to the time of signing; (b) but like a truce, it cannot affect the subjects of the nation with guilt, by reason of acts of hostility subsequent to the date of the treaty, provided they were committed before the treaty was known. All that can be required in such cases is, that the government make immediate restitution of things captured after the cessation of hostilities; and to guard against inconvenience from the want of due knowledge of the treaty, it is usual to fix the periods at which hostilities are to cease at different places, and for the restitution of property taken afterwards. (c)

In

But though individuals are not deemed criminal for continuing hostilities after the date of the peace, so long as they are ignorant of it, a more difficult question to determine is, whether they are responsible civiliter in such cases. Grotius (d) says, they are not liable to answer in damages, but it is the duty of the government to restore what has been captured and not destroyed. the case of the American ship Mentor, (e) which was taken and destroyed, off Delaware Bay, by British ships of war, in 1783, after the cessation of hostilities, but before that fact had come to the knowledge of either of the parties, the point was much discussed; and it was held, that the injured party could not pass over the person from whom the alleged injury had been received, and fix it on the commander of the English squadron on that station, who was totally ignorant of the whole transaction, and at the distance of thirty leagues from the place where it passed. There was no instance in the annals of the prize courts of such a remote and consequential responsibility in such a case. * 171 The actual wrong-doer is the person to answer in judgment, and to him the responsibility, if any, is attached. He may have other persons responsible over to him, but the injured party could look only to him. The better opinion was, that though such an act be done through ignorance of the cessation of hostilities, yet mere ignorance of that fact would not protect the officer from civil responsibility in a prize court; and that if he acted through ignorance, his own government must protect

(b) Hylton v. Brown, 1 Wash. 312.

(c) Vattel, b. 4, c. 3, sec. 24, 25; ib. b. 2, c. 12, sec. 156, 157; ib. b. 8, c. 16; 2 Dallas, 40; Azuni, ii. 227; Hylton v. Brown, 1 Wash. 311, 312, 342, 351. (d) B. 3, c. 21, sec. 5.

(e) 1 C. Rob. 179. [The Ostsee, 9 Moore, P. C. 150, 176.]

him and save him harmless. When a place or country is exempted from hostility by articles of peace, it is the duty of the government to use due diligence to give its subjects notice of the fact; and the government ought, in justice, to indemnify its subjects who act in ignorance of the peace. And yet it would seem from that case that the American owner was denied redress in the British admiralty, not only against the admiral of the fleet on that station, but against the immediate author of the injury. Sir William Scott denied the relief against the admiral; and ten years before that time relief had equally been denied by his predecessor against the person who did the injury. If that decision was erroneous, an appeal ought to have been prosecuted. We have, then, the decision of the English High Court of Admiralty, denying any relief in such a case, and an opinion of Sir William Scott many years afterwards, that the original wrong-doer was liable. The opinions cannot otherwise be reconciled, than upon the ground that the prize courts have a large and equitable discretion, in allowing or withholding relief, according to the special circumstances of the individual case; and that there is no fixed or inflexible general rule on the subject.

If a time be fixed by the treaty for hostilities to cease in a given place, and a capture be previously made, but with knowledge of the peace, it has been a question among the writers on public law, whether the captured property should be restored. The better and the more reasonable opinion * is, that the cap- *172 ture would be null, though made before the day limited, provided the captor was previously informed of the peace; for, as Emerigon (a) observes, since constructive knowledge of the peace, after the time limited in different parts of the world, renders the capture void, much more ought actual knowledge of the peace to produce that effect. (b)

(a) Valin, Traité des Prises, c. 4, sec. 4, 5; Emerigon, Traité des Ass. c. 12, sec. 19; Azuni on Maritime Law, ed. N. Y. ii. 231.

(b) This point was extensively discussed in the French prize courts, in the case of the capture of the British ship Swineherd, by the French privateer Bellona, in 1801, and what was sufficient knowledge of the fact of the peace to annul the capture was the great question. The English ship was taken possession of, and carried into the Isle of France, and libelled, and condemned as lawful prize of war. The sentence of condemnation was affirmed in 1803, on appeal to the Council of Prizes at Paris, and M. Merlin has reported at large the elaborate argument and opinion of M. ColletDescotils, the imperial advocate-general in the Council of Prizes, in favor of the captors. The ground he took, and upon which the Council of Prizes proceeded, was,

* 173

*Another question arose subsequent to the treaty of Ghent, of 1814, in one of the British vice-admiralty courts, on the validity of a recapture, by a British ship of war, of a British vessel captured by an American privateer. The capture made by an American cruiser was valid, being made before the period fixed for the cessation of hostilities, and in ignorance of the fact; but the prize had not been carried into port and condemned, and while at sea she was recaptured by the British cruiser after the period fixed for the cessation of hostilities, but without knowledge of the peace. It was decided that the possession of the vessel by the American privateer was a lawful possession, and that the British cruiser could not, after the peace, lawfully use force to devest this lawful possession. The restoration of peace put an end, from the time limited, to all force, and then the general principle applied, that things acquired in war remain, as to title and possession, precisely as they stood when the peace took place. The uti possidetis is the basis of every treaty of peace, unless it be otherwise agreed. Peace gives a final and perfect title to captures without condemnation; and as it forbids all force, it destroys all hopes of recovery as much as if the vessel was carried infra præsidia, and

*

condemned. (a) A similar doctrine was held in the case *174 of the Schooner Sophie, (a) and a treaty, of peace has the effect of quieting all titles of possession arising from the war, and of putting an end to the claim of all former proprietors to things of which possession was acquired by right of war.

If nothing be said to the contrary, things stipulated to be restored are to be returned in the condition in which they were taken; but this does not relate to alterations which have been

that the king's proclamation of the signature of the preliminary articles of peace, though made known repeatedly to the French cruiser before the capture, but unaccompanied by any French attestation, was not that sufficient and indubitable evidence to the French cruiser of the fact of the peace, upon which he ought to have acted, and that the period of the five months had not elapsed, within which it was lawful, in the Indian seas, to continue hostilities. The learned and venerable author of that immense work, the Repertory of Jurisprudence, says, on introducing the case, that he shall be silent on the question, and contents himself with giving the discussions, and particularly the opinion of the advocate-general, and the reasons of the Council of Prizes. See Répertoire Universel et Raisonné de Jurisprudence, par M. le Comte Merlin, xiii. tit. Prise Maritime, sec. 5.

(a) Case of the Legal Tender, Halifax, April, 1815, cited in Wheaton's Dig. 302. (a) 6 C. Rob. 138.

the natural consequence of time, and of the operations of war. A fortress or a town is to be restored in the condition it was when taken, so far as it shall still be in that condition when the peace is made. (b) There is no obligation to repair, as well as to restore, a dismantled fortress, or a ravaged territory. The peace extinguishes all claim for damages done in war, or arising from the operations of war. Things are to be restored in the condition in which the peace found them; and to dismantle a fortification, 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 violated by one of the contracting * parties, either by pro- *175 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.

(b) Vattel, b. 4, c. 3, sec. 31, 34.

(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. 8, 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.

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 party by the force of arms. But then they become newly 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 *176 in full force. (c) We have a strong instance, in our 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,

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

(c) 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 7th, 1798.