LICENSES TO TRADE.

160. Licenes to trade are written permissions, authorizing a person in time of war to carry on trade with a particular place or in specified articles.

The arrangements in regard to licenses to trade, as of safeconducts and passports, are, in general, matters of municipal rather than international law; but, like cartels, their provisions must be strictly observed in order to retain the privileges which they confer, though failure to observe the terms of the license in consequence of stress of weather or other necessity will receive consideration. The sailing under the license of an enemy may subject a vessel to capture and condemnation by its own state.10

During the Spanish-American War in 1898 the counsel of the Equitable Life Assurance Society of the United States desired of the State Department authority to apply to the Spanish government for "a license that will enable it to protect its real estate and other assets in Spain." In reply Mr. Moore said:

"In this relation, the Department desires to refer to article XIII of the treaty between the United States and Spain, concluded at San Lorenzo el Real, October 22, 1795.

"The provisions of the article are as follows:

"For the better promoting of commerce on both sides, it is agreed that, if a war shall break out between the said two nations, one year after the proclamation of the war shall be allowed to the merchants in the cities and towns where they shall live for collecting and transporting their goods and merchandises; and if anything be taken from them, or any injury be done them, within that term, by either party, or the people or subjects of either, full satisfaction shall be made for the same by the government.'

9" 11

The Sea Lion, 5 Wall. 630, 18 L. Ed. 618; Coppell v. Hall, 7 Wall. 542, 19 L. Ed. 244; Siffkin v. Glover, 4 Taunt. 717.

10 The Hiram, 8 Cranch, 444, 3 L. Ed. 619; The Aurora, 8 Cranch, 203, 3 L. Ed. 536; The Julia, 8 Cranch, 181, 3 L. Ed. 528; The Caledonian, 4 Wheat. 100, 4 L. Ed. 523.

For further cases, see footnotes 2 Halleck, Int. Law (4th Ed.) 381-388. 117 Moore, 255.

161. War may be terminated:

(a) By conquest.

(b) By cessation of hostilities.

(c) By a treaty of peace.

(d) In case of a civil war, by proclamation.

CONQUEST.

162. When war is terminated by conquest, there may be involved the complete submission of one belligerent to the other.

The complete submission of one belligerent to the other was in early times regarded as the natural consequence of war. The Roman idea of debellatio involved the submission of the enemy. Gradually there has grown up a distinction between conquest and military occupation. Military occupation may be simply an incident of the conduct of military operations, or merely an attempt to put pressure upon the enemy for the purpose of hastening the end of the war, but with no purpose of obtaining dominion over the territory. Halleck says: "By the term 'conquest' we understand the forcible ac

quisition 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." 1

If actual possession is practically undisputed for a considerable time, is generally recognized by other states, or is of such a nature as to manifest on the part of the conqueror an ability to hold and on the part of the conquered complete submission, it is enough.

There must be ability and evident disposition on the part of the conqueror to retain his conquest.

The actual possession for a considerable time is not conclusive evidence of conquest, for this may merely constitute military occupation. The possession accompanied by a disposition to submit is strong evidence of valid conquest. If the conquest is generally recognized by other states, there is presumption that it is valid. When, however, the conqueror receives the unconditional surrender of the other belligerent, the war is at an end. The enemy is considered conquered when he submits to the will of his opponent. It is not necessary that he should have no further resources or ability to continue the contest. It is of importance to know when belligerent relations are succeeded by peaceful relations, for the status of other than the belligerent parties is affected in many ways. In modern times it has not been common to allow the uncertainty as to the termination of the war to continue, and the successful belligerent is usually in position to determine when the war shall be declared at an end, or shall be ended by agree

ment.

Lawrence briefly says of conquest: "This is the retention of territory taken from an enemy in war, and the exercise therein of all the powers of sovereignty, with the intention of continuing to do so permanently, which intention is usually set forth in a proclamation or some other legal document. Good examples are to be found in the annexations of the Transvaal and the Orange Free State by Great Britain in 1900. Conquest in the jural sense differs from cession by forced gift, in that there is no formal international transaction which marks

12 Halleck, Int. Law (4th Ed.) p. 491.

the exact time of the commencement of the new title, and from conquest in the military sense, in that it involves permanent rule over the territory. When a conquest in the military sense of part of a state's territory is confirmed by treaty of peace, the title to the conquered part is one of cession, not of conquest in the legal sense." 2

At the International American Conference of sixteen American states in 1889-90, a resolution was adopted on April 18, 1890, with only one abstention as follows:

"Resolved, by the International American Conference, that it earnestly recommends to the governments therein represented the adoption of the following declarations:

"First. That the principle of conquest shall not, during the continuance of the treaty of arbitration, be recognized as admissible under American public law.

"Second. 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.

"Third. Any nation from which such cessions shall be exacted may demand that the validity of the cessions so made shall be submitted to arbitration.

"Fourth. Any renunciation of the right to arbitration, made under the conditions named in the second section, shall be null and void."

THE EFFECT OF CONQUEST.

163. The effects of conquest are, in general:

(a) To transfer to the conqueror the rights and obligations that belonged to the conquered territory. (b) To render valid acts of the conqueror from the date of military occupation of the territory.

Grotius says that "it is not customary to take landed property, except under public authority, after an army has been brought in and strongholds have been established."

The continental doctrine has been that possession by force

2 Handbook of Public International Law (7th Ed.) p. 53.

32 Reports of Committees and Discussions Thereon, Int. American Conference, p. 1147.

4 Grotius, De Jure Belli ac Pacis, lib. III, 11.

was simply a fact, which would be confirmed as a right only by a tacit or explicit abandonment by the former sovereign, or by the complete subjugation of that sovereign.

Great Britain has regarded an enemy territory which is effectively occupied as ipso facto British territory. The United States has followed the British doctrine. In Magoon's Reports in 1902 it is said: "When Spain elected to go to war rather than withdraw from Cuba, she subjected the sovereignty and dominion of her entire realm to the hazard of that war, and by the laws of war and of nations she made it lawful for her adversary to invade any part of her domain and displace her sovereignty, exclude her jurisdiction, and destroy her dominion; in others words, effect a complete conquest. So much of her domain as became so situated was without the jurisdiction of Spain and within the possession of the United States. As to the United States, such territory was the same as land newly discovered and occupied by citizens of the United States, with this difference: The occupier was a military force of the United States sent there by the nation itself, instead of a private citizen and pioneer adventurer."5

If the whole state is completely conquered, there is no authority with which to make any treaty, and the rights and obligations belonging to the territory pass to the conqueror. The conquering state would not necessarily obtain the rights belonging to the sovereign of the conquered in his relations to other states, nor assume his obligations; e. g., rights and duties based on alliances. The rights and duties based on internal sovereignty would in general pass to the conqueror. The conqueror would be under no obligation to give to the inhabitants of the conquered territory rights which were not extended to his own citizens, and he might even restrict the rights of, and impose additional burdens upon, the inhabitants of the conquered territory. "Their condition should remain as eligible as is compatible with the objects of the conquest."

6

5 Magoon, The Law of Civil Government under Military Occupa tion, p. 51.

• "Conquest gives a title, which the courts of the conqueror cannot deny, whatever may be the speculative opinions of individuals respecting the original justice of the claim, which has been success

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