sion does reside exclusively in the treaty-making power under the Constitution of the United States, although a sound discretion would forbid the exercise of it without the consent" of the interested state. But it might be asked, whether the treatymaking power is not necessarily limited by the existence of states, parties to the confederation, having control for most purposes over their own territory. Could the treaty-making power blot out the existence of a state which helped to create the union, by ceding away all its domain? Such fearful power was never lodged in the general government by the Constitu tion and could never be lawfully exercised in the ordinary contingencies of the confederation. Only in extreme cases, where the treaty-making power is called upon to accept the fact of conquest, or to save the whole body from ruin by surrendering a part, could such an exercise of power be justified. (Comp. S$ 52, 153.) by foul means not tion. $ 100. 3. A treaty, in which the treaty-making power flagitiously Treaties obtained sacrifices the interests of the nation which it rebinding on a na- presents, has no binding force. In this case the treacherous act of the government cannot be justly regarded as the act of the nation, and the forms ought to give way to the realities of things. Moreover, the other party to the treaty ought not to draw advantage from the iniquity of an agent whom it has itself tempted. What, for example, was the cession worth, which the king of Spain made of his rights to the crown to Bonaparte in 1807, and who could think himself bound by such an act, even if it lay within the competence of the sovereign? ed by false state 4. Treaties obtained by false representations, or by force, Nor those obtain are not binding. The rule for nations here is the ments or by force. same which in all law holds good for individuals. In the former case, the consideration which led to the making of the treaty did not exist, but a false statement was purposely made in order to bring about the contract. In the latter case, the engagement was not the free act of an independent will. But this rule will not invalidate a treaty, where one of the parties acts under a wrong judgment, or has a false impression. for which the other is not responsible. For the consideration is not real objective good, but the expectation of good, which may not be realized. Having, under the sway of this expectation, influenced the conduct of the other party, he has brought himself under obligation. Thus, if a garrison capitulates under a mistake as to the force of the besieging army or the probability of relief, and discovers the mistake before the capitulation takes effect, this is still binding. Again, when we speak of force invalidating a treaty, we must intend unjust duress or violence practised on the sovereign or the treaty-making agent. A disadvantageous treaty made to prevent further conquest, or to release the sovereign or others from lawful captivity, is as binding as any other; for a fair advantage of war has been used to obtain terms which otherwise would not have been conceded. Thus when Pope Paschal II. was taken prisoner in 1111, by the Emperor Henry V., or John of France, in 1356, by Edward III. of England at Poitiers, or Francis I. in 1525, at Pavia, by the officers of Charles V., the treaties made to procure their liberty were respectively binding, so far as nothing immoral was involved in their articles, or the persons making the treaties did not transcend their powers. In the case of Paschal, the feeling of the age, or at least of the stricter party in the church, regarded the practice of lay investitures, to which he gave his consent, as something irreligious; and it was claimed that he was under compulsion when he performed the act. But why, if he renounced his engagement as constrained and unlawful, did he not return to his imprisonment? John, with true feudal honor, when a prince of his blood violated his stipulation, put himself again into the hands of the English king; while Francis, unlike his ancestor, and unlike St. Louis, who kept his faith with the Saracens, given almost in fear of death, neither stood to his engagements, nor went back into captivity at Madrid. In the case of Francis, it may be doubted whether the estates of Burgundy could be transferred without their consent to another sovereign: feudal law, not then extinct, would not give such power into the hands of the suze rain without the vassal's concurrence. But why did he make a treaty if not free, and why, if not able to execute it, did he not restore all things, as far as in him lay, to their condition anterior to the treaty ?* unlawful act not binding. § 101. 