the two, and, in some respects, the rules of occupation are applicable to the case of conquest.

Conquest is often defined as occupatio bellica; and it so far partakes of the nature of occupation, that unless the conqueror has actual possession of the thing conquered he can exercise no right over it. "Vox ipsa capta," Cocceius observes, "indicat rem ita in nostrâ custodiâ et potestate esse ut eximi non potest:"(d) and Grotius, speaking of the nature of acquisition by conquest, "non causa aliqua sed ipsum nudum factum spectatur, et ex eo jus nascitur."(e)

DXLII. It has been already seen that, in case of immovable property, even actual possession by the conqueror does not confer a right of alienation, which, after the conqueror has departed, will enure to oust the original owner, unless such a result has formed part of the stipulations of a Treaty or been ratified by some public act of the state.

DXLIII. It is upon this principle that the Courts of the United States of North America have determined that grants of territory made by British Governors after the Declaration of Independence by the Americans are invalid.

In the case of a grant of land lying between the *Mississippi and the Chatahouchee rivers, made after the Declaration, by the British Governor of Florida, Justice Johnson said :—

[*683]

"Two questions here occur; first, whether this separation had taken effect by any valid act; and secondly, if it had, whether it made any difference in the case upon international principles.

"On both these points we are of opinion that the law is against the validity of this grant. It is true that the power of the Crown was at that time admitted to be very absolute over the limits of the royal provinces; but there is no reason to believe that it had ever been exercised by any means less solemn and notorious than a public proclamation. And although the instrument by which Georgia claimed an extension of her limits to the northern boundary of that territory was of no more authority or solemnity than that by which it was supposed to have been taken from her, it was otherwise with South Carolina. Her territory had been extended to that limit by a solemn grant from the Crown, to the lords proprietors, from whom, in fact, she had wrested it by a revolution, even before the rights of the proprietors had been bought out by the Crown.

"But this is not the material fact in the case; it is this, that this limit was claimed and asserted by both of those states in the Declaration of Independence, and the right to it was established by the most solemn of all International Acts, the Treaty of Peace. It has never been admitted by the United States that they acquired anything by way of cession from Great Britain by that Treaty. It has been viewed only as a recognition of pre-existing rights, and on that principle, the soil and sovereignty within their acknowledged limits were as much theirs at the Declaration of Independence as at this hour. By reference to the Treaty, it will be found that it amounts to a simple recognition of the independence and the limits of the United States, without any language purporting a cession

(d) Grotius, Illustr. iii. p. 308, n. (m).

(e) L. iii. c. vi. s. 2, n. 4.

*or relinquishment of right on the part of Great Britain. In [*684] the last article of the Treaty of Ghent, will be found a provision respecting grants of land made in the islands then in dispute between the two States, which affords an illustration of this doctrine. By that article, a stipulation is made in favour of grants before the War, but none for those which were made during the War; and such is unquestionably the Law of Nations. War is a suit prosecuted by the sword; and where the question to be decided is one of original claim to territory, grants of soil made flagrante bello by the party that fails, can only derive validity from Treaty stipulations. It is not necessary here to consider the rights of the conqueror in the case of actual conquest, since the views previously presented put the acquisition of such rights out of this case."(ƒ)

DXLIV. This doctrine therefore of the necessity of an actual possession, as a foundation for the rights incident to an occupatio bellica, finds its principal application with respect to (1.) movables, and to (2.) incorporeal things or rights. The former may be alienated by the conqueror, who has actual possession of them, and are not subject, as we have seen,(g) to Postliminium. The latter raises a question as to the power of the conqueror to alienate incorporeal things or rights, which is one of no mean difficulty, and which, indeed, ranks among the most remarkable and arduous subjects both of Public and of International Jurisprudence. It will be necessary to consider the

(I.) Theory of International Law, and

(II.) The Practice of States, upon this important subject.

+

THE THEORY OF INTERNATIONAL LAW AS TO THE POWER OF THE CON-
QUEROR, AND OF THE SOVEREIGN DE FACTO, OVER INCORPOREAL
THINGS.

DXLVH. As to the theory of International Law.

An occupation of Incorporeal Things or Rights has been truly said(a) to be what is technically termed contradictio in adjecto. Incorporeal Things or Rights belong to the class described by Seneca "quæ nec visu, nec tactu, nec alio sensu comprehenduntur."(b) They cannot in themselves be the subjects of actual possession; they are not external things on which the Conqueror can lay his armed hand. They are Rights which exist in mental apprehension(c) as connected with a given subject to which they are attached, and with a material object upon which they

(f) Harcourt v. Gaillard, 7 Curtis's (Amer.) Rep., p. 332.

(g) Vide ante, Ch. VI. pp. 502-4.

(a) Pfeiffer, Das Recht der Kriegseroberung in Beziehung auf Staatscapitalien. Cassel, 1823-41.

(b) In Epistolis, n. 58, s. 13.

