CHAP. XV. Of the Faith of Treaties. cred among nations. THOUGH HOUGH we have fufficiently established (§§ 163 and $218. 164) the indifpenfable neceflity of keeping promifes, and What is saobferving treaties, the fubject is of fuch importance, that we cannot forbear confidering it here in a more general view, as interefting, not only to the contracting parties, but likewife to all nations, and to the universal society of mankind. Every thing which the public safety renders inviolable is facred in fociety. Thus the perfon of the fovereign is facred, because the fafety of the ftate requires that he fhould be in perfect fecurity, and above the reach of violence: thus the people of Rome declared the perfons of their tribunes facred,-confidering it as effential to their own fafety that their defenders should be screened from all violence, and even exempt from fear. Every thing, therefore, which the common fafety of mankind and the peace and fecurity of human fociety require to be held inviolable, is a thing that thould be facred among nations. tween La Who can doubt that treaties are in the number of those things $219. that are to be held facred by nations? By treaties the most im- Treaties are portant affairs are determined; by them the pretenfions of fove- facred bereigns are regulated; on them nations are to depend for the ac- tions. knowledgement of their rights, and the fecurity of their dearest interefts. Between bodies politic,-between fovereigns who acknowledge no fuperior on earth,-treaties are the only means of adjusting their various pretenfions,-of establishing fixed rules of conduct,-of ascertaining what they are entitled to expect, and what they have to depend on. But treaties are no better than empty words, if nations do not confider them as refpectable engagements, as rules which are to be inviolably obferved by fovereigns, and held facred throughout the whole earth. is facred. The faith of treaties,-that firm and fincere refolution,-that § 220. invariable conftancy in fulfilling our engagements,-of which The faith we make profeffion in a treaty, is therefore to be held facred and of treaties inviolable between the nations of the earth, whose safety and repose it secures and if mankind be not wilfully deficient in their duty to themselves, infamy must ever be the portion of him who violates his faith. § 221. He who violates his He who violates his treaties, violates at the fame time the law of nations; for he difregards the faith of treaties,-that faith which the law of nations declares facred; and, fo far as depends treaties, vi on him, he renders it vain and ineffectual. Doubly guilty, he plates the does an injury to his ally, he does an injury to all nations, and tions. inflicts a wound on the great fociety of mankind. "On the ob Q3 "servance law of na $222. Right of nations a gainst him who dir gards the faith of treaties. $223. nations vio pope. "fervance and execution of treaties," faid a refpectable fovereign, "depends all the fecurity which princes and ftates have with re"fpect to each other; and no dependence could henceforward "be placed in future conventions, if the exifting ones were not "C to be observed *." As all nations are interested in maintaining the faith of treaties, and causing it to be every-where confidered as facred and inviolable, fo likewife they are justifiable in forming a confederacy for the purpofe of repreffing him who teftifies a difregard for it,who openly fports with it,-who violates and tramples it under foot. Such a man is a public enemy who faps the foundations of the peace and common fafety of nations. But we fhould be careful not to extend this maxim to the prejudice of that liberty and independence to which every nation has a claim. When a fovereign breaks his treaties, or refufes to fulfil them, this does not immediately imply that he confiders them as empty names, and that he difregards the faith of treaties: he may have good reafons for thinking himfelf liberated from his engagements; and other fovereigns have not a right to judge him. It is the fovereign who violates his engagements on pretences that are evidently frivolous, or who does not even think it worth his while to allege any pretence whatever, to give a colourable glofs to his conduct, and caft a veil over his want of faith,—it is such a fovereign, who deferves to be treated as an enemy of the human race. In treating of religion, in the first book of this work, we The law of could not avoid giving feveral inftances of the enormous abufes lated by the which the popes formerly made of their authority. There was one in particular, which was equally injurious to all states, and fubverfive of the law of nations. Several popes have undertaken to break the treaties of fovereigns; they carried their daring audacity fo far as to release a contracting power from his engagements, and to abfolve him from the oaths by which he had confirmed them. Cefarini, legate of pope Eugenius the Fourth, withing to break the treaty which Uladislaus king of Poland and Hungary had concluded with the fultan Amurath, pronounced, in the pope's name, the