CONQUEST

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CONQUEST. By CONQUEst is now generally understood the right over property acquired in war, or by superior force. In the feudal law, it had a somewhat different sensb, meaning any means of acquir ing an estate out of the common course of inheritance. (2 Bl. Comm, 243.) The right of conquest has been deduced as an inference of natural law, from the right to weaken our enemy, to compel him to make compensation for injuries, to force him to an equitable peace, and to deter or prevent him from future injuries. It presupposes a just war, and a right of appropriation growing out of it. It is now generally admitted as a part of the law of nations. If a war be unjust, it is plain that it can receive no sanction from the law of nature or the law of nations; and, therefore, no just acquisitions can arise from it. But who is to decide whether the war be just or unjust? If neutral nations attempt to decide the question without consent, they draw themselves into the quarrel, and may be involved in the war. The parties who wage war never avow that they are acting unjustly, and will not admit any superior, who has a right to decide such questions for them* Nations claim a perfect equality and independence, and therefore will not submit to the decision of any other sovereign. The only answer, in a practical view, that can be given to the question is, that every free and sovereign state must decide for itself whether it is carrying on a just war, and what are the duties required of it in such a war. With a view to public safety and repose, neutral nations are understood to be bound to act upon certain rules, which may be called the voluntary law of nations. Among these rules the following are unir versally admitted :1. that every regular war, as to its effects, is to be deemed, by neutral nations, just on both sides ; 2. that whatever is permitted to the one to do, in virtue of the state of war, is also permitted to the other; 3. that the acquisitions made by each belligerent in the war are to be held lawful, and to be respected; 4. that neutral nations are bound to impartiality in their conduct to each of the belligerents. Many questions are discussed by jurists, in respect to the rights of conquest, some of which are of great nicety and subtilty. To enumerate them, without adverting to the various shades of opinion, would itself occupy a large discourse. We shall content ourselves, therefore, by enumerating a few only of the principles, which, by the benignity of religion and the enlarged influence of knowledge and public opinion, are now generally received among civilized nations. Conquest may re"pect either persons or things. It may respect movable or immovable property. It may apply to a whole nation, or only to a sin gle town or province. It may be temporary or permanent.1. Conquest over persons. Persons captured in war are called prisoners of war, especially if they are taken in arms. If they are included in a mere surrender of territory, without being in arms, they are commonly deemed subjects, for the time being, upon their submission. But the conqueror may, if he chooses, consider all his enemies who surrender as prisoners of war, though it would be deemed a harsh and vindictive course.The conqueror has no right to inflict upon prisoners of war any unnecessary injury or violence. He has no right to take away then* lives, or subject them to cruel punishments. Formerly, they were sometimes removed into other countries, or reduced to a state of slavery for life. But these would now be thought such extreme exercises of power, as no Christian sovereign ought to authorize. Christian sovereigns now usually keep prisoners of war under guard, in suitable depots, until they are ransomed, or exchanged by cartel, or restored upon the return of peace. Upon their return to their own country, all such prisoners are, by the law of postliminy, as it is called, considered as redintegrated to all their original rights and privileges. Officers in the public service are often released upon their parole of honor, by which they promise not to serve again in the war, until they are regularly exchanged; and, if they remain in the countiy of the conqueror, they are required to keep within certain limits, and report themselves at stated seasons to some proper officers. If they break their parole, they are universally esteemed infamous, and, if again taken in war, may be treated with great severity for their conduct.Where persons are not found in arms, but are included as inhabitants of a town or province which has surrendered, they are treated generally as subjects. The original allegiance to their own government is suspended, and they come under the implied obligation to the conqueror, to violate none of his rights, to submit to his orders, and to demean themselves, for the time, as faithful subjects. Under such circumstances, the conqueror generally leaves them in possession of their property, and exercises his power with moderation, usually quartering his troops upon them, levying taxes, and punishing them only for rebellious or traitorous conduct.Where the conquest is of a whole state (as, indeed, if? true also of a town or small territory), the conqueror has authority either to rule the inhabitants by their former laws, or to create a new form of government; or perhaps, in an extreme case, to dissolve their society. Where the conquest is temporary, while war rages, it is rare for the conqueror to change the laws. But, where the conquest is permanent, or is recognised by a treaty of peace, the conqueror usually exercises his sovereign power to annul or vary the laws, or form of government, according to his own pleasure. It is not usual, in modern times, to change the fundamental laws of a country, in cases of conquest, unless under very pressing circumstances. But the sovereign power of the conqueror so to do is conceded by the law of nations.2. Conquest of property. This may be of movable or immovable property. In the former case, it is commonly called plunder, or booty, or prize of war, according to the circumstances under which it is taken. In the latter case, it merely follows from the right of occupation and superior force; and, therefore, the right of property continues no longer than