Effects of

a treaty of

§ 544. The effect of a treaty of peace is to put an end to the war, and to abolish the subject of it. It is an peace. agreement to waive all discussion concerning the respective rights and claims of the parties, and to bury in oblivion the original causes of the war. It forbids the revival of the same war by resuming hostilities for the original cause which first kindled it, or for whatever may have occurred in the course of it. But the reciprocal stipulation of perpetual peace and amity between the parties does not imply that they are never again to make war against each other for any cause whatever. The peace relates to the war which it terminates; and is perpetual, in the sense that the war cannot be revived for the same cause. This will not, however, preclude the right to claim and resist, if the grievances which originally kindled the war be repeated-for that would furnish a new injury and a new cause of war, equally just with the former. If an abstract right be in question between the parties, on which the treaty of peace is silent, it follows, that all previous complaints and injury, arising under such claim, are thrown into oblivion, by the amnesty, necessarily implied, if not expressed; but the claim itself is not thereby settled either one way or the other. In the absence of express renunciation or recognition, it remains open for future discussion. And even a specific arrangement of a matter in dispute, if it be special and limited, has reference only to that particular mode of asserting the claim, and does not preclude the party from any subsequent pretensions to the same thing treaty before it was concluded by the government; but that was an internal matter, and did not concern Great Britain. Neither is the fact that the United States chose to secure the consent of Massachusetts and Maine, conclusive upon the much-canvassed question of its constitutional power to have made the treaty without their assent. (United States Laws, viii. 554. Webster's Works, vi. 272, 289. Opinions of Attorneys-General, vi. 756. Kent's Comm. i. 166, 167. Woolsey's Introd. § 99. Halleck's Intern. Law, 848. The schooner Peggy, Cranch, i. 103. Ware v. Tilton, Dallas, iii. 199.)

If a treaty requires the payment of money, or any other special act, which cannot be done without legislation, the treaty is still binding on the nation; and it is the duty of the nation to pass the necessary laws. If that duty is not performed, the result is a breach of the treaty by the nation, just as much as if the breach had been an affirmative act by any other department of the government. Each nation is responsible for the right working of the internal system, by which it distributes its sovereign functions; and, as foreign nations dealing with it cannot be permitted to interfere with or control these; so they are not to be affected or concluded by them, to their own injury. See ante, § 266, and note 139. Kent, i. 165-6. Heffter, § 84. Vattel, Droit des Gens, liv. iv. ch. 2, § 14. Halleck, 854.] — D.

on other grounds. Hence the utility in practice of requiring a general renunciation of all pretensions to the thing in controversy, which has the effect of precluding for ever the assertion of the claim in any mode. (a) 251

The treaty of peace does not extinguish claims founded upon debts contracted or injuries inflicted previously to the war, and unconnected with its causes, unless there be an express stipulation to that effect. Nor does it affect private rights acquired antecedently to the war, or private injuries unconnected with the causes which produced the war. Hence debts previously contracted between the respective subjects, though the remedy for their recovery is suspended during the war, are revived on the restoration of peace, unless actually confiscated, in the mean time, in the rigorous exercise of the strict rights of war, contrary to the milder practice of recent times. There are even cases where debts contracted, or injuries committed, between the respective subjects of the belligerent nations during the war, may become 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 the course of trade carried on under a license. In all these cases, the remedy may be asserted subsequently to the peace. (b)

Uti possidetis the basis of every treaty of

peace, unless the

contrary be

§ 545. The treaty of peace leaves every thing in the state in which it found it, unless there be some express stipulation to the contrary. The existing state of possession is maintained, except so far as altered by the expressed. terms of the treaty. If nothing be said about the conquered country or places, they remain with the conqueror, and his title cannot afterwards be called in question. During the continuance of the war, the conqueror in possession has only a usufructuary right, and the latent title of the former sovereign continues,

(a) Vattel, Droit des Gens, liv. iv. ch. 2, §§ 19-21.

[251 Kent's Comm. i. 168–9. Halleck's Intern. Law, 852. Riquelme, Derecho Pub. Intern. liv. i. ch. 2, tit. 13. As an instance, the chief cause of the war with Great Britain in 1812 was the impressment of seamen from United States merchant-vessels. The treaty of peace was silent on the subject. It may well be assumed that the understanding and practice of nations would not warrant the United States in making a new war for impressments made before the war of 1812; but the silence of the treaty leaves the United States at liberty to make any subsequent act of impressment a cause of war. The abstract right of defence against such acts, and claim of immunity for them, are not affected.]—D.

(b) Kent's Comm. i. 168.

until the treaty of peace, by its silent operation, or express provisions, extinguishes his title for ever. (a)

restoration

§ 546. The restoration of the conquered territory to its Effect of original sovereign, by the treaty of peace, carries with it of territory by a treaty the restoration of all persons and things which have of peace. been temporarily under the enemy's dominion, to their original state. This general rule is applied, without exception, to real property or immovables. The title acquired in war to this species of property, until confirmed by a treaty of peace, confers a mere temporary right of possession. The proprietary right cannot be transferred by the conqueror to a third party, so as to entitle him to claim against the former owner, on the restoration of the territory to the original sovereign. If, on the other hand, the conquered territory is ceded by the treaty of peace to the conqueror, such an intermediate transfer is thereby confirmed, and the title of the purchaser becomes valid and complete. In respect to personal property or movables, a different rule is applied. The title of the enemy to things of this description is considered complete against the original owner after twenty-four hours' possession, in respect to booty on land. The same rule was formerly considered applicable to captures at sea; but the more modern usage of maritime nations requires a formal sentence of condemnation as prize of war, in order to preclude the right of the original owner to restitution on payment of salvage. But since the jus postliminii does not, strictly speaking, operate after the peace; if the treaty of peace contains no express stipulation respecting captured property, it remains in the condition in which the treaty finds it, and is thus tacitly ceded to the actual possessor. The jus postliminii is a right which belongs exclusively to a state of war; and therefore a transfer to a neutral, before the peace, even without a judicial sentence of condemnation, is valid, if there has been no recovery or recapture before the peace. The intervention of peace covers all defects of title, and vests a lawful possession in the neutral, in the same manner as it quiets the title of the hostile captor himself. (a)

