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CHAPTER IX.

TREATIES OF PEACE.

1. Peace the end and object of war-2. Power to make war does not necessarily imply that to make peace-3. Laws of different States-4. Power of a prisoner of war to treat-5. Alienation of territory and private property-6. Duty of compensation-7. Allies and associates, in regard to a treaty of peace-8. General character and effects of such treaty-9. Implied amnesty-10. New grievances from same cause-11. Claims unconnected with causes of the war-12. Principleof uti possidetis-13. Treaties of peace bind the whole State-14. When obligations commence-15. Upon individuals-16. Individuals liable for civil damages-17. Constructive and actual knowledge of peace-18. Recaptures after treaty of peace-19. In what condition things are to be restored-20. Unpaid military contributions-21. Effect of coercion on validity of treaty-22. Effect of peace on former treaties-23. Breach of a treaty of peace-24. Delays, &c., in carrying treaty into effect-25. War for new cause or for breach of treaty of peace.

§ I. IT has been laid down as 'an unquestionable proposition of international law that there is a legal as well as a moral necessity that, with the ceasing of the causes which justified the inception of the war, the war itself should cease' Vattel enforces the obligation to seek peace as the end of war, and argues that no matter how just the war may have been at the commencement, it must not be continued beyond its lawful object, which is to procure justice and safety, and the moment an equitable compromise can be procured, it should cease. The obligation to accept a peace sufficiently safe, is also strenuously argued by Grotius. Other writers say that when, by use of the legal means of war, the invaded right has been obtained or secured, the injury redressed, or the threatened danger averted, the abnormal state of war must cease, and the normal state of peace must be re-established. Some, who advocate the general right of external intervention, deem it a most proper occasion to exercise that right, when a war, though lawfully begun, is unlawfully continued beyond the just objects of its inception. There are three ways by which a war may

be concluded and peace restored: Ist. By the unconditional submission of one belligerent to another; 2nd. By a de facto cessation of hostilities, and a de facto renewal of the relations of peace, by both belligerents; and 3rd. By a formal treaty of peace. We shall here discuss only the latter.'1

§ 2. The power to declare war does not necessarily include that of making a treaty of peace. These two powers are intimately connected, and the latter would seem naturally to follow the former. They are, therefore, generally associated together, though not always. In unlimited monarchies both reside in the sovereign; and even in limited or constitutional monarchies both may be vested in the crown, yet the conditions of the treaty of peace may be such as to require its ratification by other authorities of the State. For, although the State may have entrusted to the prudence of her ruler the general authority to determine on war and peace, yet this power may be limited in many particulars by the fundamental law or constitution. A nation has the free disposal of its own domestic affairs and form of government, and its sovereign power of making war and peace may be entrusted to a single person, or it may be divided among a number of persons.

§ 3. Thus, Francis I. of France attempted by the treaty of Madrid, to cede to the emperor Charles V. the province of Burgundy; but the states-general, under the constitution of the old French monarchy, declared that the king had no authority to alienate any part of the kingdom by a treaty of peace. The cession of the province of Burgundy was, therefore, annulled, as contrary to the fundamental laws of the kingdom. Under Richelieu and Louis XIV. the old feudal constitution of France was abolished, and all the powers of government concentrated in the hands of the king. Of the different constitutions established in France since the revolution of 1789, some have limited the power of concluding a peace, while others have vested it in the crown without any

1 Vattel, Droit des Gens, liv. iv. ch. i. §§ 6, 7, 9; Grotius, De Jur. Bel. ac Pac., lib. iii. ch. xxv. § 3; Phillimore, On Int. Law, vol. iii. §§ 509 et seq.; Bello, Derecho Internacional, pt. ii. cap. ix. § 6; Burlamaqui, Droit de la Nat. et des Gens, tome v. pt. iv. ch. xiv.; Albericus Gentilis, De Legationibus, lib. iii. cap. i.; Zouch, De Jure, &c., pt. ii. sec. ix.; Wolfius, Jus Gentium, cap. viii.; Kampts, Literatur des Völk., §§ 321 331; Kent, Com. on Am. Law, vol. i. p. 165; Wildman, Int. Law, vol. i. p. 139; Rayneval, Inst. du Droit Nat., &c., liv. iii. ch. xxi.; Heffter, Droit International, § 179.

nominal limitation. Nevertheless, so long as the chambers exercise a legislative authority, they necessarily exercise am influence on the treaty-making power, in their right to refuse the passage of laws to carry such treaties into effect. Im Great Britain, the treaty-making power, as a branch of the prerogative of the crown, has, in theory, no limits; but in the practical administration of the constitution this power is limited by the general controlling authority of parliament, which body can compel the crown to make peace by withholding the supplies necessary for carrying on the war, and its approbation is necessary to carry into effect a treaty by which the existing territorial arrangements of the empire are altered. In confederated governments, as already stated, the treaty-making power, and its extent, must depend upon the nature of the confederation and the formation and character of the government. By the constitution of the United States of America, the president has the exclusive power of making treaties of peace, which, when ratified with the advice and consent of the senate, become the supreme law of the land, and have the effect of repealing all other laws of congress, or of the States, which stand in the way of their stipulations. But congress may at any time compel the president to make peace by refusing the means of carrying on the war, and its approbation is necessary for the passage of any laws which might be required for carrying into effect the stipulations of such treaty.1

