§ 347. The exceptions to these general mitigations of Ravaging the extreme rights of war, considered as a contest of force, the enemy's territory, all grow out of the same original principle of natural law, when la which authorizes us to use against an enemy such a de

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of the first occupant. The author affirms this to be the undoubted law of modern as well as of former times.

As to the requisite of a corporeal thing, an extension, in analogy with the Roman private law, has been allowed to such incorporeal rights ( jura in re) as are appurtenant and accessory to a corporeal object; e.g., a servitude belonging to a landed estate is held to be occupied together with the dominant estate, as appurtenant to it. But personal servitudes (i.e., belonging to persons), and, above all, obligations (choses in action), are incapable of occupation; and, by mere capture and conquest, no title in them is acquired. In treating the effect of belligerent occupation of immovables, Pfeiffer's language is not free from incongruities. He sometimes admits in terms a provisional or revocable property dependent upon the terms of the peace; but his final, ex professo result is, that, until relinquishment by the original owner, neither the captor nor his grantee has any proprietary title, nor even a defensible and precarious one; and, eventually, he even gives this as the general rule, to which movables are an exception. (pp. 71, 73.) As to obligations (the creditor's interest in choses in action), capture and conquest per se create no right of ownership; and the legal relation of creditor can only be obtained by succession into the status and rights of the creditor. In case of a private person, this could be done in invitum only by reducing the creditor to slavery, when the master would succeed to his rights.

But, on the point of effecting a succession to the sovereign or State, as a result of capture or conquest, and, in virtue of such successorship, becoming substituted as the proper creditor in the public securities, Pfeiffer holds, 1st, That, so long as the war continues, there can be no such succession. 2d, The treaty concluding the war will generally settle this question in practice, if thereby, or in some other way, the previous sovereign cedes his right, or merely renounces it, leaving the power in the hands of the conqueror. 3d, If this do not occur, then the substitution in fact of the new power for the old; the cessation of any substantial resistance on the part of the people; practical general acquiescence in the relation of subjects, together with their being treated as such, and no longer as public enemies, by the conqueror,—this state of things will suffice to create him successor to the former ruler, and consequently to all his right and interest in the public assets.

But, though occupation merely gives the conqueror no legal right to play the part of creditor in the public securities, yet, in consequence of the military duress which he may exercise over the debtors, they will be allowed subsequently the benefit of certain payments to him which were bonâ fide compulsory. Thus, if, by direct forcible levy on their property, or by a command attended with penal consequences, he collects amounts actually due by the terms of the obligation, this will be regarded as an occupatio by him of the effects of the enemy State in their hands. This is a relaxation from the strict rule of law; for, a money-debt being payable in genere, the debtor is not strictly released by any act or casualty that does not exhaust the genus. The theory, that it is an occupatio of the property of the hostile sovereign in the debtor's hands, is resorted to for the sake of equity. But, to obtain the benefit of this modification in the debtor's favor, it is requisite that the amount shall be already due. Yet, if it be overdue, and that by the debtor's fault, so that by reason of his delay the conqueror has had the opportunity to carry off the payment due to the proper creditor, then the debtor will not be allowed the benefit of his payment. It may be

gree of violence, and such only, as may be necessary to secure the object of hostilities. The same general rule, which determines how far it is lawful to destroy the persons of enemies, will serve as a guide in judging how far it is lawful to ravage or lay waste suggested, that, if the debtor is compelled to anticipate the pay-day, his hardship is greater, and he would seem entitled to the same equity as where he pays or compounds a debt due; but the above theory, resorted to in his favor, will not bear so great an extension.

Again, the paying debtor must be under the military power of the conqueror; and payment by a non-resident debtor will not be credited to him, as the element of duress would be insufficient. There must be actual payment: acquittances without payment will not avail. If, to avoid forcible levy, the debtor compromises, or avails himself of a general proviso in the order for collection, by paying a portion of the debt for the whole, he will be allowed the benefit of his actual payment, as an expense incurred to preserve the whole debt from occupatio, whereby it would have been lost to the original creditor, of whom he is regarded in this transaction as negotiorum gestor.

