Lapas attēli

cumstance, and then he remains under the same protection. The case is different with an enemy who comes into the country of his adversary during a truce. He, at his own peril, takes advantage of a general liberty, allowed by the suspension of hostilities, and, at the expiration of the truce, the war may freely take its course, without being impeded by any claims of such a party for protection.a

It is stated that a safe conduct may even be revoked by him who granted it, for some good reason; for it is a general principle in the law of nations, that every privilege may be revoked, when it becomes detrimental to the state. If it be a gratuitous privilege, it may be revoked purely and simply; but if it be a purchased privilege, the party interested in it is entitled to indemnity against all injurious consequences, and every party affected by the revocation is to be allowed time and liberty to depart in safety.

cense to trad e.

The effect of a license given by the enemy, to the sub- Enemy's li jects of the adverse party, to carry on a specified trade, has already been considered, in respect to the light in which it is viewed by the government of the citizens accepting it. A very different effect is given to these licenses by the government which grants them, and they are regarded and respected as lawful relaxations or suspensions of the rules of war. It is the assumption of a state of peace to the extent of the license, and the act rests in the discretion of the sovereign authority of the state, which alone is competent to decide how far considerations of commercial and political expediency may, in particular cases, control the ordinary consequences of war. In the country which grants them, licenses to carry on a pacific commerce are stricti juris, as being exceptions to a general rule; though they are not to be construed with pedantic accuracy, nor will every

a Vattel, b. 3. c. 17. sec. 273, 274.
b Vattel, b. 3. c. 17. sec. 276,
c Supra, p. 85.

small deviation be held to vitiate the fair effect of them. An excess in the quantity of goods permitted to be imported, might not be considered as noxious to any extent; but a variation in the quality or substance of the goods might be more significant. Whenever any part of the trade assumed. under the license, is denuded of any authority under it, such part is subject to condemnation.

Another material circumstance in all licenses, is the limitation of time in which they are to be carried into effect, for what is proper at one time, may be very unfit and mischievous at another time. Where a license was limited to be in force until the 29th of September, and the ship did not sail from the foreign port until the 4th of October, yet, as the goods were laden on board by the 12th of September, and there was an entire bona fides on the part of the person holding the license, this was held to be legal. But where a license was to bring away a cargo from Bordeaux, and the party thought proper to change the license, and accommodate it to another port in France, it was held, by the English admiralty, in the case of the Twee Gebroeders, that the license was vitiated, and the vessel and cargo were condemned. It has also been held, that the license must be limited to the use of the precise persons for whose benefit it was obtained. The great principle in these cases is, that subjects are not to trade with the enemy without the special permission of 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

a The Cosmopolite, 4 Rob. 8. Grotius, b. 3. c. 21. sec. 14. lays down the general rule, that a safe conduct, of which these licenses are a species, are to be liberally construed; lara magis quam stricta interpretatio admittenda est. And licenses were eventually construed with great liberality in the British Courts of Admiralty. Judge Croke, in the case of the Abigail, Stewart's Vice-Adm. Rep. 360.

b Schroeder v. Vaux, 15 East, 52, 3 Campb, N. P. 83. c 1 Edw. 95.

be intrusted with an exemption from the ordinary restrictions of a state of war.


(3.) The object of war is peace; and it is the duty of Treaties 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 honourable 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. 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. 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 interests, 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

a The Jonge Johannes, 4 Rob. 263. See the law 'as to licenses collected in 1 Holt's N. P. Rep. 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.

bind the national faith in its discretion; for the power to make treaties of 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 argely 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. In the case of the schooner Peggy, the

a Vattel, b. 1. c. 20. sec. 244. Ibid. c. 21. sec. 262.-b. 4. c. 2. sec. 11, 12,

b 1 Cranch, 103.

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 national purposes. So, in the case of Ware v. Hylton, 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 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. 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 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

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

b B. 3. c. 20. sec. 7.

c Vattel, b. 4. c. 2. sec. 14.

d Ibid. b. 4. c.2. sec. 16.

« iepriekšējāTurpināt »