But in what circumstances? Here opinions diverge, and doubts and difficulties increase as we advance, till all hope of a satisfactory conclusion is lost. Abandoning, then, all chance of deciding what constitutes justifiable causes of civil revolutions, we must judge of them by their effects. If we turn to history, we find that they form some of its brightest and some of its darkest pages. Sometimes nations have been benefited by them, and sometimes they have proved the utter ruin of whole States. While, therefore, the right of revolution is opposed by the jurisconsult on technical grounds, and admitted by the philosopher on the ground of necessity, all agree that such a terrible rupture of the framework of civil society should be resorted to only where all other means of redress have failed. 'Governments, long established, should not be changed for light and transient causes. . . . But when a long train of abuses and usurpations, pursuing invariably the same object, evinces a design to reduce them under an absolute despotism, it is their right, it is their duty, to throw off such government, and to provide new guards for their future security.'1 insurrec tions § 19. The right of insurrection in war, therefore, rests upon Military the same principle as the right of revolution against an established government. The general duty of obedience to the laws, results from the protection they afford to the lives and property of the citizens and subjects; but when a civil government fails to afford that protection, and obstinately persists in a course injurious to the people, and when the probable evils accompanying the change are not greater than the blessings to be obtained by it, revolution becomes a duty as well as a right. So, also, with respect to the military government of occupation established by the conqueror; its course may be so injurious to the conquered people as to render submission intolerable, and to justify them in resorting to the necessary but cruel alternative of insurrection. The principle is plain and clear, but there is great difficulty in its application to particular cases. The historians of the conquered power almost invariably justify such insurrections on the score of patriotism, while those of the opposite party as uniformly Vattel, Droit des Gens, liv. iii. ch. xviii. §§ 290, 291; Taylor, On Revolutions, passim; Burlamaqui, Droit de la Nat. et des Gens, tome v. pt. ii. ch. vi.; Declaration of American Independence; Encyclopædia Americana, verb. Insurrection.' 1 Punishing insurrec tions condemn them as in violation of the laws of war, and the implied obligation of submission; as, in revolutions, success or failure usually gives to a military insurrection the popular character of patriotic resistance, or of a cruel and unjustifiable sacrifice of human life.' § 20. As the conquered inhabitants, in a military insurrecmilitary tion, throw off all implied obligations of submission to the authority of the conqueror, and resort to the extreme rights of war, it follows that the conqueror may, in such a case, resume towards the insurgent enemy the severe and extreme rights of the same code over life and property. The insurgents taken in arms, as well as their instigators, may therefore be put to death, and their property confiscated or destroyed. But this extreme right of the conqueror over military insurgents is limited by the laws of humanity, and he is not justified if he resort to cruel and unnecessary punishments. Hence, in modern wars, only the leaders and instigators of a military insurrection are usually punished with death, while the common people who are engaged in it are more leniently dealt with. Sometimes heavy contributions are levied by way of punishment upon the place or district of country where the insurrection occurs. This practice is justified on the ground that the instigators and leaders, being usually the originators of the insurrection, should suffer the punishment due to the offence, and that a community is to be held responsible for the acts of its members where the individual offenders cannot be otherwise reached. But as there is no legal tribunal to determine upon the justice of a war, neither is there one to determine upon the cause of a military insurrection, or the justice of the punishment imposed upon the insurgents. But there is a tribunal of public opinion to which all are subject.2 Historical § 21. History abounds in examples of insurrection, and examples of punishments inflicted by the conqueror upon insurgents. Without recurring to the wars of the Middle Ages, of the Reformation, of Charles V., Louis XIV., and Frederick II., before the principles of international law were fully established or generally recognised, we find numerous examples in the wars of Buonaparte, in Europe, and of the English, in India. 1 Abegg, Untersuchungen, &c., p. 86; Lieber, Political Ethics, b. iv. ch. iii. 28; Alison, Hist. of Europe, vol. i. pp. 405, 468. 2 Vide ante, ch. xx. and xxi.; Vattel, Droit des Gens, liv. iii. ch. xviii. $$ 290, 291; Berbeyrac, Note sur Puffendorf, tome ii. p. 474. A few illustrations drawn from the wars of Napoleon will suffice for our purpose. In the Italian campaign of 1796, the inhabitants of Pavia rose against the French troops, and made them prisoners. Lannes routed a portion of the insurgents, and burnt the village of Brescia; but, as this severe example failed in producing intimidation, Napoleon himself returned to the revolted city, shot the leaders of the insurrection, and delivered up the place to plunder. This terrible example,' says the English historian, 'crushed the insurrection over the whole of Lombardy.' In the campaign of 1797, a Venetian insurrection was organised on the Adige; four hundred wounded French in the hospital of Verona were killed in cold blood, and the French garrison of Fort Chiusa, which capitulated for want of provisions, was inhumanly put to death. The insurrection was immediately suppressed, its authors shot, and a contribution of one million one hundred thousand francs levied on the city. In the Peninsular war many of the Spaniards and Portuguese, after submitting to the French, took advantage of every opportunity to rise upon a small garrison.or detachment, and to murder all stragglers. They were punished with severity. So many complaints,' says