such occupation by superior force. The original proprietor is reinstated in his rights the moment the conquest is abandoned.As the law of nations allows the conqueror, in its utmost strictness, to appropriate to himself all the property of his enemies, as soon as it is within his reach by conquest, the extent to which he shall exercise this harsh power must depend upon his own moderation and sense of justice. Neutral nations always respect the title conferred by conquest wrhen it is already established; and enemies respect it only so far as it suits their own convenience and policy, when in the hands of enemies. But, when acquired by a neutral, they also respect the title; for that which, by the law of nations, is lawfully acquired by an enemy, may be lawfully transferred to a neutral, and thus the latter may acquire a valid title. There is a distinction, in this respect, between movable and immovable property. No conquest of the latter is esteemed absolute, so as to divest the original proprietor, unless confirmed by a treaty of peace, or an entire submission and extinction of the state to which it belongs, or by an acquiescence so long, that it amounts to an abandonment of all prior right and title. But movable property, which is capable of being conveyed from one countiy to another, becomes the absolute right of the conquerors from the moment of conquest and complete possession. Movable property, captured in the heat of battle, or as an immediate result of victory, by an armyon land, is often called booty or plunder. It belongs to the conquering sovereign, and portions of it are usually distributed among the officers and soldiers. It seldom happens now, that any place which is captured is given up to indiscriminate plunder. Private property is, for the most part, respected; but public property is appropriated by the sovereign to such purposes as he pleases. All property captured in war miy be justly denominated prize. But, in a more limited sense, that is called prize property, which is acquired by capture and surrender upon land or upon the ocean, and is disposed of by some formal proceedings, under the sovereign authority. Thus, in England and America, all property captured on the ocean, by public or private armed ships, is required to be brought into port, and condemned as prize by the lawful prize tribunals, before the captors acquire any rights under the capture; and, in cases of joint captures, by land and naval forces, a similar proceeding is usually had.A question is often discussed, at what time movable property captured is so completely in the power of the captors, as to give them a perfect title to it. Writers on the law of nations differ on the point; and the practice of nations also differs. Some writers hold that it should be carried to a place of safety ; as, for instance, if captured at sea, that it should be carried into port (infra prcemlia) before the title of the original proprietor is divested. Others contend that it is sufficient that the property has remained in possession of the captors 24 hours. But, at present, in England and America at least, a sentence of condemnation is considered indispensable to divest the right of the original proprietor in movable property. Nevertheless, if a treaty of peace takes place between the belligerents, and no contrary provision is made, the actual state of things, in relation to captures, is deemed rightful; and neither can reclaim any thing of the other on account of such captures, whether there has been a condemnation or not.This question, with regard to the title to movable property, chiefly arises in cases pf recapture, or other cases where the jus postliminii, or right upon repossession or return of the property to the country of the original proprietor, occurs.3. Conquest of immovable property. It has been already observed that, of such property, the title by conquest is not deemed perfect or complete, unless recognised by a treaty of peace, or cession, by an extinction of the state, or by a long acquiescence, amouutVOL. in. 38 ing to an admission of right. The conqueror usually appropriates the public domains to himself, and generally leaves private property in possession of the original proprietors.Whenever there is a reconquest or reoccupation by the original proprietors, their original right returns by the jus postliminii; and no intervening title, unless confirmed by treaty, or by some other mode, as above stated, is recognised, although it may have passed into the hands of a neutral. Where a conquest is temporary, it gives validity to titles to immovable property only while it lasts. It merely suspends the rights of the former proprietors at the conqueror's choice; but these rights revive as soon as the conquest is abandoned. The same thing is true as to the laws of the conquered territory, whether it be a town, province or state. The conqueror may, if he chooses, suspend all the common laws which regulate persons or property, during his occupation, and impose new ones; but the old laws revive as soon as the conquest is surrendered or abandoned. Acts, however, done during the possession by the conqueror, according to his laws, are considered as rightful for many purposes. Thus, if goods are imported into a conquered territory, with the consent of the conqueror they are not liable to forfeiture afterwards, although prohibited by the laws of the country antecedent to the conquest. But the prohibitory laws revive, as soon as the territory is regained, by their own force, proprio vigore.In general, the laws of a conquered territory remain in full force until they are altered by the conqueror. As soon as the conqueror receives the parties under his protection by capitulation or otherwise, they become his subjects ; and they are entitled to have their persons and property secure from violation.The question is often asked, To whom do things taken in war belong ? to the captors, or to their sovereign ? The true answer is, To the sovereign. Whatever is acquired in war is acquired by the state; and the manner in which the property so acquired shall be disposed of or distributed depends upon the orders of the state. In cases of prizes upon the ocean, it is usual for the state to distribute the property captured, after condemnation, as a bounty among the captors.