the Society of Societies, against the great Commonwealth of States (h), than the original wrongdoer.

The duty which Cicero inculcates on the private citizen with respect to Civil War is equally the duty of a State in a War of Nations: "Initia belli invitum suscipere, ex"trema libenter non persequi" (i).

DX. There appear to be three ways by which War may be concluded and Peace restored (k):

1. By a de facto cessation of hostilities on the part of both Belligerents, and a renewal, de facto, of the relations of Peace.

2. By the unconditional submission of one Belligerent to another.

3. By the conclusion of a formal Treaty of Peace between the Belligerents.

DXI. A formal declaration on the part of the Belligerents that War has ceased, however usual and desirable, cannot be said to be absolutely necessary for the restoration of Peace. War may silently cease and Peace be silently renewed. So ended the War between Sweden and Poland in the year 1716, namely, by a reciprocal intermission of hostilities it was not till after the lapse of ten years that Peace was formally and de jure recognized as subsisting between the two kingdoms (1).

In such a state of things the presumption of law would be, that both parties had agreed that the status quo ante

(h) Vide antè, vol. i. p. 2. s. vi.

"Cæde nocentûm

Se nimis ulciscens, exstitit ipse nocens."

OVID, De Pont. i., Eleg. viii. 19, 20. (i) "Ostendistique" (Cicero writes to Marcellus) "sapientem et bonum civem initia belli civilis invitum suscipere, extrema libenter non persequi."-Epist. ad Fam. 1. iv. 7.

Grotius (1. iii. c. xxv. s. 3) misquotes this passage, and ascribes it to Sallust.

bellum should be revived. Yet in the absence of any formal declaration it would not be concluded that the claims which had given occasion to the War, or which had grown out of the War, were abandoned, but they must be considered as in abeyance. In fact, it is as difficult to predicate the consequences, legal and practical, of such a state of things, as it would be to predicate the consequences of a treaty of Peace which contained no clause of amnesty (m).

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Since, Grotius observes, it is not usual for Belligerents to make Peace on the basis of a confession from one of them that he is in the wrong, "ea sumenda est in pactis interpretatio quæ partes quoad belli justitiam quam maximè æquet." This end is to be effected by one of two means, viz.:—(1) Either by an agreement that the possession which has been disturbed by the War shall be restored, which is expressed by the well-known international formula of the status quo ante bellum; or (2) by an agreement that matters shall remain as they were at the period when the War is ended; and this arrangement is expressed by the formula, often little understood, though familiar enough in its application, of uti possidetis, or, as Grotius says, "ut "res maneant quo sunt loco; quod Græci dicunt exOUTES å ἔχουσι xovoi" (n). To these two predicaments the learned Samuel Cocceius adds two more,-namely (3), where a treaty is made, in which "nihil dictum est de damnis, injuriis et debitis," or (4), in which " paci clausula generalis amnestiæ adjicitur" (o).

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(m) Heffters, ubi suprà.

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H. Cocceius, De Postliminio et Amnestiá.

(n) Grot. l. iii. c. xx. s. 11, § 2.

Vide post, Lord Grenville's Remarks on the Treaty of Amiens. (o) Grotius Illustratus, vol. v. p. 502 (ed. Halæ, 1748).

The Times, Debate in the House of Commons, Friday, March 14, 1856.-" The Crimean Tartars.-Mr. Holland asked the First Lord of the Treasury whether the attention of Her Majesty's Government had been drawn to the position of the Crimean Tartars in the event of peace being established, and the Allied forces, towards whom they had shown themselves favourably disposed, being recalled?-Lord Pal

DXII. Secondly. As to the unconditional submission (deditio) of one Belligerent to another.

Instances of such prostration are abundant in the pages of classical history (p), and are not altogether wanting even in very modern times.

But the most unconditional submission would be holden according to the principle of International Law to imply a retention of the common rights of humanity (q), and, between Christian States, of Christian humanity (r): any infringement of these rights would be beyond the moral competence of the conqueror.

