perhaps, be said, that it might have been opposed and actually defeated, had it not been for the accidental circumstance of the separation of these vessels from the convoying force, and that the entire commerce of the world with the Baltic Sea might thus have been effectually protected from Danish capture. And it might be asked in reply, what injury would have resulted to the belligerent rights of Denmark from that circumstance? If the property were neutral, and the voyage lawful, what injury would result from the vessels escaping from examination? On the other hand, if the property were enemy's property, its escape must be attributed to the superior force of the enemy, which, though a loss, could not be an injury of which Denmark would have a lawful right to complain. Unless it could be shown that a neutral vessel navigating the seas is bound to volunteer to be searched by the belligerent cruisers, and that she had no right to avoid search by any means whatever, it was apparent that she might avoid it by any means not unlawful. Violent resistance to search, rescue after seizure, fraudulent spoliation or concealment of papers, are all avowedly unlawful means, which, unless extenuated by circumstances, may justly be visited with the penalty of confiscation. Those who alleged that sailing under belligerent convoy was also attended with the same consequences, must show it, by appealing to the oracles of public law, to the text of treaties, to some decision of an international tribunal, or to the general practice and understanding of nations. (a)

United

Denmark, on

Treaty of § 537. The negotiation finally resulted in the signature 1830 between of a treaty, in 1830, between the United States and DenStates and mark, by which the latter power stipulated to indemnify the subject. the American claimants generally for the seizure of their property by the payment of a fixed sum en bloc, leaving it to the American government to apportion it by commissioners appointed by itself, and authorized to determine" according to the principles of justice, equity, and the law of nations," with a declaration that the convention, having no other object than to terminate all the claims, "can never hereafter be invoked, by one party or the other, as a precedent or rule for the future." (a)245

(a) Mr. Wheaton to Count Schimmelmann, 1828.

(a) Martens, Nouveau Recueil, tom. viii. 350. Elliot's American Diplomatic Code, i. 453.

[245 Neutral under Enemy's Convoy.-If a belligerent takes a neutral under his convoy, it is, as far as that belligerent is concerned, a lawful act of war; and he burdens

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 ? arge 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 atter the passage of the statute, was recognized as constitutional by all departments of the government.

In the case of the ship Eliza (Bas r. 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.

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 constitu

tion.

TREATY OF PEACE.

§ 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 arge 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

§ 540. The duty of making compensation to individviduals for uals, whose private property is thus sacrificed to the losses by general welfare, is inculcated by public jurists, as corpublic cessions. 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

Dismemberment of States by treaty.

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

[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.