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§ 21. History abounds in examples of this kind of insurrection, and of punishments inflicted by the conqueror upon the insurgents. Without recurring to the wars of the middle ages, of the reformation, of Charles V., Louis XIV., and Frederick II., before the principles of international law were fully established or generally recognised, we find numerous examples in the wars of Napoleon, in Europe, and of the English, in India. And, without noticing the military operations of Clive, Hastings, Sir Eyre Coote, and Wellington, we have, in the recent war in the latter country, some most terrible examples of the severity with which military insurrections are punished at the present day, and by the most civilised conquerors. But a few illustrations drawn from the wars of Napoleon will suffice for our purpose. In the Italian campaign of 1796, the inhabitants of Pavia rose against the French troops, and made them prisoners. Lannes routed a portion of the insurgents, and burnt the village of Brescia; but, as this severe example failed in producing intimidation, Napoleon himself returned to the revolted city, shot the leaders of the insurrection, and delivered up the place to plunder. This terrible example," says the English historian, 'crushed the insurrection over the whole of Lombardy.' In the campaign of 1797, a Venetian insurrection was organised on the Adige, four hundred wounded French in the hospital of Verona were killed in cold blood, and the French garrison of Fort Chiusa, which capitulated for want of provisions, was inhumanly put to death. The insurrection was immediately suppressed, its authors shot, and a contribution of one million one hundred thousand francs levied on the city. In the Peninsular war many of the Spaniards and Portuguese, after submitting to the French, took advantage of every opportunity to rise upon a small garrison or detachment, and to murder all stragglers. They were punished with severity. 'So many complaints, says Napier, were made of the cruelty committed by Massena's army while at Santarem, that Lord Wellington had some thoughts of reprisals; but having first caused strict inquiry to be made, it was discovered that in most cases, the ordenanças, after having submitted to the French, and received their protection, took advantage of it to destroy the stragglers and small detachments, and the cruelty complained of was only the infliction of legitimate punishment for such conduct;

the projected retaliation was therefore changed for an injunction to the ordenanças to cease from such a warfare.' 1

§ 22. Military occupation, as has already been stated, suspends the sovereignty and dominion of the former owner so long as the conquered territory remains in the possession of the conqueror, or in that of his allies. The temporary dominion of the latter completely excludes, for the time being, the original dominion of the former. The vanquished sovereign, therefore, has no power, as against the conqueror, to alienate any part of his own territory which may be at the time in the possession of the latter. If the conquest be completed, or confirmed, the title passes to the conqueror precisely as it was when the latter first acquired the possession. No other party can claim any rights over it arising from any conveyance or transfer from the vanquished while it was in the conqueror's possession. But, if it be surrendered up to the former owner, or recovered by him, such conveyances would become valid, for the alienor would not be permitted to deny his own act. It is a principle of jurisprudence that possession of, and the right to, the thing alienated-the jus ad rem and the jus in re-are necessary in the grantor in order to constitute a complete title. During military occupation these exist together neither in the original owner nor in the conqueror. The title conveyed by either is therefore imperfect; if by the former, it is made good by a restoration of the conquest; and, if by the latter, it is completed by a confirmation of the conquest, whether by treaty or any other mode recognised in international law.2

23. But suppose war to be declared and actually commenced, and that one of the belligerents has made manifest his intention to effect the permanent acquisition of a particular portion of the territory of the other, which intention is afterwards accomplished by actual conquest, and that after the declaration of such intention and while preparation was making to carry it out, the original owner should alienate that territory, in whole or in part,-is the conqueror bound

1 Jomini, Des Guerres de la Révolution, ch. lxxiii; Thiers, Révolution Française, tome viii. ch iv; tome ix. ch. ii; Alison, Hist. Europe, vol. i. pp. 405, 468; Napier, Hist. Peninsular War, vol. ii. p. 451; Napoléon, Mémoires, tome iii. p. 195; tome iv. p. 149.

'The Flotina,' i Dod. R., 450; the Fama,' 5 Rob., 97; Grotius, De Jur. Bel. ac Pac., lib. ii. ch. vi. § 1; Puffendorf, De Jur. Nat. et Gent. lib. iv. ch. ix. § 8.

