which a previous war between them and Great Britain had been waged. Other nations might acknowledge their independence without a treaty, because they had no right or claim of right to contest it; but this acknowledgment, to be binding upon Great Britain, could have been made only by treaty, because it included the dissolution of one social compact between the parties, as well as the formation of another. Peace could exist between the two nations only by the mutual pledge of faith to the new social relations established between them; and hence it was, that the stipulations to that treaty were in the nature of perpetual obligation, and not liable to be forfeited by a subsequent war, or by any declaration of the will of either party, without the assent of the other. (a)

§ 274. The above analysis of the correspondence which took place relating to this subject, has been inserted as illustrative of the general question, how far treaties are abrogated by war between the parties to them; but the particular controversy itself, was finally settled between the two countries on the basis of compromise, by the convention of 1818, in which the liberty claimed by the United States in respect to the fishery within the British jurisdiction and territory, was confined to certain geographical limits. (a) 142

(a) Mr. J. Q. Adams to Lord Castlereagh, Jan. 22, 1816: American State Papers, fol. edit. 1834, iv. 356.

(a) Vide supra, § 180.

[142 The North-eastern Fisheries. Since the text was written, the Reciprocity Treaty of 1854 gave a new adjustment to the subject of the North-eastern fisheries. That treaty conceded to the fishermen of the United States the further right to take fish of all kinds, except shell-fish, "on the sea-coast and shores, and in the bays, harbors, and creeks, of Canada, Nova Scotia, Prince Edward's Island, and of the several islands thereunto adjacent, without being restricted to any distance from the shore; with permission to land upon the coasts and shores of those colonies and the islands thereof, and also upon the Magdalen Islands, for the purpose of drying their nets and curing their fish." This liberty was restricted to sea-fishing. The salmon and shad fisheries, and all fisheries in rivers and mouths of rivers, were confined to British fishermen. Reciprocal rights were given to British fishermen on the eastern coasts of the United States north of 36° north latitude; and commissioners were to designate the places reserved from the common right of sea-fishing.

The Reciprocity Treaty, in accordance with a provision for the purpose, was terminated, after ten years, by a notice given by the President, in pursuance of an Act of Congress of 18th January, 1865 (U. S. Laws, xiii. 566). The question now arises as to the effect of the termination of this treaty upon the rights of the United States fishermen under the treaties of 1783 and 1818. Does the termination of the Reciprocity Treaty revive the convention of 1818? If not, then is the treaty of 1783 in

the opera

§ 275. Treaties, properly so called, or foedera, are those Treaties, of friendship and alliance, commerce, and navigation, tion of which, even if perpetual in terms, expire of course:- in certain 1. In case either of the contracting parties loses its cases. existence as an independent State.

which cease

2. Where the internal constitution of government of either State is so changed, as to render the treaty inapplicable under circumstances different from those with a view to which it was concluded.

Here the distinction laid down by institutional writers between

force? If, as Great Britain contended, the fishery clauses of the treaty of 1783 were annulled by the war of 1812 and the treaty of 1814, or if they are annulled by the subsequent treaties of 1818 or 1854, then there is no treaty on the subject. We are thus brought back to the question argued by Mr. Adams with Earl Bathurst, stated at length in the text, whether the rights of the United States fishermen were mere grants from Great Britain under the treaty of 1783, to fall with it, or were rights they held as colonists, recognized by that treaty, and, once recognized, not to be taken away, except as other national rights and national domain are to be taken, by conquest.

