unjust and unreasonable should forfeit the character with which they are invested, their judgment would deserve no attention; "but that singular award and the steps which led to it may help to explain American reluctance, should any be exhibited, to further arbitration on the fisheries question.

THE EFFECT OF WAR ON TREATIES.

Having referred to the facts which show the intention of the high contracting parties in 1783, that the article on the fisheries in the Treaty of Separation reciting their division between the two empires should not be temporary and transient, but fundamental, permanent, and enduring, and that the acceptance of that article by the British cabinet was a condition of the peace-facts long since established on the American side by the testimony of our own archives, and now confirmed by the letters of the English negotiators gathered after a hundred years from the State Paper Office of London—it may be proper to refer to the simple rule of law, which should determine the question whether that article could be abrogated, as the British commissioners contended, by the War of 1812.

That rule is thus stated in Field's International Code :

TREATIES UNAFFECTED BY WAR.

War does not affect the compacts of a nation except when so provided in such contracts; and except also that executory stipulations in a special compact between belligerents, which by their nature are applicable only in time of peace, are suspended during the war.

Wharton says:

Treaties stipulating for a permanent arrangement of territorial and other national rights are at the most suspended during war, and revive at peace, unless they are waived by the parties, or new and repugnant stipulations are made (II. Wharton's International Law Digest, Chapter VI., Sec. 135).

A large and looser rule was contended for in Society vs. New Haven in the Supreme Court of the United States in 1823, and the Court was asked to recognize the doctrine urged at the bar, that treaties become extinguished ipso facto by a war between two governments. But the Court said, by Justice Washington :

Whatever may be the latitude of doctrine laid down by elementary writers on the law of nations, dealing in general terms in relation to the subject, we are satisfied the doctrine contended for is not universally true (VIII. Wheaton, 494).

In an English case arising under the Treaty of 1794, the principle was distinctly recognized that they were to determine, by reasonable construction, the intention of the treaty (Sutton vs. Sutton, I Rus. and M., 663). The question was, whether American subjects who hold land in England were to be considered, in respect of such lands, as aliens or subjects of Great Britain, or whether the War of 1812 had determined the Treaty of 1794. Sir J. Leach, the Master of the Rolls, said: "The privileges of nations being reciprocally good, not only to actual possession of land, 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."

It is mentioned in Wharton's Digest, III. § 303, that this decree was not appealed from. The last edition of Wharton (1886) contains a valuable summary of the principles and cases bearing on the fishery questions under the Treaties of 1783 and 1818 (III., pp. 38-57).

Mr. Blaine, in his "Twenty Years of Congress" (II., p. 617), alluded to

The rather curious fact, apparently unknown or unnoticed by the negotiators of 1814, that as late as 1768 the law officers of the crown, under the last ministry of Lord Chatham (to whom was referred the

Treaty of 1686 with France, containing certain stipulations in relation to the Newfoundland fisheries), gave as their opinion that such clauses were permanent in their character, and that so far the treaty was valid, notwithstanding subsequent war.

Mr. Blaine has kindly referred me to these cases in Chalmer's opinions of eminent lawyers.

The question to which they relate arose upon the fifth and sixth articles of the Treaty of Peace and Neutrality in America, concluded between England and France, November 16, 1686, touching the neutral rights, conditions, and disabilities of the inhabitants of each kingdom as regards trade and fishing in the places possessed by them in America. On April 7, 1753, the attorney and solicitor-general, Ryder and Murray, advised the Government of their opinion, without statement of their reasons, that "the said treaty is now in force." On February 12, 1765, the attorney and solicitor-general, Norton and De Grey, announced as their opinion, without statement of their reasons, "that the said treaty was not in force." On February 15, 1765, Sir James Marriot, the advocate-general, gave his opinion that the Treaty of Neutrality was a subsisting treaty; and this view is sustained in a very careful and elaborate argument, by broad and just considerations of good faith and enlightened civilization, worthy of the noblest statesmanship and diplomacy of England.

