territory.

With respect to the cession of places or territories Cession of by a treaty of peace, though the treaty operates from the making of it, it is a principle of public law, that the national character of the place agreed to be surrendered by treaty, continues as it was under the character of the ceding country, until it be actually transferred. Full sovereignty cannot be held to have passed by the mere words of the treaty without actual delivery. To complete the right of property, the right to the thing and the possession of the thing must be united. This is a necessary principle in the law of property in all systems of jurisprudence. There must be both the jus in rem and the jus in re, according to the distinction of the civilians, and which Barbeyrac (a) says they borrowed from the canon law. This general law of property applies to the right of territory, no less than to other rights. The practice of nations *178 has been conformable to this principle, and the conventional law of nations is full of instances of this kind, and several of them were stated by Sir Wm. Scott, in the opinion which he gave in the case of The Fama. (b)

tive to the fisheries, was a fundamental and permanent article, securing a primary right, not annulled, though the exercise of the right was interrupted by the war of 1812; and that the right remained in full force, after the termination of the war, notwithstanding it was not noticed in the treaty of Ghent. The British commissioners, on the other hand, alleged, that the war of 1812 cancelled the provision, and, not being renewed by the subsequent treaty of peace, the right was extinguished. The two nations at last agreed to the convention of the 20th of October, 1818, modifying and settling the question as to the fisheries, without yielding, on either side, their construction of the operation of the war of 1812, upon the treaty of 1783. Rush's Memoranda, pp. 354-368. See the Diplomatic Correspondence between Mr. Adams and Lord Bathurst, in 1815. In this correspondence, the British negotiator admitted that the acknowledgement of a right or title in a treaty of peace, was, in its own nature, of perpetual obligation. The cession of a right, as that of boundary lines and places, for instance, would seem to fall within the same principle. Such were the treaties of Munster, 1648, and of Utrecht, 1713, which, after long and exhausting wars, settled the rights of the great European powers on a solid and permanent foundation, and are still deemed to be in vigor, and intimately connected with the settlement of Europe.

(a) Puff. par Barbeyrac, liv. iv. c. 9, sec. 8, note 2.

(b) 5 Rob. Rep. 106. It is a settled principle, in the law and usage of nations, that the inhabitants of a conquered territory change their allegiance, and their relation to their former sovereign is dissolved; but their relations to each other, and their rights of property, not taken from them by orders of the conqueror, remained undisturbed. The cession or conquest of a territory does not affect the rights of property.

The release of a territory from the dominion and sovereignty of the country, if that cession be the result of coercion or con

Vattel, b. 3, c. 13, sec. 200. The United States v. Percheman, 7 Peters's U. S. Rep. 51. Mitchel v. The United States, 9 Ibid. 711. Strother v. Lucas, 12 Peters, 410, 438. The laws, usages, and municipal regulations in force at the time of the conquest or session, remain in force, until changed by the new sovereign. Calvin's case, 7 Co. 17. Campbell v. Hall, Cowp. R. 209. 9 Peters's U. S. Rep. 711, 734, 748, 749. Strother v. Lucas, 12 Peters, 410. There is no doubt of the power of the sovereign to change the laws of a conquered or ceded country, unless restrained by the capitulation or treaty of cession. In the case of the Canal Appraisers v. The People, in 17 Wendell's R. 587, Chancellor Walworth declared, that in the case of a country acquired by conquest, no formal act of legislation is necessary to change the law; the mere will of the conqueror is sufficient. This is the case in governments where the conqueror is in possession of the legislative as well as the executive power; and until a nation or territory is wholly subdued, the conqueror is only entitled, by the usage of nations, to hold it as a temporary possession, by military occupation, until the final issue of the conquest is settled by treaty, or by the competent constitutional power. The principle of national law, as declared by the courts of the United States, is, that conquest does not give the conqueror plenum dominium et utile. A temporary right of possession and government is only acquired, unless the treaty of peace settles the question otherwise, or there be an absolute abandonment of the territory by the former sovereign, or an irretrievable subjection to the conqueror. United States v. Hayward, 2 Gallison, 486. Clark v. United States, 3 Wash. C. C. 104. The rule is different when a country is claimed by the right of discovery and occupancy, and not by right of conquest or cession. In the former case, the discoverers and new occupants carry with them all the general laws of the mother country applicable to their new situation as colonies, and they become, ipso facto, the law of the country. Such was the case with the United States, when they were first colonized by Great Britain, and this was the case, says Chancellor Walworth, with New York, when conquered from the Dutch in 1644; for the English held it, though acquired by conquest from the Dutch, not by that title merely, but by the prior right of discovery. But if he was in error on that point, yet, when the English acquired possession of New York by force, in 1664, the charter granted in that year to the Duke of York contained an explicit declaration of the king's will, that the laws of England should be the estab lished laws of the province, and this put an end to the operation of the Roman Dutch laws imported from Holland. The illustrations above alluded to, of the sovereign power of the conqueror over the laws of the conquered countries, appears in the case of the northern barbarians who overran the south of Europe during the 5th and 6th centuries. They neither adopted their own laws entirely, nor retained those of the conquered countries to their full extent. The Roman provincials were governed between themselves, as to their possessions and personal rights, by the Roman law; the Salian Franks, by the Salic law; the Franks of the Rhine, by the Riparian law; the Alemans and Swabians, by the Alemanic law; and the Lombards, by their own law. (Savigny's Hist. of the Roman Law, vol. i. and see infra, vol. iii. 491.) So the Mahomedan conquerors of Hindostan introduced their own law so far only as it affected the followers of Mahomet, leaving the conquered Hindoos to enjoy their own laws as between themselves. There is, therefore, now in India, one law for Europeans and their descendants, another for the Hindoos, and another for the Mahom