The entire subject of the rights of the conqueror, whether by virtue of mere belligerent occupation, or of completed conquest, and with reference to movables and immovables, corporeal and incorporeal rights, is treated with great fulness by Halleck, in that portion of his work on International Law which relates to the Laws of War. Most writers on international law treat this subject, but less fully than Halleck, with whom the laws of war are the leading object. Heffter, Europ. Völker. §§ 124, 131-134, 185. Puffendorf, de Jure Nat. et Gent. lib. viii. ch. 6. Vattel, liv. iii. ch. 5, 8, 13, 14. Bouvier's Law Dictionary, verb. "conquest." Grotius, de Jur. Bel. ac Pac. lib. ii. ch. 22. Wildman's Intern. Law, i. 163 et seq. Phillimore's Intern. Law, iii. 157, 158, §§ 545-556. The summary of the positions taken by these writers, on the several departments of this subject, may be stated thus:

IN CASE OF COMPLETED CONQUEST. Completed conquest supposes the conquering power to have become the permanently established sovereignty of the country. This may be either by a cession from the former sovereign, or by a practical acquiescence by him or by the people of the territory in its subjection to the conquering State, or by the entire extinction of the political existence of the conquered State.

(1) Private Property of Citizens. When this change has taken place, it is to be observed that the relations of war give place to those of peace, and military authority to civil administration. There is no reason, therefore, why the State should confiscate the property of its new subjects any more than of its old subjects; for the fact, that they were formerly enemies, is not a crime or a penal offence. Nations now respect the obligation of a citizen or subject to sustain his own State in war, and he is treated by the opposite belligerent as a prisoner of war, -in other words, as a lawful belligerent, and not as a criminal. (This reasoning does not apply to enemies in a civil war which has its origin in rebellion; for that is, in law, a criminal offence.) It follows, therefore, that the private property of citizens is not considered as transferred by the completed conquest to the conquering State. It is a distinct question, how far the completed conquest affects acts of ownership done by the conquering State while in hostile military occupation. Not only does the State, now become the sovereign, respect private rights and titles, but is bound to make laws and regulations to insure to individuals the means of exercising and enjoying their rights, appropriate to the new political system under which they have passed.

(2) The Political Laws of the Former State. Political laws and systems imply a reciprocal relation between citizens and the body politic. By the completed conquest,

their country. If this be necessary, in order to accomplish the just ends of war, it may be lawfully done, but not otherwise. Thus, if the progress of an enemy cannot be stopped, nor our

the former body politic has ceased to exist. Consequently, the former political system disappears, and a new one takes its place. And the new political system is established and regulated by its own force and on its own principles. The political and civil rights of the inhabitants of the country depend on the provisions of the new system, in the absence of treaty stipulations on the subject.

(3) Allegiance to the Conquering State. In the absence of any treaty stipulations on this point, it is considered that the citizens of the conquered country owe absolute allegiance to the new State. If it is a bare case of conquest, the conqueror, now become the permanent sovereign, can surely forbid the departure of former citizens from the country, and claim sovereign rights over them. In the case of a title resting solely on cession, it is understood that the former citizens have the option to stay or leave the country, and the continuance of their domicil is conclusive on the obligation of permanent allegiance.

(4) Municipal Private Laws. The reasons for considering the former political laws as abrogated do not apply to the municipal laws, which regulate the private relations of individuals to each other, and their private rights of property. The change of sovereignty does not obliterate the subject-matters of property or obligations, nor the parties to the rights, duties, or compacts; and, in respect to these things, there is a permanent necessity for an uninterrupted existence of laws of some kind. Accordingly, it is held that the municipal private code remains in force. Yet it is not proprio vigore, or by the will of the people of the conquered country, but by the acquiescence of the new sovereignty, which is held to intend the continuance of such laws in the absence of new laws displacing them.

