On the Subjects of “Conquest” and “Dominion”
Important Quotations from US Supreme Court decisions
by Richard W. Hartzell
Looking at the last four hundred years of
Changes of Sovereignty during the History of
This chart is explained as follows:
In 1624 the Dutch invaded
The law of nations recognizes that territory may be acquired
based on the principle of conquest, however in the post-Napoleonic period the
disposition of such territory must be done according to the laws of war. During the WWII period, the
The significance and applicability of the concepts of “conquest” and “dominion” are clarified in the following quotations from relevant US Supreme Court cases.
Reference: JONES v.
By the law of nations, recognized by all civilized states, dominion of new territory may be acquired by discovery and occupation as well as by cession or conquest . . .
Reference: BOYD v. STATE OF
Manifestly the nationality of the inhabitants of territory
acquired by conquest or cession becomes that of the government under whose
dominion they pass, subject to the right of election on their part to retain
their former nationality by removal, or otherwise, as may be provided. [143
RASUL et al. v. BUSH, PRESIDENT OF THE UNITED STATES, et al. 542
. . . all of the territories Blackstone lists as dominions, are the sovereign territory of the Crown: colonies, acquisitions and conquests, and so on....
(Notes: The delegates to the 1787
Constitutional Convention in
Reference: U S v. CHAVES, 159
We adopt the language of Chief Justice Marshall in the case
Reference: UNITED STATES V. STATE OF
To speak of 'dominion' carries precisely those overtones in
the law which relate to property and not to political authority. Dominion, from
the Roman concept dominium, was concerned with property and ownership, [332
Reference: UNITED STATES v. ALCEA BAND OF TILLAMOOKS, 329
'The title by conquest is acquired and maintained by force. The conqueror prescribes its limits. ... Where this incorporation is practicable, humanity demands, and a wise policy requires, that the rights of the conquered to property should remain unimpaired; that the new subjects should be governed as equitably as the old, and that confidence in their security should gradually banish the painful sense of being separated from their ancient connections, and united by force to strangers.
Reference: OCHOA v. HERNANDEZ Y MORALES, 230
(Speaking of the situation in Porto Rico in late July, 1898 --)
Porto Rico at the time was still foreign territory, and was under a provisional military government established by President McKinley as Commander-in-Chief. In order to determine the extent of the authority of General Henry, and the limitations upon it, we must look to the orders under which the military government was established and maintained.
Freedom of the people to pursue their accustomed
occupations will be abridged only when it may be necessary to do so. While the
rule of conduct of the American Commander-in-Chief will be such as has just
been defined, it will be his duty to adopt measures of a different kind, if,
unfortunately, the course of the people should render such measures
indispensable to the maintenance of law and order. He will then possess the
power to replace or expel the native officials in part or altogether, to
substitute new courts of his own constitution for those that now exist, or to
create such new or supplementary tribunals as may be necessary. In the exercise
of these high powers the commander must be guided by his judgment and his experience
and a high sense of justice. One of the most important and most practical
problems with which it will be necessary to deal is that of the treatment of
property and the collection and administration of the revenues. It is conceded
that all public funds and securities belonging to the government of the country
in its own right, and all arms and supplies and other movable property of such
government, may be seized by the military occupant and converted to his own
use. The real property of the state he may hold and administer, at the same
time enjoying the revenues thereof, but he is not to destroy it save in the
case of military necessity. All public means of transportation, such as
telegraph lines, cables, railways, and boats belonging to the state, may be
appropriated to his use, but, unless in case of military necessity, they are
not to be destroyed. All churches and buildings devoted to religious worship
and to the arts and sciences, all schoolhouses, are, so far as possible, to be
protected, and all destruction or intentional defacement of such places, of
historical monuments or archives, or of works of science or art, is prohibited,
save when required by urgent military necessity. Private property, whether
belonging to individuals or corporations, is to be respected, and can be
confiscated only for cause. Means of transportation, such as telegraph lines
and cables, railways and boats, may, although they belong to private
individuals or corporations, be seized by the military occupant, but, unless
destroyed under military necessity, are not to be retained. While it is held to
be the right of the conqueror to levy contributions upon the enemy in their
seaports, towns, or provinces which may be in his military possession by
conquest, and to apply the proceeds to defray the expenses of the war, this