Napier, 'were made of the cruelty committed by Massena's army while at Santarem, that Lord Wellington had some thoughts of reprisals; but having first caused strict enquiry to be made, it was discovered that, in most cases, the ordenanças, after having submitted to the French, and received their protection, took advantage of it to destroy the stragglers and small detachments, and the cruelty complained of was only the infliction of legitimate punishment for such conduct; the projected retaliation was therefore changed for an injunction to the ordenanças to cease from such a warfare.'' tions § 22. Military occupation, as has already been stated, sus- Alienapends the sovereignty and dominion of the former owner so of terrilong as the conquered territory remains in the possession of tory occupied by an the conqueror, or in that of his allies. The temporary domienemy nion of the latter completely excludes, for the time being, the original dominion of the former. The vanquished sovereign, therefore, has no power, as against the conqueror, to alienate Napier, Hist. Peninsular War, vol. ii. p. 451; Jomini, Des Guerres de la Révolution, ch. lxxiii.; Thiers, Révolution Française, tome viii. ch. iv.; tome ix. ch. ii.; Alison, Hist. of Europe, vol. i. pp. 405, 468; Napoleon, Mémoires, tome iii. p. 195; tome iv. p. 149. Aliena tions made in tion of conquest any part of his own territory which may be at the time in the possession of the latter. If the conquest be completed, or confirmed, the title passes to the conqueror precisely as it was when the latter first acquired the possession. No other party can claim any rights over it arising from any conveyance or transfer from the vanquished while it was in the conqueror's possession. But, if it be surrendered up to the former owner, or recovered by him, such conveyances would become valid, for the alienor would not be permitted to deny his own act. It is a principle of jurisprudence that the jus ad rem (the possession of) and the jus in re (the right to) the thing alienated are necessary in the grantor in order to constitute a complete title. During military occupation these exist together neither in the original owner nor in the conqueror. The title conveyed by either is therefore imperfect; if, by the former, it is made good by a restoration of the conquest; and if, by the latter, it is completed by a confirmation of the conquest, whether by treaty or by any other mode recognised in international law.' § 23. But if war be declared and actually commenced, and one of the belligerents has made manifest his intention anticipa to effect the permanent acquisition of a particular portion of the territory of the other (which intention is afterwards accomplished by actual conquest), and after the declaration of such intention, and while preparation is being made to carry it out, the original owner alienates that territory, in whole or in part, is the conqueror bound to regard such alienation as a valid transfer, or may he disregard it in toto, as being an illegal attempt to deprive him of the rights of war? In other words, did not his avowed determination to effect the permanent acquisition of such territory, his preparation to make the conquest, and his ability to effect it, as proved by the result, give to the conqueror some incohate or inceptive right to the territory subsequently conquered; or did they not at least suspend the right of the original owner to alienate it? In order to obtain a satisfactory solution of this question, we will recur to fundamental principles. The rights of conquest are derived from force alone. They begin with possession, and end with the loss of possession. The 1 The 'Flotina,' 1 Dod. R., 450; the 'Fama,' 5 Rob., 97; Grotius, De Jure Bell. ac Pac., lib. ii. ch. vi. § 1; Puffendorf, De Jure Nat. et Gent.. lib. iv. ch. ix. 8. possession is acquired by force, either from its actual exercise, or from the intimidation it produces. There can be no antecedent claim or title, from which any right of possession is derived for if so, it would not be a conquest. The assertion and enforcement of a right to possess a particular territory do not constitute a conquest of that territory. By the term conquest, we understand the forcible acquisition of territory admitted to belong to the enemy. It expresses, not a right, but a fact, from which rights are derived. Until the fact of conquest occurs, there can be no rights of conquest. A title acquired by a conquest cannot, therefore, relate back to a period anterior to the conquest. That would involve a contradiction of terms. The title of the original owner prior to the conquest is, by the very nature of the case, admitted to be valid. His rights are, therefore, suspended by force alone. If that force be overcome, and the original owner resumes his possession, his rights revive, and are deemed to have been uninterrupted. It, therefore, cannot be said, that the original owner loses any of his rights of sovereignty, or that the conqueror acquires any rights whatever, in the conquered territory, anterior to actual conquest. The former are suspended by, and the latter derived from, the fact of conquest, and, in order to determine the date of such suspension or acquisition of rights, we must refer to the fact of conquest, and not to any prior intention or determination of the conqueror. If these propositions be true, it follows that grants to individuals made, after the commencement of hostilities, by the original sovereign of lands lying in territory, of which he still retains the dominion and ownership, rest upon the same foundation as those made before the war. If the title thus conveyed is, by municipal law, complete and perfect, the land becomes private property, and must be so regarded by the conqueror. If it be incohate and imperfect, but bonâ fide and equitable, it nevertheless constitutes 'property' in the sense in which that term is used in international law. It is true that, by the extreme rights of war, the conqueror may disregard individual ownership, and take private property and convert it to his own use. But such a proceeding, as has already been said, is contrary to modern practice, and cannot be resorted to, except in particular cases and under peculiar circumstances. As neither actual hostilities, nor a formal declaration of war, |