§ 398. International Law and its protection of property rights after cession of territory.-The decisions of the Supreme Court in regard to property rights in ceded territory have frequently been based upon the accepted principles of international law especially in regard to the sanctity of titles and property. This volume is confined to the municipal law of the United States, and the application thereof to questions arising under treaties and which have been adjudicated in the courts of this country; the rules of international law, therefore, have not been discussed. When questions, however, arise as to the construction of treaties of cession and the effect thereof on the title to property, as they must be determined in courts of the United States, those courts have properly applied the rules of international law to the questions involved; in that way some of the fundamental principles of natural and international law have been incorporated 1854, and the act of July 15, 1870, providing for a method determining the validity of Mexican land grants.

This case was an action brought in the territorial court to determine the validity of the grant, and the court held that it could not entertain the action as the proceedings under the statutes had not yet been completed. The Supreme Court affirmed this decision in regard to the rights of private citizens existing before the treaty and the manner in which they should be "inviolably respected" and the right of Congress to legislate in regard thereto, the opinion says:

"By article 8 of the treaty of Gaudalupe-Hidalgo, and article 5 of the Gadsden treaty, the property of Mexicans, within the territory ceded by Mexico to the United States, was to be 'inviolably respected,' and they and their heirs and grantees were 'to enjoy with respect to it guaranties equally ample as if the same belonged to citizens of the United States.'

"Undoubtedly, private rights of property within the ceded territory were not affected by the change of sovereignty and jurisdiction, and were entitled to protection, whether the party had the full and absolute ownership of the land, or merely an equitable interest therein, which required some further act of the government to vest in him a perfect title. But the duty of providing the mode of securing these rights, and of fulfilling the obligations imposed upon the United States by the treaties, belonged to the political department of the government; and Congress might either itself discharge that duty, or delegate it to the judicial department." (Citing De la Croix vs. Chamberlain, 12 Wheat. 599, 601, 602; Chouteau vs. Eckhart, 2 How. 344, 374; Tameling vs. United States, etc., Freehold Co., 93 U. S. 644, 661; Botiller vs. Dominguez, 130 U. S. 238.)

United States vs. Chaves, U. S. Sup. Ct. 1895, 159 U. S. 452, SHIRAS, J.

into the municipal law of the United States; this is especially true in regard to the ownership of property. Chief Justice Marshall declared after the cession of Louisiana that the owners of property would have been as securely protected in their property rights under the rules of justice and of international law without the provisions of the treaty as with them. That the courts of the United States have recognized § 398.

1 United States vs. Percheman, U. S. Sup. Ct. 1833; 7 Peters, 51, (see pp. 86-87) MARSHALL, Ch. J.

"The second article (of the Treaty of 1819 with Spain ceding Florida, U.S. Treaties and Conventions, edition 1889, p. 1017) contains the cession and enumerates its objects. The eighth contains stipulations respecting the titles to lands in the ceded territory.

"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, would be violated, and that sense of justice and right which is acknowedged 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. 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? Had Florida changed its sovereign by an act containing no stipulation respecting the property of individuals, the right of property in all those who became subjects or citizens of the new government would have been unaffected by the change. It would have remained the same as under the ancient sovereign. The language of the second article conforms to this general principle. His catholic majesty cedes to the United States in full property and sovereignty, all the territories which belong to him situated to the eastward of the Mississippi, by the name of East and West Florida.' A cession of territory is never understood to be a cession of property belonging to its inhabitants. The king cedes that only which belonged to him. Lands he had previously granted were not his to cede. Neither party could consider itself as attempting a wrong to individuals, condemned by the practice of the whole civilized world. 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. If this could be doubted, the doubt would be removed by the particular enumeration which follows. 'The adjacent islands dependent on said provinces, all public lots and squares, vacant lands, public edifices, fortifications, barracks and other buildings which are not private property, archives and documents which relate directly to

the actual existence of international law and have applied the principles thereof on many occasions appears from the cases cited under the next section.

$399. International Law an element of the law of the United States. Many of the writers on international law devote the first chapters of their respective works to discussing the nature of those rules and principles which are binding upon the national consciences of governments and have been universally accepted by civilized nations as international law, to be respected even if there is no tribunal which has jurisdiction to enforce them.

In the United States these rules and principles have not only been recognized as existing in an ethical or moral sense, but they have been incorporated into and become a part of the law of the land to be given full consideration by the courts in determining issues before them in which those principles are involved. The Constitution expressly gives to Congress power "To define and punish Piracies and Felonies

the property and sovereignty of the said provinces, are included in this article.'

46

This special enumeration could not have been made, had the first clause of the article been supposed to pass not only the objects thus enumerated, but private property also. The grant of buildings could not have been limited by the words which are not private property,' had private property been included in the cession of the territory.

"This state of things ought to be kept in view when we construe the eighth article of the treaty, and the acts which have been passed by Congress for the ascertainment and adjustment of titles acquired under the Spanish government. That article in the English part of it is in these words: 'All the grants of land made before the 24th of January, 1818, by his catholic majesty, or by his lawful authorities, in the said territories ceded by his majesty to the United States, shall be ratified and confirmed to the persons in possession of the lands, to the same extent that the same grants would be valid if the territories had remained under the dominion of his catholic majesty.'