right is to be exercised within such limitations that it may not savor of
confiscation. As the result of military occupation the taxes and duties payable
by the inhabitants to the former government become payable to the military
occupant, unless he sees fit to substitute for them other rates or modes of
contribution to the expense of the government. The moneys so collected are to
be used for the purpose of paying the expenses of government under the military
occupation, such as the salaries of the judges and the police, and for the
payment of the expenses of the Army. Private property taken for the use of the
Army is to be paid for, when possible, in cash at a fair valuation, and when
payment in cash is not possible, receipts are to be given. All ports and places
Reference: MACLEOD v. U S, 229
When the Spanish fleet was destroyed at Manila, May, 1,
1898, it became apparent that the government of the [229 U.S. 416, 425] United
States might be required to take the necessary steps to make provision for the
government and control of such part of the Philippines as might come into the
military occupation of the forces of the United States. The right to thus
occupy an enemy's country and temporarily provide for its government has been
recognized by previous action of the executive authority, and sanctioned by
frequent decisions of this court. The local
There has been considerable discussion in the cases and in works of authoritative writers upon the subject of what constitutes an occupation which will give the right to exercise governmental authority. Such occupation is not merely invasion, but is invasion plus possession of the enemy's country for the purpose of holding it temporarily at least. 2 Oppenheim, 167. What should constitute military occupation was one of the matters before The Hague Convention in 1899, respecting laws and customs of war on land, and the following articles were adopted [229 U.S. 416, 426] by the nations giving adherence to that Convention, among which is the United States (32 Stat. at L. 1821):
'Article 42. Territory is considered occupied when it is actually placed under the authority of the hostile army.
'The occupation applies only to the territory where such authority is established, and in a position to assert itself.
'Article 43. The authority of the legitimate power having actually passed into the hands of the occupant, the latter shall take all steps in his power to re-establish and insure, as far as possible, public order and safety, while respecting, unless absolutely prevented, the laws in force in the country.'
A reference to the Messages and Papers of the Presidents, to which we may refer as matters of public history, shows that the President was sensible of and disposed to conform the activities of our government to the principles of international law and practice. See 10 Messages and Papers of the Presidents, 208, Executive order of the President to the Secretary of War, in which the President said (p. 210):
'While it is held to be the right of a conqueror to
levy contributions upon the enemy in their seaports, towns, or provinces which
may be in his military possession by conquest, and to apply the proceeds to
defray the expenses of the war, this right is to be exercised within such
limitations that it may not savor of confiscation. As the result of military occupation,
the taxes and duties payable by the inhabitants to the former government become
payable to the military occupant, unless he sees fit to substitute for them
other rates or modes of contributions to the expenses of the government. The
moneys so collected are to be used for the purpose of paying the expenses of
government under the military occupation, such as the salaries of the judges
and the police, and for the payment of the expenses of the army.' [229
To the same effect, Executive order of the President to the Secretary of the Treasury, in which the President said (p. 211):
'I have determined to order that all ports or places in the Philippines which may be in the actual possession of our land and naval forces by conquest shall be opened, while our military occupation may continue, to the commerce of all neutral nations, as well as our own, in articles not contraband of war, upon payment of the rates of duty which may be in force at the time when the goods are imported.'
Reference: SANTAIGO v. NOGUERAS, 214
By the ratifications of the treaty of peace, Porto Rico
ceased to be subject to the Crown of Spain, and became subject to the
legislative power of Congress. But the civil government of the
The authority of a military government during the period
between the cession and the action of Congress, like the authority of the same
government before the cession, is of large, though it may not be of unlimited,
extent. In fact, certain limits, not material here, were put upon it in Dooley
But, whatever may be the limits of the military power, it certainly must include the authority to establish courts of justice, which are so essential a part of any government. So it seems to have been thought in Leitensdorfer v. Webb, supra. With this thought in mind, the military power not only established this particular court in Porto Rico, but as well a system of courts which took the place of the courts under Spanish sovereignty, and were continued by the organic act. The same course was pursued in the Philippine Islands.
