dom of con

By the general principles of private jurisprudence, § 8. Freerecognized by most, if not all, civilized countries, a con- sent, how tract obtained by violence is void. Freedom of con- sary to the sent is essential to the validity of every agreement, and validity of

far neces

treaties.

itself operated, proprio vigore. In that case, a declaratory act was passed. U. S. Statutes at Large, vol. iii. p. 354. This point was also examined during the session of 1853-4, in the case of the appropriations required for the convention, then recently entered into by the President and Senate, with Mexico. The conclusion on all these occasions would seem to have been, that as the President and Senate are, by the Constitution, fully authorized to enter into treaties, whenever the aid of Congress is required to carry out its provisions, if the treaty be within the constitutional limits, free from fraud, and not destructive of any of the great rights or interests of the country, then there is a moral obligation to grant the aid required. When a treaty comes before the House of Representatives, they are not to proceed in the discussion and examination of it as an act of ordinary legislation. Such a construction would, in effect, repeal the constitutional provision respecting treaties, and nullify the whole power of the government in its intercourse with foreign nations. Congress. Globe, 1853-4. Appendix, p. 1020. These views were ably vindicated by Mr. Pinkney, in the case of the British Convention of 1815, and his argument has been preserved in Mr. Wheaton's Life of Pinkney, pp. 517-549.

That the omission of Congress to pass an appropriation act would be no answer to a foreign government for the non-fulfilment of treaty stipulations, is to be deduced from the ground taken by the United States with France, when the legislative power of the latter State refused to vote the moneys required by the Convention of 1831, by which indemnities were provided for the spoliation on American commerce. The subject was brought to the notice of Congress by President Jackson, in his Annual Message, in December, 1834; with a recommendation that a law should be passed authorizing reprisals upon French property, in case provision should not be made for the payment of the debt at the next session of the French Chambers. Annual Register, 1834, p. 361. Referring to this controversy, Mr. Wheaton said: "Neither government has any thing to do with the auxiliary legislative measures necessary, on the part of the other State, to give effect to the treaty. The nation is responsible to the government of the other nation for its non-execution, whether the failure to fulfil it proceeds from the omission of one or other of the departments of its government to perform its duty in respect to it. The omission here is on the part of the legislature; but it might have been on the part of the judicial department. The Court of Cassation might have refused to render some judgment necessary to give effect to the treaty. The king cannot compel the Chambers, neither can he compel the Courts; but the nation is not the less responsible for the breach of faith thus arising out of the discordant action of the internal machinery of its constitution." Letter from Mr. Wheaton to Mr. Butler, then Attorney-General of the United States, Copenhagen, 20th January, 1835.]

contracts obtained under duress are void, because the general welfare of society requires that they should be so. If they were binding, the timid would constantly be forced by threats, or by violence, into a surrender of their just rights. The notoriety of the rule that such engagements are void, makes the attempt to extort them among the rarest of human crimes. On the other hand, the welfare of society requires that the engagements entered into by a nation under such duress as is implied by the defeat of its military forces, the distress of its people, and the occupation of its territories by an enemy, should be held binding; for if they were not, wars could only be terminated by the utter subjugation and ruin of the weaker party. Nor does inadequacy of consideration, or inequality in the conditions of a treaty between nations, such as might be sufficient to set aside a contract as between private individuals on the ground of gross inequality or enormous lesion, form a sufficient reason for refusing to execute the treaty.1

§ 9. Tran

ventions

General compacts between nations may be divided sitory con- into what are called transitory conventions, and treaties perpetual in properly so termed. The first are perpetual in their their nature. nature, so that, being once 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.2

Thus the treaty of peace of 1783, between Great Britain and the United States, by which the independence of the latter was acknowledged, prohibited future confiscations of property; and the treaty of 1794, between the same parties, confirmed the titles

1 Senior, Edinburgh Rev. No. CLVI. art. 1. Martens, Précis, liv. ii. ch. 2, §§ 50, 52. Grotius, de Jur. Bel. ac Pac. lib. ii. sect. xiv. §§ 4-12.

