The Oregon Territory, Its History and Discovery

by Travers Twiss

Mr. Wheaton, part iii., c. 11, follows in the same line:—

“General compacts between nations may be divided into what are called transitory conventions, and treaties properly so called. The first are perpetual in their nature, so that being carried into effect, they subsist independent of any change in the sovereignty and form of government of the contracting parties; and although their operation may in some cases be suspended during war, they revive on the return of peace without any express stipulation. Such are treaties of cession, boundary, or exchange of territory, or those which create a permanent servitude in favor of one nation within the territory of another.”

If we look to the practice of nations, we find that the tribunals of the United States, equally with those of Great Britain, maintain this doctrine. Thus in the case of The Society for the Propagation of the Gospel in Foreign Parts v. Town of Newhaven, in Wheaton’s Reports of Cases adjudged in the Supreme Court of the United States, Feb. 1823, vol. viii., p. 494, Mr. Justice Washington, in delivering judgment for the plaintiffs, said, “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 the 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.”

In the case of Sutton v. Sutton, 1 Russell and Mylne, p. 663, which was decided by Sir J. Leach, in the Rolls Court in London, in 1830, a question was raised whether by the ninth article of the treaty of 1794, between Great Britain and the United States, American citizens who held lands in Great Britain on Oct. 20, 1795, and their heirs and assigns, are at all times to be considered, as far as regards those lands, not as aliens, but as native subjects of Great Britain. The 28th article of the treaty declared that the ten first articles should be permanent, but the counsel in support of the objection to the title contended, that “it was impossible to suggest that the treaty was continuing in force in 1813; it necessarily ceased with the commencement of the war. The 37 G. 3, c. 97, could not continue in operation a moment longer without violating the plainest words of the Act. That the word ‘permanent’ was used, not as synonymous with ‘perpetual or everlasting,’ but in opposition to a period of time expressly limited.” On the other hand, the counsel in support of the title maintained that “the treaty contained articles of two different descriptions; some of them being temporary, others of perpetual obligation. Of those which were temporary, some were to last for a limited period; such as the various regulations concerning trade and navigation; and some were to continue so long as peace subsisted, but being inconsistent with a state of war, would necessarily expire with the commencement of hostilities. There were other stipulations which were to remain in force in all time to come, unaffected by the contingency of peace or war. For instance, there are clauses for fixing the boundaries of the United States. Were the boundaries so fixed to cease to be the boundaries, the moment that hostilities broke out?”

The Master of the Rolls, in his judgment, said, “The privileges of natives being reciprocally given, not only to the actual possessors of lands, but to their heirs and assigns, it is a reasonable construction that it was the intention of the treaty, that the operation of the treaty should be permanent, and not depend upon the continuance of a state of peace.”

“The Act of the 37 G. 3, c. 95, gives full effect to this article of the treaty in the strongest and clearest terms; and if it be, as I consider it, the true construction of this article, that it was to be permanent, and independent of a state of peace or war, then the Act of Parliament must be held in the 24th section, to declare this permanency, and when a subsequent section provides that the act is to continue in force, so long 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.”

The third article, however, of the Treaty of 1794, which may be referred to in Martens’ Recueil, ii., p. 497, was of a mixed character, as it recognised a right of one kind, and conceded a liberty of another kind.

“It is agreed, that the people of the United States shall continue to enjoy, unmolested, the right to take fish of every kind on the Grand Bank, and on other banks of Newfoundland; also, in the Gulf of St. Lawrence and all other places in the sea where the inhabitants of both countries used, at any time heretofore, to fish. And also, that the inhabitants of the United States shall have liberty to take fish of every kind on such part of the coast of Newfoundland as British fishermen shall use, (but not to dry or cure the same on that island) and also on the coasts, bays, and creeks of all other of her Britannic Majesty’s dominions in America; and that the American fishermen shall have liberty to dry and cure fish in any of the unsettled bays, harbors, and creeks of Nova Scotia, Magdalen Islands, and Labrador, so long as the same shall remain unsettled; but so soon as the same, or either of them, shall be settled, it shall not be lawful for the said fishermen to dry or cure fish at such settlements without a previous agreement for that purpose with the inhabitants, proprietors, or possessors of the ground.”

That the grant of this liberty to American fishermen to take fish on portions of the coast of his Britannic Majesty’s dominions, and to dry and cure their fish unconditionally on certain districts not yet settled, subject however to conditions when such districts should become settled, was a provision of a distinct character from the recognition of their right to fish in certain seas and gulfs hitherto open to both parties—was to be presumed both from the terms of the provisions being distinct from each other, and from the nature of the things themselves, as the liberties were to be enjoyed within his Britannic Majesty’s dominions, the right was to be exercised in the seas and gulfs, over which his Britannic Majesty claimed no exclusive sovereignty.