"This article is apparently introduced on the part of Spain, and must be intended to stipulate expressly for that security to private property which the laws and usages of nations would, without express stipulation, have conferred. No construction which would impair that security further than its positive words require, would seem to be admissible. Without it, the titles of individuals would remain as valid under the new government as they were under the old; and those titles, so far at least as they were consummate, might be asserted in the courts of the United States, independently of this article."

2

committed on the high Seas and Offences against the Law of Nations." Congress has frequently passed statutes referring claims to courts and commissions with the express provision that they be decided according to the principles of international law; the Executive department of the Government has on numerous occasions invoked and followed the recognized rules of the highest branch of Jurisprudence; 3 and finally the Judicial department through the Supreme Court of the United States has solemnly declared that "international law is a part of our law and must be ascertained and administered by the courts of justice of appropriate jurisdiction as often as questions of right depending upon it are duly presented for their determination." 4

§ 399.

4. The stipulations of treaties. In the light of these principles, we shall proceed to an examination of the claim; "the Supreme court decided adversely to the claimants.

The act of March 2, 1901, creating the Spanish Treaty-Claims Commissions which provides that the claims are to be adjudicated according to the merits, the principles of equity and of international law. See note to § 308, vol. 1, p. 442, for extract from Statute.

1 Const. U. S. Art. I, § 8, cl. 10. 2 Many cases have been referred by Congress to the courts with instructions to determine them according to the law of nations. Some of these have been referred to the Court of Claims and the reports of that court contain many opinions which are based upon the rules of international law as the same have been determined by the courts of the United States. In this respect see the French Spoliation cases cited in note to §§ 442 and 444, post. See also the extract from syllabus in United States vs. Repentigny, U. S. Sup. Ct. 1866, 5 Wallace, 211, NELSON, J, quoted in note to § 3956, p. 167, ante. In this case by special act of Congress (12 U. S. Stat. at L. pp. 838, 839, approved April 19, 1860), the Repentigny heirs were re-lation Reports of the United States ferred, as the opinion says (p. 258) "to the judiciary for relief," and the act "prescribes the principles which shall govern it in hearing and adjudicating upon the case. They are: 1. The law of nations. 2. The laws of the country from which the title was derived. 3. The principles of justice.

It is impossible to give even a list of the numerous occasions on which the recognized authorities on international law have been quoted in communications between the Secretaries of State of the United States and the corresponding officers of foreign countries. Every number of the Foreign Re

contains numerous despatches in which those authorities are cited and applied to current matters. See also extract from Wharton's Digest in next section.

4 In Paquette Habana, U. S. Sup. Ct. 1900, 175 U. S. 677, GRAY, J., at p. 700, says: "For this purpose, where there is no treaty, and no con

§ 400. Change of sovereignty discussed in this chapter only when to, and not from, the United States.-Change of sovereignty over any territory, when viewed from the trolling executive or legislative act | declaring what the law is, whenor judicial decision, resort must be ever it becomes necessary to do so, had to the customs and usages of in order to determine the rights of civilized nations; and, as evidence parties to suits regularly brought of these, to the works of jurists and before them. In doing this, the commentators, who by years of la- courts must obtain such aid as bor, research and experience, have they can from judicial decisions, made themselves peculiarly well from the works of jurists and comacquainted with the subjects of mentators, and from the acts and which they treat. Such works are usages of civilized nations. Freresorted to by judicial tribunals, mont vs. United States, 17 How. not for the speculations of their 542, 557; The Scotia, 14 Wall. 170, authors concerning what the law 188; Respublica vs. De Longchamps, ought to be, but for trustworthy 1 Dall. 111, 116; Moultrie vs. Hunt, evidence of what the law really is." 23 N. Y. 394, 396." Hilton vs. Guiyot, U. S. Sup. Ct. 1895, 159 U. S. 113, GRAY, J., on p. 163, the opinion says: "International law, in its widest and most comprehensive sense-including not only questions of right between nations, governed what has been appropriately called the law of nations; but also questions arising under what is usually called private international law, or the conflict of laws, and concerning the rights of persons within the territory and dominion of one nation, by reason of acts, private or public, done within the dominions of another nation-is part of our law, and must be ascertained and administered by the courts of justice, as often as such questions are presented in litigation between man and man, duly submitted to their determination.

"The most certain guide, no doubt, for the decision of such questions is a treaty or statute of this country. But when, as is the case here, there is no written law upon the subject, the duty still rests upon the judicial tribunals of ascertaining and

It is not proposed to cite cases involving what is known as private international law, or conflict of laws, but as to the law which should be applied to maritime contracts see Liverpool, etc., Steam Co. vs. Phoenix Insurance Co., U. S. Sup. Ct. 1889, 129 U. S. 397, GRAY, J., in which numerous cases are discussed (on pp. 443-446) and the conclusion reached is stated in the syllabus as follows:

"A decree of the Circuit Court in admiralty on the instance side, finding negligence in the stranding of a ship, can be reviewed by this court so far only as it involves the question of law.

"The owner of a general ship, carrying goods for hire on an ocean voyage, is a common carrier.

"A common carrier by sea cannot, by any stipulation with a shipper of goods, exempt himself from all responsibility for loss or damage by perils of the sea, arising from negligence of the officers or crew.

"Upon a question of the effect of a stipulation exempting a com