of a defence by the convoy; and, if the contest is doubtful, to escape by flight, but, if overtaken and seized, to claim the benefit of their neutrality. M. de Redtz further shows the practice of England to obtain her naval stores from Russian ports in neutral bottoms, which she convoys past the shores of Denmark. It may well be suggested, that, in a war between England and France, when England was enforcing her Orders in Council, and France her Berlin and Milan decrees, both in violation of international law,—and Denmark was an ally of France, even if the convoyed vessels had proved that their object was only to escape search by France, in fear of her decrees, still the courts of Denmark, the ally of France, could not admit their right to resist French search. In fact, a neutral, under such circumstances, cannot be heard, after capture, to select and limit his particular motive for availing himself of the enemy's naval power.

There seems little doubt that, in condemning these vessels, as the practice in respect to convoys then stood, and in the relations of Denmark with France, the Danish courts did not violate any established rule of international law. Manning (p. 369) and Wildman (ii. 126) and Woolsey (§ 193) are of that opinion. Hautefeuille (tom. iii. p. 162–4) and give the arguments, but no opinion. Ortolan seems to doubt the soundness of the American position (tom. i. p. 245). Halleck gives the arguments and no opinion (pp. 617-619).] — D.

CHAPTER IV.

Power of making

peace, de

pendent on

pal constitution.

TREATY OF PEAC E.

§ 538. THE power of concluding peace, like that of declaring war, depends upon the municipal constitution the munici- of the State. These authorities are generally associated. In unlimited monarchies, both reside in the sovereign; and even in limited or constitutional monarchies, each may be vested in the crown. Such is the British Constitution, at least in form; but it is well known that, in its practical administration, the real power of making war actually resides in the Parliament, without whose approbation it cannot be carried on, and which body has consequently the power of compelling the crown to make peace, by withholding the supplies necessary to prosecute hostilities. The American Constitution vests the power of declaring war in the two houses of Congress, with the assent of the Presi dent. (a) 246 By the forms of the Constitution, the President has (a) See § 294.

[246 Declaration of War.-In the Prize Causes (Black. ii. 635), the construction of this clause of the constitution was fully considered. It was held that war was a certain state or condition of things, and might be brought about by the act of one party. Whenever war was to be initiated by an act of the national will, that will

the exclusive power of making treaties of peace, which, when ratified with the advice and consent of the Senate, become the supreme law of the land, and have the effect of repealing the declaration of war and all other laws of Congress, and of the several States which stand in the way of their stipulations. But the Congress may at any time compel the President to make peace, by refusing the means of carrying on war. In France, the King has, by the express terms of the constitutional charter, power to declare war, to make treaties of peace, of alliance, and of commerce; but the real power of making both peace and war resides in the Chambers,

could be constitutionally expressed only by an Act of Congress; but, if war was instituted by a foreign power, and precipitated upon the country, "the President is not only authorized, but bound, to resist force by force. He does not initiate the war, but is bound to accept the challenge, without waiting for any especial legislative authority. And, whether the hostile party be a foreign invader or States organized in rebellion, it is none the less a war, although the declaration of it be unilateral." In conformity with this principle, it was held that the prize courts could take jurisdiction jure belli of captures made by the President's orders, and adjudicate upon them in accordance with the laws of war, although, at the time of the captures, war had not been either declared or recognized as existing, by any Act of Congress. The court considered that the state of things then existing, by the act of the rebels, amounted to a war, and that it authorized the President to meet the war of the rebels by the exercise of the war-powers of blockade and capture of enemy's property, without an antecedent Act of Congress.

The minority of the court held that, although the President could, in case of insurrection or invasion, by virtue of the Acts of Congress of 1795 and 1807, use the army, navy and militia, to repel the invasion or suppress the insurrection, yet such a state of things did not, in either case, amount to a war, in the legal sense, so as to authorize the use of the powers of war, without an Act of Congress either declaring or recognizing its existence. They seemed to consider that, until the passage of such an act, the course of the government must be a kind of coercion of individuals, by municipal law, on a large scale. They arrived, however, at the same practical result with the majority, because they regarded the Act of Congress of 13th July, 1861, before which few captures were made, as sufficient for the purpose, although it did not in direct terms profess to declare or recognize a war.

The war with Mexico, in 1846, is an instance of a war not declared by Congress. The battles of Palo Alto and Resaca de la Palma were fought on the 8th and 9th of May; and Congress, on the 13th, in the preamble to a statute, declared that a state of war existed by the act of Mexico. The exercise of war-powers, before as well as after the passage of the statute, was recognized as constitutional by all departments of the government.

In the case of the ship Eliza (Bas v. Tingy, Dallas, iv. 37), the Supreme Court held that a public war existed between France and the United States, in 1799, so as to call into action the law as to recaptures from enemies. The Acts of Congress had authorized certain hostilities against France on the high seas, but not on land, or in French ports, and confined the right to commit these hostilities to vessels in peril of attack, or specially commissioned for limited reprisals.] — D.

which have the authority of granting or refusing the means of prosecuting hostilities. 247

treaties of

peace limited in its extent.

