LECTURE VIII.

OF TRUCES, PASSPORTS, AND TREATIES OF PEACE.

HAVING considered the rights and duties appertaining to a state of war, I proceed to examine the law of nations relative to negotiations, conventions, and treaties, which either partially interrupt the war, or terminate in peace.

l. Of Truces. — A truce or suspension of arms does not terminate the war, but it is one of the commercia belli which suspends its operations. These conventions rest upon the obligation of good faith; and as they lead to pacific negotiations, and are necessary to control hostilities, and promote the cause of humanity, they are sacredly observed by civilized nations.

A particular truce is only a partial cessation of hostilities, as between a town and an army besieging it. But a general truce applies to the operations of the war; and if it be for a long or indefinite period of time, it amounts to a temporary peace, which leaves the state of the contending parties, and the questions between them, remaining in the same situation as it found them. A partial truce may be made by a subordinate commander, and it is a power necessarily implied in the nature of his trust; but it is requisite to a general truce, or suspension of hostilities throughout the nation, or for a great length of time, that it may be made by the sovereign of the country, or by his special authority. (a) The general principle on the subject {160} is, that if a commander makes a compact with the enemy, and it be of such a nature that the power to make it could be reasonably implied from the nature of the trust, it will be valid and binding though he abuse his trust. The obligation he is under not to abuse his trust regards his own state, and not the enemy. (a)

A truce binds the contracting parties from the time it is concluded, but it does not bind the individuals of the nation so as to

(a) Vattel, b. 3, c. 16, sec. 233-238; Grotius, b. 8, c. 21.

(a) Rutherforth, b. 2, c. 9; Vattel, b. 3, c. 16, sec. 261; Grotius, b. 3, c 22, sec. 4

render them personally responsible for a breach of it, until they have had actual or constructive notice of it. Though an individual may not be held to make pecuniary compensation for a capture made, or destruction of property, after the suspension of hostilities, and before notice of it had reached him, yet the sovereign of the country is bound to cause restoration to be made of all prizes made after the date of a general truce. To prevent the danger and damage that might arise from acts committed in ignorance of the truce, it is common and proper to fix a prospective period for the cessation of hostilities, with a due reference to the distance and situation of places. (b)

A truce only temporarily stays hostilities; and each party to it may, within his own territories, do whatever he would have a right to do in time of peace. He may continue active preparations for war, by repairing fortifications, levying and disciplining troops, and collecting provisions and articles of war. He may do whatever, under all the circumstances, would be deemed compatible with good faith and the spirit of the agreement; but he is justly restrained from doing what would be directly injurious to the enemy, and could not safely be done in the midst of hostilities. Thus, in the case of a truce between the governor of a fortified town and the army besieging it, neither party is at liberty to continue works, constructed either for attack or defence, and which could not safely be done if hostilities had {161} continued; for this would be to make a mischievous and fraudulent use of the cessation of arms. So, it would be a fraud upon the rights of the besieging army, and an abuse of the armistice, for the garrison to avail themselves of the truce to introduce provision and succors into the town, in a way or through passages which the besieging army would have been competent to prevent. (a) The meaning of every such compact is, that all things should remain as they were in the places contested, and of which the possession was disputed, at the moment of the conclusion of the truce. (b)

At the expiration of the truce, hostilities may recommence without any fresh declaration of war; but if it be for an indefinite time, justice and good faith require due notice of an intention to terminate it. (c)

(b) Vattel, b. 3, c. 15, sec. 239, 244. (a) Vattel, b. 3, c. 16, sec. 247, 248. (b) Ib. sec. 250. (c) Vattel, b. 3, c. 16, sec. 260.

Grotius and Vattel, (d) as well as other writers on national law, have agitated the question, whether a truce for a given period, as, for instance, from the first of January to the first of February, will include or exclude the first day of each of these months. Grotius says, that the day from whence a truce is to be computed is not one of the days of the truce, but that it will include the whole of the first day of February as being the day of its termination. Puffendorf, Heineccius, and Vattel, on the other hand, are of opinion, that the day of the commencement of the truce would be included; and as the time ought to be taken largely and liberally, for the sake of humanity, the last day mentioned would also be included. Every ambiguity of this kind ought always to be prevented, by positive and precise stipulations, as, from such a day to such a day, both inclusive.(e)

2. Passports. — {162} A passport or safe-conduct is a privilege granted in war, and exempting the party from the effects of its operation, during the time and to the extent prescribed in the permission. It flows from the sovereign authority; but the power of granting a passport may be delegated by the sovereign to persons in subordinate command, and they are invested with that power either by an express commission, or by the nature of their trust. (a) The general of an army, from the very nature of his power, can grant safe-conducts; but the permission is not transferable by the person named in the passport, for it may be that the government had special reasons for granting the privilege to the very individual named, and it is presumed to be personal. If the safe-conduct be granted, not for persons, but for effects, those effects may be removed by others besides the owner, provided no person be selected as the agent against whom there may exist a personal objection, sufficient to render him an object of suspicion or danger, within the territories of the power granting the permission.

He who promises security, by a passport, is morally bound to afford it against any of his subjects or forces, and to make good

(d) Grotius, b. 3, c. 21, sec. 4; Vattel, b. 3, c. 16, sec. 244; Puff. 8. 7. 8; Heinecc. Jur. Nat. et Gent. 2. 9. 208.

