October 24, 1864, Mr. Seward, Secretary of State, instructed Mr. Adams, then United States minister in London, to give to the British government the stipulated six months' notice of an intention to terminate the arrangement between the United States and Great Britain of April 28-29, 1817, in relation to armaments on the Great Lakes. The arrangement in question was originally effected by an exchange of notes, but a year later the correspondence was communicated to the Senate, which approved the arrangement and recommended that it be carried into effect. The arrangement had, however, . already been carried into effect by executive orders on both sides, and no formal exchange of ratifications ever took place. Mr. Adams duly communicated to the British government the notice which he was instructed, to give. This was done by a note addressed to Earl Russell, November 23, 1864. By a joint resolution of Congress, approved February 9, 1865, the notice thus given was "adopted and ratified." The arrangement was thus to come to an end on May 23, 1865. March 8, 1865, however, Mr. Seward, in view of a change of the situation along the Lakes, instructed Mr. Adams to say to Earl Russell that the United States was "quite willing that the convention should remain practically in force," and that it was hoped and expected that, so long as this determination should be observed by the United States, Her Majesty's government would adhere to the provisions of the arrangement. June 15, 1865, Sir Frederick Bruce, British minister at Washington, informed the Department of State that he was "instructed to ascertain whether the despatch to Mr. Adams of the 8th of March was intended as a formal withdrawal of the notice given on November the 23d, or whether, as the period of six months from the date of that notice has now elapsed, the agreement of 1817 is virtually at an end, and the abstinence of either party from increasing its force on the Lakes, without further notice, rests merely on the good pleasure of each, unfettered by any diplomatic engagement." Mr. Seward, June 16, 1865, replied that his communication to Mr. Adams of the 8th of March" was intended as a withdrawal of the previous notice within the time allowed, and that it is so held by this government.” "Here the correspondence in regard to the termination of the arrangement of 1817 ceased. Since that time it has been regarded by both governments as in continuing force and effect." Report of Mr. Foster, Sec. of State, to the President, Dec. 7, 1892, H. Doc. 471, 56 Cong. 1 sess. 13-16, 30-34. This report originally accompanied the message of President Harrison to the Senate of Dec. 7, 1892, S. Ex. Doc. 9, 52 Cong. 2 sess. In the course of his report, Mr. Foster says: "Whether the Secretary of State was himself competent to withdraw the notification is not material to the international aspect of the case, because, being a matter of domestic administration, affecting the internal relations of the executive and legislative powers, it in no wise concerns Great Britain As a question of domestic administration and powers, the action of the Secretary of State . . . opens the door to nice argument in theory touching the constitutional aspects of the transaction, but as a matter of practical effect such consideration may now be deemed more interesting than material." (H. Doc. 471, 56 Cong. 1 sess. 36.) . By Article XXXV. of the treaty between the United States and New Granada [Colombia] of Dec. 12, 1846, it is stipulated that the treaty shall remain in force twenty years from the date of the exchange of ratifications; but that "if neither party notifies to the other its intention of re-forming any of, or all, the articles twelve months before the expiration of the twenty years," the treaty "shall continue binding on both parties beyond the said twenty years, until twelve months from the time that one of the parties notifies its intention of proceeding to a reform. The ratifications were exchanged June 10, 1848. January 23, 1867, Gen. Salgar, the Colombian minister to the United States, addressed to the Department of State à note, in which he stated that he had been instructed to set on foot a negotiation for a renewal of the treaty, with some modifications. The receipt of this note was acknowledged Jan. 29, 1867. On the 23d of the following April General Salgar communicated to the Department the changes which his government desired and offered to discuss them. To this note no reply appears to have been made; nor is there anything of record to show that the proposed discussion took place, or that General Salgar's notes were recorded or received as such a notice as the clause above quoted specifies. In a correspondence that took place in 1871 it was expressly agreed on both sides that the treaty remained in force. On the part of Colombia, it was declared that the notes of General Salgar did not constitute a notice of termination, while, on the part of the United States, Mr. Fish said: "Although literally and technically, pursuant to the clause of the 35th article . . ., this government might hold that the application made by General Salgar for a revision of the treaty, in anticipation of a lapse of the time fixed for its termination, might be held to have brought about that result, the intentions of the parties at the time may, as you observe, be allowed to govern the question. General Salgar in his notice did not say that if his proposition should not be accepted the Colombian government would regard the treaty as at an end, and Mr. Seward does not appear to have received that proposition as a formal notice of termination. His silence upon the subject may fairly be construed as indicative of an opinion on his part that, so far as the interests of the United States were concerned, no change in the treaty was required, and the form of the application of Colombia may also be construed to imply that, although she might prefer the changes proposed in that application, she did not regard them as indispensable to its continuance. Under these circumstances it may be said to comport with the interests of both parties to look upon the treaty as still in full force, but as subject to revision or termination in the form and upon the terms stipulated." Mr. Fish, Sec. of State, to Mr. Perez, Colombian min., May 27, 1871, For. "We have certain rights still existing under our old treaty with Brazil of 1828 which, in the matter of the collection and administration of estates, should place us upon as favorable a footing as any of the European powers. You will observe, by turning again to Mr. Partridge's No. 123, and the papers there referred to, that, after certain correspondence on this subject, Brazil admitted that Article XI. of the treaty was in force, but maintained that it did not touch upon consular rights, and this with some show of reason, it appears to me; for Article XXXII. of the treaty states, in effect, the necessity of a consular convention to declare especially the powers and immunities