(a) Grotius, de Jur. Bel. ac Pac. lib. iii. cap. 6, §§ 4, 5. Vattel, Droit des Gens, liv. iii. ch. 13, §§ 197, 198. Martens, Précis du Droit des Gens, liv. iii. ch. 4, § 282. Klüber, Droit des Gens Moderne de l'Europe, §§ 254-259.

(a) Vattel, liv. iii. ch. 14, §§ 209, 212, 216. The Purissima Conception, Robinson's 'Adm. Rep. vi. 43. The Sophia, Ib. 138.

From

what time

§ 547. A treaty of peace binds the contracting parties the treaty of from the time of its signature.252 Hostilities are to cease peace takes effect. between them from that time, unless some other period be provided in the treaty itself. But the treaty binds the subjects of the belligerent nations only from the time it is notified to them. Any intermediate acts of hostility committed by them before it was known, cannot be punished as criminal acts, though it is the duty of the State to make restitution of the property seized subsequently to the conclusion of the treaty; and, in order to avoid disputes respecting the consequences of such acts, it is usual to provide, in the treaty itself, the periods at which hostilities are to cease in different places. Grotius intimates an opinion that individuals are not responsible, even civiliter, for hostilities thus continued after the conclusion of peace, so long as they are ignorant of the fact, although it is the duty of the State to make restitution, wherever the property has not been actually lost or destroyed. But the better opinion seems to be, that wherever a capture takes place at sea, after the signature of the treaty of peace, mere ignorance of the fact will not protect the captor from civil responsibility in damages; and that, if he acted in good faith, his own government must protect him and save him harmless.253 When a place or country is exempted from hostility by articles of peace, it is the duty of the State to give its subjects timely notice of the fact; and it is bound

[252 It would be more exact to say, "from the time at which the treaty is concluded." If the political constitution of a party to the treaty requires ratification by a body in the State, the treaty is conditional until so ratified; but the ratification may relate back to the date of signature. Often the time of the exchange of the treaties, after all the forms are complied with, is the time fixed upon for it to take effect; and, in cases of doubt, as the constitutions of States vary, it is usual to agree upon a time or event or act which shall decide its date of operation. Kent's Comm. i. 170. Halleck's Intern. Law, 855. Vattel, Droit des Gens, liv. iii. §§ 24, 25. Phillimore's Intern. Law, iii. § 517. Heffter, § 183. Wildman, i. 145. Rayneval, tom. ii. 113. Riquelme, Derecho Pub. Intern. liv. i. tit. 1, ch. 13. Bello, Derecho Intern. ch. 9, § 6, p. 2. United States v. Reynes, How. ix. 127. Davis v. Concordia, How. ix. 280. Elsebe, Rob. v. 189. Eliza Ann, Dodson, i. 244.]—D.

[253 This arises from the difference between private suits and public criminal proceedings. The latter are for wrongs done to the commonwealth, by breaches of the peace, or other injuries of a public nature, and are based on an actual or constructive criminal intent. But an individual is bound to make good to another a loss he may have occasioned him, although done in ignorance, by mistake, or even if with friendly intentions. If the act was not justified and authorized by law, the doer must compensate the sufferer, without regard to his intent or motive. But, in his relations to his own government or the public, the motive and intent is the chief inquiry.] -D.

in justice to indemnify its officers and subjects who act in ignorance of the fact. In such a case it is the actual wrong-doer who is made responsible to the injured party, and not the superior commanding officer of the fleet, unless he be on the spot, and actually participating in the transaction. Nor will damages be decreed by the prize court, even against the actual wrong-doer, after a lapse of a great length of time. (a)254

of hostilities,

§ 548. When the treaty of peace contains an express Cessation stipulation that hostilities are to cease in a given place at after treaty. a certain time, and a capture is made previous to the expiration of the period limited, but with a knowledge of the peace on the part of the captor, the capture is still invalid; for since constructive knowledge of the peace, after the periods limited in the different parts of the world, renders the capture void, much more ought actual knowledge of the peace to produce that effect. It may, however, be questionable whether any thing short of an official notification from his own government would be sufficient, in such a case, to affect the captor with the legal consequences of actual knowledge. And where a capture of a British vessel was made by an American cruiser, before the period fixed for the cessation of hostilities by the treaty of Ghent, in 1814, and in ignorance of the fact, but the prize had not been carried infra præsidia and condemned, and while at sea was recaptured by a British ship of war, after the period fixed for the cessation of hostilities, but without knowledge of the peace, it was judicially determined, that the possession of the vessel by an American cruiser was a lawful possession, and that the British recaptor 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 the contrary be expressly stipulated. Peace gives a final and perfect title to captures without condemnation, and as it forbids all force, it destroys all hope of recovery, as much as if the

(a) The Mentor, Robinson's Adm. Rep. i. 121.

[254 See the strictures of Kent on the results of the British decisions in reference to the Mentor, and Admiral Digby's captures. Kent's Comm. i. 171. Also, Halleck's Intern. Law, 857.] — D.