(e) The rule proposed by the English commissioners, in their report on the practice of the English courts, in July, 1831, is recommended by its simplicity and certainty. They propose to compute the first day exclusively, and the last day inclusively, in all cases. See iv. 95.

(a) Vattel, b. 3, c. 17.

any damage the party might sustain by a violation of the passport. The privilege being so far a dispensation from the legal effects of war, it is always to be taken strictly, and must be confined to the purpose, and place, and time, for which it was granted. A safe-conduct generally includes the necessary baggage and servants of the person to whom it is granted; and, to save doubt and difficulty, it is usual to enumerate, with precision, every particular branch and extent of the indulgence. If a safe-conduct be given for a stated term of time, the person in whose favor it was granted must leave the enemy's country before the time expires, unless detained by sickness, or some unavoidable circumstance, {163} and then he remains under the same protection. The case is different with an enemy who comes into the country of his adversary during a truce. He, at his own peril, takes advantage of a general liberty allowed by the suspension of hostilities, and, at the expiration of the truce, the war may freely take its course, without being impeded by any claims of such a party for protection. (a)

It is stated that a safe-conduct may even be revoked by him who granted it, for some good reason; for it is a general principle in the law of nations, that every privilege may be revoked when it becomes detrimental to the state. If it be a gratuitous privilege, it may be revoked purely and simply; but if it be a purchased privilege, the party interested in it is entitled to indemnity against all injurious consequences, and every party affected by the revocation is to be allowed time and liberty to depart in safety. (b)

The effect of a license given by the enemy to the subjects of the adverse party, to carry on a specified trade, has already been considered, (c) in respect to the light in which it is viewed by the government of the citizens accepting it. A very different effect is given to these licenses by the government which grants them, and they are regarded and respected as lawful relaxations or suspensions of the rules of war. It is the assumption of a state of peace to the extent of the license, and the act rests in the discretion of the sovereign authority of the state, which alone is competent to decide how far considerations of commercial and political expediency may, in particular cases, control the ordinary

(a) Vattel, b. 3, c. 17, sec. 273, 274.

(b) Ib. sec. 276.

(c) Supra, [81,] 85.

consequences of war. In the country which grants them, licenses to carry on a pacific commerce are stricti juris, as being exceptions to a general rule; though they are not to be construed with pedantic accuracy, nor will every {164} small deviation be held to vitiate the fair effect of them. (a) An excess in the quantity of goods permitted to be imported might not be considered as noxious to any extent; but a variation in the quality or substance of the goods might be more significant. Whenever any part of the trade assumed under the license is denuded of any authority under it, such part is subject to condemnation.

Another material circumstance in all licenses is the limitation of time in which they are to be carried into effect, for what is proper at one time may be very unfit and mischievous at another time. Where a license was limited to be in force until the 29th of September, and the ship did not sail from the foreign port until the 4th of October, yet, as the goods were laden on board by the 12th of September, and there was an entire bona fides on the part of the person holding the license, this was held to be legal. (b) But where a license was to bring away a cargo from Bordeaux, and the party thought proper to change the license, and accommodate it to another port in France, it was held by the English admiralty, in the case of the Twee Gebroeders, (c) that the license was vitiated, and the vessel and cargo were condemned. It has also been held that the license must be limited to the use of the precise persons for whose benefit it was obtained. The great principle in these cases is, that subjects are not to trade with the enemy without the special permission of the government; and a material object of the control which the government exercises over such a trade is that it may judge of the particular persons who are fit to {165} be intrusted

(a) The Cosmopolite, 4 C. Rob. 8; Grotius, b. 3, c. 21, sec. 14, lays down the general rule, that a safe-conduct, of which these licenses are a species, are [is] to be liberally construed; laxa magis quam stricta interpretatio admittenda est. And licenses were eventually construed with great liberality in the British courts of admiralty. Judge Croke, in the case of The Abigail, Stewart, Vice-Adm. 360; Duer on Insurance, i. 595-619. The English admiralty and common-law decisions on this subject of licenses are collected and examined by Mr. Duer, with his usual diligence and sagacity.

(b) Schroeder v. Vaux, 15 East, 52; 3 Camp. 83.

with an exemption from the ordinary restrictions of a state of war. (a)

3. Treaties of Peace. — The object of war is peace; and it is the duty of every belligerent power to make war fulfil its end with the least possible mischief, and to accelerate, by all fair and reasonable means, a just and honorable peace. The same power which has the right to declare and carry on war, would seem naturally to be the proper power to make and conclude a treaty of peace; but the disposition of this power will depend upon the local constitution of every nation; and it sometimes happens that the power of making peace is committed to a body of men who have not the power to make war. In Sweden, after the death of Charles XII., the king could declare war without the consent of the national diet, but he made peace in conjunction with the senate. (b) So, by the Constitution of the United States, the President, by and with the advice and consent of two thirds of the Senate, may make peace, but it is reserved to Congress to declare war. This provision in our Constitution is well adapted (as will be shown more fully hereafter) to unite, in the negotiation and conclusion of treaties, the advantage of talents, experience, stability, and a comprehensive knowledge of national interest, with the requisite secrecy and despatch.

