INTERNATIONAL LAW 19 c. On the occupation of New Mexico in 1846, General Kearney, commanding the American forces, at once instituted a provisional government over that territory. The validity of the courts and code of laws established in connection therewith was later upheld by the Supreme Court of the United States in an opinion which stated that they not only displaced and superseded every previous institution of the vanquished or deposed political power which was incompatible with them, but that they continued in force, even after the termination of the war, until expressly revoked or modified by direct legislation, the provisional government being regarded as exercising its power in the meantime through delegation by Congress. 23. PRIVATE RIGHTS NOT IMPAIRED BY CONQUEST.-a. War being only a relation of state to state, it follows that one belligerent who makes conquests in the territory of another cannot acquire more rights than were possessed by his predecessor. The right of conquest therefore cannot affect the property of private persons. The invaded or conquered state could not possess any right over such property, so the invader or conqueror cannot legitimately exercise any right over it. It has been held by the Supreme Court of the United States that, when New Mexico was conquered by the United States, it was only the allegiance of the people that was changed; their rights of property and their relations with each other remained undisturbed. Likewise, the same court held as to California that the rights acquired by individuals under the prior Mexican and Spanish laws were "consecrated by the law of nations." Of course, the acquisition must have been bona fide. A grant of lands in California made by the chief of an administration when he was in flight from the seat of government, and his cause about to be, as it was soon afterwards, completely overthrown, was not sustained. b. Rights acquired and relationships entered into by individuals pursuant to the laws of a de facto government (the one actually in power, whether rightfully or wrongfully, for the time being) are valid after such government has ceased to exist, provided the acts which brought them 20 MILITARY AID TO THE CIVIL POWER about did not have to do with the prosecution of the war. Thus it has been held that the Confederate States had no existence except as a conspiracy to overthrow lawful authority, so when their government was ovethrown it perished totally, leaving no laws, no statutes, no decrees, no authority which could give support to any contract or act done in its service or in aid of its purpose, or which contributed to protract its existence; but as to other acts or contracts it is recognized that the supremacy of the Confederate government actually existed over certain territory, and that individual resistance to its authority at that time would have been both futile and unjustifiable. In the face of an overwhelming force, obedience in certain matters became a necessity and in the interests of order and duty. Of this character may be mentioned the preservation of order, maintenance of police regulations, prosecution of crimes, protection of property, enforcement of contracts, celebration of marriages, settlement of estates, transfer and descent of property, and similar kindred subjects. These were not invalid merely because the government which regulated them was in hostility to the Union. The existence of war did not relieve those within the insurrectionary lines from the necessity of civil obedience, nor destroy the bonds of society, nor do away with the civil government or the regular administration of the laws. These may indirectly or remotely have promoted the ends of the de facto unauthorized government organized to effect a dissolution of the Union, but they were nevertheless without blame unless entered into with the actual intent of furthering the invasion or insurrection. c. The important fact to be gathered from this paragraph is that the government of the United States not only holds that individual rights derived from a duly constituted prior foreign government to which it has succeeded are "consecrated by the law of nations," even as against rights claimed under its own subsequent laws, but it has applied the same rule in the case of an insurrectionary government formed within its own borders. CHAPTER II The Laws of War SECTION I. Origin and Development Paragraphs 1-29 II.-General Survey of the Modern Laws of War__ 30-34 People 35-36 IV.-Laws of War as Affecting Intercourse Between 37-38 Early rules governing warfare The beginning of the laws of war proper The influence of Christianity and chivalry Views of the Revolutionary War period The Declaration of St. Petersburg, 1868 The Brussels Conference of 1874 The Institute of International Law, 1880 The Geneva Convention of 1906 The Second Hague Peace Conference, 1907 Paragraph 1 2 3 7 22 MILITARY AID TO THE CIVIL POWER 1. PATRIARCHAL GOVERNMENTS.-a. At some time during the primitive period of man's existence there came a time when he began to realize that, by giving up certain individual liberties and subordinating them to community interests, he would receive in exchange a greater degree of safety and a larger measure of happiness. He sought the most natural association available, and thus it was that men banded themselves together on the basis of family ties, thereby instituting the patriarchal system of government. The ruler was in all cases the old father, whose place was ultimately taken by his eldest son, whose place was in turn taken by his eldest son, and so on down through the family lineage. b. After this fashion was born the earliest and simplest form of our modern civilized state. 2. NOMADIC TRIBES.-The next step after patriarchal governments consisted in the alliance of several closely related groups or families for mutual protection against similar groups. In those days these groups wandered about seeking pasturage for their herds and flocks, and what they found was theirs if they could take it by physical force from less powerful communities. This was the beginning of war. It consisted in fighting other tribes to gain the real or supposed necessities of life. The vanquished tribe was usually effaced from the earth. The men were killed and the women and children either sold into slavery or used as was considered would best serve the interests and desires of the conqueror. All the captured herds and pastures and other property passed absolutely to the victor. Struggles of this kind were the normal existence. 3. THE STABILIZING INFLUENCE OF AGRICULTURE.—a. As tribes multiplied, the pastures grew more and more scarce. The wanderer then discovered that he could plant and grow things that were good to eat and fit to feed his flocks, and that many of his other needs could be supplied in this way. He found this to be much easier and more peaceable than roaming about and fighting hard for what he got. Agricultural pursuits thus had their dawn. But the THE LAWS OF WAR 23 pursuit of agriculture means a settled existence. It is inconsistent with nomadic life. The latter therefore waned, and fixed communities became the rule along the river valleys where the soil was fertile and water was plentiful. The need for fighting strength was no longer so great as in the. nomadic days, being thereafter necessary principally for defense against the few wanderers that still remained, and against encroachments upon their land by neighboring settlements. b. The early form of government was always of the autocratic kind, the ruler continuing individually to direct the whole of his people's lives so long as it was possible for him to know all of his subjects by name. His commands were absolute, his will law, and his sense of right and wrong the sole court of justice to which appeal could be made. 4. THE GROWTH OF CITIES.-α. A more concentrated form of human existence, where comparatively large numbers of persons grouped themselves together within a comparatively small space, did not come into being until ideas of manufacture and trade began to develop. If a member of a tribe which had ceased its wanderings and settled down to agricultural pursuits had more of one kind of an article than he could use, he found it to his advantage to exchange this surplus for something of which he had less than sufficient to meet his needs. This involved knowing with whom such an exchange could be effected most advantageously, and this in turn involved much travel in search of customers. It was therefore soon found to be more convenient to have a common meeting ground where all who had surplus products might repair and barter as they desired. The next discovery was that if certain persons would remain permanently at the common meeting place to take this surplus and give what was desired in return, it was still more convenient than it was for each to stay at the meeting place waiting for a person to come along who desired exactly what he had to dispose of and who would give him exactly what he wished in exchange therefor. Then, as mankind living in the agricultural state began to think of improving his living con |