the expiry of the period or periods agreed on, authentic notice reaches a naval or military commander, it is now commonly agreed, in spite of some previous divergence of opinion, that he ought to abstain from further acts of war. This, however, is subject to the reservation that he is not bound to accept such notice unless it comes to him directly or indirectly through his own Government; a reservation which sometimes operates harshly, but which is at bottom not unreasonable, having regard to the serious consequences that might attend the suspension of warlike operations on information that was erroneous or intentionally deceptive.

Cobbett, pt. II, pp. 232–234; Hall, p. 556.

The Speedwell, 2 Dallas, 40.—" BY THE COURT.-It appearing by the inspection of the record, that the schooner in question, was captured from the British, since the operation of the preliminary articles of peace (to wit, on the day of), the condemnation cannot be sustained."

The Mentor, 1 C. Rob. 179.-The Court said: "The circumstances of the case, as far as it is necessary to state them, are these: The ship being American property, was on a voyage from Havana to Philadelphia in 1783; off the Delaware she was pursued by his Majesty's ships The Centurion and The Vulture, then cruising off that river, under the command of the admiral on that station, Admiral Digby. All parties were in complete ignorance of the cessation of hostilities; not only the persons on board the king's ships, but the Americans, as well those on the shores, as those on board the vessel. In the pursuit, shots were fired on both sides, and it is alleged on the part of the British, that the ship was set on fire by her own crew, who took to the shore.

"Now, I incline to assent to Dr. Lawrence's position, that if an act of mischief was done by the king's officers, though through ignorance, in a place where no act of hostility ought to have been exercised, it does not necessarily follow that mere ignorance of that fact would protect the officers from civil responsibility. If by ar ticles, a place or district was put under the king's peace, and an act of hostility was afterwards committed therein, the injured party might have a right to resort to a court of prize, to show that he had been injured by this breach of the peace, and was entitled to compensation; and if the officer acted through ignorance, his own government must protect him. For it is the duty of governments, if they put a certain district within the king's peace, to take care that due notice shall be given to those persons by whose conduct that peace is to be maintained; and if no such notice has been given, nor due dili gence used to give it, and a breach of the peace is committed through the ignorance of those persons, they are to be borne harmless, at the

expense of that government whose duty it was to have given that notice.

"I am, therefore, inclined to think, that the determination of the judge in the former case did not turn upon the mere circumstance of ignorance on the part of the king's ships, but that looking at all the circumstances under which the event took place, and considering their just and legal effect, he was of opinion upon the whole result, that the protest on the part of the captors was well sustained. If that opinion of the judge was erroneous, an appeal ought to have been prosecuted. No appeal was prosecuted, though such a purpose was formerly declared, and a protocol entered, but no farther proceedings were pursued thereon.

"Mr. Wilson states in his affidavit, 'that distress of fortune prevented him from proceeding further.' I have to lament that, as well as many other circumstances that accompany the case, but courts of justice must pursue the legal modes; they cannot bend to the private distresses of individuals. If an appeal is not prosecuted, the conclusion of law is, that the party acquiesces in the decision.

"Now, what did the judge determine? He determined this: that the act of destruction which took place, took place under such circumstances that the captor was not compellable to proceed to adjudication upon it. And shall I, at the distance of ten years, after he has determined that the actual captors were subject to no responsibility at all, determine that Admiral Digby, a person totally ignorant of the whole transaction, at the distance of thirty leagues from the place where it passed, and utterly unprovided with all the means of defence, which either a knowledge of the fact, or a possession of evidence can supply, is liable, after a lapse of seventeen years, to be called upon to proceed to adjudication; or in other words, to justify the destruction of this vessel, or failing therein, to be answerable in damages? Surely such a determination could be founded on nothing but a determined opposition to every principle of law and justice by which the proceedings of this court have been directed, ever since it bore the shape of an established court of justice.

"Having said this, I shall decline entering minutely into the circumstances of the case, which have been rather alluded to than particularly discussed by the counsel. I feel for the misfortunes of the claimant. He has applied to this court, and he was judicially informed ten years ago, that the loss he has sustained was not of that nature which would entitle him to support an action for damages against the persons whom he considered as the immediate wrongdoers; still less can he be entitled to support it against the person who is the object of the present suit. And I, therefore, with the fullest conviction of mind, discharge Admiral Digby from the effect of the present monition."

CONQUEST.

It is now pretty generally acknowledged that there is both absurdity and iniquity in classing territory obtained by conquest under the category of res nullius; and in applying, with unreasoning pedantry or sophistical injustice, not the spirit, but the letter, of the Roman law, to a subject matter which, like that of conquest, has necessarily undergone, in all its bearings, a most important change since the time of Justinian.

The shameless pretext of Frederick the Second for the invasion of Saxony, in 1756, will not be alleged again by the most reckless despiser of International Justice.

Various and many Treaties of Peace fortify the sound international doctrine that conquest and occupation of territory are distinct public acts, carrying with them very different consequences, both to the State and to the individual. The language of Treaties which concern the acquisition of conquered territory is that the subdued state yields or concedes a certain territory to another; not that the conquering State retains or keeps possession of what it has seized, which would be the proper expression in the Treaty with respect to a State obtaining the recognition of an occupied territory.