Treaties of peace, when made by the competent power, are obligatory upon the whole nation. If the treaty requires the payment of money to carry it into effect, and the money cannot be raised but by an act of the legislature, the treaty is morally obligatory upon the legislature to pass the law, and to refuse it would be a breach of public faith.¹ The department of the government that is intrusted by the Constitution with the treaty-making power is competent to {166} bind the national faith in its discretion; for the power to make treaties of peace must be coextensive with all the exigencies of the nation, and necessarily involves in it that portion of the national sovereignty which has the exclusive direction of diplomatic negotiations and contracts with foreign powers. All treaties made by

(a) The Jonge Johannes, 4 C. Rob. 263. See the law as to licenses, collected in 1 Holt, 129, note. Mr. Holt says, that Sir William Scott was, in fact, the author of the whole learning of the law relating to the system of licenses.

(b) Vattel, b. 4, c. 2, sec. 10.

¹ But see 286, n. 1.

that power become of absolute efficacy, because they are the supreme law of the land.

There can be no doubt that the power competent to bind the nation by treaty may alienate the public domain and property by treaty. If a nation has conferred upon its executive department, without reserve, the right of treating and contracting with other states, it is considered as having invested it with all the power necessary to make a valid contract. That department is the organ of the nation, and the alienations by it are valid, because they are done by the reputed will of the nation. The fundamental laws of a state may withhold from the executive department the power of transferring what belongs to the state; but if there be no express provision of that kind, the inference is, that it has confided to the department charged with the power of making treaties a discretion commensurate with all the great interests and wants and necessities of the nations. A power to make treaties of peace necessarily implies a power to decide the terms on which they shall be made, and foreign states could not deal safely with the government upon any other presumption. The power that is intrusted generally and largely with authority to make valid treaties of peace can, of course, bind the nation by alienation of part of its territory; and this is equally the case whether that territory be already in the occupation of the enemy or remains in the possession of the nation, and whether the property be public or private. (a) (x) In the case of the Schooner Peggy, (b) the {167} Supreme Court of the United States admitted that individual rights, acquired by war, and vested rights of the citizens, might be sacrificed by treaty for

(a) Vattel, b. 1, c. 20, sec. 244; ib. c. 21, sec. 262; b. 4, c. 2, sec. 11, 12. Vattel admits that the fundamental laws of a nation may withhold the power of alienation by treaty; and it would seem, by necessary inference, to be a violation of fundamental law for the treaty-making power, acting under such an instrument as the Constitution of the United States, to agree by treaty for the abolition or alteration of any part of the Constitution. The stipulation would go to destroy the very authority for making the treaty.

(b) 1 Cranch, 103.

(x) The Clayton-Bulwer Treaty of 1850, between Great Britain and the United States, as to a canal across the Isthmus of Panama, is strictly no longer binding,

as it contemplated a canal that was never actually constructed, and appears not to have applied to Honduras. See Cobbett's Int. Law Cases (2d ed.), 48.

national purposes. So, in the case of Ware v. Hylton (a)¹ it was said to be a clear principle of national lav that private rights might be sacrificed by treaty to secure the public safety, though the government would be bound to make compensation and indemnity to the individuals whose rights had thus been surrendered. The power to alienate, and the duty to make compensation, are both laid down by Grotius (b) in equally explicit terms. A treaty of peace is valid and binding on the nation, if made with the present ruling power of the nation, or the government de facto. Other nations have no right to interfere with the domestic affairs of any particular nation, or to examine and judge of the title of the party in possession of the supreme authority. They are to l9ok only to the fact of possession. (a) And it is an

(a) Chase, J., 3 Dallas, 199, 245.

(b) B. 3, c. 20, sec. 7. The government of the United States declared to the British government, in reference to the disputed line of the northeastern boundary of the United States, that it had no power to cede any part of the territory claimed by the State of Maine, without the consent of that state. See the letter of Lord Palmerston to Mr. Fox, the British Minister at Washington, November 19, 1837. Though the better opinion would seem to be, that such a power of cession does reside exclusively in the treaty-making power, under the Constitution of the United States, yet sound discretion would forbid the exercise of it without the consent of the local governments who are interested, except in cases of great necessity, in which that consent might be presumed. (x) By the treaty made between the United States and Great Britain, in 1842, respecting the disputed boundary line between the State of Maine and the British provinces of New Brunswick and Canada, part of the lands claimed by the State of Maine were, by the line agreed on, placed within the British territory, and ceded to Great Britain; yet the United States did not act on the subject until they had previously and very wisely provided, that commissioners on the part of the states of Massachusetts and Maine should be present at the negotiation, and assenting to the boundary line agreed on.

¹ Little v. Watson, 32 Maine, 214; Meade v. United States, 2 Nott & H. (Court of Claims) 224.

