has been recognized by the United States as a subsisting compact. In a note addressed to Texas, just prior to its definitive incorporation into the United States as a State of the Union, it was contended by the government of Great Britain that the voluntary surrender of independence could not annul existing treaties. The position of the United States in this case, which involved treaties of commerce, was, as expressed by Mr. Fish, Secretary of State, September 18, 1876, that the union between the United States and Texas, being effected by the legislation of the parties, necessarily cancelled treaties between the latter and foreign powers, "so far at least as those treaties were inconsistent with the Constitution of this country, which requires customs duties to be uniform throughout the United States."3 On June 20, 1895, the states of Honduras, Nicaragua and Salvador entered into a treaty, by which they were to form a single political entity, called the Greater Republic of Central America, as regards intercourse with foreign nations, but were to retain their autonomy and independence as regards their internal affairs. In receiving, December 24, 1896, a minister from this union, the President of the United States expressly stated that the recognition was accorded with the understanding that the responsibility of each of the republics to the United States should remain wholly unaffected.*

A state formed by separation from another, whether the identity of the original state still exists or is completely lost by disintegration, succeeds to such treaty

'Terlinden vs. Ames (1901), 184 U. S., 276.

'Sen. Doc., 375, pp. 3, 5, 29th Cong., 1st sess.

'Wharton's International Law Digest, vol. i, p. 24.

For. Rel., 1896, pp. 370, 390.

obligations as are peculiarly local. Of this character was the boundary agreement of January 12, 1828, between the United States and Mexico, which "having been entered into at a time when Texas formed a part of the United Mexican States" was recognized by Texas after its separation as a binding compact.' Stipulations with respect to water-courses and the navigation of rivers are here included. Likewise the provisions of Article XXXV of the treaty of 1846 between the United States and New Granada, in which the right of way or transit across the Isthmus of Panama upon any modes of communication then existing, or which might thereafter be constructed, was guaranteed to the government and citizens of the United States, together with the correlative obligations on the part of the United States, have been considered as forming a covenant "that runs with the land, to the duties and benefits of which the new state of Panama succeeded." The doctrine of the liability of the seceding portion to treaty obligations of the parent state has, in some instances, been asserted in latitude sufficient to include those of a purely national character. For instance, the government of the United States, soon after recognizing Texas, gave notice that it considered the treaty of amity, commerce and navigation between the United States and Mexico of April 5, 1831, as mutually binding upon the United States and Texas. The obligation was subsequently recognized by Texas. In the Berlin Congress of 1878, when this question was under consideration with reference to Servia and Bulgaria, Bismarck declared that he regarded it as a principle of the law of nations, which could only be corrob

Treaties and Conventions, p. 1079.

' House Doc., 12, 27th Cong., 2nd sess.

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. lxix, pp. 934, 961. 'Art. XXXVII. Hertslet's Map of Europe by Treaty, vol. iv, 2787.

'Art. VIII.

p.

'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, between 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 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."3

'Am. State Papers For. Rel., vol. iv, pp. 352, 354.

18 Wheat., 494.

'Sutton vs. Sutton, I Russell & Mylne, 663. Twiss, Rights and Duties in Time of Peace, p. 420.