The Online Library of Liberty

A project of Liberty Fund, Inc.

• Introduction
• Textual Introduction
• Acknowledgments
• Essays On Equality, Law and Education
• Law of Libel and Liberty of the Press 1825
• On Marriage 1832–33?
• Austin’s Lectures On Jurisprudence 1832
• Reform In Education 1834
• On Punishment 1834
• Smith On Law Reform 1841
• The Negro Question 1850
• Statement On Marriage 1851
• Remarks On Mr. Fitzroy’s Bill For the More Effectual Prevention of Assaults On Women and Children 1853
• A Few Words On Non-intervention 1859
• The Contest In America 1862
• The Slave Power 1862
• Austin On Jurisprudence 1863
• Educational Endowments 1866
• Inaugural Address Delivered to the University of St. Andrews 1867
• The Subjection of Women 1869
• Editor’s Note
• Chapter I
• Chapter Ii
• Chapter Iii
• Chapter Iv
• Treaty Obligations 1870
• The Contagious Diseases Acts 1871
• Appendices
• Appendix A: Harriet Taylor, On Marriage (1832-1833?)
• Appendix B: Harriet Taylor Mill, Papers On Women’s Rights (1847-1850?)
• 1.: Rights of Women—and Especially With Regard to the Elective Franchise—by a Woman—dedicated to Queen Victoria
• 2.: Women—(rights Of)
• 3.: The Rights of Women to the Elective Franchise and Its Advantages
• 4.: Why Women Are Entitled to the Suffrage
• 5.: [reform: Ends and Means]
• Appendix C: Harriet Taylor Mill, Enfranchisement of Women (1851)
• Appendix D: Draft of a Portion of the Inaugural Address (1866)
• Appendix E: Jamaica Committee: Public Documents (1866, 1868)
• Appendix F: Textual Emendations
• Appendix G: Bibliographical Index of Persons and Works Cited, With Variants and Notes

TREATY OBLIGATIONS

1870

EDITOR’S NOTE

Fortnightly Review, XIV (Dec., 1870), 715-20. Signed “J.S. Mill” Running titles as title. Reprinted posthumously in Dissertations and Discussions, IV (1875), 119-29. Identified in Mill’s bibliography as “An article on ‘Treaty obligations’ in the Fortnightly Review of Dec. 1st 1870” (MacMinn, 100). For comment on the essay, see xxix and lxxi above.

Treaty Obligations

while it is undoubtedly true that, in the practical application even of the best established and most universally received rules of morality, in ninety-nine cases out of a hundred an honest man seldom doubts by which he is to guide his conduct, yet no one, I presume, will deny that there will be found a hundredth case in which different moral obligations conflict. But, though this is not likely to be denied, there exists very generally a cowardly reluctance to look the fact in the face, and make provision for it, as one of the unavoidable inconveniences of an imperfect condition. People are afraid lest the force of recognised duties should be weakened, by admitting the liability of one duty to be overruled by another; and, though well knowing that this does happen, and not prepared to deny that it sometimes ought to happen, they prefer to be excused from giving their approbation beforehand to so unpleasant-looking a fact. The consequence is, that those who, having the responsibility of action, are forced to make for themselves some path through these moral entanglements, finding no rules or principles laid down for them but such as ignore instead of meeting the difficulties of the case, decide according to the dictate either of their selfish interests, or of some prevailing sentiment, which, if more disinterested, is not necessarily a truer guide. And since national concerns, by reason of their superior complication, afford by far the greatest number of these disputable questions of obligation, this is one (and not the smallest) among the causes of that laxity of principle which has almost always prevailed in public matters, even when the moralities of private life have met with a tolerable amount of observance.

