has ceased, however usual and desirable, cannot be said to be absolutely necessary for the restoration of Peace. War may silently cease and Peace be silently renewed. So ended the War between Sweden and Poland in the year 1716, namely, by a reciprocal intermission of hostilities; it was not till after the lapse of ten years that Peace was formally and de jure recognized as subsisting between the two kingdoms.(?)

In such a state of things the presumption of law would be, that both parties had agreed that the status quo ante bellum should be revived. Yet in the absence of any formal declaration it would not be concluded that the claims which had given occasion to the War, or which had grown out of the War, were abandoned, but they must be considered as in abeyance. In fact, it is as difficult to predicate the consequen[*641] ces, *legal and practical, of such a state of things, as it would be to predicate the consequences of a treaty of Peace which contained no clause of amnesty.(m)

Since, Grotius observes, it is not usual for Belligerents to make Peace on the basis of a confession from one of them that he is in the wrong, "ea sumenda est in pactis interpretatio quæ partes quoad belli justitiam quam maximè æquet." This end is to be effected by one of two means, viz. :—(1.) Either by an agreement that the possession which has been disturbed by the War, shall be restored, which is expressed by the wellknown international formula of the status quo ante bellum; or (2.) by an agreement that matters shall remain as they were at the period when the War is ended; and this arrangement is expressed by the formula, often little understood, though familiar enough in its application of uti possidetis, or, as Grotius says, "ut res maneant quo sunt loco; quod Græci dicunt ἔχοντες ἃ ἔχουσι.”(n) To these two predicaments the learned Samuel Cocceius adds two more,-namely, (3.) where a treaty is made, in which "nihil dictum est de damnis, injuriis et debitis," or (4.) in which "paci clausula generalis amnestiæ adjicitur.(0)

[*642]

*DXII. Secondly. As to the unconditional submission (deditio) of one Belligerent to another.

Instances of such prostration are abundant in the pages of classical history,(p) and are not altogether wanting even in very modern times.

(1) Ibid. De Steck., Essais sur divers Sujets de Polit. p. 2.
(m) Heffters, ubi supra. H. Cocceius, De Postliminio et Amnestiâ.

(n) Grot., 1. iii. c. xx. ss. 11, & 2. Vide post, Lord Grenville's Remarks on the Treaty of Amiens.

(0) Grotius, Illustratus, v. p. 502, (ed. Hala, 1748.)

The Times, Debate in the House of Commons, Friday, March, 14, 1856.-"The Crimean Tartars.-Mr. Holland asked the First Lord of the Treasury whether the attention of her Majesty's Government had been drawn to the position of the Crimean Tartars in the event of peace being established, and the allied forces, towards whom they had shown themselves favourably disposed, being recalled?— Lord Palmerston: When a year is terminated, in the course of which the armies of one country have occupied the territory of another, it is the invariable practice that there shall be an agreement between the parties to insure a complete amnesty to all subjects of either Power who may have been at all committed in the progress of hostilities; and should peace be now concluded, an arrangement of that kind will, of course, be concluded between the Belligerents."

(p) The classical reader will find the formal language of a deditio in Livy: Itaque populum Campanum urbemque Capuam, agros, delubra Deûm, divina

But the most unconditional submission would be holden according to the principle of International Law to imply a retention of the common rights of humanity, (q) and, between Christian states, of Christian humanity :(r) any infringement of these rights would be beyond the moral competence of the conqueror.

The subject of the incorporation and of the extinction of a state has been considered in an early part of the present work. (s)

DXIII. Thirdly. We have to consider the termination of War by the conclusion of a formal Treaty of Peace between the Belligerents.

The examination of this part of the subject must embrace the following considerations:

I. By whom the overtures of Peace may be made.

II. Where, or within the limits of whose territory, the negotiations may be opened and carried on.

III. How, or according to what forms.

*IV. When the Treaty of Peace takes effect, or the date from

which the operation of it becomes binding upon the public rela- [*643]

tions of states, and the private relations of individuals.

DXIV. I. First, then, to consider by whom the overtures of peace may be made.

These overtures may be made by one of the Belligerent States, by a Neutral State acting as the common friend of both litigants, or, by a state which is rather an auxiliary than an ally, or which-to speak as correctly as the nature of the distinction permits-has, as it were, been the passive ally of one Belligerent, without positively declaring war against the other Belligerent, without withdrawing its Ambassador from his Court, and indeed while continuing with this Belligerent, formally at least, the relations of amity.

This third kind of status is sometimes designated in the books as the status of an auxiliary,(t) as distinguished from an ally.

A Neutral power may also act as a mediator, or may merely interpose its good offices. Between the two positions there is a marked difference, inasmuch as the former implies the consent of both Belligerents; the latter may be without the consent of either, or with the consent of only one. The good offices of a Neutral State may be accepted and its mediation refused. In the War with Sweden in 1742, Russia accepted the good offices and refused the mediation of France.

