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Article 2, Section 2, Clauses 2 and 3

Document 31

James Kent, Commentaries 1:154--68


The object of war is peace, and it is the duty of every belligerent power to make war fulfil its end with the least possible mischief, and to accelerate, by all fair and reasonable means, a just and honourable peace. The same power which has the right to declare and carry on war, would seem naturally to be the proper power to make and conclude a treaty of peace; but the disposition of this power will depend upon the local constitution of every nation; and it sometimes happens, that the power of making peace is committed to a body of men who have not the power to make war. In Sweden, after the death of Charles XII. the king could declare war without the consent of the national Diet, but he made peace in conjunction with the Senate. So, by the constitution of the United States, the President, by and with the advice and consent of two thirds of the Senate, may make peace, but it is reserved to Congress to declare war. This provision in our constitution is well adapted (as will be shown more fully hereafter) to unite in the negotiation and conclusion of treaties, the advantage of talents, experience, stability, and a comprehensive knowledge of national interests, with the requisite secrecy and despatch.

Treaties of peace, when made by the competent power, are obligatory upon the whole nation. If the treaty requires the payment of money to carry it into effect, and the money cannot be raised but by an act of the legislature, the treaty is morally obligatory upon the legislature to pass the law, and to refuse it would be a breach of public faith. The department of the government that is intrusted by the constitution with the treaty making power, is competent to bind the national faith in its discretion; for the power to make treaties of peace must be coextensive with all the exigencies of the nation, and necessarily involves in it that portion of the national sovereignty which has the exclusive direction of all diplomatic negotiations and contracts with foreign powers. All treaties made by that power become of absolute efficacy, because they are the supreme law of the land.

There can be no doubt that the power competent to bind the nation by treaty, may alienate the public domain and property by treaty. If a nation has conferred upon its executive department, without reserve, the right of treating and contracting with other states, it is considered as having invested it with all the power necessary to make a valid contract. That department is the organ of the nation, and the alienations by it are valid, because they are done by the reputed will of the nation. The fundamental laws of a state may withhold from the executive department the power of alienating what belongs to the state, but if there be no express provision of that kind, the inference is, that it has confided to the department charged with the power of making treaties, a discretion commensurate with all the great interests, and wants, and necessities of the nation. A power to make treaties of peace necessarily implies a power to decide the terms on which they shall be made, and foreign states could not deal safely with the government upon any other presumption. The power that is intrusted generally and largely with authority to make valid treaties of peace, can, of course, bind the nation by alienation of part of its territory, and this is equally the case whether that territory be already in the occupation of the enemy, or remains in the possession of the nation, and whether the property be public or private. In the case of the schooner Peggy, the Supreme Court of the United States admitted, that individual rights acquired by war, and vested rights of the citizens, might be sacrificed by treaty for national purposes. So, in the case of Ware v. Hylton, it was said to be a clear principle of national law, that private rights might be sacrificed by treaty to secure the public safety, though the government would be bound to make compensation and indemnity to the individuals whose rights had thus been surrendered. The power to alienate, and the duty to make compensation, are both laid down by Grotius in equally explicit terms.

A treaty of peace is valid and binding on the nation, if made with the present ruling power of the nation, or the government de facto. Other nations have no right to interfere with the domestic affairs of any particular nation, or to examine and judge of the title of the party in possession of the supreme authority. They are to look only to the fact of possession. And it is an acknowledged rule of international law, that the principal party in whose name the war is made, cannot justly make peace without including those defensive allies in the pacification who have afforded assistance, though they may not have acted as principals; for it would be faithless and cruel for the principal in the war to leave his weaker ally to the full force of the enemy's resentment. The ally is, however, to be no farther a party to the stipulations and obligations of the treaty, than he has been willing to consent. All that the principal can require, is, that his ally be considered as restored to a state of peace. Every alliance in which all the parties are principals in the war, obliges the allies to treat in concert, though each one makes a separate treaty of peace for himself.

