of partition to explain this case, and it may be added that Halleck (ii., 480), whose opinion as an American author is of peculiar value in this matter, regards such treaties as either express or implicit treaties of cession.

With regard to the administration of the state, it is obvious that in either case of cession or of conquest the administrative authority of the old Government absolutely passes away. The conqueror or the cessionary is obviously not bound to succeed to the form of administration of the conquered or ceding power, save in so far as it may be specially provided for by treaty, when he is of course bound. The successor has normally full legislative, administrative, and judicial authority, and he can exercise it as he likes. It is clear that, as Halleck (ii., 500) points out, none of the previous administrative or public law of the conquered or ceded territory can proprio vigore remain in force. The old state is gone and the new state does not succeed to its power. This is fully recognised by Huber (p. 135): "The successor, in the case of the winning of independence, succeeds as little as does a cessionary to the sovereignty of his predecessor "; (p. 148): "The conqueror succeeds as little as the cessionary to the sovereignty of the conquered state, but extends his own sovereignty over it just as in the case of territory ceded to him." The old laws derive any force they have from acquiescence in them by the conqueror or cessionary, which is tantamount to legislation establishing the public laws of the old state as laws for the new territory. In many cases such confirmation is formal; for example, in the case of the conquest of the Orange Free State, Lord Roberts, by Proclamation of 13th March, 1900, ordered the resumption of the Postal and Telegraphic services of the Republic in the conquered territories under the laws hitherto in force. On the 20th March the same principle was applied to the Customs. On the 31st May the Orange River Colony was placed, after annexation on the 24th May, under martial law as that term is usually understood in British colonies. By Proclamation No. 11 of 1900 the occupied parts of the South African Republic were put under military law. By Proclamation No. 19 of 1900 taxes, revenues, dues, etc., were made payable to Her Majesty's Government. After the annexation all the Transvaal was placed under martial law by Proclamation No. 16 of 1900. Finally, Proclamation No. 20 of 1900 declared that all the Courts constituted thereby should have jurisdiction in the case of offences under the common or statute law of the Transvaal, thereby recognising the Transvaal Criminal Law. (For these Proclamations, see Parliamentary Paper, Cd. 426.) So a Proclamation No. 17 of 1902 recognises Roman-Dutch law as the common law of the Transvaal, and confirms the statute law of the Transvaal.

It is, of course, a matter not of International Law, but of the public law of each country, the exact extent to which the public law of the conqueror or cessionary extends automatically over the conquered or ceded territory. The rule of English law does not extend the common law of England or any of the statute law, save that which applies to the colonies, to the conquered territory. A new colony falls within the definition of colonies or of British possessions contained in the acts referring to such possessions or colonies, and, of course, its legislation is pro tanto invalid so far as it is repugnant to an Imperial law. Further and this is an interesting point-the legislation of the colony, so far as when it was an independent state it professed to be extra-territorial, will no longer be held in the eyes of the Courts to have such effect, it being a rule of English law that no colonial legislation has extra-territorial effect unless such effect is expressly or by necessary intendment given by an Imperial Act. (See Powell v. Apollo Candle Company, 10 App. Cas. 282; Hodge v. The Queen, 9 App. Cas. 117; Macleod v. Attorney-General for N.S. W., 1891, A.C. 455; P.O. Steam Navigation Company v. Kingston, 1903, A.C. 471; Attorney-General for Canada v. Cain, 1906, A.C. 542.) Halleck (ii., 501) goes further: "Any municipal laws existing in such territory, which are in violation of treaty stipulations, or of the general rules of trade, navigation and shipping, or which give privileges exclusive of other subjects, are not

