the government; and a material object of the control which the government exercises over such a trade is that it may judge

of the particular persons who are fit to be intrusted with *165 an exemption from the ordinary restrictions of a state of war. (a)

3. Treaties of Peace. The object of war is peace; and it is the duty of every belligerent power to make war fulfil its end with the least possible mischief, and to accelerate, by all fair and reasonable means, a just and honorable peace. The same power which has the right to declare and carry on war, would seem naturally to be the proper power to make and conclude a treaty of peace; but the disposition of this power will depend upon the local constitution of every nation; and it sometimes happens, that the power of making peace is committed to a body of men who have not the power to make war. In Sweden, after the death of Charles XII., the king could declare war without the consent of the national diet, but he made peace in conjunction with the senate. (b) So, by the Constitution of the United States, the President, by and with the advice and consent of two thirds of the Senate, may make peace, but it is reserved to Congress to declare war. This provision in our Constitution is well adapted (as will be shown more fully hereafter) to unite, in the negotiation and conclusion of treaties, the advantage of talents, experience, stability, and a comprehensive knowledge of national interest, with the requisite secrecy and despatch.

Treaties of peace, when made by the competent power, are obligatory upon the whole nation. If the treaty requires the payment of money to carry it into effect, and the money cannot be raised but by an act of the legislature, the treaty is morally obligatory upon the legislature to pass the law, and to refuse it would be a breach of public faith. The department of the government that is intrusted by the Constitution with the treaty-making power is competent to *bind the national *166 faith in its discretion; for the power to make treaties of

(a) The Jonge Johannes, 4 C. Rob. 263. See the law as to licenses, collected in 1 Holt, 129, note. Mr. Holt says, that Sir William Scott was, in fact, the author of the whole learning of the law relating to the system of licenses.

(b) Vattel, b. 4, c. 2, sec. 10.

1 But see 286, n. 1.

peace must be coextensive with all the exigencies of the nation, and necessarily involves in it that portion of the national sovereignty which has the exclusive direction of diplomatic negotiations and contracts with foreign powers. All treaties made by that power become of absolute efficacy, because they are the supreme law of the land.

There can be no doubt that the power competent to bind the nation by treaty may alienate the public domain and property by treaty. If a nation has conferred upon its executive department, without reserve, the right of treating and contracting with other states, it is considered as having invested it with all the power necessary to make a valid contract. That department is the organ of the nation, and the alienations by it are valid, because they are done by the reputed will of the nation. The fundamental laws of a state may withhold from the executive department the power of transferring what belongs to the state; but if there be no express provision of that kind, the inference is, that it has confided to the department charged with the power of making treaties a discretion commensurate with all the great interests and wants and necessities of the nation. A power to make treaties of peace necessarily implies a power to decide the terms on which they shall be made, and foreign states could not deal safely with the government upon any other presumption. The power that is intrusted generally and largely with authority to make valid treaties of peace can, of course, bind the nation by alienation of part of its territory; and this is equally the case, whether that territory be already in the occupation of the enemy, or remains in the possession of the nation, and whether the property be public or private. (a) In the case of the *167 Schooner Peggy, (b) the Supreme Court of the United States admitted, that individual rights, acquired by war, and vested rights of the citizens, might be sacrificed by treaty for

*

(a) Vattel, b. 1, c. 20, sec. 244; ib. c. 21, sec. 262; b. 4, c. 2, sec. 11, 12. Vattel admits that the fundamental laws of a nation may withhold the power of alienation by treaty; and it would seem, by necessary inference, to be a violation of fundamental law, for the treaty-making power, acting under such an instrument as the Constitution of the United States, to agree by treaty for the abolition or alteration of any part of the Constitution. The stipulation would go to destroy the very authority for making the treaty.

(b) 1 Cranch, 103.

national purposes. So, in the case of Ware v. Hylton, (a)1 it was said to be a clear principle of national law, that private rights might be sacrificed by treaty to secure the public safety, though the government would be bound to make compensation and indemnity to the individuals whose rights had thus been surrendered. The power to alienate, and the duty to make compensation, are both laid down by Grotius (b) in equally explicit terms. A treaty of peace is valid and binding on the nation, if made with the present ruling power of the nation, or the government de facto. Other nations have no right to interfere with the domestic affairs of any particular nation, or to examine and judge of the title of the party in possession of the supreme authority. They are to look only to the fact of possession. (c) And it is an acknowledged rule of international law, that the principal party in whose name the war is made cannot justly make peace without including those defensive allies in the pacification who have afforded assistance, though they may not have acted as principals; for it would be faithless and cruel for the principal in the war to leave his weaker ally to the full force of the enemy's resentment. The ally is, however, to be no further a party to the stipulations and obligations of the treaty, than he has been willing to consent. All that the principal can require is, that his

(a) Chase, J., 3 Dallas, 199, 245.

