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"European States was permanently settled, until violently "disturbed by the Partition of Poland and the wars of "the French Revolution."

It must be admitted that a Municipal Court of the United States has denied the general doctrine of the abrogation of Treaties by War; but this Court was dealing at the time with a question of private property, to which the doctrine was certainly not applicable; and the language of the Court, though certainly going beyond the case, must be considered, in some degree at least, as the obiter dicta of judges (a).

But even without these qualifications, the language of the American Court has confined its denial of the general doctrine that Treaties are abrogated by War-within limits which are scarcely, if at all, distinguishable from the position which has been maintained in these pages.

That Court expressed its opinion that Treaties stipulating for permanent rights and general arrangements, and professing to aim at perpetuity, and to deal with the case of War as well as of Peace, do not cease on the occurrence of War, but are at most only suspended while it lasts; and that unless they are waived by the parties, or new and repugnant stipulations are made, they revive and come again into operation at the return of Peace (b).

In 1830 a question was raised in an English Municipal Court (c), whether, by the ninth article of the Treaty of 1794, between Great Britain and the United States, American citizens who held lands in Great Britain on October 28th, 1795, and their heirs and assigns, are at all times to be considered, as far as regards those lands, not as aliens, but as native subjects of Great Britain. The 28th article of the Treaty declared that the ten first articles

(a) The Society for the Propagation of the Gospel v. The Town of New Haven and William Wheeler, 5 Curtis's (Amer.) Rep. p. 483.

(b) The Oregon Question, by Dr. Twiss, p. 180.

(c) Sutton v. Sutton, 1 Russell & Mylne's Rep. p. 663. Rolls Court, Sir John Leach.

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should be permanent; but the counsel in support of the objection to the title contended that "it was impossible to suggest that the Treaty was continuing in force in 1813; "it necessarily ceased with the commencement of the War; "the 37 Geo. III. c. 97, could not continue in operation a "moment longer without violating the plainest words of the "Act: that the word 'permanent' was used, not as synonymous with perpetual,' or everlasting,' but in opposition "to a period of time expressly limited." On the other hand, the counsel in support of the title maintained that "the Treaty contained articles of two different descriptions; "some of them being temporary, others of perpetual obligation. Of those which were temporary, some were to "last for a limited period-such as the various regulations concerning trade and navigation; and some were to con"tinue so long as peace subsisted, but, being inconsistent "with a state of War, would necessarily expire with the "commencement of hostilities. There were other stipula"tions which were to remain in force in all time to come, "unaffected by the contingency of Peace or War. For “instance, there are clauses for fixing the boundaries of the "United States. Were the boundaries so fixed to cease "to be the boundaries the moment that hostilities broke "out?"

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The Master of the Rolls, in his judgment, said: "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 per"manent, and not depend upon the continuance of a state "of Peace.

"The Act of the 37 Geo. III. c. 95, 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 indepen"dent of a state of Peace or War, then the Act of Parlia"ment must be held, in the 24th section, to declare this

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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 cannot be construed to be directly repugnant and opposed to the 24th 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" (d).

After the War of 1856, Russia and Sardinia, by special Treaty, renewed the obligations of Treaties which had been abrogated by the War.

(3). The practice of States is clear upon this subject. It receives an ample illustration, especially as far as England is concerned, from the debates in both Houses of the English Legislature at the period of the Peace of Amiens (1801).

DXXXVI. In the House of Lords there were two debates upon the subject of this Peace. Upon a careful perusal and attentive consideration of them it will be found that the doctrine of the abrogation of Treaties by the breaking out of War was either expressly, or by implication, admitted by every speaker who had any pretensions to be considered either a jurist or a statesman.

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In the first debate Lord Grenville observed that "in entering into negotiation, every statesman knew that the "basis must be one of these two-either to take the status "ante bellum or the uti possidetis at the moment of nego"tiating. From one of these points every negotiation must "set out" (e).

He afterwards added, that "he was peculiarly called upon "to direct the attention of Ministers to the subject of an "omission which appeared to him of great consequence, of

(d) The Oregon Question, examined by Dr. Twiss, pp. 181, 182. (e) Debate on the Treaty of Amiens (1802), Hansard's Parliamentary History, vol. xxxvi. (1801-3), p. 164.

