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parts of a Treaty which recognized a principle and object of permanent policy, and the parts which related to objects of passing and temporary expediency.

DXXXV. Nor is this doctrine at variance with the opinion of Mr. Wheaton himself, who says in one part of his Elements :(y)

"General compacts between nations may be divided into what are called Transitory Conventions, and Treaties properly so termed. The first are perpetual in their nature, *so that, being once carried into effect, they subsist independent of any change in the sove[*669] reignty and form of government of the contracting parties; and although their operation may in some cases, be suspended during War, they revive on the return of Peace, without any express stipulation. Such are Treaties of cession, boundary, or exchange of territory, or those which create a permanent servitude in favour of one nation within the territory of another."(z)

And in another part of the same treatise :(a)—

"Most International Compacts, and especially Treaties of Peace, are of a mixed character, and contain articles of both kinds, which renders it frequently difficult to distinguish between those stipulations which are 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 frequently 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 among the principal European States was permanently settled, until violently disturbed by the Partition of Poland and the Wars of the French Revolution."

[*670]

It must be admitted that a Municipal Court of the United *States had denied the general doctrine of the abrogation of Treaties by War; but this Court was dealing at the time with a question of private property, to which the doctrine was certainly not applicable; and the language of the Court, though certainly going beyond the case, must be considered, in some degree at least, as the obiter dicta of judges.(b)

But even without these qualifications, the lauguage of the American Court has confined its denial of the general doctrine-that Treaties are

(y) Wheaton's Elem., (by Lawrence,) p. 332.

(z) Vattel, Droit des Gens, 1. ii. c. xii. s. 192. Martens, Précis, &c., l. ii. c. ii.

8. 58.

(a) Wheaton's Elem., (by Lawrence,) pp. 343, 344.

(b) The Society for the Propagation of the Gospel v. The Town of New Haven and William Wheeler, 5 Curtis's (Amer.) Rep., p. 483.

abrogated by War-within limits which are scarcely, if at all, distinguishable from the position which has been maintained in these pages.

The Court expressed its opinion 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 that unless they are waived by the parties, or new and repugnant stipulations are made, they revive and come again into operation at the return of Peace.(c)

In 1830 a question was raised in an English Municipal Court(d) whether, by the ninth article of the Treaty of 1794, Between Great Britain and the United States, American citizens who held lands in Great Britain on October 28th, 1795, and their heirs and assigns, are at all times to be considered, as far as regards those lands, not as aliens, but as native subjects of Great Britain. The 28th article of the Treaty declared that the ten first articles should be permanent; but the counsel in support of the objection to the title contended that "it was impossible to suggest that the Treaty was continuing in force in 1813; *it [*671] necessarily ceased with the commencement of the War. The 37 Geo. III. c. 97, could not continue in operation a moment longer without violating the plainest words of the Act: that the word permanent' was used, not as synonymous with 'perpetual,' or 'everlasting,' but in opposition to a period of time expressly limited." On the other hand, the counsel in support of the title maintained that "the Treaty contained articles of two different descriptions; some of them being temporary, others of perpetual obligation. Of those which were temporary, some were to last for a limited period-such as the various regulations concerning trade and navigation; and some were to continue so long as peace subsisted, but, being inconsistent with a state of War, would necessarily expire with the commencement of hostilities. There were other stipulations which were to remain in force in all time to come, unaffected by the contingency of Peace or War. For instance, there are clauses for fixing the boundaries of the United States. Were the boundaries so fixed to cease to be the boundaries the moment that hostilities broke out?" The Master of the Rolls, in his judgment said :—" The privileges of natives being reciprocally given, not only to the actual possessors of lands, but to their heirs and assigns, it is a reasonable construction that it was the intention of the Treaty that the operation of the Treaty should be permanent, and not depend upon the continuance of a state of Peace.

"The Act of the 37 Geo. III. c. 95, gives full effect to this article of the Treaty in the strongest and clearest terms; and if it be, as I consider it, the true construction of this article, that it was to be permanent, and independent of a state of Peace or War, then the Act of Parliament must be held, in the 54th section, to declare this permanency, and when a subsequent section provides that the Act is to continue in force so long

(c) The Oregon Question, by Dr. Twiss, p. 180.

(d) Sutton v. Sutton, 1 Russell & Mylne's Rep., p. 663, Rolls Court, Sir John Leach.

only as a state of Peace shall subsist, it cannot be construed to be directly repugnant and opposed to the 24th Section, but is to be understood as referring to such provisions of the Act only as would in their nature depend upon a state of Peace."(e)

[*672]

After the recent War (1856) Russia and Sardinia, by special Treaty, renewed the obligations of Treaties which had been abrogated by the War.