*

only void in themselves, but the King even cannot introduce any which are contrary to fundamental principles." This is of doubtful validity. Whether a treaty stipulation overrides a municipal law is a question which the Privy Council has refused to answer (Walker v. Baird, 1892, A.C. 491; Damodhar Gordhan v. Deoram Kanji, 1 App. Cas. 352), and which the Transvaal Courts have likewise evaded answering (cf. 1903, Transvaal Supreme Court Reports, 15; 1905, Reports, 137). The answer is probably in the negative in accordance with the general principles of English law, which, as we have seen in Chapter III., are extremely conservative in recognising rules of International Law. In the case of PostmasterGeneral v. Taute (1905, Transvaal Supreme Court Reports, 582 seq.) Sir J. RoseInnes laid it down that an action would not lie in a Transvaal Court to enforce a treaty stipulation for the recognition of contractual obligations. The remark was not essential to the decision of the case at issue, but it probably represents the English doctrine on the subject. The general rules of trade, navigation and shipping to which Halleck refers may be ed in Imperial statutes, in which case his dictum is no doubt correct, but its too limited, as repugnance to any Imperial statute invalidates a colonial Act. If the rules are those of English law, not specially applied by statute to the colonies, they certainly do not override colonial legislation, nor would colonial legislation, which conferred privileges exclusive of other subjects, be invalid merely on that ground. Since the enactment of the Colonial Laws Validity Act, 1865, sec. 3, colonial laws can only be invalid if they contravene Imperial legislation applying to the colony. It is sometimes said that they are also invalid if they are in conflict with fundamental principles of law (see Lord Mansfield's judgment in Campbell v. Hall, 20 State Trials, 320), but this rule, which once had a real meaning, is now obsolete, though in the recent discussion of it in Rand Exploration Company v. Nel (1903, Transvaal Supreme Court Reports, 42), the point was not directly settled, as it was not necessary to the decision of the case. But now, undoubtedly, the King's authority to enact laws is only subordinate to the law of Parliament, and the Legislature of a Crown Colony has all the King's authority if the Letters Patent grant it as they usually do.

In the United States the practice is to permit the President, as supreme commander of the forces of the Republic, to maintain government in conquered territories until Congress decides as to their fate (Halleck, ii., 502). It has been held that revenue laws of the Republic extend to the new territories as soon as the fact of annexation or cession has been notified to the officials there. This decision seems illogical, as it should apparently rather have been held that the revenue laws, if they applied at all, must do so at the instant of cession, but it was due to the great difficulties experienced in communication with the territories in question, when California was ceded by Mexico (cf. Phillimore, iii., 873-875).

The established practice, as will be seen in Chapter IX., in regard to the supreme power of legislation, is not to exercise that power unfairly with regard to private rights. But all public and administrative law, ecclesiastical law, and not rarely the laws of criminal and civil procedure, are altered by the conqueror or cessionary. This was so in the case of Sardinia and its acquisitions in 1859 to 1866; in the case of the incorporation of Schleswig-Holstein, the patent of 12th January, 1867, while confirming officers in their posts, and guaranteeing private rights, expressly reserved to the German Emperor the power of legislation, pending the introduction of the Prussian administration. Similar are the patents of 3rd October, 1866, for the annexation of Hanover, Hesse, Nassau, and Frankfurt. By a law of 9th June, 1871, regarding the union of Alsace-Lorraine with the

* The New Zealand Courts appear to consider that questions of Maori claims to lands, depending on treaties with the Crown, are not within their jurisdiction (Wi Parata v. Bishop of Wellington, 3 N.Z. Jurist, N.S. S.C. 72; Moore, Act of State in English Law, pp. 133, 134), and that the treaties give no rights which can be enforced against the Crown. This is the converse case.

German Empire, the Emperor, with the assent of the Bundesrath and the Reichstag, appointed the 1st January, 1873, as the date of the introduction of the German Imperial Administration, and until then the legislative authority was vested in the Emperor, with the consent of the Bundesrath, or, if burdens were to be imposed on the empire by taking over loans, etc., of the Reichstag as well. The Emperor was to have administrative power, subject to the counter-signature of the Imperial Chancellor, who thus became responsible for his orders (Law of 9th June, 1871, secs. 3 and 4).

Similarly, in cases of conquest or cession, Great Britain has freely altered the public and administrative laws, as, for example, in cases of cession at the Cape of Good Hope, in Malta, in Ceylon, in Mauritius, in Hong Kong, in Labuan, and in the ceded West Indian Islands; in cases of annexation in the Transvaal in 1877; in Upper Burma in 1886, and in many cases in India. The fact of conquest or cession introduces the whole doctrine of the prerogative of the Crown into the colonial law. On the other hand, he case of cession it has always obeyed treaty stipulations, as in the case of British Guiana, where a certain amount of financial control has always been maintained for the colonists in the Court of Policy in accordance with the Dutch practice and the articles of capitulation (Colonial Office List, 1904, pp. 89, 90). Similarly, in virtue of the peace terms of Vereeniging of 31st May, 1902, though this was not technically a treaty, the Government of the Transvaal was, by Letters Patent of 31st March, 1905 (Parliamentary Paper, Cd. 2400), constituted on a representative basis, it having been provided in the terms that military government in the Transvaal and Orange River Colony should, as soon as possible, be succeeded by civil government, and later on by representative institutions leading up to self-government. So also, in accordance with Art. 8 of these terms, the political franchise has been withheld from Indians or natives, and, in virtue of Art. 9, no special war-tax has been imposed on landed property in the two colonies. Similarly, by Art. 6, it is provided that rifles shall be allowed to those requiring them for their protection on taking out a licence as required by the local law.

