he says, 'is an act of hostility, which, on the conclusion of peace, is to cease. Those before promised, and not yet paid, are due, and may be required as a debt. But, in order to obviate all difficulty, it is proper that the contracting parties should clearly and minutely explain their intentions respecting matters of this nature; and they are generally careful to do so.' But the correctness of the rule, as thus applied to territory restored by the treaty, may very well be doubted. There is a broad distinction between military and civil rights; the latter are acquired by contract, conveyance, or other title, and are evidenced by the ordinary proofs of title; while the latter are acquired by capture or conquest, and are evidenced by possession alone-they begin and end with possession. If the conquest is restored by the treaty of peace, the right of possession is terminated, and with it all the incidental rights of military occupation, such as the right of levying and collecting military contributions. The principle of uti possidetis being the basis of every treaty of peace, unless otherwise specially provided in the treaty itself, it follows that the conqueror (the treaty being silent on this point) is entitled to all the contributions which he has collected, by the right of military occupation of the belligerent territory now surrendered; but not to those which he has levied but failed to collect. His rights over the inhabitants of such territory are military rights, and, consequently, terrninate with the right of possession, i.e. with the treaty of peace which restores the conquest.1

§ 21. We have already spoken of the general obligations of a treaty of peace, and have shown that when made by competent authority, it is binding upon the whole State. The question has been raised, how far the plea, that the treaty of peace was obtained through intimidation, or extorted by force, may dispense with its observance. Vattel says that such a plea will not invalidate a treaty, or dispense with its observance : 'First, were this exception admitted, it would destroy, from the very foundations, all the security of treaties of peace; for there are few treaties of that kind which might not be made to afford such a pretext as a cloak for the faithless violation of them.' But, according to the opinion of the same author, there may be exceptions to this rule, as in the case of a forced 1 Vattel, suprà; vide post, chs. xxxiii. and xxxiv.

submission to conditions equally offensive to justice and to all the duties of humanity. If a rapacious and unjust conqueror subdues a nation and forces her to accept hard, ignominious, and insupportable conditions, necessity obliges her to submit; but this apparent tranquillity is not a peace: it is an oppression which she endures only so long as she wantsthe means of shaking it off, and against which men of spirit rise on the first favourable opportunity. When Fernando Cortes attacked the empire of Mexico, without any shadow of reason, without even a plausible pretext,-if the unfortunate Montezuma could have recovered his liberty by submitting to the iniquitous and cruel conditions of receiving Spanish garrisons into his towns and his capital, of paying an immense tribute, and obeying the commands of the king of Spain, will any man pretend to assert that he would not have been justifiable in seizing a convenient opportunity to recover his rights, to emancipate his people, and to expel or exterminate the Spanish horde of greedy, insolent, and cruel usurpers? No! such a monstrous absurdity can never be seriously maintained. Although the law of nature aims at protecting the safety and peace of nations by enjoining the faithful observance of promises, it does not favour oppressors.1

§ 22. A treaty of peace may revive former treaties by express stipulation, or, in certain cases, without any stipulation whatever. As a general rule, the obligations of treaties are dissipated by war, and they are regarded as extinguished and gone for ever, unless expressly revived by the treaty of peace.. But this rule is by no means universal. 'Where treaties contemplate a permanent arrangement of national rights,' says. Kent, 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.' 2

1 Vattel, Droit des Gens, liv. iv. ch. iv. § 37. It is to be feared that this just censure must be shared by many other nations; and the dealings. of the United States with the Red Indian tribes show that her administration is not always animated by the author's benevolent sentiments.

Kent, Com. on Am. Law, vol. i. p. 177; Sutton v. Sutton, 1 Russ. and M., 663; the Society for the Propagation of the 'Gospel' v. 'New Haven,' 8 Wheat. R., 494.

