn from long filence. Nobody is ignorant how dangerous it tions, to commonly is for a weak ftate even to hint a claim to the poffef- found them fions of a powerful monarch. In fuch a cafe, therefore, it is fumptive not eafy to deduce from long filence a legal prefumption of defertion. abandonment. To this we may add, that, as the ruler of the fociety has ufually no power to alienate what belongs to the ftate, his filence, even though fufficient to afford a prefumption of abandonment on his own part, cannot impair the national right or that of his fucceffors. The question then will be, whether the nation has neglected to fupply the omiffion caused by the filence of her ruler, or has participated in it by a tacit approbation. But there are other principles that establish the use and force $149. of prefcription between nations. The tranquillity of the people, ciples that Other printhe fafety of ftates, the happiness of the human race, do not al- enforce prelow that the poffeffions, empire, and other rights of nations fcription. fhould remain uncertain, fubject to difpute, and ever ready to occafion bloody wars. Between nations therefore it becomes neceffary to admit prescription founded on length of time, as a valid and incontestable title. If any nation has kept filence through fear, and as it were through neceflity, the lofs of her right is a misfortune which the ought patiently to bear, fince he could not avoid it and why fhould the not submit to this as well as to have her towns and provinces taken from her by an unjust conqueror, and to be forced to cede them to him by treaty? It is however only in cafes of long-continued, undifputed, and uninterrupted poffeffion, that prefcription is established on thefe grounds, because it is neceffary that affairs fhould fome time or other be brought to a conclufion, and settled on a firm and solid foundation. But the cafe is different with a poffeffion of only a few years' continuance, during which the party whofe rights are invaded may from prudential reafons find it expedient to keep filence, without at the fame time affording room to accuse him of fuffering things to become uncertain, and of renewing quarrels without end. As to immemorial prescription, what we have faid respecting it (§ 143) is fufficient to convince every one that it ought neceffarily to take place between nations. Ufucaption and prescription being fo neceffary to the tranquil- $150. lity and happiness of human fociety, it is juftly prefumed that all Effects of nations have confented to admit the lawful and reasonable use of them, with a view to the general advantage, and even to the pri- nations on vate intereft of each individual nation. this fubject. Prefcription of many years' standing, as well as ufucaption, is then eftablished by the voluntary law of nations (Prelim. § 21). Nay more, as by virtue of that law nations are, in all doubtful cafes, fuppofed to ftand on a footing of equal right in treating with each other (ibid.), prefcription, when founded on long undifputed poffeffion, ought to have its full effect between nations, without admitting any allegation of the poffeffion being unjust, unless the voluntary law of § 151. Law of treaties or in this matter. unless the evidence to prove it be very clear and convincing indeed. For, without fuch evidence, every nation is to be confi dered as a bona-fide poffeffor. Such is the right that a fovereign ftate ought to allow to other ftates; but to herself fhe fhould only allow the ufe of the internal and neceffary right (Prelim. § 28). It is the bona-fide poffeffor alone, whofe prefcription will ftand the teft of confcience. Since prescription is fubject to fo many difficulties, it would be very proper that adjoining nations fhould by treaty adopt of cuftom fome rule on this fubject, particularly with refpect to the number of years required to found a lawful prefcription, fince this latter point cannot in general be determined by the law of nature alone. If, in default of treaties, custom has determined any thing in this matter, the nations between whom this custom is in force, ought to conform to it (Prelim. § 26). § 152. Nature of treaties. or conven CHAP. XII. Of Treaties of Alliance, and other public Treaties. TH HE fubject of treaties is undoubtedly one of the most important that the mutual relations and affairs of nations can prefent us with. Having but too much reafon to be convinced of the little dependence that is to be placed on the natural obligations of bodies politic, and on the reciprocal duties impofed upon them by humanity,-the most prudent nations endeavour to procure by treaties thofe fuccours and advantages which the law of nature would infure to them, if it were not rendered ineffectual by the pernicious counfels of a falfe policy. A treaty, in Latin fœdus, is a compact made with a view to the public welfare by the superior power, either for perpetuity, or for a confiderable time. $153. The compacts which have temporary matters for their object Pactions, a- are called agreements, conventions, and pactions. They are greements, accomplished by one fingle act, and not by repeated acts. These tions. compacts are perfected