Reference: DORR v. U S, 195
As early as the February term, 1810, of this court, in the
case of Sere v. Pitot, 6 Cranch, 332,
power of governing and of legislating for a territory is the inevitable
consequence of the right to acquire and to hold territory. Could this position
be contested, the Constitution of the
And later, the same eminent judge, delivering the opinion of
the court in the leading case upon the subject (American Ins. Co. v. 356 Bales
of Cotton, 1 Pet. 511, 542,
'The Constitution confers absolutely on the government of
'The usage of the world is, if a nation be not entirely subdued, to consider the holding of 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 as its new master shall impose. On such transfer of territory it has never been held that the relations of the inhabitants with each other undergo any change. Their relations with their former sovereign are dissolved, and new relations are created between them and the government which has acquired their territory. The same act which transfers their country transfers the allegiance of those who remain in it; and the law, which may be denominated political, is necessarily changed, although that which regulates the intercourse and general conduct of individuals remains in force until altered by the newly-created power of the state.
Reference: THE DIAMOND RINGS, 183
It is further contended that a distinction exists in that, while complete possession of Porto Rico was taken by the United States, this was not so as to the Philippines, because of the armed resistance of the native inhabitants to a greater or less extent.
We must decline to assume that the government wishes thus to
disparage the title of the
The sovereignty of
We do not understand that it is claimed that in carrying on
the pending hostilities the government is seeking to subjugate the people of a
foreign country, but, on the contrary, that it is preserving order and
suppressing insurrection in the territory of the
Reference: STATE OF
Discovery or conquest are, no doubt, well recognised titles, from which to deduce, ab origine, grants of land, and political government. But these titles carry with them, by their very terms, the idea of possession. The discoverer or the conqueror, is the only person in possession; and by force of his possession so acquired, he establishes a government, marks out a territory, or conveys title to the soil. The grant is a contract which the grantor cannot vacate; but it was never doubted, although the case has never come into judgment, that it might be surrendered or abandoned by the grantee.
That when a territory is acquired by treaty, cession, or even conquest, the rights of the inhabitants to property, are respected and sacred. 8 Wh. 589; 12 Wh. 535; 6 Peters, 712; 7 Peters, 867; 8 Peters, 445; 9 Peters, 133; 10 Peters, 330, 718, &c.
Reference: DOWNES v. BIDWELL 182
That the power over the territories is vested in Congress
[182 U.S. 244, 268] without
limitation, and that this power has been considered the foundation upon which
the territorial governments rest, was also asserted by Chief Justice Marshall
in M'Culloch v. Maryland, 4 Wheat. 316, 422,
Indeed, the practical interpretation put by Congress upon the Constitution has been long continued and uniform to the effect [182 U.S. 244, 279] that the Constitution is applicable to territories acquired by purchase or conquest, only when and so far as Congress shall so direct.
The words of Chief Justice Marshall in Gibbons v.
So too, in Johnson v. M'Intosh, 8 Wheat. 543, 583,
'The title by conquest is acquired and maintained by force. The conqueror prescribes its limits. Humanity, however, acting on public opinion, has established, as a general rule, that the conquered shall not be wantonly oppressed, and that their condition shall remain as eligible as is compatible with the objects of the conquest.
