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"The conclusions of the Department of Justice, after a careful examination of the premises, are that-
"The discrimination as to tonnage duty in favor of vessels sailing from the regions mentioned in the act, and entered in our ports is, I think, purely geographical in character, inuring to the advantage of any vessel of any power that may choose to fetch and carry between this country and any port embraced by the fourteenth section of the act. I see no warrant, therefore, to claim that there is anything in the "most favored nation" clause of the treaty between this country and the powers mentioned that entitles them to have the privileges of the fourteenth section extended to their vessels sailing to this country from ports outside of the limitation of the act.'
"These conclusions are accepted by the President, and I have, accordingly, the honor to communicate them to you as fully covering the points presented in your note of the 19th of June last."
Mr. Bayard, Sec. of State, to Mr. De Bounder, Nov. 7, 1885. MSS. Inst., Belgium;
"In its commercial aspects the expediency of an unqualified favored nation clause is questionable. The tendency is towards its formal qualification, by recognizing in terms (what most nations hold in fact and in practice, whether the condition be expressed in the clause or not) that propinquity and neighborliness may create special and peculiar terms of intercourse not equally open to all the world; or by providing that the most favored treatment, when based on special or reciprocal concessions, is only to be extended to other powers on like conditions.
"You will doubtless have understood that where the words 'qualified' and unqualified' are applied to the most favored nation treatment, they are used merely as a convenient distinction between the two forms such a clause generally assumes in treaties, one containing a proviso that any favor granted by one of the contracting parties to a third party shall likewise accrue to the other contracting party, freely if freely given, or for an equivalent if conditional--the other not so amplified. This proviso, when it occurs, is merely explanatory, inserted out of abundant caution. Its absence does not impair the rule of international law that such concessions are only gratuitous (and so transferable) as to third parties when not based on reciprocity or mutually reserved interests as between the contracting parties. This ground has been long and consistently maintained by the United States. It was held by two of my predecessors, Mr. Clay and Mr. Livingston, that a covenant to extend to third parties privileges granted to a most favored nation only refers to gratuitous privileges and does not cover privileges granted on the condition of a reciprocal advantage, i. e., for a consideration expressed."
Mr. Bayard, Sec. of State, to Mr. Hubbard, July 17, 1886. MSS. Inst., China.
From excessive caution the limitation "gratuitous" or kindred limitations are sometimes inserted before "favored nation" in recent treaties. But this does not in any way derogate from the position that privileges transferable under the term "favored nation" are only such privileges as are gratuitous.
See Lawrence's Wheaton, 493.
Engagements of extradition, whether of fugitives from justice or from service, stand in each case on particular stipulations of treaty, and are not to be inferred from the "favored nation" clause in treaties.
6 Op., 148, Cushing, 1853.
Under the "favored nation" clause of the treaty with Hawaii, the consular courts of the United States in Honolulu have exclusive right of determining disputes among the crews of the United States vessels in that port, a concession of this kind having been made to France. 11 Op., 508, Speed, 1866.
"Engagements of extradition stand on particular stipulations of treaty, and are not to be inferred from the 'favored nation' clause in treaties.
"The Sth article of the convention for the cession of Louisiana pro vided that after the expiration of twelve years from the date of that treaty the ships of France should be treated upon the footing of the most favored nations in the ports of the ceded territory.
"It was contended by France that this was an absolute agreement, irrespective of the conditions upon which favors were granted to other nations, and that, therefore, when a favor should be granted to another nation for a consideration (reciprocal or otherwise) or upon a condition, France was entitled to enjoy the same favor without consideration or condition. This was denied by the United States. The claim was abandoned by France in the treaty of 1831."
Mr. J. C. B. Davis, Notes, &c.
VI. SUBSEQUENT WAR, Effect of.
As a general rule, subject to exceptions in peculiar cases, such obligations of treaties as are transient are considered as dissolved by a subsequent war between the parties.
Mr. Adams, Sec. of State, to Mr. Rush, Nov. 6, 1817. MSS. Inst., Ministers.
"I this day received a letter from C. A. Rodney, the Senator from Delaware, with a new English authority against the doctrine that all treaties are abrogated by war. It is the opinion of Mr. Fox, expressed in Parliament in the debate on the definitive treaty of peace of 1783."
6 Memoirs J. Q. Adams, 54.
The treaty of 1783, so far as concerns boundaries and fisheries and other national privileges and rights, was not abrogated by the war of 1812.
Mr. J. Q. Adams, The Fisheries and the Mississippi, 55 ff. Infra, §§ 150,
"It cannot be necessary to prove that the treaty of 1783 is not, in its general provisions, one of those which, by the common understanding and usage of civilized nations, is or can be considered as annulled by a subsequent war between the same parties. To suppose that it is would imply the inconsistency and absurdity of a sovereign and independent state, liable to forfeit its right of sovereignty by the act of exercising it on a declaration of war."
Mr. Gallatin and Mr. Rush, commissioners., 1817, quoted in 2 Lyman's Diplom.
"A state of war abrogates treaties previously existing between the belligerents, and a treaty of peace puts an end to all claims for indemnity for tortuous acts committed under the authority of one Government against the citizens or subjects of another, unless they are provided for in its stipulations. A treaty of peace which would terminate the existing war without providing for indemnity would enable Mexico, the acknowledged debtor, and herself the aggressor in the war, to relieve herself from her just liabilities. By such a treaty our citizens who hold just demands against her would have no remedy against either Mexico or their own Government. Our duty to these citizens must forever prevent such a peace, and no treaty which does not provide ample means of discharging these demands can receive my sanc tion."
