Chapter X: 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.