It may not be doubted that by the general principles of the law of nations every government which is sovereign within its sphere of action possesses as an inherent attribute the power to acquire territory by discovery, by agreement or treaty, and by conquest. It cannot also be gainsaid that, as a general rule, wherever a government acquires territory as a result of any of the modes above stated, the relation of the territory to the new government is to be determined by the acquiring power in the absence of stipulations upon the subject. These general principles of the law of nations are thus stated by Halleck in his treatise on International Law, page 126:
'A state may acquire property or domain in various ways; its
title may be acquired originally by mere occupancy, and confirmed by the
presumption arising from the lapse of time; [182 U.S. 244, 301] or by discovery
and lawful possession; or by conquest, confirmed by treaty or tacit consent; or
by grant, cession, purchase, or exchange; in fine, by any of the recognized
modes by which private property is acquired by individuals. It is not our
object to enter into any general discussion of these several modes of
acquisition, any further than may be necessary to distinguish the character of
certain rights of property which are the peculiar objects of international
The decisions of this court leave no room for question that, under the Constitution, the government of the United States, [182 U.S. 244, 303] in virtue of its sovereignty, supreme within the sphere of its delegated power, has the full right to acquire territory enjoyed by every other sovereign nation.
In American Ins. Co. v. 356 Bales of Cotton, 1 Pet. 511,
'The Constitution confers absolutely on the government of
'Power to acquire territory either by conquest or treaty is
vested by the Constitution in the
'The power to acquire territory, other than the territory
northwest of the
'The people change their allegiance; their relation to their ancient sovereign is dissolved; but their relations to each other, and their rights of property, remain undisturbed. If this be the modern rule even in cases of conquest, who can doubt its application to the case of an amicable cession of territory? . . . The cession of a territory by its name from one sovereign to another, conveying the compound idea of surrendering at the same time the lands and the people who inhabit them, would be necessarily understood to pass the sovereignty only, and not to interfere with private property.'
'To create allegiance by birth, the party must be born, not
only within the territory, but within the ligeance of the government. If a
portion of the country be taken and held by conquest in war, the conqueror
acquires the rights of the conquered as to its dominion and government, and
children born in the armies of a state, while [169 U.S. 649, 665] abroad, and occupying a foreign
country, are deemed to be born in the allegiance of the sovereign to whom the
army belongs. It is equally the doctrine of the English common law that during
such hostile occupation of a territory, and the parents be adhering to the
enemy as subjects de facto, their children, born under such a temporary
dominion, are not born under the ligeance of the conquered.' 2
The information rightly states that prior to the Revolution
the shore and lands under water of the navigable streams and waters of the
The power of congress over the territories of the
Reference: CITY OF
In Fleming v. Page,16 Chief Justice Taney says: 'The port of
Tampico, at which the goods were shipped, and the Mexican State of Tamaulipas,
in which it is situated, were undoubtedly, [87 U.S. 387, 399] at the time of the shipment,
subject to the sovereignty and dominion of the United States. The Mexican
authorities had been driven out or had submitted to our army and navy; and the
country was in the exclusive and firm possession of the
This case is authority to the proposition that conquest and temporary military possession do not alter the national character of a city or port.
Reference: HANAUER v. WOODRUFF, 82
As to Castine, (
Reference: DOE EX DEM
III. This treaty with Spain in the consideration of the 8th article, and of the clauses of territorial cession, has been by the Supreme Court always determined to design no departure from the great principle of civilized justice, and of modern international law, that in no transfer of a territory can any domain be passed or be accepted from the ceding nation than what belongs to the government -- the public property. That property alone, and the sovereignty of the transferred region, are the only legitimate objects of such international transactions, and the sovereignty is to be esteemed the primary object. The court has said that the express terms of this treaty deferring to private rights, were not needed for thus limiting the treaty's scope; and the 8th article is not to be regarded as enlarging the cession of property. In order words that article, even as to grants subsequent [57 U.S. 635, 644] to 24th of January, 1818, must be construed in subserviency to the sanctity that our own public law accords to the rights of contract and private property. 8 Peters, 445, 449, 450; Aredondo's Case, 6 Ib. 735, 736; Percheman's Case, 7 Ib. 86; 9 Ib. 133, 169, 170; 14 Ib. 349; 8 Howard, 306, 307; Terrett v. Taylor, 9 Cranch, 43.