The effect of a treaty of peace is to put an end to the war, and to abolish the subject of it. Peace relates to the war which it terminates. It is an agreement to waive all discussion concerning the respective rights of the parties, and to bury in oblivion all the original causes of the war. It forbids the revival of the same war, by taking arms for the cause which at first kindled it, though it is no objection to any subsequent pretensions to the same thing, on other foundations. After peace, the revival of grievances arising before the war is not to be encouraged, for treaties of peace are intended to put an end to such complaints; and if grievances then existing 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. Peace leaves the contracting parties without any right of committing hostility for the very cause which kindled the war, or for what has passed in the course of it. It is, therefore, no longer permitted to take up arms again for the same cause. But this will not preclude the right to complain and resist, if the same grievances which kindled the war be renewed and repeated, for that would furnish a new injury and a new cause of war equally just with the former war. If an abstract right be in question between the parties, the right, for instance, to impress at sea one's own subjects, from the merchant vessels of the other, and the parties make peace without taking any notice of the question, it follows, of course, that all past grievances, damages, and injury, arising under such claim, are thrown into oblivion, by the amnesty which every treaty implies; but the claim itself is not thereby settled, either one way or the other. It remains open for future discussion, because the treaty wanted an express concession or renunciation of the claim itself.

A treaty of peace leaves every thing in the state in which it finds it, if there be no express stipulation on the subject. If nothing be said in a treaty of peace about the conquered country or places, they remain with the possessor, and his title cannot afterwards be called in question. During war, the conqueror has only a usufructuary right to the territory he has subdued, and the latent right and title of the former sovereign continues, until a treaty of peace, by its silence, or by its express stipulation, shall have extinguished his title for ever.

The peace does not affect rights which had no relation to the war. Debts existing prior to the war, and injuries committed prior to the war, but which made no part of the reasons for undertaking it, remain entire, and the remedies are revived. There are certain cases in which even debts contracted, or injuries committed, between two subjects of the belligerent powers, during the war, are the ground of a valid claim. This would be the case if the debt between them was contracted, or the injury was committed, in a neutral country.

A treaty of peace binds the contracting parties from the moment of its conclusion. But, like a truce, it cannot affect the subjects of the nation with guilt, by reason of acts of hostility subsequent to the date of the treaty, provided they were committed before the treaty was known. All that can be required in such cases is, that the government make immediate restitution of things captured after the cessation of hostilities; and to guard against inconvenience from the want of due knowledge of the treaty, it is usual to fix the periods at which hostilities are to cease at different places, and for the restitution of property taken afterwards.

But though individuals are not deemed criminal for continuing hostilities after the date of the peace, so long as they are ignorant of it, a more difficult question to determine is, whether they are responsible, civiliter, in such cases. Grotius says, they are not liable to answer in damages, but it is the duty of the government to restore what has been captured and not destroyed. In the case of the American ship Mentor, which was taken and destroyed, off Delaware bay, by British ships of war, in 1783, after the cessation of hostilities, but before that fact had come to the knowledge of either of the parties, the point was much discussed; and it was held, that the injured party could not pass over the person from whom the alleged injury had been received, and fix it on the commander of the English squadron on that station, who was totally ignorant of the whole transaction, and at the distance of thirty leagues from the place where it passed. There was no instance in the annals of the prize courts, of such a remote and consequential responsibility, in such a case. The actual wrongdoer is the person to answer in judgment, and to him the responsibility (if any) is attached. He may have other persons responsible over to him, but the injured party could look only to him. The better opinion was, that though such an act be done through ignorance of the cessation of hostilities, yet mere ignorance of that fact would not protect the officer from civil responsibility in a prize court; and that, if he acted through ignorance, his own government must protect him and save him harmless. When a place or country is exempted from hostility by articles of peace, it is the duty of the government to use due diligence to give its subjects notice of the fact, and the government ought, in justice, to indemnify its subjects, who act in ignorance of the peace. And yet it would seem, from that case, that the American owner was denied redress in the British admiralty, not only against the admiral of the fleet on that station, but against the immediate author of the injury. Sir William Scott denied the relief against the admiral; and ten years before that time, relief had equally been denied by his predecessor, against the person who did the injury. If that decision was erroneous, an appeal ought to have been prosecuted. We have then the decision of the English High Court of Admiralty, denying any relief in such a case, and an opinion of Sir William Scott, many years afterwards, that the original wrong-doer was liable. The opinions cannot otherwise be reconciled, than upon the ground that the prize courts have a large and equitable discretion, in allowing or withholding relief, according to the special circumstances of the individual case; and that there is no fixed or inflexible general rule on the subject.

