Private grants so made Transfer tory to neutrals can suspend or terminate the sovereignty of the original owner, he retains and may exercise his dominion over every portion of his territory, till actual conquest.' § 24. But suppose that the vanquished power, while the conqueror is actually taking forcible possession of a part of its territory, should send its agent with the retreating army, and, as the hostile force advances its standard from district to district, should deliver to individual subjects title-deeds of the territory at the moment it was about to fall into the possession of the advancing foe, with the evident intention to deprive him of the fruits of his conquest. Must the conqueror recognise such grants as valid; and if not, how shall he draw the line of distinction between them and other titles. issued by the same authority after the commencement of hostilities and before actual conquest? The want of good faith on the part of such grantees, as well as on the part of the grantor, would deprive them of the rights of bonâ fide purchasers. The distinction between such titles and those acquired in good faith and granted in good faith, and in the ordinary exercise of the rights of original sovereignty, is abundantly manifest. The fraudulent intent vitiates the entire transaction, and renders the titles mere nullities, and the conqueror, both during military occupation and after complete conquest by the cessation of hostilities, may refuse to recognise them, unless by some express treaty stipulation he has agreed to regard them as valid. But it must be observed that the same rule applies to grants made prior to the war if not bona fide, the conqueror is not bound to recognise them as valid. The fact of the conqueror being in possession of a part of the country, or even of its capital, produces no effect upon the part which remains in the possession of the former sovereign. This question has been discussed in another section.2 § 25. Again, suppose a belligerent should, after a declaraof terri- tion of war, and in anticipation that a particular portion of its territory will necessarily fall into the power of the other party, transfer it to a neutral for the manifest purpose of depriving his enemy of an opportunity to acquire it by con 1 Bouvier, Law Dictionary, verb. 'Conquest;' Phillimore, On Int. Law, vol. iii. § 223; Vattel, Droit des Gens, liv. ii. ch. xiii. § 197. 2 Mass v. Riddle and Co., 5 Cranch. R. 357. quest is the latter bound to recognise the validity of such transfer? Every sovereign and independent State has an undoubted right to alienate any part of its own territory, so long as it retains the ownership and dominion; and other sovereign States have an equal right to acquire such ownership and dominion by any of the modes recognised in international law. But a mere treaty cession of a province or territory by one power to another, can never operate, by itself, as an immediate and complete transfer of the ownership and dominion of the land, or of the allegiance of its inhabitants. To produce such effect, a solemn delivery of the possession by the ceding power, and an assumption of the dominion and government by that to which the cession is made, are indispensable. Until then, the territory continues to belong to the original sovereign owner, and its inhabitants remain the subjects of the power to which their allegiance was due prior to such treaty cession. Such ceded territory is, therefore, still liable to conquest as the territory of the enemy. But suppose the transfer be completed by a formal delivery of the possession to the neutral grantee, and the assumption by him of the dominion and government of the ceded territory? If the transaction is evidently malâ fide and the transfer is made with the manifest intent to defraud the belligerent of the rights of conquest, the pretended ownership of the neutral sovereign will not be recognised by the conqueror. Moreover, such an attempt on the part of a neutral to hold territory for the benefit of one of the parties to a war, and in fraud of the belligerent rights of the other party, is regarded as a violation of neutral duty, and as an act of hostility toward the party whose rights he thus attemps to defeat. Such transfers of territory by a belligerent to a neutral are mere nullities, for fraud vitiates the transactions of States as well as of individuals. But the general right of neutrals to purchase the property of belligerents, flagrante bello, if the sale be bona fide, is universally conceded. The character of each transaction must be decided upon its own merits, and the determination of the question belongs to the political power of the State. Although the transfer may have been made with the evident intent to defraud the belligerent of the rights to which he is entitled by the laws of war, nevertheless policy may induce him to treat it as a bona fide transaction, rather Effect of military оссира tion on incorporeal rights than to involve himself in hostilities with the pretended purchaser.' § 26. We have next to consider the effect of military occupation upon incorporeal things and rights, as debts, &c. Of these it has been justly remarked: 'They cannot in themselves be the subject of actual possession; they are not external things on which the conqueror can lay his armed hand. They are rights which exist in mental apprehension as connected with a given subject to which they are attached, and with a material object upon which they can be exercised. Therefore the Roman law philosophically said, ipsum jus obligationis incorporale est, and again, nec possideri videtur jus incorporale. It is, therefore, only by the actual possession of corporeal things to which the incorporeal right attaches that the conqueror can be considered as occupying the latter; but, if he possess himself of the former, he is considered to be in possession of both. A distinction, however, is made between incorporeal rights attached to a corporeal thing and those attached to a person. Man, it is said, as the subject of rights, cannot be compared to a thing; his rights do not, so to speak, hang upon him as they hang upon a piece of land; they rather proceed from him; they constitute his intellectual or