was nevertheless essentially an illegal organization, formed for the purpose of rebelling against the constituted authority of the Union. And the attitude taken up by the Supreme Court of the United States towards the Confederacy and towards all acts done in furtherance of the rebellion was due to that consideration. The position of the burgher forces, on the other hand, was not affected by any such taint of illegality. And yet, from the point of view of a British Court, they were a community or body of men possessing no territory as a State and under no form of government which such a Court could recognise as a legal government. But, as between the two contending armies they enjoyed full belligerent rights. The recognition of such rights is quite consistent with a denial of any claim to sovereignty (see Rose v. Himeley, 4 Cranch, U. S. Reps. at p. 271), and certainly does not imply that the armed organization to which such recognition was accorded could legally make any regulations affecting the rights of British subjects.

The question is whether the leaders of that community could, in furtherence of the common purpose for which it was striving, deal with the property of its members, without their consent, and whether this Court should recognise such dealing or give effect to its consequences. Without deciding the point, I shall for the purposes of this case assume that they could so deal with the property of those over whom they exercised control. But clearly they could exercise such power to no greater extent than would have been possible if there had been no annexation and if the Republican Government had still been in existence at Pretoria. The fact that a hostile power had issued a Proclamation annexing their territory could not give them more power over the burghers than they possessed before. Consequently we must look to those enactments which, whether they all of them were valid laws or not, were regarded by all members of the burgher forces as having the force of law, in order to see whether the military officers of these forces acted within their rights in confiscating this particular wool-bearing in mind that it was not commandeered for warlike purposes, but was taken from the defendants as a penalty for their alleged offence in having voluntarily surrendered without sufficient cause. [Here follows an examination of the legislation of the South African Republic.]

Assuming that the military authorities of the burgher forces had the same power over the defendants and their property that

they would have had in case no Annexation Proclamation had been issued, I still consider that the confiscation was not justified by the martial law under which action purports to have been taken. Judgment should, therefore, be for the defendants, with costs.

.

MASON, J.: . . The first point raised by the defence is, that upon the annexation of the Transvaal by Lord Roberts on the 1st September, 1900, the Government of the South African Republic came to an end, and any acts of its officers in opposition to the British Government can receive no recognition by this Court. The Government of the South African Republic after the annexation either ceased to exist or continued as a Government de facto or de jure. If the former were the case then the confiscation was invalid, and if the latter then that Government is subject to the laws which it made for itself, or at any rate cannot have greater rights than its alleged constitution confers. It is perfectly true that the Boers were throughout substantially recognised as belligerents, but belligerent rights are rights only against the enemy, not rights of the belligerents inter se. These are governed by the municipal law of each belligerent (Williams v. Bruffy, 96 U. S. R. 177; Dewing v. Perdicaries, 96 U. S. R. 193; re Venice, 2 Wall. 258). That municipal law may be contained in special statutes or military codes applicable in time of war, or may be comprised under the wider and less defined jurisdiction of martial law as understood in British jurisprudence. It is, I think, quite clear that where there are definite provisions of military law applying to military offences, those provisions exclude the operation of martial law in those particular cases (Planters' Bank v. Union Bank, 16 Wall. 483; Mrs. Alexander's Cotton, 2 Wall. 405). [After an examination of the statutes of the South African Republic, the learned judge continues:] It cannot, I think, be successfully contended, and indeed was not contended, that the confiscation in the present case can be justified under these Laws, which lay down a method for dealing with offences of the kind charged against the defendants, with a particularity and jealousy not to be wondered at, when every citizen of the State is made subject to military law and service. There ought

to be judgment for the defendants, with costs. BRISTOWE, J.: . . . In September 1900, Lord Roberts' Proclamation annexing the Transvaal was issued. Mr. Smuts admitted very frankly that the effect of this was to incorporate

the territory of the South African Republic in the British dominions. And I think it is necessary to go a step farther and to say, that inasmuch as, according to modern notions at all events, the possession of territory is essential to the existence of a State, the Proclamation taken in connection with the events which subsequently occurred put an end from the moment of its issue to the existence of the Republic as a political unit. We are then brought face to face with the difficult question of what was the legal position of the burgher forces still remaining in the field. Upon this question there is, so far as I know, no authority; and it may be that the position in which the Boer forces were placed by the Annexation Proclamation was one unexampled in history.

Now, in the first place, these forces were the remains of the fighting force of the South African Republic. There was, as it seems to me, no question of according to them belligerent rights. They were enemies who still remained unconquered. In the second place, they were a community of persons, bound together by ties of blood, actuated by a common purpose, and capable of contracting. So much was admitted by the treaty of Vereeniging, which on the face of it was an agreement between the British Government, on the one hand, and the outstanding burghers acting through their representatives on the other. Moreover, the treaty of Vereeniging recognized them as having a de facto Government, for their representatives were described as "acting as the Government of the South African Republic." Indeed, the recognition of their existence as a community involves, as it seems to me, an admission that they had some form of organization or constitution, and that there were certain laws by which they were bound inter se.