in their execution once for all: treaties receive a fucceflive execution whofe duration equals that of the treaty. § 154Public treaties can only be made by the fuperior powers, by By whom fovereigns who contract in the name of the ftate. Thus contreaties are ventions made between fovereigns refpecting their own private affairs, and thofe between a fovereign and a private perfon, are not public treaties. made. The fovereign who poffeffes the full and abfolute authority, has, doubtless, a right to treat in the name of the ftate he reprefents; and his engagements are binding on the whole nation. But all rulers of Itates have not a power to make public treaties by their own authority alone: fome are obliged to take the advice of a fenate, or of the reprefentatives of the nation. It is from the fundamental fundamental laws of each state that we must learn where refides the authority that is capable of contracting with validity in the name of the state. Notwithstanding our affertion above, that public treaties are made only by the fuperior powers, treaties of that nature may nevertheless be entered into by princes or communities who have a right to contract them, either by the conceffion of the fovereign, or by the fundamental laws of the ftate, by particular refervations, or by cuftom. Thus the princes and free cities of Germany, though dependent on the emperor and the empire, have the right of forming alliances with foreign powers. The conftitutions of the empire give them, in this as in many other refpects, the rights of fovereignty. Some cities of Switzerland, though fubject to a prince, have made alliances with the cantons: the permiffion or toleration of the fovereign has given birth to fuch treaties, and long cuftom has established the right to contract them. tion may make trea As a ftate that has put herself under the protection of another, $155. Whether has not on that account forfeited her character of fovereignty (Book a state unI. § 192), the may make treaties and contract alliances, unlefs fhe der protechas, in the treaty of protection, exprefsly renounced that right. But the continues for ever after bound by this treaty of protec- tics. tion, fo that he cannot enter into any engagements contrary to it, that is to fay, engagements which violate the exprefs conditions of the protection, or that are in their own nature repugnant to every treaty of protection. Thus the protected flate cannot promife affiftance to the enemies of her protector, nor grant them a paffage. Treaties tentiaries. Sovereigns treat with each other through the medium of $156. agents or proxies who are invefted with fufficient powers for concluded the purpofe, and are commonly called plenipotentiaries. To by proxies their office we may apply all the rules of natural law which re- or plenipo fpect things done by commiffion. The rights of the proxy are determined by the inftructions that are given him: he must not deviate from them; but every promife which he makes in the terms of his commiffion, and within the extent of his powers, is binding on his conftituent. At prefent, in order to avoid all danger and difficulty, princes referve to themfelves the power of ratifying what has been concluded upon in their name by their minifters. The plenipotentiary commiffion is but a procuration cum libera. If this commiffion were to have its full effect, they could not be too cir cumfpect in giving it. But as princes cannot otherwife than by force of arms be compelled to fulfil their engagements, it is cuftomary to place no dependence on their treaties, till they have agreed to and ratified them. Thus, as every agreement made by the minifter remains invalid till fanctioned by the prince's ratification, there is lefs danger in vefting him with unlimited powers. But before a prince can honourably refufe to ratify a compact made in virtue of fuch plenipotentiary commillion, he fhould 8 157. treaties. fhould be able to allege ftrong and fubftantial reafons, and, in particular, to prove that his minifter has deviated from his inftructions. A treaty is valid if there be no defect in the manner in which Validity of it has been concluded: and for this purpofe nothing more can be required, than a fufficient power in the contracting parties, and their mutual confent fufficiently declared. § 158. not render An injury cannot then render a treaty invalid. He who enInjury does. ters into engagements ought carefully to weigh every thing bethem void. fore he concludes them; he may do what he pleases with his own property, forego his rights, and renounce his advantages, as he thinks proper; the acceptor is not obliged to inquire into his motives, and to estimate their due weight. If we might recede from a treaty becaufe we found ourfelves injured by it, there would be no ftability in the contracts of nations. Civil laws may fet bounds to injury, and determine what degree of it fhall be capable of invalidating a contract. But fovereigns are fubject to no fuperior judge. How fhall they be able to prove the injury to each other's fatisfaction? Who fhall determine the degree of it fufficient to invalidate a treaty? The peace and happinefs of nations manifeftly require that their treaties fhould not depend on fo vague and dangerous a plea of invalidity. 