to regard such alienation as a valid transfer, or may he disregard it in toto, as being an illegal attempt to deprive him of the rights of war? In other words, did not his avowed determination to effect the permanent acquisition of such territory, his preparation to make the conquest, and his ability to effect it, as proved by the result, give to the conqueror some incohate or inceptive right to the territory subsequently conquered; or did they not at least suspend the right of the original owner to alienate it? In order to obtain a satisfactory solution of this question, we will recur to fundamental principles. The rights of conquest are derived from force alone. They begin with possession, and end with the loss of possession. The possession is acquired by force, either from its actual exercise, or from the intimidation it produces. There can be no antecedent claim or title, from which any right of possession is derived: for if so, it would not be a conquest. The assertion and enforcement of a right to possess a particular territory do not constitute a conquest of that territory. By the term conquest, we understand the forcible acquisition of territory admitted to belong to the enemy. It expresses, not a right, but a fact, from which rights are derived. Until the fact of conquest occurs, there can be no rights of conquest. A title acquired by conquest cannot, therefore, relate back to a period anterior to the conquest. That would involve a contradiction of terms. The title of the original owner prior to the conquest is, by the very nature of the case, admitted to be valid. His rights are, therefore, suspended by force alone. If that force be overcome, and the original owner resumes his possession, his rights revive, and are deemed to have been uninterrupted. It, therefore, cannot be said, that the original owner loses any of his rights of sovereignty, or that the conqueror acquires any rights whatever, in the conquered territory, anterior to actual conquest. The former are suspended by, and the latter derived from, the fact of conquest, and, in order to determine the date of such suspension or acquisition of rights, we must refer to the fact of conquest, and not to any prior intention or determination of the conqueror. If these propositions be true, it follows that grants to individuals made, after the commencement of hostilities, by the original sovereign of lands lying in territory, of which he still retains the dominion and ownership,

rest upon the same foundation as those made before the war. If the title thus conveyed is, by municipal law, complete and perfect, the land becomes private property, and must be so regarded by the conqueror. If it be incohate and imperfect, but bond fide and equitable, it nevertheless constitutes 'property' in the sense in which that term is used in international law. It is true that, by the extreme rights of war, the conqueror may disregard individual ownership, and take private property and convert it to his own use. But such a proceeding, as has already been said, is contrary to modern practice, and cannot be resorted to, except in particular cases and under peculiar circumstances. As neither actual hostilities, nor a formal declaration of war, can suspend or terminate the sovereignty of the original owner, he retains and may exercise his dominion over every portion of his territory, till actual conquest.1

§ 24. But, suppose that the vanquished power, while the conqueror is actually taking forcible possession of a part of its territory, should send its agent with the retreating army, and, as the hostile force advances its standard from district to district, should deliver to individual subjects title-deeds of the territory at the moment it was about to fall into the possession of the advancing foe, with the evident intention to deprive him of the fruits of his conquest. Must the conqueror recognise such grants as valid; and if not, how shall he draw the line of distinction between them and other titles issued by the same authority after the commencement of hostilities and before actual conquest? The want of good faith on the part of such grantees, as well as on the part of the grantor, would deprive them of the rights of bond fide purchasers. The distinction between such titles and those acquired in good faith and granted in good faith, and in the ordinary exercise of the rights of original sovereignty, is abundantly manifest. The fraudulent intent vitiates the entire transaction, and renders the titles mere nullities, and the conqueror, both during military occupation and after complete conquest by the cessation of hostilities, may refuse to recognise them, unless by some express treaty stipulation he has agreed to regard them as valid. But it must be observed

1 Bouvier, Law Dictionary, verb. Conquest; Phillimore, On Int. Law, vol. iii. § 223; Vattel, Droit des Gens, liv. ii. ch. xiii. § 197.

that the same rule applies to grants made prior to the war; if not bond fide, the conqueror is not bound to recognise them as valid. The fact of the conqueror being in possession of a part of the country, or even of its capital, produces no effect upon the part which remains in the possession of the former sovereign. This question has been discussed in another section.1

§ 25. Again, suppose a belligerent should, after a declaration of war, and in anticipation that a particular portion of its territory will necessarily fall into the power of the other party, transfer it to a neutral for the manifest purpose of depriving his enemy of an opportunity to acquire it by conquest is the latter bound to recognise the validity of such transfer? Every sovereign and independent State has an undoubted right to alienate any part of its own territory, so long as it retains the ownership and dominion; and other sovereign States have an equal right to acquire such ownership and dominion by any of the modes recognised in international law. But a mere treaty-cession of a province or territory by one power to another, can never operate, by itself, as an immediate and complete transfer of the ownership and dominion of the land, or of the allegiance of its inhabitants. To produce such effect, a solemn delivery of the possession by the ceding power, and an assumption of the dominion and government by that to which the cession is made, are indispensable. Until then, the territory continues to belong to the original sovereign owner, and its inhabitants remain the subjects of the power to which their allegiance was due prior to such treaty-cession. Such ceded territory is, therefore, still liable to conquest as the territory of the enemy. But suppose the transfer be completed by a formal delivery of the possession to the neutral grantee, and the assumption by him of the dominion and government of the ceded territory? If the transaction is evidently malâ fide and the transfer is made with the manifest intent to defraud the belligerent of the rights of conquest, the pretended ownership of the neutral sovereign will not be recognised by the conqueror. Moreover, such an attempt on the part of a neutral to hold territory for the benefit of one of the parties to a war, and in fraud of the belligerent rights of the other party, is regarded as a 1 Mass v. Riddle & Co., 5 Cranch. R., 357.

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