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Prussia, Austria, and Russia extinguished the Republic of Cracow, or when a second Bonaparte mounted the throne of France.

“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 bis 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 canceling 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 defense ? Yet it was as true of those treaties as it is of the treaty of 1856, that, disadvantageous and dishonorable 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.

“ 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 a term of years.

“ If these principles are sound it remains to be considered how they are to be applied to past treaties, which, thongh 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.

6It is the misfortune of such stipulations, even if as temporary arrangements they might have been justifiable, that if concluded for permaneucy they are seldoin 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 preseut 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 songht would be voluntarily granted ou 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." J. S. Mill on “Treaty Obligations,” 8 Fortnightly Review, N. S. (1870), 715 ff.

*

The following is a memorandum of abrogated treaties of the United States

(not including claims conventions). ALGIERS : The treaties with Algiers are regarded as terminated by the French conquest of

1831. BELGIUM: 1845, November 10. Commerce and navigation. Terminated August 20, 1858, in

accordance with Article XIX, by notice given by Belgium in note of August

20, 1857. 1858, July 17. Commerce and navigation. Terminated July 1, 1875, by notice

given by the United States July 1, 1874, in accordance with the joint resolu

tion of Congress approved June 17, 1874. 1868, December 5. Consular. Terminated January 1, 1880, in accordance with

Article XVI, by notice given by Belgium January 1, 1879. 1868, December 20. Trade-marks. Terminated July 1, 1875, with the treaty of

July 17, 1858, of which it formed part. 1874, March 19. Extradition. Terminated December 18, 1882, in accordance with

Article XI of convention of June 13, 1882. BRAZIL (see infra, 143). 1828, December 12. Commerce and navigation. Terminated December 12, 1841,

by notice given by Brazil March 26, 1840. CENTRAL AMERICA: 1825, December 5. Commerce and navigation. Terminated as respects commerce

and navigation by its own limitation August 2, 1838, and for the rest by the

dissolution of the federation in 1839. CHILI: 1832, May 18. Commerce and navigation. Terminated January 20, 1850, by

notice given by Chili January 19, 1849, in accordance with Article XXXI. *1833, September 1. Additional to, and explanatory of, the treaty of 1832. Ter.

minated January 20, 1850, with the treaty of May 13, 1832, of which it formed

part. CHINA (see infra, ở 144): 1844, July 3. Amity and commerce. The treaties of June 18 and November 8,

1858, take its place. COLOMBIA (see infra ý 145): 1824, October 3. Commerce and navigation. Terminated October 3, 1836, by its

own limitation, FRANCE (see infra, j$ 148 f): 1778, February 6. Amity and commerce. Terminated by act of Congress ap

proved July 7, 1798. (But see discussion supra in this section, and infra,

Ø Ø 148, 248.) 1778, Febroary 6. Alliance. Terminated as above. (Ibid.) 1778, February 6. '(Act separate and secret.) Terminated as above. (Ibid.) 1708, November 14. Consular. Terminated as above. (Ibid.) 1800, September 30. Commerce and navigation. Terminated July 31, 1809, by

its own limitation. GREAT BRITAIN (see infra, 0 0 150 ): 1782, November 30, Peace; 1783, September 3, Commerce and navigation ; 1794,

November 19, Commerce and navigation ; 1797, May 4, Explanatory ; 1798, March 15, Explanatory; 1802, January 8, Claims. Held by Great Britain

to have been terminated by war of 1812. (But as to this, see supra, 135.) 1827, September 29. Boundary. Treaty of 1812 substituted. 1854, June 5. Reciprocity. Terminated March 17, 1866, by potice given by the

United States March 17, 1865, in accordance with the joint resolution of Congress approved January 18, 1865,

GREAT BRITAIN-Continued. 1862, April 7. Slave trade. Right of search and detention therein given extended

to vicinity of certain islands, February 17, 1863. Provisions as to mixed tribunals abolished August 10, 1870. Instructions for the ships employed to

prevent the African slave trade modified by convention of June 3, 1870. 1871, May 8. Alabama claims. Articles 18 to 25 inclusive, and article 32, rela

ting to the fisheries, and article 30, respecting the transportation of merchandise terminated July 1, 1885, by notice given by the United States July 2, 1883, in accordance with the joint resolution of Congress approved March

3, 1883. GUATEMALA :

1849, March 3, Terminated November 4, 1874. HANOVER: All the treaties with Hanover are regarded as having terminated in consequence

of its incorporation into the Kingdom of Prussia in 1866. ITALY (see infra, ( 152): 1868, February 8. Consular. Terminated September 17, 1878, by notice given

by Italy, September 15, 1880. JAPAN (see infra), ” 153): 1854, March 31. Such of the provisions of this treaty as conflict with those of

the treaty of July 29, 1858, are revoked by the twelfth article of the latter

treaty. 1857, June 17. Terminated by Article XII of the treaty of July 29, 1858. 1864, January 28. Commerce. Terminated July 1, 1866, by convention of July

25, 1866. Mexico (see infra, ” 154):

1828, January 12. Never carried into operation. 1831, April 5. Suspended by war between the parties in 1846–1847; revived May

30, 1848, with some exception, by article 17 of the treaty of February 2, 1848; article 33 abrogated by article 2 of the treaty of December 30, 1853 ; and the entire treaty finally terminated November 30, 1881, by notice given

by Mexico November 30, 1880. 1868, July 10. Terminated February 11, 1882, by notice given by Mexico Feb.

ruary 10, 1881. MOROCCO:

1787, January. Terminated January, 1837, by its own limitation. Nassau: 1846, May 27. Nassua was absorbed into the Kingdom of Prussia in 1846, and all

treaties with it are regarded as terminated. NETHERLANDS (see infra, Ø 155):

1782. (See Mr. Fish to Mr. De Westenberg, April 9, 1873, quoted supra, 9 137.) 1855, January 22. Consular. Terminated August 20, 1879; the con tion of May

23, 1878, took its place. PERU:

1836. (See infra, ý 157.) 1851, July 26. Terminated December 9, 1863, by notice given by Peru December

9, 1862 1870, September 6. Commerce and navigation. Terminated March 31, 1886, by

notice given by Peru March 31, 1885. 1870, September 12. Extradition. Terminated as above.

