and dates back to the early days of the republic with respect to tonnage and harbor duties. 122. Termination of Treaties.-A treaty may be modified or terminated by the following conditions: 1. When the parties mutually consent. 2. When continuance is conditioned upon terms which no longer exist. 3. When either party refuses to perform a material stipulation. 4. When all the material stipulations have been performed. 5. When a party having the option elects to withdraw. 6. When performance becomes physically or morally impossible. 7. When a state of things which was the basis of the treaty and one of its vital conditions no longer exists. In addition there are other causes for the abrogation or termination of a treaty which will be given specifically. "When, for instance, a state loses entirely its identity by incorporation into another its obligation to execute pre-existing treaties ceases. This results from the impossibility of performance. The annexation of the Hawaiian Islands by the United States is a case in point. . . .1 When one state unites or confederates with another but still retains to a limited degree its separate character, the continued validity of treaties is less easily determined. If the confederated state retains liberty of action with respect to the matter touched upon by the treaty its obligation will still exist." The treaties made with Prussia, before the formation of the German Empire, by the United States are held to be still effective, as the King of Prussia is considered to still retain as Emperor the power to carry into effect international obligations in this respect. "A state formed by separation from another, whether the identity of the original state still exists or is completely lost by 1 Crandall, “Treaties," etc., pp. 233-4. disintegration, succeeds to such treaty obligations as are peculiarly local. Of this character was the boundary agreement of January 12, 1828, between the United States and Mexico, which, 'having been entered into at a time when Texas formed a part of the United Mexican States,' was recognized by Texas after its separation as a binding compact. Stipulations with respect to water-courses and the navigation of rivers are here included. Likewise the provisions of Article XXXV of the treaty of 1846 between the United States and New Granada, in which the right of way or transit across the Isthmus of Panama upon any modes of communication then existing, or which might thereafter be constructed, was guaranteed to the government and citizens of the United States together with the correlative obligations on the part of the United States, have been considered as forming a covenant 'that runs with the land, to the duties and benefits of which the new state of Panama succeeded.' The doctrine of the liability of the seceding portion to treaty obligations of the parent state has, in some instances, been asserted in latitude sufficient to include those of a purely national character. For instance, the government of the United States, soon after recognizing Texas, gave notice that it considered the treaty of amity, commerce, and navigation between the United States and Mexico of April 5, 1841, as mutually binding upon the United States and Texas. The obligation was subsequently recognized by Texas."2 The annexation or absorption of Madagascar was held by the French to render invalid all of its previous treaties with the United States, but made Franco-American treaties applicable. 123. Effect of War upon Treaties.-As to the effect of war upon treaties, it may be said with certainty that those treaties that concern war, such as those dealing with the rules of war and neutrality, and treaties of alliance and subsidy come into full vigor and force. 1 "Treaties and Conventions," p. 1079. 2 House Doc. 12, 27th Cong., 2d sess. Treaties which refer to conditions of peace and pacific relations, such as treaties of friendship, are necessarily terminated as impossible in a state of war. As to treaties which are not incompatible with a state of war and which do not necessarily presume a state of peace, modern opinions vary; many hold that these treaties are suspended during the time of war but become valid and in force when the war is over. Calvo holds that such treaties revive at the termination of the war and the establishment of peace, unless they are modified by the treaty of peace or by material changes resulting from warfare. A war resulting in cession of territory would naturally affect boundary and similar treaties.1 On the other hand, Westlake says in what is the best statement on the subject that "the outbreak of war removes the controversy out of which it arose from the domain of law. It will be settled at the peace on such terms as the superiority of force decides, and if it turns on the disputed interpretation of a treaty and such interpretation is not declared at the peace for the future the treaty will be regarded as annulled. There cannot be a contract unless the minds of the parties are agreed, and the war will have shown that their minds are not agreed on the treaty in question. "Further, war interposes a practical obstacle to dealing on the footing of law even with obligations which have not been in dispute, and it may result in such a change of the relative strength of the parties and in the surrounding circumstances that the parties, or at least the stronger of them, will not desire that those obligations should continue. It is, therefore," he claims, "the general rule that war abrogates the treaties existing between the belligerents and that their revival, if desired, must be expressly provided for in the treaty of peace. "To this rule, however, there are certain exceptions. First, all conventional obligations as to what is to be done in a state of war must continue in force or they would have no operation 1 Calvo, 4th ed., vol. V, p. 381. at all. Such is the Anglo-French convention providing for a continuance of the postal service between the two countries in the case of a war between them, and such is the St. Petersburg declaration against the use of explosive bullets, and all other conventions relating to the laws of war. Another instance is the provision in very numerous treaties for the treatment which the subjects or citizens of the respective parties and their property are to receive in case of war between them. A treaty providing for the neutralization of a territory in war time naturally becomes effective in war time, being the particular period for which the treaty is made. "Secondly, transitory or dispositive treaties, including all those which are intended to establish a permanent condition of things, form another exception. Not only treaties of cession, boundary, recognition of independence or of a dynasty, and such like fall under this head but also those stipulations which confer rights intended for use in daily life and having no conceivable connection with the causes of war or peace. An example is the clause in the treaty of 1795 between Great Britain and the United States giving to their respective subjects and citizens the right to hold and transmit land then held by them in the other country, notwithstanding their or their heirs and assigns being aliens. The treaty of 1760 between France and Sardinia, now applying to Italy, relative to the execution in either country of judgments rendered by the courts of law of the other country and the conventions of 12th June, 1902, and 17th July, 1905, between numerous states. . . . All these are delimitations of rights as real and implying permanence as plainly as delimitations of boundaries. During a war the rights may be dormant for want of the opportunity to enforce them, just as boundaries may be transgressed by arms; but the peace, when concluded, is a peace with and on behalf of each belligerent state with all its known equipment of territory and permanent rights, and needs no expression to that effect. "A third exception is that of treaties establishing arrangements to which third powers are parties, such as guarantees and postal and other unions. These cannot be abrogated by the war, because it cannot affect the rights of third parties. There may during the war be practical difficulties in the way of carrying out their provisions, but at least a belligerent ought not actively to violate them unless they are of a non-political nature and his necessity is great. Guarantees are political, and the plea that he is at war with another party to them will not avail a power which actively violates them to the detriment of the state guaranteed. But although treaties making political arrangements are not destroyed by the mere fact of a war in which all the parties to them are not engaged, it may happen that one of the belligerents is so weakened by the war or by the terms of peace that he can no longer fulfil a guarantee or some other political stipulation to which he has agreed, or that to do so would be a greater burden than in his reduced condition he can be expected to bear. Then he will be freed, not by any rule of law but by the force of circumstances of which those with whom he has contracted must take account. "Outside the exceptions which have been discussed, treaties between belligerents do not survive the outbreak of the war. At the peace there is no presumption that the parties will take the same view as before the war of their interests, political, commercial, or other. It is for them to define on what terms they intend to close their interlude of savage life and to re-enter the domain of law. Those terms are at their disposal or at that of the stronger, and if the price exacted for peace is heavy it ought not to be spoken of as a fine or penalty. Indignation at what was regarded as an unjust pretension or resentment at what is regarded as a too obstinate resistance may have contributed to fix it, but law has had no concern in fixing it. It is the last act of the lawless period, and both opinion and practice allow the victor to take advantage of that period by insisting on terms having no relation to the |