The Oregon Territory, Its History and Discovery

by Travers Twiss

The principle established by these two cases seems to be this,—that where a convention in its terms contemplates a permanent arrangement of territorial or other national right, the continuance of which would not be inconsistent with a state of war, it will not expire with the commencement of hostilities, though its operation may in certain cases be suspended till the return of peace.

Hence indeed, conventions, by which a right is recognised, are no sooner executed than they are completed and perfected. If they are valid, they have in their own nature a perpetual and irrevocable effect. To use the words of Vattel, “As soon as a right is transferred by lawful convention, it no longer belongs to the state that has ceded it: the affair is concluded and terminated.”

To the same effect Judge Kent, the Blackstone of the United States, in his Commentaries upon American law, (vol. i., p. 177,) adopts almost word for word the judgment of the Supreme Court:—“Where treaties contemplate a permanent arrangement of national rights, or which by 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 war. They revive at peace, unless waived, or new and repugnant stipulations be made.”

Discussions, however, and disputes have not unfrequently arisen as to the character of certain conventions, from the circumstance that on occasions where rights have been recognised, liberties or favors have been conceded in other articles of the same agreement.

To this effect Martens (§ 58) observes, “Cette distinction entre les conventions transitoires et les traités serait encore plus importante, si nombre des traités, et nommément les traités de paix, n’étaient pas composés d’articles de l’un et de l’autre genre, [mixtes,] ce qui met dela difficulté dans l’application des principes énoncés.”

A striking illustration of this observation of M. Martens may be found in the discussions which took place between the governments of the United States and Great Britain in respect to the fisheries on the Banks of Newfoundland, after the Treaty of Ghent.

By the first article of the treaty signed at Paris in 1783, between Great Britain and the United States of America, his Britannic Majesty had acknowledged the said United States [fourteen in number as specified] to be free, sovereign, and independent states.

This article then contained the recognition of a right once and for all; and as the main and principal object of the treaty was the recognition of the independence of the United States, this treaty may justly be classed amongst transitory conventions, which are completed and perfected as soon as executed.

Another question, however, might obviously be raised in case of a war,—whether the words of the article created what Martens designates “une servitude de droit public,” and what Mr. Wheaton speaks of as “a permanent servitude in favor of one nation within the territory of another,” which from the nature of the thing would be suspended during the war, but would revive on the restoration of peace, or whether they merely conceded a favor, the duration of which would be subject to the continuance of peaceful relations between the two states, so that the obligation would cease with the breaking out of war.

In the negotiations which took place in 1818 between the two governments [British and Foreign State Papers, 1819-20,] Mr. Adams, on the part of the United States, contended that the treaty of 1783 was not one of those, “which, by the common understanding and usage of civilized nations, is or can be considered as annulled by a subsequent war between the same parties. To suppose that it is, would imply the inconsistency and absurdity of a sovereign and independent state liable to forfeit its right of sovereignty, by the act of exercising it in a declaration of war. But the very words of the treaty attest, that the sovereignty and independence of the United States were not considered or understood as grants from his Majesty. They were taken and expressed as existing before the treaty was made, and as then only first formally recognized and acknowledged by Great Britain.