of consuls; and this matter of estates, as it is nowhere else referred to in the treaty as coming under consular jurisdiction in any way, would presumably have been one of the subjects to be included in the proposed convention. "Our treaty contains, however, the most-favored-nation clause, Article II., and although the treaty in all parts relating to commerce and navigation' ceased and determined December 12, 1841, and the words 'in respect to commerce and navigation' occur in the body of that article, still I think it tenable to maintain that the article itself is yet in force, and entitles us among other favors to the privilege enjoyed by the European powers in the settlement of estates. It would certainly seem that under the peace and friendship parts of the treaty, which are to be permanently and perpetually binding on both powers, is included Article II., and that Brazil could not consistently withhold from us the privileges it confers." Mr. Trail, min. to Brazil, to Mr. Bayard, Sec. of State, No. 77, March 19, 1887, For. Rel. 1887, 60, 62. Replying to an inquiry whether, under article 13 of the International Metrical Convention of 1875, a government desiring to retire therefrom must give notice one year before the end of the specified twelve years, or whether it might give notice at any time after that period, the Department of State, while observing that the question properly pertained to the Treasury Department, which had the Bureau of Weights and Measures under its charge, called attention to the fact that Professor J. E. Hilgard, inspector of United States standard weights and measures, in a report of March 3, 1876, said: “Provision is made in the convention for the withdrawal of any of the contracting parties after a term of twelve years. Mr. Rives, Assist. Sec. of State, to Mr. Latimer, March 15, 1888, 167 MS. In 1888 a question arose as to whether Article XII. of the treaty between the United States and Guatemala of March 3, 1849, was still in force. By this article the courts of each country were opened to the citizens of the other on the same terms which are usual and customary with the natives or citizens of the country." The question as to whether the article was in force was raised by the exaction of a large bond from Mr. C. Pinto, an American citizen, in a suit which he had brought against a bank in Guatemala. By Article XXXIII. of the treaty it was stipulated that "all its parts relative to commerce and navigation" should be terminable on a year's notice; but that "all those parts which relate to peace and friendship" should be " perpetually binding on both Powers." It appeared that on September 12, 1873, Señor Soto, Guatemalan minister of foreign affairs, notified Mr. Williamson, United States minister, that the President of Guatemala, on the 28th of the preceding month, had directed the termination of all treaties with foreign countries in order that more suitable treaties might be entered into; and to this end Señor Soto gave notice that the treaty of 1849 would be regarded as denounced on and after the receipt of the notice at Washington. Mr. Williamson, not being clear as to the meaning of this communication, called attention, September 16, 1873, to the fact that by Article XXXIII. the treaty would continue in effect for twelve months after the date of the notice. October 30, 1873, the Guatemalan minister at Washington gave notice of the desire of his government to terminate the treaty, in accordance with Article XXXIII. Mr. Fish, on November 15, 1873, replied that Mr. Williamson had been advised that "the treaty would terminate one year from the receipt of the notice by this government." No further correspondence on the subject took place. With regard to the question raised in 1888, Mr. Bayard, who was then Secretary of State, said that, as notice was given pursuant to Article XXXIII. of the treaty so far as time was concerned, and as the stipulations of that article were thus recognized in the denunciation of the treaty, it might be argued that the parts relating to "peace and friendship" were to be regarded as still in force. As to what parts related to "peace and friendship," peace and friendship," as distinguished from those relating to commerce and navigation," the treaty furnished no test; and it was therefore necessary, said Mr. Bayard, to look to the substance of the various provisions in order to find under which head they fell. "In international relations," said Mr. Bayard, “peace and friendship have certain incidents, which constitute the comity of nations as distinguished from rights of commerce; that is to say, of buying, selling, and trading. One of those incidents is the right of resort to the courts for the protection of persons and property." He therefore considered Article XII. as being still in force, as well as Article XIII., which guaranteed freedom from molestation on account of religious belief as well as undisturbed rights of burial. These views having been duly laid before the Guatemalan government, Señor Barrutia, minister for foreign affairs, replied: "We are perfectly in accord on this point, and for the reasons expressed, the convention (treaty), except as regards the stipulations of a terminable character which it contains, can not be considered as having terminated.” Mr. Bayard, Sec. of State, to Mr. Hosmer, chargé, No. 574, April 30, 1888, For. Rel. 1888, I. 149-151; Señor Barrutia to Mr. Hosmer, June 9, 1888, id. 159. "This treaty [with Guatemala of 1849] was terminable in all its parts relating to commerce and navigation, but in all those parts which relate to peace and friendship Article XXXIII. declares that it shall be perpetually binding on both powers.' Notice of the determination of the treaty was given by Guatemala in 1874, but July 9, 1888, that government declared in a note to Mr. Hosmer, chargé d'affaires of the United States, that Article XII. and some other provisions, being parts of the treaty which relate to peace and friendship and are based on the general principles of popular rights, are to be completely observed, although no treaty exists which would establish them.' The letter closes with the declaration that the convention (treaty), except as regards the stipulations of a terminable character which it contains, can not be considered as having terminated.' (Foreign Relations, 1886, pp. 149, 159.)” Mr. Olney, Sec. of State, to Mr. Young, min. to Guatemala, Jan. 30, 1896, XXIX., treaty of April 5, 1883, there was transmitted to the American minister in London a copy of a joint resolution of Congress of Question as to Art. March 3, 1883, directing the President to give notice on July 1, 1883, or as soon thereafter as might be, of the termination of Articles XVIII. to XXV., inclusive, and of Article XXX. of the treaty of Washington of May 8, 1871. A copy of the resolution was communicated to the British Washington. 4 Mr. Frelinghuysen, Sec. of State, to Mr. Lowell, min. to England, April 5, 1883, For. Rel. 1883, 413; 22 Stat. 641. |