whom it was vested before the conquest, and ceded to the conqueror at the conclusion of the war.1 In those cases where the title of the belligerents to the conquered territory was the question at issue between. them in the war, it is clear that, as war is a mode by which disputes are decided among those who have no common tribunal to which they can resort for justice, the unsuccessful belligerent is bound, when he has been compelled to make peace, to acquiesce in the result of that trial on which he put himself. Where the title to the conquered territory was not the question at issue in the war, the title of the conqueror arises from the ordinary principles on which the right of capture rests in the law of nations, that is to say, on the right which every belligerent has to indemnify himself, out of the possessions of the enemy, for the injury which he went to war for the purpose of redressing, and for the expenses of carrying on that war; and also to prevent the enemy from again injuring him, either by diminishing his power to do so, or by the infliction of a sufficient punish ment. These doctrines, it will be argued, suppose that the war is a just one on the part of the successful belligerent, whether it be undertaken to decide a question of dominion, or to redress an injury; whether it is in rem or in personam:2 but however correct that position may be in the abstract, and however important to be considered by belligerents, it cannot be taken into consideration by third parties. While the war is going on, other nations are at liberty 1 Vatel, Dr. des Gens, 1. iii. c. xiii. Pufendorf, Dr. des Gens, 1. vii. c. vii. § 3, 4; and l. viii. c. vi. § 21, n. Grotius, Dr. de la G. et de la P. l. iii. c. viii. 2 Wolfius, Jus Gent. § 778. to join either of the belligerents. But when once the war is concluded, whatever is settled at its termination must be held finally settled, whatever may be the merits of the case at issue between the parties. Those nations who are desirous of remaining neutral during the war must act as if the cause of both the belligerents were equally rightful, otherwise they make themselves parties to the quarrel, and thereby cease to be neutral.' Certainly a nation which is successful in an unjust war adds greatly to the guilt of such a war by taking any advantage of its success; but it would be impossible to make any difference as to the legal validity of the results of a war, according to its abstract justice or injustice, without giving rise to infinite evils. Who shall decide whether the war was just or unjust? Such a question could be decided only by an appeal to arms. One war would thus arise out of another, and war would no longer be a mode of deciding disputes among nations, for which purpose alone it is lawful. It arises obviously from these principles, that the title to conquered territories is incomplete until the termination of the war. While the war is being carried on, what has been conquered may be re-conquered; and therefore the dominion over a conquered country cannot be said to be transferred to the conqueror until the peace by which it is ceded to him.3 Grot. Dr. de la G. et de la P. 1. iii. c. vi. § 11 and not. Barbeyrac. 2 Inst. 1. ii. tit. i. § 17. 3 Persons and things (excepting movables) which, after capture by the enemy in war, return, during the war, or at the peace, into the possession of the nation to which they originally belonged, are restored, by the law of nations, to the condition in which they were before capture. This is called the right of postliminium. Grot. D. de la G. et de la P. 1. iii. c. ix. per tot. Pufendorf, D. des G. 1. viii. c. vi. § 22, 23; 1. viii. c. xi. § 9; 1. xii. ff. de captiv. et postlim. pr. l. xvi eod. tit. ; The acquisition of territories by cession also arises from the law of nations. It is where the person or body, holding the sovereign dominion over a state, transfers it by treaty. In this respect acquisition by conquest and by cession bear an analogy to each other; for in the former case the title of the conqueror is perfected, and in the latter that of the transferee is created, by a relinquishment of the rights of the original sovereign in favour of the party to whom the cession is made. By the law of England, in the cases of conquest and of cession, the conquered or ceded country retains its own laws; but the king may alter or change those laws by his prerogative. The effect of acquisition by conquest, is to transfer the dominion of the country to the conqueror; but that clearly does not involve the abrogation of all the laws prevailing in the country at the time.2 Acquisition by cession, even if unconditional and absolute, cannot abrogate the law of the land, because the only effect essential to it is manifestly the transfer of the sovereign authority. The articles of capitulation upon which a country is : I. xix. eod. tit.; 1. xxiv. eod. tit.; 1. xxvi. eod. tit.; 1. xxviii. eod. tit. : 108. P. * See Blackst. Com. b. i. c. iii. p. 199, as to the Norman Conquest of England. It is very interesting to find in the laws of Menu, one of the most ancient Hindu books, these words: "Let him (the king) establish the laws of the conquered nation, as declared in their books." -Sir W. Jones, Inst. of Hindu Law, art. 203. surrendered, and the treaty of peace or of cession by which it is ceded, are sacred and inviolable, according to their true intent or meaning. They may restrict the power of the conqueror or the transferee; and if he agrees to these restrictions, he is bound to abide by them.1 But so far as there are not such restrictions by treaty, the law of England invests the crown with an absolute legislative authority. The power of changing the laws of the conquered or ceded state is vested in the crown in council; and of its exercise the great Lord Mansfield gives numerous instances, beginning from the time of the alteration of the laws of Ireland and Wales, after their conquest by Henry II. and Edward 1.2 In the exercise of this legislative power, the queen is not bound to conform herself to the laws of England, but may impose whatever laws she pleases. But still, as Lord Mansfield lays it down, this legislation by the crown is subordinate, that is, subordinate to the authority of the queen in parliament. She cannot make any change contrary to fundamental principles; she cannot exempt an inhabitant of that country from the laws by which all subjects of the crown are bound; as, for instance, she cannot exempt him from the laws of trade, nor from the power of parliament, nor grant him privileges exclusive of her other subjects; and so in many other instances that might be given.3 1 In Demerara and Berbice the laws and customs of those colonies, and the public exercise of religion, are secured by the articles of capitulation on their surrender to England. In Canada, the former law and usages of the province are secured, until altered by parliament, by stat. 14 Geo. III. c. lxxxiii. § 8. Burge, Com. v. i. p. xv. prelim. treat. 2 Hall. Campbell, Cowp. 210. And see d'Aguesseau, Œuvres, tom. v. p. 38. Mémoire sur le Droit de Joyeau Avenement. 3 Hall v. Campbell, Cowp. 209. Thus, it is apprehended that the crown could not introduce torture, nor any other law to which the laws of England are utterly repugnant.1 Where the change introduced by the crown is partial, it is said that, except so far as a new law has been enacted, the former customs or laws continue in force.2 It has been already observed, that these colonies are not exempt, any more than the other portions of the empire, from the supreme power of parliament; but they are, however, not bound by any act of parliament in which they are not particularly named.3 The power of the crown over conquered and ceded possessions extends to altering their political constitution, or form of government, in such manner as may seem best to her majesty. Thus, the crown may grant to them a constitution analogous to that of England, with a legislative assembly resembling the imperial parliament, having power to make laws and raise a revenue for their interior government. But when once the power of making laws, or raising a revenue, is granted to a colonial assembly, the grant is irrevocable, except by the omnipotence of parliament, and excludes the legislative power of the crown, except so far as it is reserved in the proclamation or charter whereby the colonial constitution is established." We come now to possessions acquired by occupancy. Lord Coke has said, that laws against Christianity and the decalogue are, ipso facto, abrogate by conquest (Calonis, case 7, Rep. 34); but this Lord Mansfield, in Hall v. Campbell, denies. Lord Chief Justice de Grey, in Fabrigas v. Mostyn, 60 Stokes 11, said, that the law of torture would fall by the country in which it prevails coming into the possession of Great Britain. 2 Blankard v. Galdy, 4 Mod. 222. |