"4°. In consequence of the considerations which are above pointed out by the above ss. 2 and 3, the Prince Christian of Glücksbourg, conjointly with the Princess, his consort, and in their default, the male lineage of their Highnesses, would have, more than any other branch, claims which qualify them to succeed, if the contingency should arrive, to the states actually united under the sceptre of His Danish Majesty.

"Consequently the two Courts of Copenhagen and St. Petersburgh have agreed,

"That His Majesty the King of Denmark shall designate the Prince and Princess of Glücksbourg conjointly as heirs presumptive of his Crown, in case the male line of the dynasty actually reigning should become extinct;

"That His Majesty shall make known his high determination to the Powers in amity with Denmark;

"That if, to ensure the complete success of this arrangement, still further renunciations should be deemed useful and desirable, it would be for His Danish Majesty to make himself responsible for the indemnities to which just and equitable claims should be established;

"Finally, that the negotiations necessary to give to the arrangements, in virtue whereof the Prince and Princess of Glücksbourg shall be acknowledged as successors presumptive to the throne of Denmark, the character of an European transaction, shall take place in London.

"The undersigned reserve to themselves to submit the present Protocol to their august Sovereigns, and to solicit their high approbation in favour of the provisions it contains.

"(Signed) NESSELRODE, MEYENDORFF, "REEDTZ.

"In accordance with the orders of my Court, it becomes my duty to communicate to your Excellency the accompanying note, which I have this moment given to the Minister of Denmark, upon signing conjointly with him the Treaty of this day's date.

"In requesting you to have the goodness to take cognizance of it, "I have the honour, &c.

"(signed) BRUNNOW.

"Translation of a Note addressed by Baron Brunnow to the Minister for

Denmark.

"London, 26 April 1852.

8 May

"The undersigned, Envoy Extraordinary and Minister Plenipotentiary of His Majesty the Emperor of all the Russias to Her Britannic Majesty, having been authorized to sign the Treaty, concluded this day

conjointly with His Excellency the Chamberlain de Bille, Envoy Extraordinary and Minister Plenipotentiary of His Majesty the King of Denmark, has been ordered to transmit to him at the same time the present Note, for the purpose of racalling and renewing the reserves contained in the Protocol of Warsaw, of 1851; which, after having received the sanction of His Majesty the Emperor of all the Russias, and of His Majesty the King of Denmark, was conveyed to the knowledge of the Cabinets who have signed the present Treaty.

24 May

5 June

"The third paragraph of the Protocol above mentioned is worded in these terms:

*Wishing on his part to complete the titles resulting from these renunciations, and thus to effect an arrangement which [*659] would be of such high importance for the maintenance of the Danish monarchy in its integrity, His Majesty the Emperor of all the Russias, as chief of the elder branch of Holstein Gottorp, would be ready to renounce the eventual rights which belong to him in favour of Prince Christian Glücksbourg and of his male lineage.

"Nevertheless, it is understood that the eventual rights of the two younger branches of Holstein Gottorp should be expressly reserved;

"That those which the august chief of the elder branch should abandon for himself, and for his male lineage, in favour of Prince Christian of Glücksbourg, and of his male lineage, should be revived in the Imperial House of Russia whenever (which God forbid) the male lineage of that Prince should become extinct;

"That inasmuch as the renunciation of his Majesty the Emperor would principally have for its object to facilitate an arrangement called for by the chief interests of the monarchy, the offer of such a renunciation would cease to be obligatory, if the arrangement itself should fail.' "In renewing, by order of his Government, the reserves above mentioned,

HOW TREATIES ENTERED INTO BEFORE THE WAR ARE AFFECTED WHEN THE WAR IS CONCLUDED AND PEACE RESTORED.

DXXIX. It seems to be a branch of the question, how the public relations of states are affected by a Treaty which concludes a War, to consider what effect the War has upon Treaties existing before the War, but not mentioned or referred to in the new Treaty of Peace.

Many Treaties, especially those relating to leagues for War or for Commerce, are only contracted for a limited period, at the expiration of which they become invalid unless renewed. This renewal is not always expressly, but sometimes tacitly, (a) effected. M. de Martens observes

(a) G. F. Von Martens, Ueber die Erneuerung der Verträge in den Friedenschlüssen der Europäischen Mächte. Göttingen, 1797.

that more than one Treaty of Commerce entered into in the seventeenth century was in existence towards the end of the eighteenth century.

