138 CHAPTER IV. OF TREATIES. TREATIES are contracts of independent states, for the benefit of one or more of the contracting parties (a). They may be considered in respect of, first, their different kinds; secondly, their duration; thirdly, their construction. First, treaties have been divided, according to the nature of their stipulations, into equal and unequal. Equal treaties are those whereof the stipulations are reciprocal, and the parties thereto in the same condition one with another in respect of their mutual obligations. Unequal treaties are those which place one party in a better condition than another (b). They have also been divided according to the character of the contracting parties, into personal and real (c): and, according to their subject-matter, into treaties of peace; of alliance; of guaranty; of commerce and navigation, and the like. Real treaties are contracts relating to national affairs, concluded by sovereigns in their civil capacities as representatives of the states, whose organs they are. Personal treaties are improperly called treaties, for they are not international contracts, but contracts of sovereigns in their natural capacities concerning the interests of themselves and their families (d). Personal treaties expire with the person who made them. (a) Heinecc. El. 207. (b) Grot. ii. 16, x. et seq.; Puff. viii. 9, vi.; Heinecc. El. ii. 207. (c) Grot. ii. 16, xvi.; Puff. viii. 9, vi.; Heinecc. ii. 211. (d) Heinecc. El. 211. Therefore treaties which purport to be perpetual, or are limited to a definite period, which may by possibility exceed the life of the contracting parties, or are contracted with a sovereign and his successors, or made for the benefit of the state, are necessarily real (e). Hence the argument of Catherine 2 in her controversy with Louis 15 respecting the renewal of the reversals given by the Empress Elizabeth, appears to be well founded. The French government contended that the recognition of the imperial title by Louis 14, and the reversals given by Elizabeth as the condition of that recognition, were personal; but it does not appear to have occurred to them, that in that case they expired with Louis 14. On the other hand, the court of St. Petersburgh contended that the imperial title being attached to the Crown of Russia, was in its nature real; and that it was therefore unnecessary to renew on a demise of the Crown the reversals given to each court when it first recognized that title, declaring that the established ceremonial should not be prejudiced by such recognition; for reversals must be of the same nature as the act to which they are accessary (f). A treaty of peace is an agreement between belligerent states to settle their differences by way of compromise. From this definition it appears that peace is in its nature perpetual, so that if it be limited to a period however distant, it is not peace, but a truce; for in such cases the differences that caused the collision are kept up, and the hostile mind continues (g). Such truces are resorted to when it is impossible to settle the terms of peace. Thus, in 1609, a truce for twelve years was concluded between Spain and the United Provinces: and, in 1684, a truce for twenty years between France and Spain, and between France and the German Empire (h). (e) Grot. ii. 16, xvi. ; Puff. viii. 9, vi.; Heinecc. El. ii. 211; Vatt. iv. 35. (f) Flass. vi. 354, et seq. (g) Heinecc. El. ii. 217; Vatt. iv. 19. (h) Flass. ii. 261—iv. 68, 69. Since a treaty of peace is in the nature of a compromise, equality in its conditions is not requisite to its validity, and no disparity, however enormous, is any ground of objection thereto. Victorious states usually dictate the terms of peace, and the vanquished prefer submission to ruin (i). The objection of duress does not lie against the validity of a treaty of peace on account of the harshness of its conditions (j). This objection has no place where force is lawful. Between nations war is as lawful a mode of enforcing rights, as judicial process between the members of a particular state. Nor can any distinction be supported on the ground that the terms of peace have been dictated by a state that had no just cause of war. For, besides that, neither party can assume to be judge in his own cause, and to decide the question of right between himself and his antagonist. A treaty of peace, like every other compromise, operates as a release of all wrongs, and a settlement of all differences to which it relates (k). It is an agreement to waive all discussion concerning the respective rights of the parties, and to bury in oblivion all the original causes of the war (1). Were the