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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. 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. 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. 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. 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 obli
a Sir William Scott, The Eliza Ann, 1 Dodson, 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.
e Sir William Scott, The Molly, 1 Dodson's Adm. Rep. 396. d Vallel, b. 4. c. 2. sec. 19.
vion, 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 treaty wanted an express concession or renunciation of the claim itself."
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. During war, the conqueror has only a usufructuary right to the territory he has subdued, 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 for ever."
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. 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. This would be the case if the debt between them was contracted, or the injury was committed, in a neutral country.e
A treaty of peace binds the contracting parties from the The time moment of its conclusion, and that is understood to be from take effect.
a Vattel, b. 4. c. 2. sec. 19, 20.
b Sir William Scott, 1 Dodson, 452. Vattel, b. 3. c. 13. sec. 197, 198. Ibid. b. 4. c. 2. sec. 1. Grotius, lib. 3. c. 6. sec. 4, 5. Mably's Droit de l'Europe, tom. 1. c. 2. p. 144.
c Grotius, b. 3. c. 20. sec. 16. 18.
d Crawford v. The William Penn, 3 Wash. Cir. R. 484, 1 Peters' Cir. Rep. 106. S. C.
the day it is signed. But, like a truce, it cannot affect the subjects of the nation with guilt, by reason of acts of hostility subsequent to the date of the treaty, provided they were committed before the treaty was known. All that can be required in such cases is, that the government make immediate restitution of things captured after the cessation of hostilities; and to guard against inconvenience from the want of due knowledge of the treaty, it is usual to fix the periods at which hostilities are to cease at different places, and for the restitution of property taken afterwards."
But though individuals are not deemed criminal for continuing hostilities after the date of the peace, so long as they are ignorant of it, a more difficult question to determine is, whether they are responsible, civiliter, in such cases. Grotius says, they are not liable to answer in damages, but it is the duty of the government to restore what has been captured and not destroyed. In the case of the American ship Mentor, which was taken and destroyed, off Delaware bay, by British ships of war, in 1783, after the cessation of hostilities, but before that fact had come to the knowledge of either of the parties, the point was much discussed; and it was held, that the injured party could not pass over the person from whom the alleged injury had been received, and fix it on the commander of the English squadron on that station, who was totally ignorant of the whole transaction, and at the distance of thirty leagues from the place where it passed. There was no instance in the annals of the prize courts, of such a remote and consequential responsibility in such a The actual wrong-doer is the person to answer in
a Vattel, b. 4. c. 3. sec. 24, 25.
Ibid. b. 2. c. 12. sec. 156, 157. Ibid. b. 3. c. 16. 2 Dallas, 40. Azuni, vol. 2. 227. Lessee of Hylton
v. Brown, 1 Wash. Cir. R. 311, 312. 342. 351.
b B. 3. c. 21, sec. 5.
c 1 Rob. 151.
judgment, and to him the responsibility (if any) is attached. He may have other persons responsible over to him, but the injured party could look only to him. The better opinion was, that though such an act be done through ignorance of the cessation of hostilities, yet mere ignorance of that fact would not protect the officer from civil responsibility in a prize court; and that, if he acted through ignorance, his own government must protect him and save him harmless. When a place or country is exempted from hostility by articles of peace, it is the duty of the government to use due diligence to give its subjects notice of the fact; and the government ought, in justice, to indemnify its subjects, who act in ignorance of the peace. And yet it would seem, from that case, that the American owner was denied redress in the British Admiralty, not only against the admiral of the fleet on that station, but against the immediate author of the injury. Sir William Scott denied the relief against the admiral; and ten years before that time, relief had equally been denied by his predecessor, against the person who did the injury. If that decision was erroneous, an appeal ought to have been prosecuted. We have then the decision of the English High Court of Admiralty, denying any relief in such a case, and an opinion of Sir William Scott, many years afterwards, that the original wrong-doer was liable. The opinions cannot otherwise be reconciled, than upon the ground that the prize courts have a large and equitable discretion, in allowing or withholding relief, according to the special circumstances of the individual case; and that there is no fixed or inflexible general rule on the subject.
If a time be fixed by the treaty for hostilities to cease in a given place, and a capture be previously made, but with knowledge of the peace, it has been a question among the writers on public law, whether the captured property should be restored. The better, and the more reasonable opinion,
is, that the capture would be null, though made before the day limited, provided the captor was previously informed of the peace; for, as Emerigon observes, since constructive knowledge of the peace, after the time limited in the different parts of the world, renders the capture void, much more ought actual knowledge of the peace to produce that effect.
a Valin, Traité des Prises, ch. 4. sec. 4. and 5. Emerigon, Traité des Ass. c. 12. sec. 19. Azuni on Maritime Law. edit. N. Y. vol. 2. p. 231.
b This point was very extensively discussed in the French prize courts, in the case of the capture of the British ship Swineherd, by the French privateer Bellona, and what was sufficient knowledge of the fact of the peace to annul the capture, was the great question. It appeared that the Bellona sailed from the Isle of France the 27th of November, 1801, before news had arrived at the island of the signing of the preliminaries of peace between France and England, and which had been signed on the 1st of October preceding. The capture was made on the 24th of February, 1802, within the period of five months from the date of the treaty; and, by the 11th article of the treaty, it was provided, that captures made in any part of the world, after five months from the ratification of the treaty, should be null and void. The capture was made in a place where a shorter period than five months did not apply. The proclamation of the King of Great Britain, of the 12th of October, 1801, announced the fact of the signature of the preliminary articles of peace; and it stated the substance of the 11th article, and ordered all hostilities to cease in the different places, from and after the respective periods mentioned in that article; and this proclamation was published in the Calcutta Gazette, and made known by the production of that paper, to the French cruiser, at several times, by distinct vessels, some days previous to the capture. This evidence of the peace was also communicated to the captain of the French vessel as soon as the capture took place, and yet, notwithstanding this notice, the English ship was taken possession of, and carried into the Isle of France, and libelled, and condemned, as lawful prize of war. The sentence of condemnation was affirmed in 1803, on appeal to the Council of Prizes at Paris, and M. Merlin has reported at large the elaborate argument and opinion of M. Collet Descotils, the Imperial Advocate General in the Council of Prizes, in favour of the captors. The