its boundary. By boundary, he signifies the commencement of another's possession. Upon these principles, the extent of hostile possession may be distinctly defined. If an army be in possession of a principal town of a province, it is not thereby in possession of the towns and forts within the same, which hold out for the enemy. Forcible possession extends so far only as there is an absence of resistance. The occupation of part by right of conquest, with intent to appropriate the whole, gives possession of the whole, if the enemy maintain military possession of no portion of the residue. Under such circumstances, military possession of a capital would be possession of a whole kingdom. But if any part hold out, so much only is possessed as is actually conquered. Thus both the States-General and the King of Spain maintained, during the controversies that arose out of the truce between Spain and the United Provinces, that the possession of the surrounding country follows the possession of a town. The military possessors of a town must necessarily have the surrounding country in their power, unless there be a fortress within it; in which case, the country commanded by the fortress would not be in their possession. These principles show the absurdity of the pretensions of the Western and Eastern empires that have been founded on the possession of Rome and Constantinople.' The same principles are recognised in the decision of Calvin's case. 'Now come we,' says Lord Coke, 'to France and the members thereof, as Calais, Guynes, Tournay, etc., which descended to King Edward III., as son and heir to Isabel, daughter and heir to Philip le Beau, King of France. Certain it is, whilst King Henry VI. had both England and the heart and greatest part of France under his actual legiance and obedience, (for he was crowned King of France in Paris,) that they that were then born in those parts of France that were under actual legiance and obedience, were no aliens, but capable of, and heritable to, lands in England.' Those born in parts of France not under actual legiance and obedience, and prior to King Henry's recognition and coronation, were regarded as antenatis, and received letters patent of denization, as in the case of Reynel.'' 1 Bouvier, Law. Dic., verb. Conquest; Duponceau, Translation of Bynkershoek, p. 116, note: Wildman, Int. Law, vol. i. pp. 163, 164 : Calvin's case, Coke R., pt. vii. p. 220; Justinian, Pandects, xli. 2; xviii. 4; Schwartz, De Jure Vic., in Res. Incorp., th. 27. § 3. It must not be inferred from what has just been said, that the conqueror can have no control or government of hostile territory unless he actually occupies it with an armed force. It is deemed sufficient that it submits to him and recognises his authority as a conqueror; for conquests are in this way extended over the territory of an enemy without actual occupation with armed force. But so much of such territory as refuses to submit, or to recognise the authority of the conqueror, and is not forcibly occupied by him, cannot be regarded as under his control or within the limits of his conquest; and he therefore cannot pretend to govern it, or to claim the temporary allegiance of its inhabitants, or in any way to direct or restrict its intercourse with neutrals. It remains as the territory of its former sovereign,-hostile to him, as a belligerent, and friendly to others, as neutrals. The government of the conqueror being de facto and not de jure, it must always rest upon the fact of possession, which is adverse to the former sovereign, and therefore can never be inferred or presumed. In other words, the rights of the conqueror are those of possession, and not of title, and whenever brought in question, they must be proved, and cannot be presumed. Not only must the possession be actually acquired, but it must be maintained. The moment it is lost, the rights of military occupation over it are also lost. In the words of Chief Justice Taney, 'By the laws and usages of nations, conquest is a valid title while the victor maintains the exclusive possession of the conquered country.'1 § 4. Political laws, as a general rule, are suspended during the military occupation of a conquered territory. The political connection between the people of such territory and the State to which they belong is not entirely severed, but is interrupted or suspended so long as the occupation continues. Their lands and immovable property are, therefore, not subject to the taxes, rents, etc., usually paid to the former sovereign. 1 Fleming et al. v. Page, 9 Howard R., 613. During the Franco-German war, 1870, the Germans declared that their passage through a French district, placed that part of the territory under their military code (for which see ante, p. 8). Further, they 'theoretically occupied a district'-that is to say, without any formal declaration, and even without placing chalk marks on the doors of the houses (a sign, which they adopted to designate, where their troops were billetted): they declared a district to be occupied by them, on the mere fact of having entered it.-Edwards, Germans in France. These, as we have said elsewhere, belong of right to the conqueror, and he may demand and receive their payment to himself. They are a part of the spoils of war, and the people of the captured province or town can no more pay them to the former government than they can contribute funds or military munitions to assist that government to prosecute the war. To do so would be a breach of the implied conditions under which the people of a conquered territory are allowed to enjoy their private property, and to pursue their ordinary occupations, and would render the offender liable to punishment. They are subject to the laws of the conqueror, and not to the orders of the displaced government. Of lands and immovable property belonging to the conquered State, the conqueror has, by the rights of war, acquired the use so long as he holds them. The fruits, rents, and profits are, therefore, his, and he may lawfully claim and receive them. Any contracts or agreements, however, which he may make with individuals farming out such property, will continue only so long as he retains control of them, and will cease on their restoration to, or recovery by, their former owner.1 § 5. The municipal laws of a conquered territory, or the laws which regulate private rights, continue in force during military occupation, except so far as they are suspended or changed by the acts of the conqueror. Important changes of this kind are seldom made, as the conqueror has no interest in interfering with the municipal laws of the country which he holds by the temporary rights of military occupation. He nevertheless has all the powers of a de facto government, and can, at his pleasure, either change the existing laws or make new ones. Such changes, however, are, in general, only of a temporary character, and end with the government which made them. On the confirmation of the conquest by a treaty of peace, the inhabitants of such territory are, as a general rule, remitted to the municipal laws and usages which prevailed among them prior to the conquest. Neither the civil nor the criminal jurisdiction of the conquering State is considered, in international law, as extending over the conquered territory during military occupation. Although the national jurisdiction of the conquered power is replaced by that of military 1 Am. Ins. Co. v. Canter, 1 Peters R., 542; Burlamaqui, Droit de la Nat. et des Gens., t. v. pt. iv. ch. vii. occupation, it by no means follows that this new jurisdiction is the same as that of the conquering State. On the contrary, it is usually very different in its character, and always distinct in its origin. Hence, the ordinary jurisdiction of the conquering State does not extend to actions, whether civil or criminal, originating in the occupied territory. 