of Denmark would have been just as much infringed as they were by what actually happened. In that case, the Danish cruisers must, upon Danish principles, have been satisfied with the assurance of the commander of the American convoying squadron, as to the neutrality of the ships and cargoes sailing under his protection. But that assurance could only have been founded upon their being accompanied with the ordinary documents found on board of American vessels, and issued by the American government upon the representations and proofs furnished by the interested parties. If these might be false and fraudulent in the one case, so might they be in the other, and the Danish government would be equally deprived of all means of examining their authenticity in both. In the one, it would be deprived of those means by its own voluntary acquiescence in the statement of the commander of the convoying squadron, and in the other by the presence of a superior enemy's force, preventing the Danish cruisers from exercising their right of search. This was put for the sake of illustration, upon the supposition that the vessels under convoy had escaped from capture; for upon that supposition only could any actual injury have been sustained by Denmark as a belligerent power. Here they were captured without any hostile conflict, and the question was, whether they were liable to confiscation for having navigated under the enemy's convoy, notwithstanding the neutrality of the property and the lawfulness of their voyage in other respects.

Even supposing then that it was the intention of the American ship-masters in sailing with the British convoy, to escape from Danish as well as French cruisers, that intention had failed of its effect; and it might be asked what belligerent right of Denmark had been practically injured by such an abortive attempt? If any, it must be the right of visitation and search. But that right is not a substantive and independent right, with which belligerents are invested by the law of nations for the purpose of wantonly vexing and interrupting the commerce of neutrals. It is a right growing out of the greater right of capturing enemy's property, or con

traband of war, and to be used, as means to an end, to enforce the exercise of that right. Here the actual exercise of the right was never in fact opposed, and no injury had accrued to the belligerent power. But it would perhaps be said, that it might have been opposed and actually defeated, had it not been for the accidental circumstance of the separation of these vessels from the convoying force, and that the entire commerce of the world with the Baltic Sea might thus have been effectually protected from Danish capture. And it might be asked in reply, what injury would have resulted to the belligerent rights of Denmark from that circumstance ? If the property were neutral, and the voyage lawful, what injury would result from the vessels escaping from examination? On the other hand, if the property were enemy's property, its escape must be attributed to the superior force of the enemy, which, though a loss, could not be an injury of which Denmark would have a lawful right to complain. Unless it could be shown that a neutral vessel navigating the seas is bound to volunteer to be searched by the belligerent cruisers, and that she had no right to avoid search by any means whatever, it was apparent that she might avoid it by any means not unlawful. Violent resistance to search, rescue after seizure, fraudulent spoliation or concealment of papers, are all avowedly unlawful means, which, unless, extenuated by circumstances, may justly be visited with the penalty of confiscation. Those who alleged that sailing under belligerent convoy was also attended with the same consequences, must show it, by appealing to the oracles of public law, to the text of treaties, to some decision of an international tribunal, or to the general practice and understanding of nations.

The negotiation finally resulted in the signature of a treaty in 1830, between the United States and Denmark, by which the latter power stipulated to indemnify the American claimants generally for the seizure of their property by the payment of a fixed sum en bloc, leaving it to the American government to apportion it by commissioners appointed by itself,

and authorized to determine "according to the principles of justice, equity, and the law of nations," with a declaration that the convention, having no other object than to terminate all the claims, "can never hereafter be invoked, by one party or the other, as a precedent or rule for the future."'85

85 Martens, Nouveau Recueil, tom. viii. p. 350,

CHAPTER IV.

TREATY OF PEACE.

Power of

stitution.

THE power of concluding peace, like that of declaring _ § 1. war, depends upon the municipal constitution of the state. making These authorities are generally associated. In unlimited mo- peace dependent on narchies, both reside in the sovereign; and even in limited or the municonstitutional monarchies, each may be vested in the crown. cipal conSuch is the British constitution, at least in form; but it is well known, that in its practical administration the real power of making war actually resides in the parliament, without whose approbation it cannot be carried on, and which body has consequently the power of compelling the crown to make peace, by withholding the supplies necessary to prosecute hostilities. The American constitution vests the power of declaring war in the two houses of congress, with the assent of the president. By the forms of the constitution, the president has the exclusive power of making treaties of peace, which, when ratified with the advice and consent of the senate, become the supreme law of the land, and have the effect of repealing the declaration of war and all other laws of congress, and of the several states which stand in the way of their stipulations. But the congress may at any time compel the president to make peace, by refusing the means of carrying on war. In France the king has, by the express terms of the constitutional charter, power to declare war, to make treaties of peace, of alliance, and of commerce; but the real power of making both peace and war resides in the chambers, which have the authority of granting or refusing the means of prosecuting hostilities.

§ 2.

The power of making treaties of peace, like that of making Power of other treaties with foreign states, is, or may be, limited in making treaties of its extent by the national constitution. We have already mited in its seen that a general authority to make treaties of peace ne

peace li

extent.

cessarily implies a power to stipulate the conditions of peace; and among these may properly be involved the cession of the public territory and other property, as well as of private property included in the eminent domain. If, then, there be no limitation expressed in the fundamental laws of the state, or necessarily implied from the distribution of its constitutional authorities, on the treaty-making power in this respect, it necessarily extends to the alienation of public and private property, when deemed necessary for the national safety or policy.1

The duty of making compensation to individuals, whose private property is thus sacrificed to the general welfare, is inculcated by publicists as correlative to the sovereign right of alienating those things which are included in the eminent domain; but this duty must have its limits. No government can be supposed to be able, consistently with the welfare of the whole community, to assume the burden of losses produced by conquest, or the violent dismemberment of the state. Where, then, the cession of territory is the result of coercion and conquest, forming a case of imperious necessity beyond the power of the state to control, it does not impose any obligation upon the government to indemnify those who may suffer a loss of property by the cession.2

The fundamental laws of most free governments limit the treaty-making power in respect to the dismemberment of the state, either by an express prohibition or by necessary implication from the nature of the constitution. Thus, even under the constitution of the old French monarchy, the States-General of the kingdom declared that Francis I. had no power

1 Vide ante, pt. iii. ch. 2, Rights of Negotiation and Treaties, § 6.

2 Grotius, de Jur. Bel. ac Pac. lib. iii. cap. 20, § 7. Vattel, Droit des Gens, liv. i. ch. 20, § 244; liv. iv. ch. 2, § 12. Kent's Comment. on American Law, vol. i. p. 179. 2d Ed.