rules of an exact justice to be observed in it, each punctually receiving all that belongs to him, peace would be impossible. As in the most just cause we are never to lose sight of the restoration of peace, but are constantly to keep this salutary object in view: no other way is left than to compromise all the claims and grievances on both sides, and to extinguish all differences by the most equitable convention that the juncture will admit of (m). The doctrine of Puffendorf on this subject is wholly unworthy of his reputation, and shews that he neither understood the meaning of Grotius, whom he criticises; nor the rule of (i) Heinecc. El. 218. (j) Grot. iii. 19; Vatt. iv. 37. (k) Heinecc. El. ii. 219. (1) The Eliza Ann, 1 Dod 249; Heinecc. ibid. (m) Vatt. iv. 18, cited and approved Eliza Ann, 1 Dod. 249. the civil law, which he misapplies. In one part of his work he maintains, that a disadvantageous treaty cannot be rescinded on the ground of duress, where states engage in war without any attempt to accommodate their differences. He argues, that in that case war is in the nature of a wager, which implies a contract to abide by the event (n). It is characteristic of his mind, that he thinks it necessary to rest the obligation of express contracts contained in a treaty upon an implied contract, which has no existence in law or in fact. In another place he holds, that when a sovereign has offered to negotiate with an unjust aggressor, and is forced by the superiority of his arms to ratify a disadvantageous treaty of peace; such treaty may be rescinded on the ground of duress (o). How the injustice of the aggressor is to be ascertained he does not explain. Nor does he seem to be aware that the exceptio metûs causâ of the Roman lawyers was only applicable in cases of unlawful force. When force was lawful it was inapplicable, as where a magistrate extorted an engagement by lawful constraint: and between independent states war supplies the place of legal process (p). He is equally inaccurate in the example, which he cites from ancient history, for the purpose of proving that the observance of a disadvantageous treaty is only a matter of prudence and not of legal obligation. That example only proves, that in the opinion of the historian whom he cites, where one party has violated a treaty of peace the other is justified in seizing the first favourable opportunity of renewing the war (q). A treaty of peace usually contains amongst its earliest articles a stipulation of mutual amnesty. But this is unnecessary, for such a stipulation is necessarily implied from the (n) Puff. v. 9, iii. (0) Puff. viii. 8, i. (p) Heinecc. El. i. 109—ii. 219. (q) Heinecc. El. ii. 219. nature of such a treaty (r). It quiets all titles of possession arising out of the war, and releases all demands for wrongs committed in the prosecution thereof (s). The effect of a treaty of peace in curing a defective title extends beyond a captor to all who claim under him. Thus in the case of a captured vessel, the title of the former owner is completely extinguished by a treaty of peace. And if the vessel has been transferred to the subject of another country, he also will be entitled to the same benefit from the treaty, that the captor himself would have been, if he had continued in possession. As to the enemy, it would not be lawful to look back beyond the general amnesty to examine the title of his possession. If his property is transferred, the purchaser must be entitled to the benefit of the same considerations, for otherwise it could not be said that the intervention of peace would have the effect of quieting the possession of the enemy, because if the neutral purchaser were to be dispossessed, he would have a right to resort to the belligerent seller, and to demand compensation from him. Therefore the intervention of peace puts an end to the claim of the original proprietor, and it is no longer competent to him to look back to the enemy's title, either in his own possession or in the hands of neutral purchasers. Nor can a new war, though that may change the relations of those who are parties to it, affect neutral purchasers who stand in the same situation as before. Those purchasers, though no parties to the treaty, are entitled to the full benefit of it, because they derive their rights from those who are (t). Even as to wrongs committed before the war, it has been said, that when a treaty of peace has been concluded, the revival of any grievances arising before the war comes with a very ill grace grace and is by no means to be encouraged. Treaties (r) Grot. iii. 20, xvii.; Heinecc. ibid.; Vatt. iv. 20. (t) The Schoone Sophie, 6 Rob. 138. |