cerns the principle of one state's succeeding by derivative title to another state's rights and, perhaps, its obligations, — a principle which becomes of prime importance in the consideration of contracts and concessions.5 A third branch of the law of succession concerns the effect of a change of sovereignty upon the municipal law of the territory ceded. A fourth branch deals with the effect produced upon the allegiance of the inhabitants of the territory ceded. Any attempt to deal with all these matters under the same general rules and principles can not but have the effect which always follows from trying to force a diversified subject, complex by its very nature, under too simple and too sweeping generalizations. The necessarily inevitable result is to exclude from consideration factors which are really material, and hence to evolve a law which makes "hard cases."

In a subject marked by such diversity of theory and practice as is succession it is not satisfying to seek the law by examination and quotation from the writers of text-books and treatises. When the doctors disagree, their opinions are not always convincing. Treaties give no better indication of the true law; most of them, one must confess, result from considerations of present expediency rather than of enduring principle. With the frank recognition of the hopelessness, therefore, of reconciling essentially irreconcilable theories and practice, it has seemed fair to examine, not past international practice and former treatises, but the actual cases which have come up for judicial or executive decision within a single country, and to construct from these, if possible, a consistent body of law upon the particular topic under consideration. Such a body of law will, of course, amount to nothing more than the conception of international law held by a single state and, as such, will not prove what international law is. Yet at least it will serve to shed light upon a much confused subject and will help to bring out important and interesting distinctions; and if the law

It would, indeed, be possible to crowd land cases also under this second principle by viewing the state's duty of respecting private dominium and protecting individual owners in their rights of ownership as an obligation incident to the imperium of the ceding state to which the receiving state succeeds. But, it is submitted, the land cases can be considered with far greater clearness under the general principle first suggested; nothing can be gained by a view that seems at once awkward and artificial, as well as needlessly involved.

thus arrived at by induction from actual cases proves not inconsistent with the law of other leading countries, it may go far toward pointing out actual international law."

II. THE GENERAL RULE

The principle that cession works no impairment of private property rights has nowhere been more clearly enunciated than in the United States. It has been again and again reiterated by innumerable court decisions, by frequent treaty provisions, by many official rulings and public declarations. The questions which must be settled under this branch of the subject are twofold, i.e.: (1) Had the claimant at the time of cession or conquest a judicially enforceable interest? (2) Does the interest in question constitute "property"?

In frequent adjudications upon land claims in ceded territory the United States is peculiarly rich. Most of these naturally involve only the first of the two foregoing questions; if the claimant can establish that he held before the cession a judicially enforceable interest in land, there is usually little question but that such an interest constitutes "property."

The classic case which has been quoted and followed universally until it has become a famous landmark in this part of the law is United States v. Percheman, 7 Peters 51, decided in the United States Supreme Court by Chief Justice Marshall in 1833. In that case the plaintiff claimed 2000 acres of land in Florida under a grant made by the Spanish Governor in 1815 while Florida was still under Spanish dominion. After the cession of Florida by Spain to the United States in 1819, the plaintiff's claim to the tract of land was rejected by the United States. commissioners appointed to settle land claims in the territory of Florida. The plaintiff thereupon appealed to the United States courts; and Chief Justice Marshall, in deciding in favor of the plaintiff, laid down the law upon this subject in classic passages which have been quoted by courts and text-writers ever since.

The law of the United States has been selected for this examination, partly because United States decisions of themselves carry influence, but chiefly because it contains more precedents and decisions upon the subject than the law of any other country.

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; 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. 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. A cession of territory is never understood to be a cession of the property belonging to its inhabitants. . . . The cession of a territory by its name from one sovereign to another . . . would be necessarily understood to pass the sovereignty only, and not to interfere with private property.7

The rule as laid down in United States v. Percheman was merely the restatement of an already well settled doctrine, which had previously been announced by the United States Supreme Court on several occasions. It was approved and followed in a long list of

7 The same rule was expressed in the case of Mitchel v. United States (1835), 9 Peters 711, at 733, where the court laid down as definitely settled and established by the United States Supreme Court "that by the law of nations, the inhabitants, citizens or subjects of a conquered or ceded country, territory or province, retain all the rights of property which have not been taken from them by the orders of the conqueror, or the laws of the sovereign who acquires it by cession. . . . That a treaty of cession was a deed or grant by one sovereign to another, which transferred nothing to which he had no right of property, and only such right as he owned and could convey to the grantee." In Leitensdorfer v. Webb (1857), 20 Howard 176, the court said: "This is the principle of the law of nations, as expounded by the highest authorities. In the case of the Fama, in the 5th of Robinson's Rep. p. 106, Sir William Scott declares it to be 'the settled principle of the law of nations, that the inhabitants of a conquered territory change their allegiance, and their relation to their former sovereign is dissolved; but their relations to each other, and their rights of property not taken from them by the orders of the conqueror, remain undisturbed.' So, too, it is laid down by Vattel, book 3d, cap. 13, sec. 200, that the conqueror lays his hands on the possessions of the state, whilst private persons are permitted to retain theirs; they suffer but indirectly by the war, and to them the result is, that they only change masters.''

See, for instance, Mutual Assurance Soc. v. Watts (1816), 1 Wheaton 279.

cases, and stands today as an authoritative principle unquestioned by the courts."