2 Vattel, Droit des Gens, liv. ii. ch. 12, § 192. Martens, Précis, &c., liv. ii. ch. 2, § 58.

of British subjects holding lands in the United States, and of American citizens holding lands in Great Britain, which might otherwise be forfeited for alienage. Under these stipulations, the Supreme Court of the United States determined, that the title both of British natural subjects and of corporations to lands in America was protected by the treaty of peace, and confirmed by the treaty of 1794, so that it could not be forfeited by any intermediate legislative act, or other proceeding, for alienage. Even supposing the treaties were abrogated by the war which broke out between the two countries in 1812, it would not follow that the rights of property already vested under those treaties could be devested by supervening hostilities. The extinction of the treaties would no more extinguish the title to real property acquired or secured under their stipulations than the repeal of a municipal law affects rights of property vested under its provisions. But independent of this incontestable principle, on which the security of all property rests, the court was not inclined to admit the doctrine, that treaties become, by war between the two contracting parties, ipso facto extinguished, if not revived by an express or implied renewal on the return of peace. Whatever might be the latitude of doctrine laid down by elementary writers on the law of nations, dealing in general terms in relation to the subject, it was satisfied that the doctrine contended for was not universally true. There might be treaties of such a nature as to their object and import, as that war would necessarily put an end to them; but where treaties contemplated a permanent arrangement of territory, and other national rights, or in their terms were meant to provide for the event of an intervening war, it would be against every principle of just interpretation to hold them extinguished by war. If such were the law, even the treaty of 1783, so far as it fixed the limits of the United States, and acknowledged their independence, would be gone, and they would 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. The court, therefore, concluded 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, revive upon the return of peace.1

Controversy between the American

and British governments re

rights of

fishery on

the coasts of

in North

By the 3d article of the treaty of peace of 1783, between the United States and Great Britain, it was "agreed that the people of the United States shall continue to enjoy unmolested the right to take fish of every specting the kind on the Grand Bank, and on all the other Banks of Newfoundland; also in the Gulf of St. Lawrence, the British and at all other places in the sea, where the inhabitants dominions of both countries used, at any time heretofore, to fish; America. 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 his 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 settlement, without a previous agreement for that purpose with the inhabitants, proprietors, or possessors of the ground."

During the negotiation at Ghent, in 1814, the British plenipotentiaries gave notice that their government" did not intend to grant to the United States, gratuitously, the privileges formerly granted by treaty to them of fishing within the limits of the British sovereignty, and of using the shores of the British territories for purposes connected with the British fisheries." In answer to this declaration the American plenipotentiaries stated that they were "not authorized to bring into discussion any of the rights or liberties which the United States have heretofore enjoyed in relation thereto; from their nature, and from the peculiar character of the treaty of.1783, by which they were recognized, no further

1 Wheaton's Rep. vol. viii. p. 464. The Society for the Propagation of the Gospel in Foreign Parts v. The Town of New Haven. The same principle was asserted by the English Court of Chancery, as to American citizens holding lands in Great Britain under the treaty of 1794. In Sutton v. Sutton, Russell & Milne, Rep. vol. i. p. 663.

stipulation has been deemed necessary by the government of the United States to entitle them to the full enjoyment of them all."

The treaty of peace concluded at Ghent, in 1814, therefore, contained no stipulation on the subject; and the British government subsequently expressed its intention to exclude the American fishing vessels from the liberty of fishing within one marine league of the shores of the British territories in North America, and from that of drying and curing their fish on the unsettled parts of those territories, and, with the consent of the inhabitants, within those parts which had become settled since the peace of 1783.

In discussing this question, the American minister in London, Mr. J. Q. Adams, stated, that from the time the settlement in North America, constituting the United States, was made, until their separation from Great Britain and their establishment as distinct sovereignties, these liberties of fishing, and of drying and curing fish, had been enjoyed by them, in common with the other subjects of the British empire. In point of principle, they were preeminently entitled to the enjoyment; and, in point of fact, they had enjoyed more of them than any other portion of the empire; their settlement of the neighboring country having naturally led to the discovery and improvement of these fisheries; and their proximity to the places where they were prosecuted, having led them to the discovery of the most advantageous fishing grounds, and given them facilities in the pursuit of their occupation in those regions, which the remoter parts of the empire could not possess. It might be added, that they had contributed their full share, and more than their share, in securing the conquest from France of the provinces on the coasts of which these fisheries were situated.

It was doubtless upon considerations such as these that an express stipulation was inserted in the treaty of 1783, recognizing the rights and liberties which had always been enjoyed by the people of the United States in these fisheries, and declaring that they should continue to enjoy the right of fishing on the Grand Bank, and other places of common jurisdiction, and have the liberty of fishing, and drying and curing their fish, within the exclusive British jurisdiction on the North American coasts, to which they had been accustomed whilst they formed a part of the British nation. This stipulation was a part of that treaty by