[*672]

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

."(e)

(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(ƒ) 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.

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 negotiating. From one of these points every negotiation must set out." (g)

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 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."(h)

[*673]

* He next adverted to the non-renewal of ancient Treaties, which he would contend was a principle in the process 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 aggrandizement; 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.”(i)

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 parties to them. It by no means followed as a matter of course that ancient Treaties were necessarily to be revived

(e) The Oregon Question, examined by Dr. Twiss, pp. 181, 182.

(f) See Appendix to this Volume for extracts from the speeches of the principal speakers in the debate.

(g) 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.

(h) Ib., pp. 587, 588.

(2) Debate on the Treaty of Amiens (1802,) Hansard's Parl. Hist., vol. xxxvi. (1801-3,) p. 593.

and renewed in every Treaty of Peace: that must depend upon the will of the contracting parties."(k)

In the second debate Lord Grenville(7) 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."

Dr. Lawrence,(m) Sir W. Grant,(n)-authorities second to none upon a question of International Law,-Mr. Windham, Mr. Pitt, Lord Chancellor Eldon,(o) Lord Hawkesbury,(p) Lord Carnarvon, (q) 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

[*674] *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, the Spanish Marriages in 1846.(r) It has been said by a modern writer that, (s) " in the dispute on the Spanish *marriages, the French minister had to defend, and the English [*675] foreign secretary to impugn, a transaction which both knew to be too infamous for public discussion; it was for this reason that both parties selected a fictitious issue."(†)

(n) Ib., pp. 801, 802, 803. (0) Ib., p. 725. (g) Ib., p. 714.

(m) Ib., pp. 674, 675, 677-9. (p) Ib., pp. 761, 762.

(r) 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 Furope."

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.

"Loque el Gobierno de sue Majestad reconoce como objeto claro y explicito del Tratado de Utrecht, es la estipulacion de que las coronas de España y de Francia no puedan en ningun caso reunirse en una misma persona."—P. 83. (s) Letters in the Morning Chronicle, vide supra, p. 663. n. (1).

(t) "To which" (the writer adds) "Lord Palmerston might well have demurred, when it was tendered by M. Guizot. On no other theory is it possible to account

But in truth it is hardly necessary to have recourse to this supposition in order to reconcile with the doctrine which has been laid down, the opinion that the Treaty of Utrecht, though not renewed by the later Treaties, was nevertheless a bar to the scheme of uniting France and Spain under one crown.

The Treaty of Utrecht contemplated a permanent arrangement of National and International Rights; moreover it contained the assertion of a great principle relating to the balance of power and the security of the liberties of Europe; it contained further, a solemn renunciation on the part of the Duke of Orleans, for himself and his successors, of any title to the throne of Spain. So far as this permanent arrangement, this principle, and this renunciation are concerned, the Treaty is not abrogated by the omission or the non-renewal of it in later Treaties. (u) It would require either an express waiver or repugnant stipulations in these later Treaties to extinguish these consequences of the Treaty.(x)

for the declaration by a grave statesman, that England would not recognize a Spanish monarch descended from Philip of Orleans, or a French monarch descended from Philip of Spain. Queen Isabella was excluded by one category, and both the Comte de Paris and the Comte de Chambord by the other, from their respective inheritances; but Lord Palmerston was not so much discussing a Treaty as intimating, with diplomatic courtesy, the deep indignation of England and of Europe."

(u) Considerations respecting the Marriage of the Duke of Montpensier with reference to the Treaty of Utrecht (London, Ridgway, 1847,) contains a very full and ample discussion of the subject.

(x) The suggestion in the text appears to reconcile the language of Lord Palmerston in an earlier debate (1839, upon the Mexican blockade,) as to the Treaty of Utrecht, with the opinion expressed in the case of the Spanish marriages. In the course of this debate, which was brought on by Lord Sandon, as to the legality of the blockade of the Mexican ports, Mr. E Tennent said, "But not only had France thus excluded us from the profitable trade of the La Plata and the Gulf of Mexico, but on another, and, if possible, a still less tenable ground, she had recently taken forcible occupation, and to this hour holds possession of the entire territory of Brazilian Guiana, on no other pretence, and by no other authority, than an alleged inaccuracy in the wording of the Treaty of Utrecht, which, it is asserted, describes inaccurately the relative boundaries of French and Portuguese Guiana. That such an error, that a geographical error, did exist in the wording of the Treaty of Utrecht, on this point, there could be no manner of doubt; but it was also equally certain that it was a matter of easy adjustment; and by the terms of the Treaty of Paris, in 1817, it was expressly determined that Commissioners should be mutually appointed to determine the boundary; and that if at the expiration of one year they should not be able to come to an understanding, 'the two contracting parties should proceed by friendly accord to form another arrangement under the mediation of Great Britain, and conformably to the Treaty of Utrecht, concluded under the guarantee of that power.'"*

To which Lord Palmerston is reported by the historian of Parliamentary Debates to have replied: "By the Treaty of Vienna-for the provisions of the Treaty of Utrecht had long lapsed in the variations of war-and by the 107th article of that Treaty, the Prince Regent of Portugal and the Brazils, to manifest, in the most indisputable manner, his consideration for the King of France, agreed to restore Guiana up to the river Amazon, in the 4th and 5th degrees of northern latitude, being the same limitation as it was considered was imposed on Portugal by the Treaty of Utrecht."+

It would seem also that these expressions with respect to the lapse of the provisions of the Treaty of Utrecht must be confined to those provisions which related

* Hansard's Parl. Deb., vol. xlvi. p. 914.

