to condemn the conduct of the elector, as contrary to law and justice. His pretext for denying the validity of these alienations, was mainly founded upon the "lex de captivis et postliminio" of the Roman law; but it was readily shown that this law could not be applied directly, and that the argument deduced from its analogy was adverse to his position. He virtually acknowledged the weakness of his case, by refusing to arbitrate the question, or even to permit his own courts to take cognizance of it. (Phillimore, On Int. Law, vol. 3, §§ 573, 574; Pfeiffer, Dos Recht des Kreigseroberung, p. 237; Heffter, Droit International, §§ 185, 186; Schweikart, Napoleon und die Curh., pp. 60, et seq.; Rotteck und Welcker, Staats Lexikon, verb. Domainenkaufer; Conversationes Lexikon, verb. Domainenverkauf; Koch, Hist. de Traités de Paix, tome 3, p. 364; Encyclopædia Americana, verb. Domain, digest, xlix. t. xv. 12, 3.)

§ 29. The Prince of Hesse-Cassel, also denied the validity of the payment or cancellation of the debts which were owing to his government in 1806, and which had been paid or alienated prior to his restoration. Being absolute lord over his subjects, who were exceedingly poor, he had enriched himself by selling their valor and lives, to fight the battles of other sovereigns, and the gold thus acquired had been invested in his own name, as sovereign, in loans and mortgages, to the inhabitants of other states. On the conquest of Hesse-Cassel, by Napoleon, these debts were confiscated, and made payable only to the treasury of what was called the "domaine extraordinaire." And when the greater part of this Electorate was incorporated into the kingdom of Westphalia, a compact was entered into at Berlin, between king Jerome and Napoleon, for the division and adjustment of the debts owing to the extinguished electorate. The Bonapartes had no difficulty in collecting those due from the subjects of their newly-acquired dominions, for there force could be resorted to, in order to compel payment; but where the debtors resided in other states, the payment was in a measure voluntary, and even where the debtors were willing to pay, a difficulty occurred in releasing the mortgages, as the record could be canceled only by the authority of the creditor therein named. To remove this difficulty in the Duchy of Mecklenburg, the duke issued an order, circular rescript, on

the 15th of June, 1810, which, after reciting the complete conquest of Hesse-Cassel by Napoleon, and the extinguishment of the former sovereignty, directed the court of registration to record, as extinguished, those mortgages in favor of Hesse-Cassel on estates in that duchy, for which a discharge or receipt had been given by Napoleon, or by his appointee for that purpose. Among the estates so mortgaged and released, were those of a certain count Van Hahn, whose case acquired much celebrity and will serve to illustrate the fact and the law. After the death of the count and the restoration of the prince of Hesse-Cassel, the latter instituted proceedings as a creditor against his estate, denying the validity of the payment and the legality of the discharge of the mortgage. The first tribunals, (the university of Breslau in 1824, and that of Kiel in 1831,) decided, in substance, that the prince might recover that portion of the debt which had not been actually paid to Napoleon, and no more. Both parties being dissatisfied with this judgment, an appeal was taken to another university, (tribunal,) which learned body delivered at great length the reasons of their final decision, which was, in substance, that all the debts to Hesse-Cassel, for which discharges had been given in full by Napoleon, whether the whole sum had been actually paid or not, were validly and effectually canceled, and that the debtors could not be called upon to pay a second time. These learned jurists drew a broad distinction between the acts of a transient conqueror on mere military occupation, and those of one whose rights and titles had been ratified by the public acts of the state, and recognized in treaties with foreign powers. The judgments of the tribunals of Breslau and Kiel, were based on the supposition that the conquest was only a temporary one; but the learned judges said it was impossible to consider the return of the prince of Hesse-Cassel as a continuation of his former government. They rejected the consideration of the justice or injustice of the war, in which the electorate had been conquered, nor did they attach any importance to the fact, that the prince had carried away with him, and retained possession of, the instruments containing the written acknowledgment of the debtor. It will be noticed that this decision virtually confirms the validity of the alienation of domains made

by the de facto governments of the conquests of Napoleon. (Schweckart, Napoleon und die Curh., pp. 8-104; Pfeiffer, Das Recht der Kriegseroberung, pp. 240-252; Heffter, Droit International, §§ 186, 188; Rotteck und Welcker, Staatt's Lexikon, tit. Domainenkaufer; Zachariæ, ueber die Verpflichtung, etc., b. iv, p. 104; Conversations Lexikon, tit. Dominen; Encyclopedia Americana, tit. domain; Phillimore, On Int. Law, vol. 3, §§ 568–572.)

CHAPTER XXXIV.

TREATIES OF PEACE.

CONTENTS.

1. Peace the end and object of war-2 2. Power to make war does not necessarily imply that to make peace-3. Laws of different states-84. Power of a prisoner of war to treat- 5. Alienation of territory and private property - 6. Duty of compensation—? 7. Allies and associates, in regard to a treaty of peace-28. General character and effects of such treaty29. Implied amnesty-10. New grievances from same cause- 11. Claims unconnected with causes of the war- 12. Principle of uti posseditis-13. Treaties of peace bind the whole state-14. When obligations commence-2 15. Upon individuals - 16. Individuals liable for civil damages- 17. Constructive and actual knowledge of peace- 18. Recaptures after treaty of peace-19. In what condition things are to be restored-20. Unpaid military contributions - 21. Effect of coercion on validity of treaty-22. Effect of peace on former treaties—§ 23. Breach of a treaty of peace- 24. Delays, etc., in carrying treaty into effect25. War for new cause or for breach of treaty of peace.

§ 1. It has been laid down as "an unquestionable proposition of international law that there is a legal as well as a moral necessity that, with the ceasing of the causes which justified the inception of the war, the war itself should cease." Vattel enforces the obligation to seek peace as the end of war, and argues that no matter how just the war may have been at the commencement, it must not be continued beyond its lawful object, which is to procure justice and

safety, and the moment an equitable compromise can be procured, it should cease. The obligation to accept a peace sufficiently safe, is also strenuously argued by Grotius. Other writers say that when, by use of the legal means of war, the invaded right has been obtained or secured, the injury redressed, or the threatened danger averted, the abnormal state of war must cease, and the normal state of peace must be reëstablished. Some, who advocate the general right of external intervention, deem it a most proper occasion to exercise that right, when a war, though lawfully begun, is unlawfully continued beyond the just objects of its inception. There are three ways by which a war may be concluded and peace restored: 1st, By the unconditional submission of one belligerent to another; 2d, By a de facto cessation of hostilities, and a de facto renewal of the relations of peace, by both belligerents; and 3d, By a formal treaty of peace. We shall here discuss only the latter. (Vattel, Droit des Gens, liv. 4, ch. 1, §§ 6, 7, 9; Grotius, De Jur. Bel. ac Pac., lib. 3, ch. 25, § 3; Phillimore, On Int. Law, vol. 3, §§ 509, et seq.; Bello, Derecho International, pt. 2, cap. 9, § 6; Burlamaqui, Droit de la Nat. et des Gens, tome 5, pt. 4, ch. 14; Albericus Gentilis, De Legationibus, lib. 3, cap. 1; Zouch, De Jure, etc., part 2, sec. 9; Wolfius, Jus Gentium, cap. 8; Kampts, Literatur des Voelk., §§ 321, 331; Kent, Com. on Am. Law, vol. 1, p. 165; Wildman, Int. Law, vol. 1, p. 139; Rayneval, Inst. du Droit Nat., etc., liv. 3, ch. 21; Heffler, Droit Internacional, § 179.)

§ 2. 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