Phillimore, vol. III, pp. 784, 785.

Conquest and occupation.

Conquest and occupation are distinct things, governed as to their legal effects in various respects by different principles and attended with different consequences. Nevertheless, there is an analogy between the two, and, in some respects, the rules of occupation are applicable to the case of conquest.

Conquest is often defined as occupatio bellica; and it so far partakes of the nature of occupation, that unless the conqueror has actual possession of the thing conquered he can exercise no right over it.

Phillimore, vol. III, p. 814.

Allegiance of inhabitants.

It often happens that the consideration of the effect of conquest upon Private Rights gives rise to a question of the largest magnitude and gravest importance, namely, the effect of this event upon the allegiance of the inhabitants of the conquered country. This is a question which requires to be examined with reference to two predicaments, viz.:

1. The effect of a foreign conquest upon the allegiance of the conquered.

2. The effect of conquest by one of the parties in a civil war upon the allegiance of the adherents of the defeated party.

Phillimore, vol. II, pp. 868, 869.

Allegiance of conquered.

As to the effect of a foreign conquest upon the allegiance of the conquered, the following observations in a judgment delivered by Mr. Justice Story are well worthy of observation:

"The second objection," says that learned judge, "is, that the Court directed the jury that Castine was, under the circumstances, a foreign port. By 'foreign port,' as the terms are here used, may be understood a port within the dominions of a foreign sovereign, and without the dominions of the United States. The port of Castine is the port of entry for the district of Penobscot, and is within the acknowledged territory of the United States. But, at the time referred to in the Bill of Exceptions, it had been captured, and was in the open and exclusive possession of the enemy. By the conquest and occupation of Castine, that territory passed under the allegiance and sovereignty of the enemy. The sovereignty of the United States over the territory was, of course, suspended, and the laws of the United States could no longer be rightfully enforced, or be obligatory upon the inhabitants, who remained and submitted to the conquerors. Castine, therefore, could not, strictly speaking, be deemed a port of the United States; for its sovereignty no longer extended over the place. Nor, on the other hand, could it, strictly speaking, be deemed a port within the dominions of Great Britain, for it had not permanently passed under her sovereignty. The right which existed was the mere right of superior force; the allegiance was temporary, and the possession not that firm possession which gives to the conqueror plenum dominium et utile, the complete and perfect ownership of property. It could only be by a renunciation. in a Treaty of Peace, or by possession so long and permanent as should afford conclusive proof that the territory was altogether abandoned by its sovereign, or had been irretrievably subdued, that it could be considered as incorporated into the dominions of the British sovereign. Until such incorporation by a recapture or repossession, the territory would be entitled to the full benefit of the law of Postliminy. If then, by the term 'foreign port' were intended a port absolutely within the dominions of a foreign sovereign, and incorporated into his realm, it might be very doubtful if the direction of the Court could be sustained. But it seems to me, that taking the whole direction together, in reference to the first

and third counts, it meant no more than that Castine, being in the possession of the enemy by right of conquest, it was no longer to be considered as a port of the United States with reference to the nonimportation Acts, but that, so far as respected the obligatory force of the laws of the United States, it was to be considered a foreign port,' or port extra ligeantiam reipublicae. And in this view the direction may well, in point of law, be supported.

"This leads me to the third objection, viz., that the bringing of the goods from Halifax to Castine was sufficient, to all purposes, to entitle the United States to a verdict on the first and third counts, whereas the Court directed the jury to the contrary. Without stopping to examine whether the single fact of bringing the goods from Halifax to Castine was of itself, 'to all the purposes of this libel,' sufficient to entitle the United States to a verdict on these counts, as the opinion guardedly expresses it, let us attend to the substance of the objection. It rests altogether upon the assumption that Castine was to be deemed a port of the United States, in which the laws had their full operation, notwithstanding it was, at the time of the supposed importation, in the actual possession of Great Britain. This position, however, is utterly inadmissible upon every principle of the Law of Nations. By the conquest and occupation, the laws of the United States were necessarily suspended in Castine; and by their surrender the inhabitants became subject to such laws, and such laws only, as the Conqueror chose to impose. No other laws could, in the nature of things, be obligatory upon them, for where there is no protection or sovereignty, there can be no claim to obedience. This objection, therefore, must be also overruled."

Phillimore, vol. III, p. 869-871; United States v. Hayward, 2 Gallison, 500-502.

Allegiance of conquered in a civil war.

We have next to consider the effect of a conquest by one of the parties in a Civil War upon the allegiance of the adherents of the defeated party.

The case supposed is always one of nicety and difficulty.

It would rather seem, as a matter of speculation, that, when an old government is so far overthrown that another government entirely claims, and at least partially exercises, the jurisdiction which formerly belonged to it, the individual is left to attach himself to, and to become, by adoption at least, the subject of either government. The analogy under which it is most just to range such cases has been thought to be that which has just been discussed, viz., the rule which applies to cases of foreign conquest, where those only are bound to obedience and allegiance who remain under the protection of the Conqueror.