CHAPTER II. HOW TREATIES ENTERED INTO BEFORE THE WAR ARE AFFECTED WHEN THE WAR IS CONCLUDED AND PEACE RESTORED. DXXIX. IT seems to be a branch of the question-1, how the public relations of States are affected by a treaty which concludes a War; 2, to consider what effect the War has upon Treaties existing before the War, but which are not mentioned or referred to in the new Treaty of Peace. Many Treaties, especially those relating to leagues for War or for Commerce, are only contracted for a limited period, at the expiration of which they become invalid unless renewed. This renewal is not always expressly, but sometimes tacitly (a) affected. M. de Martens observes that more than one Treaty of Commerce entered into in the seventeenth century was in existence towards the end of the eighteenth century. As, theoretically speaking, a private contract may be tacitly annulled by a total alteration of the circumstances on which it was founded; so it has been made a matter of dispute, with respect to Treaties among States, whether a change of circumstances subsequent to the Treaty does not operate to the defeasance of the Treaty itself. For instance, it was a matter of dispute whether Austria, being bound by (a) G. F. Von Martens, Ueber die Erneuerung der Verträge in den Friedenschlüssen der Europäischen Mächte. Göttingen, 1797. Bluntschli, 1. viii. § 538. Calvo, § 729. Heffters, § 122. the Barrier-Treaty of the United Netherlands to admit Dutch garrisons into the fortresses, which were to serve as a defence against France, remained under this obligation after the greater part of these fortresses had been demolished during the War of the Austrian Succession. Joseph the Second, in 1781, seems to have had little hesitation in razing (b) them to the ground. With respect to Treaties with a State which has ceased to possess an independent existence (c), it seems evident that the public contracts with it cease with the cessation of its distinct personality—as with Poland after its partitions, and the Crimea after its subjugation to Russia in 1783. But this observation requires an important limitation. Such a loss of personality and independence leaves unimpaired the obligations of what are usually, but somewhat carelessly, termed transitory Treaties, that is to say, Treaties relating to cessions of territory, to demarcations of boundary, to that particular class of obligations called Servitutes Juris Gentium (d), the nature and character of which have been already discussed in this work. Certain Genoese families, the Counts of Casati and others, pressed their claims to certain portions of Crimean territory upon the Russians, both in 1779 and in 1783, at which latter period the subjugation of the Crimea was complete. Russia replied on both occasions that she would recognise no claims which did not flow from the provisions of her Treaty with the Porte. This answer, in the opinion of De Martens, was, in 1783, whatever it might have been in 1779, bad in law (e). DXXX. It was at one time an international custom that the Belligerents should, at the breaking out of War, (b) See De Martens, Rec. des Tr. t. iv. p. 433, for State Papers on the subject. (c) Vide antè, vol. i. pt. ii. ch. vi. vii. (d) Vide antè, vol. i. pt. iii. ch. xv. (e) Ueber die Erneuerung der Verträge, p. 7. make a public and solemn proclamation that the obligations of Treaties between them had ceased (f). That custom has become obsolete. In the place of it has arisen the general maxim, that War, ipso facto (von selbst), abrogates Treaties between the Belligerents. The questions which present themselves for our consideration are, first, whether this proposition be true in all its latitude, or whether it requires any -and if any, what-limitations, before it can be enunciated as one of the admitted and incontrovertible principles of International Jurisprudence? Secondly, if it be universally, or with certain limitations, true, that Treaties annulled by War are revived by the return of Peace without express stipulations to that effect? DXXXI. The general maxim must manifestly be subject to limitation in one case, namely, in the case of Treaties which expressly provide for the contingency of the breaking out of War between the contracting parties: and the Judges of the North American United States were well warranted in saying, "We are not inclined to admit the doctrine urged "at the bar, that Treaties become extinguished, ipso facto, by War between the two governments, unless they should "be revived by an express or implied renewal on the return "of Peace. Whatever may be the latitude of doctrine laid "down by elementary writers on the law of nations, dealing "in general terms in relation to this subject, we are satisfied "that the doctrine contended for is not universally true. "There may be Treaties of such a nature, as to their object "and import, as that War will put an end to them; but "where Treaties