Power of § 539. The power of making treaties of peace, like making that of making other treaties with foreign States, is, or may be, limited in its extent by the national constitution. We have already seen that a general authority to make treaties of peace necessarily implies a power to stipulate the conditions of peace; and among these may properly be involved the cession of the public territory and other property, as well as of private property included in the eminent domain. If, then, there be no limitation, expressed in the fundamental laws of the State, or necessarily implied from the distribution of its constitutional authorities, on the treaty-making power in this respect, it necessarily extends to the alienation of public and private property, when deemed necessary for the national safety or policy. (a)

Indemni

ty to indi

losses by public ces

§ 540. The duty of making compensation to individviduals for uals, whose private property is thus sacrificed to the general welfare, is inculcated by public jurists, as corsions. relative to the sovereign right of alienating those things which are included in the eminent domain; but this duty must have its limits. No government can be supposed to be able, consistently with the welfare of the whole community, to assume the burden of losses produced by conquest, or the violent dismemberment of the State. Where, then, the cession of territory is the result of coercion and conquest, forming a case of imperious necessity beyond the power of the State to control, it does not impose any obligation upon the government to indemnify those who may suffer a loss of property by the cession. (a) 248

Dismem

§ 541. The fundamental laws of most free governberment of ments limit the treaty-making power, in respect to the dismemberment of the State, either by an express pro

States by

treaty.

[247 The establishment of the Empire, in 1852, has changed the French Constitution. The power to make treaties is now solely in the Emperor; and a treaty of commerce has the legal effect of a legislative act, in respect to, duties and the importation and exportation of goods. (Annuaire des deux Mondes, 1852-3, p. 952; 1853-4, p. 891. British Annual Reg. 1860, p. 227. Tripier, Code Politique, 329, 388.)]-D.

(a) Vide ante, § 266.

(a) Grotius, de Jur. Bel. ac Pac. lib. iii. cap. 20, § 7. Vattel, Droit des Gens, liv.

i. ch. 20, § 244; liv. iv. ch. 2, § 12. Kent's Comm. i. 178.

[248 Halleck's Intern. Law, 849.]—D.

hibition, or by necessary implication from the nature of the constitution. Thus, even under the constitution of the old French. monarchy, the States-General of the kingdom declared that Francis I. had no power to dismember the kingdom, as was attempted by the treaty of Madrid, concluded by that monarch; and that not merely upon the ground that he was a prisoner, but that the assent of the nation, represented in the States-General, was essential to the validity of the treaty. The cession of the province of Burgundy was therefore annulled, as contrary to the fundamental laws of the kingdom; and the provincial States of that duchy, according to Mezeray, declared, that "never having been other than subjects of the crown of France, they would die in that allegiance; and if abandoned by the king, they would take up arms, and maintain by force their independence, rather than pass under a foreign dominion." But when the ancient feudal constitution of France was gradually abolished by the disuse of the States-General, and the absolute monarchy became firmly established under Richelieu and Louis XIV., the authority of ceding portions of the public territory, as the price of peace, passed into the hands of the king, in whom all the other powers of government were concentrated. The different constitutions established in France, subsequently to the Revolution of 1789, limited this authority in the hands of the executive in various degrees. The provision in the Constitution of 1795, by which the recently conquered countries on the left bank of the Rhine were annexed to the French territory, became an insuperable obstacle to the conclusion of peace in the conferences at Lisle. By the Constitutional Charter of 1830, the king is invested with the power of making peace, without any limitation of this authority, other than that which is implied in the general distribution of the constitutional powers of the government. Still it is believed that, according to the general understanding of French public jurists, the assent of the Chambers, clothed with the forms of a legislative act, is considered essential to the ultimate validity of a treaty ceding any portion of the national territory. The extent and limits of the territory being defined by the municipal laws, the treaty-making power is not considered sufficient to repeal those laws.249

[249 This state of things is altered by the establishment of the Empire, after the Revolution of 1848. See note 247, suprà.]—D.

Treatymaking power in Great Britain.

§ 542. In Great Britain, the treaty-making power, as a branch of the regal prerogative, has in theory no limits; but it is practically limited by the general controlling authority of Parliament; whose approbation is necessary to carry into effect a treaty, by which the existing territorial arrangements of the empire are altered.

Treatymaking power in confedera

cies.

§ 543. In confederated governments, the extent of the treaty-making power, in this respect, must depend upon the nature of the confederation. If the union consists of a system of confederated States, each retaining its own sovereignty complete and unimpaired, it is evident that the federal head, even if invested with the general power of making treaties of peace for the confederacy, cannot lawfully alienate the whole or any portion of the territory of any member of the union, without the express assent of that member. Such was the theory of the ancient Germanic Constitution; the dismemberment of its territory was contrary to the fundamental laws and maxims of the empire; and such is believed to be the actual constitution of the present Germanic Confederation. This theory of the public law of Germany has often been compelled to yield in practice to imperious necessity; such as that which forced the cession to France of the territories belonging to the States of the empire, on the left bank of the Rhine, by the treaty of Luneville, in 1800. Even in the case of a supreme federal government, or composite State, like that of the United States of America, it may, perhaps, be doubted how far the mere general treaty-making power, vested in the federal head, necessarily carries with it that of alienating the territory of any member of the union without its consent.250

[250 Treaty-making Power under the United States Constitution. — The disputed northeastern boundary between Great Britain and the United States involved the territory of the State of Maine, in which Massachusetts also had an interest. The line established by the Ashburton Treaty, of 1842, differed from that claimed by Maine, and ceded parts over which Maine had exercised jurisdiction. Still, the treaty was a sovereign act of the United States with Great Britain, and operated an international settlement. Neither of the States of Maine or Massachusetts was in any way party to it, or named in it, except in the fifth article, in which the United States agrees to receive and pay over to those States certain portions of a common fund established by consent, for the care of the territory while under dispute, and to pay to those States a further sum on account of their assent to the line of boundary described in this treaty." Lord Ashburton disclaimed all responsibility of Great Britain for any matters between the United States and the individual States referred to in that article. Commissioners on the part of Maine and Massachusetts gave their assent to the