the possessor, who can annex it. But it is nowadays usual, although not at all legally necessary, for the conqueror, desirous of retaining conquered territory, to stipulate cession of such territory in the treaty of peace." 15

TREATY OF PEACE.

166. In modern times, war most frequently comes to an end by a treaty of peace.

Treaties of peace are now usually preceded by preliminary agreements embodying the bases for treaty negotiations. This agreement usually provides for the suspension of hostilities during negotiations, in order that the bases agreed upon may not be changed from day to day by the issue of the war. Spanish-American War of 1898 the protocol of August 12, 1898, containing the agreement to appoint commissioners to treat of peace upon certain conditions, also contained an agreement to suspend hostilities from that date. Proclamations. suspending hostilities were immediately issued.10 The treaty of peace was not concluded till December 10, 1898. In the Russo-Japanese War negotiations looking toward peace were begun at Portsmouth, N. H., August 9, 1905. The envoys came to terms on August 29th, and a protocol suspending hostilities was issued September 1st. The treaty of peace was signed on September 5th.

The preliminary agreements preparatory to a treaty of peace are frequently made through the friendly offices of a third power. The ambassador of France acted for Spain in 1898; the President of the United States was instrumental in bringing the representatives of Russia and Japan together in 1905. According to article 3 of the Hague Convention of 1907 on the Pacific Settlement of International Disputes:

"Powers strangers to the dispute have the right to offer good offices or mediation even during the course of hostilities. "The exercise of this right can never be regarded by either of the parties in dispute as an unfriendly act."

15 2 Oppenheim, Int. Law, § 273.

16 Foreign Relations U. S., 1898, 828.

17 Takahashi, Int. Law during Russo-Japanese War, 219.

SCOPE OF A TREATY OF PEACE.

167. A treaty of peace

(a) In general, puts an end to hostile relations between the belligerents.

(b) Usually provides for the settlement of the differences

leading to war.

(c) Usually specifies the conditions of release of prisoners of

war.

(d) Usually provides for claims of or against nationals of either party arising during or in consequence of the

war.

(e) May review or confirm former treaties, provide for cession of territory, establishment of new boundaries, etc.

(a) Treaties at the close of a war are often extended to cover many other matters than those which would be included in a treaty of peace in the strict sense. A treaty of peace is primarily a treaty to put an end to the hostile relations of the belligerents. Treaties of peace and amity often mark the conclusion of a war and cover many topics not involved in the simple conclusion of war, as the treaty of peace and amity between the United States and Great Britain in 1814 included an article upon the abolition of the slave trade.

(b) Treaties of peace usually provide for the settlement of the difficulties which have led to the war.1 18 The treaty of 1814 between the United States and Great Britain did not, however, mention these difficulties.

(c) By the sixth article of the Spanish-American treaty of December 10, 1898, the United States and Spain reciprocally agree to return at state expense prisoners to their home countries. Russia and Japan mutually agreed in 1905 to turn over prisoners into the hands of commissioners duly appointed by each state.

(d) The provision of treaties of peace in regard to claims is illustrated in the Spanish-American Treaty of December 10, 1898:

18 The second article of the Russo-Japanese Treaty of September 5, 1905, acknowledges Japan's position in the Far East. Id. p. 774. By the first article of the Spanish-American Treaty of December 10, 1898, Spain relinquishes all claim to the sovereignty of Cuba. 30 Stat. 1755.

"Article VII. The United States and Spain mutually relinquish all claims for indemnity, national and individual, of every kind, of either government, or of its citizens or subjects, against the other government, that may have arisen since the beginning of the late insurrection in Cuba and prior to the exchange of ratifications of the present treaty, including all claims for indemnity for the cost of the war.

"The United States will adjudicate and settle the claims of its citizens against Spain relinquished in this article."

(e) European treaties of peace since the seventeenth century contain many instances of the renewal or confirmation of former treaties. The Treaty of Utrecht, 1714, has often been confirmed. Sometimes a clause makes a general renewal of all treaties existing between the states at the outbreak of the war. Other matters are included as the conditions may make expedient, as the Spanish-American Treaty of December 10, 1898, contained an article providing that for the cession of the Philippine Islands:

"The United States will pay to Spain the sum of twenty million dollars ($20,000,000) within three months after the exchange of the ratifications of the present treaty."

