THE MORALITY OF TREATY OBLIGATIONS.
THERE is no branch of morals more difficult or more neglected than the moral law which ought to regulate the intercourse of nations, and no division of that law so perplexed or so perplex- ing as the obligation of a Treaty. It is very easy to say off-hand that in all moral questions a nation must obey the same laws as an individual, but it is extremely unsatisfactory. No nation does obey the same laws as an individual, and there are many points on which a nation in departing from those laws is held by the ablest moralists and by the instinctive conscience of mankind to be entirely blameless. Take the whole question of war, for example. No Christian moralist allows it to be lawful to inflict death in revenge for insult; all Churches alike, in their different ways, for- bidding duels, murders of vengeance, and private wars ; yet the immense majority of thinkers hold that a national war may be completely justified by unendurable or very deliberate international insult. It is undoubtedly true, in the highest sense, that a nation has, and can have, no right to lie, to break engagements, or to rob ; but men have differed front the beginning of time as to what, in national intercourse, constitutes lying, robbery, or faithless breach of engagements. Is it robbery, for example, for a nation to possess itself of territory clearly belonging to another nation against its consent, and by an exercise of superior physical force? Most people would say off-hand that it is robbery, but the assertion, though true in the abstract, is in practice limited by so many quali- fications that it has scarcely any meaning. If the " theft " has the approval of the inhabitants of the territory, as in the Venetian case; or is essential to the " robber's " existence, as in the case of Rome; or is clearly for the general benefit of mankind, as in the case of savage territories,—then theft becomes in the eyes of mankind, including moralists, legitimate or blameless acquisition. Perhaps the most extreme case ever put before the world was that of Hanover in 1866, when a State older than its conqueror, against its own will, for no reason except the conqueror's convenience, was compelled by sheer force of arms to surrender its independence. If anybody's title ever was good that of the Hanoverians was good, and yet the instinct of mankind and the verdict of most good men condoned the violation of that right. The truth would seem to be that in such cases the "higher law" which is recognized in every department of morals—as, for example, when a man steals to avert literal and immediate death by starvation—but which can never be recognized by human jurisprudence, is tacitly accepted by mankind ; and while the actors are often condemned, the act itself is excused, if it clearly conduces to the benefit of mankind outside the circle which profits by the robbery. The sufferers are, in fact, held to deserve punish- ment for preferring their selfish will to the general interests of humanity, to which they are considered bound by stringent obliga- tions. The grand object of moral laws, namely, the elevation of the individual in the scale of being, is considered, rather than the law itself, and the means are forgotten in satisfaction at the result. That, we admit, is not a quite satisfactory explanation—human motives, and bad human motives, entering into every conquest— but it is the only one by which we can reconcile the instinct of good men as to some conquests with any rule of morality at all. The world has, in fact, by bad and brutal means, exercised its admitted right of imposing unpleasant laws for its own general benefit.
It is here also, we suspect, that we must seek the solution of the still more complicated question involved in the obliga- tion to observe a treaty. Prima facie, every treaty made on due consideration through competent agents ought to be observed ; yet the literal observance of that rule is usually impossible, and would very often be in a high degree immoral. it would be immoral, for example, to surrender the Orkneys because we are bound to surrender them on receipt of the money for which they were pawned. Politicians, per- ceiving this, have sometimes declared that Treaties are mere declarations, binding only as long as it is convenient to observe them, and inoperative in war ; and moralists have exhausted ingenuity in suggesting reserved cases,—to which, by the way, a most sincere and lofty moralist, Mr. Gladstone, has this week added one more. If the Power, he suggests, with whom the contract was made is completely metamorphosed, the binding force of the contract ceases,—which is, no doubt, true in fact, but which, we suspect, could only be reconciled with morals by a somewhat wider argument. Had Prussia asked us to interfere to prevent her Saxon provinces being taken away, Prussia's increased strength, proved by defeat to be inadequate, would hardly have been a sufficient plea for repudiating the obligation. It is, we think, safer and wiser to hold that many treaties, though treaties in form, are, in truth, not so much treaties as laws passed by the informal but still existing and all-powerful European Legislature for the general benefit of mankind. The Treaties of Vienna seem to us of that sort. If they were treaties in the strict sense, half of them were morally invalid, as having been made under duress. They rather consti- tuted a system under which Europe decreed that foreign affairs should be regulated, and under which accordingly they were regu- lated, with more or less success, but in peace, for nearly forty years. Whether any single nation had a right of insurrection against that system of law may be doubtful—though some such right must exist somewhere, else any international oppression might be made permanent—but of this we feel sure, that the Legislature which established those laws had a right to repeal them, as she did when she acknowledged a Bonaparte as Sovereign of France. There is a perplexing absence of formality, and therefore of definiteness, in all international acts of the highest importance ; but still, we take it, a moralist may justifiably hold the Treaties of 1815 to be repealed laws, super- seded by other laws, namely, the collection of new precedents which Europe has not formulated, but on which she is every day acting. If this theory is sound, it follows that there may be treaties liable to repeal, while other treaties remain valid, and it good deal of the moral perplexity of politicians vanishes. The disregard shown to the Treaties of 1815, for example, would in no degree justify the breach of an agreement like ours to defend Belgium, which, though embodied in the European law, has never been repealed by Europe, and from the mode in which it has been consistently regarded has become something besides a law, a special contract between two parties, both of whom are under the law. There was no faithless- ness, in any fair sense of that word, in refusing to make war on France because she elected a Bonaparte, but there would be faith- lessness in deserting Belgium because it was inconvenient to defend her. We should clearly in such a case be as guilty of immorality as an individual would be who had promised to bear a share in an enterprise, and then, because it threatened to be expensive, declared off. It is then only necessary to show the contract to make the obligation clear. There is, however, a very subtle and very curious difficulty which in the case of a guarantee might by possi- bility arise, and which would excite a great conflict of opinion. Suppose the guarantors were clearly and honestly of opinion that the guaranteed country would be much the better and the world much the better for the very conquest she had been guaranteed against, yet she herself could not see it, what would be the true morality then ? Should we have to fight Italy to prevent an absorption, say, of Modena ? We suspect we should, if we did our duty. Our statesmen would say," No. England, being a free State, the extreme unwillingness of the people to do anything paralyzes the Government, and the best of moral excuses, inability, may be fairly pleaded"; but that, after all, though practically conclusive, is morally wrong, for the people who made the contract ought not to be so unwilling to fulfil it, ought, on the contrary, to compel themselves to keep their engagements, even to their own hurt.
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