is confirmed or made complete, it is held by the right of military occupation, (occupatio bellica,) which, by the usage of nations and the laws of war, differs from, and falls far short of, the right of complete conquest, (debelatio ultima victoria.) These will form the subjects of the next two chapters. The right of one belligerent to occupy and govern the territory of the enemy while in its military possession, is one of the incidents of war, and flows directly from the right to conquer. We, therefore, do not look to the constitution, or political institutions of the conqueror, for authority to establish a government for the territory of the enemy in his possession, during its military occupation, nor for the rules by which the powers of such government are regulated and limited. Such authority, and such rules, are derived directly from the laws of war, as established by the usage of the world, and confirmed by the writings of publicists, and the decisions of courts in fine, from the law of nations. But, when the conquest is made complete, in whatsoever mode, the right to govern the acquired territory follows as the inevitable consequence of the right of acquisition, and the character, form, and powers of the government established over such conquered territory, are determined by the constitution and laws of the state which acquires it, or with which it is incorporated. The government established over an enemy's territory during its military occupation, may exercise all the powers given by the laws of war to the conqueror over the conquered, and is subject to all the restrictions which that code imposes. It is of little consequence whether such government be called a military or a civil government; its character is the same, and the source of its authority the same: in either case, it is a government imposed by the laws of war, and so far as it concerns the inhabitants of such territory, or the rest of the world, those laws alone determine the legality, or illegality of its acts. But the conquering state may, of its own will, whether expressed in its constitution, or in its laws, impose restrictions additional to those established by the usage of nations, conferring upon the inhabitants of the territory so occupied privileges and rights to which they are not strictly entitled by the laws of war; and, if such government of military occupation violate these additional restrictions so

imposed, it is accountable to the power which established it, but not to the rest of the world. (Coccejus, De Jure Victoriae, passim; Heffter, Droit International, §§ 131, 186; Flemming et al. v. Page, 9 Howard Rep., p. 603; Cross et al. v. Harrison, 16 Howard Rep., p. 164; Marcy to Kearny, June 11th, 1847, Ex. Doc. No. 17, 31st Cong. 1st sess. H. R.; Kamptz, Litteratur des Volk., § 307; Isambert, Ann. Pol. et Dips., Int., p. 115; Cushing, Opinions U. S. Att'ys Gen'l, vol. 8, p. 365; Gardner, Institutes, p. 208; Puffendorf, de Jure Nat. et Gent., lib. 8, cap. 6, §§ 17, 27; Vattel, Droit des Gens, liv. 3, ch. 13, § 197.)

§ 2. We will here consider the question, when do the rights of military occupation begin, or how are we to fix the date of a conquest? Bouvier defines a conquest to be, "the acquisition of the sovereignty of a country by force of arms, exercised by an independent power, which reduces the vanquished to the submission of its empire." It follows, then, that the rights of military occupation extend over the enemy's territory only so far as the inhabitants are vanquished or reduced to submission to the rule of the conqueror. Thus, if a fort, town, city, harbor, island, province, or particular section of country belonging to one belligerent, is forced to submit to the arms of the other, such place or territory instantly becomes a conquest, and is subject to the laws which the conqueror may impose on it; although he has not yet acquired the plenum dominium et utile, he has the temporary right of possession and government. As this temporary title derives its validity entirely from the force of arms on the one side, and submission to such force on the other, it necessarily follows that it extends no further, and continues no longer, than such subjugation and submission extend and continue. Thus, if one belligerent take possession of a port, or town, or province of the other, he cannot, therefore, pretend to extend his govern ment and laws over places or provinces which he has not yet reduced to submission, or, by reason of a particular possession, to claim a general control and authority. By occupying a port of an enemy's coast, we have a right, so long as we retain its possession, to exclude neutral vessels from such port, or admit them on such terms as to us may seem fit and proper; but we cannot exclude neutral vessels, or impose our

regulations upon neutral commerce in ports of the enemy which are not in our possession. To extend the rights of military occupation, or the limits of conquest, by mere intention, implication or proclamation, would be establishing a paper conquest, infinitely more objectionable in its character and effects than a paper blockade. "The rule is," says Wildman, "that the whole is possessed by the occupation of a part, if an intention to appropriate the whole accompany such occupation, and all others be excluded from occupying the residue. Otherwise, possession of real property would be impossible, as it does not admit of manual apprehension or corporal incumbency in all its parts. Two persons cannot have several possessions of the same thing at the same time; such possession of one excludes the possession of another. Hence, if one be in possession, and another enter upon part which is not in the actual possession of the first, by such entry he gains possession of no more than he actually occupies. The constructive occupation of the owner is defeated by actual occupation, so far as it extends. Thus it is said by Celsus, if an enemy enter a territory by force of arms, it is in possession of so much only as it occupies. When he speaks of force, he supposes resistance on behalf of the sovereign, in defence of his possession. An army only possesses a country so far as it compels the enemy's forces to retire. The meaning of Paulus is probably the same, when he says that possession of part, with an appropriating mind, is possession of the whole up to its boundary. By boundary, he signifies the commencement of another's possession. Upon these principles, the extent of hostile possession may be distinctly defined. If an army be in possession of a principal town of a province, it is not thereby in possession of the towns and forts within the same, which hold out for the enemy. Forcible possession extends so far only as there is an absence of resistance. The occupation of part by right of conquest, with intent to appropriate the whole, gives possession of the whole, if the enemy maintain military possession of no portion of the residue. Under such circumstances, military possession of a capital would be possession of a whole kingdom. But if any part hold out, so much only is possessed as is actually conquered. Thus, both the States-General and the king of Spain maintained, during the