There is no case which more flagrantly exemplifies these general observations than the case of international treaties. Through the greater part of the present century, the conscience of Europe has been habituated to the demoralising spectacle of treaties made only to be broken. In 1814 and 1815, a set of treaties were made by a general Congress of the States of Europe, which affected to regulate the external, and some of the internal, concerns of the European nations, for a time altogether unlimited. These treaties, having been concluded at the termination of a long war, which had ended in the signal discomfiture of one side, were imposed by some of the contracting parties, and reluctantly submitted to by others. Their terms were regulated by the interests, and relative strength at the time, of the victors and vanquished; and were observed as long as those interests and that relative strength remained the same. But as fast as any alteration took place in these elements, the powers, one after another, without asking leave, threw off, and were allowed with impunity to throw off, such of the obligations of the treaties as were distasteful to them, and not sufficiently important to the others to be worth a fight. The general opinion sustained some of those violations as being perfectly right; and even those which were disapproved, were not regarded as justifying a resort to war. Europe did not interpose when Russia annihilated Poland; when Prussia, Austria, and Russia extinguished the Republic of Cracow; or when a second Bonaparte mounted the throne of France. England alone, among the great contracting powers, never actively violated this set of treaties; though England, too, was a party after the fact to one of the most justifiable of the violations—the separation of Belgium from Holland. Such is the spectacle which Europe has had before her for half a century; and it is well calculated, one would think, to moderate her surprise, when another treaty, made forty years later, in the same wild hope of fixing a certain condition of the affairs of Europe in perpetuity, has in a similar manner broken down.^[*] If we ask ourselves why this case has aroused more anger in this country than any of the others had done, the reply, if given with a full remembrance of the previous cases, can scarcely be, that it is more shocking to the conscience than any of them; for the annihilation of the Republic of Cracow was not merely the infringement of a treaty, it was also, had there existed no treaty to forbid it, in itself a gross violation of public rights and morality. But it did not touch so nearly what we had been taught to fancy our own interests, and was not so liable to be imagined a defiance to us in particular. Not to a greater tenderness of the public conscience, but to the different aspect affronts and injuries wear to the unreflecting when addressed to ourselves and when addressed to others, must, I fear, be attributed our special perception of the moral value of treaties on this occasion. We may fairly be complimented with being so far in advance of some of the other great States of Europe, that it is a disputable point whether we have of late years infringed any of our treaty obligations, although we must remember that the announcement, by one of our leading statesmen, that almost the last treaty we entered into was only to be considered binding by ourselves if adhered to by the others who entered into the same obligation, met with very general approval.^[†] Yet the public, if actuated purely by moral feeling, ought to have been more startled by the suggestion of a possible breach of morality on our own part, than by the certainty of an actual breach of it on the part of somebody else. The fact is, we have not yet advanced so far as to regard these questions purely from the moral point of view. Our indignation is hot or cold according to circumstances quite foreign to the morality of the case; and is likely to continue so until the morality of such cases has been placed on a firmer and more clearly defined basis than it has yet received.

I am ready to join with any one in averring that this is an evil state of things, most injurious to public morality. No honest man can see with indifference a condition in which treaties do not bind, in which it rests with the party who deems himself aggrieved by them, to say whether they shall be observed or not; in which nations cannot trust each other’s pledged word. It does not follow, however, that this evil is likely to be remedied by ignoring the fact, that there are treaties which never will, and even which never ought to be permanently observed by those who have been obliged to submit to them; far less, therefore, to be permanently enforced. It is not necessary to go far back for one of the most signal examples which the entire history of mankind affords. Did any impartial person blame Prussia or Austria, because, in 1813, they violated the treaties which bound them to the first Napoleon, and not only did not fight in his ranks, as their engagements required, but brought their whole military force into the field against him, and pursued him to his destruction? Ought they, instead of cancelling the treaties, to have opened a negotiation with Napoleon, and entreated him to grant them a voluntary release from their obligations; and if he did not comply with their request to be allowed to desert him, ought they to have faithfully fought in his defence? Yet it was as true of those treaties, as it is of the treaty of 1856, that disadvantageous and dishonourable as they might be, they had been submitted to as the purchase-money of peace, when the prolongation of war would have been most disastrous; for, had the terms been refused, Napoleon could with ease have conquered the whole of Prussia, and at least the German dominions of Austria, which is considerably more. I presume, than England and France could have done to Russia, after the fall of Sebastopol. I already seem to hear some uncandid reader crying out, “Do you pretend that Russia has as complete a justification, and even positive obligation, to break her treaties, as Prussia and Austria then had?” Certainly not. The case of Austria and Prussia was about as extreme a case as, in the nature of national affairs, could possibly occur: Russia herself could not pretend that her own approaches within a great distance of theirs. But the principle may be the same, and principles are best tested by extreme cases. If a principle will not stand good in every case which it covers, it is a proof that some other principle requires to be considered along with it.