(x) "But," says Dr. Woolsey (Int. Law, 3d ed. § 99), in referring to this passage," it might be asked, whether the treaty-making power is not necessarily limited by the existence of states, parties to the confederation, having control for most purposes over their own territory. Could the treaty-making power blot out the existence of a state which helped to create the union, by ceding away all its

domain? Such fearful power was never lodged in the general government by the Constitution, and could never be lawfully exercised in the ordinary contingencies of the confederation. Only in extreme cases, where the treaty-making power is called upon to accept the fact of conquest, or to save the whole body from ruin by surrendering a part, could such an exercise of power be justified."

acknowledged rule of international law, that the principal party in whose name the war is made cannot justly make peace without including those defensive allies in the pacification who have afforded assistance, though they may not have acted as principals; for it would be faithless and cruel for the principal in the war to leave his weaker ally to the full force of the enemy's resentment. The ally is, however, to be no further a party to the stipulations and obligations of the treaty than he has been willing to consent. All that the principal can require is, that his ally be considered as restored to a state of peace. Every alliance, in which all the parties are principals in the war, obliges the allies to treat in concert, though each one makes a separate treaty of peace for himself. (d)

{168} The effect of a treaty of peace is to put an end to the war, and to abolish the subject of it. Peace relates to the war which it terminates. It is an agreement to waive all discussion concerning the respective rights of the parties, and to bury in oblivion all the original causes of the war. (a) It forbids the revival of the same war, by taking arms for the cause which at first kindled it, though it is no objection to any subsequent pretensions to the same thing on other foundations. (b) After peace, the revival of grievances arising before the war is not to be encouraged, for treaties of peace are intended to put an end to such complaints; and if grievances then existing are not brought forward at the time when peace is concluded, it is to be presumed that it is not intended to bring them forward at any future time. (c) Peace leaves the contracting parties without any right of committing hostility, for the very cause which kindled the war, or for what has passed in the course of it. It is, therefore, no longer permitted to take up arms again for the same cause. (d) But this will not preclude the right to complain and resist, if the same grievances which kindled the war be renewed and repeated; for that would furnish a new injury and a new cause of war equally just with the former war. If an abstract right be in

(d) Vattel, b. 4, c. 2, sec. 16.

(a) Sir William Scott, in the case of the Eliza Ann, 1 Dods. 249. Though private rights existing before the war may not be remitted by peace, the presumption is otherwise as to the rights of kings and nations. Grotius, b. 3, c. 20, sec. 19.

(b) Vattel, b. 4, c. 2, sec. 19.

(d) Vattel, b. 4, c. 2, sec. 19.

question between the parties, the right, for instance, to impress at sea one's own subjects from the merchant vessels of the other, and the parties make peace without taking any notice of the question, it follows, of course, that all past grievances, damages, and injury, arising under such claim, are thrown into oblivion, {169} by the amnesty which every treaty implies; but the claim itself is not thereby settled, either one way or the other. It remains open for future discussion, because the treaty wanted an express concession or renunciation of the claim itself. (a)

A treaty of peace leaves everything in the state in which it finds it, if there be no express stipulation on the subject. If nothing be said in the treaty of peace about the conquered country or places, they remain with the possessor, and his title cannot afterwards be called in question. (b) During war, the conqueror has only a usufructuary right to the territory he has subdued; and the latent right and title of the former sovereign continues, until a treaty of peace, by its silence or by its express stipulation, shall have extinguished his title for ever. (a)

The peace does not affect private rights which had no relation to the war. Debts existing prior to the war, and injuries committed prior to the war, but which made no part of the reasons for undertaking it, remain entire, and the remedies are revived (d) ¹There are certain cases in which even debts contracted or injuries committed between two subjects of the belligerent powers, during the war, are the ground of a valid claim, as in the case of ransom bills, and of contracts made by prisoners of war for subsistence, or in a trade carrried on under a license. (e) This would be the case if the debt between them was contracted, or the injury was committed, in a neutral country. (f)

A treaty of peace binds the contracting parties from the moment of its conclusion, and that is understood to be from

(a) Vattel, b. 4, c. 2, sec. 19, 20.

(b) Vattel, b. 4, c. 2, sec, 19, 21.

(c) Sir William Scott, 1 Dods. 452; Vattel, b. 3, c. 13, sec. 197, 198; ib. b. 4, c. 2, see. 1; Grotius, lib. 3, c. 6, sec. 4, 5; Mably, Droit de l'Europe, i. e. 2, 144.

(d) Grotius, b. 3, c. 20, sec. 16, 18.

(e) Crawford v. The William Penn, 3 Wash. 484; 1 Peters, C. C. 106 S. C. (f) Vattel, b. 4, c. 2, sec. 22.

¹ Alcinous v. Nigreu, 4 El. & Bl. 217, 219; ante, 67, n. 1; 91, n. 1.

{170} the day it is signed. (a)^l A treaty made by the minister abroad, when ratified by his sovereign, relates back to the time of signing; (b) but, like a truce, it cannot affect the subjects of the nation with guilt, by reason of acts of hostility subsequent to the date of the treaty, provided they were committed before the treaty was known. All that can be required in such cases is, that the government make immediate restitution of things captured after the cessation of hostilities; and to guard against inconvenience from the want of due knowledge of the treaty, it is usual to fix the periods at which hostilities are to cease at different places, and for the restitution of property taken afterwards. (c)

But though individuals are not deemed criminal for continuing hostilities after the date of the peace, so long as they are ignorant of it, a more difficult question to determine is, whether they are responsible civiliter in such cases. Grotius (d) says, they are not liable to answer in damages, but it is the duty of the government to restore what has been captured and not destroyed. In the case of the American ship Mentor, (e) which was taken and destroyed, off Delaware Bay, by British ships of war, in 1783, after the cessation of hostilities, but before that fact had come to the knowledge of either of the parties, the point was much discussed; and it was held that the injured party could not pass over the person from whom the alleged injury had been received, and fix it on the commander of the English squadron on that station, who was totally ignorant of the whole transaction, and at the distance of thirty leagues from the place where it passed. There was no instance in the annals of the prize courts of such

(a) Vattel, b. 4, c. 3, sec. 24; Martens, Summary, b. 8, c. 7, sec. 5; In the matter of Metzger, N. Y. Legal Observer for March, 1847.

