Part III. two crowns, and which are hereby renewed by the high contracting parties, and acknowledged to be of full force and effect."

§ 285. Casus fœderis

of the alliance.

Such was the nature of the compacts of alliance and guaranty subsisting between Great Britain and Portugal, at the time when the interference of Spain in the affairs of the latter kingdom compelled the British government to interfere, for the protection of the Portuguese nation against the hostile designs of the Spanish court. In addition to the grounds stated in the British Parliament, to justify this counteracting interference, it was urged, in a very able article on the affairs of Portugal, contemporaneously published in the Edinburgh Review, that although, in general, an alliance for defence and guaranty does not impose any obligation, nor, indeed, give any warrant to interfere in intestine divisions, the peculiar circumstances of the case did constitute the casus fœderis contemplated by the treaties in question. A defensive alliance is a contract between several States, by which they agree to aid each other in their defensive (or, in other words, in their just) wars against other States. Morally speaking, no other species of alliance is just, because no other species of war can be just. The simplest case of defensive war is, where our ally is openly invaded with military force, by a power to whom she has given no just cause of war. If France or Spain, for instance, had marched an army into Portugal to subvert its constitutional government, the duty of England would have been too evident to render a statement of it necessary. But this was not the only case to which the treaties were applicable. If troops were assembled and preparations made, with the manifest purpose of aggression against an ally; if his subjects were instigated to revolt, and his soldiers to mutiny; if insurgents on his territory were supplied with money, with arms, and military stores; if, at the same time, his authority were treated as an usurpation, and all participation in the protection granted to other foreigners refused to the well-affected part of his subjects, while

those who proclaimed their hostility to his person were Chap. II. received as the most favoured strangers; in such a combination of circumstances, it could not be doubted that the case foreseen by defensive alliances would arise, and that he would be entitled to claim that succour, either general or spic, for which his alliances had been stipulated. The wrong would be as complete, and the danger might be as great, as if his territory were invaded by a foreign force. The mode chosen by his enemy might even be more effectual, and more certainly destructive, than open war. Whether the attack made on him be open or secret, or if it be equally unjust, and expose him to the same peril, he is equally authorized to call for aid. All contracts, under the law of nations, are interpreted as extending to every case manifestly and certainly parallel to those cases for which they provide by express words. In that law, which has no tribunal but the conscience of mankind, there is no distinction. between the evasion and the violation of a contract. It requires aid against disguised as much as against avowed injustice; and it does not fall into so gross an absurdity as to make the obligation to succour less where the danger is greater. The only rule for the interpretation of defensive alliances seems to be, that every wrong which gives to one ally a just cause of war entitles him to succour from the other ally. The right to aid is a secondary right, incident to that of repelling injustice by force. Wherever he may morally employ his own strength for that purpose, he may, with reason, demand the auxiliary strength of his ally (s). Fraud neither gives nor takes away any right. Had France, in the year 1715, assembled squadrons in her harbours and troops on her coasts; had she prompted and distributed writings against the legitimate government of George I.; had she received with open arms battalions of deserters from his troops, and furnished the army of the Earl of

(s) Vattel's reasoning is still more conclusive in a case of guaranty. Liv. iii. ch. 6, § 91.

W.

DD

Part III. Mar with pay and arms when he proclaimed the Pretender; Great Britain, after demand and refusal of reparation, would have had a perfect right to declare war against France, and, consequently, as complete a title to the succour which the States-General were bound to furnish, by their treaties of alliance and guaranty of the succession of the House of Hanover, as if the pretended king, James III., at the head of the French army, were marching on London. The war would be equally defensive on the part of England, and the obligation equally incumbent on Holland. It would show a more than ordinary defect of understanding, to confound a war defensive in its principles with a war defensive in its operations. Where attack is the best mode of providing for the defence of a State, the war is defensive in principle, though the operations are offensive. Where the war is unnecessary to safety, its offensive character is not altered, because the wrongdoer is reduced to defensive warfare. So a State, against which dangerous wrong is manifestly meditated, may prevent it by striking the first blow, without thereby waging a war in its principle offensive. Accordingly, it is not every attack made on a State that will entitle it to aid under a defensive alliance; for if that State had given just cause of war to the invader, the war would not be, on its part, defensive in principle.

§ 286. Hostages for the execution of treaties.

The most recent example of a treaty of guarantee is that concluded between Great Britain and Japan in 1902, in which the contracting parties mutually guaranteed the territorial independence of China and Korea. They further undertook that if either were assailed by more than one foreign power on any question of dispute arising in Asia, the other would come to her assistance (†).

