$232. tiator: but reafon and the facred law of nature will clafs him as far beneath a vulgar cheat, as the majefty of kings is exalted above private perfons. True diplomatic fkill confifts in guarding againft impofition, not in practifing it. Subterfuges in a treaty are not lefs contrary to good faith. Subterfuges in treaties. His catholic majefty Ferdinand, having concluded a treaty with the archduke his fon-in-law, thought he could evade it by privately protefting against the treaty-a puerile fineffe! which, without giving any right to that prince, only expofed his weaknefs and duplicity. § 233. An evident ly falfe in- The rules that establish a lawful interpretation of treaties are fufficiently important to be made the fabject of a diftinct chapter. For the prefent let us fimply obferve that an evidently falfe intertion incon- pretation is the groffeft imaginable violation of the faith of treafiftent with ties. He that reforts to fuch an expedient, either impudently the faith of fports with that facred faith, or fufficiently evinces his inward treaties. § 234. conviction of the degree of moral turpitude annexed to the violation of it: he wishes to act a difhoneft part, and yet preserve the character of an honest man: he is a puritanical impoftor who aggravates his crime by the addition of a deteftable hypocri fy. Grotius quotes feveral inftances of evidently falfe interpretations put upon treaties:-the Plateans having promifed the Thebans to restore their prifoners, restored them after they had put them to death. Pericles having promised to fpare the lives of fuch of the enemy as laid down their arms †, ordered all thofe to be killed who had iron clafps to their cloaks. A Roman general having agreed with Antiochus to restore him half of his fleet, caufed each of the fhips to be fawed in two. All these interpretations are as fraudulent as that of Rhadamiftus, who, according to Tacitus's account |, having fworn to Mithridates that he would not employ either poifon or the fteel against him, caufed him to be fmothered under a heap of clothes. Our faith may be tacitly pledged, as well as exprefsly it is Faith tacit- fufficient that it be pledged, in order to become obligatory: the ly pledged. manner can make no difference in the cafe. The tacit pledging of faith is founded on a tacit confent; and a tacit confent is that which is, by fair deduction, inferred from our actions. Thus, as Grotius obferves §, whatever is included in the nature of certain acts which are agreed upon, is tacitly comprehended in the agreement: or, in other words, every thing which is indifpenfably neceflary to give effect to the articles agreed on, is tacitly granted. If, for inftance, a promife is made to a hoftile army who have advanced far into the country, that they shall be allowed to return home in fafety, it is manifeft that they cannot De Jure Belli et Paris, lib. ii. cap. xvi. § 5. † Literal y, "laid down their iron or feel" hence the perfidious quibble on the word iron, which cannot be fo well rendered in English. Q. Fabius Labeo, according to Valerius Maximus. Livy makes no mention of the tranfaction. Annal. lib. zij. Lib. I. cap. xxiv. § 1. be be refused provifions; for they cannot return without them. In the fame manner, in demanding or accepting an interview, full fecurity is tacitly promifed. Livy justly fays, that the GalloGreeks violated the law of nations in attacking the conful 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 Perfia, fent to him to fue for peace. Sapor declared that he wifhed to treat with the emperor in perfon; and Valerian having confented to the interview without any fufpicion of fraud, was carried off by the perfidious enemy, who kept him a prifoner till his death, and treated him with the moft brutal cruelty t. Grotius, in treating of tacit conventions, fpeaks of those in which the parties pledge their faith by mute figns . But we ought not to confound thefe two kinds of tacit conventions: for that confent which is fufficiently notified by a fign, is an express confent, as clearly as if it had been fignified by the voice. Words. themselves are but figns established by custom: and there are mute figns which established cuftom renders as clear and as exprefs as words. Thus, at the present day, by displaying a white flag, a parley is demanded, as exprefsly as it could be done by the ufe of fpeech. Security is tacitly promised to the enemy who advances upon this invitation. CHAP. XVI. Of Securities given for the Obfervance of Treaties. YONVINCED by unhappy experience, that the faith of trea CON § 235. ties, facred and inviolable as it ought to be, does not al- Guaranty. ways afford a fufficient affurance that they fhall be punctually obferved, mankind have fought for fecurities against perfidy,-for methods, whofe efficacy thould