« PreviousContinue »
notwithstanding the transference of jurisdiction. Circumstances might justify such action on the part of Parliament, but where it can be avoided it seems best to do so. There could be no inconvenience in the county being an owner of property in the borough, but there might be serious inconvenience in the county exercising its jurisdiction on property in the centre of the town. But these minor matters must be dealt with individually. What we would deprecate, however, is the assumption that every such Bill which comes before Parliament is to be dealt with in the same way. There is a principle upon which Legislation proceeds, and that principle is not caprice. If it were the promotion of Bills, or the entering upon oppositions to Bills that are introduced, would be a lottery. While every case is to be decided upon the facts which arise in it, there are easily distinguished groups of facts, and to these certain principles of legislation are applicable. It has been our endeavour to trace these in connection with one important branch of Parliamentary Practice as applicable to Private Bills, and although the deduction of principle from these single instances of legislation has been difficult, we hope it has not been altogether unsuccessful. Some broad lines have been traced, which may be of some use to those who may be connected with similar Bills in future.
J. H. BALFOUR BROWNE.
V.-ON THE OBLIGATION OF TREATIES.*
THERE can be no doubt as to the general rule that
1 should be applied to Treaties. They are the solemn promises of nations, and must therefore be held binding, unless the contracting parties are released by mutual consent. We cannot in the interests of morality and peace insist with too much emphasis upon this. All jurists are of one mind in laying down the general principle on this question. “Treaties of every kind,” says Chancellor Kent, “when made by competent authority, are as obligatory upon nations as private contracts are binding upon individuals; and they are to receive a fair and liberal interpretation, and to be kept with the most scrupulous good faith.”+ But, like other general principles, this is susceptible of many modifications. Unless we ascribe moral infallibility to Governments it is conceivable that they may enter into contracts which it would be more virtuous and honourable to violate than to observe. Perhaps it would be possible, though it might be invidious, to cite instances illustrative of this from the records of history. But apart from such extreme and exceptional cases, it would be absurd to maintain that all treaties are of inviolable and perpetual obligation. Some are by their very nature temporary and provisional. Some become void by the mere course of events, like that by which Austria, Russia, and Great Britain guaranteed the cessions made by the King of Saxony to the King of France in 1815, and that by which Great Britain, Austria, Prussia, and Russia guaranteed the neutrality of Savoy in the same year. The same may be said of the Treaty made by Great Britain and France with Sweden and Norway in 1855, which was designed to protect the latter against apprehended aggressions from Russia, and which, I presume, lapsed with the Peace of Paris in 1856.
* Read before the Association for the Reform and Codification of the Law of Nations, at the Antwerp Conference, September, 1877. Revised and cor. rected by the Author.
+ Kert's Commentary on International Law (Abdy's Edition), p. 418.
Treaties also, sometimes, become impracticable and obsolete, because such vital changes take place in the public opinion of the nations who are parties to them, on the matters to which they relate, as to render their maintenance impossible. Mr. Mountague Bernard, in his able essay on “ The Obligation of Treaties,” furnishes some striking illustrations of this. He refers, for instance, to the celebrated Methuen Treaty, between Great Britain and Portugal, intended to exclude French wines from England, that the Portuguese might be induced to buy woollen goods in the English market only. This was founded on economical doctrines which have since been all but universally exploded, and though by its terms it was to last for ever, it has, of course, been utterly and justly disregarded. Still more decisive is the other case he mentions—the efforts made by our statesmen, from 1713 to 1750, by all kinds of bargains and engagements, to secure to England a monopoly of the Spanish slave trade, but the intense and passionate conviction of the iniquity of that odious traffic which took possession of the British mind has scattered all such bargains to the four winds of heaven.
And now we are told on the high authority of Dr. Bluntschli that it is an acknowledged part of the public law of civilised States that treaties which introduce, extend, or protect slavery, are ipso facto null, because they are contrary to the recognised rights of humanity.*
Treaties made under duress are also clearly invalid. There is, however, a great difficulty in deciding what may be accounted such duress as may justify a breach of covenant. When an engagement is extorted by violence or menace to the person of a negotiator, there can be little
* Le Droit International Codifié, p. 239.
difficulty in pronouncing it void. But when a nation or government has inflicted upon it hard conditions, after an unjust or aggressive war, it would be dangerous to say that it is under no obligation to observe those conditions. It is certain, however, that the general sentiment of mankind would be disposed to judge very leniently a violation of faith under such circumstances. Mr. Mill specifies as an illustration of this the treaties imposed by the first Napoleon, in 1813, on Austria and Prussia, and affirms that no impartial person blamed the two German powers for violating those treaties when opportunity offered. This, however, is a question of casuistry on which there will be differences of opinion. Mr. Bernard thinks "it is for the general advantage that a treaty extorted at the sword's point in an aggressive war should be held binding, not because unjust aggression is other than a bad and pernicious thing, but because, where no means of drawing a line exist, the necessity for mutual confidence and for general reliance on solemn engagements makes it impossible to admit the plea.”* But he also admits that, owing to the deep resentment and keen sense of injustice which they plant in the heart of a conquered people, "little reliance can in practice be placed on oppressive or pernicious treaties, and it is the knowledge of this which is the great check on them.”
But, after all allowances and reservations have been made for obsolete or imperfect or doubtful obligations, I am afraid it must be admitted that a very lax morality exists among nations, as to the observance of treaties, even where there is no reasonable ground for calling in question their substantial validity. The highway of history is strewn with the débris of broken treaties. If we examine the provisions of any of the most memorable of these compacts between Governments—such as the Treaty of Osnaburg, the Treaty of the Pyrenees, the Treaty of Ryswick, the Treaty of Utrecht, the Treaty of Vienna, &c., and compare these with the after events of history, and the present condition of Europe, we cannot but be struck with the vanity of human foresight, and the frailty of human faith.
* Lectures on Diplomacy, pp. 183-4.
We are inclined to think that the fewer treaties there are between nations the better for the interests of peace. Mr. Cobden had a maxim, which he frequently enforced. It was this :—The greatest possible contact between peoples, and the least possible contact between Governments: because the contact of peoples promotes peace, and the contact of Governments endangers peace. For this reason we contend that a parsimony in contracts between States is to be commended, because, in proportion as you multiply engagements do you multiply possible occasions for misunderstanding. Mr. Mountague Bernard proves that, compared with former times, there is a great diminution in these engagements between Governments. He refers to the Treaties of the Hanseatic League, which were far more numerous, minute, and circumstantial than modern commercial treaties, and to the intricate rights of succession, with their elaborate system of settlement, renunciations, and reservations; and to “the long train of leagues, counter-leagues, guarantees which succeeded one another in the annals of the sixteenth, seventeenth, and eighteenth centuries.” And in contrast with this he affirms, notwithstanding certain appearances which may mislead superficial observation, that the tendency of our times is not towards a busy diplomacy, or towards a multiplication of political engagements, but towards caution and parsimony in this respect. “I wish with all my heart,” he adds, " to see this tendency gather force. For in this sober virtue of statesmanship, scrupulousness in contracting engagements, resides the best security for the faithful performance of them." This appears to me, I own, an eminently wise reflection, in which I cordially concur. It will be found generally in private life, that in proportion as a man is