of peace

new war.

injured party elects so to consider it. This may, however, Treaties be prevented by an express provision, that if one article how afbe broken, the others shall, nevertheless, continue in full fected by force'. There is a strong instance in the history of the United States of the annihilation of treaties by the act of the injured party. In 1798, the Congress of that country' 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.

tions of

by hosti

As a general rule, the obligations of treaties are dissi- Obligapated by hostility. But if a treaty contains any stipula- treaties tions which contemplate a state of future war, and make dissipated provision for such an exigency, they preserve their force lity. and obligation when the rupture takes place. All those duties of which the exercise is not necessarily suspended by the war, subsist in their full force. The obligation of keeping faith is so far from ceasing in time of war, that its efficacy becomes increased, from the increased necessity of it. What would become of prisoners of war, and the terms of capitulation of garrisons and towns, if the word of an enemy was not to be relied on? The faith of promises and treaties which have reference to a state of war, is to be held as sacred in war as in peace, and among enemies as among friends. All the writers on public law admit this position, and they have never failed to recommend the duty and the observance of good faith, by the most powerful motives, and the most pathetic and eloquent appeals which could be addressed to the reason and to the moral sense of nations. The tenth article of the treaty between the United States and Great Britain, in 1794, may be mentioned as an instance of a stipulation made for war. It provided, that debts due from individuals of the one nation to those of the other, and the shares or moneys which they might have in the public funds, or in public or private banks, should never, in any event of war, be sequestered or confiscated. There can be no doubt that the obligation of that article was not impaired by the war of 1812, but remained throughout that war, and continued

1 Grotius, Bk. III. ch. xix. § 14. Vattel, Bk. Iv. ch. iv. §§ 47, 48; Bk. II. ch. xiii. § 202.

2 Act of July 7th, 1798.

3 Vattel, Bk. III, ch. 10, § 174. Grotius, Bk. III. ch. xxv.

of peace, their ob

how far

by hostility.

Treaties binding upon the two nations, until they should mutually agree to rescind the article; for it is a principle of universal ligations jurisprudence, that a compact cannot be rescinded by one dissipated party only, if the other party does not consent to rescind it, and does no act to destroy it. In the case of The Society for Propagating the Gospel v. New-Haven, the Supreme Court of the United States would not admit the doctrine that treaties became extinguished ipso facto by war, unless revived by an express or implied renewal on the return of peace. Such a doctrine is not universally true. Where treaties contemplate a permanent arrangement of national rights, or where, by their terms, they 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'.

Cessions of territory.

With respect to the cession of places or territories by a treaty of peace, though the treaty operates from the making of it, it is a principle of public law, that the national character of the place agreed to be surrendered by treaty, continues as it was under the character of the ceding country, until it be actually transferred. Full sovereignty cannot be held to have passed by the mere words of the treaty, without actual delivery. To complete the right of property, the right to the thing, and the possession of the thing, must be united. This is a necessary principle in the law of property in all systems of jurisprudence. There must be both the jus ad rem and the jus in re, according to the distinction of the civilians, which Barbeyrac (though without reason) says they borrowed from the canon law. This general law of pro

1 Society for Propagating the Gospel v. New-Haven, 8 Wheaton, 494, and Sutton v. Sutton, 1 Russ. and Mylne, 663, where the same principle is maintained in an English Court of Chancery.

2 There is a very good and careful discussion of the question whether the Crown has power by its prerogative alone to cede British Territory to a foreign power, by Mr Forsyth, in his Treatise on Constitutional Law. The reader will see all the cases, Parlia mentary as well as Legal, well stated and examined. "On the whole," says the learned writer, "it seems clear that the Crown cannot by its prerogative alone release subjects from their allegiance, nor e converso deprive them of the rights of British subjects." Cases and Opinions on Constitutional Law, by W. Forsyth, Q.C., p. 182. Puff. par Barbeyrac, Liv. Iv. ch. ix. § 8, note 2.

of peace. Cessions

perty applies to the right of territory no less than to Treaties other rights. The practice of nations has been conformable to this principle, and the conventional law of nations of terriis full of instances of this kind, several of them being stated by Sir Wm. Scott in the opinion which he gave in the case of the Fama'.

