Conquered territory, while subject to temporary military control, retains its municipal institutions.

Supra, § 3, 4.

A portion of the territory of the United States under the military occupation of a public enemy, is deemed a foreign country with respect to our revenue laws, and goods imported during such occupation do not become liable to the payment of duties on the evacuation of the territory by the enemy.

U. S. v. Rice, 4 Wheat., 246.

Neither the President nor any military officer can establish a court in a conquered country and authorize it to decide upon the rights of the United States or of individuals in prize cases, nor to administer the law of nations. Hence the courts established or sanctioned in Mexico during the war by the commanders of the American forces, were to be regarded as nothing more than the agents of the military power, to assist it in preserving order in the conquered territory, and to protect the inhabitants in their persons and property while it was occupied by the American arms. They were subject to the military power, and their decisions under its control, whenever the commanding officer thought proper to interfere. They were not courts of the United States, and had no right to adjudicate upon a question of prize or no prize; and the sentence of condemnation of such courts is a nullity, and can have no effect upon the rights of any party.

Jecker v. Montgomery, 13 How., 515. See Snell v. Faussatt, 1 Wash. C. C., 271; and see supra, §§ 3 ff.

It was within the authority of the President, as commander-in-chief, to establish courts during the rebellion in portions of the insurgent territory which were occupied by the national forces.

The Grapeshot, 9 Wall., 129.

The Constitution did not prohibit the creation by military authority of courts for the trial of civil causes during the civil war in conquered portions of the insurgent States. The establishment of such cour's was the exercise of the ordinary rights of conquest.

Mechanics' and Traders' Bank v. Union Bank, 22 Wall., 276..

It will be presumed, until the contrary is proven, that a court established by proclamation of the commanding general in New Orleans on the 1st of May, 1862, on the occupation of the city by the Government forces, was established with the authorization of the President.

Ibid.

Whether a court established during the rebellion by the proclamation of a general commanding the Army of the United States, in a department and State then lately in rebellion, and now held only by military occupation-the jurisdiction of the court being nowhere clearly defined in the order constituting it-acted, in fact, within its jurisdiction in a case adjudged by it, where one bank of the State was claiming from another bank of the same State a large sum of money, is not a question for the Federal courts to determine, but is exclusively for the proper State court.

Ibid. See also §§ 3 ff..

Martial law is the law of military necessity in the actual presence of war. It is administered by the General of the Army, and is under his supreme control.

U. S. v. Diekelman, 92 U. S., 520.

When any portion of the insurgent States was in the occupation of the forces of the United States during the rebellion, the municipal laws, if not suspended or superseded, were generally administered there by the ordinary tribunals for the protection and benefit of persons not in the military service. Their continued enforcement was not for the protection or the control of officers or soldiers of the Army.

Dow v. Johnson, 100 U. S., 158.

An officer of the Army of the United States, whilst serving in the enemy's country during the rebellion, was not liable to an action in the courts of that country for injuries resulting from his military orders or acts; nor could he be required by a civil tribunal to justify or explain them upon any allegation of the injured party that they were not justified by military necessity. He was subject to the laws of war, and amenable only to his own Government.

Ibid.

As to limits of courts-martial, see 1 John Adams' Works, 562; 8 ibid.,
Halleck's Int. Law (Baker's ed.), 455; Whart. Cr. Pl. and Pr., § 979, note.
As to martial law, see 3 John Adams' Works, 440.

567;

2

As to relations of civil to military authority, see 10 John Adams' Works, 17, 203.

As to effect of war on titles and municipal law, see supra, § 4.

As to distinctions in respect to martial law, see Whart. Cr. Pl. and Pr., § 979, note.

(2) AS TO EXECUTIVE.
§ 355.

If a nation be not entirely subdued, its territory, when in the invader's lines, is regarded as a mere military occupation, until its fate shall be determined by final treaty. If it be ceded by the treaty, the acquisition is confirmed, and the ceded territory becomes a part of the nation to which it is annexed, either on the terms stipulated in the treaty of ces

sion or on such as its new master shall impose. On such transfer of territory, it has never been held that the relations of the inhabitants with each other undergo any change. Their relations with their former sovereign are dissolved, and new relations are created between them and the Government which has acquired their territory. The same act which transfers their country transfers the allegiance of those who remain in it, and while the law which may be denominated political is necessarily changed, that which regulates the intercourse and general conduct of individuals remains in force until altered by the newly-created power of the state.

American Ins. Co. v. 356 Bales of Cotton, 1 Pet., 511, 542. See supra, §§ 3, 4.

By the modern usage of nations, private property is not confiscated, nor private rights annulled by a conquest; and the same rule should apply to an amicable cession. The people change their allegiance, their relation to their ancient sovereign is dissolved; but their relations to each other, and their rights of property remain undisturbed.

A cession of territory is never understood to be a cession of the property belonging to its inhabitants. The sovereign cedes that only which belongs to him.