(b) Hylton v. Brown, 1 Wash. 312.

(c) Vattel, b. 4, c. 3, sec. 24, 25; ib. b. 2, c. 12, sec. 156, 157; ib. b. 3, c. 16; 2 Dallas, 40; Azuni, ii. 227; Hylton v. Brown, 1 Wash. 311, 312, 342, 351.

(d) B. 3, c. 21, sec. 5.

(e) 1 C. Rob. 179; [The Ostsee, 9 Moore, P. C. 150, 176.]

¹ Sovereign power over territory ceded ends at the moment of cession, except for municipal purposes and keeping order, for which it continues until delivery. United States v. Reynes, 9 How. 127; Davis v. Police Jury of Concordia, ib. 280. But

in so far as the treaty affects individual rights which were vested before it was ratified, it is not considered as concluded until there is an exchange of ratifications. Haver v. Yaker, 9 Wall. 32.

a remote and consequential responsibility in such a case. The actual wrong-doer is the person to answer in {171} judgment, and to him the responsibility, if any, is attached. He may have other persons responsible over to him, but the injured party could look only to him. The better opinion was, that though such an act be done through ignorance of the cessation of hostilities, yet mere ignorance of that fact would not protect the officer from civil responsibility in a prize court; and that if he acted through ignorance, his own government must protect him and save him harmless. When a place or country is exempted from hostility by articles of peace, it is the duty of the government to use due diligence to give its subjects notice of the fact; and the government ought, in justice, to indemnify its subjects who act in ignorance of the peace. And yet it would seem from that case that the American owner was denied redress in the British admiralty, not only against the admiral of the fleet on that station, but against the immediate author of the injury. Sir William Scott denied the relief against the admiral; and ten years before that time relief had equally been denied by his predecessor against the person who did the injury. If that decision was erroneous, an appeal ought to have been prosecuted. We have, then, the decision of the English High Court of Admiralty, denying any relief in such a case, and an opinion of Sir William Scott many years afterwards, that the original wrong-doer was liable. The opinions cannot otherwise be reconciled than upon the ground that the prize courts have a large and equitable discretion in allowing or withholding relief, according to the special circumstances of the individual case, and that there is no fixed or inflexible general rule on the subject.

If a time be fixed by the treaty for hostilities to cease in a given place, and a capture be previously made, but with knowledge of the peace, it has been a question among the writers on public law whether the captured property should be restored. The better and the more reasonable opinion {172} is, that the capture would be null, though made before the day limited, provided the captor was previously informed of the peace; for, as Emerigon (a) observes, since constructive knowledge of the peace, after the time limited in different parts of the world, ren-

(a) Valin, Traité des Prises, c. 4, sec. 4, 5; Emerigon, Traité des Ass. c. 12, sec. 19; Azuni on Maritime Law, ed. N. Y. ii. 231.

ders the capture void, much more ought actual knowledge of the peace to produce that effect. (b)

{173} Another question arose subsequent to the treaty of Ghent, of 1814, in one of the British vice-admiralty courts, on the validity of a recapture, by a British ship of war, of a British vessel captured by an American privateer. The capture made by an American cruiser was valid, being made before the period fixed for the cessation of hostilities, and in ignorance of the fact; but the prize had not been carried into port and condemned, and while at sea she was recaptured by the British cruiser after the period fixed for the cessation of hostilities, but without knowledge of the peace. It was decided that the possession of the vessel by the American privateer was a lawful possession, and that the British cruiser could not, after the peace, lawfully use force to divest this lawful possession. The restoration of peace put an end, from the time limited, to all force, and then the general principle applied, that things acquired in war remain, as to title and possession, precisely as they stood when the peace took place. The uti possidetis is the basis of every treaty of peace, unless it be otherwise agreed. Peace gives a final and perfect title to captures without condemnation; and as it forbids all force, it destroys all hopes of recovery as much as if the vessel was carried infra præsidia, and condemned. (a)

(b) This point was extensively discussed in the French prize courts, in the case of the capture of the British ship Swineherd, by the French privateer Bellona, in 1801, and what was sufficient knowledge of the fact of the peace to annul the capture was the great question. The English ship was taken possession of, and carried into the Isle of France, and libelled, and condemned as lawful prize of war. The sentence of condemnation was affirmed in 1803, on appeal to the Council of Prizes at Paris, and M. Merlin has reported at large the elaborate argument and opinion of M. ColletDescotils, the imperial advocate-general in the Council of Prizes, in favor of the captors. The ground he took, and upon which the Council of Prizes proceeded, was, that the king's proclamation of the signature of the preliminary articles of peace, though made known repeatedly to the French cruiser before the capture, but unaccompanied by any French attestation, was not that sufficient and indubitable evidence to the French cruiser of the fact of the peace, upon which he ought to have acted, and that the period of the five months had not elapsed within which it was lawful, in the Indian seas, to continue hostilities. The learned and venerable author of that immense work, the Repertory of Jurisprudence, says, on introducing the case, that he shall be silent on the question, and contents himself with giving the discussions, and particularly the opinion of the advocate-general and the reasons of the Council of Prizes. See Répertoire Universel et Raisonné de Jurisprudence, par M. le Comte Merlin, xiii. tit. Prise Maritime, sec. 5.