The release of a territory from the dominion and sovereignty of the country, if that cession be the result of coercion or conquest, does not impose any obligation upon the government to indemnify those who may suffer a loss of property by the cession. The annals of NewYork furnish a strong illustration of this position. The territory composing the state of Vermont belonged to this state; and it separated from it, and erected itself into an independent state, without the consent, and against the will, of the government of New-York. The latter continued for many years to object to the separation, and to discover the strongest disposition to reclaim by force the allegiance of the inhabitants of that state. But they were unable to do it; and it was a case of a revolution effected by force, analogous to that which was then in action between this country and Great Britain. When New-York therefore found itself under the necessity of acknowledging the independence of Vermont, a question arose before the legislature, whether they were bound in duty to make compensation to individual citizens whose property would be sacrificed by the event, because their titles to land lying within the jurisdiction of Vermont, and derived from New-York, would be disregarded by the government of that state. The claimants were

heard at the bar of the house of Assembly, by counsel, in 1787, and it was contended on their behalf, that the state was bound, upon the principles of the social compact, to protect and defend the rights and property of all its members, and that, whenever it became necessary, upon grounds of public expediency and policy, to withdraw the protection of Government from the property of any of its citizens, without actually making the utmost efforts to reclaim the jurisdiction of the country, the state was bound to make compensation for the loss. In 1 5 Rob. 106.

Vattel, Liv. 1. ch. xx. § 244. Wheaton's Elements, Part IV. ch. iv. § 2.

tory,

No obli the go

gation on

vernment to indem

nify after

cession of territory

by co

ercion.

Treaties

of peace. Cessions of terri. tory.

answer to this argument, it was stated, that the independence of Vermont was an act of force beyond the power of this state to control, and equivalent to a conquest of that territory, and the state had not the competent ability to recover, by force of arms, their sovereignty over it, and it would have been folly and ruin to have attempted it. All pacific means had been tried without success; and as the state was compelled to yield to a case of necessity, it had discharged its duty; and it was not required, upon any of the doctrines of public law, or principles of political or moral obligation, to indemnify the sufferers. The cases in which compensation had been made for losses consequent upon revolutions in government, were peculiar and gratuitous, and rested entirely on benevolence, and were given from motives of policy, or as a reward for extraordinary acts of loyalty and exertion. No government can be supposed to be able, consistently with the welfare of the whole community, and it is, therefore, not required, to assume the burthen of losses produced by conquest, or the violent dismemberment of the state. It would be incompatible with the fundamental principles of the social compact'.

This was the doctrine which prevailed; and when the act of July 14th, 1789, was passed, authorizing commissioners to declare the consent of the state to the independence of Vermont, it was expressly declared, that the act was not to be construed to give any person claiming lands in Vermont, under title from this state, any right to any compensation whatsoever from New-York.

1 See Hamilton's Works, Vol. 11. pp. 374–390.

2 See on the whole of the subject above discussed, so far as Treaties of Peace, their incidents, and effect, are concerned, Klüber, Droits des Gens, 2de Partie, Tit. II. sect. II. ch. iii. §§ 317— 329. De Cussy, Droit Maritime, Tom. 1. Liv. 1. tit. iii. § 1, p. 168 -178. Heffter, Droit des Gens, §§ 179-184, pp. 347-355, edit. 1857, par Bergson. Wheaton's Elements, Pt. Iv. ch. iv. pp. 872888, edit. by W. B. Lawrence, 1863. Halleck's International Law, ch. xxxiv. and xxxvi. Calvo, D. Int. T. 11. Partie 4ème, Livre I. §§ 1289-1315, and Bluntschli, L. vI. §§ 402-461.

CHAPTER XI.

OF OFFENCES AGAINST THE LAW OF NATIONS.

а

THE violation of a treaty of peace, or other national compact, is a violation of International Law, for it is a breach of public faith'. Nor is it to be understood that that law is a code of mere elementary speculation, without any efficient sanction. It has a real and propitious influence on the fortunes of the human race. It is a code of present, active, durable, and binding obligation. As its great fundamental principles are founded in the maxims of eternal truth, in the immutable law of moral obligation, and in the suggestions of an enlightened public interest, they maintain a steady influence, notwithstanding the occasional violence by which that influence may be disturbed. This law is placed under the protection of public opinion. It is enforced by the censures of the press, and by the moral influence of those great masters of public law, who are consulted by all nations as oracles of wisdom; and who have attained, by the mere force of written reason, the majestic character, and almost the authority, of universal lawgivers, controlling by their writings the conduct of rulers, and laying down precepts for the government of mankind. No nation can violate public law, without being subjected to the penal consequences of reproach and disgrace, and without incurring the hazard of punishment, to be inflicted in open and solemn war by the injured party. This law too is enforced by the sanctions of municipal law, and is adopted in its full extent by the law of England'. The offences which fall more immediately under

1 Vattel, Bk. II. ch. xv. § 221. Resolution of Congress of November 23rd, 1781.

2 Blackstone, Vol. IV. ch. v. pp. 66-68, and Stephen's Comm. Vol. IV. ch. viii. pp. 215-216.