HOOPER v. UNITED STATES.

(United States Court of Claims, 1887. 22 Ct. Cl. 408.)

DAVIS, J.23 This court has now delivered three opinions upon general issues raised in the French Spoliations Cases. The first related to the broad questions as to the validity, against France, of the claims as a class, and the resulting liability of the United States to the claimants; the second was directed more especially to forms of pleading, the value of evidence, and rights of insurers; while the third disposed of a motion made by the defendants for a rehearing of the general questions discussed in the first opinion. Gray, administrator, v. United States, 21 Ct. Cl. 340; Holbrook, administrator, v. United States, 21 Ct. Cl. 434; Cushing, administrator, v. United States, 22 Ct. Cl. 1.

A large number of cases have since been argued and submitted to the court, and certain general questions are found raised in many of them. Those questions we shall now proceed to discuss, as well as two points which were sent back by the court for further argument.

It is urged by the claimants that the treaties of 1778 (8 Stat. 6, 12) remained in force, notwithstanding the abrogating act of July 7, 1798 (1 Stat. 578), until the final ratification of the treaty of 1800 (8 Stat. 178), and that these treaties prescribe the rule by which all the spoliation claims are to be measured. This position is denied by the govern

ment.

For the purpose of this branch of the case, the period of the spoliations may be divided into two parts-that prior to July 7, 1798, and that subsequent thereto and prior to the ratification of the treaty of 1800.

As to the first period, we find the position on both sides to have been consistent, which a few citations covering different years will clearly show. *

The treaties of 1778, particularly the treaty of commerce, which is the important one for our purposes, were in existence until the passage of the abrogating act. Whatever disputes occurred between this country and France during the disturbed period following the conclusion of the Jay Treaty arose from differences of interpretation of various clauses of the Franco-American Treaty, and on neither side do we find seriously advanced a contention that the treaties were not in existence and were not binding upon both nations. The United States distinctly urged their enduring force, while the French departed from this position only in this (if it be a departure), that the Jay Treaty introduced a modification into their treaty with us of which they were entitled to the benefit.

by the Treaty of London of 1871 agreed inter alia to the obligation of these articles, and annexed to the Treaty the protocol printed above.

23 The statement of facts is omitted and only so much of the opinion is given as relates to annulment of treaties.

We are of opinion that the treaties of 1778, so far as they modified the law of nations, constituted the rule by which all differences between the two nations were to be measured after February 6, 1778, and before July 7, 1798.

As to the period after July 7, 1798:

On that date the abrogating act passed by the Congress was approved by the President and became a law within the jurisdiction of the Constitution; a law replacing to that extent the treaties, and binding upon all subordinate agents of the nation, including its courts, but not necessarily final as the annulment of an existing contract between two sovereign powers.

A treaty which on its face is of indefinite duration, and which contains no clause providing for its termination, may be annulled by one of the parties under certain circumstances. As between the nations it is in its nature a contract, and if the consideration fail, for example, or if its important provisions be broken by one party, the other may, at its option, declare it terminated. The United States have so held in regard to the Clayton-Bulwer Treaty, as to which Mr. Frelinghuysen, then Secretary of State, wrote Mr. Hall, minister in Central America (July 19, 1884):

"The Clayton-Bulwer Treaty was voidable at the option of the United States. This I think, has been demonstrated fully upon two grounds. First, that the consideration of the treaty having failed, its object never having been accomplished, the United States did not receive that for which they covenanted; and, second, that Great Britain has persistently violated her agreement not to colonize the Central American coast."

Here concur two clear reasons for annulment, failure of consideration and an active breach of contract.

Abrogation of a treaty may occur by change of circumstances, as: "When a state of things which was the basis of the treaty, and one of its tacit conditions, no longer exists. In most of the old treaties were inserted the clausula rebus sic stantibus, by which the treaty might be construed as abrogated when material circumstances on which it rested changed. To work this effect it is not necessary that the facts alleged to have changed should be material conditions. It is enough if they were strong inducements to the party asking abrogation.

