CHAP. V. invader. Again, while acts done by an invader in pursuance PART III. of his rights of administrative control and of enjoyment of the resources of the state cannot be nullified in so far as they have produced their effects during his occupation, they become inoperative from the moment that the legitimate government is restored. Thus in 1870-1 certain persons entered into contracts with the German government for felling timber in state forests in France. They were paid in advance, and the stipulated fellings not having been finished at the time of the signature of the treaty of peace between the two countries, the contractors urged that as the German government was within its rights in causing the fellings to be made, the French government was bound to allow them to be completed. The French government held that the re-establishment of its own control had ipso facto nullified the contracts, and on the occasion of the signature of the supplementary convention of December 11, 1871, it made a declaration to that effect, which was accepted by the German government as correct in point of law. That French authority was re-established in the particular case by a treaty of peace is unimportant, the effects of re-establishment by treaty and in other ways being in such matters confessedly identical 1. acts done by an in excess rights. § 164. When an invader exceeds his legal powers, when Effects of for example he alienates the domains of the state or the landed property of the sovereign, his acts are null as against invader the legitimate government. Such acts are usually done by of his an invader who intends to effect a conquest, and supposes himself to have succeeded. Whether therefore they are valid or invalid in a given instance depends solely upon the strength of the evidence for and against his success. expulsion § 165. Some difference of opinion exists as to the effect of Effect of the expulsion of an invader by a power not in alliance with of an inthe occupied state. As the annexation of Genoa to Sardinia vader by 1 Heffter, § 188; Bluntschli, § 731; Calvo, § 1324. a power PART III, in 1815 forms the leading case upon the subject, and is that CHAP. V. to which all arguments have reference, it may be as well to not in alliance with the occupied state. Case of Genoa in 1815. begin by stating it. In the spring of 1814 Lord William Bentinck landed on the coast of Tuscany with a small AngloSicilian force, and learning that the city of Genoa was inadequately garrisoned, determined to attempt its capture. The results of a couple of days' fighting induced the commandant to capitulate. The place was surrendered; the garrison retired under the terms of the capitulation to Nice; and the whole territory of the former republic fell into the hands of England, by conquest as between itself and France. The Genoese state had been destroyed in 1797, but the British government, in making the treaty of Amiens, had refused to acknowledge its destruction, and its formal union with France in 1805 had remained equally unrecognised. On the expulsion of the French a local republican government was set up with the sanction, and indeed at the suggestion, of Lord William Bentinck; but ultimately the city with its attendant territory was annexed to Sardinia, against the wishes of the inhabitants, in consequence of the general territorial redistribution which was made at the Congress of Vienna. Considerable feeling was excited in England by the latter occurrence, and resolutions condemnatory of it were moved in the House of Commons by Sir James Mackintosh. In the course of his speech in support of them he argued that in the year 1797, when Genoa was conquered by France, then at war with England, under pretence of being revolutionised, the Genoese republic was at peace with Great Britain; and consequently, in the language of the law of nations, they were friendly states. Neither the substantial conquest in 1797, nor the formal union of 1805, had ever been. recognised by this kingdom. When the British commander therefore entered the Genoese territory in 1814, he entered the territory of a friend in the possession of an enemy. Can it be inferred that he conquered it from the Genoese people? We had rights of conquest against the French; but what right of conquest would accrue from their expulsion as against PARTIII. the Genoese? How could we be at war with the Genoese?— CHAP. V. not as with the ancient republic of Genoa, which fell when in a state of amity with us,-not as subjects of France, because we had never legally and formally acknowledged their subjection to that power. There could be no right of conquest against them, because there was neither the state of war, nor the right of war. Perhaps the powers of the continent, which had either expressly or tacitly recognised the annexation of Genoa in their treaties with France, might consistently treat the Genoese people as mere French subjects, and consequently the Genoese territory as a French province, conquered from the French government, which as regarded them had become the sovereign of Genoa. But England stood in no such position :-in her eye the republic of Genoa still of right subsisted. Genoa ought to have been regarded by England as a friendly state, oppressed for a time by the common enemy, and entitled to reassume the exercise of her sovereign rights as soon as that enemy was driven from her territory by a friendly force '1. The views of Sir James Mackintosh have very commonly been regarded as sound 2, but they are not admitted by all writers. Heffter supposes, in agreement with the line of conduct pursued by England, that a state freed by the exertions of a power which is not its ally does not recover its existence as of course; and M. Bluntschli argues that though the liberating power cannot dispose of the country wholly without reference to the wishes of the population, yet that a state which is neither able to defend itself in the first instance nor to reestablish itself afterwards cannot be held to possess a clear and solid right to existence, and at the same time the liberating power has a right to be rewarded for its sacrifices, 1 Hansard, xxx. 387 and 891, or Mackintosh's Miscell. Works, p. 703; Alison's Hist. of Europe, x. 209 and 295. 