"The general rule of international law is that war terminates all subsisting treaties between the belligerent powers. . . . .. Perhaps the only exception to this rule, if such it may be styled, is that of a treaty recognizing certain sovereign rights as belonging to a nation which had previously existed independently of any treaty engagements. . . . It will scarcely be contended that the Nootka Sound convention belongs to this class of treaties."

Moore's Digest, vol. 5, p. 375; Mr. Buchanan, Sec. of State, to Mr. Packenham, British min., July 12, 1845, 34 Br. & For. State Papers. 93, 97.

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Mr. Packenham, July 29, 1845, replied: The Nootka Sound convention braced, in fact, a variety of objects; it partook, in some of its stipulations, of the nature of a commercial convention; in other respects it must be considered as an acknowledgment of existing rights, an admission of certain principles of international law, not to be revoked at the pleasure of either party, or to be set aside by a cessation of friendly relations between them." (Id. 102.)

"A state of war abrogates treaties previously existing between the 'belligerents."

Moore's Digest, vol. 5, p. 375; President Polk, annual message, Dec. 7, 1847. See, however, infra, § 1053.

Stipulations in treaties having sole reference to the exercise of belligerent rights can not be applied to govern cases exclusively of another nature, and belonging to a state of peace.

Moore's Digest, vol. 5, p. 375; The Marianna Flora, 11 Wheat. 1.

April 23, 1898, on the outbreak of war with the United States, the Spanish Government issued a decree which, among other things, declared: "The war existing between Spain and the United States terminates the treaty of peace and friendship of the 27th October. 1795, the protocol of the 12th January, 1877, and all other agreements, compacts, and conventions that have been in force up to the present between the two countries."

By Article XIII of the treaty of October 27, 1795, it was agreed that, if a war should break out between the two nations, one year after the declaration of war should be allowed to the merchants in the cities and towns where they should live for collecting and transporting their goods and merchandise. A rumor having got abroad that the Spanish Government contemplated the issuance of a decree of expulsion against citizens of the United States who might be within the Spanish dominions, the Department of State caused the attention of the Spanish Government to be drawn to this stipulation through the British ambassador at Madrid. The Spanish Government replied that it considered all treaties between the two countries. to be at an end, but offered to enter into a special convention for the provisional application during the war of the stipulation in question. The United States declined to accept this proposal on the ground

that the stipulation, instead of being abrogated by the state of war, must be considered as finding therein its full force and effect. Here the correspondence closed. No decree of expulsion was issued.

Mr. Moore, Act. Sec. of State, to Mr. Hay, amb. to England, tel., April 20, 1898, For. Rel. 1898, 972; Mr. Hay to Mr. Day, Sec. of State, tel., May 7, 1898, ibid.; Mr. Day to Mr. Hay, tel., May 8, 1898, ibid.; Mr. Hay to Mr. Day, No. 387, May 10, 1898, and No. 393, May 14, 1898, id. 973; Mr. Day to Mr. Hay, No. 668, June 1, 1898, id. 974.

"If it were true that war abrogates such stipulations (as Art. XIII. of the treaty of 1795), they would be subject to the singular fate of ceasing to be in force whenever they should become applicable." (Mr. Moore, Act. Sec. of State,

to Mr. Wheeler, May 3, 1898, 228 MS. Dom. Let. 245.) See, also, Mr. Moore, Assist. Sec. of State, to Mr. Heymann, June 13, 1898, 229 MS. Dom. Let. 308.

That treaties applicable to a state of war are not abrogated by war, see Lawrence's Wheaton (1863), 472-473, and authorities there cited.

Moore's Digest, vol. 5, pp. 375, 376.

By a decree of the Spanish government, issued April 23, 1898, all treaties between the two countries were declared to be terminated by the war which had then broken out. In the treaty of peace, concluded at Paris, Dec. 10, 1898, there is no stipulation for the revival of such treaties. By Article VII. the contracting parties "mutually relinquish all claims for indemnity," but this relinquishment is expressly restricted to claims "that may have arisen since the beginning of the late insurrection in Cuba and prior to the exchange of ratifications." During the negotiation of the treaty, however, the American commissioners proposed an article by which all the treaties in existence between the two countries at the outbreak of the war were enumerated and declared to continue in force. This article was taken up for consideration at the conference held on the 8th of December. The president of the Spanish commission stated that the Spanish commissioners were unable to accept the article, but added: "Some of the treaties to which it referred were obsolete or related to conditions which no longer existed, and it would involve a more extended examination than the joint commission was in a position to give. But this does not imply that the two governments might not take up the subject themselves."