These cases affirm, too, the reformed doctrine of international law, that even by conquest the lands of individuals shall not be wrested from them, and in no respect are to be yielded even to the rights of war. Much less are they, then, to be conceded to the exactions of diplomatic bargaining. We may add to these authorities (not now adverting to all the treatises on international law where they enjoin the same doctrine) 1 Pet. 517; 12 Ib. 410, 511; 8 Wheat 464; 4 Ib. 518; 4 Cranch, 323; Fletcher v. Peck, 6 Ib. 87; Wheat. Nat. Law 269, b. 2, ch. 16. All real property taken in war is entitled to postliminy.
IV. These views, under our third head, lead to the conclusion that no grants of Spain, in her Florida region, of portions already conceded to individuals, could be asked to be annulled; or could be accepted by our government from Spain, if even her king had had despotic power to thus despoil without redress -- (which immunity and irremediableness of wrong defines despotic government) -- except only where the individual interest could be shown to have expired . . . . . .
Reference: WEBSTER v. REID, 52
Judge Story says: 'As the general government possesses the
right to acquire territory, either by conquest or by treaty, it would seem to
follow, as an inevitable consequence, that it possesses the power to govern
what it has so acquired. The territory does not, when so acquired, become
entitled to self-government, and is not subject to the jurisdiction of any
State. It must consequently be under the dominion and jurisdiction of the
Reference: FLEMING v. PAGE, 50
The first question, then, is, What is a foreign country, within the meaning of the revenue laws?
A foreign country is one exclusively within the sovereignty
of a foreign nation, and without the sovereignty of the
This change of sovereignty, as a consequence of firm
military occupation, is as settled as any other principle of the law of
nations, and has been repeatedly recognized by the highest authority in this
It might suffice to refer simply to the case of Castine,
which contains a lucid exposition of the law of nations on the point in
question, and is conceived to be decisive of the present case. It is proposed,
however, to bring to the attention of the court some additional authorities on
the subject of the legal effect of the capture and firm possession -- such as
existed in the case of
The result of the authorities may be briefly stated as follows. The duty of allegiance is reciprocal to the duty of protection. When, therefore, a nation is unable to protect a portion of its territory from the superior force of an enemy, it loses its claim to the allegiance of those whom it fails to protect, and the conquered inhabitants pass under a temporary allegiance to the conqueror, and are bound by such laws, and such only, as he may choose to impose. The sovereignty of the nation which is thus unable to protect its territory is displaced, and that of the successful conqueror is substituted in its stead.
The jurisdiction of the conqueror is complete. He may change the form of government and the laws at his pleasure, and may exercise every attribute of sovereignty. The conquered territory becomes a part of the domain of the conqueror, subject to the right of the nation to which it belonged to recapture it if they can. By reason of this right to recapture, the title of the conqueror is not perfect until confirmed by treaty of peace. But this imperfection in his title is, practically speaking, important only in case of alienation made by the conqueror before treaty. If he sells, he sells subject to the right of recapture.
But although, for purposes of sale, the title of the
conqueror is imperfect before cession, for purposes of government and
jurisdiction his title is perfect before cession. As long as he retains
possession he is sovereign; and not the less sovereign because his sovereignty
may not endure for ever. [50
Wolffius, in his treatise De Jure Gentium (Ch. 7, De Jure
Puffendorf, book 8, ch. 11, title 'How Subjection ceases'; same author, Treatise on the Duties of the Man and the Citizen, book 2, ch. 10 , 2; Bynkershoek on the Law of War, Duponceau's translation, 124; 2 Burlamaqui, 74; Vattel, book 3, ch. 13, and book 1, ch. 17; Martens on the Law of Nations, book 8, ch. 3, 8; Wheaton, Elements of International Law, p. 440; 7 Co. 17, b; Dyer, 224, a, pl. 29; 2 P. Wms. 75; Cowper, 204; Dodson, 450; 2 Hagg. Consistory Rep. 371; 9 Cranch, 191; 7 Peters, 86; 2 Gall. 485; 4 Wheat. 246; 1 Opinions of Attorney-General, 119.
