Gens, liv. 3, ch. 13, §§ 197, 198; Martens, Precis du Droit des Gens, § 282; Kluber, Droit des Gens Mod., §§ 254-259; Mably, Droit de l' Europe, tome 1, ch. 2, p. 144; The Foltina, 1 Dodson's Rep., p. 452; Riquelme, Derecho Pub. Int., lib. 1, tit. 1, cap. 13; Bello, Derecho Internacional, pt. 2, cap. 9, § 6; Heffter, Droit International, § 181.) Halleck, pp. 853, 854.

Treaties of peace are equally valid, whether made with the authorities which declared the war, or with a new ruling power or de facto government. Other nations have no right to interfere with the domestic affairs of any particular nation, or to judge of the title of the party in possession of the supreme authority. They are to look only to the fact of possession, and the power conferred upon such authorities, by the then existing plan of government, or fundamental law. Treaties of peace, made by the competent authorities of such governments, are obligatory upon the whole nation, and, consequently, upon all succeeding governments, whatever may be their character. "If the treaty requires the payment of money, to carry it into effect,” says Kent, "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 diplomatic regulations and contracts with foreign powers. All treaties made by that power, become of absolute efficacy, because they are the supreme law of the land."· (Kent, Com. on Am. Law, vol. 1, pp. 165, 166; Vattel, Droit des Gens, liv. 4, ch. 2, § 14; Bello, Derecho Internacional, pt. 2, cap. 9, § 6; Heffter, Droit International, § 84.)

Halleck, pp. 854, 855.

Although occasionally war ends through simple cessation of hostilities, and although subjugation is not at all rare or irregular, the most frequent end of war is a treaty of peace. Many publicists correctly call a treaty of peace the normal mode of terminating war. On the one hand, simple cessation of hostilities is certainly an irregular mode. Subjugation, on the other hand, is in most cases either not within the scope of the intention of the victor or not realisable. And it is quite reasonable that a treaty of peace should be the normal end of war. States which are driven from disagreement to war will, sooner or later, when the fortune of war has given its decision,

be convinced that the armed contention ought to be terminated. Thus a mutual understanding and agreement upon certain terms is the normal mode of ending the contention. And it is a treaty of peace which embodies such understanding.

Oppenheim, vol. II, pp. 327, 328.

The Making of the Treaty of Peace. The part played by good offices and mediation in the opening of negotiations for peace, and the incidental procedure, have already been touched on. The fact that negotiations for peace have been entered on does not, however, in itself suspend hostilities; although such a suspension is usually provided for by armistice, which is itself governed by the laws and usages of war. The treaty of peace is sometimes preceded by “preliminaries of peace," which are intended not merely to suspend but to bring both hostilities and other incidents of the state of war to a close, at an earlier moment than the arrangement of a definitive treaty would allow. They embody, in fact, the essential conditions agreed on, and, although intended to be replaced and capable of being modified by the definitive treaty, they are regarded as binding as from the date of their signature. Sometimes, however, either by the preliminaries of peace or by the definitive treaty, a future date is fixed for the termination of hostilities, or even different dates for different localities; the effect of which will be considered hereafter. The actual terms of peace depend, of course, on the relative position of the parties. Nevertheless the effect of a war of any magnitude on the interests of other States is now so considerable, that both the conclusion of peace and the terms agreed on are often influenced greatly by the pressure of international opinion, of which the Treaty of Portsmouth may be said to afford an example.

Cobbett, pt. II, p. 226, 227.

Walker v. Baird, A. C. 491.-Lord Herschell said (p. 497): “The learned Attorney-General, who argued the case before their Lordships on behalf of the appellant, conceded that he could not maintain. the proposition that the Crown could sanction an invasion by its officers of the rights of private individuals whenever it was necessary in order to compel obedience to the provisions of a treaty. The proposition he contended for was a more limited one. The power of making treaties of peace is, as he truly said, vested by our constitution in the Crown. He urged that there must of necessity also reside in the Crown the power of compelling its subjects to obey the provisions of a treaty arrived at for the purpose of putting an end to a state of war. He further contended that if this be so, the power must equally extend to the provisions of a treaty having for its object the preservation of

peace, that an agreement which was arrived at to avert a war whic was imminent was akin to a treaty of peace, and subject to the same constitutional law. Whether the power contended for does exist in the case of treaties of peace, and whether if so it exists equally in the case of treaties akin to a treaty of peace, or whether in both or either of these cases interference with private rights can be authorized otherwise than by the legislature, are grave questions upon which their Lordships do not find it necessary to express an opinion. Their Lordships agree with the Court below in thinking that the allegations contained in the statement of defence do not bring the case within the limits of the proposition for which alone the appellant's counsel contended."

TREATIES OF PEACE, WHO MAY MAKE.

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 interest, with the requisite secrecy and despatch.

Kent, vol. I, p. 180.

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 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.

Kent. vol. I, pp. 180, 181.

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 further 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.

Kent, vol. I, p. 182.

The power to declare war does not necessarily include that of making a treaty of peace. These two powers are intimately connected. and the latter would seem naturally to follow the former. They are, therefore, generally associated together, though not always. In unlimited monarchies both reside in the sovereign; and even in limited or constitutional monarchies, both may be vested in the crown, yet the conditions of the treaty of peace may be such as to require its ratification by other authorities of the state. For, although the state may have intrusted to the prudence of her ruler the general authority to determine on war and peace, yet this power may be limited in many particulars by the fundamental law or constitution. A nation has the free disposal of its own domestic affairs and form of government, and its sovereign power of making war and peace may be intrusted to a single person, or it may be divided among a number of persons. (Wheaton, Elem. Int. Law, pt. 4, ch. 4, § 1; Kent, Com. on Am. Law, vol. 1, p. 165; Chitty, Com. Law, vol. 1, p. 378; Merlin, Repertoire, verb. Declaration de Guerre; Heffter, Droit Internacional, §§ 81, et seq.; Vattel. Droit des Gens, liv. 4, ch. 2, § 10; The Hoop, 1 Rob. Rep., p. 196.)

Halleck, pp. 845, 846.

Thus, Francis I., of France, attempted by the treaty of Madrid, to cede to the emperor Charles V. the province of Burgundy; but the states-general, under the constitution of the old French Monarchy, declared that the king had no authority to alienate any part of the kingdom by a treaty of peace. The cession of the province of Burgundy was, therefore, annulled, as contrary to the fundamental laws of the kingdom. Under Richelieu and Louis XIV. the old feudal constitution of France was abolished, and all the powers of government concentrated in the hands of the king. Of the different constitutions established in France since the revolution of 1789, some have limited the power of concluding a peace, while others have vested it in the crown without any nominal limitation. Nevertheless, so long as the chambers exercise a legislative authority, they necessarily exercise an influence on the treaty-making power, in their right to refuse the passage of laws to carry such treaties into effect. In Great Britain, the treaty-making power, as a branch of the prerogative of the crown, has, in theory, no limits; but in the practical administra