controversies that arose out of the truce between Spain and the United Provinces, that the possession of the surrounding country follows the possession of a town. The military possessors of a town must necessarily have the surrounding country in their power, unless there be a fortress within it; in which case, the country commanded by the fortress would not be in their possession. These principles show the absurdity of the pretentions of the western and eastern empires that have been founded on the possession of Rome and Constantinople." The same principles are recognized in the decision of Calvin's case. "Now come we," says Lord Coke, "to France and the members thereof, as Calais, Guynes, Tournay, etc., which descended to King Edward III., as son and heir to Isabel, daughter and heir to Philip le Beau, king of France. Certain it is, whilst King Henry VI. had both England and the heart and greatest part of France under his actual legiance and obedience, (for he was crowned king of France in Paris,) that they that were then born in those parts of France that were under actual legiance and obedience, were no aliens, but capable of, and heritable to, lands in England." Those born in parts of France not under actual legiance and obedience, and prior to King Henry's recognition and coronation, were regarded as antenatis, and received letters patent of denization, as in the case of Reynel. (Bouvier, Law Dic., verb. Conquest; Bynkershoek, Quaest. Jur. Pub., lib. 1, cap. 6; Duponceau, Translation of Bynkershoek, p. 116, note; Grotius, de Jur. Bel. ac Pac., lib. 2, ch. 22, § 13; Wildman, Int. Law, vol. 1, pp. 163, 164; Calvin's Case, Coke Rep., pt. 7, p. 220; Fleming, et al., v. Page, 9 Howard Rep., p. 603; Justinian, Pandects, xli., 2; xviii., 4; Heffter, Droit International, § 186; Schwartz, de Jure Vic., in Res Incorp., th. 27.)

§ 3. It must not be inferred from what has just been said, that the conqueror can have no control or government of hostile territory unless he actually occupies it with an armed force. It is deemed sufficient that it submits to him and recognizes his authority as a conqueror; for conquests are in this way extended over the territory of an enemy without actual occupation with armed force. But so much of such territory as refuses to submit, or to recognize the authority of the conqueror, and is not forcibly occupied by him, cannot

be regarded as under his control or within the limits of his conquest; and he therefore cannot pretend to govern it or to claim the temporary allegiance of its inhabitants, or in any way to direct or restrict its intercourse with neutrals. It remains as the territory of its former sovereign,-hostile to him, as a belligerent, and friendly to others, as neutrals. The government of the conqueror being de facto and not de jure, it must always rest upon the fact of possession, which is adverse to the former sovereign, and therefore can never be inferred or presumed. In other words, the rights of the conqueror are those of possession and not of title, and whenever brought in question they must be proved, and cannot be presumed. Not only must the possession be actually acquired, but it must be maintained. The moment it is lost, the rights of military occupation over it are also lost. In the words of Chief Justice Taney, "By the laws and usages of nations, conquest is a valid title while the victor maintains the exclusive possession of the conquered country." (Heffter, Droit International, § 131; Flemming, et al. v. Page, 9 Howard Rep., p. 613; Duponceau, Translation of Bynkershoek, p. 116, note; Wildman, Int. Law, vol. 1, pp. 163, et seq.; Schwartz, De Jure Vic. in Res Incorp., th. 27,)

§ 4. Political laws, as a general rule, are suspended during the military occupation of a conquered territory. The political connection between the people of such territory and the state to which they belong is not entirely severed, but is interrupted or suspended so long as the occupation continues. Their lands and immovable property are, therefore, not subject to the taxes, rents, etc., usually paid to the former sovereign. These, as we have said elsewhere, belong of right to the conqueror, and he may demand and receive their payment to himself. They are a part of the spoils of war, and the people of the captured province or town can no more pay them to the former government than they can contribute funds or military munitions to assist that government to prosecute the war. To do so would be a breach of the implied conditions under which the people of a conquered territory are allowed to enjoy their private property, and to pursue their ordinary occupations, and would render the offender liable to punishment. They are subject to the laws of the