Hence, the

President of the United States, as commander-in-chief of the army, or, in other words, by martial law. scale of duties, on goods imported into the conquered territory, and the tonnage on vessels entering its ports, may be different from those on vessels and goods brought into the United States. The victor may either prohibit all commercial intercourse with his conquest, or place upon it such restrictions and conditions as may be deemed suitable to his purpose. To allow intercourse at all is a relaxation of the rights of war. So, also, the rules of intercourse and trade, between the inhabitants of the United States and such conquered territory, may be very different from the rules regulating the intercourse and trade between different parts of the union. An American vessel entering the port of the conquered territory, during its military occupation by the United States, must conform to the regulations adopted, and pay the duties exacted, by the government of such territory; and an American vessel, returning to the United States from a port of such territory, is regarded as coming from a foreign port, and not as engaged in the coasting trade; and the cargo is not exempt from the payment of duties as fixed by the laws of the United States for goods imported from a foreign country. The right of the victor to the revenues of the conquered territory is firmly established and recognised by the laws of war, and the usage of nations. It is immaterial whether these revenues arise from import taxes, rents of public property, duties on imports and exports, or from any other source, they are a part of the conquest, and rightfully belong to the conqueror. Those who are permitted to hold commercial intercourse with such territory, whether they be subjects of the conqueror, or of foreign States, must conform to the regulations, and pay the duties established by the conquering power; and, in case of conquest by the United States, the President, in the absence of legislative enactments, exercises this power.1

10. The effect of military occupation, by one belligerent. of a portion of the territory of the other, so far as respects revenue laws, has been adjudicated upon by the Supreme Court of the United States: 1st, with respect to neutral territory in possession of the enemy; 2nd, with respect to territory of the United States in possession of the enemy; and

1 Burlamaqui, Droit de la Nat. et des Gens, tome v. pt. iv. ch. vii.; Cushing, Opinions U. S. Attys. Gen'l., vol. viii., §§ 365, et seq.

3rd, with respect to the enemy's territory in the possession of the United States. I. In the case of the Island of Santa Cruz, belonging to the Kingdom of Denmark, but in the military occupation of British forces, the Supreme Court says: 'Although acquisitions made during war are not considered as permanent until confirmed by treaty, yet, to every commercial and belligerent purpose, they are considered as a part of the domain of the conqueror, so long as he retains the possession and government of them. The island of Santa Cruz, after its capitulation, remained a British island until it was restored to Denmark.' 2. Castine, in the United States, was captured by the British forces on the first day of September, 1814, and remained in their exclusive possession until after the ratification of the treaty of peace, in February, 1815. 'By the conquest and military occupation of Castine,' says the Supreme Court, 'the enemy acquired that firm possession which enabled him to exercise the fullest rights of sovereignty over that place. The sovereignty of the United States over the territory was, of course, suspended, and the laws of the United States could no longer be rightfully enforced there, or be obligatory upon the inhabitants who remained and submitted to the conquerors. By the surrender, the inhabitants passed under a temporary allegiance to the British government, and were bound by such laws, and such only, as it choose to recognise and impose. From the nature of the case, no other laws could be obligatory upon them; for where there is no protection or allegiance, or sovereignty, there can be no claim to obedience. Castine was, therefore, during this period, so far as respected our revenue laws, to be deemed a foreign port, and goods imported into it by the inhabitants were subject to such duties only as the British Government chose to require. Such goods were, in no correct sense, imported into the United States.' 3. In the case of Tampico, in Mexico, which was captured and occupied by the arms of the United States, during the war with Mexico, the Supreme Court held that cargoes of goods landed there were liable to the duties charged on them by the military authorities of the United States, whether shipped from the United States or from foreign countries.'

§ II. In the absence of any laws of Congress on this sub1 Thirty Hogsheads of Sugar v. Boyle, 9 Cranch. R., 191; United States v. Rice, 4 Wheat. R., 246.

ject, the regulating and collecting of such revenues, in enemy's territory in our possession, devolves upon the President of the United States, as the constitutional commander-in-chief, and upon the military and naval officers under his direction. The moneys derived from these sources may be used for the support of the government of the conquered territory, or for the expenses of the war. They are war revenues and do not belong to the treasury of the United States until so directed by a law of Congress. Being no part of the moneys of the Treasury of the United States, their expenditure is not regulated by the general laws of the United States, but by the direction of the President of the United States, under whose authority they were collected.