President Polk, Third Annual Message, 1847.
"The general rule of international law is that war terminates all subsisting treaties between the belligerent states. Great Britain has maintained this rule to its utmost extent." This, however, is subject to the limitations above stated as to treaty of 1783.
Mr. Buchanan, Sec. of State, to Mr. Pakenham, July 12, 1845. MSS. Notes, Gr. Brit. See Mr. Bayard, Sec. of State, to Messrs. Lehman, June 23, 1885, cited infra, 150.
War does not by itself abrogate treaties or portions of treaties which vest rights of property.
Society, &c., v. New Haven, 8 Wheat., 464; Carneal v. Banks, 10 Wheat., 181.
Kent (Commentaries, vol. i, page 420) says: "As a general rule, the obligations of treaties are dissipated by hostilities. But if a treaty contain 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."
On the question of the effect of war on treaties, see further Field's Int. Code, § 905, citing Bluntschli, § 718; Society, &c., v. New Haven, 8 Wheat., 464; debate in the House of Commons on the declaration of Paris of 1856; dispatch of Mr. Marcy to Mr. Mason, of Dec. 8, 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; Phill. Int. Law, iii, app. 21; Dana's Wheaton, Note 143, p. 352.
Treaties stipulating for a permanent arrangement of territorial and other national rights are, at most, suspended during war, and revive at peace, unless they are waived by the parties, or new and repugnant stipulations are made.
Society, &c., v. New Haven, 8 Wheat., 464. Mr. J. Q. Adams, The Fisheries and the Mississippi, 55 ff., infra, §§ 150, 300 ff.
As to effect of war on claims, see infra, §§ 240, 337.
In Sutton v. Sutton, 1 R. & M., 663, the question whether American subjects who hold land in England were to be considered in respect to such lands as aliens or subjects of Great Britain, or whether the war of 1812 had determined the treaty of 1794, the master of the rolls said: "The privileges of natives being reciprocally given, not only to actual possessors of land, 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."
"Stipulations which relate to boundaries, to the tenure of property, to public debts, etc., and which are permanent in their nature, are suspended by war, but revive as soon as hostilities cease. The treaties of 1783 and 1794 between the United States and Great Britain, respecting confiscation and alienage, were of a permanent character, and the Supreme Court held that they were not abrogated by the war of 1312, although their enforcement was, for the time being, suspended. Stipulations relating to prizes, prisoners of war, blockades, contraband, etc., are unaffected by a declaration of war between the contracting parties, and can only be annulled by new treaties, or in the manner provided in the instruments themselves."
1 Halleck's Int. Law (Baker's ed.), 242; citing 1 Kent's Com., 177; 1 Benton's Thirty Years, 487; Bas v. Tingey, 4 Dall., 37.
VII. SUBSEQUENT ANNEXATION, EFFECT OF.
The questions arising under this head are noticed in a prior section.
Supra, 5. See also infra, § 240.
As to treaties of annexation, see infra, §§ 154, 161.
VIII. SUBSEQUENT REVOLUTION, Effect of.
Mr. Hamilton, when the question came up in the Cabinet as to the reception of a minister from the Republic of France, "earnestly contended that the reception should be qualified by a formal declaration that the Government of the United States reserved for its future decision the question whether the treaties of 1778, by which the friendly relations between the two countries were originally established and had hitherto been invariably conducted should be considered as still in force and binding on the United States. This proposition he endeavored to sustain by a long and elaborate argument to show that in consequence of the change of government in France, and other considerations much dwelt on by him, the United States had a perfect right, if they thought proper to do so, to renounce the treaty with France, and that they ought at least to declare the operation of these treaties suspended for the present."
3 Rives' Madison, 327. For Hamilton's opinion, see 4 Ham. Works, (ed. 1885), 362.
Mr. Jefferson in reply rested his argument on the position "that the treaties between the United States and France were not treaties between the United States and Louis Capet, but between the two nations of America and France; and the nations remaining in existence though both of them have since changed their forms of government, the treat ies are not annulled by these changes."
3 Rives' Madison, 329.
Mr. Jefferson, in writing on April 28, 1793, to Mr. Madison, said, "Would you suppose it possible that it should have been seriously proposed to declare our treaties with France void on the authority of an ill-understood scrap from Vattel, and that it should be necessary to discuss it?"
Mr. Madison, on May 8, replied as follows:
"Peace is, no doubt, to be preserved at any price that honor and good faith will permit. But the least departure from these will not only be most likely to end in the loss of peace, but is pregnant with every other evil that could happen to us. In explaining our engagements under the treaty with France, it would be honorable as well as just, to adhere to the sense that would at the time have been put upon them. If a change of government is an absolution from public engagements, why not from those of a domestic as well as foreign nature; and what then becomes of the public debts, &c.? In fact, the doctrine would perpetuate every existing despotism, by involving, in a reform of the Government, a destruction of the social pact, an annihilation of property, and a complete establishment of the state of nature."
3 Rives' Madison, 332. To same effect, see Mr. Jefferson's opinion, of April 28, 1793; 7 Jeff. Works, 613.
Mr. Hamilton (letter to President Washington, April 1, 1793, (4) Ham. Works, 1885, 79), went so far as to argue that the United States were bound, by the principles of the law of nations, to consider the treaty of alliance of the American colonies with France as suspended in consequence of the deposition and execution of Louis XVI, with a right