(5) Property of the Conquered State. The conqueror succeeds to the public property of the conquered State, of whatever character, whether movable or immovable, corporeal or incorporeal, lying in possession or in right of action. It can, of course, give valid titles to it, and valid acquittances to debtors of the former State; and the debtors are bound to pay their debts to the new State, as the successor and representative of the old. The notorious case of the refusal of the Elector of Hesse Cassel to recognize the sale of crown-lands made by the King of Westphalia, was a violation of this principle. His State was conquered by Napoleon in 1806, who made a completed conquest of it, and incorporated it into the Kingdom of Westphalia, which was recognized as a sovereignty by the treaties of Tilsit and Schonbrunn, and by the public law of Europe, for not less than seven years. When the Elector was restored to his throne by the treaty of Vienna, he retook possession of the former crown-lands, which his own subjects had bought of the King of Westphalia, and refused to recognize their titles, or to make them any pecuniary allowance. He refused to permit his courts to pass upon the question, or to leave it to arbitration; and the injured parties did not succeed in getting either the parties to the treaty of Vienna, or the Germanic Confederation, to interfere for their redress. The course of the Elector has been condemned by publicists.

Heffter, Europ. Völker. §§ 185, 186; Rotteck und Welcker's Staats-Lexikon (Domainen-käufer); Schweckart's Napoleon und die Kurhess. Capitalschuldner. Phillimore's Intern. Law, iii. §§ 573, 574. Halleck's Intern. Law, 840, 841.

The Elector of Hesse Cassel also refused to respect the payments made by the public debtors to the King of Westphalia. The case of the Count Von Hahn, which was carried through several tribunals, was a fair test of the principle. Count Von

own frontier secured, or if the approaches to a town intended to be attacked cannot be made without laying waste the intermediate territory, the extreme case may justify a resort to measures not

Hahn, a resident of the Duchy of Mecklenburg, compounded with the King of Westphalia for the debt he owed to Hesse Cassel, and obtained a release; and the Duchy of Mecklenburg declared the mortgage upon the count's estate, given to secure that debt, to be cancelled and void. On his restoration, the Elector instituted proceedings as a creditor against the estate. The first two tribunals - the Law Faculties of Breslau and Kiel-decided that the Elector could recover so much of the debt as the count had not actually paid. This was upon the theory that the possession of the King of Westphalia was a military occupation, as of a transient conqueror. The final tribunal decided that the debt was validly cancelled, on the ground that the King of Westphalia had become the permanent and recognized sovereign of Hesse Cassel, and that the return of the Elector could not be considered as a continuance of his former sovereignty in such a sense as to invalidate the sovereign acts of the King of Westphalia in dealing with the public debts. Heffter's Europ. Völker. §§ 186-188. Pfeiffer's Kriegserob. ut suprà. Phillimore's Intern. Law, iii. §§ 568-572. Halleck's Intern. Law, 842. Rotteck und Welcker's Staats-Lexikon, tit. Domainen-käufer. Schweckart's Napoleon und die Kurhess. Capitalschuldner. Conversations-Lexikon, iii. Domainen.

(6) Retro-active Effect. The completed conquest operates to confirm and complete the rights and titles which the conquering power may have given, by virtue of previous belligerent occupation, to the public property of the conquered State. Such titles, being given as and for absolute titles, yet, in their nature, subject to the chances and final results of the war, take their date, after the compléte conquest, from the original grant. As to the alienations of public property by virtue of belligerent occupation, vide infrà.

BELLIGERENT OCCUPATION. Belligerent occupation implies a firm possession, so that the occupying power can execute its will either by force or by acquiescence of the people, and for an indefinite future, subject only to the chances of war. On the other hand, it implies that the status of war continues between the countries, whether fighting has ceased or not, and that the occupying power has not become the permanent civil sovereign of the country. The effect of such occupation may be considered under several heads::

