TREATIES OF PEACE, PROVISIONS OF. Alienation of public domain and public property. 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 transferring 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 nations. 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. Kent, vol. I, p. 181. Private rights. 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. Kent, vol. I, pp. 181, 182; The Schooner Peggy, 1 Cranch, 103; Ware v. Restoration. Things stipulated to be restored by the treaty are to be restored in the condition in which the treaty found them, unless there be an express stipulation to the contrary. A fortress or town is, therefore, to be restored as it was when taken, so far as it still remains in that condition when the peace is concluded. There is no obligation to repair a dismantled fortress, nor to restore the former condition of a ter ritory which has been ravaged by the operations of war. On the other hand, to dismantle a fortification or to lay waste a country, after the conclusion of peace, would be an act of perfidy. A conqueror may, however, demolish new works constructed by himself, but not repairs made by him in old works which he himself had injured during the war. The remarks of Vattel on this subject have been approved and adopted by subsequent writers: "Those things," he says, "of which the restitution is, without further explanation, simply stipulated in the treaty of peace, are to be restored in the same state in which they were taken; for the word restitution naturally implies that everything should be replaced in its former condition. Thus, the restitution of a thing is to be accompanied with that of all the rights which were annexed to it when taken. But this rule must not be extended to compromise those changes which may have been the natural consequences and effects of the war itself and of its operations." The products of things restored or ceded by the treaty of peace, are due from the time the restoration or cession of the things themselves takes effect or is due. But all products which were due or collected prior to the date of the restitution or cession, are not to be delivered up. unless otherwise specially stipulated in the treaty, for the fruits belong to the proprietor of the thing, and the possession of things taken in war is accounted a lawful title, subject, however, to the conditions of peace. "For the same reason," says Vattel, "the cession of a fund does not imply that of the produce anteriorly due. This Augustus justly maintained against Sextus Pompeius, who, on having the Peloponnesus given to him, claimed the imposts of the former years." (Vattel, Droit des Gens, liv. 4, ch. 3, §§ 30, 31; Appian, De Bel. Cia lib. 5; Grotius, de Jur. Bel, ac Pac., lib. 2, cap. 29, § 22; Bello, Derech Internacional, pt. 2, cap. 9, § 6; Wheaton, Elem. Int. Law, pt. 4. ch 4. § 6.) Halleck, 859, 860. Contributions. The same rule is laid down by Vattel, with respect to contributions levied upon the territory or inhabitants ceded or restored by the treaty of peace. "To raise contributions," he says, "is an act of hostility, which, on the conclusion of peace, is to cease. Those before promised, and not yet paid, are due, and may be required as a det But, in order to obviate all difficulty, it is proper that the contracting parties should clearly and minutely explain their intentions respecting matters of this nature; and they are generally careful to do so." But the correctness of the rule, as thus applied to territory restored by the treaty, may very well be doubted. There is a broad distinction between military and civil rights; the latter are acquired by contract, conveyance, or other title, and are evidenced by the ordinary proofs of title; while the latter are acquired by capture or conquest, and are evidenced by possession alone--they begin and end with possession. If the conquest is restored by the treaty of peace, the right of possession is terminated, and with it all the incidental rights of military occupation, such as the right of levying and collecting military contributions. The principle of uti possidetis being the basis of every treaty of peace, unless otherwise specially provided in the treaty itself, it follows that the conqueror (the treaty being silent on this point,) is entitled to all the contributions which he has collected, by the right of military occupation, of the belligerent territory now surrendered; but not to those which he has levied but failed to collect. His rights over the inhabitants of such territory are military rights, and, consequently, terminate with the right of possession, i. e., with the treaty of peace which restores the conquest. (Vattel. Droit des Gens, liv. 4, ch. 3, $29; Duponceau, Translation of Bynkershoek, p. 116, note; Wheaton, Elem. Int. Law, pt. 4, ch. 4, § 4; Vide Ante, hapters xxxii and xxxiii; Heffter, Droit International, §§ 176. et seq.; Bello, Derecho Internacional, pt. 2, cap. 9, § 6.) Halleck, pp. 860, 861. Alienation of private property. 