same opinion, is evident from the manner in which he quotes this paper to support his own doctrine, that the sentences of the tribunals ought not to be made the ground of complaint by the State against whose subjects they are pronounced, "excepting the case of a refusal of justice, palpable and evident injustice, a manifest violation of rules and forms," &c. (a)

In the case above referred to, the King of Prussia (then neutral) had undertaken to set up within his own dominions a commission to re-examine the sentences pronounced against his subjects in the British prize courts; a conduct which is treated by the authors of the report to the British government as an innovation, "which was never attempted in any country of the world before. Prize or no prize must be determined by courts of admiralty belonging to the power whose subjects made the capture." But the report proceeds to state, that "every foreign prince in amity has a right to demand that justice shall be done to his subjects in these courts, according to the law of nations, or particular treaties, where they are subsisting. If in re minimè dubia, these courts proceed upon foundations directly opposite to the law of nations, or subsisting treaties, the neutral State has a right to complain of such determination."

The King of Prussia did complain of the determination of the British tribunals, and made reprisals by stopping the interest upon a loan due to British subjects, and secured by hypothecation upon the revenues of Silesia, until he actually obtained from the British government an indemnity for the Prussian vessels unjustly captured and condemned. The proceedings of the British tribunals, though they were asserted by the British government to be the only legitimate mode of determining the validity of captures made in war, were not considered as excluding the demand of Prussia for redress upon the government itself. (b)

between the

States and

§ 395. So, also, under the treaty of 1794, between the The mixed United States and Great Britain, a mixed commission commission was appointed to determine the claim of American citi- United zens, arising from the capture of their property by British Great Britcruisers, during the existing war with France, according the treaty to justice, equity, and the law of nations. In the course of 1794. of the proceedings of this board, objections were made, on the part of the British government, against the commissioners proceed

(a) Vattel, Droit des Gens, liv. ii. ch. 7, § 84.
(b) Wheaton's Hist. Law of Nations, 206–217.

ain, under

ing to hear and determine any case where the sentence of condemnation had been affirmed by the Lords of Appeal in Prize Causes, upon the ground that full and entire credit was to be given to their final sentence; inasmuch as, according to the general law of nations, it was to be presumed that justice had been administered by this, the competent and supreme tribunal in matters of prize. But this objection was overruled by the board, upon the grounds and principles already stated, and a full and satisfactory indemnity was awarded in many cases where there had been a final sentence of condemnation.

Conclusiveness of

sions, con

tinued.

§ 396. Many other instances might be mentioned of prize deci- arrangements between States, by which mixed commissions have been appointed to hear and determine the claims of the subjects of neutral powers, arising out of captures in war, not for the purpose of revising the sentences of the competent courts of prize, as between the captors and captured, but for the purpose of providing an adequate indemnity between State and State, in cases where satisfactory compensation had not been received in the ordinary course of justice. Although the theory of public law treats prize tribunals, established by and sitting in the belligerent country, exactly as if they were established by and sitting in the neutral country, and as if they always adjudicated conformably to the international law common to both; yet it is well known that, in practice, such tribunals do take for their guide the prize ordinances and instructions issued by the belligerent sovereign, without stopping to inquire whether they are consistent with the paramount rule. If, therefore, the final sentences of these tribunals were to be considered as absolutely conclusive, so as to preclude all inquiry into their merits, the obvious consequence would be to invest the belligerent State with legislative power over the rights of neutrals, and to prevent them. from showing that the ordinances and instructions, under which the sentences have been pronounced, are repugnant to that law by which foreigners alone are bound.

indemnities

of 28th

Danish § 397. These principles have received recent confirmaunder treaty tion in the negotiation between the American and Danish March, 1830. governments respecting the captures of American vessels and cargoes made by the cruisers of Denmark during the last war between that power and Great Britain. In the course of this negotiation, it was objected by the Danish ministers that the

validity of these captures had been finally determined in the competent prize court of the belligerent country, and could not be again drawn in question. On the part of the American government, it was admitted that the jurisdiction of the tribunals of the capturing nation was exclusive and complete upon the question of prize or no prize, so as to transfer the property in the things condemned from the original owner to the captors, or those claiming under them; that the final sentence of those tribunals is conclusive as to the change of property operated by it, and cannot be again incidentally drawn in question in any other judicial forum; and that it has the effect of closing for ever all private controversy between the captors and the captured. The demand which the United States made upon the Danish government was not for a judicial revision and reversal of the sentences pronounced by its tribunals, but for the indemnity to which the American citizens were entitled in consequence of the denial in justice by the tribunals in the last resort, and of the responsibility thus incurred by the Danish government for the acts of its cruisers and tribunals. The Danish government was, of course, free to adopt any measures it might think proper, to satisfy itself of the injustice of those sentences, one of the most natural of which would be a re-examination and discussion of the cases complained of, conducted by an impartial tribunal under the sanction of the two governments, not for the purpose of disturbing the question of title to the specific property which had been irrevocably condemned, or of reviving the controversy between the individual captors and claimants which had been for ever terminated, but for the purpose of determining between government and government whether injustice had been. done by the tribunals of one power against the citizens of the other, and of determining what indemnity ought to be granted to the latter.