What means, then, are there of reconciling, in the greatest practicable degree, the inviolability of treaties and the sanctity of national faith, with the undoubted fact that treaties are not always fit to be kept, while yet those who have imposed them upon others weaker than themselves are not likely, if they retain confidence in their own strength, to grant a release from them? To effect this reconcilement, so far as it is capable of being effected, nations should be willing to abide by two rules. They should abstain from imposing conditions which, on any just and reasonable view of human affairs, cannot be expected to be kept. And they should conclude their treaties, as commercial treaties are usually concluded, only for terms of years.

To the first of these rules it is essential that the obligations should be defined, which nations are not warranted in imposing on one another. I do not pretend to enter exhaustively into so large a subject. But one great principle one can clearly see, and it is the only one which need concern us at present. The community of nations is essentially a republic of equals. Its purposes require that it should know no distinction of grades, no rights or privileges enjoyed by some and refused to others. The basis of international law—without which the weak, for whose protection chiefly international law exists, would never be secure—is, that the smallest and least powerful nation, in its capacity of a nation, is the equal of the strongest. Whatever rights belong to one belong to all, and can only be temporarily forfeited, even by misconduct, unless the erring nation is to be treated as a savage, and thrust out of the communion of civilised nations altogether. Now, all treaties which bind a nation, within itself and in its own affairs, by restrictions not common to all the rest, violate this principle. Of this nature is a stipulation that a country shall maintain one form of government, or abjure another; that she shall abstain from fortifying places situated within her own territory; that she shall limit to a prescribed amount her army or her fleet, or the portion of each stationed in a particular part of her dominions, no equivalent limitation of armaments being consented to by the other parties to the treaty, or by nations in general. I do not say that some of these restrictions cannot ever be admissible as a temporary penalty for crimes committed against other states; though in general some penalty would be preferable which could be completed by a single act. The period, however, for which such exceptional disabilities can justly be imposed, ought not, I conceive, to exceed the length of a generation; or, more properly, the period at the end of which a majority of the adult population will have grown up from childhood subsequently to the offence, so that the people suffering the penalty are no longer, as a body, the same with those who shared in the fault.

But the end in view would be in a still greater degree attained, were nations to decline concluding any treaties except for limited periods. Nations cannot rightfully bind themselves or others beyond the period to which human foresight can be presumed to extend; thus aggravating the danger which, to some extent, always exists, that the fulfilment of the obligation may, by change of circumstances, become either wrong or unwise. I am not aware of any good reason why engagements reciprocally entered into by nations for their joint advantage, should not be subject to periodical renewal. There are few, if any, contracts between nations, the terms of which might not be so framed as to protect either party from sustaining undue loss or injury in case of the non-renewal of the contract. And with respect to the other kind of treaties, those which nations inflict upon one another, there is a very much greater chance of their being faithfully observed, if a legitimate and peaceful emancipation from them is looked forward to at the end of a moderate length of time. The treaty of 1856, vainly affecting to be perpetual, has been repudiated in fourteen years. Had it been concluded for twenty, or even for twenty-five years, it would probably have lasted out the term. It is, perhaps, necessary to say, that the expiration of a treaty does not imply that a money indemnity exacted by it should be repaid, or a ceded territory restored. Possession, once transferred, is an accomplished fact; and to disturb it, after an interval of peace, would imply a fresh aggression, which requires no stipulation of treaties to constitute it a casus belli. The lapse of the treaty would merely reinstate the nation that had been punished, in those common rights of all nations, the enjoyment of which is the normal condition of an independent State; rights which no nation ought to be, and no high-spirited nation will ever consent to be, permanently dispossessed of.

If these principles are sound, it remains to be considered how they are to be applied to past treaties, which, though containing stipulations which, to be legitimate, must be temporary, have been concluded without such limitation, and are afterwards violated, or, as by Russia at present, repudiated, on the assumption of a right superior to the faith of engagements.