In ecclesiastical matters the new state possesses full authority, and is not bound by concordats affecting the ceded or annexed territory. Thus, as Selosse (p. 218) points out, the Germans were not bound by the concordat between France and the Pope after the cession of Alsace-Lorraine. On the other hand, concordats binding the territories of the conqueror or cessionary will extend to the new territories. If by the laws of the cessionary or conqueror religious bodies cannot possess property, then in strict law they lose their property on cession or annexation, and to obviate this result provisions have been inserted in several treaties. Art. 16 of the Treaty of 10th November, 1859, between Austria and France, provides that religious corporations established in Lombardy can dispose freely of their property, movable or immovable, in cases where the new legislation under which they would pass did not authorise the maintenance of such establishments, while Art. 7 of the Treaty of the 23rd August, 1860, between France and Sardinia, assures religious establishments in Savoy and Nice in the continued enjoyment of their property. Germany permitted French bishops to exercise authority over Alsace-Lorraine until final arrangements had been made for regulating the boundaries of the dioceses in 1871 (Art. 6 of Treaty of 10th May, 1871, and Art. 9 of Treaty of 11th December, 1871). In former times treaties frequently contained provisions for the free exercise of certain religions, but these are now, owing to the rise of religious toleration, mostly antiquated. Yet it is provided for expressly in the United States Treaty of the 10th December, 1898, with Spain, and in both the Transvaal Conventions of 1881, Art. 16, and of 1884, Art. 9, the British Government stipulated for the freedom of religion in the Transvaal, in so far as such freedom was not inconsistent with morality and good order. Further, in the Aliwal-North Convention of 1869, provision was

made for the maintenance of certain French Missions (Art. 7), in view of the expulsion of certain French missionaries by the Orange Free State Government in 1865 (see F. Coillard, On the Threshold of Central Africa, Introduction, p. xxii.). These stipulations show clearly that the legal right of expulsion normally exists, though the sense of Europe is that freedom of religion should be allowed, as is shown by the Treaty of the 29th March, 1864, regarding the Ionian Islands, to which all the great Powers were parties.

Similarly, it is open to the conqueror or cessionary to introduce slavery as a status in the new territories. The British Government has frequently stipulated in South African treaties against slavery. Such provisions will be found in the Sand River Convention, 1852, Art. 4; the Bloemfontein Convention of 1854, Art. 7; the Pretoria Convention of 1881, Art. 15, and the London Convention of 1884, Art. 8.

The conqueror or cessionary may also alter the official language of the country, save so in far as he is bound by treaty, and may change its educational system. The British Government is bound by the terms of peace of 31st May, 1902, Art 5, to permit the teaching of Dutch in the schools in the Transvaal and Orange River Colony if the parents so desire, and to permit the use of Dutch in the courts of law when necessary for the proper administration of justice. In the case of the Cape, on the other hand, no such stipulation was made at the time of cession, and the use of Dutch as an official language was entirely given up, until revived by a comparatively recent act of the Colonial Legislature.

Further, any rights of sovereignty exercised by private persons pass to the cessionary or conquering state unless specially preserved by treaty. For example, private rights of jurisdiction would not normally be recognised by a conqueror or cessionary whose law required that all jurisdiction should be exercised by the state. Huber (p. 60) says: Rights which are a mixture of public and private rights perish so far as they are public in cases where the succeeding state does not possess a corresponding institution. If it possesses rules which apply to the case they will in the future govern the matter, as for example, in the case of fiefs, knightly property, guilds with compulsory powers, rights of mill, sale monopolies, patronage, schools, saleable appointments, rights to mint coin, and postal rights belonging to private individuals, exemptions from military service," etc. Westlake (i., 82) quotes this passage with approval. Many of these points can hardly arise when, as now, public rights are rarely in the hands of individuals, but clearly, when they do arise, the fact that they are private rights under the old Government brings them, to some extent, under the rule of private property, and in accordance with that rule we would expect to find that, while the rights themselves cannot be claimed under the new Government, as they are ipso jure extinguished, the owners ought to receive compensation. No absolute right to compensation can exist because it is an admitted rule of public law that the state may confiscate without compensation even what it recognises as under its own laws private property, but just as expediency usually requires that compensation be paid for confiscation of private property, so in this case also compensation would normally be paid. To take a case put by Selosse (p. 214), if a private person owns a school in a state which is annexed or ceded the conqueror or cessionary does not recognise private schools, though he has no legal he has a moral claim to consideration. So by a law of 10th June, 1872, Germany granted full compensation to holders of saleable offices in the judicial administration of Alsace-Lorraine in respect of the abolition of their rights of sale, even when those officers opted for French nationality. But the right is not a legal one, and depends on the will of the cessionary or conqueror in the absence of express treaty stipulation.

