restricted access Chapter XII - Of Treaties of Alliance, and other public Treaties
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338 book ii: nations in relation to other states Since prescription is subject to so many difficulties, it would be very proper that adjoining nations should by treaty adopt some rule on this subject, particularly with respect to the number of years required to found a lawful prescription, since this latter point cannot in general be determined by the law of nature alone. If, in default of treaties, custom has determined any thing in this matter, the nations between whom this custom is in force, ought to conform to it (Prelim. §26). chapter xii Of Treaties of Alliance, and other public Treaties. The subject of treaties is undoubtedly one of the most important that the mutual relations and affairs of nations can present us with. Having but too much reason to be convinced of the little dependence that is to be placed on the natural obligations of bodies politic, and on the reciprocal duties imposed upon them by humanity,—the most prudent nations endeavour to procure by treaties those succours and advantages which the law of nature would insure to them, if it were not rendered ineffectual by the pernicious counsels of a false policy. A treaty, in Latin foedus, is a compact made with a view to the public welfare by the superior power, either for perpetuity, or for a considerable time. The compacts which have temporary matters for their object are called agreements, conventions, and pactions. They are accomplished by one single act, and not by repeated acts. These compactsareperfected in their execution once for all: treaties receive a successive execution whose duration equals that of the treaty. Public treaties can only be made by the superior powers,bysovereigns who contract in the name of the state. Thus conventions made between sovereigns respecting their own private affairs, and those between a sovereign and a private person, are not public treaties. The sovereign who possesses the full and absolute authority, has, doubtless, a right to treat in the name of the state he represents; and his engagements are binding on the whole nation. But all rulers of states§151. Law of treaties or of custom in this matter.§152. Nature of treaties.§153. Pactions, agreements, or conventions.§154. By whom treaties are made. chapter xii 339 have not a power to make public treaties by their own authority alone: some are obliged to take the advice of a senate, or of the representatives of the nation. It is from the fundamental laws of each state that we must learn where resides the authority that is capable of contracting with validity in the name of the state. Notwithstanding our assertion above, that public treaties are made only by the superior powers, treaties of that nature may nevertheless be entered into by princes or communities who have a right to contract them, either by the concession of the sovereign, or by the fundamental laws of the state, by particular reservations, or by custom. Thus the princes and free cities of Germany, though dependent on the emperor and the empire, have the right of forming alliances with foreignpowers. The constitutions of the empire give them, in this as in many other respects, the rights of sovereignty. Some cities of Switzerland, though subject to a prince, have made alliances with the cantons: thepermission or toleration of the sovereign has given birth to such treaties, and long custom has established the right to contract them. As a state that has put herself under the protection of another, has not on that account forfeited her character of sovereignty(BookI.§192), she may make treaties and contract alliances, unless she has, in the treaty of protection, expressly renounced that right. But she continues for ever after bound by this treaty of protection, so that she cannot enter into any engagements contrary to it,—that is to say, engagements which violate the express conditions of the protection, or that are in their own nature repugnant to every treaty of protection. Thus the protected state cannot promise assistance to the enemies of her protector, nor grant them a passage. Sovereigns treat with each other through the medium of agents or proxies who are invested with sufficient powers for the purpose, and are commonly called plenipotentiaries. To their office we may apply all the rules of natural law which respect things done by commission. The rights of the proxy are determined by the instructionsthataregivenhim: he must not deviate from them; but every promise which he makes in the terms...


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  • International law.
  • War (International law).
  • Natural law.
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