The principal questions respecting offensive and defensive alliances have arisen in reference to negotiations for peace. The rule upon this subject seems to be perfectly clear. An ally is not justified in entering upon clandestine negotiations with the common enemy. But he is not bound to carry on war to gratify the rancour or ambition of his confederates, when reasonable terms of accommodation can be procured for all parties. In such case all that good faith requires is, that he should communicate to his allies the commencement and progress of his negotiation, and reserve to them the option of becoming parties to the treaty (p). Treaties of alliance often contain special provisions for such contingencies. Thirdly. Treaties of commerce and navigation are necessary to secure as a matter of right that commercial intercourse, which without treaty is merely precarious (q). By the common law of nations every prince or state has the right to exclude strangers from its territories, to prohibit any kind of commerce, and, consequently, to impose any conditions short of prohibition. The purpose of treaties is, to provide for the right of importing and exporting commodities; for the safety and convenience of merchants; to ascertain the amount of customs and duties; and to establish and define the jurisdiction of consuls. Fourthly. Treaties of guaranty are where a prince becomes the guarantee of a treaty, or of the territories of another. Where a treaty is guaranteed, the guaranty is entire, and is subject to the same conditions as the treaty to which it has reference. Hence if a party to the treaty do any thing in breach of his engagements therein expressed, that is a renunciation on his part of the benefit of the treaty, and a consequent renunciation of the guaranty (r). A guarantee is not authorized (p) Puff. viii. 9, v.; Vatt. iv. § 16. (9) Heinecc. El. ii. 208 (n). (r) Ans. to Pruss. Mem., 1 Coll. Jur. 157. to interfere to compel the performance of a treaty, unless required by a party guaranteed. For the contracting parties are at liberty to dispense with any of the articles of a treaty, or to vary its stipulations, or to annul it at their pleasure by mutual consent. But in such case the guaranty is discharged, for the treaty is no longer that which was guaranteed (s); and where a guaranty is entire it can make no difference, whether a renunciation of the treaty be by mutual consent, or by intendment of law. A guaranty cannot affect the rights of those who are strangers to the treaty (t). Cardinal Fleury attempted to take advantage of this principle, when France in 1741 by concluding an offensive alliance with the King of Bavaria violated its guaranty of the pragmatic sanction contained in the sixth of the preliminary articles between France and Austria, signed at Vienna on the third of October, 1735, and confirmed by the tenth article of the definitive treaty, signed at Vienna on the eighth of November, 1738 (u). The historian of French diplomacy stigmatizes the violation of the pragmatic sanction as a stain upon the memory of Louis 15, and an act as impolitic as it was unjust (v). When the subject of guaranty is a treaty of peace, the guaranty extends to all violations thereof by any of the contracting parties, whether by aggression or by breach of any of its special articles; but it does not extend to a war arising out of any new occasion of difference that has sprung up after the conclusion of the treaty (w). Thus the reciprocal guaranty of the peace of Westphalia provides, that each and all of the contracting parties shall maintain and uphold each and every article of the treaty; (s) Vatt. ii. § 236. (t) Vatt. ii. § 238. (u) Koch. tab. de Rev. ii. 118; Flass. v. 94, et seq. (v) Flass. v. 130, 142, 165. (w) Puff. viii. 8, vii.; Heinecc. El. 209 (n), et vid.; Grot. iii. 20, xxvii., et seq.; Vatt. ii. § 42. and that, if it shall happen that any of its articles shall be violated by any one, the injured party shall endeavour to obtain redress amicably or by process of law; but if redress cannot be so obtained within the term of three years; each and all of the contracting parties shall be bound at the request of the party injured to take arms in his defence, and to unite their forces with his (r). Where territories are guaranteed, the guaranty does not extend to wars provoked by the aggression of the party guaranteed. Such a guaranty is in the nature of a defensive alliance, and is governed by the same rules. Secondly, Of the commencement and duration of treaties. Treaties are instruments in writing signed by ministers empowered for that purpose, and ratified by their sovereigns. The common form of powers necessarily implies, that treaties shall be in writing. Plenary powers convey an authority to ministers to agree, conclude and sign, and contain an engagement to ratify what they have signed. No variation of the law of nations can be introduced