No obligation on the to indemnify of territory by coercion. of it, it is a principle of public law, that the national character of the place agreed to be surrendered by treaty, continues as it was under the character of the ceding country, until it be actually transferred. Full sovereignty cannot be held to have passed by the mere words of the treaty, without actual delivery. To complete the right of property, the right to the thing, and the possession of the thing, must be united. This is a necessary principle in the law of property in all systems of jurisprudence. There must be both the jus ad rem and the jus in re, according to the distinction of the civilians, which Barbeyrac1 (though without reason) says they borrowed from the canon law. This general law of property applies to the right of territory no less than to other rights. The practice of nations has been conformable to this principle, and the conventional law of nations is full of instances of this kind, several of them being stated by Sir Wm. Scott in the opinion which he gave in the case of the Fama'. The release of a territory from the dominion and sovegovernment reignty of the country, if that cession be the result of coerafter cession cion or conquest, does not impose any obligation upon the government to indemnify those who may suffer a loss of property by the cession. The annals of New-York furnish a strong illustration of this position. The territory composing the state of Vermont belonged to this state; and it separated from it, and erected itself into an independent state, without the consent, and against the will, of the government of New-York. The latter continued for many years to object to the separation, and to discover the strongest disposition to reclaim by force the allegiance of the inhabitants of that state. But they were unable to do it; and it was a case of a revolution effected by force, analogous to that which was then in action between this country and Great Britain. When New-York therefore found itself under the necessity of acknowledging the independence of Vermont, a question arose before the legis 2 1 Puff. par Barbeyrac, Liv. Iv. ch. ix. § 8, note 2. 5 Rob. 106. lature, whether they were bound in duty to make compensation to individual citizens whose property would be sacrificed by the event, because their titles to land lying within the jurisdiction of Vermont, and derived from NewYork, would be disregarded by the government of that state. The claimants were heard at the bar of the house of Assembly, by counsel, in 1787, and it was contended on their behalf, that the state was bound, upon the principles of the social compact, to protect and defend the rights and property of all its members, and that, whenever it became necessary, upon grounds of public expediency and policy, to withdraw the protection of Government from the property of any of its citizens, without actually making the utmost efforts to reclaim the jurisdiction of the country, the state was bound to make compensation for the loss. In answer to this argument, it was stated, that the independence of Vermont was an act of force beyond the power of this state to control, and equivalent to a conquest of that territory, and the state had not the competent ability to recover, by force of arms, their sovereignty over it, and it would have been folly and ruin to have attempted it. All pacific means had been tried without success; and as the state was compelled to yield to a case of necessity, it had discharged its duty; and it was not required, upon any of the doctrines of public law, or principles of political or moral obligation, to indemnify the sufferers. The cases in which compensation had been made for losses consequent upon revolutions in government, were peculiar and gratuitous, and rested entirely on benevolence, and were given from motives of policy, or as a reward for extraordinary acts of loyalty and exertion. No government can be supposed to be able, consistently with the welfare of the whole community, and it is, therefore, not required, to assume the burthen of losses produced by conquest, or the violent dismemberment of the state. It would be incompatible with the fundamental principles of the social compact'. 1 See Hamilton's Works, Vol. II. pp. 374-390. This was the doctrine which prevailed; and when the act of July 14th, 1789, was passed, authorizing commissioners to declare the consent of the state to the independence of Vermont, it was expressly declared, that the act was not to be construed to give any person claiming lands in Vermont, under title from this state, any right to any compensation whatsoever from New-York'. 1 See on the whole of the subject above discussed, so far as Treaties of Peace, their incidents, and effect, are concerned, Klüber, Droit des Gens, 2de Partie, Tit. II. sect. II. ch. iii. §§ 317-329. De Cussy, Droit Maritime, Tom. I. Liv. I. tit. iii. § 1. p. 168-178. Heffter, Droit des Gens, §§ 179— 184, PP. 347-355, edit. 1857, par Bergson. Wheaton's Elements, Pt. IV. ch. iv. pp. 872-888, edit. by W. B. Lawrence, 1863. Halleck's Interna tional Law, ch. xxxiv. and xxxvi. CHAPTER XI. OF OFFENCES AGAINST THE LAW OF NATIONS. THE violation of a treaty of peace, or other national compact, is a violation of International Law, for it is a breach of public faith'. Nor is it to be understood that that law is a code of mere elementary speculation, without any efficient sanction. It has a real and propitious influence on the fortunes of the human race. It is a code of present, active, durable, and binding obligation. As its great fundamental principles are founded in the maxims of eternal truth, in the immutable law of moral obligation, and in the suggestions of an enlightened public interest, they maintain a steady influence, notwithstanding the occasional violence by which that influence may be disturbed. This law is placed under the protection of public opinion. It is enforced by the censures of the press, and by the moral influence of those great masters of public law, who are consulted by all nations as oracles of wisdom; and who have attained, by the mere force of written reason, the majestic character, and almost the authority, of universal lawgivers, controlling by their writings the conduct of rulers, and laying down precepts for the government of mankind. No nation can violate public law, without being subjected to the penal consequences of reproach and disgrace, and without incurring the hazard of punishment, to be inflicted in open and solemn war by the injured party. 1 Vattel, Bk. 2. II. ch. xv. § 221. Resolution of Congress of November 23rd, 1781. Passports or safe conducts. Ambassadors. This law too is enforced by the sanctions of municipal law, and is adopted in its full extent by the law of England'. The offences which fall more immediately under its cognizance, and which are the most obvious, the most extensive, and most injurious in their effects, are the violations of safe conduct, infringements of the rights of ambassadors, and piracy. To these we may add the slavetrade, which may now be considered, not, indeed, as a piratical trade, absolutely unlawful by the law we are discussing, but as a trade condemned by the general principles of justice and humanity, openly professed and declared by the powers of Europe. (1.) A safe conduct or passport contains a pledge of the public faith, that it shall be duly respected, and the observance of this duty is essential to the character of the government which grants it. The statute law of the United States has provided, in furtherance of the general sanction of public law, that if any person shall violate any safe conduct or passport, granted under the authority of the United States, he shall, on conviction, be imprisoned for a term not exceeding three years, and fined at the discretion of the Court. (2.) The same punishment is inflicted upon those persons who infringe the law of nations, by offering violence to the persons of ambassadors, and other public ministers, or by being concerned in prosecuting or arresting them'. This is an offence highly injurious to a free and liberal communication between different governments, and mischievous in its consequences to the dignity and well being of the nation. It tends to provoke the resentment of the sovereign whom the ambassador represents, and to bring upon the state the calamities of war. The English parliament, under an impression of the danger to the com 1 Blackstone, Vol. IV. ch. v. pp. 66-68. 2 Act of Congress, April 30th, 1790, § 27. See further as to this topic, Wheaton's Elements, Part IV. ch. ii. § 25; and for the English law Blackstone's Comm. Vol. IV. ch. v. pp. 68-70. 3 Act of Congress, supra, §§ 25, 26. |