of peace are intended to bury in oblivion all complaints, and if grievances 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. Hence it seems that every presumption is to be made against such a claim, which the nature of the circumstances will allow (u). Thus where a British ship had been sold by a French captor to a Spanish neutral after proceedings before the Conseil des Prises at Paris, and hostilities had subsequently ensued between Great Britain and Spain, which had been terminated by a treaty of peace, and the ship arrived in a British port, and was claimed by the former British owner ten years after the sale; the proceedings were presumed to be regular and restitution was refused (v). But in strictness a treaty of peace does not extinguish demands for wrongs committed before the war; nor for wrongs committed during the war, but not in prosecution thereof; as for example, wrongs committed in a neutral country for the effect of a compromise cannot extend beyond the matter to which it relates. A compromise must be construed with reference to the subject of the convention. It would be unjust to allow it to conclude either party as to matters which appear not to have been contemplated (w) Private demands accruing before or during war may be recovered in time of peace, for war does not extinguish the right, but only suspends the remedy (x). Thus, where a Spanish ship captured before the commencement of hostilities was adjudged to be restored with costs and damages, but no further proceedings took place in consequence of the breaking out of war: it was held that the intervention of hostilities puts the (u) Grot. iii. 20, xviii. xix. (v) The Molly, 1 Dod. 394. (w) Vatt. iv. 22. Transactio quæcunque sit, de his tantum de quibus inter convenientes placuit, interposita creditur. Iniquum est perimi pacto id, de quo cogitatum non docetur, ff. ii. xv. 9, § 1, 3. (x) Grot. iii. 20, xvi.; Vatt. iv. 22. property of an enemy in such a situation that confiscation may ensue; but unless there is some declaration of the forfeiture the right of the owner revives on the return of peace (y). Upon the same principle contracts made with an alien enemy during war may be enforced by him on the return of peace (2), if they be not prohibited by the law of the country in which it is sought to enforce them (a). The provision of a treaty, that all things shall be restored to the condition they were in before the war, is to be understood of real property, and does not extend to chattels, which are presumed to be abandoned by their owner from the difficulty of identification, and the slight hope of recovering them when captured (b). Where a treaty contains no such clause, and nothing is said about a conquered territory, it remains with the possessor whose title cannot afterwards be called in question (c). When injury is committed in the prosecution of hostilities after the conclusion of a treaty of peace, it seems, that ignorance of the fact will not protect the wrong doer from civil responsibility. If, by articles, a place or district was put under the King's peace, and an act of hostility was afterwards committed therein, the injured party might have a right to resort to a Court of Prize, to shew that he had been injured by this breach of the peace, and was entitled to compensation. If the officer acted through ignorance, his own government must protect him; for it is the duty of government, if they put a certain district within the King's peace, to take care that due notice shall be given to those persons, by whose conduct that peace is to be maintained; and if no such notice has been (y) Nuestra Senora des Doroles, Edw. 62. (z) Ricord v. Bettenham, Burr. 1734; Cornu v. Blackburne, 2 Douglas, 640; Antonio v. Moreshead, 6 Taunt. 237. (a) Ex parte Bousmaker, 13 Vesey, Jun. 71; The Hoop, 1 Rob. 196. (b) Vatt. iv. 22. (c) The Foltina, 1 Dod. 450. given, nor due diligence used to give it, and a breach of the peace is committed through the ignorance of those persons, they are to be borne harmless at the expense of the government, whose duty it was to have given that notice (d). It is a frequent practice, to stipulate in preliminary articles of a treaty of peace for a cessation of hostilities at certain times, in different latitudes, and for the restitution of property taken afterwards; and this, as well within as beyond the period stipulated for the ratification of the preliminary articles themselves. The same provision is afterwards inserted in the definitive treaty. The act of ratification operates with retrospective effect to confirm the terms of the treaty according to the provisions of the preliminary articles. There is a power lodged in the prerogative of the Crown to secure that retrospective effect to the conclusion of a treaty; to supersede the intermediate events of war; and to annul captures rightly made up to the moment of ratification, under the only known rule of action, promulgated and communicated to cruisers for the guidance of their