The meaning of the terms "coast, bays, harbors, and creeks," in the convention of 1818, received a construction by the mixed commission under the convention of 1853. The American fishing-schooner Washington was seized while fishing in the Bay of Fundy, ten miles from the shore, taken to a British port and adjudged forfeited. The ground of the judgment was, that, as the United States, by the convention of 1818, renounced the right to take fish "within three marine miles of any of the coasts, bays, creeks, or harbors of His Majesty's dominions," this line of three miles must be drawn across the mouth of the Bay of Fundy, from headland to headland, in order to define the "coast;" also, that the Bay of Fundy was one of the "bays" from which United States fishermen were excluded. The owners of the Washington presented their claim for compensation to the mixed commission above referred to. The commissioners differing, the cause was left to the decision of the umpire, Mr. Joshua Bates. He decided, that, as the Bay of Fundy is from sixty-five to seventy-five miles wide, and from one hundred and thirty to one hundred and forty miles long, with several bays on its coasts known and named as bays, and has.one of its headlands in the United States, which all vessels must pass bound to Passamaquoddy Bay, and one large island belonging to the United States (Little Menan, lying on the line between the headlands), the Bay of Fundy cannot be considered as an exclusively British bay, within the meaning of the treaties regulating the fisheries; nor could the "coast " of Great Britain, under those treaties, be measured from its headlands. Compensation for an illegal condemnation was awarded to the owners. (The Schooner Washington: Report of the Commissioners under the Convention of 1853, pp. 170-186.) The convention of 1839, between Great Britain and France, had settled such questions as this by the following provision: "It is agreed that the distance of three miles, fixed as the general limit for the exclusive right of fishing upon the coasts of the two countries, shall, with respect to bays the mouths of which do not exceed ten miles in width, be measured from a straight line drawn from headland to headland."]-D.

real and personal treaties becomes important. The first bind the contracting parties independently of any change in the sovereignty, or in the rulers of the State. The latter include only treaties of mere personal alliance, such as are expressly made with a view to the person of the actual ruler or reigning sovereign, and, though they bind the State during his existence, expire with his natural life or his public connection with the State. (a)

3. In case of war between the contracting parties; unless such stipulations as are made expressly with a view to a rupture, such as the period of time allowed to the respective subjects to retire with their effects, or other limitations of the general rights of war. Such is the stipulation contained in the 10th article of the treaty of 1794, between Great Britain and the United States, providing that private debts and shares or moneys in the public funds, or in public or private banks belonging to private individuals, should never, in the event of war, be sequestered or confiscated. There can be no doubt that the obligation of this article. would not be impaired by a supervening war, being the very contingency meant to be provided for, and that it must remain in full force until mutually agreed to be rescinded. (b)143

(a) Vide ante, § 27.

(b) Vattel, liv. iii. ch. 10, § 175. Kent's Comm. i. 175.

[143 Effect of War on Treaties. — Halleck says, "A declaration of war does not ipso facto extinguish treaties between the belligerent States. Treaties of friendship and alliance are necessarily annulled by a war between the contracting parties, except such stipulations as are made expressly with a view to a rupture, such as limitations of the general rights of war, &c. So of treaties of commerce and navigation: they are generally either suspended or entirely extinguished by a war between the parties to such treaties. All stipulations with respect to the conduct of the war, or with respect to the effect of hostilities upon the rights and property of the citizens and subjects of the parties, are not impaired by supervening hostilities, — this being the very contingency intended to be provided for, — but continue in full force until mutually agreed to be rescinded. There are many stipulations of treaties which, although perpetual in their character, are suspended by a declaration of war, and can only be carried into effect on the return of peace." (Intern. Law, 371; 862.) Kent says, As a general rule, the obligations of treaties are dissipated by hostilities. But, if a treaty contains any stipulations which contemplate a state of future war, and make provision for such an exigency, they preserve their force and obligation when the rupture takes place. All those duties, of which the exercise is not necessarily suspended by the war, subsist in their full force." (Commentaries, i. 420.) He refers to the tenth article of the treaty of 1794 as continuing, notwithstanding the war of 1812; it being a general provision respecting the effect of war upon private rights. In the case of the Society for the Propagation of the Gospel v. New Haven (Wheaton's Rep. viii. 464), the Supreme Court held that private rights, vested and confirmed by a treaty, are not devested on the termination of that treaty by war. The court says, "These

4. Treaties expire by their own limitation, unless revived by express agreement, or when their stipulations are fulfilled by the respective parties, or when a total change of circumstances renders them no longer obligatory.

