Transfer property mander and governor, and certain movable property belonging to the Californian government was sold by their authority. The moneys derived from these sources constituted the 'military contribution fund,' which was used for the expenses of the government of occupation, and for carrying on the war. By subsequent Acts of Congress the moneys so collected, and not expended, were made to form a portion of funds in the Treasury of the United States, and the expenditures were settled and audited by the proper officers of the Treasury Department.1 § 12. As military occupation produces no effect (except of private in special cases, and in the application of the severe right of war, by imposing military contributions and confiscations) upon private property, it follows, as a necessary consequence, that the ownership of such property may be changed during such occupation, by one belligerent, of the territory of the other, precisely the same as though war did not exist. The right to alienate is incident to the right of ownership, and unless the ownership be restricted or qualified by the victor, the right of alienation continues the same during his military possession of the territory in which it is situate, as it was prior to his taking the possession. A municipality or corporation has the same right as a natural person to dispose of its property during a war, and all such transfers are, primâ facie, as valid as if made in time of peace. If forbidden by the conqueror, the prohibition is an exception to the general rule of public law, and must be clearly established.2 Laws relating to such § 13. It has been stated elsewhere, that the lex loci rei sita governs in everything relating to the tenure, title, and transtransfers fer of real property; also, that the municipal laws of a conquered territory continue in force during military occupation, except so far as they are suspended or changed by the acts of the conqueror. It is not necessary, however, that such change should be made by special decree: it may be done by the introduction of a different system of jurisprudence, or a different usage and custom. As a general rule, there can be no 1 Dunlap, Digest of Laws of U. S., p. 1342. 2 Kent, Com. on Am. Law, vol. i. p. 92; Riquelme, Derecho Púb. Int., lib. i. tit. i. cap. xii.; Cobraz v. Raisin, 3 Cala. R., 445; Welch v. Sullivan, 8 Cala. R., 165; Isambert, Am. Pol. et Dip. Int., p. 115; Kamptz, Literatur, &c., § 307; Hart v. Burnett, 15 Cala. R., 559; Payne and Dewey v. Treadwell, 16 Cala. R., 220. custom in relation to a matter regulated by positive law, as custom derives its force from the tacit consent of the legislative power and the people. But the sovereign will may be implied or presumed, as well as expressed by words. A series of facts, as a public, uniform, general, and continued usage, constitutes a custom, which has the force of law, because the sovereign will is therein implied. Time is the important element of customary or common law, in an established and continuous government. But where a new government, with different institutions, a different system of laws, and different customs, is suddenly established by the operations of war, and the rights of conquest, the same effect upon the common law of the country may be immediately produced, which, under other circumstances, would require 'time, whereof the memory of man runneth not to the contrary.' During the military occupation of California by the forces of the United States, the use of Mexican stamped paper was necessarily dispensed with, for conveyances, and other official writings and private contracts. And, as the local officers of the then existing government of California were generally ignorant of the Spanish language and Spanish forms of conveyancing, real estate was usually transferred by the simple deeds of conveyance commonly used in the United States. As such conveyances were seldom executed in conformity with the requisitions of Mexican municipal law, their validity rested upon the usage introduced with the government of military occupation. Titles to many millions of property in that country were transferred in this way, and the usage continued after the restoration of peace, and, until the enactment of other laws by the local government, after its organisation as a State. Conveyances so made and executed have always been regarded as valid and sufficient for the transfer of real property. In the first place, the law requiring the use of stamped paper was a law for revenue, and, consequently, was suspended, with other political laws, ipso facto, by the conquest, and completely abrogated by the cession. In the second place, the lex loci rei sita, with respect to the forms and execution of conveyances of real property, was also suspended in its operation, by the introduction of a different usage with the government of the conquerors, and, from the nature of the case, the inhabitants of California could hardly be considered as remitted to VOL. II. G G Allegi ance this law by the restoration of peace. But this point will be more particularly discussed in chapter xxxiv.1 § 14. It may be stated, as a general proposition, that the duty of allegiance is reciprocal to the duty of protection. bitants of When, therefore, a State is unable to protect a portion of its occupied territory territory from the superior force of an enemy, it loses, for the time, its claim to the allegiance of those whom it fails to protect, and the inhabitants of the conquered territory pass under a temporary or qualified allegiance to the conqueror. The sovereignty of the State which is thus unable to protect its territory is displaced, and that of the conquered is substituted in its stead. But this change of sovereignty may be only of a temporary character, for the conquered territory may be recaptured by the former owner, or it may be restored to him by a treaty of peace. During mere military occupation the sovereignty of the conqueror is unstable and incomplete. Hence the allegiance of the inhabitants of the territory so occupied is a temporary and qualified allegiance, which becomes complete only on the confirmation of the conquest, and with the express or implied consent of the conquered.2 Lawful resistance rection § 15. But when does this change of temporary allegiance and insur- actually take place? And under what circumstances may the inhabitants