These authorities seem to establish conclusively, --
1st. That, by conquest and firm military occupation of a portion of an enemy's country, the sovereignty of the nation to which the conquered territory belongs is subverted, and the sovereignty of the conqueror is substituted in its place.
2d. That although this sovereignty, until cession by treaty, is subject to be ousted by the enemy, and therefore does not give an indefeasible title for purposes of alienation, yet while it exists it is supreme, and confers jurisdiction without limit over the conquered territory, and the right to allegiance in return for protection.
It follows that
It cannot be denied that these principles, established by
the common consent of the civilized world, must govern the title to conquests
made by the
And at p. 193: -- 'As the general government possesses the right to acquire territory, either by conquest or treaty, it would seem to follow as an inevitable consequence that it possesses the power to govern what it has so acquired.'
Chief Justice Marshall, in the American Ins. Co. v. Canter, 1 Peters, 542, treats it as clear. 'The Constitution,' says he, 'confers absolutely on the government of the Union the powers of making war and of making treaties; consequently, that government possesses the power of acquiring territory either by conquest or treaty.'
The messages of the President to Congress during the war,
and the instructions from the heads of departments, contain authoritative
declarations as to the right of the
It is true, that, when
But yet it was not a part of this
Reference: U S v. PERCHEMAN, 32
The law of nations. It is conceived, that, according to the mitigated rights of war, as now well understood and settled by international law, the lands of individuals are safe, even after conquest, Vattel lib. 3, c. 13, 200; much less, can a cession, of itself, destroy private rights. Absolute or perfect grants, it is believed, would be protected by the law of nations, independent of the treaty. Some legislative recognition of their validity might indeed be necessary to sustain a suit upon them in our courts, but the national obligation to respect them could hardly be denied.
It may not be unworthy of remark, that it is very unusual, even in cases of conquest, for the conqueror to do more than to displace the sovereign and assume dominion over the country. The modern usage of nations, which has become law, [32 U.S. 51, 87] would be violated; that sense of justice and of right which is acknowledged and felt by the whole civilized world would be outraged, if private property should be generally confiscated, and private rights annulled. The people change their allegiance; their relation to their ancient sovereign is dissolved; but their relations to each other, and their rights of property, remain undisturbed.
Reference: WORCESTER v. STATE OF
But power, war, conquest, give rights, which, after possession, are conceded by the world; and which can never be controverted by those on whom they descend.
Reference: SHANKS v. DUPONT, 28
(speaking of the
British military occupation of
Now, in the first place, the capture and possession by the
British was not an absolute change of the allegiance of the captured
inhabitants. They owed allegiance indeed to the conquerors during their
occupation; but it was a temporary allegiance, which did not destroy, but only
suspend their former allegiance. It did not annihilate their allegiance to the
Reference: AMERICAN INS. CO. v. 356 BALES OF COTTON, 26
Is there any principle in the law of nations, which upon the Act of cession or conquest, gives to the ceded or conquered country, a right to participate in the privileges of the Constitution of the parent country? The usages of nations from the period of Grecian colonization to the present moment, are precisely the reverse. Such a right never was asserted.
Territories acquired by conquest, and by cession, stand
under different relations to the
The Constitution confers absolutely on the government of the
Reference: U S v. SMITH, 18
'Thus, as pirates are the enemies of the human race, piracy is justly regarded as a crime against the universal laws of society, and is every where punished with death. As they form no national body, as they have no right to arm, nor make war, and on account of their indiscriminate plunder of all vessels are considered only as public robbers, every nation has a right to pursue, and exterminate them, without any declaration of war. For these reasons it is lawful to arrest them, in order that they may undergo the punishment merited by their crimes.' (s. 12.) 'Pirates having no right to make conquests, cannot, therefore, acquire any lawful property in what they take; for the law of nations does not authorize them to deprive the true owner of his property, who always retains the right of reclaiming it wherever it may be found. Thus, by the principles of common law, as well as the law of nature, at whatever period, or in whatever manner, things taken by a pirate may be recovered, they return again to their former owners, who lose none of their rights by such unjust usurpation.'