except by a solemn treaty in writing properly authorized and authenticated. The memory of it could not otherwise be preserved, and the parties interested and their courts of law could not otherwise take notice of it (y). The articles of a treaty cannot be discharged or varied by verbal declarations or agreements of ministers in the course of negotiations. What is agreed to at one period of a negotiation may be varied by agreement at another. The authority of plenipotentiaries is to agree, conclude and sign. The only evidence of what has been agreed to and concluded is the treaty itself, authenticated by their signatures. The necessity of ratification would furnish no security for sovereigns; if, when they had ratified one set of articles contained in a treaty, they could be bound by another verbally concluded by their (x) Treaty of Osnabruck, art. xvii. (y) Ans. to Pruss. Mem., Coll. Jur. i. 147; Grot. ii. 16, xxx. ministers. Hence has arisen the practice of secret articles, where sovereigns wish to avoid the publication of any stipulations of a treaty which they have ratified. Yet Louis 14 contended, that the renunciation of Maria Theresa contained in the treaty of the Pyrenees was not binding, because it had been agreed and concluded by Cardinal Mazarin, upon the representation of the Spanish minister, Don Pedro Coloma; that it was a mere form. Coloma's representation amounted to no more than an expression of his opinion, that such articles are commonly rendered of no effect by the perfidy of princes. If it had amounted to an express agreement concluded between himself and Mazarin, such verbal agreement could not have varied the obligations of Louis 14 imposed by the treaty, which he had ratified. Flassan pronounces the futility of this and other arguments employed by Louis 14 to excuse his dishonesty, and declares the act of enforcing the claims of Maria Theresa to be a manifest violation of the treaty of the Pyrenees (z). The general powers of ministers are understood to be controlled by their special instructions (a), and this is implied in the promise of ratification contained in all powers. For if the signatures of ministers plenipotentiary were binding without ratification, such promises would be nugatory and ratification would be inoperative (b). By the usage of nations which has long prevailed a treaty is not binding until it is ratified (c); but when ratified it has a retrospective operation so far as it contains retrospective stipulations. Wicquefort, who maintains a contrary opinion for no other reasons apparently, but that treaties are often acted upon in confidence of ratification, and that sovereigns are bound in conscience to ratify that which has been concluded by a minister, who has not gone beyond his instructions; yet admits, that a treaty is (z) Flass. Dip. Franc. iii. 347 to 351. (a) Wicq. i. p. 381; Bynk. Q. J. P. ii. vii. (c) Bynk. ibid. not complete until it is ratified, and does not explain how an instrument can be binding before it is complete (d). Upon abstract principles, either in public or private transactions the acts of those who are vested with a plenary power are binding upon their principal. But as this rule was found in many cases to be attended with inconvenience, the later usage of states has been to require a ratification, although the treaty may have been signed by plenipotentiaries. According to the practice now prevailing a subsequent ratification is essentially necessary, and a strong confirmation of the truth of this position is, that there is hardly a modern treaty in which it is not expressly so stipulated; and therefore it is now to be presumed, that the powers of plenipotentiaries are limited by the condition of a subsequent ratification. The ratification may be a form, but it is an essential form, for the instrument in point of legal efficacy is imperfect without it. A ratification by one power alone is insufficient, it must be mutual; and the treaty is incomplete until it has been reciprocally ratified (e). An agent, says Vattel, is bound by his instructions; but all the engagements, that he contracts within the terms of his commission and the limits of his powers, are naturally binding upon his principal. In modern times, in order to avoid all danger and difficulty, princes reserve to themselves power to ratify what their ministers have concluded in their names. modern usage is to put no faith in treaties, until they have been ratified. But a sovereign is bound in honour to ratify a treaty concluded by his plenipotentiary, if he has not exceeded his instructions (f). The signatures and forms that are necessary to ratification depend upon the constitution of each particular state (g). The validity of a treaty is not affected by (d) Wicq. ii. p. 378. (e) Eliza Ann, 1 Dod. 248. () Vatt. ii. § 156. The (g) Grot. ii. 6, iii. xi.—ii. 14, xii. 6; Puff. viii. 5, ix. x. xi.; Vatt. ii. § 214, |