§ 23. The breach of a treaty of peace,' says Vattel, ‘consists in violating the engagements annexed to it, either by doing what it prohibits, or by not doing what it prescribes. Now, the engagements contracted by treaty may be violated in three different ways,-by a conduct that is repugnant to the nature and essence of every treaty of peace in general,— by proceedings which are incompatible with the particular nature of the treaty in question,- or, finally, by the violation of any article expressly contained in it.' These different modes by which a treaty of peace may be violated, are discussed by Vattel at considerable length. We shall allude here only to the last, that is, how far the breach of a single article is a breach of the whole treaty. The violation of any one article of a treaty of peace abrogates the whole treaty, if the injured party so elects to consider it; for all the articles are dependent on each other, and one is to be deemed a condition of the other. It is sometimes, however, expressly stipulated that if one article be broken, the others shall nevertheless be continued in force. But, without such stipulation, the injured party may regard the violation of a single article as overthrowing the whole treaty. We have a strong instance in our own history,' says Kent, 'of the annihilation of treaties by the act of the injured party. In 1798, the congress of the United States 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.' Publicists very properly distinguish between a void and a voidable treaty. If the treaty be violated by one of the contending parties, either by proceedings incompatible with its general spirit, or by a specific breach of any one of its articles, it becomes not absolutely void, but voidable at the election of the injured party. If he prefers not to come to a rupture, the treaty remains valid and obligatory. He may waive or remit the infractions committed, or he may demand a just satisfaction.1

§ 24. Affected delays in performing the conditions of a treaty of peace, are, says Vattel, equivalent to an express denial, and differ from it only by the artifice with which he who practises them seeks to palliate his want of faith; he adds fraud to perfidy, and actually violates the article which he 1 Vattel, suprà; Kent, Com. on Am. Law, vol. i. p. 175.

should fulfil. But, if a real impediment stands in the way, time must be allowed, for no one is bound to perform impossibilities. If the obstacle be utterly insurmountable, the other party should accept an indemnification, if the case will admit of it, and the indemnification be practicable. But if no equivalent can be offered, the intervening impossibility undoubtedly cancels the particular obligation.'

§ 25. There is,' says Kent, '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 were 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.' *

1 Vattel, Droit des Gens, liv. iv. ch. iv. §§ 50, 51.

2 Kent, Com. on Am. Law, vol. i. p. 175; the schooner Sophie,' 6 Rob., 143; Moser, J. J. Vermecht Abhandl., No. I.

270

CHAPTER X.

RIGHTS AND DUTIES OF PUBLIC MINISTERS.

1. Establishment of permanent legations-2. Distinction of diplomatic agents-3. Modern classification—4. Ambassadors, legates and nuncios-5. Envoys and ministers plenipotentiary-6. Ministers and ministers resident-7. Chargés d'affaires-8. Secretaries of embassy and legation-9. Attachés and the families of ministers-10. Messengers and couriers-11. Domestics and servants-12. General immunities of public ministers-13. Exemption from local jurisdiction-14. In case of plotting against local government-15. In case of owing allegiance-16. In case of voluntary submission to local jurisdiction-17. Extent of such civil jurisdiction-18. Extent of such criminal jurisdiction-19. Public ministers, how punished-20. Their dependents, how punished-21. Testimony of ministers, how taken-22. Exemption of minister's house and personal effects-23. His real estate and private personal property-24. Of taxes and duties-25. Freedom of religious worship-26. Letters of credence-27. Full power to negotiate-28. The minister's instructions-29. Notification of his appointment-30. Presentation and reception-31. His passports and safeconduct-32. Passage through other States-33. Termination of public missions-34. By death of minister-35. By his recall-36. By expiration of term, or by promotion-37. By change of government— 38. Dismissal of a public minister-39. Duty of respect to local authorities.

§ 1. WE have already discussed, under the head of legation and treaty, the general rights and duties of a sovereign State with respect to its diplomatic intercourse with others; we will now consider the rights and duties of the various agents which are usually employed for this purpose. As has already been. remarked, the rights of public ambassadors were known and recognised by the classic nations of antiquity, and were, in some degree, though less generally, respected during the middle ages. The increasing interest of different States, in each. other's affairs, in modern times, growing out of more extensive commercial and political relations, and the vast improvements in the means of intercourse between the citizens of different countries, has rendered expedient and necessary the institution of resident permanent legations at each other's courts. 'There is no circumstance,' says Wheaton, which marks more dis