As, theoretically speaking, a private contract may be tacitly annulled by a total alteration of the circumstances on which it was founded; so it has been made a matter of dispute, with respect to treaties among States, whether a change of circumstances subsequent to the Treaty does not operate to the defeasance of the Treaty itself. For instance, it was a matter of dispute whether Austria, being bound by the Barrier-Treaty of the United Netherlands to admit Dutch garrisons into the fortresses, which were to serve as a defence *against France, remained [*661] under this obligation after the greater part of these fortresses had been demolished during the War of the Austrian Succession. Joseph the Second, in 1781, seems to have had little hesitation in razing(6) them to the ground.

With respect to Treaties with a state which has ceased to possess an independent existence, (c) it seems evident that the public contracts with it cease with the cessation of its distinct personality-as with Poland after its partitions, and the Crimea after its subjugation to Russia in 1783.

But this observation requires an important limitation. Such a loss of personality and independence leaves unimpaired the obligations of what are usually, but somewhat carelessly, termed transitory Treaties-that is to say, Treaties relating to cessions of territory, to demarcations of boundary, to that particular class of obligations called Servitutes Juris Gentium,(d) the nature and character of which have been already discussed in this work.

Certain Genoese families, the Counts of Casati and others, pressed their claims to certain portions of Crimean territory upon the Russians, both in 1779 and in 1783, at which latter period the subjugation of the Crimea was complete. Russia replied on both occasions that she would recognize no claims which did not flow from the provisions of her Treaty with the Porte. This answer, in the opinion of De Martens, was, in 1783, whatever it might have been in 1779, bad in law.(e)

DXXX. It was at one time an international custom that the Belligerents should, at the breaking out of War, make a public and solemn proclamation that the obligations *of Treaties between them had [*662] ceased. (f) That custom has become obsolete. In the place of it has arisen the general maxim, that War, ipso facto (von selbst,) abrogates Treaties between the Belligerents. The questions which present themselves for our consideration are: first, whether this proposition be true in all its latitude, or whether it requires any—and if any, what— limitations, before it can be enunciated as one of the admitted and incontrovertible principles of International Jurisprudence?

Secondly, if it be universally, or with certain limitations, true, that

(b) See De Martens, Rec. des Tr., t. iv. p. 433, for State Papers on the subject. (c) Vide ante, Vol. I. Pt. II. Ch. VI. VII.

(d) Vide ante, Vol. I. Pt. III. Ch. XV.

(e) Ueber die Erneuerung der Verträge, p. 7.

(f) Leibnitz, Præf. ad Cod. Diplom. Jur. Gentium.

Treaties annulled by War are revived by the return of Peace without express stipulations to that effect?

DXXXI. The general maxim must manifestly be subject to limitation in one case, namely, in the case of Treaties which expressly provide for the contingency of the breaking out of War between the contracting parties and the Judges of the North American United States were well warranted in saying, "We are not inclined to admit the doctrine urged at the bar, that Treaties become extinguished, ipso facto, by War between the two governments, unless they should be revived by an express or implied renewal on the return of Peace. Whatever may be the latitude of doctrine laid down by elementary writers on the law of nations, dealing in general terms in relation to this subject, we are satisfied that the doctrine contended for is not universally true. There may be treaties of such a nature, as to their object and import, as that War will put an end to them; but where Treaties contemplate a permanent arrangement of territorial and other national rights, or which, in their terms are meant to provide for the event of an intervening War, it would be against every principle of just interpretation to hold them extinguished by the event of War. If such were the law, even the Treaty of 1783, so far as it fixed our limits and acknowledged our independence, would be gone, and we should have had again to struggle for both upon original [*663] revolutionary principles. Such a construction was never asserted, and Would be so monstrous as to supersede all reasoning."(g)

Some writers on Public and International Law go further and say that War abrogates only those Treaties the existence of which is incompatible with Belligerent relations.(h)

Mr. Wildman has expressed his opinion that "all engagements subsisting between Belligerents at the commencement of hostilities are revived by a Treaty of Peace, so far as they are consistent with its provisions."(i)

