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) In the case of The schooner Peggy, (b) the *Su- *167 preme Court of the United States admitted, that individual rights, acquired by war, and vested rights of the citizens, might be sacrificed by treaty for national purposes. So, in the case of Ware v. Hylton, (c) it was said to be a clear principle of national law, 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 (d) in equally explicit terms.

(a) Vattel, b. 1, c. 20, sec. 244. Ibid. 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.

(c) Chase, J., 3 Dall. Rep. 199, 245.

(d) 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 19th, 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. 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.

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 look only to the fact of possession. (a) And it is an 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. (b)

168

put an end to Peace relates

* The effect of a treaty of peace is to the war, and to abolish the subject of it. 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. (c) 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. (d) 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

(a) Vattel, b. 4, c. 2, sec. 14, and vide supra, p. 25.

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

(c) Sir William Scott, in the case of The Eliza Ann, 1 Dodson's Adm. Rep. 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.

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

any future time. (a) 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. (b) 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 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, by the amnesty which *169 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. (c)

If

A treaty of peace leaves every thing in the state in which it finds it, if there be no express stipulation on the subject. 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. (d) 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 forever. (e)

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.(ƒ)

(a) Sir William Scott, The Molly, 1 Dodson's Adm. Rep. 396.

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

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

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

(e) Sir William Scott, 1 Dodson's Adm. Rep. 452. Vattel, b. 3, c. 13, sec. 197, 198. Ibid. b. 4, c. 2, sec. 1. Grotius, lib. 3, c. 6, sec. 4, 5. Mably's Droit de l'Europe, tom. i. c. 2, p. 144.

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

There 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 carried on under a license. (a) This would be the case if the debt between them was contracted, or the injury was committed, in a neutral country. (b)

The time when treaties take effect.

A treaty of peace binds the contracting parties from the moment of its conclusion, and that is under*170 stood to be from the day it is signed. (c) ' A treaty made by the minister abroad, when ratified by his sovereign, relates back to the time of signing; (d) 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. (e)

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 (f) says,

(a) Crawford v. The William Penn, 3 Wash. Cir. Rep. 484. 1 Peters's Cir. Rep. 106, S. C.

(b) Vattel, b. 4, c. 2, sec. 22.

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

(d) Hylton v. Brown, 1 Wash. C. (e) Vattel, b. 4, c. 3, sec. 24, 25.

2 Dall. Rep. 40. Azuni, vol. ii. 227. 311, 312, 342, 351.

(ƒ) B. 3, c. 21, sec. 5.

C. Rep. 312.

Ibid. b. 2, c. 12, sec. 156, 157. Ibid. b. 3, c. 16.
Lessee of Hylton v. Brown, 1 Wash. Cir. Rep.

1 So held in The United States v. Reynes, 9 How. R. 127. Davis v. The Police Jury, &c. id. 280. Therefore, after the date of the treaty, an officer of the ceding power has no authority to grant land or franchises, to be enjoyed in the territory ceded. Sovereign power, except for municipal purposes, ceases, unless otherwise provided, with the signing of the treaty.

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 Mentos, (a) 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 remote and consequential responsibility in such a case. The actual wrongdoer is the person to answer in *judgment, and to him the re- *171 sponsibility, 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

(a) 1 Rob. Rep. 179.

1 It has been doubted whether the language of Grotius sanctions the limitation, or the responsibility of the government, which is implied in the text. The original language is this:-"Quare si quid interea a subditis contra inducias factum sit, ipsi a poenis immunes erunt, neque tamen eo minus contrahentes damnum resarcire debebunt."