One of the most important questions in regard to the change of administration is that of taking over officers. According to Huber (pp. 123, 127), the theory is that

the cessionary takes over in their corresponding ranks the civil servants of the old Government if they become his subjects and do not opt for their old nationality. If the administrative system of the cessionary is not compatible with their continuance in office, or if he does not desire to retain their services, he must pension them according to his pension laws, for by not opting for their old nationality they have decided to accept pensions from him on the scale used by him for his own servants. If they opt for the ceding state they remain its servants and must be pensioned by it. The act of cession ends their powers, but the silence of the cessionary gives them a new authority in all cases save of high police officials, etc., whose position is a matter of special trust. If under the terms of his appointment an official is irremovable, he remains irremovable under the new state unless its public laws forbid, in which case he must be indemnified. Similarly an indemnity must be paid to an official who loses his office through the change of state. Municipal officials are unaffected by the change.

These rules are supported by a certain amount of practice and treaty authority, but their very nature shows that we cannot speak here of a rule of law. A Prussian Patent of 22nd May, 1815, secured the rights of all officials in the ceded parts of Saxony; a Patent of 13th September, 1865, the rights of officials in Lauenberg; and Patents of 3rd October, 1866, and 12th January, 1867, secured similar privileges for the officers of Hanover, Hesse, Nassau, Frankfurt and Schleswig-Holstein. By Art. 2 of the Treaty of 11th December, 1871, Germany contracted to secure in their old rights any officials whose appointments it might confirm, and it had earlier offered to secure individuals in their posts if they would loyally accept the offer (Proclamation by Count Bismarck Bohlen, of 30th August, 1870). So by a decree of the National Assembly of the Ionian Islands of the 19th October, 1863, all the officials were confirmed in their offices. Similar provisions occur in the treaties of 10th November, 1859, and 3rd October, 1866, regarding Austria and Italy, and in the treaty of 23rd August, 1860, for the cession of Savoy and Nice, but in these cases the pensions of officers not reemployed is to be reckoned according to the scale of pensions in the ceded state, not according to the scale in the cessionary.

But, of course, in a case of annexation this result cannot be expected. Even in the case of cession there would be no obligation on the cessionary in the absence of treaty stipulations to employ the old officials, and in annexation their employment cannot be essential. The French Government were unable to insist on Germany taking over all the French officials in 1871, even in the case of cession. In the case of the Transvaal in 1877 Great Britain only employed certain of the old officials, whence much ill-feeling resulted. On the annexation of Upper Burma in 1886, it was impossible (see Parliamentary Paper, C. 4889) to make much use of the old officials, and a new administration had to be created. The same remark applies to the Transvaal and Free State in 1900. Many of the old officials were Hollanders and fled before the arrival of the British troops, and so a new civil service had to be created out of ex-soldiers and volunteers and Cape officials, though eventually not a few of the old officials received posts.

In the case of soldiers the rules laid down by Huber (pp. 126, 127) are that, if the soldiers are conscripts and belonged to a ceded territory, they pass to the sovereign of that territory because of his right to the service of his new subjects, not by succession. If the soldiers are mercenaries and also born in the territories ceded, he can claim their services, but in such cases an option is secured by treaty. If they are foreign mercenaries, they belong to the ceding power. In the case of officers, the same rules apply as in the case of native mercenaries. In the case of annexation (p. 160) the troops pass to the annexing power, officers retaining their rank, etc., and being only removable according to the laws of the successor. Further, Huber (p. 59) lays down that, if a subject of a ceding power has already completed his military service, he cannot be called upon to serve further, even if