The mediator must not be counfounded with the arbitrator, whose character and functions have been discussed in an earlier part of this volume.(u)

DXV. II. Where, or within the limits of whose territory, may the negotiations be carried on?

humanaque omnia in vestram, Patres Conscripti, populique Romani ditionem dedimus; quiquid deinde patiemur dediticii vestri passuri."—L. vii. c. xxxi. He will find the rite and manner in Cæsar, De Bello Civili, 1. iii. ss. 97, 98. (9) Heffters, p. 312, s. 178.

(r) Vide ante, Vol. I.

(8) Vide ante, Vol. I. pp. 147, 157, 158. P. 142, art. vi. of the Constitution of the N, A. United States, on this subject.

(1) De Martens, Essai sur les Armateurs, s. 50.

(u) Vide ante, p. 2.

This question is often adjusted by reference to considerations of local convenience.

*It ought of course to be the object of all parties to fix upon [*644] a spot which may be of the readiest access to the respective Courts of the Belligerents. But this consideration is often overborne by animosities growing out of or connected with the War, which render it desirable either that some Neutral Territory should be selected, and not unfrequently some town of inconsiderable size and character within that territory. These are all considerations belonging rather to Public Policy than to Public International Law.

All that the latter seems to require is, that the place of negotiation shall be clearly and definitively agreed upon before the negotiations themselves are opened. In the case of arbitration, indeed, the Court of the arbiter(x) is, for obvious reasons, the proper locality of the tribunal before which states agree to argue their causes.

DXVI. III. How, or according to what forms, are the negotiations to be carried on?

There are no necessarily fixed or unalterable rules upon this subject, apart from those which flow from the respect due to the equality and dignity of states.(y) If it should happen that any question would be likely to arise with respect to these forms, they are the subject of agreement before the substance of the Treaty is entered upon. The time has gone by when one ambassador gravely and vigilantly observed, as is said to have been the case at the Treaty of Ryswick, the number of steps backwards or forwards made by the other ambassadors.

DXVII. IV. We have now to consider when the Treaty of Peace takes effect, or the date from which the operation of it becomes binding, both upon the public relations of states, and upon the private relations of individual members of states.

The exact period from which the public Treaty *begins to [*645] operate is, as in the case of private contracts, the day upon which it has passed through all the necessary forms and been ratified: from that instant all hostilities ought to cease, unless indeed a particular day has been specified for the beginning of the Peace.(z)

Vattel is of opinion that the Treaty does not bind the subjects of states until it has been duly notified to them. (a) The extent to which this opinion is adopted by the practice of states will be seen in the following remarks:

DXVIII. According to the doctrine of the best jurists, the effect of

(y) Vide ante, Vol. II. p. 33.

(x) Vide ante, pp. 2-7. (z) "Au surplus les engagemens datent communément du jour de l'échange des ratifications, à moins d'une stipulation contraire."-De Rayneval, ii. p. 113. Vattel, 1. iv. c. iii. p. 24. Ib., I. ii. c. xii. p. 156. House of Commons, 31 March, 1856 (Times, April 1, 1856.)—" Lord Palmerston.-The House is perfectly aware, from the Gazette,' that yesterday, at 2 o'clock, a Treaty of Peace was signed at Paris. The House will have seen by the announcement in the 'Gazette,' that it was determined by the Congress that the particular conditions of the Treaty should not be made public until the ratifications had been exchanged. And that, indeed, is the usual course, for it is a mark of obvious deference to the Powers who are parties to the Treaty."

(a) L. iv. c. iii. p. 24. Heffters, pp. 183, 318.

+

Peace, once contracted, being to render unlawful every act of force or violence between states, if a capture be made after the stipulation is completed, though by persons ignorant of its completion, it must, vi pacis, be restored, (b) "sublatum enim jam erat belli jus."(c)

For Peace (says the author just cited) is considered to be broken "non modo si toti corpori civitatis, sed et si subditis vis armata inferatur nimirùm sine novà causâ ;" and for this grave and excellent reason, ❝nam ut omnes subditi *tuti sint pax initur est enim pax actus civitatis pro toto et pro partibus."(d)

:

[*646] DXIX. Abreu, however, is strongly in favour of the lawfulness of the prize, and maintains stoutly the rights of the captor. (e) He was acting under a lawful commission; till that commission was directly or by clear implication revoked, it was his right and duty to act under it. At the time of the capture that commission was not so revoked; the capture was therefore legal. To the argument that the conclusion of the Peace can retrospectively affect the prize, he answers that a jus superveniens can never by retroaction. (f) affect the jus tertii, which is the right of the captor in this supposed case.

The answer to the argument of Abreu appears to be that the indemnification of the captor should proceed from the state to which he belongs (g) and that though individuals are not deemed criminals for continuing hostilities after their cessation has has been agreed upon, through ignorance of that cessation, yet that they are civilly responsible before the tribunals of International Law.(h) When a place is ex[*647] empted from hostility by articles of Peace it is the duty of Governments to apprise with due diligence their subjects of the fact; and to indemnify them for acts done in ignorance of that Peace.(i)

But it is the actual wrongdoer who is to answer in judgment: the person from whom the injury has been received cannot be passed over in order that it may be fixed upon another person on the ground of a consequential responsibility. So, if a captain, acting under the orders of an

(b) "Effectus pacis contractæ est, ut omnis vis tollatur: adeo, ut si post stipulatam pacem ab ignorantibus aliquid captum vel occupatum sit, vi pacis id restitui debeat." S. Cocceius, vol. v. p. 502. (1. vii. c. vii. s. 864.)

