or by acquiescence of the people for an indefinite future, subject only to the chances of war."

He further proposes that:

"The allegiance of the members of a belligerent nation resident within the limits of the military occupation of the enemy is suspended."

This suggestion furnishes a good test of the limits of a military occupation. The subjects of the power from whose control the territory has been taken may, during and within the occupation, recognize the military control of the enemy, and may submit themselves to and even take part in the local administration, without treason to their sovereign.

Could a Spaniard in the Pomeroon, or in the Barima region, or above the first falls of Cuyuni, have taken office under the Dutch, without treason to his King, in 1648?

Phillimore (vol. iii., p. 814), says of title by conquest:

"Conquest and occupation are distinct things, governed aз to their legal effects in various respects by different principles and attended with different consequences. Nevertheless there is an analogy between the two, and, in some respects, rules of occupation are applicable to the case of conquest. Conquest is often defined as occupatio bellica; and it so far partakes of the nature of occupation that unless the conqueror has actual possession of the things conquered he can exercise no right over it.

It has been already seen that, in the case of immovable property, even actual possession by the conqueror does not confer a right of alienation, which, after the conqueror has departed, will inure to oust the original owner, unless such a result has formed part of the stipulations of a treaty or been ratified by some public act of the state.'

Eugene Ortolan, in a treatise entitled "On the means of acquiring international dominion or state ownership between nations, according to the public law of nations, compared with the means of acquiring ownership between private persons according to private law, and followed by the principles of political equilibrium," says:

"But leaving aside this usual exception, which at the end of a very short time and before any Treaty gave recognition to the right of property, to booty or maritime spoils, we must be certain of the fact acknowledged.

by the laws of nations ruling to-day in Europe, that war is a method of procedure where there is no definite sentence valid as in law in reference to property, except by virtue of a Treaty ending the war, and from the moment that this has been agreed to."

Military occupation, he further says,

"constitutes a valid possession; the victor may perform in the territory by him occupied the acts of a bona fide possessor; may collect taxes, exercise authority, jurisdiction. The foreign nations, if they wish to remain neutral, are under obligation to recognize such possessions, and the belligerent nation itself, upon recovery of the territory, could not derogate such acts that imply not only definitive property but also a passing possession."

"The victor, however, can not validly perform any of the acts which indicate a right to international domain; can not sell the property, mortgage the country, alienate the territory to a foreign nation, dispose of it in any manner whatever. The power of the victor is transient as the probabilities of the success to which it is due, and this power expires at the same time of the possession and nothing of it remains thereafter."

In the case of American Insurance Company v. Canter (i. Peters, U. S. Sup. Crt., 511) Marshall, C. J., says:

"The usage of the world is, if a nation be not entirely subdued, to consider the holding of the conquered territory as a mere military occupation, until its fate shall be determined at the treaty of peace. If it be ceded by the treaty, the acquisition is confirmed and the ceded territory becomes a part of the nation to which it is annexed; either on the terms stipulated in the treaty of cession or on such terms as its new master shall impose."

In the case of U. S. v. Hayward (2 Gallison, U. S. Cir. Crt., 485), a case growing out of the military occupation of the Town of Castine, in the State of Maine, by the British forces during the war of 1812, Story, Justice, says:

"By the conquest and occupation of Castine that territory passed under the allegiance and sovereignty of the enemy. The sovereignty of the United States over the territory was of course suspended and the laws of the United States could no longer be rightfully enforced, or be obligatory upon the inhabitants who remained and submitted to the conquerors. Castine therefore could not strictly speaking be deemed a post of the United States, for its sovereignty no longer extended over the place. Nor on the other hand, could it strictly speaking be deemed a post

within the dominions of Great Britian, for it has not permanently passed under her sovereignty. The right which existed was the mere right of superior force; the allegiance was temporary and the possession not that firm possession which gives to the conqueror plenum dominium et utilethe complete and perfect ownership of property. It could only be by a renunciation, in a treaty of peace, or by possession so long and permanent. as should afford conclusive proof that the territory was altogether abandoned by its sovereign, or had been irretrievably subdued, that it could be considered as incorporated into the dominions of the British Sovereign."

Castine was at the mouth of the Penobscot River, and the Governor of Nova Scotia, by proclamation, claimed for Great Britain, by conquest, all of the territory east of that river; but the claim was absurd. If General Pakenham had captured New Orleans, Great Britain would hardly have put forward a title by conquest to the whole Mississippi Valley, even if her view of the watershed doctrine had been then what it is now.

