Thomas Barclay

“ A time necessarily comes, in the course of a war of conquest, when the conqueror may rightfully declare that the laws of peace shall be applicable from a certain moment, and that further resistance will not entitle the combatants to the treatment prescribed for regular combatants by the laws of war. To carry on warfare after the entire territory is in the hands of the enemy, after all means of government by the dispossessed authority are at an end, after all hope of recovery of its territorial sovereignty is absolutely gone, is obviously mere wanton bloodshed. ”

“ There can be no antecedent claim or title from which any right of possession is derived, for if so it would not be a conquest. The assertion and enforcement of a right to possess a particular territory do not constitute a conquest of that territory. By the term conquest we understand the forcible acquisition 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. A title acquired by a conquest cannot, therefore, relate back to a period anterior to the conquest. ”

“ A government which is strong enough to maintain its authority, which is in possession of and is de facto administering country, is the government of that country, and, however just or interesting may be the cause of those who have been dispossessed, they are not entitled to treatment as belligerents. Thus in the South African War of 1899–1902 the British authorities, when the whole territory was occupied, manifestly beyond hope of recovery, might have ceased to treat the roving bands of armed men, who were still carrying on war, as belligerents. ”