EFFECT OF A TREATY OF PEACE.

168. While the final effects of a treaty of peace may be determined by the scope of its provisions, the immediate effects are to put an end to hostile relations between the belligerents and to put an end to the status of neutrality on the part of other states.

Sometimes a treaty provides for the restoration of the sta tus quo ante bellum; sometimes it follows the doctrine of uti possidetis; sometimes it establishes one doctrine in certain cases and the other in other cases. In absence of provisions in the treaty of peace, the doctrine of uti possidetis is usually followed, and each belligerent retains what he has in his possession. In case the principle of restoration of the status quo ante bellum is adopted, lawful prize and booty would not ordinarily be restored. This principle was largely followed in the treaty of peace between the United States and Great Britain in 1814.

Some treaties may revive ipso facto on the conclusion of a treaty of peace. Certain private rights which have been suspended during the war revive. War does not necessarily terminate contracts, but suspends the judicial enforcement of some contracts.19 Some contracts are generally dissolved, as partnership, and do not revive by a treaty of peace. The general principle was stated in 1823 by the United States Supreme Court as follows:

"We think, therefore, that treaties stipulating for permanent rights and general arrangements, and professing to aim at perpetuity, and to deal with the case of war as well as of peace, do not cease on the occurrence of war, but are, at most, only suspended while it lasts; and unless they are waived by the parties, or new and repugnant stipulations are made, they revive in their operation at the return of peace."

" 20

In general a treaty determines transfer of sovereignty. From the treaty of peace between the United States and Spain after the Spanish-American War in 1898, it is evident that the United States did not consider that it had by the simple fact of effective military occupation obtained the sovereignty over or gained title to Spanish territory. Article II of that treaty states that "Spain cedes to the United States the island of Porto Rico and other islands now under Spanish sovereignty in the West Indies, and the island of Guam in the Marianas or Ladrones," though the forces of the United States were at the time occupying Porto Rico.

It is evident that the United States and Spain, after the war of 1898, considered it necessary to agree to abrogate and annul the treaties existing prior to the war. Provision to this effect is made in article XXIX of the Treaty of Friendship and General Relations of July 3, 1902, as follows:

"All treaties, agreements, conventions and contracts between the United States and Spain prior to the Treaty of Paris shall be expressly abrogated and annulled, with the exception of the treaty signed the seventeenth of February, 1834, between the two countries, for the settlement of claims between the United

19 Semmes v. City Fire Ins. Co. 13 Wall. 158, 20 L. Ed. 490.

20 Society for Propagation of the Gospel v. New Haven, 8 Wheat. 464, 5 L. Ed. 662.

States of America and the government of His Catholic Majesty, which is continued in force by the present convention." As neutrality can exist only during war, the restoration of peace puts an end to that relationship. The rights and obligations of neutrality are at an end.

PROCLAMATION.

169. The termination of a civil war is usually by some act of the political department.

The surrender of the main armies of the party opposing the established state does not necessarily terminate a civil war, for hostilities may be renewed in other regions and by other groups. There is usually no responsible authority which can control those who may engage in military uprisings in different sections. There is also no political authority in the insurgent party competent to make a binding treaty. When, however, the political department of an established state is satisfied that the war is at an end, and issues a proclamation to that effect, this action is binding upon the courts, and is sufficient evidence of the termination of hostilities. War may close at different times in different regions by proclamations to that effect, as in the case of the American Civil War.21

POSTLIMINIUM.

170. The term "postliminium” is used to indicate the return to the original soverignty of that which has been for a time under control of an enemy.

The term "postliminium," derived from the Roman law idea that a person, who had been captured and taken beyond (post) the boundary (limen), on return recovered his former status, served a convenient purpose. By an analogy it was applied to the return to former status when a territory which

21 The Protector, 12 Wall. 700, 20 L. Ed. 463; Brown v. Hiatt, 15 Wall. 177, 21 L. Ed. 128; Adger v. Alston, 15 Wall. 555, 21 L. Ed. 234; Batesville Institute v. Kauffman, 18 Wall. 151, 21 L. Ed. 775.