CHAPTER VIII

EFFECT OF THE TREATIES OF 1870 ON
THE QUINTUPLE GUARANTEE

The abrogating effect of "changed conditions" on the Quintuple guarantee has received no more formal recognition than by the fact of the conclusion of the two treaties of 1870.

It is a matter of history that, at that time, the Quintuple Treaty had but recently been exhumed, in connection with the Luxembourg Question. In the debate on the Luxembourg Neutralization Treaty, on June 14, 1867, in the House of Commons, Mr. Goschen was able to make the significant statement that the Quintuple Treaty

"had been so entirely forgotten by English statesmen that even the noble Lord [Lord Stanley, Secretary of State for Foreign Affairs] himself said he had been unaware of its existence."¹

No doubt Belgium, at the time of the Luxembourg Question, was a neutralized country, this

¹ Hansard's Parliamentary Debates, 3d ser., 187, page 1924.

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status being professed by her and generally recognized by the countries of Europe. But there is a great difference—and I wish to specially emphasize this difference!—between the actual condition of Belgium's perpetual neutrality and a guarantee of such a condition by the Great Powers. As for the guarantee assumed in this respect under the Quintuple Treaty, the above quotation makes it perfectly clear that, before the Luxembourg Crisis of 1867, it was to the British Government, to all intents and purposes, a dead letter—otherwise the British Secretary of State for Foreign Affairs could not have been "unaware of its existence." The events of 1867 brought the rusty Quintuple guarantee again into the lime-light of European politics, England finding it greatly to her advantage to give that guarantee a sort of renaissance. Nevertheless, when shortly afterwards, in 1870, the neutrality of Belgium was in actual danger, Mr. Gladstone's Government fully realized that it could not reply on that guarantee, and therefore secured the observance of Belgium's neutrality by two new and separate treaties with France and with Prussia.

The Belgian Government contends that Belgium's neutrality, resting on the treaties of 1839, had been "confirmed" by the treaties of 1870, implying that, thereby, also the Quintuple guarantee had been revived.

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The treaties of 1870 are so worded that this contention seems at first sight not illogical. In their preambles it is stated that "without impairing or invalidating the conditions of the said Quintuple Treaty, (they) shall be subsidiary and accessory to it." Moreover, in the second parts of Articles III, it is expressly stipulated that, upon the time of their expiration, "the independence and neutrality of Belgium will, so far as the High Contracting Parties are respectively concerned, continue to rest as heretofore on Article I of the Quintuple Treaty of the 19th of April 1839." The treaties of 1870 thus give the impression that they were only an inter-mezzo sinfonico in an otherwise quite assured state of treaty conditions.

The question is, however, whether, from the viewpoint of international law, such an arrangement of Great Britain with France, on the one side, and with Prussia, on the other side, was of any legal consequence. Although the governments of those three countries were doubtless at liberty to agree upon what they liked, they had not necessarily the power to make their agreement binding as far as it concerned the validity of a treaty concluded between different parties.

It was an essential feature of the Quintuple Treaty that its provisions were placed under the guarantee not of any two or three, but of all the

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then Great Powers. This is fully borne out by the events of 1833, when Holland was forced to conclude a provisory treaty with England and France which was acceded to by Belgium. Holland, then, was ready to sign the stipulations of the Twenty-Four Articles concerning the severance of Belgium from the Netherlands, which the five Great Powers had already agreed upon among themselves in October, 1831, and which Belgium had signed in the subsequent month. Thus there was no obvious reason why the definite settlement between Holland and Belgium should not take place immediately, under the auspices of England and France. Yet these two countries considered it absolutely essential that the other Great Powers, Austria, Prussia and Russia, should co-operate in the final treaty, and made special promises to that effect to Holland.¹ In the light of the considerations prevailing at that time, it seems perfectly evident that the common guarantee which the five Great Powers assumed in the Quintuple Treaty was by each of the contracting parties only assumed under the condition that all the four others should, likewise, assume it. Wherefore the common guarantee became, necessarily, non-existent upon the withdrawal or exclusion of one of the five contracting guarantors.

To my mind, the conclusion of the treaties of

¹ See page 53.

