Opinion of . XIX war between the parties. Such are the treaties indicated in subsection 9 of paragraph 135, as treaties of recognition of the independence of a State, of cession or exchange of territories, boundary conventions, and those which create certain permanent servitude rights in favour of a neighbouring State over the territory of another. If, in certain instances, the operation of such treaties might be suspended by war in some special directions, they tacitly resume effect at the conclusion of peace, without their renewal being expressly mentioned in the treaty of peace, unless they have been the vital cause of the war or form special conditions of peace. Treaties which are made in time of peace to secure some mutual interest in time of war between parties, have the state of war for their raison d'être and are consequently suspended in time of peace, as having only effect between belligerent States. Such are conventions regarding the time allowed reciprocally, to the respective nationalities, for quitting the enemy's territory with their moveables; regarding exemption from confiscation with reference to property left behind, whether personal or real. Such are also all regulations made with regard to the laws of war, or stipulations which are meant to provide for the event of an intervening war, as stipulations relating to prizes, prisoners of war, blockades, contraband of war, inviolability of private property, etc. These agreements are, by their nature, liable to be annulled only by new agreements or in the manner provided in the treaties themselves. * In his elaborate and clear treatment of this question, Mr. Hall gives the following opinion. * VATTEL. Liv. III. Chapt. X. § 175. KENT. Com. on American Law. Vol. I. p. 177. HALLECK. Edit. Sir Sherston Baker. Vol, I, p. 242. 6 . XIX "It is not altogether settled what treaties are annulled or suspended by war, and what treaties remain in force during its continuance or revive at its conclusion. According to some writers all treaties are annulled except in so far as they are concluded with the express object of regulating the conduct of the parties while hostilities last.' Wheaton considers that so-called 'transitory conventions,' which set up a permanent state of things by an act done once for all, such as treaties of cession or boundary, or those which create a servitude in favour of one Nation within the territory of another, generally subsist notwithstanding the existence of war, and although their operation may in some cases,' which he does not specify, 'be suspended during war, they revive on the return of peace without any express stipulation; other treaties, as of commerce and navigation, expire of course, except such stipulations as are made expressly with a view to a rupture.' † De Martens is of the same opinion, except that he thinks that transitory conventions may always be suspended and sometimes annulled. Other writers and the English and American Courts hold that 'transitory conventions' are in no case destroyed or suspended by war, they being, according to Sir Travers Twiss, less of the nature of an agreement than of a recognition of a right already existing, or, as the same view was put in the form of an example by an American judge, ‘if treaties which contemplate a permanent arrangement of territorial or other national rights were extinguished by the event of war, even the treaty of 1783, so far as it fixed our limits and acknowledged our independence, would be gone, and * VATTEL. Liv. III. Chapt. X. § 175. + WHEATON. Part III. Chapt. II. §§ 9-10. DE MARTENS. $8. on the occurrence of war between England and the United States we should have had again to struggle for both upon original revolutionary principles.'* Others again think that all treaties remain binding unless their terms imply the existence of peace, or unless the reason for their stipulations is destroyed by the war; or else that treaties of the last-mentioned kind, such as treaties of alliance, are annulled, but that treaties of commerce, postal conventions, and other arrangements of like character, are suspended only, and that treaties or provisions in them, such as those ceding or defining territory, which are intended to be permanent, remain in force; or finally that treaties are put an end to or suspended only when or in so far as their execution is incompatible with the war itself." † "A like divergence of opinion is suggested by the conduct of States at the conclusion of recent wars. By the Treaty of Paris, which ended the Crimean war, it was stipulated that, until the treaties or conventions existing before the war between the belligerent Powers were renewed or replaced by fresh agreements, trade should be carried on on the footing of the regulations in force before the war, and the subjects of the inter-belligerent States should be treated, as between those States, as favourably as those of the most favoured Nation. Under this provision, not only were fresh treaties of commerce concluded, but it seemed necessary to Russia and Sardinia to exchange declarations to the effect that a convention for the abolition of the droit d'aubaine, than which no agreement could seem to be more thoroughly made in view of a permanent arrange * TWISS. I. §§ 225-6. Sutton v. Sutton. I. Russell and Mylne. 663. † HEFFTER. §§ 122 and 180-1. CALVO. $729. BLUNTSCHLI, ment of rights, was to be considered as having recovered its force from the date of the exchange of ratifications, of treaty. Again, as between Austria and Sardinia in 1859, all treaties in vigour upon the commencement of the war of that year were confirmed, that is to say were stated by way of precaution to be in force, by the Treaty of Zurich, and among those treaties seem to have been a treaty of commerce and postal convention; but as between Austria and France, no revival or confirmation of treaties was stipulated, although agreements of every kind existed between them. In 1866 the Treaty of Vienna between Austria and Italy confirmed afresh the engagements with which the Treaty of Zurich had dealt, and the Treaty of Prague revived, or in other words re-stipulated all the treaties existing between Prussia and Austria in so far as they had not lost their applicability through the dissolution of the German Confederation. In 1871, the Treaty of Frankfurt revived treaties of commerce and navigation, a railway convention having reference to the customs, copy-right conventions and extradition treaties, without making any mention of other treaties by which France and Germany were bound to each other." "Looking at the matter apart from authority and from practice, treaties and other conventions, except those made in express contemplation of war, or articles so made forming part of more general treaties, as to the binding force of which during hostilities there is no question, would seem to fall naturally for present purposes under the following heads: "1. Treaties, such as great European territorial settlements and dynastic arrangements, intended to set up a permanent state of things by an act . XIX done once for all, in which the belligerent parties have contracted with third Powers as well as with each other." "2. Treaties also binding the belligerent States with third Powers as well as to each other, but unlike the former class stipulating for continuous acts or for acts to be done under certain contingencies, such for example as treaties of guarantee.' "3. Treaties with political objects, intended to set up a permanent state of things by an act done once for all, which have been concluded between the belligerent parties alone, such as treaties of cession or of confederation." "4. Treaties concluded between the belligerent States only, and dealing with matters connected with the social relations of States, which from the nature of their contents appear to be intended to set up a permanent state of things such as con-. ventions to abolish the droit d'aubaine.' "5. Treaties concluded between the belligerent States only, whether with political objects or not, which from the nature of their contents do not appear to be intended to set up a permanent state of things, such as treaties of alliance, commercial treaties, postal conventions, etc." "With regard to the first of these classes of treaties it is obvious that the fact of war makes no difference in their binding force, since each party remains bound to another with whom he is not at war. There is also no difficulty in observing them, since they merely oblige to an abstention from acts at variance with their provisions. The second class remain equally obligatory, subject to the condition that there shall be a reasonable possibility of carrying out their provisions; but as those provisions require performance of acts, and not simply abstention from |