(3.) The practice of states is clear upon this subject. It receives an ample illustration, especially as far as England is concerned, from the debates in both Houses of the English Legislature at the period of the Peace of Amiens (1801.)

DXXXVI. In the House of Lords there were two debates upon the subject of this Peace. Upon a careful perusal and attentive consideration of them(f) it will be found that the doctrine of the abrogation of Treaties by the breaking out of War was either expressly, or by implication, admitted by every speaker who had any pretensions to be considered either a jurist or a statesman.

In the first debate Lord Grenville observed that, "In entering into negotiation, every statesman knew that the basis must be one of these two either to take the status ante bellum or the uti possidetis at the moment of negotiating. From one of these points every negotiation must set out."(g)

He afterwards added, that "he was peculiarly called upon to direct the attention of ministers to the subject of an omission which appeared to him of great consequence, of not stipulating for the renewal of all or most of the Treaties before subsisting between this country and those nations with which we had lately been at war."(h).

[*673]

*He next adverted to the non-renewal of ancient Treaties, which he would contend was a principle in the process of negotiation equally novel and injurious; and, in illustrating these propositions, he again referred to the French official papers that he had already quoted, which said, the old law is destroyed; a new public law commences;' which principle might be most destructively applied by France in her future projects of aggrandizement; and they might well say to us, that, abiding by the Treaty of Amiens, which in effect ordained a new Law of Nations, we had no right or title to inquire."(i)

In this debate, too, the ex-Lord Chancellor, Lord Thurlow, "insisted that all subsisting Treaties were at an end as soon as a War was commenced with those who were parties to them. It by no means followed as a matter of course that ancient Treaties were necessarily to be revived

(e) The Oregon Question, examined by Dr. Twiss, pp. 181, 182.

(ƒ) See Appendix to this Volume for extracts from the speeches of the principal speakers in the debate.

(9) Debate on the Treaty of Amiens (1802,) Hansard's Parliamentary History, vol. xxxvi. (1801-3,) p. 164. Reported and amplified in second debate on the same Treaty, Ib., p. 690.

(h) Ib., pp. 587, 588.

(i) Debate on the Treaty of Amiens (1802,) Hansard's Parl. Hist., vol. xxxvi. (1801-3,) p. 593.

and renewed in every Treaty of Peace: that must depend upon the will of the contracting parties."(k)

In the second debate Lord Grenville(1) moved an address, which in one of its paragraphs adverted to the "immense accessions of territory, influence and power which it (the Treaty) had tacitly confirmed to France."

Dr. Lawrence,(m) Sir W. Grant, (n)—authorities second to none upon a question of International Law,-Mr. Windham, Mr. Pitt, Lord Chancellor Eldon,(0) Lord Hawkesbury,(p) Lord Carnarvon,(q) speakers taking different parts, and maintaining different opinions in the debate as to the policy of the Treaty of Amiens, will all be found to [*674] *have admitted expressly, or by implication, the doctrine that Treaties are abrogated by War.

DXXXVII. It has been thought that this doctrine respecting the abrogation of Treaties by War, is at variance with the language of the English and French Ministers for Foreign Affairs, Lord Palmerston and M. Guizot, during the painful discussion upon that most discreditable international transaction, the Spanish Marriages in 1846.(r) It has been said by a modern writer that,(s) " in the dispute on the Spanish *marriages, the French minister had to defend, and the English [*675] foreign secretary to impugn, a transaction which both knew to be too infamous for public discussion; it was for this reason that both parties selected a fictitious issue." (t)

(k) Ib., p. 596.

(n) Ib., pp. 801, 802, 803.

(q) Ib., p. 714.

(r) Correspondence relating to the Marriages of the Queen and Infanta of Spain. Papers presented to Parliament, 1847.

P. 18, Lord Normanby's account to Lord Palmerston of his (Ld. N.'s) conversation with M. Guizot, who said, as to the union of the crowns of France and Spain, "That need not be feared; it is guarded against by the Treaty of Utrecht."

P. 24, Lord Palmerston. "The decision of the King of the French that the Duke of Montpensier should not be a candidate for the hand of the Queen of Spain. . . . was the result of the sense which the King of the French spontaneously entertained of what was due by France to the faith of the transactions of the Treaty of Utrecht, and to the just value attached by other states to the maintenance of the balance of power in Furope."