(a) Case of the Legal Tender, Halifax, April, 1815, cited in Wheaton's Dig. 302.

A similar doctrine was held in the case of {174} the Schooner Sophie, (a) and a treaty of peace has the effect of quieting all titles of possession arising from the war, and of putting an end to the claim of all former proprietors to things of which possession was acquired by right of war.

If nothing be said to the contrary, things stipulated to be restored are to be returned in the condition in which they were taken; but this does not relate to alterations which have been the natural consequence of time, and of the operations of war. A fortress or a town is to be restored in the condition it was when taken, so far as it shall still be in that condition when the peace is made. (b) There is no obligation to repair, as well as to restore, a dismantled fortress or a ravaged territory. The peace extinguishes all claim for damages done in war, or arising from the operations of war. Things are to be restored in the condition in which the peace found them; and to dismantle a fortification or to waste a country, after the conclusion of the peace, and previous to the surrender, would be an act of perfidy. (c)

Treaties of every kind, when made by the competent authority, are as obligatory upon nations as private contracts are binding upon individuals; and they are to receive a fair and liberal interpretation, according to the intention of the contracting parties, and to be kept with the most scrupulous good faith. Their meaning is to be ascertained by the same rules of construction and course of reasoning which we apply to the interpretation of private contracts. (d)^l If a treaty should, in fact, be violated by one of the contracting {175} parties, either by proceedings incompatible with the particular nature of the

(a) 6 C. Rob. 138.

(b) Vattel, b. 4, c. 3, sec. 31, 34. (c) Ib. sec. 31.

(d) Grotius, b. 2, c. 16, sec. 1; Puff. b. 5, c. 12, sec. 1; Rutherforth's Institutes, b. 2, c. 7; Vattel, b. 2, c. 17; Eyre, Ch. J., in 1 Bos. & Pull. 438, 439; Opinion of Sir James Marriott, cited in 1 Chitty, Comm. Law, 44. But if the legislative and executive branches of the government have given and asserted a construction to a treaty with a foreign power, under which it claims dominion over a territory in its possession, the courts of justice will not set up or sustain a different construction. Foster v. Neilson, 2 Peters, 253. If a treaty be ambiguous in any part of it, the party who had the power, and on whom it was peculiarly incumbent to speak clearly and plainly, ought to submit to the construction most unfavorable to him, upon the reasonable maxim of the Roman law, that Pactionem obscuram iis nocere, in quorum fuit potestate legem apertius conscribere. Vattel, b. 2, c. 17, sec. 264.

¹ See, as to note (d), Wilson v. Wall, 6 Wall. 83, 89, post, 286, n. 1.

treaty, or by an intentional breach of any of its articles, it rests alone with the injured party to pronounce it broken. The treaty, in such a case, is not absolutely void, but voidable, at the election of the injured party. (a) If he chooses not to come to a rupture, the treaty remains obligatory. He may waive or remit the infraction committed, or he may demand a just satisfaction.

There is a very material and important distinction made by the writers on public law between a new war for some new cause, and a breach of a treaty of peace. In the former case, the rights acquired by the treaty subsist, notwithstanding the new war; but, in the latter case, they are annulled by the breach of the treaty of peace on which they are founded. A new war may interrupt the exercise of the rights acquired by the former treaty, and, like other rights, they may be wrested from the party by the force of arms. But then they become newly acquired rights, and partake of the operation and result of the new war. To recommence a war by breach of the articles of a treaty of peace is deemed much more odious than to provoke a war by some new demand and aggression; for the latter is simply injustice, but in the former case the party is guilty both of perfidy and injustice. (b) The violation of any one article of a treaty is a violation of the whole treaty; for all the articles are dependent on each other, and one is to be deemed a condition of the other, and a violation of any single article overthrows the whole treaty, if the injured party elects so to consider it. This may, however, be prevented by an express provision, that if one article be broken, the others shall, nevertheless, continue in full force. (c) We have a strong instance, in {176} our own history, of the annihilation of treaties by the act of the injured party. In 1798, the Congress of the United States (a) declared that the treaties with France were no longer obligatory on the United States, as they had been repeatedly violated on the part of the French government, and all just claims for reparation refused.

(a) Grotius, b. 2,c. 15, sec. 15; b. 3, c. 20, sec. 35-38; Burlamaqui, pt. 4, c. 14, sec. 8, p. 355; Vattel, b. 4, c. 4, sec. 54.

(b) Grotius, b. 3, c. 20, sec. 27, 28; Vattel, b. 4, c. 4, sec. 42.

(a) Act of July 7, 1798.

