[CHAPTER XX.]
On the Public Faith, by which War is Concluded; Comprising Treaties of Peace, and the Nature of Arbitration, Surrender Hostages, Pledges.
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 law—Transactions 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 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.