king's abfolution from his oaths +. In thofe times of ignorance, people thought themfelves really bound by nothing but their oaths, and they attributed to the pope the power of abfolving them from oaths of every kind. Uladislaus renewed hoftilities againft the Turks: but that prince, in other re1pects worthy of a better fate, paid dearly for his perfidy, or rather for his fuperftitious weakness: he perifhed, with his army, near Varna :-a lofs which was fatal to Christendom, and brought on her by her fpiritual head. The following pitaph was written on Uladiflaus: Refolution of the States-General, of the 15th of March 1726, in answer to 112. He quotes Romulida Romulida Cannas, ego Varnam clade notavi. Non ferret Scythicum Pannonis ora jugum. Pope John XII. declared null the oath which the emperor Louis of Bavaria, and his competitor Frederic of Auftria, had mutually taken when the emperor fet the latter at liberty. Philip duke of Burgundy, abandoning the alliance of the English, procured from the pope and the council of Bafil an abfolution from his oath. And at a time when the revival of letters and the eftablishment of the reformation fhould have rendered the popes more circumfpect, the legate Caraffa, in order to induce Henry II. of France to a renewal of hoftilities, had the audacity to abfolve him, in 1556, from the oath he had made to obferve the truce of Vaucelles. The famous peace of Weftphalia difpleafing the pope on many accounts, he did not confine himfelf to protesting against the articles of a treaty in which all Europe was interefted: he published a bull in which, from his own certain knowledge, and full ecclefiaftical power, he declared feveral articles of the treaty null, vain, invalid, iniquitous, unjust, condemned, reprobated, frivolous, void of force and effect, and that nobody was bound to obferve them or any of them, though they were confirmed by oath.Nor was this all-his holinefs, affurning the tone of an abfolute mafter, proceeds thus-And nevertheless, for the greater precantion, and as much as need be, from the fame motions, knowledge, deliberations, and plenitude of power, we condemn, reprobate, break, annul, and deprive of all force and effect, the faid articles, and all the other things prejudicial to the above, &c. t. Who does not fee, that thefe daring acts of the popes, which were formerly very frequent, were violations of the law of nations, and directly tended to deftroy all the bands that could unite mankind, and to fap the foundations of their tranquillity, or to render the pope fole arbiter of their affairs? authorifed But who can reftrain his indignation at seeing this ftrange 224. abufe authorised by princes themfelves? In the treaty concluded This abufe at Vincennes, between Charles V. king of France, and Robert by princes. Stuart king of Scotland, in 1371, it was agreed, that the pope fhould abfolve the Scots from all the oaths they had taken in fwearing to a truce with the English, and that he should promife never 10 abfolve the French or Scots from the oaths they were about to make in fwearing to the new treaty ‡. On these facts, fee the French and German hiftorians." Thus war was determined on in favour of the pope: and after cardinal Caraffa, by virtue of the powers vefted in him by his hol nefs, had abfolved the king from the oaths he had taken in ratification of the truce, he even permitted him to attack the empe ror and his fon without a previous declaration of hoit:lities." De Thou, lib. xvii. Hiftory of the Treaty of Weftphalia by Father Bougeant, in 12mo, vol. vi, P. 413. Choify's Hiftory of Charles V. P. 282. §225. Ufe of an oath in trea ties. It does not conftitute tion. The custom, generally received in former times, of swearing to the obfervance of treaties, had furnished the popes with a pretext for claiming the power of breaking them, by abfolving the contracting parties from their oaths. But in the present day, even children know that an oath does not constitute the obligathe obliga- tion to keep a promife or a treaty: it only gives an additional ftrength to that obligation, by calling God to bear witness. A man of fenfe, a man of honour, does not think himself lefs bound by his word alone, by his faith once pledged, than if he had added the fanction of an oath. Cicero would not have us to make much difference between a perjurer and a liar. "habit of lying (fays that great man) paves the way to perjury. "Whoever can be prevailed on to utter a falfehood, may be easily (C won over to commit perjury: for the man who has once de"viated from the line of truth, generally feels as little fcruple "in confenting to a perjury as to a lie. For, what influence "can the invocation of the gods have on the mind of him who "is deaf to the voice of confcience? The fame punishment, "therefore, which heaven has ordained for the perjurer, awaits "alfo the liar: for it is not on account of the formula of words "in which the oath is couched, but of the perfidy and villany "difplayed by the perjurer in plotting harm against his neigh "bour, that the anger and indignation of the gods is roused ⚫." 