(c) "Quæ non sunt, sed tamen intelliguntur."-Cicero, Topica, c. 5.

can be exercised. Therefore the Roman Law philosophically said, "ipsum jus obligationis incorporale est;"(d) and again, “nec possideri videtur jus incorporale."(e)

It is therefore only by the actual possession of the subject to which they adhere that they can be occupied by the Conqueror,(ƒ) or, as a learned jurist has happily expressed it, "mediantibus corporibus quibus inhærent occupari possunt."(g)

*If the conqueror, therefore, possess himself of the corporeal thing to which the incorporeal right is attached, he possesses himself of both.

[*686]

The Roman Law furnishes a strong analogy in the instance of servitutes.(h)

These servitutes, when attached to real property, could only be. acquired by the acquisition of the property itself; the servitus could not be acquired by usucapio(i) unless simultaneously with land to which it was attached. Now it has been said that immovable property cannot be permanently alienated by the conqueror without the confirmation of a subsequent treaty, or of some public act of the state.

DXLVI. But a question of greater difficulty presents itself in the case of an incorporeal thing attached not to a corporeal thing but to a + person.

Does the capture of the person carry with it the possession of his incorporeal rights? The language of some great jurists is vague upon this subject thus Grotius says, "Verum est, incorporalia belli jure, non primò ac per se adquiri, sed, mediâ personâ, cujus ea fuerunt;"(k) and Cocceius," Res incorporales sunt, ad quarum substantiam corpus non pertinet, et vel personis insunt vel rebus, quibus proinde captis, simul jura illa inhærentia capta censentur."()

But it is well said by the erudite Pfeiffer, (m) whose work may be said to exhaust the learning upon this subject, that neither Grotius nor Cocceius appear to have sufficiently considered the essential distinction between. Rights inherent in a thing and Rights attached to a person. In the latter case there is not the presence of the corporeal medium through which the Right accrues; a free man can neither be himself the subject of possession, nor be the medium through *which a thing, in [*687] itself incapable of actual possession, can be acquired.

Man, as the subject of rights, cannot be compared to a thing;(n) his rights do not, so to speak, hang upon him as they hang upon a piece of land; they rather proceed from him; they constitute his intellectual or spiritual property, which cannot by the agency of what Grotius calls a nudum factum, be separated, without his consent, from his person.(o)

(d) Dig., i. t. viii. 1. de Divisione Rerum et Qualitate.

(e) Ibid., xli. t. iii. 4, s. 27, de Usurpationibus et Usucapionibus. Ibid., xli. t. ii. 3, de adquirenda vel amittenda Possessione.

(f) "Incorporalia omnino tenentur cum re cui cohærent."-Grot. Illustr. iii. c. viii. s. 4, n. v.

1702, p. 38; cited by

(i) Ib., pp. 206-8.

(m) P. 47.

(9) Brunleger, Diss. de Occupatione Bellica. Argent, Pfeiffer, p. 44. (h) Vide ante, Vol. I. pp. 304-6. (k) L. iii. c. vii. s. 4, c. viii. s. 2. () iii. c. vii. s. 4. (n) Vide ante, Vol. I. p. 316. Pfeiffer, ubi supra, p. 51. "Jura quæ personæ competunt in aliam personam, cum non nisi hujus consensu

(0)'

+

The jura obilgationis especially consist in personal relations, binding, so to speak, at one end the obligor, at the other the obligee; they therefore consist in something external, which cannot be taken possession of by the mere seizure of the physical person of the obligor. Therefore, when a person, to whom certain rights belong, is captured by an enemy, such capture gives the captor only the corporeal and actual things in the possession of his prisoner. The case of the capture of a slave might at one time, perhaps, have given rise to different considerations, but that is an occupatio not to be recognized by modern International Law.(p)

The possession of the creditor's person does not give a jus exigendi of his debts. The doctrine on the subject is clearly stated by Burlamaqui: « À l'égard des droits personels sur les choses il ne suffit pas de s'être saisi de la personne de l'ennemi pour avoir acquis tous ces fiers, à moins qu'on ne j'empare en effet de ces biens mêmes dans l'occasion :"(q) and so Puffendorf, "Si civis ab hoste captus fuerit, bona istius, quæ simul capta non fuerunt, non adquiruntur capienti, sed ad eum perveniunt, quem leges *civiles ad successionem vocabant, si iste naturali morte functus

[*688] est." This latter proposition is, of course, one of Municipal and not International Law.) "Quod si autem," he continues, " simul cum personâ hostis ipsius quoque bona ceperit, sufficit ipsi ad dominium rerum captorum titulus captionis bellicæ, nec opus est ut istud dominium demum arcessat ex personâ prioris domini simul capti: adeoque perinde est quantum ad jus captoris in res captos sive dominum simul ceperit sive non."(r) The learned Hertius supports, in his commentary on Puffendorf, this position; it is impugned, indeed, by Barbeyrac,(s) but upon the ground that the prisoner may be made a slave, and that the possession of a slave is the possession of all that belongs to him,-in fact is the possession of a thing rather than of a person,-a doctrine happily exploded from the code of International Jurisprudence.