Ex. Doc. B, 55 Cong. 2.sess., part 2, p. 254; S. Doc. 62, 55 Cong. 3 sess. part 1. "All treaties, agreements, conventions, and contracts between the United States and Spain prior to the treaty of Paris shall be expressly abrogated and annulled, with the exception of the treaty signed the 17th of February, 1834, ... for the settlement of claims . . . which is continued in force by the present convention." (Art. XXIX, Treaty of Friendship and General Relations, between the United States and Spain, July 3, 1902.)

As to Art. XI. of the treaty of 1795, see Mr. Hay, Sec. of State, to Messrs. Turner, McClure, and Ralston, March 28, 1900, 244 MS. Dom. Let. 59.

Moore's Digest, vol. 5, pp. 376, 377.

In the Case of the Society for the Propagation of the Gospel v. New Haven (8 Wheat. 492-495), the Court said:

"The last question respects the effect of the late war between Great Britain and the United States, upon rights existing under the treaty of peace. Under this head, it is contended by the defendant's counsel, that although the plaintiffs were protected by the treaty of peace, still, the effect of the last war was to put an end to that treaty. and, consequently, to civil rights derived under it, unless they had been revived and preserved by the treaty of Ghent. If this argument were to be admitted in all its parts, it nevertheless would not follow, that the plaintiffs are not entitled to a judgment on this special verdict. The defendants claim title to the land in controversy, solely under the act of 1794, stated in the verdict, and contend, that by force of that law, the title of the plaintiffs was divested. But if the court has been correct in its opinion upon the two first points, it will follow that the above act was utterly void, being passed in contravention of the treaty of peace, which, in this respect, is to be considered as the supreme law. Remove that law, then, out of the case, and the title of the plaintiffs, confirmed by the treaty of 1794, remains unaffected by the last war, it not appearing from the verdict, that the land was confiscated, or the plaintiffs' title in any way divested, during the war, or since, by office found, or even by any legislative act. "But there is a still more decisive answer to this objection, which is, that the termination of a treaty cannot divest rights of property already vested under it. If real estate be purchased or secured under a treaty, it would be most mischievous to admit, that the extinguishment of the treaty extinguished the right to such estate. In truth, it no more affects such rights, than the repeal of a municipal law affects rights acquired under it. If, for example, a statute of descents be repealed, it has never been supposed, that rights of property already vested during its existence, were gone by such repeal. Such a construction would overturn the best established doctrines of law, and sap the very foundation on which property rests.

"But 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 interpretation 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 be gone, and we should have had again to struggle for both upon original revolutionary principles. Such a construction was never asserted, and would be so monstrous as to supersede all reasoning. We think, therefore, 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 unless they are waived by the parties, or new and repugnant stipulations are made, they revive in their operation at the return of peace."

SUSPENSION OF INTERCOURSE WITH THE ENEMY.

"No principle," says Mr. Justice Story, "of national or municipal law is better settled than that all contracts with an enemy, made during War, are utterly void. This principle has grown hoary under the reverend respect of centuries, and cannot now be shaken without uprooting the very foundations of national law."

No rule of law is in fact better established by the universal usage of the community of States. This rule of interdiction in no degree arises from the commerce being carried on by sea: the principles of public policy and public law equally forbid commercial intercourse by land; and when an enemy existed in the other part of the island of Great Britain, such intercourse was deemed equally criminal in the jurisprudence of our country.

When the belligerent maritime rights and the question of licences come under consideration, we shall see with what strictness this rule has been applied to cases in which supplies have been brought to a British colony during its temporary subjection to the enemy, and to cartel ships.

In the last war between Russia and England, it pleased the Crown of England both to waive a great portion of her belligerent rights respecting neutral States, and also, with respect to her own subjects, to allow, with certain exceptions relating to Contraband of War and Blockade, that her subjects might, during and notwithstanding the hostilities with Russia, freely trade with all ports and places, wheresoever situate, which were not in a state of blockade, save and except that no British vessel should, under any circumstances whatsoever, either under or by virtue of this order or otherwise, be permitted or empowered to enter or communicate with any port or place which shall belong to or be in the possession or occupation of Her Majesty's enemies.

Every State has a right to call home its subjects who are in a foreign country, when their presence is deemed necessary by the Government for the defence of their country.

Every State has a right to forbid its subjects to serve the enemy against their country, and to punish them in case of disobedience. The same principle applies to prohibit all communication or correspondence, and, as we have seen, all commerce, with the enemy. It is simply a question of policy and expediency whether and with what degree of vigour, the right shall be enforced. But all contracts with the enemy are null and void, even the insurance of an

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