not depend on the good-faith of the contracting parties. A guaranty is one of thefe means. When those who make a treaty of peace, or any other treaty, are not perfectly eafy with refpect to its obfervance, they require the guaranty of a powerful fovereign. The guarantee promifes to maintain the conditions of the treaty, and to cause it to be obferved. As he may find himself obliged to make ufe of force against the party who attempts to violate his promises, it is an engagement that no fovereign ought to enter into lightly, and without good reafon. Princes indeed feldom enter into it unless when they have an indirect interest in the obfervance of the treaty, or are induced by particular relations of friendship. The *Livy, lib. xxxviii. cap. xxv. The Life of Valerian in Crevier's Hiftory of the Emperors: Lib. iii. cap. xxiv. § 5. guaranty $236. It gives the guarantee no right to interfere unalked in the execution of a treaty. guaranty may be promifed equally to all the contracting parties, to fome of them, or even to one alone: but it is commonly promifed to all in general. It may alfo happen, when feveral fovereigns enter into a common alliance, that they all reciprocally pledge themselves to each other, as guarantees for its obfervance. The guaranty is a kind of treaty, by which affiftance and fuccours are promifed to any one, in cafe he has need of them, in order to compel a faithlefs ally to fulfil his engagements. Guaranty being given in favour of the contracting powers, or of one of them, it does not authorise the guarantee to interfere in the execution of the treaty, or to enforce the obfervance of it, unasked, and of his own accord. If, by mutual confent, the parties think proper to deviate from the tenor of the treaty, to alter fome of the articles, or to cancel it altogether, 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 oppofe it. Simply bound by his promise to support the party who fhould have reason to complain of the infraction of the treaty, he has acquired no rights for himfelf. The treaty was not made for him; for, had that been the cafe, he would have been concerned, not merely as a guarantee, but as a principal in the contract. This obfervation is of great importance: for care fhould be taken, left, under colour of being a guarantee, a powerful fovereign fhould render himself the arbiter of the affairs of his neighbours, and pretend to give them laws. But is true, that if the parties make any change in the articles of the treaty without the confent 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. As no nation is obliged to do any thing for another nation, Nature of which that other is herfelf capable of doing, it naturally follows the obligation it im that the guarantee is not bound to give his affiftance except where the party to whom he has granted his guaranty is of himself unable to obtain juftice. potes. 237. $238. The gua not impair the rights of a third ranty can party. If there arifes any dispute between the contracting parties refpecting the fenfe of any article of the treaty, the guarantee is not immediately obliged to affiit him in favour of whom he has given his guaranty. As he cannot engage to fupport injuftice, he is to examine, and to fearch for the true fenfe of the treaty, to weigh the pretenfions 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 to the rights of thofe who are not concerned in it,-the treaty being unjust in this point, the guarantee is in no wife bound to procure the performance of it; for, as we have fhewn above, he can never have incurred an obligation to fupport injuftice. This was the reason alleged by France, when, notwithstanding her having guarantied the the famous pragmatic fanction of Charles VI. fhe declared for the houfe of Bavaria, in oppofition to the heirefs of that emperor. This reason is incontestably a good one, in the general view of it: and the only queftion to be decided at that time, was, whether the court of France made a just application of it. Non noftrum inter vos tantas componere lites. I fhall obferve on this occafion, that, according to common ufage, the term guaranty is often taken in a sense somewhat different from that we have given to it. For inftance, most of the powers of Europe guarantied the act by which Charles VI. had regulated the fucceffion to his dominions ;-fovereigns fometimes reciprocally guaranty their respective ftates. But we fhould rather denominate thofe tranfactions treaties of alliance, for the purpose, in the former cafe, of maintaining that rule of fucceffion, and, in the latter, of fupporting the poffeffion of those ftates. pre The guaranty naturally fubfifts as long as the treaty that is the object of it; and in cafe of doubt, this ought always to be fumed, fince it is required, and given, for the fecurity of the