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. The duty of making compensation to individuals, whose private property is thus sacrificed to the general welfare, is inculcated by public jurists, as correlative 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 dismember ment of the State. When, then, the cession of territory is the resth of coercion and conquest, forming a case of imperious necessity be yond the power of the State to control, it does not impose any obliga tion upon the government to indemnify those who may suffer a loss of property by the cession. Wheaton, p. 712. Dismemberment of State. The fundamental laws of most free governments limit the treatymaking power, in respect to the dismemberment of the State, either by an express prohibition, or by necessary implication from the nature of the constitution. Thus, even under the constitution of the old French monarchy, the States-General of the kingdom declared that Francis I. had no power to dismember the kingdom, as was attempted by the treaty of Madrid, concluded by that monarch; and that t merely upon the ground that he was a prisoner, but that the assent of the nation, represented in the States-General, was essential to the validity of the treaty. The cession of the province of Burgundy was therefore annulled, as contrary to the fundamental laws of the kingdom; and the provincial States of that duchy, according to Mezeray, declared, that "never having been other than subjects of the crown of France, they would die in that allegiance; and if aban doned by the king, they would take up arms, and maintain by force their independence, rather than pass under a foreign dominion.” But when the ancient feudal constitution of France was gradually abolished by the disuse of the States-General, and the absolute monarchy became firmly established under Richelieu and Louis XIV. the authority of ceding portions of the public territory, as the price of peace, passed into the hands of the king, in whom all the other powers of government were concentrated. The different constitutions established in France, subsequent to the Revolution of 1789, limited this authority in the hands of the executive in various degrees. The provision in the Constitution of 1795, by which the recently conquered countries on the left bank of the Rhine were annexed to the French territory, became an insuperable obstacle to the conclusion of peace in the conferences at Lisle. Wheaton, pp. 712, 713. Confederated Governments. In confederated governments, the extent of the treaty-making power, in this respect, must depend upon the nature of the confederation. If the union consists of a system of confederated States. each retaining its own sovereignty complete and unimpaired, it is evident that the federal head, even if invested with the general power of making treaties of peace for the confederacy, cannot lawfully alienate the whole or any portion of the territory of any member of the union, without the express assent of that member. Such was the theory of the ancient Germanic Constitution; the dismemberment of its territory was contrary to the fundamental laws and maxims of the empire; and such is believed to be the actual constitution of the present Germanic Confederation. This theory of the public law of Germany has often been compelled to yield in practice to imperious necessity; such as that which forced the cession to France of the territories belonging to the States of the empire, on the left bank of the Rhine, by the treaty of Luneville, in 1800. Even in the case of a supreme federal government, or composite State, like that of the United States of America, it may, perhaps, be doubted how far the mere general treaty-making power, vested in the federal head, necessarily carries with it that of alienating the territory of any member of the union without its consent. Wheaton, p. 714. In United States. The disputed north-eastern boundary between Great Britain and the United States involved the territory of the State of Maine, in which Massachusetts also had an interest. The line established by the Ashburton Treaty, of 1842, differed from that claimed by Maine, and ceded parts over which Maine had exercised jurisdiction. Still, the treaty was a sovereign act of the United States with Great Britain, and operated an international settlement. Neither of the States of Maine or Massachusetts was in any way party to it, or named in it, except in the fifth article, in which the United States agrees to receive and pay over to those States certain portions of a common fund established by consent, for the care of the territory while under dispute, and to pay to those States a further sum "on account of their assent to the line of boundary described in this treaty." Lord Ashburton disclaimed all responsibility of Great Britain for any matters between the United States and the individual States referred to in that article. Commissioners on the part of Maine and Massachusetts gave their assent to the treaty before it was concluded by the government; but that was an internal matter, and did not concern Great Britain. Neither is the fact that the United States chose to secure the consent of Massachusetts and Maine, conclusive upon the much canvassed question of its constitutional power to have made the treaty without their assent. (United States Laws, viii. 554. Webster's Works, vi. 272, 289. Opinions of Attorneys-General, vi. 756, Kent's Comm. i. 166, 167. Woolsey's Introd. § 99. Halleck's Intern. Law, 848. The schooner Peggy, Cranch, i. 103. Ware . Hilton, Dallas, iii. 199.) Wheaton, pp. 714, 715, Dana's note 250. |