in time of war, beyond what may be necessary for the security of his person, is illegal.

If the giver of the Hostage fail in fulfilling his pledge, it is lawful for the receiver to retain the hostage; but wholly unlawful, as the practice once was, to put him to death (q). If the hostage die, the giver is not, except in the case of an express stipulation, bound to replace him. The receiver has been contented with the surety, of the nature of which he was aware (r) at the time of accepting it.

A more common and as it should seem a better pledge, is the retention of a place or fort until such time as the condition of the Treaty be fulfilled. This pledge or pawned thing may be what is legally called moveable property (donner des gages). Poland once placed her Crown Jewels in the hand of Prussia. Or the pledge may consist of immoveable property (donner en engagement): they may not be actually placed in the possession of the creditor State, but assigned over by some instrument without actual delivery, which hypothecates them; but this is an unusual transaction between States.

The State which holds the pledge is bound to preserve it in good condition, but may, if the stipulated time elapse without the payment of the debt or the fulfilment of the condition, appropriate it. The House of Savoy hypothecated the Pays de Vaud to the Cantons of Berne and Freybourg, and on non-payment of the debt they forcibly seized and retained the territory (s).

Having disposed of that species of guarantee which relates to hostages, pledges, and hypothecations, we have now to consider that kind of security which is more usually comprised under the term Guarantee.

(q) Vattel, 1. ii. c. xvi. ss. 245-61.
(r) Ib. s. 255.

(8) Günther, ii. 154.

Vattel, 1. ii. c. xvi. ss. 241-244.
Klüber, s. 156.

CHAPTER VII.

TREATIES--GUARANTEE.

LVI. (a) TREATIES may concern not only the contracting parties (b), but third parties who may or may not be literally contracting parties in the first instance, but the protection of whose interests, or the maintenance of whose (c) status, may be the object of the Treaty. The consideration. of such Treaties brings us to the very delicate question of Guaranteeship.

The following heads appear to comprise the principal classes of Guarantee (d):

1. A Guarantee that a nation shall maintain a particular status towards all other powers, e.g. of neutrality, which is a condition of the newly erected kingdom of Belgium (e).

(a) Deutsches Staats- und Bundesrecht von Zachariä, i. 129–137, should be consulted for the Guarantee of the former German Confederation, both from within and without. See, too, Schmauss, Corp. Jur. Publ. 1079. (b) By the Treaty of Aix-la-Chapelle (1748), the eight contracting parties mutually guaranteed each other's dominions.

(c) Vide ante, vol. i. p. 147.—Intervention as to incorporation of Italian States of Austria in the German Confederation without consent of the Powers who signed the Treaty of Vienna.

(d) See the remarkable modern instances of Belgium and Greece, vol. i. pp. 111, 117.

(e) Vide ante, vol. i. p. 114.

Vattel and other writers make a distinction between caution (Surety) and garant (Guarantee). In the former case, the surety must make good the default of the principal; in the latter the guarantee is only bound to do his utmost to obtain the performance of the principal. It would manifestly require an express provision to constitute the Guarantee of a Treaty a Surety in this sense for the performance of its conditions. The distinction, therefore, is not taken in the text of this work.

2. A Guarantee that a particular State shall do a particular act, e.g. discharge a debt, or resign a territory.

3. A Guarantee to defend the particular constitution or territory, or particular rights, of a country, contra quoscunque (f).

4. A Guarantee to defend the particular constitution of a State generally against all attacks which may assail it, whether Foreign and External or Domestic and Internal.

Such a Guarantee, being an engagement which binds a foreign power to take part in the civil quarrels of an Independent State, appears to be in theory not consistent with the perfect and uncontrolled freedom which is of the essence of such a State, and in practice to have proved too often fatal to her liberties and to her very existence.

Having regard, however, to the Treaties of Guarantee relating to the Protestant Succession in England, which will be presently mentioned, it seems impossible to deny, that such a Right of Intervention (g) has been, and may be conceded by one nation to another, without entailing the loss of legal personality in the nation which concedes itwithout reducing that nation to the status already discussed (h), of a State so protected as to be dependent.

This is a construction of Guaranteeship opposed certainly to every presumption of public law, and one which can only be created-if, according to modern practice and usage, it can be created at all-by express words. Such a Treaty is fraught with mischief to the best interests both of Public and International Law.