of a conquered city or province take up arms to repel the conqueror, and assist their former sovereign in recovering his lost possessions? These are delicate questions, not always easy of decision. And yet their resolution involves matters of the utmost importance; for the decision of the first fixes the line between justifiable homicide and murder, and that of the second will determine whether those taken in arms are to be treated as prisoners of war, or may be executed as military insurgents. As a general rule, the inhabitants of a place lose their right to resist on its complete capture or formal surrender, and the conqueror then loses his right to kill. Those who retain their arms, and refuse to 1 Boyer, Universal Pub. Law, ch. xvi. ; Febrero Mexicano, tit. prelim., cap. iv. * Burlamaqui, Droit de la Nat. et des Gens, tome v. pt. iv. ch. vi. ; American Ins. Co. v. Cauter, 2 Peters R., 542; Calvin's case, Coke R., pt. vii. ; Rayneval, Inst. du Droit Nat., &c., liv. iii. ch. xx.; Heffter, Droit International, §§ 132, 186; Puffendorf, De Jure Nat. et Gent., lib. viii, ch. vi. Ộ 21. surrender, are still enemies, exercising the rights of war, and subject to its consequences; but those who submit are bound by the conditions, express or implied, of such submission. Obedience to the laws which the conqueror may impose by the right of conquest, is undoubtedly one of these implied conditions. But is there no limit to such obedience, and may not those who have thus submitted to the authority of the victorious enemy throw off, at any time, this temporary allegiance to the conqueror, and restore the former and rightful sovereignty? In other words, does not their duty to their own country involve the right of insurrection against that of the conqueror? In order to arrive at a satisfactory answer to this question, it may be well to consider the more general right of revolution. For, although there is a broad and obvious distinction between an insurrection of a conquered city or province against the conqueror, and a revolution against an established government, yet it will be found, on examination, that both rest upon the same general principle-the relation of protection and allegiance, or the reciprocity of right and obligation.' quered § 16. In ancient times, when a city or district of country Implied obligawas conquered, the principal male inhabitants, capable of tions of resistance, were put to the sword. This was an exercise of the conthe extreme right of war, and justified on the ground of necessity, as the hostility and continued resistance of the inhabitants of the conquered place would otherwise prevent the conqueror from pursuing his military operations, for the purpose of securing the object of the war. But, in more civilised ages, when a place is taken by one of the belligerents, and the people lay down their arms, they are allowed to continue their ordinary peaceful occupations, without hindrance or restraint, but with the tacit or implied agreement, that they will oppose no further resistance to the power of the conqueror. They are virtually in the condition of prisoners of war on parole. No word of honour has been given, but it is implied; for only on that condition would the conqueror have relinquished the extreme right of war which he held over their lives, and have suffered them freely and peacefully to pursue their ordinary avocations. But this implied obli 1 Vattel, Droit des Gens, liv. iii. ch. viii. §§ 163-140; Wheaton, Elem. Int. Law, pt. iv. ch. ii. §§ 1, 2; Lieber, Political Ethics, b. iii. ch. i. § 1. Of the conqueror Right of revolu. tion gation does not bind those who remain in arms, or those who are retained as prisoners of war; their right of resistance continues. It is only those who enjoy the favours of the conqueror, by a relaxation of the right of war for their benefit, that are tacitly bound by the acceptance of such favours. If they decline the favour, they do not assume the obligation. Thus, a prisoner of war who refuses to give his parole may kill his guard and effect his escape, without any violation of the laws of war, or the obligations of honour and morality.' § 17. It must also be observed, that this tacit agreement is mutual and equally binding upon both parties. If the conquered are under the implied obligation to make no further resistance to the conqueror, it is only in consideration of the favours and privileges they are to derive from a relaxation of the extreme rights of war, by being allowed peacefully to pursue their ordinary occupations, without any further restraint than may be necessary for the safety of the conqueror. But if the conqueror should impose unusual and unnecessary restraints, should treat them with unmerited harshness, should destroy or confiscate their property, taking away the liberty of some and the lives of others,-such conduct on his part would release them from the obligation of non-resistance, and restore to them the rights of belligerents in actual war. Insurrections, in such cases, are justified by the law of necessity and the natural right of protecting life, liberty, and property.? § 18. The abstract question of the right of a people to take up arms against the authorities of an established government, has often been discussed by speculative writers. However opposed it may be to the general theory of political organisation and government, it can hardly be doubted that a revolution, in certain circumstances, would be justifiable. 1 Grotius, De Jure Bell. ac Pac., lib. iii. cap. viii.; Heffter, Droit International, §§ 119-124. Attacks by or with the presumed aid of the French inhabitants were never left unpunished by the Germans, in the war of 1870. At Mézières, near Nantes, half a village was consumed, because a parting shot was fired at some Bavarians. At Foucancourt a third of the houses were consumed, because the inhabitants were accused of being in collusion with some francs-tireurs, who had fired on the Germans at the entrance to the village, under cover of a thick fog. Vernon (on the road to Rouen), though an open town, was shelled by the Germans, because some gamekeepers had fired at them across the river, and the bridges being broken they could not recross. (Edwards, suprà, p. 437.) 2 Lieber, Pol. Ethics, b. iii. ch. i. § 1 ; b. iv. ch. ii. § 29; Abegg, Untersuchungen, p. 86; Heffter, Lehrbuch des Criminalrechtes, § 37. |