treaty. But there is no reafon 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 faid of treaties in general, is equally applicable to a treaty of guaranty. $239 Duration of the guaran. ty. with furety. When there is queftion of things which another may do or§ 240. give as well as he who promifes, as for inftance, the payment of a fum of money, it is fafer to demand a fecurity than a guaranty; for the furety 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. and mort gages. A nation may put fome of her poffeffions into the hands of an§ 24T. other, for the fecurity of her promifes, debts, or engagements. Pawns, feIf the thus depofits movable property, fhe gives pledges. Poland curities, formerly pledged a crown and other jewels to the fovereigns of Pruffia. But fometimes towns and provinces are given in pawn. If they are only pledged by a deed which affigns them as fecurity for a debt, they ferve as a mortgage: if they are actually put into the hands of the creditor, or of him with whom the affair has been tranfacted, he holds them as pledges: and if the revenues are ceded to him as an equivalent for the interest of the debt, the tranfaction is called a compact of antichrefis. right over The right which the poffeffion of a town or province confers § 242. upon him who holds it in pledge, extends no further than to fe- A nation's cure the payment of what is due to him, or the performance of what the the promise that has been made to him. He may therefore re- holds as a tain the town or the province in his hands, till he is fatisfied; pledge. but he has no right to make any change in it; for that town, or that $243. How he is obliged to reftore it. § 244. How the may appro priate it to herfe.f. that country, does not belong to him as proprietor. He cannot even interfere in the government of it, beyond what is required for his own fecurity, unless the empire, or the exercise of fovereignty, has been exprefsly made over to him. This last point is not naturally to be prefumed, fince it is fufficient for the fecurity of the mortgagee, that the country is put into his hands, and under his power. Further, he is obliged, like every other perfo who has received a pledge, to preferve the country he holds as a fecurity, and, as far as in his power, to prevent its fuffering any damage or dilapidation: he is refponfible for it; and if the country is ruined through his fault, he is bound to indemnify the ftate that intrufted him with the poffeflion of it. If the fovereignty is depofited in his hands together with the country itself, he ought to govern it according to its conftitution, and precifely in the fame manner as the fovereign of the country was obliged to govern it; for the latter could only pledge his lawful right. As foon as the debt is paid, or the treaty is fulfilled, the term of the fecurity expires, and he who holds a town or a province by this title, is bound to restore it faithfully, in the fame state in which he received it, fo far as this depends on him. But to thofe who have no law but their avarice, or their ambition,-who, like Achilles, place all their right in the point of their fword *,--a tempting allurement now prefents itself: they have recourfe to a thoufand quibbles, a thoufand pretences, to retain an important place, or a country which is conveniently fitu ated for their purpofes. The fubject is too odious for us to allege examples: they are well enough known, and fufficiently numerous to convince every fenfible nation, that it is very imprudent to make over fuch fecurities. But if the debt be not paid at the appointed time, or if the treaty be not fulfilled, what has been given in fecurity, may be retained and appropriated, or the mortgage feized, at least until the debt be difcharged, or a juft compenfation made. The houfe of Savoy had mortgaged the country of Vaud to the cantons of Bern and Fribourg; and thofe two cantons, finding that no payments were made, had recourfe to arms, and took poffeffion of the country. The duke of Savoy, instead of immediately fatisfying their juft demands, oppofed force to force, and gave them ftill further grounds of complaint: wherefore the cantons, finally fuccefsful in the conteft, have fince retained poffeffion of that fine country, as well for the payment of the debt, as to defray the expenfes of the war, and to obtain a juft indemnification. $ 245. Finally, there is, in the way of fecurity, another precaution, Hoftages. of very ancient inftitution, and much ufed among nations,which is, to require hoftages. Thefe are perfons of confequence, delivered up by the promiling party, to him with whom he enters into an engagement, and to be detained by the latter until the performance of the promifes which are made to him. In this * Jura negat fibi nata, nihil non arrogat armis. HORAT. cafe, |