During the war of 1846, between the United States and Mexico, and on the conquest of the ports of the latter republic on the Gulf of Mexico, the President of the United States formed a tariff of duties on goods from the United States, and foreign countries, admitted into such ports in our military possession. A different one, however, had been previously adopted for California, by the military and naval commanders on the Pacific coast and gulf of California, which, with certain modifications was, with the tacit approval of the President, continued to the end of the war. Certain missions and other public property in California were rented by the military commander and governor, and certain movable property belonging to the former government was sold by the same authority. The moneys derived from these sources constituted the 'military contribution fund,' which was used for the expenses of the government of occupation, and for carrying on the war. By subsequent acts of Congress the moneys so collected, and not expended, were made to form a portion of the funds in the Treasury of the United States, and the expenditures were settled and audited by the proper officers of the Treasury Department.1

§ 12. As military occupation produces no effect (except in special cases, and in the application of the severe right of war, by imposing military contributions and confiscations) upon private property, it follows as a necessary consequence, that the ownership of such property may be changed during such occupation, by one belligerent, of the territory of the 1 Dunlap, Digest of Laws of U. S., p. 1342.

other, precisely the same as though war did not exist. The right to alienate is incident to the right of ownership, and unless the ownership be restricted or qualified by the victor, the right of alienation continues the same during his military possession of the territory in which it is situate, as it was prior to his taking the possession. A municipality or corporation has the same right as a natural person to dispose of its property during a war, and all such transfers are, primâ facie, as valid as if made in time of peace. If forbidden by the conqueror, the prohibition is an exception to the general rule of public law, and must be clearly established.1

§ 13. It has been stated elsewhere, that the lex loci rei sitæ governs in everything relating to the tenure, title and transfer of real property; also, that the municipal laws of a conquered territory continue in force during military occupation, except so far as they are suspended or changed by the acts of the conqueror. It is not necessary, however, that such change should be made by special decree: it may be done by the introduction of a different system of jurisprudence, or a different usage and custom. As a general rule, there can be no custom in relation to a matter regulated by positive law, as custom derives its force from the tacit consent of the legislative power and the people. But, the sovereign will may be implied or presumed, as well as expressed by words. A series of facts, as a public, uniform, general and continued usage, constitutes a custom, which has the force of law, because the sovereign will is therein implied. Time is the important element of customary or common law, in an established and continuous government. But, where a new government, with different institutions, a different system of laws and different customs, is suddenly established by the operations of war, and the rights of conquest, the same effect upon the common law of the country may be immediately produced, which, under other circumstances, would require 'time, whereof the memory of man runneth not to the contrary.' During the military occupation of California by the forces of the United States, the use of Mexican stamped paper was necessarily

1 Kent, Com. on Am. Law, vol. i. p. 92; Riquelme, Derecho Pub. Int., lib. i. tit. i. cap. xii.; Cobraz v. Raisin, 3 Cala. R., 445; Welch v. Sullivan, 8 Cala. R., 165; Isambert, Am. Pol. et Dip. Int., p. 115; Kamptz, literatur, etc., § 307; Hart v. Burnett, 15 Cala. R., 559; Payne & Dewey v. Treadwell, 16 Cala. R., 220.

dispensed with, for conveyances, and other official writings and private contracts. And, as the local officers of the then existing government of California were generally ignorant of the Spanish language and Spanish forms of conveyancing, real estate was usually transferred by the simple deeds of conveyance commonly used in the United States. As such conveyances were seldom executed in conformity with the requisitions of Mexican municipal law, their validity rested upon the usage introduced with the government of military occupation. Titles to many millions of property in that country were transferred in this way, and the usage continued after the restoration of peace, and, until the enactment of other laws by the local government, after its organisation as a State. Conveyances so made and executed have always been regarded as valid and sufficient for the transfer of real property. In the first place, the law requiring the use of stamped paper was a law for revenue, and, consequently, was suspended, with other political laws, ipso facto, by the conquest, and completely abrogated by the cession. In the second place, the lex loci sita, with respect to the forms and execution of conveyances of real property, was also suspended in its operation, by the introduction of a different usage with the government of the conquerors, and, from the nature of the case, the inhabitants of California could hardly be considered as remitted to this law by the restoration of peace. But this point will be more particularly discussed in the next chapter.1

§ 14. It may be stated, as a general proposition, that the duty of allegiance is reciprocal to the duty of protection. When, therefore, a State is unable to protect a portion of its territory from the superior force of an enemy, it loses, for the time, its claim to the allegiance of those whom it fails to protect, and the inhabitants of the conquered territory pass under a temporary or qualified allegiance to the conqueror. The sovereignty of the State which is thus unable to protect its territory is displaced, and that of the conquered is substituted in its stead. But this change of sovereignty may be only of a temporary character, for the conquered territory may be recaptured by the former owner, or it may be restored to him by a treaty of peace. During mere military occupa1 Vide post, ch. xxxiv.; Boyer, Universal Pub. Law, ch. xvi.; Febrero Mexicano, tit. prelim., cap. iv.