§ 118. Commencement of modern period of international law. Although treaties and leagues existed in ancient and medieval times, they did not begin to assume the prominent part in the political history of the world which they have. since attained, and now occupy, until the middle of the seventeenth century and shortly after Hugo Grotius, whose memory was so fitly celebrated by the American delegates to the Peace Conference at The Hague, had surprised all thinking men with his great book De Jure Belli ac Pacis, published in 1625. According to Dr. Wheaton, whose views in this respect have been generally adopted, the peace of Westphalia of 1648, which was evidenced by the treaty made at that time and place between the principal nations of Europe, may be chosen as the epoch from which the history of modern international law commences; this great transaction marks a most important era, not only in the history of international law, but also in the progress of European civilization.1 § 119. Disregard of colonies in treaties made by European powers as to American affairs.-From that time it became the settled custom of the great powers of Europe to the method of entering into such making treaties rests with those agreements, which must be taken into consideration by the parties to the contract. In the United States and other confederations the executive or treaty-making power cannot finally conclude treaties without the consent of the legislative bodies. The latter have to concur, and up to the time that this final consent of the concurring body has been obtained the other parties to the contract can withdraw their assent, unless this right has been waived." Glenn's International Law, St. Paul, 1895, pp. 139–142. LAWRENCE. authorities to whom it is confided 1 Wheaton's History of the Law of Nations, p. 69, New York, 1845; Walker's History of the Law of "We will now pass on to consider the treaty-making power and its methods of action, in so far as they are dealt with by International Nations, Cambridge, 1899, p. 147Law. In each state the right of 148. adjust all matters of dispute at the conclusion of every war by treaties. During the seventeenth and eighteenth centuries the American possessions of the European powers were in the early stages of development, their value was uncertain, and they were frequently used as make-weights in the adjustment of European disputes. The vast tracts of sparsely settled territory on the western side of the Atlantic were parceled out, sold, exchanged or otherwise disposed of, or affected in some manner, either as to the ownership thereof, or the sovereignty thereover, without any regard whatever to the wishes of the inhabitants, but simply according to the relative strength of the European nations, which were constantly engaged in warfare with each other, and which often found these possessions available in forcing settlements, or obtaining concessions, in their European controversies. Thus the treaty of Utrecht in 1713, and the treaty terminating the French and English war in 1763, as well as other treaties, greatly altered the relations of the American colonies to their European motherlands, notwithstanding the fact that the colonists had no voice whatever in framing or ratifying them.' During this period the frequent transfers from one nation to another of colonial possessions, and sovereignty thereover, as well as the frequent similar transfers of European possessions § 119. 1Some of the principal treaties made by European powers prior to 1783 and which affected American colonies were as follows: (1) The Treaty of Ryswick, between England and France concluded September 10–20, 1697, being "Articles of Peace between the most Serene and Mighty Prince William the Third, King of Great Britain, and the most Serene and Mighty Prince Lewis the Fourteenth, the most Christian King, concluded in the Royal Palace at Ryswick, the 10-20 day of September, 1697." This treaty was the conclusion of the war of the Palatinate, known as King William's, or Frontenac's War, which was one of the contests finally resulting in the overthrow of the French power in America. By Section 7 it is provided as follows: 66 The most Christian King shall restore to the said King of Great Britain, all countries, islands, forts, and colonies, wheresoever situated, which the English did possess before the declaration of this present war. And in like manner the King of Great Britain shall restore to the most Christian King all countries, islands, forts, and colonies, wheresoever situated, which the French did possess before the said declaration of war; and this restitution shall be made, on both sides, within the space of six months, or sooner if it can be done. firmly established, as a principle of international law, the right of sovereign powers to negotiate and conclude treaties affecting territory, and the transfer thereof, by and through the highest sovereign power having jurisdiction over the transferred territory, without regard to the wishes of the people, or, as it has been lately expressed, "the consent of Section 8 provided for the formali- ship between his Britannic Maties in connection with the trans-jesty, the most Christian King, and fer. For a summary of this treaty the States General of the United and references to the authorities Provinces; concluded at Aix-larelating thereto see Macdonald's Chapelle, the 18th day of October, Select Charters of American His- N. S. 1748; to which the Empress, tory, pp. 222, 223. See also Chal- Queen of Hungary, the Kings of mers' Collection of Treaties, vol. I, Spain and Sardinia, the Duke of pp. 332-340. Modena, and the Republic of Genoa, have acceded." By this treaty, at the conclusion of the War of the Austrian Succession, known in America as King George's War, Art. V provided: "V. All the conquests that have been made since the commencement of the war, or which, since the conclusion of the preliminary articles, signed the 30th of April last may have been or shall be made, either in Europe, or the East or West Indies, or in any other part of the world whatsoever, being to be restored without exception, in conformity to what was stipulated by the said preliminary articles, and by the declarations since signed; the high contracting parties engage to give orders immediately for proceeding to that restitu (2) The Treaty of Utrecht, between England and France, March 31-April 11, 1713, being "The Treaty of Peace and Friendship between the most Serene and most Potent Princess Anne, by the grace of God, Queen of Great Britain, France, and Ireland, and the most Serene and most Potent Prince