19 i 



sm^ expressly laid it down, that all articles of a treaty made during 

 war, or having in contemplation the state of war, as that in which 

 they are to take effect, remain in full force, and are not abrogated 

 by war. This, therefore, constitutes a large class of articles of 

 treaties which are not abrogated by war. Another class of arti- 

 cles, equally privileged from such abrogation, are all executed stipu- 

 lations — Cessions of territor3% demarcations of boundary, acknow- 

 ledgments of pre-existing rights and liberties, belong to this class — 

 and in it are included the first, second, and third articles of the 

 treaty of 1783. 



All articles which have been executed, may indeed be said to be 

 abrogated by the execution itself. The transaction between the 

 parties is consummated. In the case of a cession of territory, when 

 the possession of it has been delivered, the article of the treaty is 

 no longer a compact between the parties, nor can a subsequent war 

 between them operate in any manner upon it. 



So of all articles the purport of which is the acknowledgment by 

 one party of a pre-existing right belonging to another. The en- 

 gagement of the acknowledging party is consummated by the ratifi- 

 cation of the treaty. It is no longer an executory contract ; but a 

 perfect right united with a vested possession, is thenceforth in one 

 party, and the acknowledgment of the other is in its own nature irre- 

 vocable. As a bargain, the article is extinct ; but the right of the 

 party in whose favour it was made, is complete, and cannot be af' 

 fected by a subsequent war. 



Arrant of a facultative right, or incorporeal hereditai-ient, and 

 specifically of a right of fishery, from one sovereign to another, is 

 an article of the same description. It is analogous to a cession of 

 territory, and is in fact a partial and qualified cession. The right 

 is consummated by the ratification of the treaty. The possession 

 is vested by the exercise of the faculty. Mere war between the 

 parties, can neither impair the right of one party nor effect the re- 

 vocation of the grant by the other. 



So that whether the third article of the treaty of 1783 be consi- 

 dered as an acknowledgment of pre-existing liberties, or as a grant 

 of them, to be exercised within British jurisdiction, it was in its 

 nature permanent and irrevocable, liable, under no circumstances 

 whatever, to be annulled by the wifl of Great Britain, and capable 

 of being lost to the United States in no other manner than by their 

 own express renunciation or tacit abandonment. 



I have already cited a passage from Vattel, to show, that when a 

 nation has once acknooi'ledged the right of other nations to share in 

 ?L fishery within its territorial jurisdiction, it can never afterwards 

 exclude them from it without their consent. What says he of grants 

 by treaty ? 



" Treaties, which do not relate to objects of reiterated occur- 

 *' rence, but to transitory, single acts, immediately consummated, 

 " conventions, compacts, which are accomplished once for all, and 

 " not by successive acts, as soon as they have received their ex^'^ 



