"Says Vattel: 'The conventions, the treaties mades with a nation, are broken or annulled by a war arising between the contracting parties, either because these compacts are grounded on a tacit supposition of the continuance of peace, or because each of the parties, being authorized to deprive his enemy of what belongs to him, takes from him those rights which he had conferred on him by treaty. Yet here we must except those treaties by which certain things are stipulated in case of a rupture-as, for instance, the length of time. to be allowed on each side for the subjects of the other nation to quit the country-the neutrality of a town or province, insured by mutual consent, etc. Since by treaties of this nature we mean to provide for what shall be observed in case of a rupture, we renounce the right of cancelling them by a declaration of war.' "The reasoning of Vattel has been repeated by many writers, and among others by Riquelme, who observes that war annuls all the treaties which form the international legislation between the belligerent states, and that the reason why these treaties perish by war is because they are made with reference to peace; and, since it is lawful to take possession of whatever belongs to the enemy government, with greater reason it is proper to deprive it of the rights which grow out of the treaties.' The limitation by Riquelme in this passage of the general right of seizure to things belonging to the enemy government' (cuanto pertenece al gobierno enemigo), will be noted. 66 Says Kent: Where treaties contemplate a permanent arrangement of national rights, or which by 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. Wheaton expresses himself to the same effect. Phillimore ascribes the errors of some writers in discussing the effect of war on treaties to their failure to distinguish between treaties temporary in their nature and treaties which contain a final adjustment of a particular question, such as the fixing of a disputed boundary or ascertaining any contested right or property.' To questions of private property he declares that the doctrine of the abrogation of treaties by war is certainly not applicable.' Rivier expresses the same opinion. Hall, referring to the effect of war on treaties with political objects, intended to set up a permanent state of things by an act done once for all,' declares that compacts of this kind must in all cases be regarded as continuing to impose obligations until they are either suspended by a fresh agreement or are invalidated by a sufficiently long adverse prescription: and he further declares that where treaties, such as conventions to abolish the droit d'aubaine or regulate the acquisition and loss of nationality, may be considered as suspended during war, the effects of acts previously done under their sanction must remain unaltered,' "Says Fiore: 'As to treaties between belligerents, it cannot be admitted that the state of war extinguishes them all, but only such as are incompatible with that state.' Pillet declares that the view that the declaration of war annuls all treaties between the belligerents, is no longer held by any one.' "While forbearing to cite the many other authorities to the same effect, we may quote from Calvo the following statement: "What effect does the declaration of war produce on treaties which bind the contracting parties at the moment of the rupture of their pacific relations? Are these international acts all and wholly annulled in strict law, or yet do some of them fall, while others remain in force? The solution of these questions depends naturally upon the particular character of the engagements contracted. Thus all are agreed in admitting the rupture of conventional ties concluded expressly with a view to a state of peace, of those whose special object is to promote relations of harmony between nation and nation, such as treaties of amity, of alliance, and other acts of the same nature having a political character. As to customs and postal arrangements, conventions of navigation and commerce, and agreements relative to private interests, they are generally considered as suspended till the cessation of hostilities. By necessary consequence, it is a principle that every stipulation written with reference to war, as well as all clauses described as perpetual (qualifiées de perpétuelles), preserve in spite of the outbreak of hostilities their obligatory force so long as the belligerents have not, by common accord, annulled them or replaced them with others." J. B. Moore, in Columbia Law Review (April 1901), Vol. I., no. 4, pp. 209-223, citing Mr. Adams to Lord Bathurst, Sept. 25, 1815, 4 Am. State Papers, For. Rel. 352; Lord Bathurst to Mr. Adams, Oct. 30, 1815, id. 354, 355; Vattel, (Phila. ed. 1858), book iii. ch. x. sec. 175, p. 371; Riquelme, Elementos de Derecho Público Internacional (Madrid, 1849), I. 171; Kent, Comm. I. 177; Wheaton, Lawrence's ed. (1863), 460, 471, 475; Phillimore, Int. Law (2nd ed.), III. 796; Rivier, Principes du Droit des Gens, II. 137; Hall, Int. Law (4th ed.), 404; Fiore, Nouveau Droit Int. Pub. (1886), III. 83; Pillet, Les Lois actuelles de la Guerre, 77, sec. 43; Calvo, Dreit Int. (4th ed.), IV. 65, sec. 1931. “As a general rule, the obligations of treaties are dissipated by hostility, and they are extinguished and gone forever, unless revived by a subsequent treaty. 