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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

9 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 o. 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 o. 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 0. Hanks, 3 Cal. 38; Ferris v. Coover, 10 Cal. 619; Teschemacher v. Thompson, 18 Cal. 22; Leese o. 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 o. 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 o. Percheman and followed by a long unbroken course of decisions is compelling. 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 o. 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 0. 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 o. Repentigny, 5 Wall. 211.

13 See, for instance, Strother 0. 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."

tinguished from those falling under the general rule. These may be roughly divided into the following four groups: (a) inchoate grants, i.e., where no legal title has vested; (b) grants on condition; (c) indefinite grants; (d) void grants.


Perhaps the first class of cases gives rise to most difficulty. In the early days of the country, when great tracts of the new Louisiana territory were being won by pioneer settlers who often had to place more reliance upon their muskets than upon legal rules and titles, nothing was more common than to hold land without recorded legal title. The settlers were for the most part too ignorant or too poor to defray the court expenses incident to completing their titles; and consequently the greater part of the new territory was held by mere possession without legal title of any kind. To eject or disregard the titles of all those who by their toil and daring had given to the land its value would have been a mockery of justice; and accordingly the United States courts after the cession of Louisiana to the United States found little difficulty in confirming such grants where the claimants, or those from whom they derived their claims, had been in continuous possession of defined tracts of land and only bare legal title was lacking. 14

14 In Landes o. Perkins, 12 Mo. 238, the court, speaking of land in the city of St. Louis which had originally constituted part of the territory of Louisiana, said: "It is a matter of history, of which this court will take judicial notice, that, at the time of the cession of Louisiana to the United States, in that portion of the territory of which this State is composed, nineteen-twentieths of the titles to lands were like that involved in this case prior to its confirmation. There were very few complete grants. Most of the inhabitants were too poor to defray the expenses attending the completion of their titles, but they had faith in their government and rested as quietly under their inchoate titles as though they had been perfect. As early as October, 1804, we find the legislature speaking of freeholders and authorizing executions against lands and tenements. There being so few complete titles, the legislatures, in subjecting lands and tenements generally to execution, must have contemplated a seizure and sale of those incomplete titles which existed under the Spanish Government. At the date of the act above referred to, no titles had been confirmed by the United States. An instance is not recollected in which a question has been made as to the liability of such titles as Cla an's under the Spanish Government to sale under execution. It is believed that such titles have been made the subject of judicial sales without question ever since the change of government.”


Had the claimants cared to enter the Spanish or French courts before the cession, the courts could not have refused to grant to them perfect legal titles; it therefore seemed logical as well as just for the United States courts to hold that, after the cession of Louisiana to the United States, they held equitable interests in rem which constituted real property rights, and, as such, must be respected by United States courts.

Essentially the same situation existed in regard to many tracts of land granted without the necessary legal formalities or patenting of title, by early Spanish or French provincial officials or commanders of military posts in return for services rendered or as prizes for their favored friends.15 After the cession of Louisiana to the United States had taken place it then became the problem of the United States courts

and often a very difficult one to determine whether such "incomplete" concessions lacked merely a bare legal title or substantial validity, whether or not the claimants could have completed their title by right and not by grace.

The rule, therefore, became well settled that mere absence of legal title before cession would not of itself prevent the claimant from asserting in the courts of the receiving state a judicially enforceable property right. But, on the other hand, it is equally clear that mere expectations of future interests will not be protected after cession. The question to be ascertained in each case is: Did the claimant hold before the cession a judicially enforceable right in rem, i.e., either legal title or equitable ownership of a real interest? Although many of the books lay it down in loose language that the cession of sovereignty makes no alteration in private property, whether the right is vested or contingent or merely expectant, yet, it is submitted, mere future expectations and

15 As Chief Justice Marshall said in Soulard v. United States, 4 Pet. 512: “When Louisiana was transferred to the United States, very few titles to lands, in the upper part of that province especially, were complete. The practice seems to have prevailed, for the deputy-governor, sometimes the commandants of posts, to place individuals in possession of small tracts, and to protect that possession, without further proceeding. Any intrusion on this possession produced a complaint to the immediate supervising officer of the district or post, who inquired into it, and adjusted the dispute. The people seem to have remained contented with this condition. The colonial government, for some time previous to the cession, appears to have been without funds, and to have been in the habit of remunerating services with land instead of money. Many of these concessions remained incomplete."

many contingent rights will be lost by the change in sovereignty, if before the cession no property right or interest in rem has vested in the claimant.16 Where the claimant had already taken the first steps for the acquisition of title, for instance, but held no legal title at the time of cession, the question would be whether he could of right and not by grace, under the municipal law prevailing before the cession, have completed his ownership as against the holder of the legal title. Of course, since no subject can compel his sovereign to come into court, in a case where the claim of ownership is being made against a sovereign state, the claim “of right” must be understood to mean a claim which, except for the sovereign's general immunity from suit, could be judicially enforced against him. As Chief Justice Marshall said in Soulard v. United States, one must "distinguish between claims founded on legitimate contracts with those authorized to make them on the part of the crown or its immediate agents, and such as were

16 As to what constitutes a "future expectation,” the following words, though used in a slightly different connection, are somewhat illuminating: Dans le domaine de l'avenir, à côté des intérêts, on rencontre la sphère des expectatives. L'expectative n'est pas un simple intérêt d'avenir, une perspective à laquelle s'attache une espérance. Elle ne constitue pas davantage en soi un droit actuellement subsistant. Elle consiste à proprement parler dans un avantage qui n'est pas encore un droit possédé, mais que l'on a l'espoir autorisé de posséder un jour comme droit. Dans l'état actuel de mobilisation des biens matériels, tout le monde peut espérer devenir riche un jour; c'est là malheureusement une simple perspective, une pure espérance. Voici une autre situation. Usant du droit de prescrire, j'ai commencé une prescription. La prescription terminée me donnerait un droit acquis. La prescription commencée me donne une expectative. De même la jouissance d'un héritage auquel je suis appelé en ordre de succession est un avantage auquel je puis juridiquement prétendre sans que j'aie cependant l'assurance de sa future possession. Le jour où mon espoir fondé d'obtenir la succession se réalisera, j'aurai l'avantage de posséder, en droit les biens constitutifs de l'héritage. Présentement, j'ai une expectative, qu'il ne faut pas d'ailleurs confondre avec un droit subordonné à une condition suspensive ou résolutoire: car sa réalisation ne me rendra nullement propriétaire de l'héritage à partir du jour où j'ai eu l'expectative. Si le législateur devait s'arrêter désarmé devant toutes les expectatives, les lois nouvelles pourraient se trouver, sans raison suffisante, paralysées dans d'énormes proportions. C'est pourquoi on admet que l'autorité publique n'est pas liée devant les simples expectatives. Seulement, lorsque ces expectatives ont un caractère particulièrement grave, on voit souvent un sage législateur prendre transitoirement des mesures diverses pour les ménager, bien qu'il n'y soit pas rigoureusement tenu.” Descamps, La Définition des droits acquis, in 15 R. G. D. I. P., 388.

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