Such an opinion, however, it appears to the writer of these pages, must be considered as at variance with the true doctrines of International Law, and especially with those derived from two of the sources of this jurisprudence, viz., the conclusions of accredited writers and the practice of states.(k)

The opinion() has arisen partly (1.) from a misapprehension of the

(g) The Society, &c. v. New Haven, 5 Curtis's (Amer.) Reports, p. 493. (h) De Martens, in his treatise above referred to, after stating the general maxim, says: "So gilt doch nicht eben dieses von allen übrigen vorhergehenden mit dem jetzigen Kriege nicht in Verbindung stehenden Verträgen und wenn dieses so allgemein von einzelnen Schriftstellern und wohl gar zuweilen in öffentlichen Staatschriften behauptet worden, so liegt dabei wohl noch mehr eine Verwechselung des Ausdrucks, als eine Irrthum in der Sache selbst zum Grunde."-s. 8. He cites, "Möser, Vermischte Abhandlungen aus dem Europ. Völkerrecht.”—s. 3, n. f. (i) Vol. I. p. 176. (k) Vide ante, Vol. I. Pt. I. Ch. V. and VII.

There is a very able discussion upon this point to be found in the columns of the Morning Chronicle for December, 1853. Heffters, p. 183, s. 99, p. 215, s. 122, p. 317, s. 181, and note 1, in which the author says, "Dieser Punct ist und bleibt einer der schwierigsten :" in the text he says, "Dagegen sind alle Vertragsverpflichtungen deren Erfüllung erst noch in Zukunft geschehen sollte, wo also noch eine Willensänderung in Betreff der übernommenen Verpflichtung möglich

*meaning of a passage in Vattel, partly (2.) from misapplying [*664] judicial dicta, uttered with respect to Private Contracts to Public Treaties; partly, (3.) and perhaps chiefly from not discriminating between those parts of a Treaty which contained a final adjustment of a particular question, such as the fixing a disputed boundary or ascertaining any contested right or property; or which incorporated by the common consent, express or tacit, of all States concerned in its assertion and maintenance, a great public principle into the International Code. That principle once so incorporated, does not require reiteration in subsequent Treaties, and, unless expressly repudiated, revives with Peace, or rather remains unaffected by War waged upon grounds unconnected with it.

(1.) The passage in Vattel is taken from the 42d Section of his Fourth Book. "It is (he says) of great importance to draw a proper distinction between a new War and the breach of an existing Treaty of Peace; because the rights acquired by such a Treaty still subsist notwithstanding the new war whereas they are annulled by the rupture of the Treaty on which they are founded. It is true, indeed, that the party who had granted those rights does not fail to obstruct the exercise of them during the course of the War as far as lies in his power; and he even may, by the right of arms, wholly deprive his enemy of them, as well as he may wrest from him his other possessions. But in that case he withholds those rights as things taken from the enemy, who, on a new Treaty of Peace, may urge the restitution of them. It often happens, when nearly equal success has attended the arms of both parties, that the Belligerents agree mutually to restore their conquests and to replace everything in its former state. When this is the case, if the War in which they were engaged was a new one, the former Treaties still subsist."

But of what is the writer speaking? Not of the effect of War generally upon Treaties,-not whether existing public covenants are dissolved by hostilities, but whether the dispute between the Belligerents arises out of an alleged breach of an existing public covenant, or [*665] whether it arises out of a new cause of offence, e. g. violation of general International Rights, irrespective of any positive convention subsisting between the Belligerents.

In the passage under discussion Vattel is not considering Treaties, in which it is agreed that there shall be either an express renewal, or a tacit revival, of former Treaties, irrespective of the new convention between the parties. He is supposing that the Belligerents have agreed to adopt the status quo ante bellum as the adjustment of their quarrel. In order to ascertain what that status was, the relations of the parties before the War broke out must be considered, and whether, therefore, independently of this War, the former Treaties between the parties were in existence. Now, if the War was a new War, that is a War on account of the violation of some general right and not of a positive convention, then, previously to the War, the former Treaties were unbroken, and then, by the engagement of both parties to observe the status quo

war, durch den Ausbruch des Krieges zweifelhaft und unsicher geworden, so das sie einer Bestâtigung durch eine neue deutliche Willenserklarung bedürfen."