hibition, or by necessary implication from the nature of the constitution. Thus, even under the constitution of the old French monarchy, the States-General of the kingdom declared that Francis I. had no power to dismember the kingdom, as was attempted by the treaty of Madrid, concluded by that monarch; and that not merely upon the ground that he was a prisoner, but that the assent of the nation, represented in the States-General, was essential to the validity of the treaty. The cession of the province of Burgundy was therefore annulled, as contrary to the fundamental laws of the kingdom; and the provincial States of that duchy, according to Mezeray, declared, that "never having been other than subjects of the crown of France, they would die in that allegiance; and if abandoned by the king, they would take up arms, and maintain by force their independence, rather than pass under a foreign dominion." But when the ancient feudal constitution of France was gradually abolished by the disuse of the States-General, and the absolute monarchy became firmly established under Richelieu and Louis XIV., the authority of ceding portions of the public territory, as the price of peace, passed into the hands of the king, in whom all the other powers of government were concentrated. The different constitutions established in France, subsequently to the Revolution of 1789, limited this authority in the hands of the executive in various degrees. The provision in the Constitution of 1795, by which the recently conquered countries on the left bank of the Rhine were annexed to the French territory, became an insuperable obstacle to the conclusion of peace in the conferences at Lisle. By the Constitutional Charter of 1830, the king is invested with the power of making peace, without any limitation of this authority, other than that which is implied in the general distribution of the constitutional powers of the government. Still it is believed that, according to the general understanding of French public jurists, the assent of the Chambers, clothed with the forms of a legislative act, is considered essential to the ultimate validity of a treaty ceding any portion of the national territory. The extent and limits of the territory being defined by the municipal laws, the treaty-making power is not considered sufficient to repeal those laws.249

[249 This state of things is altered by the establishment of the Empire, after the Revolution of 1848. See note 247, suprà.]—D.

Treatymaking power in Great Britain.

§ 542. In Great Britain, the treaty-making power, að a branch of the regal prerogative, has in theory no limits; but it is practically limited by the general controlling authority of Parliament; whose approbation is necessary to carry into effect a treaty, by which the existing territorial arrangements of the empire are altered.

Treaty- § 543. In confederated governments, the extent of the making power in treaty-making power, in this respect, must depend upon confederacies. the nature of the confederation. If the union consists of a system of confederated States, each retaining its own sovereignty complete and unimpaired, it is evident that the federal head, even if invested with the general power of making treaties of peace for the confederacy, cannot lawfully alienate the whole or any portion of the territory of any member of the union, without the express assent of that member. Such was the theory of the ancient Germanic Constitution; the dismemberment of its territory was contrary to the fundamental laws and maxims of the empire; and such is believed to be the actual constitution of the present Germanic Confederation. This theory of the public law of Germany has often been compelled to yield in practice to imperious necessity; such as that which forced the cession to France of the territories belonging to the States of the empire, on the left bank of the Rhine, by the treaty of Luneville, in 1800. Even in the case of a supreme federal government, or composite State, like that of the United States of America, it may, perhaps, be doubted how far the mere general treaty-making power, vested in the federal head, necessarily carries with it that of alienating the territory of any member of the union without its consent.250

[250 Treaty-making Power under the United States Constitution. The disputed northeastern boundary between Great Britain and the United States involved the territory of the State of Maine, in which Massachusetts also had an interest. The line estab lished by the Ashburton Treaty, of 1842, differed from that claimed by Maine, and ceded parts over which Maine had exercised jurisdiction. Still, the treaty was a sovereign act of the United States with Great Britain, and operated an international settlement. Neither of the States of Maine or Massachusetts was in any way party to it, or named in it, except in the fifth article, in which the United States agrees to receive and pay over to those States certain portions of a common fund established by consent, for the care of the territory while under dispute, and to pay to those States a further sum 'on account of their assent to the line of boundary described in this treaty." Lord Ashburton disclaimed all responsibility of Great Britain for any matters between the United States and the individual States referred to in that article. Commissioners on the part of Maine and Massachusetts gave their assent to the

Effects of

a treaty of peace.

§ 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 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

by a treaty

§ 546. The restoration of the conquered territory to its Effect of original sovereign, by the treaty of peace, carries with it of territory 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.