Grotius and Vattel, (d) as well as other writers on national law, have agitated the question, whether a truce for a given period, as, for instance, from the first of January to the first of February, will include or exclude the first day of each of these months. Grotius says, that the day from whence a truce is to be computed, is not one of the days of the truce, but that it will include the whole of the first day of February as being the day of its termination. Puffendorf, Heineccius, and Vattel, on the other hand, are of opinion, that the day of the commencement of the truce would be included; and as the time ought to be taken largely and liberally, for the sake of humanity, the last day mentioned would also be included. Every ambiguity of this kind ought always to be prevented, by positive and precise stipulations, as, from such a day to such a day, both inclusive. (e)

Of a passport.

* (2.) A passport or safe-conduct is a privilege granted *162 in war, and exempting the party from the effects of its operation, during the time, and to the extent prescribed in the permission. It flows from the sovereign authority; but the power of granting a passport may be delegated by the sovereign to persons in subordinate command, and they are invested with that power either by an express commission, or by the nature of their trust. (a) The general of an army, from the very nature of his power, can grant safe-conducts; but the permission is not transferable by the person named in the passport, for it may be that the government had special reasons for granting the privilege to the very individual named, and it is presumed to be personal. If the safe-conduct be granted, not for persons, but for effects, those effects may be removed by others besides the owner, provided no person be selected as the agent, against whom there may exist a personal objection, sufficient to render him an object of suspicion or danger, within the territories of the power granting the permission.

He who promises security, by a passport, is morally bound to

(d) Grotius, b. 3, c. 21, sec. 4; Vattel, b. 3, c. 16, sec. 244; Puff. b. 8, c. 7, sec. 8; Heinecc. Jur. Nat. et Gent. 2, 9, 208.

(e) The rule proposed by the English commissioners, in their report on the practice of the English courts, in July, 1831, is recommended by its simplicity and certainty. They proposed to compute the first day exclusively, and the last day inclusively, in all cases.

See vol. iv. p. 95, note.

(a) Vattel, b. 3, c. 17.

afford it against any of his subjects or forces, and to make good any damage the party might sustain by a violation of the passport. The privilege being so far a dispensation from the legal effects of war, it is always to be taken strictly, and must be confined to the purpose, and place, and time, for which it was granted. A safeconduct generally includes the necessary baggage and servants of the person to whom it is granted; and, to save doubt and difficulty, it is usual to enumerate, with precision, every particular branch and extent of the indulgence. If a safe-conduct be given for a stated term of time, the person in whose favor it was granted must leave the enemy's country before the time expires, unless detained by sickness, or some unavoidable circumstance, *163 and then he remains under the same protection. The case is different with an enemy who comes into the country of his adversary during a truce. He, at his own peril, takes advantage of a general liberty allowed by the suspension of hostilities, and, at the expiration of the truce, the war may freely take its course, without being impeded by any claims of such a party for protection. (a) 1

*

It is stated that a safe-conduct may even be revoked by him who granted it, for some good reason; for it is a general principle in the law of nations, that every privilege may be revoked, when it becomes detrimental to the state. If it be a gratuitous privilege, it may be revoked purely and simply; but if it be a purchased privilege, the party interested in it is entitled to indemnity against all injurious consequences, and every party affected by the revocation is to be allowed time and liberty to depart in safety. (b)

Enemy's li

The effect of a license given by the enemy to the subcense to trade. jects of the adverse party, to carry on a specified trade,

(a) Vattel, b. 3, c. 17, sec. 273, 274.

(b) Vattel, b. 3, c. 17, sec. 276.

1 Similar in principle to passports, and safe-conducts, are, what are termed in the Articles of War, safeguards, which the general-in-chief of an army corps or division is authorized to give hospitals and public establishments of the enemy, and also to individuals, whom it may be the particular interest of the army to protect. "Whosever belonging to the army of the United Sates, employed in foreign parts, shall force a safeguard, shall suffer death." [54th Article of War.]

The foregoing extract is from the Army Regulations of 1825, of which LieutenantGeneral Scott was the author, and which he enforced in his Mexican campaign, in 1847, with equal energy and humanity.

has already been considered, (c) in respect to the light in which it is viewed by the government of the citizens accepting it. A very different effect is given to these licenses by the government which grants them, and they are regarded and respected as lawful relaxations or suspensions of the rules of war. It is the assumption of a state of peace to the extent of the license, and the act rests in the discretion of the sovereign authority of the state, which alone is competent to decide how far considerations of commercial and political expediency may, in particular cases, control the ordinary consequences of war. In the country which grants them, licenses to carry on a pacific commerce are stricti juris, as being exceptions to a general rule; though they are not to be construed with pedantic accuracy, nor will every small de- *164 viation be held to vitiate the fair effect of them. (a) An excess in the quantity of goods permitted to be imported might not be considered as noxious to any extent; but a variation in the quality or substance of the goods might be more significant. Whenever any part of the trade assumed under the license is denuded of any authority under it, such part is subject to condemnation.

