is necessary to justify the presumption of the restoration of peace has never yet been settled, and must in every case be determined with reference to collateral facts and circumstances. "The proceedings of Spain and Chili which have been referred to. although inconclusive, require an explanation on the part of either of those powers which shall insist that the condition of war still exists. Peru, equally with Spain, has as absolute a right to decline the good offices or mediation of the United States for peace as either has to accept the same. The refusal of either would be inconclusive as an evidence of determination to resume or continue the war. It is the interest of the United States, and of all nations, that the return of peace, however it may be brought about, shall be accepted whenever it has become clearly established. Whenever the United States shall find itself obliged to decide the question whether the war still exists between Spain and Peru, or whether that war has come to an end, it will make that decision only after having carefully examined all the pertinent facts which shall be within its reach, and after having given due consideration to such representations as shall have been made by the several parties interested." Secretary of State Seward to Mr. Goñi, minister of Spain, July 9, 1868, Messages and Documents, part 2. 1868–9. "It is certain that a condition of war can be raised without an authoritative declaration of war, and, on the other hand, the situation of peace may be restored by the long suspension of hostilities without a treaty of peace being made. History is full of such occurrences. What period of suspension of war is necessary to justify the presumption of the restoration of peace has never yet been settled, and must in every case be determined with reference to collateral facts and circumstances. "The proceedings of Spain and Chili which have been referred to, although conclusive, require an explanation on the part of either of those powers which shall insist that the condition of war still exists. Peru, equally with Spain, has as absolute a right to decline the good offices or mediation of the United States for peace as either has to accept the same. The refusal of either would be inconclusive as an evidence of determination to resume or continue the war. It is the interest of the United States, and of all nations, that the return of peace, however it may be brought about, shall be accepted whenever it has become clearly established. Whenever the United States shall find itself obliged to decide the question whether the war still exists between Spain and Peru, or whether that war has come to an end, it will make that decision only after having carefully examined all the pertinent facts which shall be within its reach, and after having given due consideration to such representations as shall have been made by the several parties interested." Moore's Digest, vol. VII, pp. 336, 337; Mr. Seward, Sec. of State, to Mr. "I have yet to learn that a war in which the belligerents, as was the case with the late civil war, are persistent and determined, can be said to have closed until peace is conclusively established, either by treaty when the war is foreign, or when civil by proclamation of the termination of hostilities on one side and the acceptance of such proclamation on the other. The surrender of the main armies of one of the belligerents does not of itself work such termination; nor does such surrender, under the law of nations, of itself end the conqueror's right to seize and sequestrate whatever property he may find which his antagonist could use for a renewal of hostilities. The seizure of such property, and eminently so when, as in the present case, it is notoriously part of the war capital of the defeated government, is an act not merely of policy and right, but of mercy, in proportion to the extent to which the party overthrown is composed of high-spirited men who are ready to submit only when their military resources are wholly exhausted, and not until then. This, in the summer of 1865, was the condition of things in the Southern and Southwestern States of this nation. The period was one in which the maintenance of military rule and the taking into the possession of the United States of all the property capable of use as military resources of those States was essential to the permanent restoration of order, peace, and a common municipal law. This was so from the nature of things, and such was the course of public action. It is in accordance with this principle that the Supreme Court of the United States has formally decided that the late civil war terminated in the particular sections of the United States at the period designated in the proclamations of the President of the United States. (Brown v. Hiatts, 15 Wall. 177; Adger v. Alston, ibid. 555; Batesville Institute v Kauffman, 18 Wall. 151.) And by the President's proclamation of April 2, 1866, the insurrection which heretofore existed in the States of Georgia, South Carolina, Virginia, North Carolina, Tennessee, Alabama, Louisiana, Arkansas, Mississippi, and Florida is at an end, and is henceforth to be so regarded. Up to and before that date the insurrection in those States was held to exist. After that date it was held to be at an end." As to Moore's Digest, vol. VII, pp. 337, 338; Mr. Bayard, Sec. of State, to Mr. Muruaga, Span. Min., Dec. 3, 1886, For. Rel. 1887, 1015, 1019. termination of Indian wars, see Mr. Evarts, Sec. of State, to Sir E. Thornton, May 27, 1879, For. Rel. 1879, 496. See, also, The Protector, 12 Wall. 700. In the case of the schooner John, Upham, American commissioner,-Hornby, British commissioner, coinciding with the conclusions (Moore, 3793; Report, United States and Great Britain Claims Commission of 1853, 432),-said that, "when there is a want of due diligence in advertising the cessation of hostilities, the injured party is clearly entitled to indemnificaton; and Vattel says, also, that those who shall, through their own fault, remain ignorant of the publication of the truce, would be bound to repair any damage they may have caused contrary to its tenor."" (Vattel, Book III, Chap. XVI). Ralston, p. 300. 