spiritual property, which cannot, by the agency of what Grotius calls a nudum pactum, be separated, without his consent, from his person. It follows, therefore, that when a person to whom certain rights belong is captured by an enemy, such capture gives to the captor only the corporeal and actual things in the possession of the prisoner; the possession of the creditor's person does not give a jus exigendi of his debts. It therefore follows, that incorporeal things, such as debts, do not accrue to the conqueror as a consequence of his possession of the person who is entitled to them. The rule was somewhat different when prisoners of war were made slaves. But may not debts accrue to the conqueror from his possession of the instruments or documents which contain the legal statement of the obligation of the obligor, as promissory notes, mortgages, &c.? We have shown in a preceding chapter that such documents are only evidences of debts, but not the debts them 1 Heffter, Droit International, § 131; Duer, On Insurance, vol. i. pp. 437, 438; the 'Fama,' 5 Rob, 97; the 'Johanna Emelia,' 29 Eng. Law and Equity, R, 562; Cushing, Opinions of Attys.-Gen., vol. vi. p. 638. selves, and that the mere fact of their possession does not of itself authorise the possessor to exact payment from the promisor. The original creditor may be entitled to recover his debt though these instruments be lost or destroyed.' to the ment § 27. We will next consider the effect of a military occu- Debts due pation of a State upon debts owing to its government. Does displaced such conquest of the State carry with it the incorporeal rights governof the State, such as debts, &c. ? In other words, do these rights so attach themselves to the territory that the military possession of the latter carries with it the right to possess the former? There are two distinct cases here to be considered : first, where the imperium of the conqueror is established over the whole State (victoria universalis); and second, where it is established over only a part, as the capital, a province, or a colony (victoria particularis). As has already been stated, all rights of military occupation arise from actual possession, and not from constructive conquests; they are de facto, and not de jure rights. Hence, by a conquest of part of a country, the government of that country, or the State, is not in the possession of the conqueror, and he, therefore, cannot claim the incorporeal rights which attach to the whole country as a State. But, by the military possession of a part, he will acquire the same claim to the incorporeal rights which attach to that part, as he would, by the military occupation of the whole, acquire to those which attach to the whole. We must also distinguish with respect to the situations of the debts, or rather the locality of the debtors from whom they are owing, whether in the conquered country, in that of the conqueror, or in that of a neutral. If situated in the conquered territory, or in that of the conqueror, there is no doubt but that the conqueror may, by the rights of military occupation, enforce the collection of debts actually due to the displaced government, for the de facto government has, in this respect, all the powers of that which preceded it. But if situated in a neutral State, the power of the conqueror, being derived from force. alone, does not reach them, and he cannot enforce payment. It rests with the neutral to decide whether he will, or will not, 1 Digests, i. t. viii. 1; xli. t. iii. 4, § 27; xli. t. ii. 3; Brunleyer, Dis. de Occupatione Bellica, Argent, 1702; Pfeiffer, Das Recht der Kriegseroberung, &c., pp. 44-60; Phillimore, On Int. Law, vol. iii. §§ 545 548; Burlamaqui, Droit de la Nat. et des Gens, tome v. pt. iv. ch. iii. § 14. If former government be restored recognise the demand as a legal one, or, in other words, whether he will regard the government of military occupation as sufficiently permanent to be entitled to the rights of the original creditor. He owes the debt, and the only question with him. is, who is entitled to receive it? In deciding this question he will necessarily be determined by the particular circumstances of the case, and will probably delay his action till all serious doubts are removed.1 § 28. If the debt, from whomsoever owing, be paid to the government of military occupation, and the conquest is afterward made complete, no question as to the legality of the payment can subsequently arise. But should the former sovereign or government, after a lapse of time, be restored, and the debtor receive his discharge, may the original creditor demand a second payment? The burthen of proof, in such a case, lies upon the debtor; and in order to render the payment valid, and make it operate as a complete discharge of the debt, he must show: 1st, that the sum was actually paid, for an acquittance or a receipt, without actual payment, is no bar to the demand of the original creditor; 2nd, that the debt was actually due at the time when it was paid; 3rd, that the payment has not been delayed by a mora on the part of the debtor, which had thus operated to defeat the claim of the original creditor. If the debtor be a citizen of the conquered country, or a subject of the conqueror, he must also show: 4th, that the payment was compulsory-the effect of a vis major upon the debtor-not necessarily extorted by the use of physical force, but paid under an order, the disobedience of which was threatened with punishment. If the debtor be a neutral or stranger, he cannot plead compulsion as a justification of his making payment to the conqueror, but he must also show: 5th, that the constitutional law of the State recognised the payment, as made by him, to be valid; in other words, that it was made in good faith, and to the de facto authority authorised by the fundamental laws to receive it. It is not a necessary condition, but it is a substantive defence against the original creditor, that the money has been applied to his benefit; thus, in the case of a State 1 Réal, Science du Gouvernement, tome v. ch. ii. § 5; Wolfius, Jus Gentium, cap. vii. §§ 833, 864; Vattel, Droit des Gens, liv. iii. ch. xiv $213; Lauterbach, Colleg. Pandect., lib. xlix. t. xv. § 7. |