mercial intercourse which subsist, and should be consolidated, between the mother country and the colonies." In conclusion, Lord Salisbury expressed a desire to conclude "a new treaty, from which the stipulations of Article XV. shall be excluded, and which, whilst containing a clause providing for the facultative adhesion of the British self-governing colonies, shall in other respects be similar to the treaty now denounced." On the same day Lord Salisbury addressed a note, in substance the same, to Sir F. Lascelles, British ambassador at Berlin, giving notice of termination of the treaty with the German Zollverein of May 30, 1865, Article VII. of which was the same, mutatis mutandis as Art. XV. of the treaty with Belgium. Both notices were received without objection by the governments to which they were addressed. Blue Book, Commercial, No. 7 (1897). "Under the most-favored-nation clause of the treaty of 1858 [with China] citizens of the United States are entitled to frequent and reside at any port open to commerce by the treaty with any power." Report of Mr. Penfield, solicitor for the Department of State, Nov. 23, 1897, adopted in Mr. Sherman, Sec. of State, to Mr. Denby, min. to China, Nov. 30, 1897, For. Rel. 1897, 76, 79. As to the claim for American missionaries in China, under the mostfavored-nation clause, of the rights secured by the agreement between China and France, known as the Berthemy convention, concerning the purchase of real property in China, see Mr. Adee, Act. Sec. of State, to Mr. Denby, min. to China, No. 1109, July 18, 1895, MS. Inst. China, V. 208. By the Franco-Haytian commercial treaty of 1900, a reduction was made in Hayti on the tonnage dues paid by French sailing vessels and in the duties on merchandise landed from French steamers, such merchandise being of French origin. By Article X. of the treaty between the United States and Hayti of November 3, 1864, it was provided that all kinds of merchandise that could be lawfully imported into Hayti in her own vessels might also be imported in vessels of the United States, and that "no higher or other duties upon the tonnage or cargo of the vessels shall be levied or collected than shall be levied or collected of the vessels of the most favored nation.” On the strength of this stipulation an inquiry was made as to whether the Haytian government intended to impose higher or other tonnage dues upon American vessels carrying merchandise of French origin to Hayti than upon French vessels carrying such merchandise. The Haytian government replied that the reciprocal character of the Franco-Haytian treaty withdrew the subject from the sphere of the most-favored-nation clause, and, in connection with Article X. of the treaty of 1864, which the United States had cited, invoked the provisions of Article II. of the same treaty, which provided for the extension by each contracting party to the other of any favor granted to a third power, "gratuitously" if the concession was gratuitous, or “in return for an equivalent compensation" if it was conditional. The United States answered that in its opinion Article X. of the treaty of 1864 "is quite independent of Article II. and creates absolute rights, which this government cannot fail to insist upon. Should, therefore, any higher charges be collected on American tonnage than that of any other country they will be reclaimed." Mr. Hill, Act. Sec. of State, to Mr. Powell, min. to Hayti, Feb. 8, 1901; VII. TERMINATION. 1. GENERAL RULES. $ 770. "A treaty may be modified or abrogated under the following cir cumstances: "(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 meaterial 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 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, or there has been such a change of circumstances as to make its performance impracticable except at an unreasonable sacrifice." Wharton, Int. Law Digest, II. 58, citing Whart. Com. Am. Law, § 161. It being argued that the treaty of peace between the United States and Great Britain of 1783 was to be considered by the courts as suspended or abrogated by Great Britain's failure to execute certain parts of it, Mr. Justice Iredell said: "It is a part of the law of nations, that if a treaty be violated by one party, it is at the option of the other party, if innocent, to declare, in consequence of the breach, that the treaty is void. If Congress, therefore (who, I conceive, alone have such authority under our government), shall make such a declaration, I shall deem it my duty to regard the treaty as void, But the same law of nations tells me, that until that declaration be made, I must regard it (in the language of the law) valid and obligatory." Ware . Hylton (1796), 3 Dallas, 199, 261. "Where a treaty is violated by one of the contracting parties, it rests alone with the injured party to pronounce it broken, the treaty being, in such case, not absolutely void, but voidable, at the election of the injured party, who may waive or remit the infraction committed, or may demand a just satisfaction, the treaty remaining obligatory if he chooses not to come to a rupture. 1 Kent's Comm. 174.” In re Thomas, 12 Blatch. 