Reported and amplified in second debate on the same Treaty, ib. p.690. The speeches of the principal speakers are given in the Appendix to this volume.

"not stipulating for the renewal of all or most of the "Treaties before subsisting between this country and those "nations with which we had lately been at war" (ƒ). . .

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"He next adverted to the non-renewal of ancient Trea"ties, which he would contend was a principle in the pro"cess of negotiation equally novel and injurious; and, in "illustrating these propositions, he again referred to the "French official papers that he had already quoted, which "said, the old law is destroyed; a new public law commences;' which principle might be most destructively applied by France in her future projects of aggrandise“ment; and they might well say to us, that, abiding by "the Treaty of Amiens, which in effect ordained a new "Law of Nations, we had no right or title to inquire" (g).

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In this debate, too, the ex-Lord Chancellor, Lord Thurlow," insisted that all subsisting Treaties were at an end as soon as a War was commenced with those who were par"ties to them. It by no means followed as a matter of "course that ancient Treaties were necessarily to be revived ❝ and renewed in every Treaty of Peace: that must depend "upon the will of the contracting parties" (h).

In the second debate Lord Grenville (i) moved an address which in one of its paragraphs adverted to the "immense "accessions of territory, influence and power which it (the Treaty) had tacitly confirmed to France."

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Dr. Lawrence (k), Sir W. Grant (1),-authorities second to none upon a question of International Law,-Mr. Windham, Mr. Pitt, Lord Chancellor Eldon (m), Lord Hawkes

(f) Debate on the Treaty of Amiens (1802), Hansard's Parl. Hist. vol. xxxvi. (1801–3), pp. 587, 588.

(g) Ib. p. 593.

(h) Ib. p. 596.

(i) Ib. p. 699.

(k) Ib. pp. 674, 675, 677-9.

(1) Ib. pp. 801, 802, 803.

(m) Ib. p. 725.

bury (n), Lord Carnarvon (o), speakers taking different parts, and maintaining different opinions in the debate as to the policy of the Treaty of Amiens, will all be found to have admitted expressly, or by implication, the doctrine that Treaties are abrogated by War.

DXXXVII. It has been thought that this doctrine respecting the abrogation of Treaties by War is at variance with the language of the English and French Ministers for Foreign Affairs, Lord Palmerston and M. Guizot, during the painful discussion upon that most discreditable international transaction of the Spanish Marriages in 1846 (p).

(n) Debate on the Treaty of Amiens (1802), Hansard's Parl. History, vol. xxxvi. (1801–3), pp. 761, 762.

(0) Ib. p. 714.

(p) Correspondence relating to the Marriages of the Queen and Infanta of Spain. Papers presented to Parliament, 1847.

P. 18. Lord Normanby's account to Lord Palmerston of his (Ld. N.'s) conversation with M. Guizot, who said, as to the union of the crowns of France and Spain, "That need not be feared; it is guarded against by the Treaty of Utrecht."

P. 24. Lord Palmerston.-" The decision of the King of the French that the Duke of Montpensier should not be a candidate for the hand of the Queen of Spain . . . . was the result of the sense which the King of the French spontaneously entertained of what was due by France to the faith of the transactions of the Treaty of Utrecht, and to the just value attached by other States to the maintenance of the balance of power in Europe."

P. 25. "It is perfectly clear that by virtue of the renunciation made at the Peace of Utrecht by the Duke of Orleans of that day ‘all his descendants, male and female, for that time and for ever, are excluded, disabled, and incapacitated from succeeding to the throne of Spain, in what manner soever the succession might fall to their line :' and therefore the children and descendants of the Duke of Montpensier would, in consequence thereof, be excluded from succeeding to the Spanish crown."

P. 47. M. Guizot says that (1) to secure the throne of Spain to the descendants of Philip V., (2) to prevent the union of the thrones of France and Spain, was the double object of the Treaty of Utrecht, and contends, "la double intention du Traité d'Utrecht est donc toujours accomplie."

See also pp. 69, 70, 75, 76. The Spanish Minister, Xavier de Isturiz, admits the validity of the renunciation, and, by implication, the Treaty itself of Utrecht.

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