confirmed

newal of

§ 276. Most international compacts, and especially Treaties treaties of peace, are of a mixed character, and contain revived and articles of both kinds, which renders it frequently diffi- on the recult to distinguish between those stipulations which are peace. perpetual in their nature, and such as are extinguished by war between the contracting parties, or by such changes of circumstances as affect the being of either party, and thus render the compact inapplicable to the new condition of things. It is for this reason, and from abundance of caution, that stipulations are fretreaties contemplate a permanent arrangement of territorial and other national rights : .. it would be against every principle of just interpretation to hold them extinguished by the event of war. . . . We think that 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." Woolsey considers the survival of treaty stipulations after war as a special question in each case, depending upon the nature of the stipulation and its circumstances. Not only do those survive which contemplate a war, but those which are in their nature permanent; as recognition of independence, cessions of territory, and adjustment of boundaries. (Introd. § 152.) The older text-writers made the survival of treaty rights dependent upon the origin of the war. If the war arose in the breach of the treaty, the provisions were annulled; but, if the war was what was called a new war, that is, one arising from a cause independent of the treaty, — though the exercise of rights acquired under the treaty would be interrupted by the war, they would not be lost, unless by conquest. (Grotius, liv. iii. ch. 20, §§ 27, 28. Vattel, liv. iv. ch. 4, § 42.) Kent notices this distinction without remark. Woolsey says of it, "This rule, which would be a very important one if admitted, and yet perhaps one attended with practical difficulties, is not, so far as we are informed, insisted on by later text-writers, nor introduced into the code of nations." (Introduction, § 152.) Indeed, it seems plain that the test of survival is to be found in the nature of the provision, and not in the origin of the war. If, indeed, the war amounts to a mutual abrogation of the treaty, the rights under it cease, from that fact; but, if the war has its origin in a breach of the treaty by one party, the rights of the other under the treaty cannot be affected. They may be lost by the result of the war, that is, by conquest, as any other right may be; but not by the fact that the other party begins a war for the purpose of escaping the obligation of the treaty in respect to those rights. So, if a war arises from a cause independent of the treaty, the survival of any clause in the treaty must depend upon its nature, and the circumstances under which it was made. See also the debate in the House of Commons on the Declaration of Paris of 1856. Speeches of Sir George Lewis and Mr. Bright of March 11 and 17, 1862, and of the 'Earl of Derby of Feb. 7, 1862. Despatch of Mr. Marcy to Mr. Mason of Dec. 8, 1856. Phillimore's Intern. Law, Hi. App. 21.] — D.

quently inserted in treaties of peace, expressly reviving and confirming the treaties formerly subsisting between the contracting parties, and containing stipulations of a permanent character, or in some other mode excluding the conclusion that the obligation of such antecedent treaties is meant to be waived by either party. The reiterated confirmations of the treaties of Westphalia and Utrecht, in almost every subsequent treaty of peace or commerce between the same parties, constituted a sort of written code of conventional law, by which the distribution of power and territory among the principal European States was permanently settled, until violently disturbed by the partition of Poland and the wars of the French revolution. The arrangements of territory and political relations substituted by the treaties of Vienna for the ancient conventional law of Europe, and doubtless intended to be of a similar permanent character, have already undergone, in consequence of the French, Polish, and Belgic revolutions of 1830, very important modifications, of which we have given an account in another work. (a)

Treaties

§ 277. The convention of guaranty is one of the most of guaranty. usual international contracts. It is an engagement by which one State promises to aid another where it is interrupted, or threatened to be disturbed, in the peaceable enjoyment of its rights, by a third power. It may be applied to every species of right and obligation that can exist between nations; to the possession and boundaries of territories, the sovereignty of the State, its constitution of government, the right of succession, &c.; but it is most commonly applied to treaties of peace. The guaranty may also be contained in a distinct and separate convention, or included among the stipulations annexed to the principal treaty intended to be guarantied. It then becomes an accessory obligation. (a)

The guaranty may be stipulated by a third power not a party to the principal treaty, by one of the contracting parties in favor of another, or mutually between all the parties. Thus, by the treaty of peace concluded at Aix-la-Chapelle in 1748, the eight high contracting parties mutually guarantied to each other all the stipulations of the treaty.

(a) Wheaton's Hist. Law of Nations, 435-445, 538–551.

(a) Vattel, Droit des Gens, liv. ii. ch. 16, §§ 235-239. Klüber, Droit des Gens Moderne de l'Europe, Part. II. tit. 2, sect. 1, ch. 2, §§ 157, 158. Martens, Précis, &c. § 63.