ON DERIVATIVE TITLE.
Title by Conquest.--Title by
Convention.--Vattel--Martens.--Wheaton.--The Practice of
Nations.--United States.--Great Britain.--Kent's Commentaries.--Mixed
Conventions.--The Fisheries of Newfoundland.--Treaty of
Paris.--Distinction between Rights and Liberties.--Permanent
Servitude.--Negotiations in 1818.--Mr. Adams' Argument.--Lord
Bathurst's Letter.--Mr. Adams' Reply.--Convention of 1818.
Derivative title may result from involuntary or voluntary cession
(_traditio._) Involuntary cession takes place when a nation vanquished in
war abandons its territory to the conqueror who has seized it. Voluntary
cession, on the other hand, is marked by some compact or convention; its
object may be either to prevent a war, or to cement a peace. The repeated
occurrence of such voluntary cessions in later times, has led the chief
writers on international law to make a distinction accordingly between
transitory conventions, which mark such cessions, and treaties properly so
called.
Vattel, b. xi., ch. xii., Sec. 153, lays it down that,--
"The compacts which have temporary matters for their object are called
agreements, conventions, and pactions. They are accomplished by one single
act, and not by repeated acts. These compacts are perfected in their
execution once for all; treaties receive a successive execution, whose
duration equals that of the treaty."
Martens, Sec. 58, to the same effect observes,--
"Les traites de cession, de limites, d'echange, et ceux meme qui
constituent une servitude de droit public, ont la nature des conventions
transitoires; les traites d'amitie, de commerce, de navigation, les
alliances egales et inegales, ont celle des traites proprement dits
(_faedera._)
"Les conventions transitoires sont perpetuelles par la nature de la
chose." (Sec. 1.)
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.
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 (Sec. 58) observes, "Cette distinction entre les
conventions transitoires et les traites serait encore plus importante, si
nombre des traites, et nommement les traites de paix, n'etaient pas
composes d'articles de l'un et de l'autre genre, [mixtes,] ce qui met dela
difficulte dans l'application des principes enonces."
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.
"Precisely of the same nature were the rights and liberties in the
fisheries to which I now refer. They were in no respect grants from the
King of Great Britain to the United States; but the acknowledgment of
them, as rights and liberties enjoyed before the separation of the two
countries, which it was mutually agreed should continue to be enjoyed
under the new relations which were to subsist between them, constituted
the essence of the article concerning the fisheries. The very peculiarity
of the stipulation is an evidence that it was not, on either side,
understood or intended as a grant from one sovereign state to another. Had
it been so understood, neither could the United States have claimed, nor
would Great Britain have granted gratuitously, any such concession. There
was nothing either in the state of things or in the disposition of the
parties which could have led to such a stipulation, as on the ground of a
grant, without an equivalent by Great Britain."
Lord Bathurst's letter of October 30, 1815, to Mr. Adams, contains a full
exposition of the doctrine maintained by Great Britain. It is worthy of
perusal in full, but, as its great length precludes its insertion on the
present occasion, the passages have been selected which bear most closely
on the question.
"The Minister of the United States appears, by his letter, to be well
aware that Great Britain has always considered the liberty formerly
enjoyed by the United States, of fishing within British limits, and using
British territories, as derived from the third article of the Treaty of
1783, and from that alone; and that the claim of an independent state to
occupy and use, at its discretion, any portion of the territory of
another, without compensation or corresponding indulgence, cannot rest on
any other foundation than conventional stipulation. It is unnecessary to
enquire into the motives which might have originally influenced Great
Britain in conceding such liberties to the United States; or whether other
articles of the treaty wherein these liberties are specified, did, or did
not, in fact afford an equivalent for them; because all stipulations
profess to be founded on equivalent advantages and mutual convenience. If
the United States derived from that treaty privileges from which other
independent nations, not admitted by treaty, were excluded, the duration
of the privileges must depend on the duration of the instrument by which
they were granted; and, if the war abrogated the treaty, it determined the
privileges. It has been urged, indeed, on the part of the United States,
that the treaty of 1783 was of a peculiar character; and that, because it
contained a recognition of American independence, it could not be
abrogated by a subsequent war between the parties. To a position of this
novel nature, Great Britain cannot accede. She knows of no exception to
the rule, that all treaties are put an end to by a subsequent war between
the same parties; she cannot, therefore, consent to give to her diplomatic
relations with one state, a different degree of permanency from that on
which her connection with all other states depends. Nor can she consider
any one state at liberty to assign to a treaty made with her, such a
peculiarity of character as shall make it, as to duration, an exception to
all other treaties, in order to found, on a peculiarity thus assumed, an
irrevocable title to indulgences, which have all the features of temporary
concessions."