As a general rule, the obligations of treaties are dissipated by hostility, and they are extinguished and gone forever, unless revived by a subsequent treaty. But if a treaty contains any stipulations which contemplate a state of future war, and make provision for such an exigency, they preserve their force and obligation when the rupture takes place. All those duties of which the exercise is not necessarily suspended by the war, subsist in their full force. The obligation of keeping faith is so far from ceasing in time of war, that its efficacy becomes increased, from the increased necessity of it. What would become of prisoners of war, and the terms of capitulation of garrisons and towns, if the word of an enemy was not to be relied on? The faith of promises and treaties which have reference to a state of war is to be held as sacred in war as in peace, and among enemies as among friends. All the writers on public law admit this position, and they have never failed to recommend the duty and the observance of good faith, by the most powerful motives, and the most pathetic and eloquent appeals which could be addressed to the reason and to the moral sense of nations. (b) The tenth article of the treaty between the United States and Great Britain, in 1794, may be mentioned as an instance of a stipulation made for war. It provided that debts due from individuals of the one nation to those of the other, and the shares or moneys which they might have in the public funds, or in public or private banks, should never, in any event of war, be sequestered or confiscated. There can be no doubt that the obligation of that article was not impaired {177} by the war of 1812, but remained throughout that war, and continues to this day, binding upon the two nations, and will continue so, until they mutually agree to rescind the article; for it is a principle of universal jurisprudence, that a compact cannot be rescinded by one party only, if the other party does not consent to rescind it, and does no act to destroy it. In the case of The Society for Propagating the Gospel v. New Haven, (a) the Supreme Court of the United States would not admit the doctrine that treaties became extinguished ipso facto by war, unless revived by an express or implied renewal on the return of peace.

(b) Vattel, b. 3, c. 10, sec. 174; Grotius, b. 3, c. 25; Heinecc. Jur. Nat. et Gent b. 2, c. 9, p. 213.

(a) 8 Wheaton, 494; Sutton v. Sutton, 1 Buss. & My. 663, S. P.

Such a doctrine is not universally true. 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. (b)

4. Of Territories Ceded or Acquired. — With respect to the Cession of places or territories by a treaty of peace, though the treaty operates from the making of it, it is a principle of public law that the national character of the place agreed to be surrendered by treaty continues as it was under the character of the ceding country, until it be actually transferred. Full sovereignty cannot be held to have passed by the mere words of the treaty without actual delivery. To complete the right of property, the right to the thing and the possession of the thing must be united. This is a necessary principle in the law of property in all systems of jurisprudence. There must be both the jus in [ad] rem and the jus in re, according to the distinction of the civilians, and which Barbeyrac (a) says they borrowed from the canon law. This general law of property applies to the right of territory, no less than to other rights. {178} The practice of nations has been conformable to this principle, and

(b) The American Ministers, in their negotiations at London, in 1818, with the British government, insisted that the third article of the treaty of September, 1783, relative to the fisheries, was a fundamental and permanent article, seeming a primary right, not annulled, though the exercise of the right was interrupted by the war of 1812; and that the right remained in full force, after the termination of the war, notwithstanding it was not noticed in the treaty of Ghent. The British commissioners, on the other hand, alleged that the war of 1812 cancelled the provision, and, not being renewed by the subsequent treaty of peace, the right was extinguished. The two nations at last agreed to the convention of the 20th of October, 1818, modifying and settling the question as to the fisheries, without yielding, on either side, their construction of the operation of the war of 1812, upon the treaty of 1783. Rush's Memoranda, 354-368. See the Diplomatic Correspondence between Mr. Adams and Lord Bathurst, in 1815. In this correspondence, the British negotiator admitted that the acknowledgment of a right or title in a treaty of peace was, in its own nature, of perpetual obligation. The cession of a right, as that of boundary lines and places, for instance, would seem to fall within the same principle. Such were the treaties of Munster, 1646, and of Utrecht, 1713, which, after long and exhausting wars, settled the rights of the great European powers on a solid and permanent foundation, and are still deemed to be in vigor, and intimately connected with the settlement of Europe. [The history of the fisheries question will be found in 5 Am. Law Rev. 389.]

the conventional law of nations is full of instances of this kind, and several of them were stated by Sir William Scott in the opinion which he gave in the case of the Fama. (a)^l