PRUSSIA (see infra, ( 149): 1785, September 10. Amity and commerce. Terminated October, 1796, by its own

limitation. 1799, July 11. Amity and commerce. Terminated June 22, 1810, by its own limi

tation. SALVADOR: 1850, January 2. Commerce and navigation. Abrogated by article 38 of treaty

of December 6, 1870. SARDINIA (see infra, $ 160): 1838, November 26. Commerce and navigation and separate article. Treaty of

1871 with Italy takes its place. SPAIN (see infra, jo 161 p.):

1802, August 11. Claims. Annulled by article 10 of treaty of February 22, 1819. SWEDEN AND NORWAY:

1816, September 4. Terminated by its own terms. TRIPOLI (see infra, V 164):

1796, November 4. Treaty of June 4, 1805, takes its place. TURKEY:

(See infra, 3 165.) Two SICILIES (see infra, 152):

1845, December 1. Commerce and navigation Treaty of 1855 takes its place. 1855, January 13. Neutral rights. Terminated by absorption of the Two Sicilies

by Italy. 1855, October 1.

Commerce and navigation and extradition. Terminated by absorption of the Two Sicilies by Italy. VENEZUELA (see infra, ở 165a): 1836, January 20. Commerce and navigation. Terminated January 3, 1851, by

notice given by Venezuela in note of November 5, 1849, received January 3,

1850. 1860, August 27. Commerce and navigation and extradition. Terminated Octo

ber 22, 1870, by notice given by Venezuela October 22, 1869.

X. TREATIES, WHEN CONSTITUTIONAL, ARE THE SUPREME LAW OF

THE AND, BUT MAY BE MUNICIPALLY MODIFIED BY SUBSEQUENT LEGISLATION

§ 138.

6 Treaties, as I understand the Constitution, are made supreme over the constitutions and laws of the particular States, and, like a subsequent law of the United States, over pre-existing laws of the United States; provided, however, that the treaty be within the prerogative of making treaties, which, no doubt, has certain limits.

6. That the contracting powers can annul the treaty cannot, I presume, be questioned, the same authority, precisely, being exercised in annalling as in making a treaty.

* That a breach on one side (even of a single article, each being considered as a condition of every other article) discharges the other, is as little questionable, but with this reservation, that the other side is at liberty to take advantage or not of the breach, as dissolving the treaty. Hence I infer that the treaty with Great Britain, which has not been annulled by mutual consent, must be regarded as in full force by all on whom its execution in the United States depends, until it shall be de. S. Mis. 162- VOL. II-5

65

clared by the party, to whom a right has accrued by the breach of the other party to declare, that advantage is to be taken of the breach, and the treaty is annulled accordingly. In case it should be advisable to take advantage of the adverse breach, a question may perhaps be started, whether the power vested by the Constitution with respect to treaties in the President and Senate makes them the competent judges, or whether, as the treaty is a law, the whole legislature are to judge of its annulment, or whether, in case the President and Senate be competent in ordinary treaties, the legislative authority be requisite to annul a treaty of peace, as being equivalent to a declaration of war, to which that authority alone, by our Constitution, is competent."

Mr. Madison to Mr. Edmund Pendleton, Jan. 2, 1791. 1 Madison's Work's, 524.

See Mr. Jefferson's views, supra, Ø 131.

“I delivered to the President my report of instructions for Carmichael and Short on the subject of navigation, boundary, and commerce, and desired him to submit it to Hamilton. Hamilton made several just criticisms on different parts of it. But where I asserted that the United States had no right to alienate an inch of the territory of any State, he attacked and denied the doctrine. See my report, his note, and my answer. Extract from Jefferson's Ana, March 11, 1792. 2 Randall's Life of Jefferson,

55.

“In every constitutional Government the power of raising and granting money is vested in the legislature; that of making treaties in the executive. In every such Government the question may arise whether the treaty-making power is, in every instance, paramount, and imposes on the legislature the duty of granting without examination the money necessary to pay the subsidies or indemnities promised by the treaty; or, whether the power of granting money, vested by the constitution in that body, does not necessarily imply the right of examining and deciding each case according to its original merits.

“ The present Administration of the United States is of opinion that here the treaty-making power is paramount. It may thence have been too hastily inferred that that power was in France also acknowledged to be supreme and to pledge absolutely the legislature and the nation. There may be in the Constitution of the United States some clauses not to be found in that of France, which sustain the construction adopted by our Executive Magistraté. But even in the United States the question has been considered as doubtful.

“ Mr. Madison's resolution of the year 1796, which asserts the abstract right of the House of Representatives, was adopted by a majority of the House, and remains, unrepealed, of record on its journal. And it cannot be denied that, during the sixteen years of the administration of Presidents Jefferson and Madison, that was the avowed construction of the Constitution by the Government of the United States. It is not necessary here to inquire whether that construction is correct. not be an impartial judge of that question, and only mean to show that even here, it is one on which opinions have been divided.”

Mr. Gallatin to Mr. Everett, January, 1835. 2 Gallatin's Writings, 479. “ The non-compliance with the conditions of a treaty, whether proceeding from the executive or legislative branch of Government, does not alone, and when neither arising from a hostile spirit nor accompanied

I may

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