* * * * *
"_It is by no means unusual for treaties containing recognitions and
acknowledgments of title, in the nature of perpetual obligation, to
contain, likewise, grants of privileges liable to revocation._ The Treaty
of 1783, like many others, contained provisions of different characters,
some in their own nature irrevocable, and others of a temporary nature. If
it be thence inferred, that, because some advantages specified in a treaty
could not be put an end to by the war, therefore all the other advantages
were intended to be equally permanent, it must first be shown that the
advantages themselves are of the same, or, at least, of a similar
character: for the character of one advantage recognised or conceded by
treaty, can have no connection with the character of another, though
conceded by the same instrument, unless it arises out of a strict and
necessary connection between the advantages themselves. But what necessary
connection can there be between a right to independence, and a liberty to
fish within British jurisdiction, or to use British territory? Liberties
within British limits are as capable of being exercised by a dependent, as
an independent state, and cannot therefore be the necessary consequences
of independence.
"The independence of a state is that which cannot be correctly said to be
granted by a treaty but to be acknowledged by one. In the Treaty of 1783,
the independence of the United States was certainly acknowledged; but it
had been before acknowledged, not merely by the consent to make the
treaty, but by the previous consent to enter into the provisional articles
executed November, 1782. The independence might have been acknowledged,
without either the treaty or the provisional articles; but by whatever
mode acknowledged the acknowledgment is, in its own nature, irrevocable. A
power of revoking, or even modifying it, would be destructive of the thing
itself; and, therefore, all such power is necessarily renounced, when the
acknowledgment is made. The war could not put an end to it, for the reason
justly assigned by the American Minister, because a nation cannot forfeit
its sovereignty by the act of exercising it; and for the further reason
that Great Britain, when she declared war on her part against the United
States, gave them by that very act a new recognition of their
independence.
"The nature of the liberty to fish within British limits, or to use
British territory, is essentially different from the right to
independence, in all that may reasonably be supposed to regard its
intended duration. The grant of this liberty has all the aspect of a
policy temporary and experimental, depending upon the use that might be
made of it, on the condition of the islands and places where it was to be
exercised, and the more general conveniences or inconveniences, in a
military, naval, or commercial point of view, resulting from the access of
an independent nation to such islands and places. When, therefore, Great
Britain, admitting the independence of the United States, denies their
rights to the liberties for which they now contend, it is not that she
selects from the treaty articles or parts of articles, and says, at her
own will, This stipulation is liable to forfeiture by war, and that is
irrevocable; but the principle of her reasoning is, that such distinctions
arise out of the provisions themselves, and are founded on the very nature
of the grants. But the rights acknowledged by the treaty of 1783 are not
only distinguishable from the liberties conceded by the same treaty in the
foundation upon which they stand, but they are carefully distinguished in
the treaty of 1783 itself.
"The undersigned begs to call the attention of the American minister to
the wording of the 1st and 2nd articles, to which he has often referred
for the foundation of his arguments. In the 1st article, Great Britain
acknowledges an independence already expressly recognised by other powers
of Europe, and by herself, in her consent to enter into provisional
articles, of Nov. 1782. In the 3rd article Great Britain acknowledges the
_right_ of the United States to take fish on the banks of Newfoundland,
and other places, from which Great Britain had no right to exclude any
independent nation. But they are to have the _liberty_ to take fish on the
coasts of his Majesty's dominions in America, and _liberty_ to cure and
dry them in certain unsettled places within his Majesty's territory. If
these liberties, thus granted, were to be as perpetual and indefeasible as
the rights previously recognized, it is difficult to conceive that the
plenipotentiaries of the United States would have admitted a variation of
language so adapted to produce a different impression, and above all,
that they should have admitted so strange a restriction of a perpetual and
indefeasible right, as that with which the article concludes, which leaves
a right, so practical and so beneficial as this is admitted to be,
dependent on the will of British subjects, in their character of
inhabitants, proprietors, or possessors of the soil, to prohibit its
exercise altogether.
"It is clearly obvious that the word _right_ is, throughout the treaty,
used as applicable to what the United States were to enjoy in virtue of a
recognized independence, and the word _liberty_ to what they were to
enjoy, as concessions strictly dependent on the treaty itself."