(a) 5 C Rob. 106. It is a settled principle, In the law and usage of nations, that the inhabitants of a conquered territory change their allegiance, and their relation to their former sovereign is dissolved; but their relations to each other, and their rights of property, not taken from them by orders of the conqueror, remained undisturbed. The cession or conquest of a territory does not affect the rights of property. Vattel, b. 3, c. 13, sec. 200; The United States v. Percheman, 7 Peters, 51; Mitchel v. The United States, 9 Peters, 711; Strother v. Lucas, 12 Peters, 410, 438. The laws, usages, and municipal regulations in force at the time of the conquest or cession, remain in force, until changed by the new sovereign. Calvin's case, 7 Co. 17; Campbell v. Hall, Cowp. 209; 9 Peters, 711, 734, 748, 749; Strother v. Lucas, 12 Peters, 410. There is no doubt of the power of the sovereign to change the laws of a conquered or ceded country, unless restrained by the capitulation or treaty of cession. In the case of the Canal Appraisers v. The People, in 17 Wendell, 587, Chancellor Walworth declared, that in the case of a country acquired by conquest, no formal act of legislation is necessary to change the law; the mere will of the conqueror is sufficient. This is the case in governments where the conqueror is in possession of the legislative as well as the executive power; and until a nation or territory is wholly subdued, the conqueror is only entitled, by the usage of nations, to hold it as a temporary possession, by military occupation, until the final issue of the conquest is settled by treaty, or by the competent constitutional power. The principle of national law, as declared by the courts of the United States, is, that conquest does not give the conqueror plenum dominium et utile. A temporary right of possession and government is only acquired, unless the treaty of peace settles the question otherwise, or there be an absolute abandonment of the territory by the former sovereign, or an irretrievable subjection to the conqueror. United States v. Hayward, 2 Gallison, 486; Clark v. United States, 3 Wash. 104. The rule is different when a country is claimed by the right of discovery and occupancy, and not by right of conquest or cession. In the former case, the discoverers and new occupants carry with them all the general laws of the mother country applicable to their new situation as colonies, and they become, ipso facto, the law of the country. Such was the case with the United States, when they were first colonized by Great Britain; and this was the case, says Chancellor Walworth, with New York, when conquered from the Dutch in 1664; for the English held it, though acquired by conquest from the Dutch, not by that title merely, bat by the prior right of discovery. But if he was in error on that point, yet, when the English acquired possession of New York by force, in 1664, the charter granted in that year to the Duke of York contained an explicit declaration of the king's will, that the laws of England should be the established laws of the province, and this put an end to the operation of the Roman Dutch laws imported from Holland. The illustrations above alluded to, of the sovereign power of the conqueror over the laws of the conquered countries, appears in the case of the northern barbarians who overran the south of Europe during the 5th and 6th centuries. They neither adopted their own laws entirely, nor retained those of the conquered countries to their full extent. The Roman provincials were governed between themselves, as to their pos-

¹ See, on the first statement in note (a), United States ?'. Repentigny, 5 Wall.

211; on the next, Leitensdorfer v. Webb, 20 How. 176.

The release of a territory from the dominion and sovereignty of the country, if that cession be the result of coercion or conquest, does not impose any obligation upon the government to indemnify those who may suffer a loss of property by the cession. (x) The annals of New York furnish a strong illustration of this position. The territory composing the State of Vermont belonged to this state; and it separated from it, and erected itself into an independent state, without the consent, and against the will, of the government of New York. The latter continued for many years to object to the separation, and to discover the strongest disposition to reclaim by force the allegiance of the inhabitants of that state. But they were unable to do it; and it was a case of a revolution effected by force, analogous to that which was then in action between this country and Great Britain. And when New York found itself under the necessity of acknowledging the independence of Vermont, a question arose before the legislature, whether they were bound in duty to make compensation to individual citizens whose property would be sacrificed by the event, because their titles to land lying within the jurisdiction of Vermont, and derived from New York, would be disregarded by the government of that state. The claimants were heard at the bar of the house of assembly, by counsel, in 1787, and it was contended on their behalf that the state was bound, upon the principles of the social compact, to protect and defend the rights and property of all its members; and that whenever it became necessary, upon grounds of public expediency and policy, to withdraw the protection of government {179} from the property of any of its citizens, without

sessions and personal rights, by the Roman law; the Salian Franks, by the Salic law; the Franks of the Rhine, by the Ripuarian law; the Alemans and Swabians, by the Alemannic law; and the Lombards by their own law. (Savigny's Hist. of the Roman Law, i.; and see infra, iii. 491.) So the Mahometan conquerors of Hindostan introduced their own law so far only as it affected the followers of Mahomet, leaving the conquered Hindoos to enjoy their own laws as between themselves. There is, therefore, now in India one law for Europeans and their descendants, another for the Hindoos, and another for the Mahometans; and these different laws have been adopted in India by the will of the English sovereign, without any parliamentary authority. The conquest of Gibraltar, Trinidad, Ceylon, the Cape of Good Hope, Louisiana, &c., all show that the old laws remain, or the laws of the conquering nation, in whole or in part, are substituted, at the mere will and pleasure of the conqueror.

(x) See supra, 25, note (x).

actually making the utmost efforts to reclaim the jurisdiction of the country, the state was bound to make compensation for the loss. In answer to this argument, it was stated that the independence of Vermont was an act of force beyond the power of this state to control, and equivalent to a conquest of that territory, and the state had not the competent ability to recover, by force of arms, their sovereignty over it, and it would have been folly and ruin to have attempted it. All pacific means had been tried without success; and as the state was compelled to yield to a case of necessity, it had discharged its duty; and it was not required, upon any of the doctrines of public law, or principles of political or moral obligation, to indemnify the sufferers. The cases in which compensation had been made for losses consequent upon revolutions in government were peculiar and gratuitous, and rested entirely on benevolence, and were given from motives of policy, or as a reward for extraordinary acts of loyalty and exertion. No government can be supposed to be able, consistently with the welfare of the whole community, and it is, therefore, not required to assume the burden of losses produced by conquest, or the violent dismemberment of the state. It would be incompatible with the fundamental principles of the social compact.

This was the doctrine which prevailed; and when the act of July 14, 1789, was passed, authorizing commissioners to declare the consent of the state to the independence of Vermont, it was expressly declared that the act was not to be construed to give any person claiming lands in Vermont, under title from this state, any right to any compensation whatsoever from New York.