by the parties, or new or repugnant stipulations are made, they revive in their operation at the return of peace." Society for the Propagation of the Gospel v. New Haven (1823), 8 Wheat. 464, 494. See, also, Carneal v. Banks, 10 Wheat. 181; Schr. Rapid, 1 Gall. 295, 303. In the former case it was held that titles to land in the United States acquired by French subjects under the sanction of the treaty of 1778 were not divested by the abrogation of that treaty or the expiration of the convention of 1800. Seven years later, in 1830, the same question was decided by the court of chancery in England, in the case of Sutton v. Sutton, in which a citizen of the United States claimed the right, under Article IX. of the treaty of 1794, to hold and convey, in spite of his alienage, certain real estate in London. It appeared that in 1797 an act of Parliament (37 Geo. III. c. 97) was passed to carry the treaty into effect. Of this act, sections 24 and 25 related to Article IX., and the last section, which was the 27th, declared: "This act shall continue in force so long as the said treaty between His Majesty and the United States of America shall continue in force, and no longer." It was argued, both upon the strength of this section and upon general principles, that, as the result of the war of 1812, the treaty of 1794 had ceased to be in force; that "it was impossible to suggest that the treaty was continuing in force in 1813," that is to say, during the existence of the war; that it "necessarily ceased with the commencement of the war; " that "the 37 G. 3, c. 97, could not continue in operation a moment longer without violating the plainest words of the act;" and that the word "permanent" was used, "not as synonymous with perpetual or everlasting,' but in opposition to a period expressly limited." It is to be observed that counsel impliedly conceded that if the word "perpetual" had been employed in the article, there would have been no doubt as to its survival. Sir John Leach, Master of the Rolls, decided that the article continued in full force at all times, saying: "The relations, which had subsisted between Great Britain and America, when they formed one empire, led to the introduction of the ninth section of the treaty of 1794, and made it highly reasonable that the subjects of the two parts of the divided empire should, notwithstanding the separation, be protected in the mutual enjoyment of their landed property; and, 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 G. III. 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 twenty-fourth section, to declare this permanency; and when a subsequent section provides that the act is to continue in force, so long only as a state of peace shall subsist, it can not be construed to be directly repugnant and opposed to the twentyfourth 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." A decision was therefore rendered in favor of the right claimed by the American citizen. Sutton v. Sutton, 1 Russell & Mylne, 663. "Your letter of the 10th instant has been received. It asks whether there was in 1872 any treaty between the United States and Great Britain relative to the inheritance of lands situated in this country by British subjects. "The only provision found in any treaty between the United States and Great Britain touching this point is in the ninth article of the treaty of 1794, whereby it was agreed that British subjects who now hold lands in the territories of the United States, and American citizens who now hold lands in the dominions of His Majesty, shall continue to hold them according to the nature and tenure of their respective estates and titles therein; and may grant, sell, or devise the same to whom they please in like manner as if they were natives; and that neither they nor their heirs or assigns shall, so far as may respect the said lands and the legal remedies incident thereto, be regarded as aliens.' "The operation of this stipulation is limited to lands held in the United States and Great Britain respectively, in 1794, and as to the subsequent title to lands so held at that time, the effect of the treaty may be deemed permanent. "Permit me to refer you to the cases of Shanks and others against Dupont and others, 3 Pet. 242, and to New York v. Clarke, 3 Wheat. 1, for legal decisions as to the construction of the 9th article of the treaty. "The treaty of 1794, however, is held by the highest authorities to have actually lapsed by reason of the subsequent state of war in 1812-15, and neither the treaty of Ghent (1814) nor any treaty between the two countries since then has re-enacted its provisions in whole or part. "There is, therefore, no treaty engagement of any character between Great Britain and the United States, which would give to the subjects or citizens of the respective countries the original right to acquire since 1794 any real property by inheritance or purchase, except in accordance with the laws of the State or Territory where the property is situated." Mr. Bayard, Sec. of State, to Messrs. L. and E. Lehman, June 23, 1885, As to trade-marks agreements; see Mr. Moore, Assist. Sec. of State, to Mr. "The general rule of national law is that war terminates all subsisting treaties between the belligerent powers. Perhaps the only exception to this rule, if such it may be styled, is that of a treaty recognizing certain sovereign rights as belonging to a nation which had previously existed independently of any treaty engagements. It will scarcely be contended that the Nootka Sound convention belongs to this class of treaties." Mr. Buchanan, Sec. of State, to Mr. Packenham, British min., July 12, 1845, 34 Br. & For. State Papers, 93, 97. Mr. Pakenham, July 29, 1845, replied: The Nootka Sound convention "embraced, in fact, a variety of objects; it partook, in some of its stipulations, of the nature of a commercial convention; in other respects it must be considered as an acknowledgment of existing rights, an admission of certain principles of international law, not to be revoked at the pleasure of either party, or to be set aside by a cessation of friendly relations between them." (Id. 102.) "A state of war abrogates treaties previously existing between the belligerents." President Polk, annual message, Dec. 7, 1847. See, however, infra, § 1053. Stipulations in treaties having sole reference to the exercise of belligerent rights can not be applied to govern cases Treaties applicable exclusively of another nature, and belonging to a to state of war. state of peace. The Marianna Flora, 11 Wheat. 