† Ib., Speech of Viscount Palmerston, p. 939.

SEPTEMBER, 1857.-30

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*DXXXVIII. The English minister addressed the following protest to the Spanish Court upon the subject of the Spanish mar

riages:

[*677]

"Draft of a note to be presented by Mr. BULWER to the
Spanish Government. October, 1846.(y)

"The undersigned, &c., has been instructed by his government to refer the government of her Majesty the Queen of Spain to the protest which, on the of September of this year, he presented, by the special orders of his government, against the projected marriage of the Infanta Luisa-Fernanda to the Duke of Montpensier.

"On that occasion the undersigned protested, in the name of the British Government, against the conclusion of that marriage, upon the ground that it would be injurious to the political independence of Spain, and detrimental to the balance of power in Europe, and that it would therefore most seriously affect the future relations between Spain and Great Britain. The undersigned is now instructed to declare, on behalf of the British Government, that the issue of such marriage would be held by Great Britain to be disabled, by the stipulations of Treaties and by the Public Law of Europe, from succeeding in any case to the Spanish throne. For, in the first place, on the 19th of November, 1712, the Duke of Orleans, in the act of renunciation then made by him of all eventual right and title to the crown of Spain, declared that his descendants were from that time forward and for ever excluded and disabled from, and incapable of succeeding to the crown of Spain, whatever might be the way in which the succession might devolve upon his line; and this renunciation and declaration on his part having been incorporated in the Treaties signed in 1713 at Utrecht, became thereby part and parcel of the Public Law of Europe. Moreover, the third article of the Treaty concluded in 1725, between Spain and Austria, stipulates that the crowns of France and Spain shall never be united either in the same person or in the same line.

*And secondly, Philip the Fifth of Spain declared, on the [*678] 8th of July, 1712, that no descendant of any family which might

at

any time reign in France should be capable of succeeding to the throne of Spain; and in 1713, the same Sovereign issued a Cedula, in which he declared that all the princes of the blood of France, and all their lines, either then in existence, or which might thenceforward exist, should remain excluded from the succession to the Spanish monarchy.

"It is indisputably demonstrable that, in consequence of these public acts, no person being the offspring or the descendant of the Duke of Montpensier, could, under any circumstances, succeed to the throne of Spain; and therefore the offspring or descendants of the marriage of the Duke of Montpensier with the Infanta Luisa-Fernanda, if that marriage

to the Portuguese territory of Guiana, and which had been altered or affected by subsequent Treaties. On the other hand the stipulation respecting the demolition of the fortifications of Dunkirk, which was one of the stipulations of the Treaty of Utrecht, was considered to have been abrogated by the silence of subsequent Treaties respecting it.

(y) P. 28, of Papers presented to Parliament.

should take place, would be for ever excluded from the succession to the Spanish crown, in the event of a failure of succession in the line of her present Majesty, the Queen Isabella; nor could any right or capacity which such offspring or descendants of the marriage of the Duke of Montpensier with the Infanta might inherit from the Infanta prevail against the positive disqualification and exclusion which would attach to them as descendants of the Duke of Orleans of 1712.

"The British Government deems it to be its duty to make this public and solemn declaration of the incapacity, disability, and exclusion, in regard to the succession to the throne of Spain, which would attach to any issue or descendants of the marriage of the Infanta with the Duke of Montpensier, if, in utter disregard of the remonstrance and protest of Great Britain, that marriage should be persisted in; and thus, if at any future time any dispute should in consequence thereof arise as to the succession to the throne of Spain, and if Great Britain should in such case deem it proper to take part in such dispute, in support of the principles which have been set forth in this note, it will not be in the power of any of the parties concerned to allege that *the British Government did not give timely warning of its sentiments and views.

[*679] "The undersigned, &c."

In a recent Message of the President of the N. A. United States, the doctrine in the text is strongly insisted upon: "A state of war" (it says) "abrogates Treaties previously existing between the belligerents, and a Treaty of Peace puts an end to all claims for indemnity for tortious acts committed under the authority of one government against the citizens or subjects of another, unless they are provided for in its stipulations.”(z)

*CHAPTER III.

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WHERE, HOW, AND UNDER WHAT LIMITATIONS THE DOCTRINE OF POSTLIMINIUM MAY BE APPLIED TO STATES AND THE SUBJECTS OF STATES ON THE RETURN OF PEACE.

DXXXIX. WHERE the Treaty of Peace is silent, containing no express or implied provisions concerning rights or property which have undergone a de facto change during the vicissitudes of War, some rules of justice must be applied, when the War is over, to settle the condition of these rights or this property, whether they appertain to a nation or an individual subject.

These rules belong to the category of Postliminium,(a) a name which has, ever since its introduction into the Roman Law, obtained universally in Public and International Jurisprudence.

(z) President's Message, Annual Register for 1847, p. 407.

(a) Vide ante, Vol. I. pp. 273, 311. Heffters, s. 187. Dig., xlix. t. xv., De Captivis, et de Postliminio, et Redemptis ab Hostibus. Voet., t. iv. p. 642, upon Dig., xlix. t. xv.