His opinion showed that the treaties are in their nature contracts, and are to be argued on the footing of obligations which arise from contract expressed or necessarily implied, and that the question of deciding the validity and existence of a public treaty is to be governed by the same. rules and reasonings applicable to other contracts. Touching their revival, from the very nature of the cause claiming to operate which had suspended the force of the convention, especially if the objects of good faith are concerned in the revival, Sir James alluded to the fact that the decision of such questions, in their age of negotiation,

must differ from the practices of barbarous nations with but partial notions of modern civilization; and that "in the present age, as war is commenced on different principles from the wars of antiquity, so it ends with different principles, in both more to the honor of humanity."

He showed that the public law of Europe abhors the spirit of ancient wars, and that war in these times is considered but as an appeal to the rest of the powers of Europe, and is but a temporary exertion of force to decide a point of interest which no human tribunal could determine, and he said:

the

Thus it is, in its nature, but a suspense of the other rights not in contest, which existed between the belligerent powers reciprocally, before the war; when we reason, therefore, that a war being ended, public reciprocal rights and obligations, not specially abrogated, but suspended, emerge, and acquire their former vigor and activity, the reasoning of it is just; is so, because it is consistent with the relations, and arises out of the nature of things. We need not urge the necessity of particular stipulations, to revive such obligations; it is the very essence and necessary idea of reconciliation, implied of course, if not declared, in every definitive treaty of pacification, that the commercial and friendly intercourse of the contracting powers is replaced in its former state.

Such is the force of those exalted principles of public law which, in these happier ages of human society, restore their proper empire over the minds of men to good sense and good faith, with a force superior to the passions or prejudices of nations long accustomed to be rivals; and such I conceive to be the law of Europe in its present state, which, whenever these doctrines, founded in reason and humanity, shall cease to prevail, will fall back into all the gloom of a barbarous condition of ignorance and despotism.

The war between England and France, which followed the revolution, suspended the commercial treaty of 1686, called the Treaty of Neutrality. The Treaty of Peace, concluded at Ryswick, 1697, takes no notice of it nominally, but revives it, by the general quality of a treaty, putting an end to the war by the strongest terms of a general comprehension, restoring the commerce of the two nations, reciprocally, to the state in which it existed before the war.

I have the honor to submit that the Treaty of 1686 may be insisted upon as a subsisting treaty, not only because it is revived, by a strong

implication of words and facts, but for that it may be understood to subsist because it never was abrogated.*

The exalted principles of public law declared in that masterly opinion of the Advocate-General in 1765, confirmatory of the opinion of Attorney-General Ryder and Solicitor-General Murray in 1753, that the fisheries article in the French and English treaty of 1686, while suspended by war, had been restored by the peace, apply in still greater force to the fisheries article in the Anglo-American Treaty of 1783, which was not only a treaty of peace but of separation, intended to settle definitely and permanently the boundaries, and the rights and liberties of the two nations in what had before been held by them in common. The War of 1812 suspended the exercise of the rights and liberties secured by the fisheries clause; and when the war was terminated by the Treaty of Ghent, that treaty, while taking no notice of the fisheries clause of 1783 nominally, "revived it by the general quality of a treaty putting an end to the war, and restoring the commerce of the two nations reciprocally to the state in which it existed before the war." Whether or not the weighty argument of Sir James Marriott was known to the British Commissioners at Ghent or at London, it will not be overlooked by Americans or by Englishmen in considering the question of the fisheries under the interesting circumstances of to-day.

Nor will they forget that the true doctrine of the effect. of war on treaties, so clearly stated by Sir James in 1765, was recognized in the Parliamentary debates on the Peace of Amiens in 1802, between Great Britain, France, Spain, and Holland, by the great jurists of England, whose opinions seem to have been strangely ignored by the British Government, in its efforts to prove that our fishery rights.

* Vol. II., pp. 344-355, of Opinions of Eminent Lawyers on Various Points of English Jurisprudence, chiefly Concerning the Colonies, Fisheries, and Commerce of Great Britain. By George Chalmers. London Reed & Hunter, 1814.