This concession is made in the interests of humanity, to prevent the cruelties which would inevitably follow mutual reprisals and retaliations. But belligerent rights, as the terms import, are rights which exist only during war; and to what extent they shall be accorded to insurgents depends upon the considerations of justice, humanity, and policy controlling the government. The rule stated by Vattel, that the justice of the cause between two enemies being by the law of nations reputed to be equal, whatsoever is permitted to the one in virtue of war is also permitted to the other, applies only to cases of regular war between independent nations. It has no application to the case of a war between an established government and insurgents seeking to withdraw themselves from its jurisdiction or to overthrow its authority. Halleck's Inter. Law, c. 14, sect. 9. The concession made to the Confederate government in its military character was shown in the treatment of captives as prisoners of war, the exchange of prisoners, the recognition of flags of truce, the release of officers on parole, and other arrangements having a tendency to mitigate the evils of the contest. The concession placed its soldiers and military officers in its service on the footing of those engaged in lawful war, and exempted them from liability for acts of legitimate warfare. But it conferred no further immunity or any other rights. It in no respect condoned acts against the government not committed by armed force in the military service of the rebellious organization; it sanctioned no hostile legislation; it gave validity to no contracts for military stores; and it impaired in no respect the rights of loyal citizens as they had existed at the commencement of hostilities. Parties residing in the insurrectionary territory, having property in their possession as trustees or bailees of loyal citizens, may in some instances have had such property taken from them by force; and in that event they may perhaps be released from liability. Their release will depend upon the same principles which control in ordinary cases of violence by an unlawful combination too powerful to be successfully resisted. "But, debts not being tangible things subject to physical seizure and removal, the debtors can not claim release from liability to their creditors by reason of the coerced payment of equivalent sums to an unlawful combination. The debts can only be satisfied when paid to the creditors to whom they are due, or to others by direction of lawful authority. Any sum which the unlawful combination may have compelled the debtors to pay to its agents on account of debts to loyal citizens can not have any effect upon their obligations; they remain subsisting and unimpaired. The concession of belligerent rights to the rebellious organization yielded nothing to its pretensions of legality. If it had succeeded in its contest, it would have protected the debtor from further claim for the debt; but, as it failed, the creditor may have recourse to the courts of the country as prior to the rebel lion. It would be a strange thing if the nation, after succeeding in suppressing the rebellion and reestablishing its authority over the insurrectionary district, should, by any of its tribunals, recognize as valid the attempt of the rebellious organization to confiscate a debt due to a loyal citizen as a penalty for his loyalty." Williams e. Bruffy (1877), 96 U. S. 176, 186–188. XI. CONQUEST. § 1156. "Conquest gives only an inchoate right, which does not become perfect till confirmed by the treaty of peace, and by a renunciation or abandonment by the former proprietor." Opinion of Mr. Jefferson, Sec. of State, to the President, Mar. 18, 1792, As to the question of conquest, see the case of the Georgiana and the In the International American conference at Washington, in 18891890, an interesting discussion took place of the subject of conquest, which bore, in its final disposition, a vital relation to the plan of arbitration adopted by that body. The delegates of the Argentine Republic and Brazil offered, January 15, 1890, a series of resolutions, the eighth article of which reads as follows: "Acts of conquest, whether the object or the consequence of the war, shall be considered to be in violation of the public law of America." The resolutions were referred to the committee on general welfare, which, April 18, 1890, recommended the adoption of the following declarations: 1. That the principle of conquest shall never hereafter be recognized as admissible under American public law. 2. That all cessions of territory made subsequent to the present declaration shall be absolutely void if made under threats of war or the presence of an armed force. "3. Any nation from which such cessions shall have been exacted may always demand that the question of the validity of the cessions so made shall be submitted to arbitration. "4. Any renunciation of the right to have recourse to arbitration shall be null and void whatever the time, circumstances, and conditions under which such renunciation shall have been made." These declarations were subscribed by three members of the committee, respectively, representing the Argentine Republic, Bolivia, and Venezuela. Three other members, representing Colombia, Brazil, and Guatemala, stated that they adopted only the first of the declarations. Mr. Varas, a delegate from Chile, stated that the delegation from that country would abstain from voting or taking part in the debate on the resolutions. Mr. Henderson, a delegate from the United States, offered, as expressing the views of the United States delegation, the following resolution: "WHEREAS, In the opinion of this conference, wars waged in the spirit of aggression or for the purpose of conquest should receive the condemnation of the civilized world; therefore, "Resolved, That if any one of the nations signing the treaty of arbitration proposed by the conference shall wrongfully and in disregard of the provisions of said treaty prosecute war against another party thereto, such nation shall have no right to seize or hold property by way of conquest from its adversary." After a long discussion, in which the delegate from Peru supported