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or conquest, or some other means, it should, either permanently or temporarily, be incorporated with, and form part of, the dominions of the invader at the time when the question of national character arises?

"It appears to their lordships that the first opposition cannot be maintained. It is impossible for any judge, however able and learned, to have always present to his mind all the nice distinctions by which general rules are restricted; and their lordships are inclined to think that if the authorities which were cited and so ably commented upon at this bar had been laid before the judge of the court below, he would, perhaps, have qualified in some degree the doctrine attributed to him in the judgment to which we have referred. "With respect to the meaning of the term 'dominion of the enemy. and what is necessary to constitute dominion, Lord Stowell has in several cases expressed his opinion. In the case of The Fama, 5 Rob. 115, he lays it down that in order to complete the right of property there must be both right to the thing and possession of it; both jus a rem and jus in re. 'This,' he observes, 'is the general law of property, and applies, I conceive, no less to the right of territory than to other rights. Even in newly discovered countries, when a title is meant to be established for the first time, some act of possession is usually done and proclaimed as a notification of the fact. In transfer, surely, when the former rights of others are to be superseded and extinguished, it cannot be less necessary that such a change should be indicated by some public acts, that all who are deeply interested in the event, as the inhabitants of such settlements, may be informed under whose dominion and under what laws they are to live.'

"The importance of this doctrine will appear when the facts with respect to the occupation of the principalities come to be examined. "That the national character of a place is not changed by the mere circumstance that it is in possession and under the control of a hostile force, is a principle held to be of such importance that it was acted upon by the lords of appeal in 1808, in the St. Domingo cases of the Dart and Happy Couple, when the rule operated with extreme hardship.

"In the case of The Manilla, 1 Edw. 3, Lord Stowell gives the following account of those decisions: Several parts of it (the island of St. Domingo) had been in the actual possession of insurgent negroes, who had detached them, as far as actual occupancy could do, from the mother country of France and its authority, and maintained, within those parts, at least, an independent government of their own. And although this new power had not been directly and formally recognized by an express treaty, the British Government had shown a favorable disposition towards it on the ground of its

common opposition to France, and seemed to tolerate an intercourse that carried with it a pacific and even friendly complexion. It was contended, therefore, that St. Domingo could not be considered as a colony of the enemy. The court of appeal, however, decided, though after long deliberation, and with much expressed reluctance, that nothing had been done or declared by the British Government that could authorize a British tribunal to consider this island generally, or parts of it (notwithstanding a power hostile to France had established itself within it, to that degree of force, and with that kind of allowance from some other states), as being other than still a colony of the enemy. There can be no doubt that the strict principle of the decision was correct.'

“On the other hand, when places in a friendly country have been seized by, and are in the possession of the enemy, the same doctrine. has been held.

"While Spain was in the occupation of France, and at war with Great Britain, the Spanish insurrection broke out, and the British Government issued a proclamation that all hostilities against Spain should immediately cease. Great part of Spain, however, was still occupied by French troops, and amongst others, the port of St. Andero. A ship called the Santa Anna was captured on a voyage, as it was alleged, to St. Andero, and Lord Stowell (1 Edw. 182) observed: 'Under these public declarations of the state, establishing this general peace and amity, I do not know that it would be in the power of the court to condemn Spanish property, though belonging to persons resident in those parts of Spain which are at the present moment under French control, except under such circumstances as would justify the confiscation of neutral property.'

"The same principle has been acted upon in the courts of common law.

"In the case of Donaldson v. Thompson, 1 Campb. 429, the Russian troops were in possession of Corfu and the other Ionian Islands, though the form of a republic was preserved, and it was contended that the islands must be considered as substantially part of the territory of the Russian Empire, if the Russian power was there dominant, and the supreme authority was in the Russian commander; or, if not, that the republic must be considered as a cobelligerent with Russia against the Porte, since the Emperor of Russia derived the same advantages, in a military point of view, from this occupation of the islands as if he had seized it hostilely, or the Ionian republic had been his ally in the war he was carrying

Both these propositions, however, were repudiated by Lord Ellenborough; and afterwards, on a motion to set aside the verdict by the court of King's Bench, Lord Ellenborough observed: Will any one contend that a government which is obliged to yield in any

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quarter to a superior force becomes a co-belligerent with the power to which it yields? It may as well be contended that neutral and belligerent mean the same thing.' The same doctrine was afterwards laid down by the Court of King's Bench, in Hagedorn v. Bell, 1 Mau. and Sel. 450, in the case of a trade carried on with Hamburg. which had been for several years, and at the time was in the military occupation of the French.

"The distinction between hostile occupation and possession clothed with a legal right by cession or conquest, or confirmed by length of time, is recognized by Lord Stowell in the case of The Bolletta, 1 Edw. 171. A question there arose whether certain property belonging to merchants at Zante, which had been captured by a British privateer, was to be considered as French or as Russian property. that question depending upon the national character of Zante at the time of the capture. Lord Stowell observes, p. 173: 'On the part of the Crown it has been contended that the possession taken by the French was of a forcible and temporary nature, and that such possession does not change the national character of the country until it is confirmed by a formal cession, or by long lapse of time. That may be true, when possession has been taken by force of arms and by violence; but this is not an occupation of that nature. France and Russia had settled their differences by the treaty of Tilsit, and the two countries being at peace with each other, it must be understood to have been a voluntary surrender of the territory on the part of Russia.' On this ground he held the territory to have become French territory, remarking in a subsequent passage of his judgment that this was a cession by treaty, and not a hostile occupation by force of arms, liable to be lost again the next day.