It is the misfortune of such stipulations, even if as temporary arrangements they might have been justifiable, that if concluded for permanency, they are seldom to be got rid of without some lawless act on the part of the nation bound by them. If a lawless act, then, has been committed in the present instance, it does not entitle those who imposed the conditions to consider the lawlessness only, and to dismiss the more important consideration, whether, even if it was wrong to throw off the obligation, it would not be still more wrong to persist in enforcing it. If, though not fit to be perpetual, it has been imposed in perpetuity, the question when it becomes right to throw it off is but a question of time. No time having been fixed. Russia fixed her own time, and naturally chose the most convenient. She had no reason to believe that the release she sought would be voluntarily granted, on any conditions which she would accept, and she chose an opportunity which, if not seized, might have been long before it occurred again, when the other contracting parties were in a more than usually disadvantageous position for going to war.

Had this been all, there would have been little in the conduct of Russia but what most other powers in her position would have done, and what there are, at all events, but too many precedents for doing. Her special offence is, that in asserting what she might, without being entirely unreasonable or unscrupulous, believe to be her right, she showed no desire whatever that the wound inflicted upon the confidence, so necessary to mankind, in the faith of treaties, should be the smallest possible. She showed herself perfectly indifferent to any such consequence. She made her claim in the manner most calculated to startle mankind, and to destroy their faith in the observance of all treaties which any one of the contracting parties thinks it has an interest in shaking off. Not but that it is in itself a less immoral act, if a promise is to be broken, to give notice beforehand of the intention, than to keep it hidden, and break the engagement without notice, while the other party is relying on its being kept. This is too obvious not to be seen in private life, and it is as true of public treaties as of private promises. Had Russia, however, thought the trust of nations in each other’s engagements a thing of the highest importance, she would, even if determined to assert finally at all costs what she claims as her right, have first exhausted all endeavours, and consented to some sacrifices, to attain the freedom she claimed by the general consent of Europe. If Russia had acted in this honourable manner, she would have set, perhaps for the first time in history, an example which neither we ourselves who blame her, nor any other state, would find it easy to show in their own annals. She has chosen a less honourable course. But this misconduct of Russia (misconduct not so much before the bar of history and the past practice of nations, as before that of true morality, and of what we may hope will become the future customs) does not entitle us to bring upon millions of innocent persons the unspeakable evils of war, in order to enforce an obligation which it was wrong to impose, and which we ought therefore plainly to declare that we do not desire to reimpose. The notice which the high-handed proceeding of the Russian Government demanded at our hands, was to protest (as Lord Granville immediately did)^[*] against the claim of a contracting party to set aside a treaty by a mere announcement of its will; and, for the rest, to follow the precedent set by the French Government, when three of the powers who were parties to the treaties of Vienna, destroyed the Republic of Cracow and confiscated its territory. M. Guizot, then Foreign Minister of France, made a public declaration, that France took notice of this violation of treaties; that she did not intend to oppose herself, by arms or otherwise, to the proceeding, but that she reserved to herself the full exercise of whatever rights the infringement of a treaty, to which she was a contracting party, restored to her.^[†] If we are unable to arrange any joint peaceable action with the other powers concerned, an intimation somewhat like this would be the only dignified notice we could take of the mode of a demand, the substance of which the intrinsic merits of the case forbid us to resent. We may, however, hope that if our Government stands firm against the unreasonable clamour of the war party, some arrangement may be come to by which the obnoxious stipulations may be abrogated with the consent of all concerned.

[[*] ]General Treaty between Great Britain, Austria, France, Prussia, Russia, Sardinia and Turkey, for the Re-establishment of Peace, with Three Conventions Annexed Thereto Signed at Paris, March 30, 1856, PP, 1856, Vol. LXI, pp. 1-34, for Russia’s intention to repudiate it, see “The Treaty of 1856. Prince Gortschakoff’s Note.” The Times, 18 Nov., 1870, p. 3.

[[†] ]Edward George Stanley, Speech (4 July, 1867, Lords), PD, 3rd ser., Vol. 188, cols. 968-74, with reference to the “Treaty Relative to the Grand Duchy of Luxemburg” (11 May, 1867), PP, 1867, LXXIV, 415-22.

[[*] ]See “Lord Granville’s Answer to the Russian Circular,” The Times, 17 Nov., 1870, p. 9.

[[†] ]François Pierre Guillaume Guizot, Despatch to Metternich on the Incorporation of Cracow (3 Dec., 1846), in La Presse, 4 Dec., 1846, p. 1, the relevant passages are cited from La Presse in The Times, 7 Dec., 1846, p. 4.