occurred in Washington's cabinet in April, 1793, on the proposition to receive the minister from the republic of France with an express reservation of the question whether the treaties of 1778 ought not to be temporarily and provisionally suspended. In support of such a reservation it was urged by the Secretary of the Treasury that, if a nation thought fit to make changes in its government which rendered treaties theretofore existing between it and another nation useless, or dangerous, or hurtful to that other nation, the latter would, according to the plain dictate of reason, have a right to renounce those treaties; that a contracting state had a right to take care of its own happiness and could not be obliged to suffer this to be impaired by the means which its ally had adopted for its own advantage contrary to the ancient state of things; but that the treaties continued absolutely binding on the party making the change and would bind the other, unless in due time it declared its election to renounce them, which in good faith it ought to do only if the change had rendered them "useless or materially less advantageous, or more dangerous than before." An alliance might be formed because each had confided in the energy and efficacy of the government of the other, while the newly-formed government might be feeble, fluctuating, and liable to provoke wars. As to the French treaties, since everything was in transitu, it was his opinion that the United States had an option to consider the operation of these treaties as suspended, and would eventually have a right to renounce them, if such changes should take place as could “bona fide be pronounced to render a continuance of the connections which result from them disadvantageous or dangerous." The fundamental principle of the elaborate

1 Works of Hamilton (Lodge ed.), vol. iv, p. 74.

opinion of the Secretary of State, with whom concurred the Attorney-General, was, to use his now classic words, that "all the acts done" by the proper agents "under the authority of the nation, are the acts of the nation, are obligatory on them, and enure to their use, and can in no wise be annulled or affected by any change in the form of the government or of the persons administering it. Consequently 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 treaties are not annulled by these changes." He however admitted that conditions might arise that would release the nation from the treaty obligations. "When performance, for instance, becomes impossible, non-performance is not immoral. So if performance becomes self-destructive to the party, the law of self-preservation overrules the laws of obligation to others," but the danger which absolves "must be great, inevitable and imminent." As to the French treaties, "no part of them," he declared, "but the clause of guarantee holds up danger even at a distance." It may be added that the minister from the republic was received without reservation and our policy early established of recognizing without prejudice the de facto government."

(b) Change of State Identity.

When a state' loses entirely its identity by incorporation into another, its obligation to execute pre-existing 'Writings of Jefferson (Ford ed.), vol. vi, p. 219.

'Upon the general proposition of release from treaty obligations by the changed relation of the parties, see Vattel, bk. ii, ch. xvii, sec. 296; Grotius, bk. ii, ch. xvi, sec. 25; Phillimore, vol. ii, p. 109.

treaties ceases. This results from the impossibility of performance. "It is," says Hall, "an implied condition of the continuing obligation of a treaty that the parties to it shall keep their freedom of will with respect to its subject-matter, except in so far as the treaty is itself a restraint upon liberty, and the condition is one which holds good even when such freedom of will is voluntarily given up." The principle that a treaty between two parties is not annulled by an inconsistent subsequent treaty between one of these and a third party does not have full application in such cases, for, says the same eminent author, "it cannot be supposed that a state will subordinate its will to that of another state, or to a common will of which its own is only a factor, except under the pressure of necessity or of vital needs." All treaties between the United States and Hanover and Nassau have been considered as having been terminated with the conquest and incorporation in 1866 of those two states into Prussia.3 The Italian government considered the treaties between foreign countries and the two Sicilies terminated, at least for most purposes, on the consolidation of the latter with the kingdom of Sardinia in 1860, but treaties existing with Sardinia, the nucleus of the kingdom, it regarded as still binding and applicable to the whole kingdom.* Soon after the consolidation new treaties were concluded with several of the European powers, and it may be noted that in the treaty with Great Britain of August 6, 1863, it was specifically provided that the treaties "in force," among which those with the Two Sicilies were enumerated, were to be su

1 International Law (4th ed.), p. 373.

For. Rel., 1875, p. 479.

'Ibid., p. 374.

4 Dib. Cor., 1864, pt. 4, p. 334. See, however, p. 328.

perseded by the new treaty.' With the occupation of Madagascar by the French in 1895, a question was raised by the United States as to the status of the treaty of May 13, 1881, with that island. The French government in reply, April 16, 1896, observed that the maintenance of the treaty was "inconsistent with the new order of things created by the taking possession," but at the same time declared its intention to extend to the island the conventions applicable to the government and citizens of the United States in France or French possessions. Upon the passage of the law of annexation the French. government declared the treaties formerly existing with Madagascar abrogated, and the system of conventions in force in French colonies to be substituted. In the joint resolution of July 7, 1898, by which the Hawaiian Islands were annexed to the United States, it was specifically declared that all treaties then existing between the Islands and foreign powers should forthwith cease, being replaced by treaties between the United States and such foreign nations.3

A question arose between the United States and the Netherlands relative to the treaty of 1782. In the course of the French wars, the United Netherlands were, after various changes both in territory and in form of government, finally incorporated into the French Empire and entirely disappeared as a separate nation. In the reconstruction at the Congress of Vienna, the Belgic and certain other provinces were joined to the United Netherlands. and the whole designated as the kingdom of the Nether

1Art. XX. Brit. and For. State Papers, vol. liii, p. 45.

'For. Rel., 1896, pp. 123, 125.

'30 Stat. at L., 750. As to the effect of annexation on private debts, see 22 Op. Att.-Gen., 584; Hall, p. 104; Rivier, vol. i, pp. 70, 213.

lands. The state as thus formed, although in general considered the successor, differed in name, territory and form of government from the state that had entered into the treaty with the United States. In the correspondence that immediately followed the reconstruction, the government of the Netherlands took the position that the treaty was no longer in force, and this was not at the time contested. Later, in 1818 and 1819, in urging spoliation claims, the government of the United States, however, contended for the existence of the treaty, but the contention was not pressed. On subsequent occasions both countries have considered the treaty as having been terminated."

When one state unites or confederates with another but still retains to a limited degree its separate character, the continued validity of treaties is less easily determined. If the confederated state retains liberty of action with respect to the matter touched upon by the treaty, its obligation will still exist. A treaty of extradition was entered into June 16, 1852, by the United States and Prussia, which, by Article III of the naturalization treaty of February 22, 1868, was extended to the North German Confederation. In 1871, Prussia as well as the other states of the Confederation became merged in the German Empire. The several states of the Empire retain the power of regulating, by agreement with foreign powers or by laws enacted for their own territories, the subject of extradition so far as not hindered by imperial law or treaties. The King of Prussia, the former chief executive of the North German Confederation, also still retains as Emperor the power to carry into effect international obligations in this respect. Under these conditions the treaty

1 For. Rel., 1873, p. 720.