2 Phillimore, iii. § cxxiii; Halleck, ii. 520-1; Calvo, § 1321. The same view had already been taken by Vattel, liv. iii. ch, xiv. § 213. CHAP. V. PART III. which indeed cannot be supposed to have been made in a spirit of pure disinterestedness ;-in settling the future of the liberated country the interests and wishes both of it and of its liberator ought, he thinks, to be taken into consideration1. Conclu sions. It may probably be safely concluded that the opinions of Sir James Mackintosh and his followers on the one hand and of MM. Heffter and Bluntschli on the other both contain elements of truth. As a matter of common sense, there can be no question that conquest cannot be held to be consolidated while a war continues which by any reasonable chance may extend to the conquered territory, and that a country which has been independent must be supposed to retain its existence in law as between itself and a foreign state so long as the latter has not recognised that conquest has taken place. The foreign state cannot at the same moment deny proprietary rights to the intruder, and arrogate rights to itself which can only be derived from the enemy character of the country which has been temporarily or permanently subjugated. Nor does the fact that it has made sacrifices in ejecting the invader from the invaded territory alter its legal position, whether the sacrifices have been made disinterestedly or not. It was not obliged to make them. On the other hand it cannot be placed in a worse position by being at war with the intrusive state than it would otherwise have held. The legal effects of a war are not modified by the fact that one of the parties to it is waging another wholly distinct war at the same time. If therefore a conquest seems, either from the attitude taken up by the conquered population towards the victor, or from his apparent solidity of possession, to be so 1 Heffter, § 188 and § 184; Bluntschli, § 729. Woolsey (§ 145) follows Heffter. Perhaps the value of M. Bluntschli's opinion is somewhat affected by the fact that he instances 'les négociations entre la Prusse et le duc Frédéric d'Augustenbourg, au sujet des duchés de Schleswig et de Holstein, 1865-6, après que ces duchés eurent été affranchis par la Prusse de la domination danoise' as an example of the right course of conduct to adopt. But it is not quite clear how the case is an example at all of the class of cases under consideration. settled that a state would be justified if at peace with him PARTIII. in recognising it as definitive, there can be no reason for CHAP. V. denying to an enemy the right of making up its own mind whether occupation continues or conquest has taken place ;he is merely prevented by the nature of the relation existing between him and the invader from showing what opinion he has formed until the course of his war leads him to attack the territory in question. In all cases then in which conquest has unquestionably not been consolidated, and in which the territory of a state is therefore only occupied, the state recovers its existence and all the rights attendant on it as of course so soon as it is relieved from the presence of the invader. Where, on the other hand, there is reasonable doubt as to whether a state is occupied or conquered, the third state must be allowed to determine the point for itself, and to act accordingly 1. § 166. The circumstance that commercial vessels and their Recapture. cargoes belong to private owners and that they are generally of more or less considerable value, coupled with the fact that recaptors are generally fellow-subjects of the original owners of recaptured property, has led to the adoption of certain usages with respect to maritime recapture by which the application of the right of postliminium is somewhat blurred. On the one hand, it has been thought well to reward recaptors by paying them salvage in all cases, so that property never returns unconditionally to the owner; on the other, property is as a rule returned to him upon payment of salvage, notwithstanding that the enemy may have evidenced his capture by taking the captured ship into a safe place, or even by formal condemnation in his courts. In 1632 the Dutch government, in the interests of com 1 Of course where the ejecting state appears ostensibly in the character of a liberator it is bound by its own professions. In the case of Genoa, for example, it may be a question whether England by the general attitude which she assumed towards the Italian populations did not morally bind herself to restore such of them as might wish it to the position which they occupied before the French conquest. |