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must be duly promulgated to have the force of legal obligation with regard to all the subjects of the belligerent States. As a truce merely suspends hostilities, without terminating the war, all things are to remain in their antecedent state in the places, the possession of which was specially contested at the time of the conclusion of the armistice.
Each party may do within his own territory, or within the limits prescribed by the armistice, whatever he could do in time of peace; e.g., levy and march troops, collect provisions and munitions of war, receive reinforcements from his allies, or repair the fortifications of a place not actually besieged; but neither party can take advantage of the truce to execute, without peril to himself, what the continuance of hostilities might have disabled him from doing. Such an act would be a fraudulent violation of the armistice. When a truce has been concluded for a definite period, hostilities recommence, as a matter of course, at the expiration of that period; when for an indefinite or a very long period, notice of intention to resume hostilities should be given.
Capitulation. — Capitulation for the surrender of troops, fortresses, and particular districts of country, fall naturally within the scope of the general powers intrusted to military and naval commanders. But if the commander of the fortified town undertakes to sti. pulate for the perpetual cession of that place, or enters into other engagements not fairly within the scope of his implied authority, his promise amounts to a mere sponsion.
Prize Courts.— The validity of maritime captures
1 Vattel, Droit des Gens, liv. 3, chap. xvi. 5$ 245—251.
must, as we have already seen, be determined in a court of the captor's government. This court may sit either in his own country or in that of an ally. This rule of jurisdiction applies, whether the captured property be carried into a port of the captor's country, into that of an ally, or into a neutral port. Where, however, the capture is made either within the territorial limits of a neutral State, or by armed vessels fitted out within the neutral territory, the judicial tribunals of the neutral State have jurisdiction to determine the validity of the captures thus made, and to vindicate its neutrality by restoring the property of its own subjects, or of other States in amity with it, to the original owners.)
The jurisdiction of the Court of the capturing nation is conclusive upon the question of property in the captured thing. By the 3 & 4 Vic. c. 65, s. 22, it is enacted, — The High Court of Admiralty shall have jurisdiction to decide all matters and questions concerning Booty of War, or the distribution thereof, which it shall please Her Majesty, her heirs and successors, by the advice of her and their Privy Council, to refer to the judgment of the said Court; and in all matters so referred the Court shall proceed as in cases of prize of war, and the judgment of the Court therein shall be binding on all parties concerned. An appeal lies from the Prize Court to the Queen in council."
'Prize,' says Sir W. Scott, 'is altogether a creature of the Crown. No man has, or can have, any interest but what he takes as the mere gift of the Crown ;3 beyond the extent of that gift he has nothing. This
1 Wheaton, p. 669 et seq. 2 See 27 & 28 Vic. cc. 24 & 25. 3 See 2 Will. IV. c. 53; 27 & 28 Vic, cc. 23, 24, & 36.
is the principle of law upon the subject, and founded on the wisest reasons. The right of making war and peace is exclusively in the Crown. The acquisitions of war belong to the Crown: and the disposal of these acquisitions may be of the utmost importance for the purposes both of war and peace. This is no peculiar doctrine of our Constitution; it is universally received as a necessary principle of public jurisprudence by allwriters on the subject-Bello parta cedunt reipublicae." Lord Brougham accordingly held, that up to the period of final adjudication the Crown can restore the prize, without thinking of consulting, or taking the consent of the captor, who at his peril, and at the expense of his own blood and treasure, won that prize from the enemy.
Where the responsibility of the captor ceases, that of the State begins. It is responsible to other States for the acts of the captors under its commission the moment these acts are confirmed by the definitive sentence of the tribunals which it has appointed to determine the validity of captures in war. A judicial sentence, plainly against right, to the prejudice of a foreigner, entitles, his nation to obtain reparation by reprisals. By the 33 & 34 Vic. c. 90, s. 14, it is enacted,
If, during the continuance of any war in which Her Majesty may be neutral, any ships, goods, or merchandize, captured as prize of war within the territorial jurisdiction of Her Majesty, in violation of the neutrality of this realm, or captured by any ship which may have been built, equipped, commissioned, or despatched, or the force of which may have been augmented, contrary to the provisions of this Act, are brought within the limits of her Majesty's dominions by the captor, or any agent of the captor, or by any person having come into possession thereof with knowledge that the same was prize of war so captured as aforesaid, it shall be lawful for the original owner of such prize, or his agent, or for any person authorised in that behalf by the Government of the foreign State to which such owner belongs, to make application to the Court of Admiralty for seizure and detention of such prize, and the Court shall, on due proof of the facts, order such prize to be restored.
i The Elsebe, 5 Robinson's A. R., p. 182. 2 See the Judgment of Lord Brougham in Alexander v. the Duke of Wellington, 2 Russell & Milne's Rep., p. 35.
3 Wheaton, p. 673.
' Every such order shall be executed and carried into effect in the same manner, and subject to the same right of appeal, as in case of any order made in the exercise of the ordinary jurisdiction of such court; and in the meantime, and until a final order has been made on such application, the court shall have power to make all such provisional and other orders as to the care or custody of such captured ship, goods, or merchandise, and (if the same be of perishable nature, or incurring risk of deterioration) for the sale thereof, and with respect to the deposit or investment of the proceeds of any such sale, as may be made by such court in the exercise of its ordinary jurisdiction.'
Peace.-The power of concluding peace, like that of declaring war, depends upon the municipal constitution of the State. The effect of a treaty of peace is to put
end to the war, and to abolish the subject of it. It is an agreement to waive all discussion concerning the respective rights and claims of the parties, and to bury in oblivion the original causes of the war. It forbids the revival of the same war by resuming hostilities for the original cause which first kindled it, or for whatever may have occurred in the course of it.1
The treaty of peace does not, however, extinguish claims founded upon debts contracted, or injuries inflicted, previously to the war, and unconnected with its causes, unless there be an express stipulation to that effect. Nor does it affect private rights acquired antecedently to the war, or private injuries unconnected with the causes which produced the war.2 The treaty of peace leaves everything in the state in which it found it, unless there is some express stipulation to the contrary. The existing state of possession is maintained, except so far as altered by the terms of the treaty. If nothing is said about the conquered country or places, they remain with the conqueror, and his title cannot afterwards be called in question. During the continuance of the war, the conqueror in possession has only a usufructuary right,-and the latent title of the former sovereign continues, until the treaty of peace, by its silent operation, or express provisions, extinguishes his title for ever. The restoration of the conquered territory to its original sovereign, by the treaty of peace, necessarily carries with it the restoration of all persons and things which have been temporarily under the enemy's dominion, to their original state. This general rule is applied without exception to real property or immoveables. In the case of personal property, however, a different rule applies. The title of the enemy to things of this description is considered complete against the original owner after
1 Wheaton, p. 876.
2 Ib. p. 877.
3 Ib. p. 878.