If a time be fixed by the treaty for hostilities to cease in a given place, and a capture be previously made, but with knowledge of the peace, it has been a question among the writers on public law, whether the captured property should be restored. The better, and the more reasonable opinion, is, that the capture would be null, though made before the day limited, provided the captor was previously informed of the peace; for, as Emerigon observes, since constructive knowledge of the peace, after the time limited in the different parts of the world, renders the capture void, much more ought actual knowledge of the peace to produce that effect.

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 praesidia, and condemned. A similar doctrine was held in the case of 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 war.

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 that condition it was when taken, as far as it shall still be in the 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.

Treaties of every kind, when made by the competent authority, 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. If a treaty should in fact be violated by one of the contracting 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 re-commence 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 our own history of the annihilation of treaties by the act of the injured party. In 1798, the Congress of the United States 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 10th 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 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 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. The practice of nations has been conformable to this principle, and the conventional law of nations is full of instances of this kind, and several of them were stated by Sir Wm. Scott in the opinion which he gave in the case of the Fama.

The release of a territory from the dominion and sovereignty of the country, if that cession be the result of coercion or conquest, does not impose any obligation upon the government to indemnify those who may suffer a loss of property by the cession. The annals of our own state furnish a strong illustration of this position. The territory composing the state of Vermont belonged to this state, and it separated from it, and erected itself into an independent state, without the consent, and against the will, of the government of this state. The latter continued for many years to object to the separation, and to discover the strongest disposition to reclaim by force the allegiance of the inhabitants of that state. But they were unable to do it; and it was the case of a revolution effected by force, analogous to that which was then in action between this country and Great Britain. And when this state found itself under the necessity of acknowledging the independence of Vermont, a question arose before our legislature, whether they were bound in duty to make compensation to individual citizens whose property would be sacrificed by the event, because their titles to land lying within the jurisdiction of Vermont, and derived from New-York, would be disregarded by the government of that state. The claimants were heard at the bar of the House of Assembly, by counsel, in 1787, and it was contended on their behalf, that the state was bound, upon the principles of the social compact, to protect and defend the rights and property of all its members, and that, whenever it became necessary, upon grounds of public expediency and policy, to withdraw the protection of government from the property of any of its citizens, without actually making the utmost efforts to reclaim the jurisdiction of the country, the state was bound to make compensation for the loss. In answer to this argument, it was stated, that the independence of Vermont was an act of force beyond the power of this state to control, and equivalent to a conquest of that territory, and the state had not the competent ability to recover, by force of arms, their sovereignty over it, and it would have been folly and ruin to have attempted it. All pacific means had been tried without success, and as the state was compelled to yield to a case of necessity, it had discharged its duty, and it was not required, upon any of the doctrines of public law, or principles of political or moral obligation, to indemnify the sufferers. The cases in which compensation had been made for losses consequent upon revolutions in government, were peculiar and gratuitous, and rested entirely on benevolence, and were given from motives of policy, or as a reward for extraordinary acts of loyalty and exertion. No government can be supposed to be able, consistently with the welfare of the whole community, and it is, therefore, not required, to assume the burthen of losses produced by conquest, or the violent dismemberment of the state. It would be incompatible with the fundamental principles of the social compact.

This was the doctrine which prevailed in the legislature of this state; and when the act of July 14th, 1789, was passed, authorizing commissioners to declare the consent of the state to the independence of Vermont, it was expressly declared, that the act was not to be construed to give any person claiming lands in Vermont, under title from this state, any right to any compensation whatsoever from New-York.

The Founders' Constitution
Volume 4, Article 2, Section 2, Clauses 2 and 3, Document 31
The University of Chicago Press

Kent, James. Commentaries on American Law. 4 vols. New York, 1826--30.

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