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commercial relations on reciprocal treatment of the mostfavored-nation. The article provided further that the conventions of navigation, and those relative to service of international railroads, and for the reciprocal protection of works of art, should be revived. An additional convention signed December 11, 1871, revived, with reservations, treaties existing before the war. In the treaty of San Stefano between Russia and Turkey, signed March 3, 1878, it was provided that all treaties of commerce and navigation, and those relative to the jurisdiction and position of Russian subjects within Turkish dominions, and which had been abrogated by the state of war, should be renewed so far as compatible with the treaty.3 The treaty of peace between China and Japan signed April 17, 1895, recognized that all treaties between the two had, "in consequence of the war," come to an end. The contracting parties engaged to appoint immediately upon the exchange of ratifications plenipotentiaries to conclude new treaties of commerce and navigation. During the peace negotiations between the United States and Spain at Paris, the American commissioners, acting under their instructions, proposed that all previous treaty stipulations between the two countries that were not already executed or obsolete should "be held to continue in force." The Spanish commissioners rejected the proposal on the ground that the determination of the question what treaties were obsolete would involve a more extended examination than the commission was in a position to give, adding, however, that this did not imply that the two govern

'Art. XI.

'Art. XVIII.

Art. XXIII.

'Art. VI.

Sen. Doc., 148, p. 7, 56th Cong., 2nd sess. Sen. Doc., 62, pp. 249, 254, 55th Cong., 3rd sess.

The

ments might not take up the subject themselves. American commissioners further urged the renewal of the articles on extradition, trade-marks and copyright, and proposed to revive them temporarily by a modus vivendi, but this proposition was also rejected. Accordingly no provision was inserted in the peace for the renewal of treaties. A new general treaty of amity and commerce has been concluded, Article XXIX of which declares that all treaties and agreements between the United States and Spain "prior to the treaty of Paris shall be expressly abrogated and annulled" with the exception of the claims convention of February 17, 1834, "which is continued in force by the present convention." On the part of the United States the privilege of the protection of copyright extended to Spanish subjects by the proclamation of July 10, 1895, although suspended during the war, was continued upon the proclamation of the treaty of peace. This fact having been brought to its attention, the Spanish government in a note under date of November 18, 1902, declared that the agreement was on its part re-established and put into renewed operation.

(d) Infractions

The difficulty of compelling specific performance, or perhaps of obtaining pecuniary compensation in mitigation of damages, by means other than those which, while they tend to produce hostile relations, do not assure reparation to the innocent party, renders it even more necessary and equitable, than in the case of private contracts, that upon a breach of a treaty the continuance of the obligation should be made dependent upon the will of the party faithfully performing. But what constitutes a breach of this character? In defense of the denuncia

tion in 1870 of the provisions of the treaty of Paris for the neutralization of the Black Sea, it was contended among other things by the Russian government that the treaty with respect to these provisions had been violated. by the repeated entrance of men-of-war into the Straits. An investigation showed that in the course of the fifteen years since its conclusion, men-of-war had been allowed to pass through the Straits not in strict conformity to the treaty as follows: in 1862, one British; in 1866, one American; in 1868, two American, two Austrian, one French and one Russian; and in 1869, one Prussian.' It may be doubted that the Russian government would have asserted a right of denunciation on this ground alone. "The admission of a few isolated ships at different times was not an act in itself calculated," says Hall, "to endanger the objects of the treaty, viz., the settlement of Eastern affairs and the rendering of security to Turkey, or to impair the efficacy of the safe-guards given to Russia by way of compensation for the loss of naval power." Prior to the signing of the treaty of London, by which the onerous obligations were for equitable reasons, independently of the questions raised as to the right of denunciation, modified, the plenipotentiaries of Austria-Hungary, Germany, Great Britain, Italy, Russia and Turkey in conference, January 17, 1871, entered into a protocol which declared "that it is an essential principle of the law of nations that no power can free itself from the engagements of a treaty, nor modify the stipulations thereof, except with the assent of the contracting parties by means of an amicable arrangement." The

'Hertslet's, Map of Europe by Treaty, vol. iii, p. 1895 note. 'See ibid., p. 1892 et seq.

International Law (4th ed.), p. 371.

'Brit. and For. State Papers, vol. lxi, p. 1198.

principle was laid down by Grotius that "every article of the agreement has the force of a consideration,"1 and by Vattel that the several articles of the same treaty cannot be considered "as so many distinct and independent treaties." Without doubt, every promise made by one party "may go to make up the consideration in return for which essential parts of the agreement are conceded or undertaken," and it is not for the party committing the infraction to determine what is, or is not, essential in the eyes of the others; yet it is conceivable that the several articles might be so separated and mutually reciprocal that even the aggrieved party could show no relation between the article violated and others embodied in the same general treaty. A standard is to be sought which, in compelling strict observance, will not at the same time encourage the seeking of pretexts for release from onerous treaty obligations. "There can be no question," to quote again from Hall, whose succinct expressions can seldom be improved by recasting, "that the breach of a stipulation which is material to the main object, or if there are several, to one of the main objects, liberates the party other than that committing the breach from the obligations of the contract; but it would be seldom that the infraction of an article which is either disconnected from the main object, or is unimportant, whether originally or by change of circumstances, with respect to it, could in fairness absolve the other party from performance of his share of the rest of the agreement, though if he had suffered any appreciable harm through the breach he would have a right to exact reparation and

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Bk. ù, ch. xiii, sec. 202; bk. iv, ch. iv, sec. 47. *Hall, p. 308

an end might be put to the treaty as respects the subjectmatter of the broken stipulation.” '

(e) By Agreement

A treaty repeals all pre-existing treaties between the same parties inconsistent with it. As nations may by mutual agreement annul treaties binding on them, so a provision may be, and often is, inserted in the treaty itself, by which the contracting parties agree that it may be terminated by a notice given by the one to the other.

In the United States some doubt has existed as to what body is authorized to give such notice. On the recommendation of President Polk, Congress passed a joint resolution, approved April 27, 1846, authorizing the President, at his discretion, to give notice to the British government of an intention to terminate the treaty of August 6, 1827, relative to the joint occupation of Oregon. Although notice was duly given, the treaty was as a matter of fact superseded, before the expiration of the time required by the treaty as sufficient notice, by a new treaty signed June 15, 1846. Ten years later the question was discussed at some length in the Senate in connection with the proposed termination of the treaty of commerce and navigation of April 26, 1826, with Denmark. President Pierce had, in his annual message to Congress, December 4, 1854, indicated his wish for authority to give the required notice for its termination.3 The Senate in executive session, March 3, 1855, unanimously passed such a resolution. Acting under its authority, the Executive caused the notice to be given,

'Hall, p. 369.

19 Stat. at L., 109. Richardson's Messages, vol. v, p. 279. 'Ex. Journal, vol. ix, p. 430.

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