The same principle has been adhered to by the United States in its treaty provisions no less uniformly than in its court decisions; 10 and the treaty provisions embodying this rule have uniformly been held to be merely declaratory of international law. "In the treaty by which Louisiana was acquired," said Chief Justice Marshall, "the United States stipulated that the inhabitants of the ceded territory should be protected in the free enjoyment of their property. The United States, as a just nation, regard this stipulation as the avowal of a principle which would have been held equally sacred, though it had not been inserted in the contract." 11

Some of the cases citing and following the rule of the Percheman case are: Delassus v. United States, 9 Peters 117, 188; Strother v. Lucas, 12 Peters 410; Pollard v. Kibbe, 14 Peters 375; United States v. Hanson, 16 Peters 196; United States v. Clarke, 16 Peters 232; United States v. Acosta, 1 Howard 24; United States v. Power, 11 Howard 570; Jones v. McMasters, 20 Howard 20; Leitensdorfer v. Webb, 20 Howard 177; United States v. Anguisola, 1 Wall. 352; Langdeau v. Hanes, 21 Wall. 527; Airhart v. Massieu, 98 U. S. 496; Coffee v. Groover, 123 U. S. 10; More v. Steinbach, 127 U. S. 70; Knight v. United States Land Ass'n., 142 U. S. 184; United States v. Chaves, 159 U. S. 457; Cessna v. United States, 169 U. S. 165; Ely's Adm. v. United States, 171,U. S. 220, 223; Ainsa v. N. M. & A. R. R., 175 U. S. 79; The John II Estate v. Brown, 235 U. S. 349; Coburn v. United States, 75 Fed. 528 (Cal.); Smyth v. New Orleans Canal & Banking Co., 93 Fed. 921; In re Chavey, 149 Fed. 75; Hall v. Root, 19 Ala. 386; Reynolds v. West, 1 Cal. 326; Vanderslice v. Hanks, 3 Cal. 38; Ferris v. Coover, 10 Cal. 619; Teschemacher v. Thompson, 18 Cal. 22; Leese v. Clark, 20 Cal. 421; Minturn v. Brower, 20 Cal. 660, 662; MaGee v. Doe, 9 Fla. 392, 395; May v. Specht, 1 Mich. 189; Sanborn v. Vance, 69 Mich. 226; Roussin v. Parks, 8 Mo. 539; Charlotte v. Chouteau, 25 Mo. 479; United States v. Lucero, 1 N. M. 429, 447; Claves v. Whitney, 4 N. M. 181; Catron v. Laughlin, 11 N. M. 630; Hardy v. De Leon, 5 Tex. 234; Corrigan v. State, 42 Texas Civ. 178.

10 The following important treaties made by the United States all contain provisions based on this same general rule: Treaty of peace with Great Britain (1783), Arts. V and VI; Treaty with France for cession of Louisiana (1803), Art. III; Treaty with Spain for cession of Florida (1819), Art. VIII; Treaty of Guadalupe Hidalgo with Mexico (1848), Art. VIII; Gadsden Treaty with Mexico (1848), Arts. V and VI; Treaty with Russia for cession of Alaska (1867), Art. III; Treaty of Paris with Spain (1898), Art. IX.

11 United States v. Soulard, 4 Peters 511.

"Independent of treaty stipulation this right [property] would be held sacred. . . . The people change their sovereign; their right to property remains unaffected

Where there has been a definite vesting of title in the claimant before the treaty of cession, the clear and undisputed principle laid down in United States v. Percheman and followed by a long unbroken course of decisions is compelling.12 It is often true, however, that courts abuse the rule by stating it in the form of such sweeping generalizations as would include cases that the rule was never designed to cover. 13 Often the language used is so extreme as to be actually misleading; and in view of many such statements and the common expression that change of sovereignty does not divest any rights of property in individuals whether consummated or inchoate, absolute or contingent, one must notice certain classes of cases which must be dis

by the change." Delassus v. United States, 9 Pet. 117, 133. The cession of California to the United States did not impair the rights of private property. They were consecrated by the law of nations." United States v. Moreno, 1 Wall. 400, 404.

Similarly, legislative recognitions of the binding force of the international law of succession in determining the validity of land titles in ceded territory have been accorded by the Congress of the United States. See, for instance, the Act of 1824, providing for a court trial "to settle and determine the question of the validity of title according to the law of nations, the stipulations of any treaty," etc. 4 Stat. 53, c. 173, section 2.

For official and diplomatic declarations of the general principle, see 1 Moore's Digest, section 99.

12 Even though the claimant may have had a valid legal title at the time of cession, the treaty may of course expressly provide for the recognition of private property rights only upon certain conditions; or such property rights may be later lost through long disuse or abandonment. See United States v. Repentigny, 5 Wall.

211.

13 See, for instance, Strother v. Lucas, 12 Peters 410, 435, where the court laid it down that "this court has defined property to be any right, legal or equitable, inceptive, inchoate, or perfect, which, before the treaty with France in 1803, or with Spain in 1819, had so attached to any piece or tract of land, great or small, as to affect the conscience of the former sovereign 'with a trust,' and make him a trustee for an individual, according to the law of nations, of the sovereign himself, the local usage or custom of the colony or district; according to the principles of justice and rules of equity." The court further asserted that "the term 'grant,' in a treaty, comprehends not only those which are made in form, but also any concession, warrant, order, or permission to survey, possess or settle, whether evidenced by writing or parol or presumed from possession." A very common statement of the rule is found in Hornsby v. United States, 10 Wall. 224, 242, where it was said that "by the term 'property,' as applied to lands, all titles are embraced, legal or equitable, perfect or imperfect."