6 Hijo v. United States, 194 U. S., 315, 1903.—Mr. Justice Harlan said, "It is none the less a case sounding in tort because the claim is in form for the use of the vessel after actual hostilities were suspended by the protocol of August 12, 1898. A state of war did not in law cease until the ratification in April, 1899, of the treaty of peace. ‘A truce or suspension of armies,' says Kent,' does not terminate the war, but it is one of the commercia belli which suspends its operations. At the expiration of the truce, hostilities may recommence without any fresh declaration of war.' 1 Kent, 159, 161. If the original seizure made a case sounding in tort, as it undoubtedly did, the transaction was not converted into one of implied contract because of the retention and use of the vessel pending negotiations for a treaty of peace." TREATIES OF PEACE. Thirdly. We have to consider the termination of War by the conclusion of a formal Treaty of Peace between the Belligerents. The examination of this part of the subject must embrace the following considerations: I. By whom the overtures of Peace may be made. II. Where, or within the limits of whose territory, the negotiations. may be opened and carried on. III. How, or according to what forms. IV. When the Treaty of Peace takes effect, or the date from which the operation of it becomes binding upon the public relations of States and the private relations of individuals. Phillimore, vol. III, pp. 774, 775. Overtures for peace, by whom made. First, then, to consider by whom the overtures of peace may be made. These overtures may be made by one of the Belligerent States, by a Neutral State acting as the common friend of both litigants, or, by a State which is rather an auxiliary than an ally, or which-to speak as correctly as the nature of the distinction permits-has, as it were, been the passive ally of one Belligerent, without positively declaring war against the other Belligerent, without withdrawing its Ambassador from his Court, and indeed while continuing with this Belligerent, formally at least, the relations of amity. This third kind of status is sometimes designated in the books as the status of an auxiliary, as distinguished from an ally. A Neutral Power may also act as a mediator, or may merely interpose its good offices. Between the two positions there is a marked difference, inasmuch as the former implies the consent of both Belligerents; the latter may be without the consent of either, or with the consent of only one. The good offices of a Neutral State may be accepted, and its mediation refused. In the war with Sweden in 1742, Russia accepted the good offices and refused the mediation of France. The mediator must not be confounded with the arbitrator, whose character and functions have been discussed in an earlier part of this volume. Phillimore, vol. III, p. 775. Negotiations for peace, where carried on. Where, or within the limits of whose territory, may the negotiations be carried on? This question is often adjusted by reference to considerations of local convenience. It ought of course to be the object of all parties to fix upon a spot which may be of the readiest access to the respective Courts of the Belligerents. But this consideration is often overborne by animosities growing out of or connected with the War, which render it desirable either that some Neutral Territory should be selected, and not unfrequently some town of inconsiderable size and character within that. territory. These are all considerations belonging rather to Public Policy than to Public International Law. All that the latter seems to require is, that the place of negotiation shall be clearly and definitively agreed upon before the negotiations themselves are opened. In the case of arbitration, indeed, the Court of the arbitrator is, for obvious reasons, the proper place of the tribunal before which States agree to argue their causes. Phillimore, vol. III, p. 776. Form of negotiations. How, or according to what forms, are the negotiations to be carried on? There are no necessarily fixed or unalterable rules upon this subject, apart from those which flow from the respect due to the equality and dignity of States. If it should appear that any question would be likely to arise with respect to these forms, they are the subject of agreement before the substance of the Treaty is entered upon. The time has gone by when one ambassador gravely and vigilantly observed, as is said to have been the case at the Treaty of Ryswick, the number of steps backwards or forwards made by the other ambassadors. Phillimore, vol. III, p. 776. Treaties of Peace. The object of war is peace; and it is the duty of every belligerent power to make war fulfill its end with the least possible mischief, and to accelerate, by all fair and reasonable means, a just and honorable 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 |