(c) "Quæ post perfectas pactiones capta sunt reddenda satis constat, sublatum enim jam erat belli jus."-Grot., 1. iii. c. xx. s. 20.

(d) Grot., 1. iii. c. xx. s. 32.

(e) "Si la Pressa hecha despues de ajustada la Paz, no haviendo llegado esta á noticia del armador, ó Corsario, que la hizo, ni en la realidad, ni en el concepto del derecho sera legitima, ó nó."-Abreu, c. xxii.

(f) The doctrine of the Roman Law, that in certain transactions, conditio existens retrotrahitur ad initium negotii, is alluded to by Vinnius in Inst., 1. i. tit. De Nuptiis, s. 13, n. 3, "Falsum enim est, quod præsupponunt legitimationis hujus hanc esse vim; ut retrotrahatur tempus nuptiarum ad tempus nativitatis."

(g) Grot., 1. iii. c. xxi. s. 5: "Illud obiter addam, inducias et si quid est simile ipsos contrahentes statim obligare ex quo contractus absolutus est: at subditos utrinque obligari incipere, ubi induciæ acceperunt forman legis, cui inest exterior quædam publicatio: quâ factâ statim quidem incipit habere vim obligandi subditos, sed ea vis, si publicatio uno tantum loco facta sit, non per omnem ditionem eodem momento se exserit, sed per tempus sufficiens ad perferendam ad singula loca notitiam. Quare si quid interea a subditis contra inducias factum sit, ipsi a pœnis immunes erunt neque tamen eo minus contrahentes damnum resarcire debebunt." (h) 1 Kent, Comment., p. 170. (i) The Mentor, 1 Robinson's Rep., p. 171.

admiral, be the seizor, he, and not the admiral, must be called as the immediate wrongdoer, to adjudication.(k)

DXX. It may happen that when a period has been fixed by Treaty for the cessation of hostilities, within or at a specified locality, and before this period has arrived, but with a knowledge of the Peace, a capture has been made. In such a case is the capture lawful? Jurists have entertained different opinions upon this subject. Mr. Chancellor Kent() adopts the opinion of Emerigon, (m) that it would be unlawful; and his reasoning, viz., that if a constructive knowledge of the Peace, after the time limited in different parts of the world, renders the capture void, much more ought actual knowledge of the Peace to produce that effect. It appears to the writer of these pages that this reasoning is sound and ought to govern the practice of states.(n)

DXXI. The effect of constructive knowledge has undergone considerable discussion in the French Prize Courts. It arose on the capture of the British ship Swineherd(o) by the French privateer Bellone in 1801. The Swineherd was carried into the Isle of France and condemned as prize. An appeal was instituted in the Conseil des Prises at [*648] Paris: that tribunal confirmed the judgment of the Court in the Isle of France. We are indebted to M. Merlin(p) for the report of the case. Unfortunately we are not indebted to him for the expression of his own opinion, which that learned and laborious jurist expresses his determination to withhold, when he introduces the case to our notice. He reports, however, at length the argument of the Advocate-General, M. Collet Descotils, in favour of the legality of the capture. The case depended in some measure upon the 11th article of the Preliminary Articles of the Peace of Amiens: it was decided, rightly or wrongly, that the French Privateer was entitled to its prize, the Swineherd, upon a variety of grounds, the principal of which appear to have been that the capture was made at a period anterior to the time fixed for restitution; that it was sheltered by the Preliminary Article which has been mentioned; that there was, on the part of the privateer, "le défaut de connaissance suffisante de la cessation de toute hostilité."(q)

The exposition of the law upon this latter point by the French crown lawyer is sound, whether the application of it to the case before him were correct or not.

"J'en reviens à l'opinion d'Emérigon et de Valin; je pense, comme eux, qu'un corsaire qui a une connaissance positive de la paix avant de rencontrer un bâtiment qui auparavant était ennemi, n'a pas le droit de l'arrêter, hors toutefois le cas d'une legitime défense, encore bien que les délais pour la validité des Prises, ne soient pas encore expirés.

"Mais qu'entend-on par connaissance positive de la paix? Ces auteurs en parlent, mais aucun ne la définit. Je vais tâcher de le faire d'après les principes de la raison, et de supplêer par-là au silence qu'ils gardent sur ce point.

(k) The Mentor, 1 Robinson's Rep., p. 171.
(1) Comment., i. p. 172.

(m) Traité des Ass., c. xii. s. 19.

(n) Valin, Tr. des Prises, c. iv. ss. 4, 5.

(0) Le Porcher.

(p) Rep. tome xxv. (xiii.) tit. Prise Maritime, s. 5, p. 115: "En quel temps peut être exercé le droit de Prise Maritime."

(2) Ib. p. 130.