6

P. 25, "It is perfectly clear that by virtue of the renunciation made at the Peace of Utrecht by the Duke of Orleans of that day all his descendants, male and female, for that time and for ever, are excluded, disabled, and incapacitated from succeeding to the throne of Spain, in what manner soever the succession might fall to their line' and therefore the children and descendants of the Duke of Montpensier would, in consequence thereof, be excluded from succeeding to the Spanish crown."

P. 47, M. Guizot says that (1) to secure the throne of Spain to the descendants of Philip V., (2) to prevent the union of the thrones of France and Spain, was the double object of the Treaty of Utrecht, and contends "la double intention du Traité d'Utrecht est donc toujours accomplie."

See also pp. 69, 70, 75, 76. The Spanish Minister Xavier de Isturiz admits the validity of the renunciation, and, by implication, the Treaty itself of Utrecht.

"Loque el Gobierno de sue Majestad reconoce como objeto claro y explicito del Tratado de Utrecht, es la estipulacion de que las coronas de España y de Francia no puedan en ningun caso reunirse en una misma persona."—P. 83.

Letters in the Morning Chronicle, vide supra, p. 663. n. (7).

"To which" (the writer adds) "Lord Palmerston might well have demurred, when it was tendered by M. Guizot. On no other theory is it possible to account

But in truth it is hardly necessary to have recourse to this supposition in order to reconcile with the doctrine which has been laid down, the opinion that the Treaty of Utrecht, though not renewed by the later Treaties, was nevertheless a bar to the scheme of uniting France and Spain under one crown.

The Treaty of Utrecht contemplated a permanent arrangement of National and International Rights; moreover it contained the assertion of a great principle relating to the balance of power and the security of the liberties of Europe; it contained further, a solemn renunciation on the part of the Duke of Orleans, for himself and his successors, of any title to the throne of Spain. So far as this permanent arrangement, this principle, and this renunciation are concerned, the Treaty is not abrogated by the omission or the non-renewal of it in later Treaties. (u) It would require either an express waiver or repugnant stipulations in these later Treaties to extinguish these consequences of the Treaty.(x)

for the declaration by a grave statesman, that England would not recognize a Spanish monarch descended from Philip of Orleans, or a French monarch descended from Philip of Spain. Queen Isabella was excluded by one category, and both the Comte de Paris and the Comte de Chambord by the other, from their respective inheritances; but Lord Palmerston was not so much discussing a Treaty as intimating, with diplomatic courtesy, the deep indignation of England and of Europe."

(u) Considerations respecting the Marriage of the Duke of Montpensier with reference to the Treaty of Utrecht (London, Ridgway, 1847,) contains a very full and ample discussion of the subject.

(x) The suggestion in the text appears to reconcile the language of Lord Palmerston in an earlier debate (1839, upon the Mexican blockade,) as to the Treaty of Utrecht, with the opinion expressed in the case of the Spanish marriages. In the course of this debate, which was brought on by Lord Sandon, as to the legality of the blockade of the Mexican ports, Mr. E Tennent said, "But not only had France thus excluded us from the profitable trade of the La Plata and the Gulf of Mexico, but on another, and, if possible, a still less tenable ground, she had recently taken forcible occupation, and to this hour holds possession of the entire territory of Brazilian Guiana, on no other pretence, and by no other authority, than an alleged inaccuracy in the wording of the Treaty of Utrecht, which, it is asserted, describes inaccurately the relative boundaries of French and Portuguese Guiana. That such an error, that a geographical error, did exist in the wording of the Treaty of Utrecht, on this point, there could be no manner of doubt; but it was also equally certain that it was a matter of easy adjustment; and by the terms of the Treaty of Paris, in 1817, it was expressly determined that Commissioners should be mutually appointed to determine the boundary; and that if at the expiration of one year they should not be able to come to an understanding, 'the two contracting parties should proceed by friendly accord to form another arrangement under the mediation of Great Britain, and conformably to the Treaty of Utrecht, concluded under the guarantee of that power."

To which Lord Palmerston is reported by the historian of Parliamentary Debates to have replied: "By the Treaty of Vienna-for the provisions of the Treaty of Utrecht had long lapsed in the variations of war-and by the 107th article of that Treaty, the Prince Regent of Portugal and the Brazils, to manifest, in the most indisputable manner, his consideration for the King of France, agreed to restore Guiana up to the river Amazon, in the 4th and 5th degrees of northern latitude, being the same limitation as it was considered was imposed on Portugal by the Treaty of Utrecht."+

It would seem also that these expressions with respect to the lapse of the provisions of the Treaty of Utrecht must be confined to those provisions which related

*Hansard's Parl. Deb., vol. xlvi. p. 914.

Ib., Speech of Viscount Palmerston, p. 939. SEPTEMBER, 1857.-30