"The maxim 'Conventio omnis intelligitur rebus sic stantibus' is held to apply to all cases in which the reason for a treaty has failed, for there has been such a change of circumstances as to make its performance impracticable except at an unreasonable sacrifice." Wharton's Com. Am. Law; § 161.

"Treaties, like other contracts, are violated when one party neglects or refuses to do that which moved the other party to engage in the transaction. When a treaty is violated by one party in one

or more of its articles, the other can regard it as broken and demand redress, or can still require its observance." Woolsey, § 112.

The United States annulled, or at least attempted to annul, the treaties with France upon the grounds, stated in the preamble of the statute, that the treaties had been repeatedly violated by France, that the claims of the United States for reparation of the injuries committed against them had been refused; that attempts to negotiate had been repelled with indignity and that there was still being pursued against this country a system of "predatory violence infracting the said treaties and hostile to the rights of a free and independent nation." Such were the charges upon which was based the enactment that "the United States are of right freed and exonerated from the stipulations of the treaty and of the consular convention heretofore. concluded between the United States and France, and that the same shall not henceforth be regarded as legally obligatory on the government or citizens of the United States."

The treaties, therefore, ceased to be a part of the supreme law of the land, and when Chief Justice Marshall stated, in July, 1799, Chirac v. Chirac, 2 Wheat. 272, 4 L. Ed. 234, that there was no treaty in existence between the two nations, he meant only that within the jurisdiction of the Constitution the freaties had ceased to exist, and did not mean to decide, what it was exclusively within the power of the political branch of the government to decide, that, as a contract between two nations the treaties had ceased to exist by the act of one party, a result which the French ministers afterwards said could be reached only by a successful war.

The only question that we have now to consider is that of the international relation. The annulling act issued from competent authority and was the official act of the government of the United States. So far as it was in the power of one party to abrogate these treaties it was indisputably done by the act of July 7, 1798. Notwithstanding this statute, did not the treaties remain in effect to this extent, if no further, that they furnish a scale by which the acts of France, which we are charged to examine, are to be weighed; and in considering the legality of those acts are we not to follow the treaties where they vary the law of nations? The claimants in very learned and philosophical arguments contend for the affirmative.

*

We are of the opinion that the circumstances justified the United States in annulling the treaties of 1778; that the act was a valid one, not only as a municipal statute, but as between the nations; and that thereafter the compacts were ended. We fail to find any agreement by France as to these claims to submit to the treaty rules after July 7, 1798, the treaties not being recognized by us, and we conclude that the validity of claims not expressly mentioned in the treaty of 1800, which arose after July 7, 1798, is to be ascertained by the principles

of the law of nations, recognized at that time, and not by exceptional provisions found in the treaties of 1778.

* * * 24

24 See Ropes v. Clinch, 8 Blatchf. 304, Fed. Cas. No. 12,041 (1871), for the various ways in which Congress may destroy the operative effect of a treaty. In Terlinden v. Ames, 184 U. S. 270, 282-284, 22 Sup. Ct. 484, 46 L. Ed. 534 (1902), Mr. Chief Justice Fuller said, in behalf of the court:

"This brings us to the real question, namely, the denial of the existence of a treaty of extradition between the United States and the Kingdom of Prussia, or the German Empire. In these proceedings the application was made by the official representative of both the Empire and the Kingdom of Prussia, but was based on the extradition treaty of 1852. The contention is that, as the result of the formation of the German Empire, this treaty had been terminated by operation of law.

"Treaties are of different kinds and terminable in different ways. The fifth article of this treaty provided, in substance, that it should continue in force until 1858, and thereafter until the end of a twelve months' notice by one of the parties of the intention to terminate it. No such notice has ever been given, and extradition has been frequently awarded under it during the entire intervening time.

"Undoubtedly treaties may be terminated by the absorption of powers into other nationalities and the loss of separate existence, as in the case of Hanover and Nassau, which became by conquest incorporated into the Kingdom of Prussia in 1866. Cessation of independent existence rendered the execution of treaties impossible. But where sovereignty in that respect is not extinguished, and the power to execute remains unimpaired, outstanding treaties cannot be regarded as avoided because of impossibility of performance.

