quite clear that the state of existing circumstances was an essential part of the motive for the contract. Vattel warns us to be very moderate and cautious in its application, for it would be a shameful perversion of it to take advantage of every change that happens in the state of existing affairs in order to disengage ourselves from our promises; that state of things alone, in consideration of which the promise was made, is essential to the promise. Heffter, Hautefeuille and Fiore hold that a treaty may be disregarded when it interferes with the national welfare of the people, whilst Bluntschli goes to the length of declaring* that: "Treaties of which the dispositions have come to be "in conflict with the necessary development of the consti"tution or private law of a State may be denounced by "that State." To Englishmen the doctrine in this extreme form need only be stated in its nakedness to be rejected by them; treaties would become so much waste paper. Its perniciousness is manifest when we consider that it would approve the action of Russia, for instance, in freeing herself, as she did in 1870, from the obnoxious provisions of the Treaty of Paris. The law of self-preservation is one thing, and the laws of interpretation are another. The former may at times supersede the latter; for, as we have said, it is the strength, and at the same time the weakness of international law that it recognises that it is not the sole rule of conduct between nations; but that is no reason why the two should be confused. As far as Law is concerned, a dispassionate view of all the circumstances that prompted a treaty can alone dictate when and how it can justly be modified, in view of what has transpired since its conclusion, and when it may be set aside altogether.

* Sec. 458. Even if this statement be meant as a maxim concerning, not in terpretation, but continuance of obligation, it appears to me to be far too sweeping.

Phillimore* cites an interesting illustration from the case of the Russo-Dutch loan, which incidentally bears on another question: how far a treaty is voidable on the ground of a breach of some part of it. During the Revolutionary war, Great Britain took possession of the Dutch Colonies to save them from falling into the hands of the French. In 1814 she honourably restored them, retaining only the Cape of Good Hope, Demerara, Berbice and Essequibo; in consideration for which cession we agreed to pay a sum of six million pounds, three million of which was to be expended for the purpose of discharging certain pecuniary obligations of the Netherlands to Russia. The manner of payment was regulated by the Convention of May 19th. 1815, between Great Britain, the King of the Netherlands and Russia. The preamble expressed that the arrangement was come to because His Majesty the King of the Netherlands was desirous "upon the final re-union of the Belgic provinces with Holland to render the allied Powers, who were parties to the treaties concluded at Chaumont on March 1st, 1814, a suitable return for the heavy expenses incurred by them in delivering the said territories from the power of the enemy." And it goes on to recite that the Powers had agreed to waive their claims in favour of Russia. By Article 5 it was provided that it should be understood that such payments should cease upon the Belgic provinces being severed from the Netherlands, but were not to cease merely in case of war.

In 1831, European affairs had undergone such a transformation, that, with our active support, Belgium was separated from Holland, and we then became, according to the letter of the treaty, absolved from further payments of the loan. But the true aim of that Convention, as was manifest from Lord Castlereagh's despatches to Lord Liverpool antecedent to its conclusion, was undoubtedly *Vol. II., chap. viii., sec. 64-95.

to make the policy of Russia the same as our own with regard to Holland and Belgium; and this object, it was thought in 1815, could best be secured by binding Russia with pecuniary penalties to uphold their union. In 1830 came the separation, but Russia was so averse to it that she had actually offered to send 60,000 men to prevent it. We were, therefore, bound in honour to continue the instalments, and a new Convention was accordingly concluded in November 1831. Its preamble states that "agreement "does not exist between the letter and spirit of the treaty "of 1815, but the objects of that treaty are to afford Great "Britain a guarantee that Russia would, on all questions concerning Belgium, identify her policy with that which "the Court of St. James' had decreed the best adapted for "the maintenance of a just balance of power in Europe, and, on the other hand, to secure to Russia the payment "of a portion of her old Dutch debt, in consideration of "the general arrangements of the Congress of Vienna, to "which she had given her adhesion-arrangements which "remain in full force. Their Majesties, being desirous "that this same principle should continue to govern their "relations with each other," stipulated that Great Britain should continue her payments, whilst Russia, on her side, bound herself to contract no new engagement with respect to Belgium without our previous consent. In 1847 the discreditable Convention was entered into between Russia, Prussia and Austria, by which the free city of Cracow was incorporated with the Austrian dominions, though it was part of the arrangements of the Congress of Vienna that its liberty should be sacredly preserved. A motion was brought forward in our House of Commons* "that, Russia having withdrawn her adhesion to these arrangements, the payments from this country on account of the loan should be suspended." The Government, however,

* Hansard, vol. xc., 879.

resisted the motion on the ground that the payments were made in consideration, amongst other things, of the cession of the Dutch colonies, of Russia's past exertions to keep Holland and Belgium united, and of her subsequent efforts to keep them separated. A similar motion* made in 1854 met with like success; the provocation this time was that Russia had violated the Treaty of Vienna by neglecting the duty imposed upon her thereby of maintaining the necessary works on the Channel of the Danube at the mouth of the Sulina branch. There can be no doubt that in each case our Government acted rightly, for the observance of the arrangements of the Vienna Congress was only a subsidiary ground for the payment of the instal

ments.

Amongst the rules of interpretation given by the old jurists, there are one or two which I have purposely omitted, because they seem unsound or unnecessary. Such is the division made by Grotius and Puffendorf of promises, into favourable, odious and mixed. Favourable promises are stated to be those which give equality of advantage and mutual benefit: odious, those where the burden falls entirely on one side. The former are to be given a wide, the latter a narrow construction; mixed promises come in between. Barbeyrac rejects this classification, but Vattel adopts and extends it. Amongst odious things he classes whatever tends to change the present state of things; and amongst favourable things, whatever tends to preserve it. Hall retains a portion of this rule of construction, when he says that a treaty must be construed so as to give effect to the fundamental legal rights of States, and that whenever, or in so far as, a State does not contract itself out of its fundamental legal rights by express language, a treaty must be so construed so to give effect to those rights. So far as this doctrine has any meaning, it seems already contained *Ibid, August, 1854.

in the rule we have mentioned above, that he who promises must in the first instance be presumed to have given nothing more than that which he is expressly stated to give.

The jurists also state that the effects of a treaty may be used as a means of interpretation. Therefore, in the case of an ambiguity, if one construction would act more equitably than another it is to be adopted. But the value of such a rule is almost nil, for it is simply an argument from probability, and no great probability, since treaties are, as often as not, one-sided. A presumption is raised as to the state of the intention of the parties, which can at once be rebutted by proof that it was different. Moreover, there is a possibility which we must not leave out of sight: the effects of a treaty may be entirely different from what the parties intended. An example of this is furnished by Mr. Carman Randolph*, in the case of Cuba. He points out that, from the Cuban standpoint, the island is in a singular position-severed from Spain-not joined to the United States-not the territory of a Cuban State; for, internationally speaking, there exists no State of Cuba. By the first article of the Treaty of Paris, Spain relinquished all claims of sovereignty and title to Cuba. And Congress does not wish, by legislating for it, to eat its own words of April 20th 1898, disclaiming any intention to exercise sovereignty, jurisdiction or control over the island. This curious state of things, we may be sure, was never intended, and it therefore follows that the effect of a treaty is a very unsafe guide to its interpretation. Mere equity and reasonableness of effect are in themselves no criterion, save in so far as they afford a means of arriving at the actual intention of the parties at the time they entered into the compact.

*"Some Observations on the Status of Cuba" in the Yale Law Journal for June, 1900.