1 The peace of Westphalia was signed at Munster, October 24, 1648. It is a fundamental law of the Empire, and the basis of all subsequent treaties. In order to satisfy the different Powers, the following important stipulations were found necessary, viz. :-That France should possess the sovereignty of the three bishoprics (Metz, Toul, and Verdun), the city of Pignerol-Breisac and its dependencies, the territory of Suntgau, the landgraviates of Upper and Lower Alsace, and the right to keep a garrison in Philipsburg; that to Sweden should be granted, besides five millions of crowns, the archbishopric of Bremen and the bishopric of Verden secularised, Upper Pomerania, Stettin, the isle of Rugen and the city of Wismar in the duchy of Mecklenburgh, all to be holden as fiefs of the Empire with three votes at the Diet; that the elector of Brandenburg should be reimbursed for the loss of Upper Pomerania by the cession of the bishopric of Magdeburg secularised, and by having the bishoprics of Halberstadt, Minden and Camin declared secular principalities with four votes at the Diet; that the Duke of Mecklenburgh, as an equivalent for Wismar, should have the bishoprics of Schwerin and Ratsburg erected in like manner into secular principalities; that the electoral dignity with the Upper Palatinate should remain with Maximilian, Duke of Bavaria, and his descendants as long as they should produce male issue; but that the Lower Palatinate should be restored to Charles Louis, in whose favour should be established an eighth electorate, to continue till the extinction of

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§ 4. A question much discussed in former times, was, whether a prisoner of war can make a treaty of peace? On this subject Vattel remarks: Every legitimate government, whatever it may be, is established solely for the good and welfare of the State. This incontestable principle being once laid down, the making of peace is no longer the peculiar province of the king: it belongs to the nation. Now, it is certain that a captive prince cannot administer the government, or attend to the management of public affairs. How shall he, who is not free, command a nation? How can he govern it in such a manner as best to promote the advantage of the people, and the public welfare? He does not, indeed, forfeit his rights; but his captivity deprives him of the power of exercising them, as he is not in a condition to direct the use of them to its proper and legitimate end. He stands in the same predicament as a king in his minority, or labouring under a derangement of his mental faculties. In such circumstances it is necessary that the person or persons whom the laws of State designate for the regency, should assume the reins of government. To them it belongs to treat of peace, to settle the terms on which it shall be made, and to bring it to a conclusion, in conformity to the laws. The captive sovereign may himself negotiate the peace, and promise what personally depends on him; but the treaty does not become obligatory on the nation till ratified by itself, or by those who are invested with the public authority during the prince's captivity, or, finally, by the sovereign himself after his release.' '

1

the House of Bavaria; all the other princes and States were re-established in the lands, rights, and prerogatives which they enjoyed before the troubles of Bohemia in 1618; the Republic of Switzerland was declared to be a sovereign State, exempt from the jurisdiction of the Empire; and the long disputed succession of Cleves and Juliers with the restitution of Lorraine was referred to arbitration. The pacification of Passau was confirmed; it was further agreed that the Calvinists should enjoy the same privileges with the Lutherans; that the imperial chamber should consist of twenty-six Catholic members and twenty-four Protestants; that the Emperor should receive six Protestants into his aulic council; that an equal number of Catholic and Protestant deputies should be chosen for the Diet, except when it should be convoked for the regulation of points that might concern one only of the two religions; that all the deputies should be Protestants if the objects of discussion should belong to their religion, and Catholics in the opposite case. (Russell, Hist. Mod. Eur. ii. 195; Dumont, Corps Diplomat. tome vi.; Pfeffel, Abrégé Chronol.)

1 Vattel, Droit des Gens, lib. iv. ch. ii. § 13. Consent to a treaty, whether written or oral, must be distinct. No supposition or consensus

§ 5. Another question of much greater practical difficulty is the limitation of the treaty-making power, expressed or implied, in the fundamental law or constitution of the State. The general authority to make treaties of peace, necessarily implies the power to stipulate the conditions of peace; and among these may properly be involved the cession of the territory and other property of the State, as well as the right of sovereignty or jus eminens over private property. If then,' says Wheaton, 'there be no limitation expressed in the fundamental laws of a State, or necessarily implied from the distribution of its constitutional authorities, on the treaty-making power in this respect, it necessarily extends to the alienation of public and private property, when deemed necessary for the national safety or policy.' 'There can be no doubt,' says Kent, '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 fictus is sufficient. A treaty is not binding which is made by a king when a prisoner. Thus Pope Clement VII. refused to ratify a treaty with the Duke Ferrara, which he had made when a prisoner, saying that it was a dishonourable thing for a man in life to ratify a matter done in his name when dead, not consistent with his honour and interest. Again, Francis I. excused himself from ratifying the treaty of Madrid on account of the inhumanity done to him by the permission of Charles V. Some of the ancient treaties of alliance were recited to be made between king and king, subjects and subjects, such as this-'that there be an universal and perpetual, true and sincere peace and amity between the most Christian king of France and the king of Great Britain, their heirs and successors, and between the kingdoms, States, and subjects of both.' (See Phil. Comines, lib. ii. cap. 8.)

It has been said (4 Inst. 152) that in England all leagues or safe-conducts should be of record—that is, they ought to be enrolled in Chancery or in the Wardrobe, as being matters of State, that each subject may know who are in amity with the king and who are not, who are enemies and can maintain no action, and who are in league and may have actions personal.

It has been said that if hostages are given to support a treaty, he that gives them is freed from his promise or good faith, for the receiver of the hostages has relinquished the assurance of him who pledged his word.