U. S. v. Percheman, 7 Pet., 51; and see Strother v. Lucas, 12 ibid., 410. See supra, §§ 3, 4, 338.

"The President, as constitutional Commander-in-Chief of the Army and Navy, authorized (in 1847) the military and naval commander of our forces in California to exercise the belligerent rights of a conqueror, and to form a civil government for the conquered territory, and to impose duties on imports and tonnage as military contributions for the support of the government and of the army which had the conquest in possession. No one can doubt that these orders of the President, and the action of our Army and Navy commander in California, in conformity with them, were according to the law of arms and the right of conquest, or that they were operative until the ratification and exchange of a treaty of peace. Such would be the case upon general principles in respect to war and peace between nations."

Wayne, J.; Cross v. Harrison, 16 How., 190.

The authority and jurisdiction of Mexican officers in California are held to terminate on the 7th of July, 1846. The political department of the Government has designated that day as the period when the conquest of California was completed and the Mexican officers were displaced, and in this respect the judiciary follows the action of the political department.

U. S. v. Yorba, 1 Wall., 412.

The territory of Castine, by the conquest and occupation by Great Britain, passed under the temporary allegiance and sovereignty of the British sovereign. The sovereignty of the United States over the terri

tory was suspended during such occupation, so that the laws of the United States could not be rightfully enforced there, or be obligatory upon the inhabitants who remained and submitted to the conquerors. But a territory conquered by an enemy is not to be considered as incorporated into the dominions of that enemy without a renunciation in a treaty of peace, or a long and permanent possession. Until such incorporation it is still entitled to the full benefit of the law of postliminy. U. S. v. Hayward, 2 Gallison, 485.

VIII. ENDING OF WAR.

(1) BY CESSATION OF HOSTILITIES.

§ 356.

"Conquest gives only an inchoate treaty of peace, which does not become perfect till confirmed by the treaty of peace, and by a renunciation or abandonment by the former proprietor."

Opinion of Mr. Jefferson, Sec. of State, Mar. 18, 1792. 7 Jeff. Works, 572. The late civil war began and terminated at different times in different States. Its commencement may be referred to the proclamation of blockade of the 19th of April, 1861, in those States to which it applied; and to the proclamation of blockade of the 27th of April, 1861, in the States to which it applied. Its termination may be referred, in various States, to the proclamations declaring it closed in those States.

The Protector, 12 Wall., 700; Brown v. Hiatts, 15 ibid., 177; Adger v. Alston, ibid., 355; Batesville Institute v Kauffman, 18 ibid., 151.

Citizens of the loyal States were not, however, prevented from suing citizens of the Confederate States in the Federal courts in those States as soon as such courts were opened. Before any official proclamation of the end of the civil war was made courts of the United States were held in the several States which had been engaged in rebellion, and their jurisdiction to hear and determine the cases brought before them as well before as after such proclamation is not open to controversy.

Masterson v. Howard, 18 Wall., 99.

[These were all cases of the application of the rule that, as between citizens of the loyal and rebellious States, the statutes of limitation did not run during the rebellion, and in determining what period should be deducted for the pendency of the war from the limitation prescribed, it was held that the war continued until proclamation was officially made of its close.]

(2) BY TREATY OF PEACE.
§ 357.

The topic of treaties of peace is examined at large in a prior chapter.. Supra, § 130 ff.

(4) Obstructions may be temporarily placed in channel of access, § 361a.

II. ENFORCEMENT OF.

(1) Vessels seeking evasion of, may be seized, § 362.

(2) Must be brought to prize court, § 363.

III. PACIFIC BLOCKADE, § 364.

IV. DUTY OF NEUTRAL AS TO BLOCKADE-RUNNING, § 365.

I. WHAT ESSENTIAL TO.

(1) MUST BE DULY INSTITUTED.
$359.

"On principle it might well be questioned whether this rule (the right to confiscate vessels bound to a blockaded port) can be applied to a place not completely invested by land as well as by sea. If we examine the reasoning on which is founded the right to intercept and confis cate supplies designed for a blockaded town, it will be difficult to resist the conviction that its extension to towns invested by sea only is an unjustifiable encroachment on the rights of neutrals. But it is not of this departure from principle, a departure which has received some sanction from practice, that we mean to complain. It is that ports not effectually blockaded by a force capable of completely investing them have yet been declared in a state of blockade, and vessels attempting to enter therein have been seized and on that account confiscated."

Mr. Marshall, Sec. of State, to Mr. King, Sept. 20, 1800. MSS. Inst. Ministers. 2 Am. St. Pap. (For. Rel.), 488.

For following portion of this paper, see infra, § 361.

"If the subject of blockade, so simple in its original application, now involves the most complicated questions of maritime law among nations, it is to be ascribed to abuses of power on one side, to too much condescension on the other, and to the multitude of incidental cases which have arisen as precedents, establishing arbitrary and ephemeral doctrines, since the breaking down of the original bounds and landmarks of mutual and universal rights.

"Although the commerce of the United States has been to a greater extent than any other the victim of those gigantic abuses of power, it