The accuracy of this distinction was acquiesced in by the Danish ministers, and a treaty concluded, by which a satisfactory indemnity was provided for the American claimants. (a)

§ 398. We have seen that a firm possession, or the Title to sentence of a competent court, is sufficient to confirm real properthe captor's title to personal property or movables taken transferred in war. A different rule is applied to real property, or Jus postimmovables. The original owner of this species of prop

(a) Martens, Nouveau Recueil, tom. viii. p. 350.

ty, how in war.

liminii.

erty is entitled to what is called the benefit of postliminy, and the title acquired in war must be confirmed by a treaty of peace before it can be considered as completely valid. This rule cannot be frequently applied to the case of mere private property, which by the general usage of modern nations is exempt from confiscation. It only becomes practically important in questions arising out of alienation of real property, belonging to the government, made by the opposite belligerent, while in the military occupation of the country. Such a title must be expressly confirmed by the treaty of peace, or by the general operation of the cession of territory made by the enemy in such treaty. Until such confirmation, it continues liable to be divested by the jus postliminii. The purchaser of any portion of the national domain takes it at the peril of being evicted by the original sovereign owner when he is restored to the possession of his dominions. (a) 188

Good faith towards enemies.

§ 399. Grotius has devoted a whole chapter of his great work to prove, by the consenting testimony of all ages and nations, that good faith ought to be observed towards an enemy. And even Bynkershoek, who holds that every other sort of fraud may be practised towards him, prohibits perfidy, upon the ground that his character of enemy ceases by the compact with him, so far as the terms of that compact extend. "I allow of any kind of deceit," says he, "perfidy alone excepted, not because any thing is unlawful against an enemy, but because when our faith has been pledged to him, so far as the promise extends, he ceases to be an enemy." Indeed, without this mitigation, the horrors of war would be indefinite in extent and interminable in duration. The usage of civilized nations has therefore introduced certain commercia belli, by which the violence of war may be allayed, so far as is consistent with its objects and purposes, and something of a pacific intercourse may be kept up,

(a) Grotius, de Jur. Bel. ac Pac. lib. iii. cap. 6, § 4; cap. 9, § 13. Vattel, Droit des Gens, liv. iii. ch. 13, §§ 197-200, 210, 212. Klüber, Droit des Gens Moderne de l'Europe, §§ 256-258. Martens, Précis, &c., liv. viii. ch. 4, § 282 a. Where the case of conquest is complicated with that of civil revolution, and a change of internal government recognized by the nation itself and by foreign States, a modification of the rule may be required in its practical application. Vide ante, § 27.

[188 See note 169, ante, on Conquest and Belligerent Occupation. See also Heffter, Europ. Völker. § 188. Woolsey's Introd, § 145. Halleck's Intern. Law, 789, 790, 805, 836-9, 865-870. Phillimore's Intern. Law, iii. 652, 682, 726, 737.] — D.

which may lead, in time, to an adjustment of differences, and ultimately to peace. (a) 189

Truce or

190

§ 400. There are various modes in which the extreme rigor of the rights of war may be relaxed at the pleasure armistice. of the respective belligerent parties. Among these is that of a suspension of hostilities, by means of a truce or armistice. This may be either general or special. If it be general in its application to all hostilities in every place, and is to endure for a very long or indefinite period, it amounts in effect to a temporary peace,' except that it leaves undecided the controversy in which the war originated. Such were the truces formerly concluded between the Christian powers and the Turks. Such, too, was the armistice concluded, in 1609, between Spain and her revolted provinces in the Netherlands. A partial truce is limited to certain places, such as the suspension of hostilities, which may take place between two contending armies, or between a besieged fortress and the army by which it is invested. (a) 191

Power to

§ 401. The power to conclude a universal armistice or conclude an suspension of hostilities is not necessarily implied in the armistice." ordinary official authority of the general or admiral commanding in chief the military or naval forces of the State. The conclusion of such a general truce requires either the previous special authority of the supreme power of the State, or a subsequent ratification by such power. (a) 192

A partial truce or limited suspension of hostilities may be concluded between the military and naval officers of the respective

(a) Bynkershoek, Quæst. Jur. Pub. lib. i. cap. 1. The Daifje, Robinson's Adm. Rep. iii. 139.

[19 Halleck's Intern. Law, 652. Heffter, Europ. Völker. § 141. Phillimore's Intern. Law, iii. § 97 et seq. Martens, Droit des Gens, § 290.]—D.

[190 Rutherforth says that the phrase "temporary peace," in this connection, refers to acts of war, and not to a state of war. Ch. 9, § 22.1-D.

(a) Vattel, Droit des Gens, liv. iii. ch. 16, § 235, 236.

[1 Halleck (p. 654) calls a cessation of hostilities for a very short period and a temporary purpose as for burying the dead, recovering the wounded, and the like-a suspension of arms; reserving the phrase "truce" or "armistice" to cases of longer continuance, and for a more general or remote purpose.]-D.

(a) Grotius, de Jur. Bel. ac Pac. lib. iii. cap. 22, § 8, Barbeyrac's note. Vattel, Droit des Gens, liv. iii. ch. 16, §§ 233-238.

[192 Kent's Comm. i. 159. See Halleck's Intern. Law, 655, as to the case of California, under the truce in the Mexican war, in 1848. Ex. Doc. 31st Cong. No. 17, p. 601.] — D.