(1) Allegiance and Political Laws. As the State has not been able to protect its citizens, its claim upon their allegiance is suspended during hostile occupation. They not only cannot be afterwards punished for having acquiesced in the authority that has gained control over the place, but they cannot be compelled to pay to their government, after restoration, taxes or excise or customs duties for the time the place was in the enemy's possession. (United States v. Rice (the Castine Case,) Wheaton's Rep. iv. 246. Fleming v. Page, Howard, ix. 663. Cross v. Harrison, Howard, xvi. 164.) The people of the conquered place who submit to the conqueror and remain, as non-combatants, owe a temporary and qualified allegiance to the occupying power. The commander of the occupying forces has a right to require of the inhabitants an oath or parole, not inconsistent with their general and ultimate allegiance to their own State. He may require of them an oath or promise to remain quiet, and make no attempt to disturb his authority, and to submit to such laws as shall be made for the government of the place. He may require them to do police service, but not to take arms against their own country. Indeed, in the absence of any such formal promise, it is understood in modern mes, that, by taking the attitude of non-combatants and submitting to the authority, the citizen holds himself out as one not requiring restraint, and is treated as having given an implied parole to that effect. Combatants,

warranted by the ordinary purposes of war. If modern usage has sanctioned any other exceptions, they will be found in the right of reprisals, or vindictive retaliation. The whole international code

or persons who, by resistance, or attempts at resistance, or by refusal to submit to the authority, take the attitude of combatants, may be placed under restraint as prisoners of war. Modern writers have gone so far as to contend, that citizens, who come under this temporary and partial allegiance to the conqueror, cannot throw it off and resist the authority by force, except on grounds analogous to those which justify revolution. If the occupying power does not do its part to protect the citizen in his person or property, or makes unreasonable and tyrannical exactions, these may constitute, as in a case of revolution, ethical justification for a resort to stratagem or force to overthrow the government.

Whether the laws which the occupying power establishes over a conquered place are those of the conquering country, or such other and different laws as that power shall choose to establish, is a matter of internal and not of international law. Under the Constitution of the United States, a place so held is not a State of the Union, and the general laws of the Union do not, proprio vigore, extend over it; but it is simply a district held by the military power, for the belligerent purposes of the Union, and is subject to such laws as the belligerent authorities of the Union may establish. Congress is considered as having a general authority to make laws for the government of such places, under its authority over martial and military law; and, in the absence of Acts of Congress, the President, as commander-in-chief, establishes such rules as he sees fit. (Halleck's Intern. Law, 784-6. Fleming v. Page, How. ix. 615. Cross v. Harrison, How. xvi. 164.) Importations into the United States from such places are held to be foreign and not domestic trade, within the meaning of the revenue laws. By the British system, on the other hand, it is said that a conquered place becomes, ipso facto, a part of the king's domain, and its inhabitants become in all respects his subjects. (Calvin's Case, Coke's Rep. Part VII. Elphinstone v. Bedreechund, Knapp, 338. Campbell v. Hall, State Trials, xxiii. 322. Same, Cowper, i. 205. Fabrigas v. Mostyn, Cowper, i. 165. Collet v. Keith, East. ii. 260. Blanchard v. Guldy, Mod. Rep. iv. 225.) Still, it is not to be supposed that the citizens of such a place are citizens of England, Scotland, or Ireland, or have political privileges as such, as a right to vote, or to be represented in Parliament. Foreign nations must accept the de facto condition of the place, and comply with such commercial and police regulations, and pay such duties, as the occupying power shall establish, if they choose to trade there; and treaty rights bearing on those subjects, whether made with the conquering or the conquered State, are inapplicable.

(2) The Extent of the Belligerent Occupation. The authority of the conqueror extends no further than his actual power extends. Such persons, such things, and such districts of country, as are under his hand and submit to his authority, or are coerced by it, are subject to his laws. His title rests on force, and is measured by it.

(3) Municipal and Private Laws. In case of belligerent occupation, as in case of completed conquest, the private laws of the former State subsist, unless they are suspended by the act of the occupying power, and for the same reason, that some laws must exist, to regulate private rights and relations, and the persons and things which are their subjects remain unchanged: therefore the laws are permitted to continue until a change is expressly made.

(4) Immovable Property. By belligerent occupation, the tonqueror has the right to appropriate the use of public lands, and of all incorporeal rights accessory to them. He may confiscate the rents and taxes due, and use these lands in such way as he sees