'Military occupation and military government,' says Ortolan, 'is not sufficient to change the national jurisdiction, and to substitute the jurisdiction of the occupying State for that of the territory temporarily occupied. Such an effect is produced only by incorporation or definitive occupation. We refer here only to the jurisdiction of common law, and the ordinary and usual cognisance of cases, without in any manner diminishing the rights derived from war, and the measures necessary for the government of military occupation.' The author then refers to a decision of the Court of Cassation on appeal from the Court of Assizes of the Pyrénées Orientales, in the case of Villasseque, a Frenchman, charged with the crime of assassination committed in the territory of Catalonia, Spain, during the military occupation by France, in the summer of 1811. It was contended by the prosecution that, inasmuch as Catalonia was occupied by French troops, and the government administered by French authorities, it must be considered as French territory; but the court in its decision (Arrêt du 22 Janvier, 1818), said: 'This occupation and this administration by French troops and French authorities had not communicated to the inhabitants of Catalonia the title of Frenchmen, nor to their territory the quality of French territory; this communication could result only from an act of union emanating from the public authority, which never existed.' The same view has been taken by the Attorney General of the United States, with respect to crimes committed in Mexico during the military occupation of that country by the United States.1 1 Heffter, Droit International, § 131; Ortolan, Diplomatie de la Mer, liv. ii. ch. xiii.; Campbell v. Hall, 1 Cowp. R., 204; Toucey, Opinions U. S. Att'ys. Genl., vol. v. p. 55; Kamptz, Literatur des Völkerrechts, $307; Cocceius, De Jure Vic. in Res Incorp., passim. During the Franco-German war, 1870, open letters were forwarded by the German Feldpost,' to French towns in their occupation. Also to facilitate regular purchases in such towns, they published a table of exchange, declaring with perfect fairness, the currency value of German money.-Edwards, Germans in France. § 6. How then are crimes to be punished which are committed in territory occupied by force of arms, but which are not of a military character nor provided for in the military Whilst they were occupying Versailles, no person could go in or out of that town, without a permit from the German military authorities. The French mayor continued his civil duties, and the French flag remained over the Mairie all the time.-Delerot, Versailles. Regulations such as the following were issued by the Germans, as to the general conduct of the inhabitants in occupied districts-viz., that they give up their arms; that they put out their lights at a certain hour, and in case of a disturbance at night, show lights in all their windows; that they hold no communication with the enemy,' or with any person in the unoccupied part of the country; that they do not act voluntarily as guides to 'the enemy;' if called upon to act as guides to the occupying troops, they will mislead them at their peril; that they do not join the hostile army, nor form bands on their own account; that they do not cut the telegraph or injure the railway, the penalty for disobedience in such case is death; if the railway or telegraph is injured and the offender cannot be discovered, a fine is imposed on the town or commune; and if the fine or the usual money contribution be not forthcoming, hostages are taken and detained until it is paid. The townspeople are to remain tranquil; all in the neighbourhood are to remain tranquil; they are to furnish the requisitions demanded from them and help the local authorities to pay the money contribution, and their lives and persons will be safe and their property protected.-Edwards, supra. The proclamation of martial law renders every man liable to be treated as a soldier. The instant the necessity ceases, that instant the state of soldiership ought to cease, and the rights with the relations of civil life to be restored. Per Lord Brougham, Debate on the trial of the Rev. John Smith by court-martial.-Parl. Debates, 1824. In the field, all followers and retainers of an army become subject to the restraint of military law, and the custom of war, and the necessity of the case then also justifies the punishment, by sentence of court-martial, of certain crimes against the safety of the army, or the person or the property of individuals belonging to it, or entitled to its protection, when the offenders themselves neither belong to nor are connected with the service. The declaration of martial law renders all persons amenable to courtsmartial, on the order of the military authority, so long as the civil judicature is not in force. There is also a modified exercise of martial law, when, by special intervention of the authority exercising the legislative power, courts-martial have been erected into tribunals, for the trial of persons not subject to military law for certain specified offences, although the ordinary course of law may have been partially restored, or had never been altogether stayed. As instances of the special laws creating this exceptional jurisdiction may be mentioned-the Statute (Ir.) 39, Geo. III. c. 11, passed in Ireland in 1798, which was revived by the Irish Act, 40 Geo. IÏÏ., c. 2, and further continued by the 41 Geo. III., c. 14; the Statute 43 Geo. III., c. 117, which was passed in the Imperial Parliament in 1803, re-enacting the principal provisions of that before mentioned; and the Ordinance (Canada), 2 Vict. c. 3, passed in Canada in 1838. These Acts authorise the exercise of the powers which they may confer on the executive, whether the ordinary courts shall or shall not be open,' and do not lay down any deviation from the ordinary manner of proceeding in the case of courtsmartial held under them. The Irish Coercion Act, passed in 1833 |