The case of United States v. Rice (4 Wheaton, 246), also grew out of the military occupation of Castine by the British; the question being whether an importation of goods made into the port, while the British had control, could, after the treaty of peace and the restoration of the port to the United States, be made subject to duties. The Court (Story, J.) said:

"Under these circumstances, we are of opinion that the claim for duties cannot be sustained. By the conquest and military occupation of Castine, the enemy acquired that firm possession which enabled him to exercise the fullest rights of sovereignty over that place. The sovereignty of the United States over the territory was, of course, suspended, and the laws of the United States could no longer be rightfully enforced there, or be obligatory upon the inhabitants who remained and submitted to the conquerors. By the surrender the inhabitants passed under a temporary allegiance to the British Government, and were bound by such laws, and such only, as it chose to recognize and impose."

Chief Justice Taney said, in Fleming v. Page (9 How., 615): "For by the laws and usages of nations, conquest is a valid title while the victor maintains the exclusive possession of the conquered territory."

The convenience of an intruder is not to be consulted. A conquest is an actual taking and nothing goes with it. One who, by conquest, takes a river mouth or a line of sea coast, cannot invoke the rule as to the watershed, or as to the middle distance, or the rule of safety, against the dispossessed nation. So a treaty of peace confirming to the conqueror what he has taken-the places then held by him-is not to be taken to give those natural and convenient boundaries that a discoverer, or a first occupier, might have claimed. It gives only those limits that the conquered nation must fight to repossess itself of-at the time of the treaty. It is not significant that the conqueror may have sent expeditions into further regions or have had very temporary posts there. It is only that which he has securely possessed himself of that he has title to. Now it is quite certain that the region from which the Dutch had, by armed occupation, excluded Spain, comprised only the very lowest parts of the Essequibo River, within the disputed territory. They had attacked Santo Thome, but withdrew, and there was no part of Guiana, save the lower Essequibo, where the Spanish could not and did not go as they pleased. It was not the stress of war in Guiana, nor Dutch victories or power there, but at home, that brought the peace and the cession.

We conclude this discussion with these propositions:

FIRST.-The Dutch occupation of Guiana was effected as an act of war against Spain upon territory known to be claimed by Spain, and with a view to the appropriation of the Spanish title and the use of the places seized as depots and arsenals in further contemplated attacks upon Spain's ships and settlements.

SECOND. That as matter of law, the Dutch could by these hostile acts acquire no more territory than was actually and firmly held by them. That the bounds of their military occupation cannot be extended by the use of any of the equitable intendments allowed in behalf of nations that discover and peaceably occupy unappropriated lands.

-

THIRD. That the Treaty of Munster is to be read as confirming the Dutch title only to such territory as was thus strictly held.

CHAPTER IX.

THE DUTCH TITLE-TREATY OF MUNSTER A CESSION.

If the Dutch holdings in Guiana, in 1648-and especially Essequibo-were the fruits of conquest from Spain, a purely peace treaty would, ex re termini, have the effect of confirming the Dutch title to such places as they then firmly held. The treaty might, by express stipulation, have confirmed this legal consequence of the agreement to terminate the state of war, or it might, by cession, have enlarged the holdings of the Dutch, or have reduced those holdings or required a complete surrender of them to Spain. What the treaty did was, as the British Case admits, to "confirm" the Dutch in their " possessions," to give them that "perfected" title of which the law writers speak. To be sure, Great Britain contends that there is in the treaty a provision for a contingent enlargement of the Dutch possessions; but this, as we shall show, had no operation westward of Essequibo. We think that the treaty is to be read as a cession of territory acquired by conquest, and limited by the rules applicable to conquests. That reading is confirmed, as we have seen, by the unequivocal admissions of the Dutch and of Great Britain. But if the Dutch did not hold by conquest, but by a disputed cupatio-disputed by arms-this comprehensive treaty of peace must be so read as to settle that dispute; to leave it open would be to make no peace. And after all, Great Britain's contention of a Dutch right to enlarge the possessions of 1648 is rested upon the treaty, which is said to contain a provision authorizing it. Unless then that provision does have that effect as to the territory in dispute, the Dutch were limited by the treaty to so much of the disputed territory as they had actually occupied. There was no possible basis for a larger Dutch claim.