And if not, whether the whole scope and object of its stipulations were not expressly intended to establish a new and permanent state of diplomatic relations between the two countries, which would not and could not be annulled by the mere fact of a subsequent war? And he made this appeal with the more confidence, because the British note admitted that treaties often contained recognitions in the nature of perpetual obligation; and because it implicitly admitted that the whole treaty of 1783 is of this character, with the exception of the article concerning the navigation of the Mississippi, and a small part of the article concerning the fisheries.

The position, that "Great Britain knows of no exception to the rule, that all treaties are put an end to by a subsequent war," appeared to the American Minister not only novel, but unwarranted by any of the received authorities upon the law of nations; unsanctioned by the practice and usages of sovereign States; suited, in its tendency, to multiply the incitements to war, and to weaken the ties of peace between independent nations; and not easily reconciled with the admission that treaties not unusually contain, together with articles of a temporary character, liable to revocation, "recognitions and acknowledgments in the nature of perpetual obligation."

A recognition or acknowledgment of title, stipulated by convention, was as much a part of the treaty as any other article; and if all treaties are abrogated by war, the recognitions and acknowledgments contained in them must necessarily be null and void, as much as any other part of the treaty.

If there were no exception to the rule, that war puts an end to all treaties between the parties to it, what could be the purpose or meaning of those articles which, in almost all treaties of commerce, were provided expressly for the contingency of war, and which during the peace are without operation? For example, the 10th article of the treaty of 1794, between the United States and Great Britain, stipulated that "Neither the debts due from individuals of the one nation to individuals of the other, nor shares, nor moneys, which they may have in the public funds, or in the public or private banks, shall ever, in any event of war, or national differences, be sequestered or confiscated." If war put an end to all treaties, what could the parties to this engagement intend by making it formally an article of the treaty? According to the

principle laid down, excluding all exception, by the British note, the moment a war broke out between the two countries this stipulation became a dead letter, and either State might have sequestered or confiscated those specified properties, without any violation of compact between the two nations.

The American Minister believed that there were many exceptions to the rule by which the treaties between nations are mutually considered as terminated by the intervention of a war; that these exceptions extend to all engagements contracted with the understanding that they are to operate equally in war and peace, or exclusively during war; to all engagements by which the parties superadd the sanction of a formal compact to principles dictated by the eternal laws of morality and humanity; and, finally, to all engagements, which, according to the expression of the British note, are in the nature of perpetual obligation. To the first and second of these classes might be referred the 10th article of the treaty of 1794, and all treaties or articles of treaties stipulating the abolition of the slave-trade. The treaty of peace of 1783 belongs to the third class.

The reasoning of the British note seemed to confine this perpetuity of obligation to recognitions and acknowledgments of title, and to consider its perpetual nature as resulting from the subjectmatter of the contract, and not from the engagement of the contractor. While Great Britain left the United States unmolested in the enjoyment of all the advantages, rights, and liberties stipulated in their behalf in the treaty of 1783, it was immaterial whether she founded her conduct upon the mere fact that the United States are in possession of such rights, or whether she was governed by good faith and respect for her own engagements. But if she contested any of these rights, it was to her engagements only that the United States could appeal, as the rule for settling the question of right. If this appeal were rejected, it ceased to be a discussion of right; and this observation applied as strongly to the recognition of independence and the boundary line, in the treaty of 1783, as to the fisheries. It was truly observed in the British note, that in that treaty the independence of the United States was not granted, but acknowledged; and it was added, that it might have been acknowledged without any treaty, and that the acknowledgment, in whatever mode, would have been irrevocable. But the independence of the United States was precisely the question upon

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 fœdera, 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