6 159Duty of nations in A fovereign nevertheless is in confcience bound to pay a regard to equity, and to observe it as much as poffible, in all his this refpect. treaties. And if it happens that a treaty which he has concluded with upright intentions, and without perceiving any unfairnefs in it, fhould eventually prove difadvantageous to an ally, nothing can be more honourable, more praifeworthy, more conformable to the reciprocal duties of nations, than to relax the terms of fuch treaty as far as he can do it confiftently with his duty to himself, and without expofing himfelf to danger, or incurring a confiderable lofs. $160. treaties Though a fimple injury, or fome difadvantage in a treaty, be Nullity of not fufficient to invalidate it, the cafe is not the fame with those inconveniences that would lead to the ruin of the nation. Since, pernicious in the formation of every treaty, the contracting parties must be to the state. vested with fufficient powers for the purpose, a treaty pernici which are ous to the ftate is null, and not at all obligatory, as no conductor of a nation has the power to enter into engagements to do fuch things as are capable of deftroying the ftate, for whofe fafety the government is intrufted to him The nation itself, being neceffarily obliged to perform every thing required for its prefervation and fafety (Book I. § 16, &c.), cannot enter into engagements contrary to its indifpenfable obligations. In the year 1506, the ftates-general of the kingdom of France, affembled at Tours, engaged Louis XII. to break the treaty he had concluded with the emperor Maximilian, and the archduke Philip, his fon, because that treaty was pernicious to the kingdom. They allo decided, that neither the treaty, nor the oath that had accompanied it, could be binding on the king, who had no right to alienate $161. alienate the property of the crown*. We have treated of this latter fource of invalidity in the twenty-firft chapter of Book I. For the fame reafon-the want of fufficient powers-a treaty concluded for an unjust or dishonest purpose is abfolutely null Nullity of and void,-nobody having a right to engage to do things con- made for an trary to the law of nature. Thus, an offenfive alliance, made unjut or for the purpose of plundering a nation from whom no injury has difhonest been received, may or rather ought to be broken. treaties purpose. $162. Whether may be thofe It is afked, whether it be allowable to contract an alliance with a nation that does not profefs the true religion, and whether trea- an all auce ties made with the enemies of the faith are valid? Grotius has treated this fubject at large † : and the difcuffion might have been contracted neceffary at a time when party-rage ftill obfcured those principles with the which it had long caufed to be forgotten: but we may venture profef the to believe that it would be fuperfluous in the prefent age. The true reli law of nature alone regulates the treaties of nations: the differ- gion. ence of religion is a thing abfolutely foreign to them. Different people treat with each other in quality of men, and not under the character of Chriftians, or of Mahommedans. Their common fafety requires that they fhould be capable of treating with each other, and of treating with fecurity. Any religion that fhould in this cafe clash with the law of nature, would, on the very face of it, wear the ftamp of reprobation, and could not pretend to derive its origin from the great author of nature, who is ever fteady, ever confiftent with himfelf. But if the maxims of a religion tend to eftablifh it by violence, and to opprefs all those who will not embrace it, the law of nature forbids us to favour that religion, or to contract any unneceffary alliances with its inhuman followers; and the common fafety of mankind invites them rather to enter into an alliance against fuch a people,-to reprefs fuch outrageous fanatics, who disturb the public repofe, and threaten all nations. It is a fettled point in natural law, that he who has made a 6163. promise to any one, has conferred upon him a real right to re- ofobier v Obligation quire the thing promifed,-and confequently, that the breach of ing trea a perfect promife is a violation of another perfon's right, and as ties. evidently an act of injustice, as it would be to rob a man of his property. The tranquillity, the happiness, the fecurity of the human race, wholly depend on juftice, on the obligation of paying a regard to the rights of others. The refpect which others pay to our rights of domain and property conftitutes the fecurity of our actual poffeffions; the faith of promifes is our fecurity for things that cannot be delivered or executed upon the fpot. There would no longer be any fecurity, no longer any commerce between mankind, if they did not think themfelves obliged to keep faith with each other, and to perform their promifes. This obligation is then as neceflary, as it is natural and indubitable, between na • Sce the French hiftorians, † De Jure Belli et Pacis, lib. ii. cap. xv. § 8. et feq. 02 tions |