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1870 is in itself the strongest possible affirmation that England did not then consider the treaties of 1839 as binding their signatories to uphold the Belgian neutrality. But, even if she should have considered the guarantee established by those treaties as still formally valid, by the conclusion of the treaties of 1870, despite the declarations to the contrary, the original guarantee became necessarily extinct, because the five-fold treaty-bond of 1839 on which it rested was destroyed and replaced by two separate and entirely new treaty-bonds. Concerning the guarantee of the Quintuple Treaty, the contracting parties of the treaties of 1870 had not the authority to stipulate anything. Only the joint declaration of all the original signatories could have re-established that guarantee, upon the expiration of the treaties of 1870!

There are no signs lacking that the British Government was fully conscious of this, wherefore it made an attempt to save the situation. It was doubtless for this reason that it did not conclude the new treaty with the North German Confederation, which, in connection with the South-German Allies, waged the war against France, but with Prussia, as one of the original signatories of the Quintuple Treaty. And it was for the same reason that it addressed an invitation to Austria and Russia to join in the negotiations of the treaties with

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France and Prussia, which, according to Mr. Gladstone's statement in Parliament, was "favorably" received by the Cabinets of Vienna and St. Petersburg,¹ but not acted upon. In those two quarters, England got the mitten!

In Parliament, the British Government was severely criticised for the conclusion of the new treaties. A few pertinent criticisms which not only indicate the attitude of prominent British parliamentarians toward the new treaties but at the same time reveal striking ideas held in England forty-five years ago with regard to the obligations of the guarantors of the now canonized Quintuple Treaty, may not be out of place.

In the House of Lords, the Duke of Cleveland commented on the negotiations for the conclusion of the new treaties in the following manner:

"I thought with others it was desirable that the Government should make it known that it was their express de-termination to maintain the Treaty of 1839, which is still binding on this and other countries. But in my opinion it is desirable to have some instrument defining our obligations with more distinctness than the Treaty of 1839, as doubts have more than once been entertained as to the precise nature of these obligations, and we shall be thrown back upon that treaty when the term of the present treaty expires. Some doubt may in future arise as to the mode in which the treaty is really operative, and I should have preferred some instrument of a permanent character, re-

¹ Hansard^'s Parliamentary Debates, 3d ser., 203, page, 1701.

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specting which no doubt could arise—a treaty entered into by the same Powers, including the belligerents."¹

Viscount Stratford de Redcliffe strongly blamed the Government for concluding the new treaties,² and Lord Cairns, in reference to this transaction, said prophetically:

"I will not say more than that I greatly fear there are at this part of the case seeds of difficulty which possibly may lead other Powers to take a different view of the obligations of 1839 than they would otherwise have done."³

In the House of Commons, Mr. Osborne called the new treaties (which, by the way, were always spoken of as one treaty, concluded with two different parties), "the most extraordinary instrument in the whole history of diplomacy."

With striking logic he said: "This treaty is entirely superfluous if the Treaty of 1839 is worth anything at all," and most significantly pointed out: "In the eyes of Austria and Russia, that Treaty of 1839 is entirely superseded by this."⁴

Mr. Rylands called it, very outspokenly, "a foolish treaty," and regretted that "in the secret recesses of the Foreign Office, treaties should be hatched by which the Government bound not only

¹ Hansard, 3d ser., 203, page 1762.

² Ibid., page 1760.

³ Ibid., page 1753.

⁴ Ibid., page 1777.

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this but future generations under circumstances which, he feared, might at a future date, result in some great and terrible disaster."¹

Sir Wilfrid Lawson made the following comment: "It was true we entered into a treaty in 1839;

but there were a variety of opinions as to the extent to which we were bound by it; and that we were only bound collectively, and not separately, to interfere in the affairs of Belgium."²

It is very significant that the Prime-Minister, Mr. Gladstone, though dwelling at considerable length on the necessity of concluding the treaties with France and Prussia from the standpoint of British interest, had not one word to say in reply to the contention that they would irrevocably destroy the obligations of the powers under the Quintuple Treaty!

As I have stated above, the fact that England considered the conclusion of the treaties of 1870 necessary is, to my mind, the strongest possible proof that she did not consider the treaties of 1839, though possibly valid in theory, as binding in practical politics. Under no circumstances can they be considered as having reinstated and revived the Quintuple guarantee. What in that respect has been agreed upon between England and France, as

¹ Hansard, 3d ser., 203, page 1743.

² Ibid., page 1753.

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well as between England and Prussia, can at best be considered as two common Declarations that, after the expiration of the treaties of 1870, the status of the Belgian neutrality should be considered between them, as "heretofore!"