370, cited in Terlinden v. Ames (1902), 184 U. S. 270, 287. "The question whether power remains in a foreign state to carry out its treaty obligations is in its nature political and not judicial, and .. the courts ought not to interfere with the conclusions of the political department in that regard." Terlinden v. Ames (1902), 184 U. S. 270, 288, citing In re Thomas, 12 "Cessation of independent existence [when Hanover and Nassau were incorporated by conquest into the Kingdom of Prussia] rendered the execution of treaties impossible. But where sovereignty in that respect is not extinguished, and the power to execute remains unimpaired, outstanding treaties can not be regarded as avoided because of impossibility of performance.” Terlinden . Ames (1902), 184 U. S. 270, 283. "Without considering whether extinguished treaties can be renewed by tacit consent under our Constitution," it was held that the question whether a treaty had ever been terminated was one in respect of which governmental action "must be regarded as of controlling importance." Terlinden . Ames (1902), 184 U. S. 270, 285. Treaties, as I understand the Constitution, are made supreme over the constitutions and laws of the particular States, and, like a subsequent law of the United States, over pre-existing laws of the United States; provided, however, that the treaty be within the prerogative of making treaties, which, no doubt, has certain limits. "That the contracting powers can annul the treaty can not, I presume, be questioned, the same authority, precisely, being exercised in annulling as in making a treaty. "That a breach on one side (even of a single article, each being considered as a condition of every other article) discharges the other, is as little questionable; but with this reservation, that the other side is at liberty to take advantage or not of the breach, as dissolving the treaty. Hence I infer that the treaty with Great Britain, which has not been annulled by mutual consent, must be regarded as in full force by all on whom its execution in the United States depends, until it shall be declared, by the party to whom a right has accrued by the breach of the other party to declare, that advantage is taken of the breach, and the treaty is annulled accordingly. In case it should be advisable to take advantage of the adverse breach, a question may perhaps be started, whether the power vested by the Constitution with respect to treaties in the President and Senate makes them the competent judges, or whether, as the treaty is a law, the whole legislature are to judge of its annulment, or whether, in case the President and Senate be competent in ordinary treaties, the legislative authority be requisite to annul a treaty of peace, as being equivalent to a declaration of war, to which that authority alone, by our Constitution, is competent." Mr. Madison to Mr. Edmund Pendleton, Jan. 2, 1791, 1 Madison's Works, 523, 524. In 1876 a controversy arose between the United States and Great Britain in the case of one Winslow, whose extradition was demanded from the British government on a charge of forgery, as to whether a fugitive from justice, delivered up under Article X. of the treaty of 1842, might be tried for an offense other than that for which he was surrendered. In consequence of this controversy the operation of the treaty was suspended for six months. The execution of the treaty was then resumed without any express agreement as to the point of dispute which had occasioned its suspension. For. Rel. 1876, 204–309; For. Rel. 1877, 271–289. In the discussion of the foregoing case, Mr. Fish said that, if Her Majesty's government should conclude that the British Parliament had by the act of 1870 attached a new condition to the performance by that government of its engagements, the President did not see how H. Doc. 551-vol 5——21 he could avoid regarding the refusal by Great Britain to adhere to the provisions of the article as an "infraction and termination" of it. Mr. Fish, Sec. of State, to Mr. Hoffman, chargé, No. 864, March 31, 1876, The British government denied that it had imposed a new condition upon In his message to Congress of June 20, 1876, President Grant, varying the form, but not the substance, of Mr. Fish's statement, said that the position taken by the British government, if adhered to, could not “but be regarded as the abrogation and annulment of the article of the treaty on extradition." (For. Rel. 1876, 254.) The continued violation of a treaty provision by one of the contracting parties will justify the other in regarding the provision as temporarily suspended. Mr. Bayard, Sec. of State, to Mr. Fairchild, Sec. of Treasury, Feb. 6, 1888, "The Duke [of Wellington, then prime minister] has left a memorandum on the cabinet table showing clearly from treaties that this [the overthrow of the Bourbons in 1830] is not a case in which we were bound to interfere. We engaged to support a constitutional monarch against revolutionary movements, but the monarch having violated the constitution has broken the condition." 2 Lord Ellenborough's Diary, II. 341, entry of Aug. 23, 1830. 2. TERMINATION BY NOTICE. § 771. It is a common practice to insert in treaties a provision by which they may be terminated by notice of a certain duration given by one contracting party to the other. In the United States a question has arisen as to how this notice, when given by the President, should be authorized. Usually it has been given under the authority of a joint. resolution of Congress. In the case of the treaty of commerce with Denmark of April 26, 1826, notice of an intent to terminate it was given by President Pierce, acting under a resolution unanimously passed by the Senate in executive session. This action having been questioned by Mr. Sumner, the Committee on Foreign Relations of the Senate made a report sustaining what had been done, but observed that no special legislation had been passed to carry the treaty into effect. See Crandall, Treaties, their Making and Enforcement, 251-253. |