quest, does not impose any obligation upon the government to indemnify those who may suffer a loss of property by the cession. The annals of New York furnish a strong illustration of this position. The territory composing the state of Vermont belonged to this state; and it separated from it, and erected itself into an independent state, without the consent, and against the will of the government of New York. The latter continued for many years to object to the separation, and to discover the strongest disposition to reclaim by force the allegiance of the inhabitants of that state. But they were unable to do it; and it was a case of a revolution effected by force, analogous to that which was then in action between this country and Great Britain. And when New York found itself under the necessity of acknowledging the independence of Vermont, a question arose before the legislature, whether they were bound in duty to make compensation to individual citizens whose property would be sacrificed by the event, because their titles to land lying within the jurisdiction of Vermont, and derived from New York, would be disregarded by the government of that state. The claimants were heard at the bar of the house of assembly, by counsel; in 1787, and it was contended on their behalf, that the state was bound, upon the principles of the social compact, to protect and defend the rights and property of all its members; and that whenever it became necessary, upon grounds of public expediency and policy, to withdraw the protection of government * from the property of any *179 of its citizens, without actually making the utmost efforts to reclaim the jurisdiction of the country, the state was bound to make compensation for the loss. In answer to this argument, it was stated that the independence of Vermont was an act of force beyond the power of this state to control, and equivalent to a conquest of that territory, and the state had not the competent ability to recover, by force of arms, their sovereignty over it, and it would have been folly and ruin to have

edans; and these different laws have been adopted in India by the will of the English sovereign, without any parliamentary authority. The conquest of Gibraltar, Trinidad, Ceylon, the Cape of Good Hope, Louisiana, &c., all show that the old laws remain, or the laws of the conquering nation, in whole or in part, are substituted, at the mere will and pleasure of the conqueror.

attempted it. All pacific means had been tried without success; and as the state was compelled to yield to a case of necessity, it had discharged its duty; and it was not required, upon any of the doctrines of public law, or principles of political or moral obligation, to indemnify the sufferers. The cases in which compensation had been made for losses consequent upon revolutions in government, were peculiar and gratuitous, and rested entirely on benevolence, and were given from motives of policy, or as a reward for extraordinary acts of loyalty and exertion. No government can be supposed to be able, consistently with the welfare of the whole community, and it is, therefore, not required, to assume the burden of losses produced by conquest, or the violent dismemberment of the state. It would be incompatible with the fundamental principles of the social compact.

This was the doctrine which prevailed; and when the act of July 14th, 1789, was passed, authorizing commissioners to declare the consent of the state to the independence of Vermont, it was expressly declared, that the act was not to be construed to give any person claiming lands in Vermont, under title from this state, any right to any compensation whatsoever from New York.

LECTURE IX.

OF OFFENCES AGAINST THE LAW OF NATIONS.

THE violation of a treaty of peace, or other national compact, is a violation of the law of nations, for it is a breach of public faith. (a) Nor is it to be understood that the law of nations is a code of mere elementary speculation, without any efficient sanction. It has a real and propitious influence on the fortunes of the human race. It is a code of present, active, durable and binding obligation. As its great fundamental principles are founded in the maxims of eternal truth, in the immutable law of moral obligation, and in the suggestions of an enlightened public interest, they maintain a steady influence, notwithstanding the occasional violence by which that influence may be disturbed. The law of nations is placed under the protection of public opinion. It is enforced by the censures of the press, and by the moral influences of those great masters of public law, who are consulted by all nations as oracles of wisdom; and who have attained, by the mere force of written reason, the majestic character, and almost the authority, of universal lawgivers, controlling by their writings the conduct of rulers, and laying down precepts for the government of mankind. No nation can violate public law, without being subjected to the penal consequence of reproach and disgrace, and without incurring the hazard of punishment, to be inflicted in open and solemn war by the injured party. The law of nations is like- *182 wise enforced by the sanctions of municipal law. It is, says Blackstone, (b) adopted in its full extent by the common law of England; and whenever any question arises which is

(a) Vattel, b. 2, c. 15, sec. 221. Resolution of Congress of November 23d, 1781. (b) Comm. vol. iv. 67.