The constitutions of the greatest as well as of the smallest States, have been at different periods of history the subject of Guarantees, especially against any invasion from

(f) Vide post, construction of this term.

(9) It is, perhaps, partly to be inferred from the careful and express renunciation of any such right on the part of the Powers who guaranteed the kingdom of Belgium. Vide post, p. 78.

(h) Vide ante, vol. i. pp. 97, 99.

Third (i) Powers, and perhaps in some cases the terms have not extended the principle of intervention beyond this limit.

The British, the Austrian, the Spanish Empires, as well as the States of Poland, Geneva, and of minor German principalities, have been all examples of the application of this principle.

LVII. At the peace of Westphalia, 1648, France and Sweden, as well as the various principalities which composed the German Empire, became Guarantees for that first great settlement of Europe, from which a considerable portion of Modern International Law derives its origin. Guaranteeship of this kind was then a device of comparatively recent date for securing fidelity to International engagements, having succeeded to the more feudal and coarser expedient of appointing Neutral Princes and Free Towns Conservatores of Treaties.

The Guarantee undertaken by France and Sweden, at this Treaty, would seem to have necessitated their intervention in the internal affairs of another nation; for the obligation imposed upon all the "contractans et garans," as they were called, is set forth in the 116th Article of the part of the Treaty, signed at Munster, and in the 17th Article of the part signed at Osnaburgh is thus expressed: "Que tous ceux qui "ont part à cette transaction soient obligés de défendre et protéger, tous et chacun, les lois ou conditions de cette paix (k), "contre qui que ce soit, sans distinction de religion; et s'il arrive

(k) This is a clause usually termed "contra quoscunque." Dr. Twiss (Duchies of Schleswig and Holstein, pp. 124-5) observes: "No rule of International Law is more clear than that the convention of guaranty does not apply to the case of political changes. If, for instance, Denmark had guaranteed to the Princess Anne of England the undisturbed possession of the British throne upon the death of William III. contra quoscunque, no casus fœderis would have arisen if the Highlanders of Scotland had attempted to restore the Crown to the son of James II.; but if Louis XIV. or Philip V., as Foreign Powers, had sent an army

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"que quelque point en soit violé, l'offensé tâchera première"ment de détourner l'offensant de la voie de fait, en soumet"tant la cause à une composition amiable, ou aux procédures "ordinaires de la justice; et si, dans l'espace de trois ans, "le différend ne peut être terminé par l'un ou l'autre de ces moyens, que tous et chacun des intéressés en cette transac"tion soient tenus de se joindre à la partie lésée, et de l'aider "de leurs conseils et de leurs forces à repousser l'injure, "après que l'offensé leur aura fait entendre que les voies de "douceur et de justice n'ont servi de rien; sans préjudice "toutefois au reste de la juridiction d'un chacun, et de l'ad"ministration compétente de la justice, suivant les lois et "constitutions de chaque prince et état" (1).

In the Treaty of Hanover, concluded in 1725 between Great Britain and Prussia, this Guarantee is expressly recited and confirmed (m); and in 1792, the first intervention of Austria and Prussia (n), in the war of the French Revolution, was founded upon the obligations contracted by these States in 1648, at the time when France obtained the sovereignty of Alsatia; the German Sovereigns were invoked in 1792, as the guarantees of the Treaty of Westphalia, to protect the private property and rights of jurisdiction of the minor German princes in Alsatia. Upon this Treaty also, Russia has more than once rested her claim to interfere in the arrangements of the German constitution (o).

to co-operate with the insurgents in depriving the Princess Anne of the succession, there would have been at once an undeniable casus fœderis. Even an expression so indefinite as contra quoscunque is limited by the nature of the subject-matter; it may apply to the slightest international interruption, from whatever quarter it may be threatened; but even a Civil War will not extend its operation to political troubles."-Sed vide post, pp. 75, 6, 7; and see Vattel, l. ii. c. xiii. s. 197. "On doit sans doute défendre son allié contre toute invasion, contre toute violence étrangère, et méme contre des sujets rebelles."

(1) Dumont, Rec. des Tr. vol. iii. p. 562.

(m) Schmauss, 2014.

(n) De Martens, 2. 1. viii. s. 338, and note (a).

(0) Wheaton's Hist. 346, and 350.