1. April 23, 1898, on the outbreak of war with the United States, the Spanish government issued a decree which, among other things, declared: "The war existing between Spain and the United States terminates the treaty of peace and friendship of the 27th October, 1795, the proctocol of the 12th January, 1877, and all other agreements, compacts, and conventions that have been in force up to the present between the two countries." By Article XIII. of the treaty of October 27, 1795, it was agreed that, if a war should break out between the two nations, one year after the declaration of war should be allowed to the merchants in the cities and towns where they should live for collecting and transporting their goods and merchandise. A rumor having got abroad that the Spanish government contemplated the issuance of a decree of expulsion against citizens of the United States who might be within the Spanish dominions, the Department of State caused the attention. of the Spanish government to be drawn to this stipulation through the British ambassador at Madrid. The Spanish government replied that it considered all treaties between the two countries to be at an end, but offered to enter into a special convention for the provisional application during the war of the stipulation in question. The United States declined to accept this proposal on the ground that the stipulation, instead of being abrogated by the state of war, must be considered as finding therein its full force and effect. Here the correspondence closed. No decree of expulsion was issued. Mr. Moore, Act. Sec. of State, to Mr. Hay, amb. to England, tel., April See, also, Mr. Moore, Assist. Sec. of State, to Mr. Heymann, June 13, That treaties applicable to a state of war are not abrogated by war, see to debts. By a decree of the Spanish government, issued April 23, 1898, all treaties between the two countries were declared Treaties relating to be terminated by the war which had then broken out. In the treaty of peace, concluded at Paris, Dec. 10, 1898, there is no stipulation for the revival of such treaties. By Article VII. the contracting parties "mutually relinquish all claims for indemnity," but this relinquishment is expressly restricted to claims "that may have arisen since the beginning of the late insurrection in Cuba and prior to the exchange of ratifications." During the negotiation of the treaty, however, the American commissioners proposed an article by which all the treaties in existence between the two countries at the outbreak of the war were enumerated and declared to continue in force. This article was taken up for consideration at the conference held on the 8th of December. The president of the Spanish commission stated that the Spanish commissioners were unable to accept the article, but added: "Some of the treaties to which it referred were obsolete or related to conditions which no longer existed, and it would involve a more extended examination than the joint commission was in a position to give. But this does not imply that the two governments might not take up the subject themselves." Ex. Doc. B, 55 Cong. 2 sess., part 2, p. 254; S. Doc. 62, 55 Cong. 3 sess. "All treaties, agreements, conventions, and contracts between the United As to Art. XI. of the treaty of 1795, see Mr. Hay, Sec. of State, to By a decree of April 30, 1898, the Spanish government declared that the war then existing with the United States had terminated all agreements, compacts, and conventions between the two countries. Among the treaties in force between the United States and Spain at the outbreak of the war between the two countries there was a convention signed at Madrid, February 17, 1834, under which an indemnity was provided for certain claims of citizens of the United States against the Spanish government. The claims in question grew chiefly out of the seizure and confiscation of American vessels and cargoes for alleged violations of decrees issued by Spanish commanders during the war between Spain and her American colonies. British subjects had similar claims, for the enforcement of which their government resorted to reprisals; and satisfaction was made. by Spain in 1828 by the payment of 600,000 pounds sterling, in inscriptions redeemable within a fixed time. The United States forbore to press the claims of its citizens, except by negotiation, and they were not adjusted till February 17, 1834. By Article I. of the convention signed at Madrid on that day, Spain agreed to pay the United States, in settlement of the claims, "the sum of twelve millions of rials vellon, in one or several inscriptions, as preferred by the government of the United States, of perpetual rents, on the Great Book of the Consolidated Debt of Spain, bearing an interest of five per cent per annum." The inscriptions were to be issued in conformity with a model annexed to the convention, and they, or the proceeds thereof, were to be distributed by the government of the United States among the claimants entitled thereto, in such manner as it might deem just and equitable. The interest on the inscriptions was to be paid in Paris every six months. |