or to waste a country, after the conclusion of the peace, and previous to the surrender, would be an act of perfidy. (c)

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, according to the intention of the contracting parties, 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. (d) 1 If a treaty should, in fact, be *175 violated by one of the contracting parties, either by pro

*

ceedings 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. (a) 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

(c) Ib. sec. 31.

(d) Grotius, b. 2, c. 16, sec. 1; Puff. b. 5, c. 12, sec. 1; Rutherforth's Institutes, b. 2, c. 7; Vattel, b. 2, c. 17; Eyre, Ch. J., in 1 Bos. & Pull. 438, 439; Opinion of Sir James Marriott, cited in 1 Chitty, Comm. Law, 44. But if the legislative and executive branches of the government have given and asserted a construction to a treaty with a foreign power, under which it claims dominion over a territory in its possession, the courts of justice will not set up or sustain a different construction. Foster v. Neilson, 2 Peters, 253. If a treaty be ambiguous in any part of it, the party who had the power, and on whom it was peculiarly incumbent to speak clearly and plainly, ought to submit to the construction most unfavorable to him, upon the reasonable maxim of the Roman law, that Pactionem obscuram iis nocere, in quorum fuit potestate legem apertius conscribere. Vattel, b. 2, c. 17, sec. 264.

(a) Grotius, b. 2, c. 15, sec. 15; b. 3, c. 20, sec. 35-38; Burlamaqui, pt. 4, c. 14, sec. 8, p. 355; Vattel, b. 4, c. 4, sec. 54.

1 See, as to note (d), Wilson v. Wall, 6 Wall. 83, 89, post, 286, n. 1.

But then they become newly

party by the force of arms. acquired rights, and partake of the operation and result of the new war. To recommence 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. (b) 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. (c) We have a strong instance, in our 176 own history, of the annihilation of treaties by the act of the injured party. In 1798, the Congress of the United States (a) 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, and they are extinguished and gone forever, unless revived by a subsequent treaty. 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,

(b) Grotius, b. 3, c. 20, sec. 27, 28; Vattel, b. 4, c. 4, sec. 42.

(e) Grotius, b. 3, c. 19, sec. 14; Vattel, b. 4, c. 4, sec. 47, 48; b. 2, c. 13, sec 202. (a) Act of July 7, 1798.

and the most pathetic and eloquent appeals which could be addressed to the reason and to the moral sense of nations. (b) The tenth 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 * 177 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, (a) 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. (b)

(b) Vattel, b. 3, c. 10, sec. 174; Grotius, b. 3, c. 25; Heinecc. Jur. Nat. et Gent. b. 2, c. 9, p. 213.

(a) 8 Wheaton, 494; Sutton v. Sutton, 1 Russ. & My. 663, s. p.

(b) The American Ministers, in their negotiations at London, in 1818, with the British government, insisted that the third article of the treaty of September, 1783, relative to the fisheries, was a fundamental and permanent article, securing a primary right, not annulled, though the exercise of the right was interrupted by the war of 1812; and that the right remained in full force, after the termination of the war, notwithstanding it was not noticed in the treaty of Ghent. The British commissioners, on the other hand, alleged that the war of 1812 cancelled the provision, and, not being renewed by the subsequent treaty of peace, the right was extinguished. The two nations at last agreed to the convention of the 20th of October, 1818, modifying and settling the question as to the fisheries, without yielding, on either side, their construction of the operation of the war of 1812, upon the treaty of 1783. Rush's Memoranda, 354-368. See the Diplomatic Correspondence between Mr. Adams and Lord Bathurst, in 1815. In this correspondence, the British negotiator admitted that the

4. Of Territories Ceded or Acquired. 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 [ad] rem and the jus in re, according to the distinction of the civilians, and which Barbeyrac (c) 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 prac- *178 tice 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 William Scott in the opinion which he gave in the case of the Fama. (a)1

acknowledgment of a right or title in a treaty of peace was, in its own nature, of perpetual obligation. The cession of a right, as that of boundary lines and places, for instance, would seem to fall within the same principle. Such were the treaties of Munster, 1648, and of Utrecht, 1713, which, after long and exhausting wars, settled the rights of the great European powers on a solid and permanent foundation, and are still deemed to be in vigor, and intimately connected with the settlement of Europe. The history of the fisheries question will be found 5 Am. Law Rev. 389.] (c) Puff. par Barbeyrac, liv. iv. c. 9, sec. 8, note 2.