Reference: DOW v. JOHNSON, 100
What is the law which governs an army invading an enemy's country? It is not the civil law of the invaded country; it is not the civil law of the conquering country: it is military law, -- the law of war . . . . .
Military conquerors of foreign states in time of war may
doubtless displace the courts of the conquered country, and may establish civil
tribunals in their place for administering justice; and in such cases it is
unquestionably true that the jurisdiction of suits of every description is
transferred to the new tribunals.
Towns, provinces, and territories, says Halleck, which are retaken from the conqueror during the war, or which are restored to their former sovereign by the treaty of peace, are entitled to the right of postliminy; and the original sovereign owner, on recovering his dominion over them, whether by force of arms or by treaty, is bound to restore them to their former state. In other words, he acquires no new right over them, either by the act of recapture or of restoration. . . . He rules not by any newly acquired title which relates back to any former period, but by his antecedent title, which, in contemplation of law, has never been devested. Halleck, Int. Law, 871.
When a town, reduced by the enemy's arms, is retaken by those of her own sovereign, says Vattel, she is restored to her former condition, and reinstated in all her rights. Vattel (ed. by Chitty), 395.
Reference: DOOLEY v. U S, 182
. . . . . The doctrine upon this subject is thus summed up
by Halleck in his work on International Law (vol. 2, page 444): 'The right of
one belligerent to occupy and govern the territory of the enemy while in its
military possession is one of the incidents of war, and flows directly from the
right to conquer. We therefore do not look to the Constitution or political
institutions of the conqueror for authority to establish a government for the
territory of the enemy in his possession, during its [182
Reference: JOHNSON v. EISENTRAGER, 339
Conquest by the
Reference: DUNCAN v. KAHANAMOKU, 327
It is all too easy in this postwar period to assume that the
success which our forces attained was inevitable and that military control
should have been relaxed on a schedule based upon such actual developments. In
fact, however, even now our Chief of Staff in his report to the Secretary of
War as of
Reference: OLIPHANT v. SUQUAMISH INDIAN TRIBE, 435
. . . . . . Seizing on language in our opinions describing
Indian tribes as "quasi-sovereign entities," see, e. g., Morton v.
Grotius and Vattel on “Conquest” and “Dominion”
Hugo Grotius wrote extensively on the legal norms of war. Particularly noteworthy to the present discussion is Mare Liberum (1609), trans. Ralph van Deman Magoffin ( New York: Oxford University Press, 1916), Chapter 4, in which Grotius recognizes the “title of war” as a legal title to territory and refers to the acquisition of sovereignty “by right of conquest.”
Additionally, see in De Jure Belli ac Pacis (1625), trans. Francis W. Kelsey ( Oxford: Clarendon Press, 1925), Book III, Chapter 6: “On the Right of Acquiring Things Taken in War” and Chapter 8: “On the Right to Rule Over the Conquered.” Although in this latter work Grotius maintains that “it is praiseworthy to abstain from the exercise of the right to acquire sovereignty over the vanquished” (Book III, Chapter 15, Section 2), he none the less acknowledges that the practice of states supports the existence of such a right.
In a similar vein, see Emmerich de Vattel , The Law of Nations ( 1758), trans. Joseph Chitty ( Philadelphia: T. & J. W. Johnson, 1863), Book III, Chapter 13. Of significance is that in Section 193 Vattel considers “How war is a method of acquisition” and in Section 195 observes that: “nations have ever esteemed conquest a lawful title; and that title has seldom been disputed . . .”
Reference: REID v. COVERT, 354
Historians have traced grants of extraterritorial rights as
far back as the permission given by
researched and written by Richard W. Hartzell
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