Lapas attēli

Another question arose subsequent to the treaty of Ghent of 1814, in one of the British vice-admiralty courts, on the validity of a recapture by a British ship of war, of a British vessel captured by an American privateer. The capture made by the American cruiser was valid, being made before the period fixed for the cessation of hostilities, and in ignorance of the fact; but the prize had not been carried into port and condemned, and while at sea she was recaptured by the British cruiser after the period fixed for the cessation of hostilities, but without knowledge of the peace. It was decided, that the possession of the vessel by the American privateer was a lawful possession, and that the British cruiser could not, after the peace, lawfully use force to divest this lawful possession. The restoration of peace put an end, from the time limited, to all force, and then the general principle applied, that things acquired in war remain, as to title and possession, precisely as they stood when the peace took place. The uti possidetis is the basis of every treaty of peace, unless it be otherwise agreed. Peace gives a final and perfect title to captures without condemnation, and as it forbids all force, it destroys all hopes of recovery as much as if the vessel was carried infra præsidia, and condemned. A similar doctrine was held in the case of

ground he took, and upon which the Council of Prizes proceeded, was, that the king's proclamation, unaccompanied by any French attestation, was not that sufficient and indubitable evidence to the French cruiser, of the fact of the peace, upon which he ought to have acted, and that the period of the five months had not elapsed, within which it was lawful, in the Indian seas, to continue hostilities. The learned and venerable author of that immense work, the Repertory of Jurisprudence, says, on introducing the case, that he shall be silent on the question, and contents himself with giving the discussions, and particularly the opinion of the Advocate General, and the reasons of the Council of Prizes. See Repertoire Universel et Raisonne de Jurisprudence, par M. le Comte Merlin, tom. 9. tit. Prise Maritime, sec. 5.

a Case of the Legal Tender, Halifax, April, 1815, cited Wheaton's Dig. 302.


the schooner Sophie, and the treaty of peace had the effect of quieting all titles of possession arising from the war, and of putting an end to the claim of all former proprietors, to things of which possession was acquired by right of


If nothing be said to the contrary, things stipulated to be restored are to be returned in the condition they were taken; but this does not relate to alterations which have been the natural consequence of time, and of the operations of war. A fortress or a town is to be restored in the condition it was when taken, as far as it shall still be in that condition when the peace is made. There is no obligation to repair, as well as restore, a dismantled fortress, or a ravaged territory. The peace extinguishes all claim for damages done in war, or arising from the operations of war. Things are to be restored in the condition the peace found them; and to dismantle a fortification, or to waste a country, after the conclusion of the peace, and previous to the surrender, would be an act of perfidy.c

Treaties of every kind, when made by the competent auof treaties. thority, are as obligatory upon nations, as private contracts are binding upon individuals; and they are to receive a fair and liberal interpretation, and to be kept with the most scrupulous good faith. Their meaning is to be ascertained by the same rules of construction and course of reasoning which we apply to the interpretation of private contracts.d If a treaty should in fact be violated by one of the contract

a 6 Rob. 138.

b Vattel, b. 4. c. S. sec. 31. 34.

c lbid. b. 4. c. 3. sec. 32.

d Ibid. b. 2. c. 17. Eyre, Ch. J. in 1 Bos. & Pull. 438, 439. Opinion of Sir James Marriot, cited in 1 Chitty on Commercial Law, 44. But, if the legislative and executive branches of the government have given and asserted a construction to a treaty with a foreign power, under which it claims dominion over a territory in its possession, the courts of justice will not set up or sustain a different construction. Foster v. Neilson, 2 Peters' U. S. Rep. 253.

ing parties, either by proceedings incompatible with the particular nature of the treaty, or by an intentional breach of any of its articles, it rests alone with the injured party to pronounce it broken. The treaty, in such a case, is not absolutely void, but voidable, at the election of the injured party. If he chooses not to come to a rupture, the treaty remains obligatory. He may waive or remit the infraction committed, or he may demand a just satisfaction.

There is a very material and important distinction made by the writers on public law, between a new war for some new cause, and a breach of a treaty of peace. In the former case, the rights acquired by the treaty subsist, notwithstanding the new war; but, in the latter case, they are annulled by the breach of the treaty of peace, on which they are founded. A new war may interrupt the exercise of the rights acquired by the former treaty, and, like other rights, they may be wrested from the party by the force of arms. But then they become newly acquired rights, and partake of the operation and result of the new war. To recommence a war, by breach of the articles of a treaty of peace, is deemed much more odious than to provoke a war by some new demand and aggression; for the latter is simply injustice, but, in the former case, the party is guilty both of perfidy and injustice. The violation of any one article of a treaty, is a violation of the whole treaty; for all the articles are dependent on each other, and one is to be deemed a condition of the other; and a violation of any single article overthrows the whole treaty, if the injured party elects so to consider it. This may, however, be prevented by an express provision, that if one article be broken, the others shall, nevertheless, continue in full force. We have a strong instance in

a Grotius, b. 2. c. 15. sec. 15.-b. lamaqui, p. 355. part 4. c. 14. sec. 8. b Grotius, b. 3. c. 20. sec. 27, 28.

3. c. 20. sec. 35-38. Vattel, b. 4. c. 4. sec. 54. Vattel, b. 4. c. 4. sec. 42.


e Grotius, b. 3. c. 19. sec. 14. Vattel, b. 4. c. 4. sec. 47, 48.-b. 2.

c. 13. sec. 202.

our own history of the annihilation of treaties by the act of the injured party. In 1798, the Congress of the United Statesa 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.

As a general rule, the obligations of treaties are dissipated by hostility. But if a treaty contains any stipulations which contemplate a state of future war, and make provision for such an exigency, they preserve their force 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

a Act of July 7th, 1798.

b Vattel, b. 3. c. 10. sec. 174. Grotius, b. 3. c. 25.

by the war of 1812, but remained throughout that war, and
continues, to this day, binding upon the two nations, and
will continue so until they mutually agree to rescind the
article; for it is a principle of universal jurisprudence, that
a compact cannot be rescinded by one 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
which, by their terms, 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.


With respect to the cession of places or territories by a Cession of 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 in rem and the jus in re, according to the distinction of the civilians, and which Barbeyrac says they borrowed from the canon law. This general law of property applies to the right of territory no less than to other rights.

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