CHAPTER XX. ON THE PUBLIC FAITH, BY WHICH WAR IS CONCLUDED; TURE OF ARBITRATION, SURRENDER In monarchies the power of making peace a royal prerogative — In aristocracies and democracies, this right belongs to a greater number of persons-In what manner the public dominions or any part of them may be alienated-How far a peace concluded by the king binds the state, or his successors - Property of individuals ceded for the benefit of the state at the time of making peace-Indemnity to those individuals-Losses sustained in war-No distinction between things acquired according to the law of nations and the civil lawTransactions of the sovereign with foreign nations deemed valid from motives of public utility - General rule of interpreting the terms of peace-In doubtful cases the former state of things supposed to be continued by a treaty of peace-Things restored to the state they were in before the war- Independent states, voluntarily joining one of the belligerent powers cannot claim indemnity of the other-General amnesty- Private debts subsisting before the war not included therein- Restoration of captures - Rules respecting such restorations-Dubious points to be interpreted to the prejudice of the party dictating the terms - Distinction between new causes of war, and the breach of a peace - Rupture by any act contrary to the terms of peace in general-Infraction of a treaty by allies or subjects -Violation of a particular treaty - Heads of treaties - Penalties annexed — Unavoidable impediments to the fulfilment of a treaty — Peace continued at the option of the injured party - Relations of amity-How far receiving subjects and exiles may be considered as a breach thereof — Victory — War concluded by arbitration — Arbitrators bound by rules of strict justice - Absolute, and conditional surrender - Hostages can be detained for no other than the express cause for which they were given-Released by the death of the party for whom they were given - Obligation of pledges-Right of redeeming them lost. I. Good faith, either expressed or implied, must be the foundation of every treaty between hostile powers. And again the faith that is expressed is either of a public or a private nature, and the pledges given either by the sovereign, or inferior authorities in states constitute the public faith. It is, by such pledges given on the part of the sovereign power alone, that peace can be concluded, or the rights of war enforced. In the termination of (385) 25 every war, either the principal, or accessory causes are to be considered. Treaties are in general regarded as the principal instrument, by which wars are ended, and the mediation, or decision of a third person or power is deemed a secondary or accessory means. II. The person, who has authority to begin a war, is the only one to whom the right of making peace can properly belong, according to the general maxim, that every one is the best judge in the management of his own affairs. From hence it follows, that public war can be made by the sovereign power alone on each side: a right which in every kingly government is very justly vested in the crown. III. and IV. In popular or aristocratic forms of government, the right of making war, or concluding peace, is generally lodged in some public council or body, where a majority of voices may form treaties, conventions, or resolutions, which will be binding upon the dissentient part of such council. And all who are bound by a peace, whether approving it or not are entitled to its benefits. V. In examining those objects, which form the most material part of treaties, we may observe, that kingdoms are not so much a patrimony, which may be alienated at pleasure, as a trust, placed in the hands of the sovereign for the benefit of his people. Indeed kings themselves are aware of this, even before the crown descends upon their heads, and they receive it upon condition of adhering to such sacred obligations. Nor can such alienations ever be made, so as to be attended with consequences like those of private contracts, or to render the goods and effects of subjects answerable for such engagements. For if that were the case, the fundamental laws of the kingdom, prohibiting such alienations, would be of no effect. To render the alienation of the whole public dominion valid, the consent of the constituted authorities of the state is requisite. And indeed to confirm the transfer of any particular portion, the consent of the whole body as well as of that particular member will be necessary: for otherwise such alienation would be like the violent separation of a limb from the natural body. A whole people may in a case of extreme necessity transfer themselves to the dominion of another, a right which undoubtedly was reserved at the original formation of society. Neither is there any thing to prevent a king from alienating his patrimonial and private possessions. Yet there may be parts of the royal dominion, which the sovereign cannot alienate from the crown, especially, if he has received it upon condition of making no personal appropriation of any thing belonging thereto. There are two ways in which the possessions of the crown may become the patrimony of the king, either as separable or inseparable parts of the kingdom. In the latter case they can only be transferred with the kingdom itself, but in the former, they may be alienated by themselves. And where the crown is not patrimonial and hereditary, the restrictions upon the sovereign in this respect are much greater. VI. A nation and a king's successors are bound by his engagements, in proportion to the power, which he derives from the constitution, of making such engagements. For though this power may not be absolutely unlimited, yet it ought not to be clogged with unnecessary restrictions. It should be such as may enable him to exercise his discretion and judgment on proper occasions for the benefit of his people. The case will be different, where a king's power over his subjects is like that of a master over his household, more than of a sovereign over his state, as where he has entirely subjugated a people, or where his controul over their property is absolute. Thus Pharaoh purchased all the land in Egypt, and others have admitted strangers into their territories allowing them to hold lands upon such conditions. For here, there is another right in addition to that of a sovereign, and it is a right, which sovereignty alone without conquest could never have conferred. VII. The right of sovereigns to dispose of the effects of individuals, in order to make peace, is often a disputed point, nor can they exercise this right over the property of subjects in any other manner than as sovereigns.