"These authorities, with the other cases cited at the bar, seem to establish the proposition, that the mere possession of a territory by an enemy's force does not of itself necessarily convert the territory so occupied into hostile territory, or its inhabitants into enemies."

From the numerous decisions of the Supreme Court, beginning with the Prize Cases, 2 Black. 635, and ending with Williams v. Bruffy, 96 U. S. 176, and Dewing v. Perdicaries, Id. 193, the following propositions are plainly to be deduced:

"1. The district of country declared by the constituted authorities, during the late civil war, to be in insurrection against the Government of the United States, was enemy territory, and all the people residing within such district were, according to public law, and for all purposes connected with the prosecution of the war, liable to be treated by the United States, pending the war and while they remained within the lines of the insurrection, as enemies, without reference to their personal sentiments and dispositions.

"2. There was no legislation of the Confederate congress which his court can recognize as having any validity against the United tates, or against any of its citizens, who, pending the war, resided utside of the declared limits of the insurrection.

"The Confederate government is to be regarded by the courts as mply the military representative of the insurrection against the uthority of the United States.

"To the Confederate army was, however, conceded, in the interest f humanity, and to prevent the cruelties of reprisals and retaliation, ich belligerent rights as belonged under the laws of nations to the rmies of independent governments engaged in war against each ther; that concession placing the soldiers and officers of the rebel rmy, as to all matters directly connected with the mode of proseuting the war, 'on the footing of those engaged in lawful war,' and xempting them from liability for acts of legitimate warfare."" Ford. v. Surget (1878), 97 U. S. 594, 604. holding that a statute of he Confederate congress could have, as an act of legislation, no orce whatever in any court recognizing the Federal Constitution as he supreme law of the land.)

Moore's Digest, vol. I, p. 57.

The Adula, 176 U. S. 361, 368.-Mr. Justice Brown said: "But it 3 contended that at the time of the capture, the port of Guantanamo as completely in the possession and control of the United States, nd therefore that the blockade had been terminated. It appears, owever, that Guantanamo is eighteen miles from the mouth of iuantanamo Bay. Access to it is obtained either by a small river mptying into the upper bay, or by rail from Caimanera, a town n the west side of the upper bay. It seems that the Marblehead nd the Yankee were sent to Guantanamo on June 7; entered the arbor and took possession of the lower bay for the use of American essels; that the Panther and Yosemite were sent there on the 10th, nd on the 12th the torpedo boat Porter arrived from Guantanamo with news of a land battle, and from that time the harbor was occuied by naval vessels, and by a party of marines who held the crest f a hill on the west side of the harbor near its entrance, and the ide of the hill facing the harbor. But the town of Guantanamo, ear the head of the bay, was still held by the Spanish forces, as ere several other positions in the neighborhood. The campaign in he vicinity was in active progress, and encounters between the Jnited States and Spanish troops were of frequent occurrence. "In view of these facts we are of opinion that, as the city of Guananamo was still held by the Spaniards, and as our troops occupied. nly the mouth of the bay, the blockade was still operative as against essels bound for the city of Guantanamo."

EFFECT OF WAR ON TREATIES.

And it is declared, that neither the pretence that war dissolves all treaties, nor any other whatever, shall be considered as annulling or suspending this and the next preceding article; but, on the contrary, that the state of war is precisely that for which they are provided, and during which they are to be as sacredly observed as the most acknowledged articles in the law of nature and nations.

Treaty of Amity and Commerce of 1799 between the United States and
Prussia, Article XXIV.

And it is declared that neither the pretence that war dissolves all treaties, nor any other whatever, shall be considered as annulling or suspending the solemn covenant contained in this article. On the contrary, the state of war is precisely that for which it is provided; and, during which, its stipulations are to be as sacredly observed as the most acknowledged obligations under the law of nature or nations.

Treaty of Peace, Friendship, Limits, and Settlement of 1848 between the United States and Mexico, Article XXII.

And it is declared that neither the pretence that war dissolves treaties, nor any other whatever, shall be considered as annulling or suspending this article; but, on the contrary, that the state of war is precisely that for which it is provided, and during which its provisions are to be sacredly observed as the most acknowledged obligations in the law of nations.

Treaty of Commerce and Navigation of 1871 between the United States and Italy, Article XXI.

All treaties, agreements, conventions and contracts between the United States and Spain prior to the Treaty of Paris shall be expressly abrogated and annulled, with the exception of the treaty signed the seventeenth of February 1834 between the two countries. for the settlement of claims between the United States of America and the Government of His Catholic Majesty, which is continued in force by the present Convention.

Treaty of Friendship and General Relations of 1902 between the
United States and Spain, Article XXIX.

ARTICLE 1. The opening and the carrying on of hostilities shall have no effect upon the existence of treaties, conventions and agreements, whatever be their title and subject, concluded between them

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