*

Another material circumstance in all licenses, is the limitation of time in which they are to be carried into effect, for what is proper at one time may be very unfit and mischievous at another time. Where a license was limited to be in force until the 29th of September, and the ship did not sail from the foreign port until the 4th of October, yet, as the goods were laden on board by the 12th of September, and there was an entire bona fides on the part of the person holding the license, this was held to be legal. (b) But where a license was to bring away a cargo from Bordeaux, and the party thought proper to change the license, and accommodate it to another port in France, it was held by the English admiralty, in the case of The Twee Gebroeders, (c) that the license was vitiated, and

(c) Supra, p. 81.

(a) The Cosmopolite, 4 Rob. Adm. 8; Grotius, b. 3, c. 21, sec. 14, lays down the general rule, that a safe-conduct, of which these licenses are a species, is to be liberally construed; laxa magis quam stricta interpretatio admittenda est. And licenses were eventually construed with great liberality in the British courts of admiralty. Judge Croke, in the case of The Abigail, Stewart, Vice-Adm. 360; Duer on Insurance, vol. i. 595-619. The English admiralty and common law decisions on this subject of licenses are collected and examined by Mr. Duer, with his usual diligence and sagacity.

(b) Schroeder v. Vaux, 15 East, 52. 3 Camp. N. P. 83. (c) 1 Edw. Adm. 95.

the vessel and cargo were condemned. It has also been held, that the license must be limited to the use of the precise persons for whose benefit it was obtained. The great principle in these cases is, that subjects are not to trade with the enemy without the special permission of the government; and a material object of the control

which the government exercises over such a trade is that it *165 may judge of the particular persons who are fit to be intrusted with an exemption from the ordinary restrictions of a state of war. (a)

peace.

(3.) The object of war is peace; and it is the duty of every belTreaties of ligerent power to make war fulfil its end with the least possible mischief, and to accelerate, by all fair and reasonable means, a just and honorable peace. The same power which has the right to declare and carry on war, would seem naturally to be the proper power to make and conclude a treaty of peace; but the disposition of this power will depend upon the local constitution of every nation; and it sometimes happens, that the power of making peace is committed to a body of men who have not the power to make war. In Sweden, after the death of Charles XII., the king could declare war without the consent of the national diet, but he made peace in conjunction with the senate. (b) So, by the constitution of the United States, the President, by and with the advice and consent of two thirds of the senate, may make peace, but it is reserved to Congress to declare war. This provision in our Constitution is well adapted (as will be shown more fully hereafter) to unite, in the negotiation and conclusion of treaties, the advantage of talents, experience, stability, and a comprehensive knowledge of national interest, with the requisite secrecy and despatch.

Treaties of peace, when made by the competent power, are obligatory upon the whole nation. If the treaty requires the payment of money to carry it into effect, and the money cannot be raised but by an act of the legislature, the treaty is morally obligatory upon the legislature to pass the law, and to refuse it would be a breach of public faith. The department of the government that is intrusted by the Constitution with the treaty-making

(a) The Jonge Johannes, 4 Rob. Adm. 263. See the law as to licenses, collected in 1 Holt, 129, note. Mr. Holt says, that Sir Wm. Scott was, in fact, the author of the whole learning of the law relating to the system of licenses.

(b) Vattel, b. 4, c. 2, sec. 10.

power is competent to bind the national faith in its dis- *166 cretion; for the power to make treaties of peace must be coextensive with all the exigencies of the nation, and necessarily involves in it that portion of the national sovereignty which has the exclusive direction of diplomatic negotiations and contracts with foreign powers. All treaties made by that power become of absolute efficacy, because they are the supreme law of the land.

There can be no doubt that the power competent to bind the nation by treaty may alienate the public domain and property by treaty. If a nation has conferred upon its executive department, without reserve, the right of treating and contracting with other states, it is considered as having invested it with all the power necessary to make a valid contract. That department is the organ of the nation, and the alienations by it are valid, because they are done by the reputed will of the nation. The fundamental laws of a state may withhold from the executive department the power of transferring what belongs to the state; but if there be no express provision of that kind, the inference is, that it has confided to the department charged with the power of making treaties a discretion commensurate with all the great interests and wants and necessities of the nation. A power to make treaties of peace necessarily implies a power to decide the terms on which they shall be made; and foreign states could not deal safely with the government upon any other presumption. The power that is intrusted generally and largely with authority to make valid treatics of peace can, of course, bind the nation by alienation of part of its territory; and this is equally the case, whether that territory be already in the occupation of the enemy, or remains in the possession of the nation, and whether the property be public or private. (a) In the case of The Schooner Peggy, (b) the * Supreme Court of the *167 United States admitted, that individual rights, acquired by war, and vested rights of the citizens, might be sacrificed by treaty

(a) Vattel, b. 1, c. 20, sec. 244; Ibid. c. 21, sec. 262; b. 4, c. 2, sec. 11, 12. Vattel admits, that the fundamental laws of a nation may withhold the power of alienation by treaty; and it would seem, by necessary inference, to be a violation of fundamental law, for the treaty-making power, acting under such an instrument as the Constitution of the United States, to agree by treaty for the abolition or alteration of any part of the Constitution. The stipulation would go to destroy the very authority for making the treaty.