of representation in the Mexican Congress; on the conquest of that territory by the arms of the United States, under Gen. Kearny, a clause was introduced into the new organic law for sending a representative to the Congress of the United States. This part of the organic law was disapproved by the President, and even without such disapproval, it was utterly inoperative, for this right of representation was a political right, which was lost by the very act of conquest, and could be restored to it only by the action of Congress, after its permanent incorporation into the conquering republic. The case, however, is different where the enemy possessed only a quasi-sovereignty, or limited political rights, over the conquered province or town. The conqueror acquires no other rights than such as belonged to the State against which he has taken up arms. 'War,' says Vattel, 'authorises him to possess himself of what belongs to his enemy. If he deprives that enemy of the sovereignty of a town or province, he acquires it, such as it is, with all its limitations and modifications. Accordingly, care is usually taken to stipulate, both in particular capitulations and in treaties of peace, that the towns and countries ceded shall retain all their liberties, privileges and immunities.' But where such conquered provinces and towns have themselves taken up arms against him, thus making themselves directly his enemies, the conqueror may regard them as vanquished foes and treat them precisely as he would treat other conquered territory.1

§ 3. If the hostile nation be subdued and the entire State conquered, a question arises as to the manner in which the conqueror may treat it without transgressing the just bounds established by the rights of conquest. If he simply replaces the former sovereign, and, on the submission of the people, governs them according to the laws of the State, they can have no cause of complaint. Again, if he incorporate them with his former States, giving to them the rights, privileges and immunities of his own subjects, he does for them all that is due from a humane and equitable conqueror to his vanquished foes. But if the conquered are a fierce, savage and restless people, he may, according to the degree of their indocility,

1Cross v. Harrison, 16 How. R., 194; American Ins. Co. v. Canter, 1 Peters R., 542; Marcy to Kearny, Jan. 11, 1847, Ex. Doc., No. 17, 31st Cong., 1st sess. H. R.

govern them with a tighter rein, so as to curb their 'impetuosity, and to keep them under subjection.' Moreover, the rights of conquest may, in certain cases, justify him in imposing a tribute or other burthen, either a compensation for the expenses of the war, or as a punishment for the injustice he has suffered from them. But if he attempts to reduce the conquered people to a state of absolute subjection, or slavery, there is no complete conquest, for the state of warfare between that nation and himself is perpetuated. The Scythians said to Alexander the Great: 'There is never any friendship between the master and the slave. In the midst of peace the rights of war still subsist.' 1

§ 4. We have already remarked, that when one belligerent acquires military possession of territory belonging to an enemy, the sovereignty and dominion of the latter is suspended. If such possession be retained till the completion or confirmation of the conquest, the temporary dominion thus acquired by the conqueror becomes full and complete, plenum dominium et utile. Moreover, this confirmation or completion of the conquest has, so far as ownership is concerned, a retroactive effect, confirming the conqueror's title from the date of the conquest, and, therefore, making definitely valid his

1 Vattel, Droit des Gens, liv. iii. ch. xiii. § 201; Puffendorf, De Jur. Nat. et Gent., lib. viii. cap. vi. § 24; Real, Science du Gouvernement, tome v. ch. ii. § 5; Abegg, Untersuchungen, etc., p. 86.

Conquest gives a title, which the courts of the conqueror cannot deny, whatever may be the speculative opinions of individuals, respecting the original justice of the claim, which has been successfully asserted. But although this title is acquired and maintained by force, humanity, acting on public opinion, has prescribed rules and limits by which it may be governed.

Thus, it is a rule that the captured shall not be wantonly oppressed, and that their condition shall remain as eligible, as is compatible with the objects of the conquest. Most usually, they are incorporated with the victorious nation, and become subjects or citizens of the government with which they are connected. The new and old members of the society mingle with each other, the distinction between them is gradually lost, and they become one people. Where this incorporation is practicable, humanity demands, and a wise policy requires, that the rights of the conquered to property should remain unimpaired, that the new subjects should be governed as equitably as the old, and that confidence in their security should gradually banish the painful sense of their being separated from their ancient connexions, and united by force to strangers. When the conquest is complete, and the conquered inhabitants can be blended with the inhabitants, or safely governed as a distinct people, public opinion, which not even the conqueror can disregard, imposes those restraints upon him, and he cannot neglect them without injury to his name and hazard of his power.-Johnson v. McIntosh, 8 Wheat. 543

acts of ownership-alienation included-during his military occupation. But it can hardly be said, that the confirmation of the conqueror's title, by such retroactive effect, changes the previous legal condition of the conquered territory, and especially in its external relations. That is, the confirmation of the conquest does not make it a part of the conquering State during the time it was held simply under the rights of military occupation. Thus, the duties imposed on foreign goods, imported into such territory during military occupation, may have been very different from those which the conqueror could have imposed upon the same goods, when imported into his own State; if the confirmation of the conquest made such territory, in all respects, a part of the conquering State, from the date of its military occupation, it would be necessary to refund the difference between the collections made in it, as simply a foreign conquered territory, and those which could have been made in it, as a constituent part of the conquering State. This could hardly be claimed. The true theory is, that the retroaction of complete conquest only goes so far as to give permanency to the acts of the conqueror, done during military occupation.1