Mr. Adams, in his reply to Viscount Castlereagh, of Jan. 22, 1816, having
explicitly "disavowed every pretence of claiming for the diplomatic
relations between the United States and Great Britain a degree of
permanency different from that of the same relations between either of the
parties and all other powers," goes on to state, "The undersigned believes
that there are many exceptions to the rule by which treaties between
nations are mutually considered as terminated by the intervention of war;
that these exceptions extend to the engagements contracted, with the
understanding that they are to operate equally in war and peace, or
exclusively during war: to all engagements by which the parties superadd
the sanction of a formal compact to principles dictated by the eternal
laws of morality and humanity; and finally to all engagements which,
according to the expression of Lord Bathurst's note, are in the nature of
a perpetual obligation. To the first and second of these classes may be
referred the 10th article of the treaty of 1794, and all treaties or
articles of treaties stipulating the abolition of the slave-trade. The
treaty of peace of 1783 belongs to the third."
"The reasoning of Lord Bathurst's note seems to confine this perpetuity of
obligation to recognitions and acknowledgments of title; and to consider
its perpetual nature as resulting from the subject matter of the contract,
and not from the engagement of the contractor. Whilst Great Britain leaves
the United States unmolested in the enjoyment of all the advantages,
rights, and liberties, stipulated in their behalf in the Treaty of 1783,
it is immaterial to them whether she founds her conduct upon the mere fact
that the United States are in possession of such rights, or whether she is
governed by good faith and respect for her own engagements. But if she
contests any one of them, it is to her engagements only that the United
States can appeal as to the rule for settling the question of right. If
this appeal be rejected, it ceases to be a discussion of right, and this
observation applies as strongly to the recognition of independence, and to
the boundary line, in the Treaty of 1783, as to the fisheries. It is truly
observed by Lord Bathurst, that in that treaty the independence of the
United States was not granted, but acknowledged. He adds, that it might
have been acknowledged without any treaty, and that the acknowledgment, in
whatever mode made, would have been irrevocable. But the independence of
the United States was precisely the question upon which a previous war
between them and Great Britain had been waged. Other nations might
acknowledge their independence without a treaty, because they had no
right, or claim of right, to contest it: but this acknowledgment, to be
binding upon Great Britain, could have been made only by treaty, because
it included the dissolution of one social compact between the parties, as
well as the formation of another. Peace could exist between the two
nations only by the mutual pledge of faith to the new social relations
established between them, and hence it was that the stipulations of that
treaty were in the nature of perpetual obligation, and not liable to be
forfeited by a subsequent war, or by any declaration of the will of either
party without the assent of the other."
Mr. Adams then proceeds to discuss the variation in the employment of the
terms _right_ and _liberty_, considering the former to import an advantage
to be enjoyed in a place of common jurisdiction, the latter to refer to
the same advantage, incidentally leading to the borders of a special
jurisdiction. That the term _right_ was used as applicable to what the
United States were to enjoy in virtue of a recognised independence, and
the word _liberty_ to what they were to enjoy as concessions strictly
dependent on the treaty itself, he declined to admit, as a construction
altogether unfounded.
He further contended, that "the restriction at the close of the article
was itself a confirmation of the permanency of every part of the article,"
for that, "upon the common and equitable rule of construction for
treaties, the expression of one restriction implies the exclusion of all
others not expressed; and thus the very limitation, which looks forward to
the time when the unsettled deserts should become inhabited, to modify the
enjoyment of the same liberty, conformably to the change of
circumstances, corroborates the conclusion that the whole purport of the
compact was permanent and not temporary."
The documents from which these extracts have been made will well repay a
perusal of them in full, both from the importance of the principles which
are therein discussed, and from the ability with which the discussion was
conducted on both sides. The result of the negotiations was the conclusion
of the convention of October 20, 1818, by which the liberty to take and
cure fish on certain parts of the British American coasts, so long as they
remained unsettled was secured to the citizens of the United States, in
common with British subjects "_for ever_."
It appears to have been admitted by both parties to this negotiation, that
treaties do sometimes contain acknowledgments in the nature of a perpetual
obligation: the point at issue between them seems to have been, whether
the provisions of a convention could ever be considered as of a mixed
character, some of which would be terminable by war, whilst others were
irrevocable; and whether the nature of the thing acknowledged determined
the character of the provision, or the engagement of a treaty gave
permanence to the obligation. It seems to have been implied by the
insertion of the words "for ever," in the first article of the Convention
of 1818, that if the permanent character of the thing recognised is not
beyond dispute, the words of the convention must be express, in order to
give to the engagements of it the nature of a perpetual obligation. On the
other hand, both parties admitted that recognitions of territorial title
were of perpetual obligation; they differed as to the grounds: the British
commissioner deriving the obligation from the nature of the thing
recognised, the plenipotentiary of the United States from the fact of its
having been recognised by a convention.