(b) B. 8, c. 20, sec. 7. The government of the United States declared to the British government, in reference to the disputed line of the northeastern boundary of the United States, that it had no power to cede any part of the territory claimed by the state of Maine, without the consent of that state. See the letter of Lord Palmerston to Mr. Fox, the British Minister at Washington, November 19th, 1837. Though the better opinion would seem to be, that such a power of cession does reside exclusively in the treaty-making power, under the Constitution of the United States, yet sound discretion would forbid the exercise of it without the consent of the local governments who are interested, except in cases of great necessity, in which that consent might be presumed. By the treaty made between the United States and Great Britain, in 1842, respecting the disputed boundary line between the state of Maine and the British provinces of New Brunswick and Canada, part of the lands claimed by the state of Maine were, by the line agreed on, placed within the British territory, and ceded to Great Britain; yet the United States did not act on the subject until they had previously and very wisely provided, that commissioners on the part of the states of Massachusetts and Maine should be present at the negotiation, and assenting to the boundary line agreed on.

(c) Vattel, b. 4, c. 2, sec. 14, and vide supra, [24,] 25.

Little v. Watson, 32 Maine, 214; Meade v. United States, 2 Nott & H. (Court of Claims), 224.

ally be considered as restored to a state of peace. Every alliance, in which all the parties are principals in the war, obliges the allies to treat in concert, though each one makes a separate treaty of peace for himself. (d)

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*The effect of a treaty of peace is to put an end to the war, and to abolish the subject of it. Peace relates to the war which it terminates. It is an agreement to waive all discussion concerning the respective rights of the parties, and to bury in oblivion all the original causes of the war. (a) It forbids the revival of the same war, by taking arms for the cause which at first kindled it, though it is no objection to any subsequent pretensions to the same thing on other foundations. (b) After peace, the revival of grievances arising before the war is not to be encouraged, for treaties of peace are intended to put an end to such complaints; and if grievances then existing are not brought forward at the time when peace is concluded, it is to be presumed that it is not intended to bring them forward at any future time. (c) Peace leaves the contracting parties without any right of committing hostility, for the very cause which kindled the war, or for what has passed in the course of it. It is, therefore, no longer permitted to take up arms again for the same cause. (d) But this will not preclude the right to complain and resist, if the same grievances which kindled the war be renewed and repeated, for that would furnish a new injury and a new cause of war equally just with the former war. If an abstract right be in question between the parties, the right, for instance, to impress at sea one's own subjects, from the merchant vessels of the other, and the parties make peace without taking any notice of the question, it follows, of course, that all past grievances, damages,

*

and injury, arising under such claim, are thrown into *169 oblivion, by the amnesty which every treaty implies; but the claim itself is not thereby settled, either one way or the other. It remains open for future discussion, because the

(d) Vattel, b. 4, c. 2, sec. 16.

(a) Sir William Scott, in the case of the Eliza Ann, 1 Dods. 249. Though private rights existing before the war may not be remitted by peace, the presumption is otherwise as to the rights of kings and nations. Grotius, b. 3, c. 20, sec. 19.

(b) Vattel, b. 4, c. 2, sec. 19.

(c) Sir William Scott, The Molly, 1 Dods. 396.

(d) Vattel, b. 4, c. 2, sec. 19.

treaty wanted an express concession or renunciation of the claim. itself. (a)

A treaty of peace leaves every thing in the state in which it finds it, if there be no express stipulation on the subject. If nothing be said in the treaty of peace about the conquered country or places, they remain with the possessor, and his title cannot afterwards be called in question. (b) During war, the conqueror territory he has subdued;

has only a usufructuary right to the and the latent right and title of the former sovereign continues, until a treaty of peace, by its silence, or by its express stipulation, shall have extinguished his title forever. (c)

The peace does not affect private rights which had no relation to the war. Debts existing prior to the war, and injuries committed prior to the war, but which made no part of the reasons for undertaking it, remain entire, and the remedies are revived. (d)1 There are certain cases in which even debts contracted, or injuries committed, between two subjects of the belligerent powers, during the war, are 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 a trade carried on under a license. (e) This would be the case if the debt between them was contracted, or the injury was committed, in a neutral country. (ƒ)

A treaty of peace binds the contracting parties from the moment of its conclusion, and that is understood to be from the day it is signed. (a)1 A treaty made by the *170 minister abroad, when ratified by his sovereign, relates back

(a) Vattel, b. 4, c. 2, sec. 19, 20.

(b) Vattel, b. 4, c. 2, sec. 19, 21.

(c) Sir William Scott, 1 Dods. 452; Vattel, b. 3, c. 13, sec. 197, 198; ib. b. 4, c. 2, sec. 1; Grotius, lib. 3, c. 6, sec. 4, 5; Mably, Droit de l'Europe, i. c. 2, 144. (d) Grotius, b. 3, c. 20, sec. 16, 18.

(e) Crawford v. The William Penn, 3 Wash. 484; 1 Peters, C. C. 106, s. c. (ƒ) Vattel, b. 4, c. 2, sec. 22.

(a) Vattel, b. 4, c. 3, sec. 24; Martens, Summary, b. 8, c. 7, sec. 5; in the matter of Metzger, N. Y. Legal Observer for March, 1847.

1 Alcinous v. Nigreu, 4 El. & Bl. 217, Davis v. Police Jury of Concordia, ib.

219; ante, 67, n. 1; 91, n. 1.

1 Sovereign power over territory ceded ends at the moment of cession, except for municipal purposes and keeping order, for which it continues until delivery. United States v. Reynes, 9 How. 127;

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280. But in so far as the treaty affects individual rights which were vested before it was ratified, it is not considered as concluded until there is an exchange of ratifications. Haver v. Yaker, 9 Wall. 32

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