The subject of the incorporation and of the extinction of a State has been considered in an early part of the present work (s).

DXIII. Thirdly. We have to consider the termination of War by the conclusion of a formal Treaty of Peace between the Belligerents.

The examination of this part of the subject must embrace the following considerations :

I. By whom the overtures of Peace may be made.

merston When a year is terminated, in the course of which the armies of one country have occupied the territory of another, it is the invariable practice that there shall be an agreement between the parties to insure a complete amnesty to all subjects of either Power who may have been at all committed in the progress of hostilities; and should peace be now concluded, an arrangement of that kind will, of course, be concluded between the Belligerents."

(p) The classical reader will find the formal language of a deditio in Livy: "Itaque populum Campanum urbemque Capuam, agros, delubra Deum, divina humanaque omnia in vestram, Patres Conscripti, populique Romani ditionem dedimus; quiquid deinde patiemur dediticii vestri passuri."—L. vii. c. xxxi. He will find the rite and manner in Cæsar, De Bello Civili, 1. iii. ss. 97, 98.

(q) Heffters, p. 312, s. 178.

(r) Vide antè, vol. i.

(8) Vide antè, vol. i. Part II. ch. vi. vii.

P. 142, art. vi. of the Constitution of the N. A. United States, on this subject.

II. Where, or within the limits of whose territory, the negotiations may be opened and carried on.

III. How, or according to what forms.

IV. When the Treaty of Peace takes effect, or the date from which the operation of it becomes binding upon the public relations of States and the private relations of individuals.

of

DXIV. I. First, then, to consider by whom the overtures peace may be made.

These overtures may be made by one of the Belligerent States, by a Neutral State acting as the common friend of both litigants, or, by a State which is rather an auxiliary than an ally, or which-to speak as correctly as the nature of the distinction permits-has, as it were, been the passive ally of one Belligerent, without positively declaring war against the other Belligerent, without withdrawing its Ambassador from his Court, and indeed while continuing with this Belligerent, formally at least, the relations of amity.

This third kind of status is sometimes designated in the books as the status of an auxiliary (t), as distinguished from an ally.

A Neutral power may also act as a mediator, or may merely interpose its good offices. Between the two positions there is a marked difference, inasmuch as the former implies the consent of both Belligerents; the latter may be without the consent of either, or with the consent of only one. The good offices of a Neutral State may be accepted and its mediation refused. In the war with Sweden in 1742, Russia accepted the good offices and refused the mediation of France.

The mediator must not be confounded with the arbitrator, whose character and functions have been discussed in an earlier part of this volume (u).

DXV. II. Where, or within the limits of whose territory, may the negotiations be carried on?

This question is often adjusted by reference to considerations of local convenience.

It ought of course to be the object of all parties to fix upon a spot which may be of the readiest access to the respective Courts of the Belligerents. But this consideration is often overborne by animosities growing out of or connected with the War, which render it desirable either that some Neutral Territory should be selected, and not unfrequently some town of inconsiderable size and character within that territory. These are all considerations belonging rather to Public Policy than to Public International Law.

All that the latter seems to require is, that the place of negotiation shall be clearly and definitively agreed upon before the negotiations themselves are opened. In the case of arbitration, indeed, the Court of the arbitrator (r) is, for obvious reasons, the proper place of the tribunal before which States agree to argue their causes.

DXVI. III. How, or according to what forms, are the negotiations to be carried on?

There are no necessarily fixed or unalterable rules upon this subject, apart from those which flow from the respect due to the equality and dignity of States (y). If it should appear that any question would be likely to arise with respect to these forms, they are the subject of agreement before the substance of the Treaty is entered upon. The time has gone by when one ambassador gravely and vigilantly observed, as is said to have been the case at the Treaty of Ryswick, the number of steps backwards or forwards made by the other ambassadors.

DXVII. IV. We have now to consider when the Treaty of Peace takes effect, or the date from which the operation

(x) Vide antè, pp. 2–7.

(y) Vide antè, vol. ii. p. 41.