conduct (e). The owners or captors of all vessels captured or recaptured after the expiration of the periods assigned, are entitled to restitution. The period assigned for the ratification of the preliminary articles of the peace of Aix la Chapelle, signed on the 48 April, 1748, was three weeks after the signature, or sooner if possible. The period assigned for the cessation of hostilities by sea, in the channel, was twelve days from the date of the signature. The proclamation announcing the cessation of hostilities was published on the May. The ship Adolphus Frederic, captured in the channel on the May, was restored (f). So, where a British ship and cargo taken after the ratification of the treaty of peace between Great Britain and the United States, but before the period (d) Per Sir W. Scott, The Mentor, 1 Rob. 183. L assigned for the cessation of hostilities at the place of capture, was recaptured after that period by a British ship of war; the Court decreed restitution of the ship and cargo to the American captors (g). So, where a British ship and cargo captured by an American private ship of war within the period assigned for the cessation of hostilities, but after the ratification of the treaty of peace, was recaptured by the mate after that period: the Court decreed restitution to the American captor and rescinded a former decree, whereby the ship and cargo had been restored to the owners on payment of salvage (h). It is to be observed, that in these cases the validity of a capture made after the ratification of a treaty of peace is taken to depend entirely on the circumstance of its having occurred before or after the expiration of the periods assigned by the treaty. These periods are also described as periods assigned for the cessation of hostilities, and this construction appears to be correct, though such are not the precise words employed in the treaties. The first article of a treaty of peace generally contains a species of preamble expressive of the pacific intentions of the contracting parties, which is wholly inoperative, as it expresses no more than is necessarily implied. Thus the first article of the preliminaries of the treaty of Amiens is conceived in these words: Aussitôt que les préliminaires seront signés et ratifiés, l'amitié sincere sera rétablie entre la République Française et sa Majesté Britannique par terre et par mer dans toutes les parties du monde. En conséquence et pour que toutes hostilités cessent immediatement entre les deux puissances, et entre elles et leurs alliés respectivement, les ordres seront transmis aux forces de terre et de mer avec la plus grande célerité, chacun des parties contractantes s'engageant à donner des passeports et les facilités nécessaires pour accélérer les dites ordres et d'assurer leur exécution. The words en conséquence, &c. express nothing more than (g) The Somerset, 5 Rob. 56. (h) The Harmony, 5 Rob. 78. would be implied from the ratification of the preliminaries. And as these words have reference to the ratification, which in the positive provision of the preceding sentence is recognized as the date from which peace generally was to commence, it seems to follow that the word immediatement must have reference to the periods assigned in a subsequent article, or to the ratification, where those periods are inapplicable; since it cannot refer to the signature. The treaty of peace between Great Britain and Sweden contains similar expressions: Il y aura entre leur Majestés une ferme, vraie et inviolable paix, de sorte que dès ce moment tout sujet de mésintelligence, qui ait pu subsister entre elles sera regardé comme entièrement cessant et detruit. This treaty was signed on the 18th July, and was ratified by the Prince Regent of Great Britain on the 4th of August, and by the King of Sweden on the 17th of the same month. Some American vessels captured in Hanoe Bay on the 11th of August were claimed by the Swedish minister as taken within one mile of the mainland of Sweden, in violation of the law of nations. From the result of these dates it was contended that war had ceased, and that friendship had been re-established between Great Britain and Sweden before the date of the capture. It was said, that the treaty when ratified referred back to the time of the signature by the plenipotentiaries, and that it did so in this case more especially on account of the terms in which it was drawn. The words of the treaty, dès ce moment tout sujet de mésintelligence, qui ait pu subsister, sera regardé comme entièrement cessant et détruit, were pointed out, and from these it was contended that all hostilities were to cease from the moment that the treaty was signed. But the Court held that not to be the case, that the positive and enacting part of the treaty is, that there shall be a firm and inviolable peace between the two countries. The other part is descriptive only of the pacific intentions of the contracting parties, and of their agreement to bury in oblivion all the |