What, then, was this constitution and what were these laws? Two views were suggested. One is that the outstanding burgher forces carried with them into their exile (if I may be allowed the expression) the laws of their late State, so far as such laws were necessary or applicable to their existence as a military community. The other is, that by some sort of implied agreement or by common consent they became subject to martial law, namely, the expression of the will of their military commanders.

Of these two views the former appears to be the sounder, and I hold that the laws by which the remnant of the Boer forces were bound inter se were those of their old State, so far as they were applicable to the military organization, which was all that

then remained. .

These laws contained no provision au

thorizing such a confiscation of private property as occurred in It seems to me that this action fails

the present case.

and must be dismissed, with costs.

NOTE Compare Lemkuhl v. Kock (1903), Transvaal L. R. [1903] T. S. 451. On the subject of conquest see Campbell v. Hall (1774), Cowper, 204; The Foltina (1814), 1 Dodson, 450; In re Southern Rhodesia (1918), L. R. [1919] A. C. 211 (an excellent discussion); Westlake, Collected Papers, 475; Cobbett, Cases and Opinions, II, 244; Hyde, I, 175; Moore, Digest, I, 290. Bonfils (Fauchille) sec. 535, argues that conquest does not confer a valid title. "Taking possession by violence is merely a brutal fact." Other writers have taken a similar view, but in international practice conquest is recognized as a valid basis of title. In addition to the conquest of the Boer states in 1900, there were the conquest and absorption of numerous German states by Prussia between 1866 and 1870, the annexation of Bosnia and Herzegovina by Austria in 1908, the annexation of Korea by Japan in 1910, and the proclamation of the annexation of Cyrenaica and Tripoli by Italy in 1912 in the midst of its war with Turkey. While military measures were not necessary in all these cases, the process was in all essentials a conquest and the title of the annexing state rested upon the fact that it was strong enough to carry out its desires. A completed conquest is usually announced by some formal act, but this is not essential. As was said by Lord Sumner, "It is only declara tory of a state of fact. In itself it is no more indispensable than is a declaration of war at the commencement of hostilities," In re Southern Rhodesia (1918), L. R. [1919] A. C. 211, 240.

If realities rather than forms are regarded, many cases of cession will be seen to be conquests. If the cession is voluntary, as the cession of Heligoland by Great Britain to Germany and the cession of the Danish West Indies by Denmark to the United States, no element of conquest is involved. But if the cession is compulsory, as were the cession of Porto Rico to the United States and of Alsace-Lorraine to Prussia and its retro-cession to France, the new title is based upon conquest even though the transfer is effected by means of a treaty of cession.

SECTION 4. THE ACQUISITION OF JURISDICTION BY CESSION.

THE AMERICAN INSURANCE COMPANY AND THE
OCEAN INSURANCE COMPANY OF NEW YORK,
Appellants, v. 356 BALES OF COTTON,
DAVID CANTER, Claimant and
Appellee.

SUPREME COURT OF THE UNITED STATES. 1828.
1 Peters, 511.

MARSHALL, C. J., delivered the opinion of the court.

The plaintiffs filed their libel in this cause in the district court of South Carolina, to obtain restitution of 356 bales of cotton, part of the cargo of the ship Point a Petre; which had been insured by them on a voyage from New Orleans to Havre de Grace, in France. The Point a Petre was wrecked on the coast of Florida, the cargo saved by the inhabitants and carried into Key West, where it was sold for the purpose of satisfying the salvors; by virtue of a decree of a court consisting of a notary and five jurors, which was erected by an act of the territorial legislature of Florida.

The cause depends mainly on the question whether the property in the cargo saved was changed by the sale at Key West. Its validity has been denied on the ground that it was ordered by an incompetent tribunal.

The tribunal was constituted by an act of the territorial legislature of Florida, passed on the 4th July, 1823, which is inserted in the record. That act purports to give the power which has been exercised; consequently, the sale is valid, if the territorial legislature was competent to enact the law.

The course which the argument has taken, will require that, in deciding this question, the court should take into view the relation in which Florida stands to the United States.

The constitution confers absolutely on the government of the Union the powers of making war and of making treaties; consequently, that government possesses the power of acquiring territory, either by conquest or by treaty.

The usage of the world is, if a nation be not entirely subdued, to consider the holding of conquered territory as a mere military occupation, until its fate shall be determined at the treaty of peace. If it be ceded by the treaty, the acquisition is confirmed,