§ 5. It is a general rule of international law that, on the transfer of territory by complete conquest or cession, the allegiance of the inhabitants of the conquered or ceded territory is transferred to the new sovereign. Even the perpetual allegiance of the English common law yields to treaty, and it is held that when the king cedes by treaty, the inhabitants of the ceded territory become aliens. In the absence of express treaty stipulations, or legislation by the conqueror, the relations between the conquered and the conqueror are determined by the law of nations, which establishes the general rule, that the allegiance of the conquered is transferred to the new sovereign. It was held by the early civilians that such transfer of allegiance was absolute and unconditional, unless otherwise provided by some treaty stipulation; but the rule, as now understood and interpreted, is more liberal and just towards the inhabitants of the conquered territory. Burlamaqui very justly remarks that 'the end of a just war does not always demand that the conqueror should acquire an absolute and perpetual right of sovereignty 1 Vide ante, ch. xxiv. 2 Vide ante, ch. xii. §§ 30, 31.

over the conquered. It is only a favourable occasion of obtaining it, and for that purpose there must be an express or tacit consent of the vanquished. Otherwise, the state of war still subsisting, the sovereignty of the conquered has no other title than that of force, and lasts no longer than the vanquished are unable to throw off the yoke.' It has been shown in the preceding chapter, that on mere military conquest, the conquered may, but do not necessarily, cease to be regarded as aliens to the government of the conqueror; that mere military occupation does not, of itself, transfer the allegiance of the inhabitants of the territory so occupied absolutely and unconditionally, to the conqueror. It only suspends their allegiance to their former sovereign, and imposes on them a temporary or limited allegiance to the government of military occupation. If the conquest is surrendered to the former owner, the temporary allegiance of the inhabitants ends with the temporary sovereignty of the conqueror, and the former owner, in recovering his sovereignty, recovers his claim to the allegiance of the inhabitants, and resumes the duty of protecting them. But, if the conquest is confirmed, the allegiance to the former sovereign is entirely severed, and that to the conqueror remains as it is, or becomes absolute, according to the relations which the inhabitants of the conquered territory hold towards the new sovereignty.1

§ 6. The rule of public law, with respect to the allegiance of the inhabitants of a conquered territory, is, therefore, no longer to be interpreted as meaning that it is absolutely and

1 Vattel, Droit des Gens, liv. iii. ch. xiii. § 200; Grotius, De Jur. Bel. ac Pac., lib. iii. cap. viii.; Burlamaqui, Droit de la Nat. et des Gens, tome iv. pt. ii. ch. iii.; Puffendorf, De Jur. Nat. et Gent., lib. viii. cap. vi. § 24; Doe d. Thoman v. Acklam, 2 B. C. R., 795; Woodeson, vol. i. lect. xiv. p. 382, cited, 2 Cranch. R., 290; United States v. Perchman, 7 Peters R., 86; Inglis v. The S. S. Harbour, 3 Peters R., 122; Lucas v. Strother, 12 Peters R., 436; Campbell v. Hall, 1 Cowp. R., 208; Talbot v. Jansen, 3 Dallas R., 152; Lynch v. Clarke, 1 Sandf. R., 644; M'Ilvaine v. Coxe's Lessee, 4 Cranch. R., 211; Rayneval, Inst. du Droit Nat., etc., liv. iii. ch. xx.; Westlake, Private Int. Law, § 27; Riquelme, Derecho Pub. Int., lib. i. tit. i. cap. i.

On a conquest of one nation by another, accompanied by a surrender of the soil and change of sovereignty, those, of the former inhabitants, who do not remain and become citizens of the victorious sovereign, but on the contrary, adhere to their old allegiance and continue in the service of the vanquished sovereign, deprive themselves of protection to their property, except so far as it may be secured by treaty.-United States v. Repentigny, 5 Wall., 211.

unconditionally acquired by conquest, or transferred and handed over by treaty, as a thing assignable by contract, and without the assent of the subject. On the contrary, the expresss or implied consent of the subject is now regarded as essential to a complete new allegiance. The ligament which bound him to the former sovereign is dissolved by the transfer of the territory, for that sovereign can no longer afford him any protection in that territory. But he is still an alien to the new sovereign, and owes to him only that kind of allegiance called in law, local or temporary, and which is due from any alien, while resident in a foreign country, for the protection which is afforded him by the government of such country. If the inhabitants of the ceded conquered territory choose to leave it on its transfer, and to adhere to their former sovereign, they have, in general, a right to do so. None but an absolute and tyrannical sovereign would force them to remain and become his unwilling subjects. By doing so he holds them in a kind of slavery, and, as justly remarked by Burlamaqui, continues the state of war between him and them. The rule of international law with respect to the transfer of the allegiance of the inhabitants of conquered territory, as established by the present usage of nations, is more fully and correctly stated by Chief Justice Marshall, in delivering the opinion of the Supreme Court of the United States, as follows:-'On the transfer of territory, the relations of its inhabitants with the former sovereign are dissolved; the same act which transfers their country, transfers the allegiance of those who remain init.' The allegiance of those who do not remain, of course, is not so transferred with the territory. In other words, they do not, by the transfer of the country, become the citizens or subjects of the conqueror, nor has he acquired any 'absolute and perpetual right of sovereignty over them. There is no consent,' either express or tacit,' on their part, in order to make the transfer of allegiance complete and binding.1

§ 7. From the rule of international law, as thus announced by Chief Justice Marshall, it is deduced that the transfer of territory establishes its inhabitants in such a position toward the new sovereignty, that they may elect to become, or not to become, its subjects. Their obligations to the former govern1 See note to last paragraph.