5. A treaty can never obligate to do an unlawful act, for Treaties to do an neither party can give consent to do evil in expectation of a good to be received. Thus a treaty contradicting a prior treaty with another power is void, and if observed, an act of injustice. Thus, too, a combination to commit injustice, for example, to put down liberty or religion, or to conquer and appropriate an independent country, as Poland, is a crime which no formalities of treaty can sanction. This rule, it is true, is not one of much practical application to the concerns of nations, for beforehand, most of the iniquities of nations are varnished over by some justifying plea, and the only tribunal in the case is the moral indignation of mankind, while, after the crime has triumphed, mankind accept the new order of things, rather than have a state of perpetual war. But the rule is useful, so far as it sanctions the protests of innocent states, and their combinations to resist the power and danger of combined injustice. $102. Treaties are of various kinds. They may define private relations, like commercial treaties, or political reKind of treaties. lations. They may be temporary, or of unlimited duration, and among the latter, some, or some provisions which they contain, may be dissolved by war, and others, intended to regulate intercourse during war, may be perpetual. They may secure co-operation merely, as treaties of alliance, or a closer union, as confederations, or the uniting of two or more states into one. All the intercourse of nations may come under the operation of treaties; and they may reach to the explanation ‚r alteration—as far as the parties are concerned-of interna * Comp. Flassan, Diplom. Française, I. 323, seq., and Ward's Hist. II. 361. tional law. Hence the importance of collections of treaties, and of the history of diplomatic intercourse. Besides these leading divisions, treaties may differ from one another in many ways. They may, for instance, be made by the treaty-making powers in person or by their agents, may be open or secret or with articles of both kinds, may be absolute or conditioned, may contain promises of performance on one or on both sides, may be attended or not with a pecuniary payment, be revocable at the will of either party or irrevocable. They may be principal or accessory, preliminary or definitive. They may be simple, consisting of one engagement, or contain many articles, some leading, others subordinate. They may contain new provisions, or confirm or explain old treaties. Thus some of the more important treaties, those of Westphalia and Utrecht, have been confirmed mar times over.* $103. W rd Treaties of alliance may be defensive or offensive, or both. Defensive treaties, as generally understood, are Treaties, 1. of all made to secure the parties to them against aggres- liance. sion from other states. They may, also, aim at the maintenance of internal quiet, or of neutrality amid the conflicts of neighboring powers. To attempt to gain any of these objects is not necessarily contrary to the law of nations or to natural justice. Mutual aid, indeed, against the disturbers of internal quiet, may secure an absolute government against popular revolutions in favor of liberty (§ 41), but if a confederation or alliance may secure to its members the enjoyment of free institutions, there is no reason, as far as international law is concerned, why institutions of an opposite kind may not support themselves in the same way. The law of nations, we have seen, shows no preference for any one kind of government, but acknowledges all established governments as having a right tc exist. Treaties of neutrality are reciprocal engagements to have no part in the conflicts between other powers,--to remain * Comp. Klüber, §§ 146, 147. at peace in an apprehended or an actual war. They are suggested by, and prevent the evils of that interference of nations in each other's affairs, for the preservation of the balance of power or the safety of the parties interfering, which is so com mon in modern history. Alliances at once offensive and defensive have one of the usual and more important characteristics of confederations. Sometimes a treaty-engagement is made to do a certain. specific act of limited extent in contemplation of a possible future state of war, as to supply a certain amount of money or number of troops. The party entering into such a stipulation, if the agreement was general, and had no special reference to a particular war with a particular nation, is held not to have ken a belligerent attitude.* Much, however, would depend r on the amount of assistance promised, and it stands open to e party injured by such aid afforded to his rival, to regard it 11 an act of hostility or not, as he may think best. C A treaty of alliance can bind the parties to no injustice § 101), nor justify either of them in being accessory to an act of oad faith on the part of another. Hence a defensive, still more an offensive alliance, can only contemplate, if lawful, the warding off of intended injustice. Where justice is doubtful, the benefit of the doubt, it is held, ought to accrue to the ally. It is held, also, that in cases where compliance is plainly useless, or would be ruinous, an ally is not obliged to aid his friend. With regard to defensive alliances, the question may arise, what constitutes a defensive war, since certain wars have been defensive in spirit, though offensive in form. The best answer seems to be, that clearly menaced injustice may be prevented by an ally; that he ought not to wait until the formality of striking the blow arrives, but fulfil his obligation by giving aid, as soon as it is needed. Thus a defensive alliance scarcely differs from a justifiable offensive one. Vattel, III. § 97; Wheaton's El. III. 2. § 14. |