DXLVII. It is then the necessary conclusion from the premises which have been laid down, that Incorporeal Things, such as debts, do not accrue to the Conqueror as a consequence of his possession of the person who is entitled to them.

DXLVIII. Do they accrue to him from his possession of the instruments or documents which contain the legal statement of the obligation of the obligor, which are, so to speak, the title deeds of the obligee ?(t) If part of the booty of the Conqueror be a promissory note, can he put

sint quæsita (qui consensus non promiscuè quemlibet spectavit, sed certum duntaxat hominem,) haud quidquam simul adquisita intelligentur, utut persona, cui ista competebant, in hostium manus pervenerit."-Puffendorf, de Jure Nat. et Gent., 1. viii. c. vi. s. 22.

(p) Pfeiffer, pp. 52, 53.

(2) Principe de Droit de la Nat. et des Gens., P. iv. ch. vii. s. 14.

(r) De Jure Nat. et Gent., 1. viii. c. vi. s. 22.

(8) "Car aujourd'hui même dans les pays ou l'on fait des esclaves ceux que l'on prend, on acquiest, comme autrefois, avec la personne, tous ces biens, de quelque nature qu'ils soient, au nombre desquels sont les dettes actives, quelque fondées qu'elles soient sur un contract."-See Barbeyrac's Transl. of Puf., n. 1, to s. xix. 1. viii. c. vi.

(t) Pfeiffer, p. 55.

himself in the place of the promisee, and exact the debt from the promisor?

Some jurists have answered this question in the affirmative; but in so doing they appear to have been misled by *the analogies of the Roman Law.(u) According to that law the testator who bequeath[*689] ed the promissory note bequeathed the money which it promised. The person who gave up a promissory note signed by the testator to his heir released the testator's representative from the payment of the money due by the testator. Acting upon this analogy, some jurists have said, "Quod chirographo occupato etiam debitum occupatum sit."(x) But in the case both of the testator and the creditor the analogy fails.

There is in both cases an intention on the part of the person entitled to the money to transfer his right to another, and the bequest or donation of the instrument is the bequest or donation of the proof of his right. No other construction can be put upon the act. In neither case is the res ipsa parted with; but it is the possession of the res ipsa which is necessary to found the title of the Conqueror. "Regulam (says a learned civilian) quod res ex hostibus captæ capientium fiant, hic applicari non posse, cum res debita nondum sit occupata, liquet; nec obstat 1, 59, D. de legat III., nam ab actu benefico ad occupationem hostilem male infertur, si quis enim chirographum tertio vel ipsi debitori leget, tum merito jus suum transtulisse vel *exstinxisse præsumitur, cum

alias nihil actum foret, quale interpretandi genus absurdum [*690]

est."(y)

And another civilian says, "Quæritur, si miles in bello chirographum debitoris occupaverit, an ipsi statim jus, debitum exigendi et solutum accipiendi, adquiratur? Respondetur negativè, quia tantum consetur adquisitum, quantum occupatum, chirographo autem occupato, non statim est occupatum jus debitum exigendi, quod persona adhæret et per chirographum tantum probatur."(z)

In confirmation of these positions it may be observed, that the creditor may recover his debt though these instruments be lost or destroyed;

(u) "Eum, qui chirographum legat; debitum legare, non solum tabulas, argumento est venditio; nam cum chirographa veneunt, nomen venisse videtur."-Dig. xxx. t. i. s. 44, 25.

"Qui chirographum legat, non tantum de tabulis cogitat, sed etiam de actionibus, quarum probatio tabulis continetur. Appellatione enim chirographi uti nos pro ipsis actionibus, palam est, quum venditis chirographis intelligamus nomen venisse." -Dig. xxxii. t. i. s. 59.

"Si ita cui legatum esset: "Si tabulas chirographi mei heredi meo reddiderit, heres meus ei decem dato, hujusmodi conditio hanc vim habet, si heredem meum debito liberaverit."-Dig. xxx. t. i. s. 84, 8 7.

"Si debitori meo reddiderim cautionem, videtur inter nos convenisse, ne peterem profuturamque ei conventionis exceptionem placuit."-Dig. ii. t. xiv. s. 2, 2. (x) Brunleger, in Dissert. cit., v. p. 39, cited by Pfeiffer, p. 57.

(y) Titius in Observat. ad Lauterbach, Observat. 1438, cited by Pfeiffer, p. 58. (z) Lauterbach, Colleg. Pandect., lib. xlvi. t. iii. 16, cited by Pfeiffer, p. 60. Lauterbach cites Dig. xx. t. i. 1. De Pignoribus, &c.: "Conventio generalis in pignore dando bonorum vel postea quæsitorum recepta est; in speciem autem alienæ rei collatâ conventione, si non fuerit ei, qui pignus debat, debita, postea debitori dominio quæsito, difficilius creditori, qui non ignoravit alienum, utilis actio dabitur; sed facilior erit possidenti retentio."