* The property of subjects is so far under the eminent *«The necessity of making peace authorises the Sovereign to dispose of the property of individuals; and the eminent dominion gives him a right to do it. Every thing in the political society ought to tend to the good of the community; and since even the powers of the citizens are subject to this rule, their property cannot be excepted. The state could not subsist, or constantly administer the public affairs in the most advantageous manner, if it had not a power to dispose occasionally of all kinds of property."-Vattel, b. iv. ch. ii. sect. 12. ibid. b. i. ch. xx. sect. 244. controul of the state, that the state or the sovereign who represents it, can use that property, or destroy it, or alienate it, NOT ONLY IN CASES OF EXTREME NECESSITY, which sometimes allow individuals the liberty of infringing upon the property of others, but on all OCCASIONS, where the public good is concerned, to which the original framers of society intended that private interests should give way. But when that is the case, it is to be observed, the state is bound to repair the losses of individuals, at the public expence, in aid of which the sufferers have contributed their due proportion. Nor will the state, though unable to repair the losses for the present, be finally released from the debt, but whenever she possesses the means of repairing the damages, the dormant claim and obligation will be revived. VIII. There must be some hesitation in admitting the opinion of Ferdinand Vasquez, who maintains that the state is not bound to repair the losses, which are occasioned to individuals in the course of war, as those are accidents permitted by the rights of war. For those rights regard the relation of foreign states and enemies to each other, but bear no reference to the disputes of subjects among themselves, who, being united in the same cause, ought to share the common losses, which happen to them in supporting the privileges of their society. It is a rule likewise established by the civil law, that no action can be brought against the state for the losses sustained in war, as every one is thereby induced to defend his own property with more earnestness and spirit.* * "Some damages are done deliberately and by way of precaution, as when a field, a house, or a garden, belonging to a private person, is taken for the purpose of erecting on the spot a tower, rampart, or any other piece of fortification,- or when his standing corn, or his storehouses are destroyed, to prevent their being of use to the enemy. Such damages are to be made good to the individual, who should bear only his quota of the loss. But there are other damages, caused by inevitable necessity, as for instance, the destruction caused by the artillery in retaking a town from the enemy. These are merely accidents, they are misfortunes, which chance deals out to the proprietors on whom they happen to fall. The sovereign ought indeed to shew an equitable regard for the sufferers, if the situation of his affairs will admit of it: but no action lies against the state for misfortunes of this nature,- for losses, which she has occasioned, not wilfully, but through necessity and mere accident, in the exertion of her rights. The same may be said of damages caused by the enemy." Vat. b. iii. ch. xv. sect. 232. IX. Some make a distinction between the property which subjects are entitled to from the law of nations and that which they possess by the authority of the civil law, allowing the king a more extensive controul over the latter, even to the power of taking it without cause or compensation, which is not the case with property of the former kind. But this is an improper distinction. For whatever may be the origin of property, it is always attended with peculiar effects according to the law of nature: so that it cannot be taken away for any other reasons than those inherent in the nature of property itself, or derived from some act of the owners. X. The prohibition respecting the property of individuals being given up, except for some public advantage, is a matter resting entirely between a sovereign and his subjects, and a compensation for losses is an affair between the state and individuals. But in all transactions between a king and foreigners, the act of the king is sufficient to give them NATIONAL validity, not only out of respect to his personal dignity, but according to the law of nations, which renders the effects of subjects responsible for the acts of the sovereign. XI. In interpreting treaties of peace, favourable circumstances are always to be taken in their utmost latitude, and unfavourable circumstances to be limited as strictly as possible.* Regarding purely the law of nature, the most favourable construction is that, whereby every one is restored to his own property and possessions. Therefore where the articles of a treaty are ambiguous, the construction should go so far, as to grant the party, who has evidently justice on his side, the object for which he went to war, and likewise indemnity for the losses which he has sustained. But it is not allowable that either party should gain more than an indemnity, or demand any thing by way of punishment, which is of an odious nature. As in making peace, it scarcely ever happens that either party will acknowledge the injustice of his cause, or of his claims, such a construction must be given, as will equalize the pretensions of each side, which may be accomplished, either by restoring the disputed possessions to their former situation, or by leaving them in the state, to which the war has reduced them. * See b. ii. ch. xv. sect. 12. |