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." (Kent, Comm. I. 176.) See, further, Field's Int. Code, § 905, citing Bluntschli, § 718. Also, debate in the House of Commons on the declaration of Paris of 1856; H. Doc. 551-vol 5-25 dispatch of Mr. Marcy to Mr. Mason, of Dec. 8, 1856; speeches of Sir See, also, Pradier-Fodéré, Traité de Droit Int. Pub. II. 508, § 910; Funck- For an interesting discussion of the effect of war on treaties, in connec- See Correspondence as to the Spanish Marriages, 35 Br. and For. State 8. SURVIVAL OF VESTED RIGHTS. § 780. By a statute of Maryland of 1780, French subjects were enabled to inherit lands in that State, but were required, within ten years. after inheriting, to settle in and become citizens of the State, or else to enfeoff a citizen of some one of the United States. Certain French subjects who inherited lands in Maryland in 1799, but who afterwards failed to perform these conditions, subsequently invoked the 7th article of the treaty between the United States and France of September 30, 1800, by which it was provided that, in case the laws of either country should restrain foreigners from exercising their rights of property with respect to real estate, such real estate might be "sold, or otherwise disposed of, to citizens or inhabitants of the country where it may be." It was contended that this stipulation, though it conferred a right to sell which endured for life, could not be invoked because the treaty had expired. Held, that the right to sell, having once vested under the treaty, continued, though the treaty had expired. Marshall, C. J., delivering the opinion of the court, said: "A right once vested does not require, for its preservation, the continued existence of the power by which it was acquired. If a treaty, or any other law, has performed its office by giving a right, the expiration of the treaty or law can not extinguish that right. us, then, inquire, whether this temporary treaty gave rights which existed only for eight years, or gave rights during eight years which survived it. Let "The terms of this instrument leave no doubt on this subject. Its whole effect is immediate. The instant the descent is cast, the right of the party becomes as complete as it can afterwards be made. The French subject who acquired lands by descent the day before its expiration has precisely the same rights under it as he who acquired them the day after its formation. He is seised of the same estate, and has precisely the same power during life to dispose of it. This limitation of the compact between the two nations would act upon and change all its stipulations, if it could affect this case. But the court is of opinion that the treaty had its full effect the instant a right was acquired under it; that it had nothing further to perform; and that its expiration or continuance afterwards was unimportant." The Chirac r. Chirac (1817), 2 Wheat. 259, 277. Whether a treaty is ipso facto extinguished by war depends upon its nature; but rights of property, which have vested under a treaty, are not divested by the breaking out of war. Society for the Propagation of the Gospel v. New Haven, 8 Wheat. 464; A guarantee in a treaty of cession of vested rights in the ceded territory covers only rights which emanated from a prior rightful sovereign. United States r. Pillerin, 13 How. 9. In the case of the act of Congress of October 1, 1888, which declared null and void certificates issued to Chinese laborers under the acts of May 6, 1882, and July 5, 1884, for the purpose of enabling such laborers to enjoy the right to go and come of their own free will, as stipulated in Article II. of the treaty between the United States and China of November 17, 1880, it was held that the right of return thus conferred might be taken away by legislation, the court saying: "The rights and interests created by a treaty, which have become so vested that its expiration or abrogation will not destroy or impair them, are such as are connected with and lie in property, capable of sale and transfer or other disposition, not such as are personal and untransferable in their character." The Chinese Exclusion Case (1889), 130 U. S. 581, 609, citing Head Money CHAPTER XVIII. CONVENTIONAL AND DIPLOMATIC RELATIONS. I. Argentine Republic. $781. II. Austria-Hungary. $782. III. Barbary Powers. 1. Early relations. §783. 2. Algiers. $784. 3. Morocco. $785. 4. Tripoli. $786. 5. Tunis. $787. IV. Belgium. §788. 1. Costa Rica. $791. VIII. Chile. § 796. IX. China. 1. Treaty of 1844. § 797. 2. Treaties of 1858. § 798. 3. Treaty of 1868. § 799. 4. Immigration and other treaties, 1880-1894. § 800. 6. Industries. § 802. 7. Travel. § 803. 8. Missionary privi eg s and protection. § 804. 9. Purchase of land. § 805. 10. Treaty ports, and foreign settlements. § 806. 12. Boxer movement. (1) Siege and relief of legations. § 808. (3) Protocol of Sept. 7, 1901. § 810. 13. Open-door policy. (1) The Hay agreement. § 811. (2) Anglo-Ge man agreement. § 812. 14. Territori 1 integrity; neutrality. § 813. X. Colombia. § 814. XI. Congo. § 815. XII. Corea. § 816. First attempts to negotiate; Shufeldt treaty. 1882; treaty rights of XIII. Denmark. § 817. XIV. Dominican Republic. § 818. |