"This treaty was entered into by His Majesty the King of Prussia in his own name and in the names of eighteen other states of the Germanic Confederation, including the Kingdom of Saxony and the free city of Frankfort, and was acceded to by six other states, including the Kingdom of Würtemburg, and the free Hanseatic city of Bremen, but not including the Hanseatic free cities of Hamburg and Lubeck. The war between Prussia and Austria in 1866 resulted in the extinction of the Germanic Confederation and the absorption of Hanover, Hesse Cassel, Nassau and the free city of Frankfort by Prussia.

"The North German Union was then created under the præsidium of the Crown of Prussia, and our minister to Berlin, George Bancroft, thereupon recognized officially not only the Prussian Parliament, but also the Parliament of the North German United States, and the collective German Customs and Commerce Union, upon the ground that by the paramount constitution of the North German United States, the King of Prussia, to whom he was accredited, was at the head of those several organizations or institutions; and his action was entirely approved by this government. Messages and Documents, Dep. of State, 1867-68, part I, p. 601; Dip. Correspondence, Secretary Seward to Mr. Bancroft, Dec. 9, 1867.

"February 22, 1868, a treaty relative to naturalization was concluded between the United States and His Majesty, the King of Prussia, on behalf of the North German Confederation, the third article of which read as follows: "The convention for the mutual delivery of criminals, fugitives from justice, in certain cases, concluded between the United States on the one part and Prussia and other states of Germany on the other part, the sixteenth day of June, one thousand eight hundred and fifty-two, is hereby extended to all the states of the North German Confederation.' 15 Stat. 615. This recognized the treaty as still in force, and brought the republics of Lubeck and Hamburg within its scope."

CHAPTER VI

PACIFIC SETTLEMENT OF INTERNATIONAL DISPUTES

SECTION 1.-MAINTENANCE OF GENERAL PEACE

CONVENTION FOR THE PACIFIC SETTLEMENT OF INTERNATIONAL DISPUTES.1

(First Hague Peace Conference of 1899, July 29, 1899. 32 Stat. 1779, 1785.) Article 1. With a view to obviating, as far as possible, recourse to force in the relations between States, the signatory Powers agree to use their best efforts to insure the pacific settlement of international differences.

SECTION 2.-GOOD OFFICES AND MEDIATION

CONVENTION FOR THE PACIFIC SETTLEMENT OF INTERNATIONAL DISPUTES.

(First Hague Peace Conference of 1899, July 29, 1899. 32 Stat. 1779, 17851786.)

Article 2. In case of serious disagreement or conflict, before an appeal to arms, the signatory Powers agree to have recourse, as far as circumstances allow, to the good offices or mediation of one or more friendly Powers.

Article 3. Independently of this recourse, the signatory Powers recommend that one or more Powers, strangers to the dispute, should,

1 This Convention, negotiated at the First Peace Conference, meeting at The Hague, May 18-July 29, 1899, was adopted by the twenty-six powers there represented. It was ratified by each of the countries taking part in the conference, and the ratifications were deposited, in accordance with the terms of the agreement, with the Minister of Foreign Affairs, at The Hague.

In June, 1907, the Latin-American states not invited to the First Hague Conference, or participating in its labors, adhered to the Pacific Settlement Convention, so that it thereupon became the law of forty-four states.

In 1907, at the Second Hague Peace Conference, it was revised and enlarged, and met with the approval of the forty-four states assembled. States which have not ratified the revised Convention remain bound by the first. It is, therefore, to all intents and purposes, the law of all civilized states.

Since the institution of the Permanent Court of Arbitration provided for by the Pacific Settlement Convention, sixteen cases have been decided, and one is pending. For the texts of these cases, see George Grafton Wilson, The Hague Arbitration Cases, Boston (1915); James Brown Scott, The Hague Court Reports, New York (1916).