Lewis the XIVth, the most Christian King, concluded at Utrecht, the 31-11 day of March-April, 1713." This treaty was concluded between France and Great Britain on the termination of the war of the Spanish succession, which in America was known as Queen Anne's War. Arts. X-XV (quoted at length in Macdonald's Select Charters) relate to the restoration by France to Great Britain of Hudson Bay and Newfoundland, France retaining tion. Canada. It appears in Chalmers' Collection of Treaties, vol. I, pp. 340-390. See also Macdonald's Select Charters of American History, pp. 229-232. (3) The Treaty of Aix-la-Chapelle, October 18, 1748, between England, France, The Netherlands, and other powers, being "The Definitive Treaty of Peace and Friend Art. IX provided for the details for the restoration of the conquered territory. An abstract of this treaty, together with memorandum of authorities in regard thereto, will be found in Macdonald's Select Charters of American History, pp. 251-253. See also Chalmers' Collection of Treaties, vol. I, pp. 424-442. the governed," which was discussed at length in the preceding chapter.2 § 120. Treaty-making power of Great Britain vested in the Crown. This treaty-making power, as it was exercised prior to the Confederation and has ever since been exercised by European powers, is probably the most far-reaching power and the highest prerogative that still remains vested in the Crown in those countries in which constitutional government has been combined with monarchical institutions. Notwithstanding the great constitutional liberties of England, the treaty-making power still remains in the British crown, and, according to Halleck, "In Great Britain the treaty-making power is a branch of the prerogative of the Crown, has in theory no limits." He however qualifies this by the statement that Parliament, by its power of legislation, may render a treaty ineffectual by refusing either to appropriate the money or to enact the legislation necessary to carry it into effect. The views of one of the leading author American History, pp. 261-266. See also Chalmers' Collection of Treaties, vol. 1, pp. 467-483. 1761, and a secret treaty between France and Spain concluded November 3, 1762, ceding Louisiana and New Orleans to Spain, the cession being to compensate Spain for the loss of Florida which Spain ceded to Great Britain. (4) The Treaty of Paris, February 10, 1763, between England, France, Spain and Portugal, being "The Definitive Treaty of Peace (5) There was a treaty of offensive and Friendship, between his Bri- and defensive alliance between tannic Majesty, the most Christian | France and Spain signed August 15, King, and the King of Spain; concluded at Paris, the 10th day of February, 1763. To which the King of Portugal acceded on the Same Day." This treaty was made on the termination of the Seven Years' War, known in America as the French and Indian War. The articles relating to America, by which Great Britain practically acquired all of the French possessions, with the exception of some islands, and by which Great Britain restored Cuba to Spain, and Spain transferred Florida to Great Britain, are Arts. IV-IX XVII-XX. An abstract of this treaty and the articles relating to America and references to the authorities will be found in Macdonald's Select Charters of (6) See also the treaties between Great Britain and France and Great Britain and Spain made September 3, 1783, at the same time as the treaty with the United States. Snow's American Diplomacy, pp. 111. 2 See chap. II, §§ 46-49, ante. 1 Halleck's International Law. See Sherstone Baker's 3d English edition, London, 1893, vol. 1, p. 308. ities on Crown prerogatives are quoted in the notes to this section.2 2 ANSON ON THE CROWN. "Sec. 3. War, Peace and Treaties. The Queen, acting on the advice of her Ministers, makes war and peace. The House of Commons may refuse supplies for a war, or either House may express its disapproval by resolutions condemnatory of the ministerial policy, or by address to the Crown, or by making the position of the ministry in other ways untenable: but Parliament has no direct means either of bringing about a war or of bringing a war to an end. 66 Nor does a decided expression of opinion by the House of Commons always overbear the policy of a ministry. In 1782 a resolution of the House of Commons, followed by an address to the Crown, caused Lord North to take steps to end the war with the American Colonies; but in 1857 a resolution of the House, condemnatory of the war with China, caused Lord Palmerston to appeal to the country, with the result that a majority of his supporters were returned at a general election. "The prerogative of the Crown in making peace is so much involved in questions as to the prerogative in making treaties that the two must be dealt with together. Parliament has only indirect means of bringing a war to a close, but it is hard to conceive of a peace concluded simply by a cessation of hostilities and mutual assurances of amity. Some engagements must be entered into or territory ceded, and a question arises in this form: No one but the Crown can bind the community by treaty, but can the Crown invariably do so without the co-operation of Parliament ? "This much appears to be certain; that where a treaty involves either a charge on the people or a change in the law of the land it may be made, but cannot be carried into effect, without the sanction of Parliament. Such treaties are therefore made subject to the approval of Parliament and are submitted for its approval before ratification, or ratified under condition. "Such are treaties of commerce which might require a change in the character or the amount of duties charged on exported or imported goods: or extradition treaties which confer on the executive a power to seize, take up and hand over to a foreign state, persons who have committed crime there and taken refuge here. "The question whether the Crown can, by treaty merely, extend to foreigners immunities from the law of the land, which would affect the private rights of citizens, was raised in the case of the Parlement Belge. "It was alleged in that case that the Queen had by convention with the King of the Belgians, conferred upon a ship, assumed by the Court to be a private ship engaged in trade, the immunities of a public ship, or ship of war, so as to disentitle a British subject from proceeding against her for injuries sustained in a collision. Sir Robert Phillimore held that the treaty-making prerogative did not extend this length and gave judgment against the ship. His decision was reversed by the |