The execution of a treaty is sometimes secured by hostages given by one party to the other. The most recent and remarkable example of this practice occurred at the peace of Aix-la-Chapelle, in 1748; where the restitution of Cape Breton, in North America, by Great

(t) Vattel, liv. iii. ch. 6, § 90. Annual Register, 1902, p. 58.

Britain to France, was secured by several British peers Chap. II. sent as hostages to Paris (u).

$287.

tion of

Public treaties are to be interpreted like other laws Interpretaand contracts. Such is the inevitable imperfection and treaties. ambiguity of all human language, that the mere words alone of any writing, literally expounded, will go a very little way towards explaining its meaning. Certain technical rules of interpretation have, therefore, been adopted by writers on ethics and public law, to explain the meaning of international compacts, in cases of doubt. These rules are fully expounded by Grotius and his commentators; and the reader is referred especially to the principles laid down by Vattel and Rutherforth, as containing the most complete view of this important ubject (x).

tion.

§ 287a. The dispute between England and the United States respecting the Rules for settlement of the north-west boundary between the Union and Canada, interpretaturned on the interpretation to be put upon existing treaties. England submitted to the German Emperor, who was appointed arbitrator, the following rules of interpretation.

1. The words of a treaty are to be taken to be used in the sense in which they were commonly used at the time when the treaty was entered into.

2. In interpreting any expressions in a treaty, regard must be had to the context and spirit of the whole treaty.

3. The interpretation should be drawn from the connection and relation of the different parts.

4. The interpretation should be suitable to the reason of the treaty. 5. Treaties are to be interpreted in a favourable, rather than an odious sense.

6. Whatever interpretation tends to change the existing state of things at the time the treaty was made is to be ranked in the class of odious things (y).

$288.

Negotiations are sometimes conducted under the media- Mediation. tion of a third power, spontaneously tendering its good offices for that purpose, or upon the request of one or both of the litigating powers, or in virtue of a previous

(u) Vattel, liv. ii. ch. 16, §§ 245–261. (x) Grotius, de Jur. Bel. ac Pac. lib. ii. cap. 16. Vattel, liv. ii. ch. 17. Rutherforth, Inst. b. ii. ch. 7.

(y) Parl. Papers, N. America, 1873 (No. 3), pp. 6-9. Vattel, liv. ii. ch. 17, §§ 271, 285-287, 301; ch. 18, § 305; and see ante, §§ 176, 176a.

Part III. stipulation for that purpose. If the mediation is spontaneously offered, it may be refused by either party; but if it is the result of a previous agreement between the two parties, it cannot be refused without a breach of good faith. When accepted by both parties, it becomes the right and the duty of the mediating power to interpose its advice, with a view to the adjustment of their differences. It thus becomes a party to the negotiation, but has no authority to constrain either party to adopt its opinion. Nor is it obliged to guarantee the performance of the treaty concluded under its mediation, though, in point of fact, it frequently does so (z).

$ 288a. The Treaty of Paris, 1856.

§ 288b. Arbitration.

It was stipulated at the Treaty of Paris (1856), that "If there should arise between the Sublime Porte and one or more of the other signing powers, any misunderstanding which might endanger the maintenance of their relations, the Sublime Porte and each of such powers, before having recourse to the use of force, shall afford the other contracting parties the opportunity of preventing such an extremity by means of their mediation" (a). At a Conference of the powers who signed the Treaty of Paris, their Plenipotentiaries, in a protocol dated 14th April, 1856, expressed "in the name of their governments, the wish that States between which any serious misunderstanding may arise, should, before appealing to arms, have recourse, as far as circumstances might allow, to the good offices of a friendly power. The Plenipotentiaries hope that the governments not represented at the Congress will unite in the sentiment which has inspired the wish recorded in the present protocol" (b).

Nevertheless, it can hardly be said that wars have been less frequent since these declarations, even among the powers actually making them. The protocol was invoked to prevent the Dano-German war of 1864, and the Austro-Prussian war of 1866, but without effect. The Conference which met at Constantinople in 1876 attempted to settle the dispute between Russia and Turkey in a peaceable manner, but it failed to bring about such a result. Lord Granville, in 1870, appealed to France and Prussia to have recourse to mediation, but in vain (c). Even after hostilities had commenced, Her Majesty's Government assured France that "if at any time recourse should be had to their good offices, they would be freely given and zealously exerted” (d). Yet though wars have been unfortunately frequent of late years

(2) Klüber, Droit des Gens Moderne de l'Europe, pt. ii. tit. 2, § 1; ch. 2, § 160.

(a) Art. viii. See Hertslet, Map of Europe, vol. ii. p. 1255.

(b) Ibid. p. 1279.

(c) Annual Register, 1870. Pub. Docs. p. 204.

(d) Annual Register, 1871. Docs. p. 248.

Pub.