the recommendation of the committee as a whole, the report was adopted by a majority of 15 to 1. The delegations voting affirmatively were Hayti, Nicaragua, Peru, Guatemala, Colombia, Argentine Republic, Costa Rica, Paraguay, Brazil, Honduras, Mexico, Bolivia, Venezuela, Salvador, and Ecuador. The United States voted in the negative, while Chile abstained from voting. Further discussion then took place, after which a recess was held in order that an agreement might be arrived at which would secure the vote of the United States delegation. On the session being resumed Mr. Blaine presented the following plan: "1. That the principle of conquest shall not, during the continuance of the treaty of arbitration, be recognized as admissible under American public law. "2. That all cessions of territory made during the continuance of the treaty of arbitration, shall be void if made under threats of war or in the presence of an armed force. "3. Any nation from which such cessions shall be exacted may demand that the validity of the cessions so made shall be submitted to arbitration. “4. Any renunciation of the right to arbitration, made under the conditions named in the second section, shall be null and void." The conference unanimously agreed to accept this as a substitute for the former report, Chile abstaining from voting. But, as the plan of arbitration never became effective, the declaration against conquest, which was made an integral part of it, can now be cited only as an expression of opinion. International American Conference, Reports of Committees and Discussions, II. 1122, 1123, 1146. The broad and extreme rights of conquest which have often been asserted by writers were in reality qualified by the doctrine of postliminium. Under this doctrine, which is analogous to the jus postliminii of the Roman law, where territory occupied by the enemy comes again during the war into the power of the titular sovereign, the legal state of things existing prior to the hostile occupation is reestablished. The same doctrine is applied to property susceptible of appropriation, which, after being captured by the enemy, is recaptured before the moment at which it so becomes the property of the captor that third parties can receive from him a transfer of it. As a general rule, the right of postliminium in the case of occupied territory goes no further than to revive the exercise of rights from the moment at which it comes into operation, so that it does not, as a rule, invalidate acts of the invader which he was competent to perform, such as judicial or administrative acts not of a political complexion, and acts done by private persons under the sanction of municipal law. When an invader exceeds his legal power, as where, supposing himself to have effected a permanent conquest, he assumed to alienate the domains of the state or the landed property of the sovereignty, his acts are null and against a legitimate government. In the case of captured vessels it is usual to return the captured property to the owner on payment of salvage. Hall, Int. Law (5th ed.) 486-495. See, also, Phillimore, Int. Law (3d ed.) III. 841; Woolsey, Int. Law, 6th ed., 234, 248-252. "The jus postliminii, derived from the Roman law, and regulated in modern times by statute or treaty, or by the usage of civilized nations, has been rested by eminent jurists upon the duty of the sovereign to protect his citizens and subjects and their property against warlike or violent acts of the enemy. Vattel's Law of Nations, lib. 3, c. 14, § 204; Halleck's International Law, c. 35, §§ 1, 2. He is under no such obligation to protect them against unwise bargains, or against sales made for inadequate consideration, or by an agent or custodian in excess of his real authority. The jus postliminii attaches to property taken by the enemy with the strong hand against the will of its owner or custodian, and not to property obtained by the enemy by negotiation or purchase." Oakes v. United States (1899), 174 U. S. 778, 792–793. XII. PACIFIC INTERCOURSE OF BELLIGERENTS. 1. FLAGS OF TRUCE. § 1157. For the purpose of communicating between enemy forces in position, or on the march, or in action, use is made of flags of truce. If the flag proceeds from the enemy's lines during a battle, the ranks which it leaves must halt and cease their fire. When the bearer displays his flag, he will be signaled by the opposing force, either to advance or to retire; if the former, the forces he approaches will cease firing; if the latter, he must instantly retire, since, if he should not, he may be fired upon. Halleck, Int. Law (3d ed., by Baker), II. 333-334, citing Scott, Military "111. The bearer of a flag of truce can not insist upon being admitted. He must always be admitted with great caution. Unnecessary frequency is carefully to be avoided. "112. If the bearer of a flag of truce offer himself during an engagement, he can be admitted as a very rare exception only. It is no breach of good faith to retain such flag of truce, if admitted during the engagement. Firing is not required to cease on the appearance of a flag of truce in battle. "113. If the bearer of a flag of truce, presenting himself during an engagement, is killed or wounded, it furnishes no ground of complaint whatever. 66 "114. If it be discovered, and fairly proved, that a flag of truce has been abused for surreptitiously obtaining military knowledge, the bearer of the flag thus abusing his sacred character is deemed a spy. So sacred is the character of a flag of truce, and so necessary is its sacredness, that while its abuse is an especially heinous offense, great caution is requisite, on the other hand, in convicting the bearer of a flag of truce as a spy." Instructions for the Government of Armies of the United States in the "ARTICLE XXXII. An individual is considered as bearing a flag of truce who is authorized by one of the belligerents to enter into communication with the other, and who carries a white flag. He has a right to inviolability, as well as the trumpeter, bugler, or drummer, the flag bearer, and the interpreter who may accompany him. "ARTICLE XXXIII. The Chief to whom a flag of truce is sent is not obliged to receive it in all circumstances. |