226. The oath does not then produce a new obligation it only gives additional force to the obligation impofed by the treaty, and in every thing shares the fame fate with it. Where the treaty is of its own nature valid and obligatory, the oath (in itself a fupererogatory obligation) is fo too: but where the treaty is void, the oath is void likewife. The oath is a perfonal act; it can therefore only regard the It does not perfon of him who fwears, whether he fwears himself, or dechange the nature of putes another to fwear in his name. However, as this act does obligations. not produce a new obligation, it makes no change in the nature of a treaty. Thus an alliance confirmed by oath is fo confirmed only with refpect to him who has contracted it: but if it be a real alliance, it furvives him, and paffes to his fucceffors as an alliance not confirmed by oath. §227. It gives no pre-emi For the fame reafon, fince the oath can impofe no other obligation than that which refults from the treaty itself, it gives no pre-eminence to one treaty, to the prejudice of thofe that are not one treaty fworn to. And as, in cafe of two treaties clashing with each above ano- other, the more ancient ally is to be preferred (§ 167), the fame nence to her. At quid intercft inter perjurum et mendacem? Qui mentiri folet, pejerare confuevit. Quem ego, ut mentiatur, inducere poffum, ut pejeret, exorare facile potero: nam qui femel a veritate deflexit, hic non majori religione ad perjurium quam ad mendacium perduci confuevit. Quis enim deprecatione deorum, non confcientiæ fide commovetur? Propterea, quæ pœna ah diis immortal bus per juro, hæc eadem mendaci conftituta eft. Non enim ex pactione verborum qui bus jusjurandum comprehenditur, fed ex perfidia et malitia per quam infidiæ tenduntur alicui, dii immortales hominibus irafci et fuccenfere confucrunt. Cicer, Orat. pro QRofcio, comodo. rule rule should be observed, even though the more recent treaty has been confirmed by an oath. In the fame manner, fince it is not allowable to engage in treaties inconfiftent with exifting ones. (§ 165), the circumftance of an oath will not justify such treaties, nor give them fufficient validity to fupercede those which are incompatible with them :-if it had fuch an effect, this would be a convenient mode for princes to rid themselves of their engage ments. It cannot Thus alfo an oath cannot give validity to a treaty that is of its § 228. own nature invalid,-juftify a treaty which is in itself unjuft, give force or impofe any obligation to fulfil a treaty, however lawfully con-to a treaty cluded, when an occafion occurs in which the obfervance of it that is inwould be unlawful,-as, for inftance, if the ally to whom fuccours have been promifed, undertakes a war that is manifeftly unjuft. In fhort, every treaty made for a dishonourable purpose (§ 161), every treaty prejudicial to the ftate (§ 160), or contrary to her fundamental laws (Book I. § 265), being in its own nature void,-the oath that may have been added to fuch a treaty, is void likewise, and falls to the ground together with the covenant which it was intended to confirm. Affevera tions. The affeverations ufed in entering into engagements are forms 229. of expreffion intended to give the greater force to promises. Thus, kings promife in the most facred manner, with good faith, folemnly, irrevocably, and engage their royal word, &c. A man of honour thinks himfelf fufficiently bound by his word alone: yet these affeverations are not ufelefs, inafmuch as they tend to prove that the contracting parties form their engagements deliberately, and with a knowledge of what they are about. Hence, confequently, the violation of fuch engagements becomes the more difgraceful. With mankind, whofe faith is fo uncertain, every circumstance is to be turned to advantage: and fince the fenfe of fhame operates more powerfully on their minds than the fentiment of duty, it would be imprudent to neglect this method. After what we have faid above (§ 162), it were unneceffary to undertake in this place to prove that the faith of treaties has no rela- The faith tion to the difference of religion, and cannot in any manner depend does not deupon it. The monstrous maxim, that no faith is to be kept with pend on the beretics, might formerly raife its head amidst the madnefs of difference party, and the fury of fuperftition: but it is at prefent generally of religion. detefted. of treaties Precautions If the fecurity of him who ftipulates for any thing in his own § 231 favour prompts him to require precifion, fulness, and the great- to be taken eft clearness in the expreffions,-good faith demands, on the in wording other hand, that each party fhould exprefs his promifes clearly, treaties. and without the leaft ambiguity. The faith of treaties is bafely prostituted by studying to couch them in vague or equivocal terms, to introduce ambiguous expreflions, to referve fubjects of difpute, to over-reach thofe with whom we treat, and outdo them in cunning and duplicity. Let the man who excels in thefe arts boast of his happy talents, and efteem himself a keen nego. tiator: |