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orated by a declaration of the congress, that a province might not by a separation from a state enfranchise itself from the treaties to which it had up to that time been subjected. It was expressly stipulated in the general treaty signed at the close of the congress, with respect to Servia—which was constituted an independent state-that the conditions of commercial intercourse with foreign countries, the immunities and privileges of foreign subjects, as well as the rights of consular jurisdiction and protection, should remain in full force until replaced by new agreements. With respect to Bulgaria, which was constituted an autonomous principality, but nominally under the suzerainty of the Sultan, it was provided that all treaties existing between the Porte and foreign powers should be maintained.3
(c) War Prior to the French Revolution, it was the practice in Europe to renew with each general and important treaty of peace the treaties pre-existing between the belligerents, of an executed as well as of an executory character, concluded since the Peace of Westphalia. In the con
"Brit. and For. State Papers, vol. Ixix, pp. 934, 961.
* Art. XXXVII. Hertslet's Map of Europe by Treaty, vol. iv, p. 2787.
* Art. VIII.
•By Art. II of the treaty of peace signed at Paris February 10, 1763. “The treaties of Westphalia of 1648; those of Madrid, between the crowns of Great Britain and Spain, of 1667 and 1670; the treaties of peace of Nimeguen of 1678 and 1679; of Ryswyck of 1697; those of peace and of commerce of Utrecht of 1713; that of Baden of 1714; the treaty of the triple alliance of The Hague of 1717; that of the quadruple alliance of London of 1718; the treaty of peace of Vienna of 1738; the definitive treaty of Aix-la-Chapelle of 1748; and that of Madrid, betr een the crowns of Great Britain and Spain of 1750; as well as the treaties between the crowns of Spain and Portugal of the 13th of February, 1668;
troversy between the United States and Great Britain that immediately followed the war of 1812, as to the effect of the war on the “liberties" of American fishermen as defined in the treaty of 1783, of which liberties the treaty of Ghent made no mention, it was contended by John Quincy Adams, minister of the United States at London, that the former treaty was “not in its general provisions, one of those, which, by common understanding and usages of civilized nations,” could be considered as annulled by a subsequent war between the parties. The treaty was considered by Adams, as it had also been by the Americans who negotiated it, as one of partition, in which nothing was received as a grant. Lord Bathurst, on October 30, 1815, replied: "To a position of this novel nature Great Britain cannot accede. She knows of no exception to the rule that all treaties are put an end to by a subsequent war between the same parties."
His lordship doubtless used the term treaty in the restricted sense of executory contracts, designated by earlier writers “treaties properly so-called,” for he admitted that the treaty contained irrevocable provisions, and that it was by no means unusual for treaties to contain recognitions and acknowledgements of title in the nature of perpetual obligations; and he further added that the “right" to take fish as recognized in Article III of the treaty was of this permanent character, but that the “liberty” to take fish as therein provided was a con
* * *
of the 6th of February, 1715; and the 12th of February, 1761; and that of the 11th of April, 1713, between France and Portugal, with the guaranties of Great Britain ; as well as all the treaties in general which subsisted between the high contracting parties before the war" were renewed and confirmed in all points not inconsistent with the new treaty as if inserted word for word. Chalmers's Collection of Treaties, vol. i, p. 470.
cession “strictly dependent on the treaty itself.”: Shortly after this correspondence the Supreme Court was called upon to decide as to the effect of the war of 1812 upon rights vested under Articles VI and IX of the treaties of 1783 and 1794 with Great Britain. In handing down the decision of the Court-that such rights were not divested-Mr. Justice Washington said : “But we are not inclined to admit the doctrine urged at the bar, that treaties become extinguished, ipso facto by war between two governments . . . Treaties stipulating for permanent rights, and general arrangements, and professing to aim at perpetuity, and to deal with the case of war as well as of peace, do not cease on the occurrence of war, but are at most only suspended while it lasts; and unless they are waived by the parties, or new and repugnant stipulations are made, they revive in their operation at the return of peace.", So also Article IX of the treaty of 1794, which removed reciprocally the disabilities of American citizens holding lands in Great Britain, was held by an English court, in 1830, to be permanent in its operation as to rights vested on the date of the exchange of ratification of the treaty. Sir John Leach, Master of Rolls, in pronouncing the decision said, “The privileges of natives being reciprocally given, not only to the actual possessors of lands, but to their heirs and assigns, it is a reasonable construction that it was the intention of the treaty that the operation of the treaty should be permanent and not depend upon the continuance of a state of peace.
"Am. State Papers For. Rel., vol. iv, pp. 352, 354. :8 Wheat., 494.
*Sutton vs. Sutton, i Russell & Mylne, 663. Twiss, Rights and Duties in Time of Peace, p. 420.
That acts previously done or rights previously vested under the sanction of a treaty are not affected even by its termination will hardly be contested. Accordingly executed treaties, or treaties designated by some writers as “transitory conventions,” which are intended to set up a permanent state of things by an act done once for all, are unaffected by war. Treaties ceding territory or establishing boundaries are of this nature. Treaties recognizing permanent obligations or aiming at perpetuity are at most only suspended during war. Such an obligation is found in the convention between the United States and Spain signed February 17, 1834, which provides for the settlement of claims of American citizens for seizures and confiscations of vessels during the war between Spain and her American colonies. It is a recognition, not an assumption, of an obligation on the part of Spain. By Article I, Spain agrees to pay the United States as indemnity “the sum of twelve millions of rials vellon, in one or several inscriptions, as preferred by the government of the United States, of perpetual rents, on the great book of the consolidated debt of Spain, bearing an interest of five per cent. per annum." In conformity with the convention there has been paid to the United States each year in full discharge of the annual interest on the "perpetual rents " $28,500.' In the treaty of peace between the two countries signed December 10, 1898, the convention is not referred to, nor was any provision made for its renewal. The annual payment had been suspended in 1898, as the result of hostile relations. When on the restoration of peace the matter was first brought to its attention, the Spanish government, observing that the debt arose “out
Moore, Columbia Law Review, vol. I, p. 213.
of a treaty which was suspended in virtue of the late war,” considered it necessary to defer action on it until the important point of the “renovation of the agreements celebrated between the two countries " had been decided. As the obligation to pay the debt was made perpetual by the provisions of the treaty, the government of the United States was unable to perceive the connection between its payment and the making between the two governments of commercial, consular and extradition treaties.' Subsequently, the Spanish government admitted a distinction in this respect by making in December, 1899, independently of the question of the renewal of the other treaties, full payment not only for the year 1899, but also for the year 1898, thereby recognizing the perpetuity of the obligation.
Treaties dealing with the rights of the subjects of the one country in the territory of the other and implying no intercourse between the states, if intended to produce a permanent state of things, such, for instance, as a naturalization treaty, may, it seems, be considered as continuing on the restoration of peace. Treaties between three parties are unaffected as regards the relations of each with the third party by a war between two of them. Accordingly a war between two states cannot terminate their duties under general conventions intended to establish permanent dynastic and political relations. Of this character are the treaties of Paris of 1856, and Berlin of 1878.
As to treaties entered into with a view to future hos
For. Rel., 1899, p. 709.
• Ibid., p. 710. 'Hall, who holds to the theory of individual enmity, considers that such a treaty revives, but that it is voidable at the will of either party. International Law (4th ed.), p. 404.