legally or juridically binding obligation, for the direct and lasting fulfilment of that which has been promised or undertaken. For that purpose, however, the state alone possesses in itself the means of enforcement: for individuals, in international law, such compulsory or coercive power is wanting. The treaty has here, therefore, only the declared natural force and signification. It finds a particular support only in the reciprocal interests of states, through its constant mediation, to remain in traffic or commerce with other states, and to acquire new rights. It receives a still greater guarantee in a system of states, such as the European is, which, in itself, rests upon reciprocity and an agreement of wills; to which, consequently, a state can only belong if it recognises those fundamental principles of the binding power of treaties which are consistent with the interests of all, and without which, generally, no confidence or credit, no commerce, is conceivable. Certainly, therefore, the treaties of nations amount to something, even although they may want the sanction of private law. Pacta sunt servanda, nevertheless, still remains a chief fundamental rule of the law of nations. Only circumstances give to conventional international law a certain singularity or peculiarity; there is in it, too, a great looseness or laxity of fulfilment."

Again, while he remarks that states, like individual men, spring up, grow to manhood, become aged, decay, and disappear, Professor Heffter very properly qualifies the doctrine of the earlier international jurists, Grotius and Pufendorff, that "res publica est æterna, universitas non moritur," by observing "that the state is immortal only in its conception, (und als motif,) and at the most

in the sense that it is not dependent upon the physical existence of certain determinate individuals, as members, but exists as long as members are reproduced in it.”* Indeed, we do not think that, according to experience and in correct language, the quality of immortality can be predicated of a state; admitting, however, the universally recognised maxim, that a nation has a permanent or indefinitely perpetual existence, and continues, in the eye of law, to be the same identical nation, to have the same capacity and enjoyment of rights, and the same liability and subjection to obligations, notwithstanding the complete change in the individual members composing it, which it may have undergone in the course of successive generations; and notwithstanding even extreme changes in the form of its internal government.

But does it follow from this, that rights acquired, or obligations undertaken by treaties in general, if the term of their duration be not specially limited, or if they do not contain conditions or stipulations fixing that point, last in perpetuity for centuries to come, notwithstanding the lapse of time and non-exercise, and notwithstanding supervening events changing the circumstances and relative position of the contracting parties? Is the convention, that the stipulations and engagements contained in the treaty shall be binding in perpetuity, unless the parties mutually agree to retract or modify them, valid and effectual in law? Are the stipulations of "peace and amity for ever," frequently inserted by diplomatists in treaties of peace, of any avail in law, or mere matter of form and surplusage? Are they not rather insignificant,

* "Das Europäische Völkerrecht der Gegenwart," § 24. Berlin, 1844.

if not absurd? Is the following doctrine of the recent international jurist, the Portuguese ex-minister for Foreign Affairs, well founded?" Treaties bind nations only so long as the principle upon which their validity rests continues to exist; that is to say, so long as, from the conscientious and exact fulfilment of the obligations which it imposes on each of the two parties, there does not result to either lesion, or damage, or loss, which the one cannot avoid, and for which the other cannot indemnify it. According to the internal civil law of states, this is the case of rescinding, bond fide, every contract between individuals; and when they cannot agree between or among themselves, the intervention of the law of the state is not called upon by them to annul the contract, which no authority could annihilate, but to declare whether, in fact, the lesion or damage alleged by the one of the two parties which asks or requires to be allowed to resile has actually taken place."

In his exposition of the duration and termination of public treaties, Professor Heffter, in section 99, p. 174-6, gives the following enumeration of the modes in which the obligations of treaties legally expire or become extinct :-"First, through actual fulfilment, when they proceed upon certain acts of performance, to be at once completely executed, not continuing or enduring. Secondly, through the insertion of a resolutive condition; and through the lapse of the previously arranged period. Thirdly, through a uni-lateral warning or intimation, duly given and made known, when there was a provision to that effect. Fourthly, through a renunciation or aban

* M. Pinheiro Ferreira, “Notes sur Droit des Gens Moderne de l'Europe, par Martens," vol. i. p. 390.

donment, duly declared by the party who alone is entitled to insist for performance. Fifthly, through the reciprocal revocation or abrogation of a bi-lateral treaty, which itself no third party can prevent. Sixthly, through the total destruction of the object, upon which the contract proceeds, so far as therein no fault or blame is imputable or attaches to any party. Seventhly, through the extinction or annihilation of the subject or party entitled or bound by the contract, without another legally, or according to the analogy of the treaty, coming in his place. Finally, there arises or takes place, if not always a complete extinction or annihilation, yet a suspension of the obligations of treaties, through the occurrence or intervention between the contracting parties of a general or complete, not merely a partial state of war; unless the treaty be expressly concluded with a view to the duration or period of war-a consequence which will be justified in the sequel, by a nearer examination of the right import or meaning of war. At the same time every treaty, in itself extinguished, may be again revived by an express or tacit renewal, only the renewal is here itself the rule for the future, and is, therefore, in all respects a valid treaty, binding in its provisions and stipulations. A tacit renewal must accordingly also have for itself a completely discernible and unequivocal mark or criterion, by which to judge and ascertain that it is the view of the parties to allow the earlier treaty to continue in force generally, and in all its arrangements; otherwise a continued performance and acceptance of what might have been demanded or required, from the earlier treaty, is only to be considered as a single factum existing for itself."

In illustration of the last-mentioned mode in which

treaties are terminated, viz., by general and complete hostilities, Professor Heffter proceeds as follows:-*

"The next effect of the breaking out of a war is the actual suspension of every juridical relation during peace, and of all intercourse and commerce between the belligerent powers; for the judicial administration and enforcement of justice is now no longer possible; the war claims for itself all the means, faculties, and energy of the nation.

"On the other hand, it cannot be maintained, at least not according to the principles of the more recent law of war, that the war juridically, or legally, dissolves or extinguishes every legal bond or tie between the contending parties, and leaves such legal bonds or ties to arise of new, as if for the first time, through the succeeding peace; for, although every war puts at stake or in hazard or danger the existence of a state, the mere possibility of ruin or destruction is still not equivalent to actual destruction itself. Farther, those obligations from treaties, too, which are expressly undertaken with a view, or extended, to the case of a war, have an enduring validity so long as no party is guilty of any injurious act, and thereby entitles the other to abrogate absolutely the obligation, or at least to suspend the same by way of reprisal; for, till this takes place, there exists presumptively a unity of wills, the foundation of the obligations of treaties."

66

Further, in section 181, p. 304, Professor Heffter thus lays down the law :—“ All obligations from treaties, of which the fulfilment was at first only to take place in future, in which also a change of will was still possible, in

* "Das Europäische Völkerrecht," § 122, p. 206.