(a) 5 C. Rob. 106. It is a settled principle, in the law and usage of nations, that the inhabitants of a conquered territory change their allegiance, and their relation to their former sovereign is dissolved; but their relations to each other, and their rights of property, not taken from them by orders of the conqueror, remained undisturbed. The cession or conquest of a territory does not affect the rights of property. Vattel, b. 3, c. 13, sec. 200; The United States r. Percheman, 7 Peters, 51; Mitchel v. The United States, 9 Peters, 711; Strother v. Lucas, 12 Peters, 410, 438. The laws, usages, and municipal regulations in force at the time of the conquest or cession, remain in force, until changed by the new sovereign. Calvin's case, 7 Co. 17; Campbell r. Hall, Cowp. 209; 9 Peters, 711, 734, 748, 749; Strother v. Lucas, 12 Peters, 410. There is no doubt of the power of the sovereign to change the laws of a conquered or ceded country, unless restrained by the capitulation or treaty of cession. In the case of the Canal Appraisers v. The People, in 17 Wendell, 587, Chancellor Walworth declared, that in the case of a country acquired by conquest, no formal act of legislation is necessary to change the law; the mere will of the conqueror is sufficient.

1 See, on the first statement in note (a), United States v. Repentigny, 5 Wall.

211; on the next, Leitensdorfer v. Webb, 20 How. 176.

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 New York 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 This is the case in governments where the conqueror is in possession of the legislative as well as the executive power; and until a nation or territory is wholly subdued, the conqueror is only entitled, by the usage of nations, to hold it as a temporary possession, by military occupation, until the final issue of the conquest is settled by treaty, or by the competent constitutional power. The principle of national law, as declared by the courts of the United States, is, that conquest does not give the conqueror plenum dominium et utile. A temporary right of possession and government is only acquired, unless the treaty of peace settles the question otherwise, or there be an absolute abandonment of the territory by the former sovereign, or an irretrievable subjection to the conqueror. United States v. Hayward, 2 Gallison, 486; Clark v. United States, 3 Wash. 104. The rule is different when a country is claimed by the right of discovery and occupancy, and not by right of conquest or cession. In the former case, the discoverers and new occupants carry with them all the general laws of the mother country applicable to their new situation as colonies, and they become, ipso facto, the law of the country. Such was the case with the United States, when they were first colonized by Great Britain; and this was the case, says Chancellor Walworth, with New York, when conquered from the Dutch in 1664; for the English held it, though acquired by conquest from the Dutch, not by that title merely, but by the prior right of discovery. But if he was in error on that point, yet, when the English acquired 'possession of New York by force, in 1664, the charter granted in that year to the Duke of York contained an explicit declaration of the king's will, that the laws of England should be the established laws of the province, and this put an end to the operation of the Roman Dutch laws imported from Holland. The illustrations above alluded to, of the sovereign power of the conqueror over the laws of the conquered countries, appears in the case of the northern barbarians who overran the south of Europe during the 5th and 6th centuries. They neither adopted their own laws entirely, nor retained those of the conquered countries to their full extent. The Roman provincials were governed between themselves, as to their possessions and personal rights, by the Roman law; the Salian Franks, by the Salic law; the Franks of the Rhine, by the Ripuarian law; the Alemans and Swabians, by the Alemannic law; and the Lombards by their own law. (Savigny's Hist. of the Roman Law, i.; and see infra, iii. 491.) So the Mahometan conquerors of Hindostan introduced their own law so far only as it affected the followers of Mahomet, leaving the conquered Hindoos to enjoy their own laws as between themselves. There is, therefore, now in India one law for Europeans and their descendants, another for the Hindoos, and another for the Mahometans; and these different laws have been adopted in India by the will of the English sovereign, without any parliamentary authority. The conquest of Gibraltar, Trinidad, Ceylon, the Cape of Good Hope, Louisiana, &c., all show that the old laws remain, or the laws of the conquering nation, in whole or in part, are substituted, at the mere will and pleasure of the conqueror.