contemplate a permanent arrangement of "territorial and other national rights, or which in their "terms are meant to provide for the event of an intervening "War, it would be against every principle of just interpre"tation to hold them extinguished by the event of War. "If such were the law, even the Treaty of 1783, so far as it "fixed our limits and acknowledged our independence, would (f) Leibnitz, Præf. ad Cod. Diplom. Jur. Gentium. H 66 "be gone, and we should have had again to struggle for both upon original revolutionary principles. Such a construc"tion was never asserted, and would be so monstrous as to "supersede all reasoning" (g). Some writers on Public and International Law go further and say that War abrogates only those Treaties the existence of which is incompatible with Belligerent relations (h). 66 Mr. Wildman has expressed an opinion that "all engagements subsisting between Belligerents at the commencement of hostilities are revived by a Treaty of "Peace, so far as they are consistent with its provisions" (i). 66 This opinion appears to the writer of these pages to be at variance with the true doctrines of International Law, and especially with those derived from two of the sources of this jurisprudence, viz., the conclusions of accredited writers and the practice of States (k). The opinion (1) has arisen partly (1) from a misappre (g) The Society, &c. v. New Haven, 5 Curtis's (Amer.) Reports, p. 493. (h) De Martens, in his treatise above referred to, after stating the general maxim, says : "So gilt doch nicht eben dieses von allen übrigen vorhergehenden mit dem jetzigen Kriege nicht in Verbindung stehenden Verträgen und wenn dieses so allgemein von einzelnen Schriftstellern und wohl gar zuweilen in öffentlichen Staatschriften behauptet worden, so liegt dabey wohl noch mehr eine Verwechselung des Ausdrucks, als ein Irrthum in der Sache selbst zum Grunde,”—s. 8. He cites, "Moser, Vermischte Abhandlungen aus dem Europ. Volkerrecht, "-s. 3, n. f. (i) Vol. i. p. 176. (k) Vide antè, vol. i. pt. i. ch. v. and vii. (1) There is an able discussion upon this point to be found in the columns of the Morning Chronicle for December, 1853. Heffters, p. 183, s. 99; p. 215, s. 122; p. 316, s. 181 and s. 182, note 1, in which the author says, "Dieser Punct ist und bleibt einer der schwierigsten :" in the text he says, "Dagegen sind alle Vertragsverpflichtungen deren Erfüllung erst noch in Zukunft geschehen sollte, wo also noch eine Willensänderung in Betreff der übernommenen Verpflichtung möglich war, durch den Ausbruch des Krieges zweifelhaft und unsicher geworden, so dass sie zu ihrer ferneren Giltigkeit einer Bestätigung durch eine neue deutliche Willenserklärung bedürfen." But all private rights of subjects or sovereigns, he says, remain, as a general rule, unaffected. hension of the meaning of a passage in Vattel, partly (2) from misapplying judicial dicta, uttered with respect to Private Contracts, to Public Treaties; partly (3), and perhaps chiefly, from not discriminating between those parts of a Treaty which contained a final adjustment of a particular question, such as the fixing a disputed boundary or ascertaining any contested right or property; or which incorporated by the common consent, express or tacit, of all States concerned in its assertion and maintenance, a great public principle into the International Code. That principle once so incorporated, does not require reiteration in subsequent Treaties, and, unless expressly repudiated, revives with Peace, or rather remains unaffected by War waged upon grounds unconnected with it. (1.) The passage in Vattel is taken from the 42nd Section of his Fourth Book. "It is " (he says)" of great importance "to draw a proper distinction between a new War and the "breach of an existing Treaty of Peace; because the rights acquired by such a Treaty still subsist notwithstanding "the new war: whereas they are annulled by the rupture of "the Treaty on which they are founded. It is true, indeed, "that the party who had granted those rights does not fail "to obstruct the exercise of them during the course of the "War as far as lies in his power; and he even may, by the 66 right of arms, wholly deprive his enemy of them, as well as " he may wrest from him his other possessions. But in that "case he witholds those rights as things taken from the "enemy, who, on a new Treaty of Peace, may urge the re"stitution of them. It often happens, when nearly equal 66 success has attended the arms of both parties, that the Belligerents agree mutually to restore their conquests and "to replace everything in its former state. When this is the case, if the War in which they were engaged was a new one, the former Treaties still subsist." 66 66 But of what is the writer speaking? Not of the effect of War generally upon Treaties-not whether existing public covenants are dissolved by hostilities-but whether the dis |