ficient in origin, is based upon something more respectable than conquest. 117. Revolution. (4) Where by virtue of a successful revolution a new State comes into being, it necessarily succeeds to the rights of sovereignty over the territory which it occupies and which previously belonged to the parent State. No act on the part of the latter is required in order to validate the succession. The new State is regarded as having perfected by its own achievement the transfer of rights of property and control. Thus ultimate recognition of its independence by the parent State, even if expressed in a treaty of peace and friendship, may not be deemed to constitute a cession or grant of the territory concerned. Through the operation of the American Revolution, the United States acquired for itself the rights of sovereignty previously exercised by Great Britain over the territories of its revolting colonies.2 Extinction § 118. Operation of Nature. The loss by a State of its rights of property and control rarely involves their extinction. Commonly a State or a country deemed to possess the requisite capacity succeeds to what is given up. Under certain circumstances, however, these rights may become extinct. Such is the case when, for example, territory over which sovereignty has been exercised is, through the operation of nature, blotted out of existence or rendered forever uninhabitable by man.3 "The United States regard it as an established principle of public law and of international right that when a European colony in America becomes independent it succeeds to the territorial limits of the colony as it stood ir the hands of the parent country." Mr. Marcy, Secy. of State, to Mr. Dallas, July 26, 1856, MS. Inst. Great Britain, XVII, 1, 11, Moore, Dig., I, 303. 2 Declared Johnson, J., in Harcourt v. Gaillard: "It has never been admitted by the United States, that they acquired anything by way of cession from Great Britain by that treaty [of 1783). It has been viewed only as a recognition of pre-existing rights, and on that principle, the soil and sovereignty within their acknowledged limits, were as much theirs, at the declaration of independence as at this hour." 12 Wheat. 523, 527. Also, Henderson v. Poindexter's Lessee, 12 Wheat. 530; United States v. Repentigny, 5 Wall. 211; McIlvaine v. Coxe's Lessee, 4 Cranch, 209, 212. 3 Oppenheim, 2 ed., I, § 245. § 119. Abandonment. (2) Rights of property and control become extinct when, by a process known as abandonment, a State, as an incident of losing possession, gives them up, and no immediate successor is at hand to keep them alive. In such case the territory becomes res nullius, and is thereupon open to occupation by any other State.1 In this respect abandonment differs, as has been observed, from relinquishment. Circumstances indicating abandonment rarely occur.3 In 1895, the occupation by Great Britain of the Island of Trinidad was made the subject of protest by the Government of Brazil, on the ground that the latter's right of ownership of the island 1 Hall, Higgins' 7 ed., § 34; Robert Lansing, "A Unique International Problem", Am. J., XI, 763, in which there is discussed the legal situation applicable to the archipelago of Spitzbergen. 2 At the Conference of Oct. 11, 1898, at Paris, of the Commissioners of the United States and Spain, appointed to conclude a treaty of peace, the Spanish Commissioners filed a memorandum maintaining that it was "imperative that the President of the United States should accept the relinquishment made by Her Catholic Majesty of her sovereignty over the Island of Cuba." Sen. Doc. No. 62, 55 Cong., part I, 40. This contention was based on the fact that the United States by the preliminary Protocol of Aug. 12, 1898, embodying the basis of the terms for the establishment of peace, had required Spain to agree to "relinquish" her title to Cuba, and had not demanded that she "abandon" it. Id., 40. In their reply of Oct. 14, 1898, the American Commissioners said in part: "A distinction is thus made between a relinquishment and an abandonment; and it is argued that while 'abandoned territories' become derelict, so that they may be acquired by the first occupant, relinquished territories' necessarily pass to him to whom relinquishment is made. The American Commissioners are unable to admit that such a distinction between the words in question exists either in law or in common use. . . . The distinction thus drawn [by the Spanish writer, Escriche], not between relinquishment and abandonment, which are treated both in English and in Spanish as practically the same, but between relinquishment and cession, is written upon the face of the Protocol." Id., 46, 47. It was the sole object of the American Commissioners to emphasize the fact that relinquishment and abandonment were alike, in that neither process required the acceptance of title by a grantee, and that in this respect both differed from cession. The Spanish Commissioners thereupon proceeded to argue that the relinquishment demanded by their adversaries involved all of the legal consequences of abandonment. Id., 78-84. In later memoranda, however, the American Commissioners were careful to point out the fact that Cuba, upon the relinquishment of the Spanish title, would not become derelict and res nullius, and thus would not wholly resemble abandoned territory. Id., 98-99. By implication, therefore, they recognized a distinction between abandonment and relinquishment, which was not shown in their earliest statement, quoted above. This distinction seems important. Concerning the dispute between France and Great Britain as to the Island of Santa Lucia, see Phillimore, 2 ed., I, 308, quoted in Moore, Dig., I, 298; Hall, Higgins' 7 ed., § 34. As to the controversy between Great Britain and Portugal, relating to territory at Delagoa Bay, see Hall, Higgins' 7 ed., § 34; also Award of Marshal MacMahon, July 24, 1875, Moore, Arbitrations, V, 4984-4985. Respecting the claims against the United States by reason of its breaking up a piratical colony on the Falkland Islands in 1831, cf. Moore, Dig., I, 298299, and documents there cited. had never been given up. Abandonment, it was declared by the Brazilian Minister of Foreign Affairs: Depends on the intention of relinquishing, or on the cessation of physical power over the thing, and must not be confounded with simple neglect or desertion. A proprietor may leave a thing deserted or neglected and still retain his ownership. The fact of legal possession does not consist in actually holding a thing, but in having it at one's free disposal. The absence of the proprietor, neglect, or desertion does not exclude free disposal, and hence animo retinetur possessio. . . . Possession is lost corpore only when the ability to dispose of a thing is rendered completely impossible, after the disappearance of the status which permits the owner to dispose of the thing possessed.1 Evidence of either a definite intention of giving up the right of property and control with respect to territory at the disposal of the sovereign, or of a complete cessation of the effort to regain a control wrested from it by an uncivilized people not deemed capable of exercising such a right, would, on principle, seem to be necessary in order to prove abandonment. When the authorities of a State are expelled from territory belonging to it by the superior force of a native and uncivilized population, the loss of control doubtless minimizes the legal significance of intention. The hope and expectation entertained by the State of effecting a lodgment and regaining the mastery may not long suffice to keep alive any right of sovereignty. Even in such a case, however, a certain interval of time might fairly be allowed for the reëstablishment of actual dominion before regarding the right as extinct. When a State appears voluntarily to have deserted territory the control of which constantly remains within its grasp, abandonment should not be deemed to have taken place without ample proof of a design to give up all rights of property and control.2 Mr. Carvalho, Brazilian Minister of Foreign Affairs, to Mr. Phipps, July 21, 1895, For. Rel. 1895, I, 65, 66-67, Moore, Dig., I, 299-300. The acts on the part of Brazil indicating the continuance of its assertion of dominion over the Island, justified the concession of its rights therein by Great Britain. 2 "But when occupation has not only been duly effected, but has been maintained for some time, abandonment is not immediately supposed to be definitive. If it has been voluntary, the title of the occupant may be kept alive by acts, such as the assertion of claim by inscriptions, which would be insufficient to confirm the mere act of taking possession; and even where the abandonment is complete, an intention to return must be presumed during a reasonable time. If it has been involuntary, the question whether the absence of the possessors shall or shall not extinguish their title depends upon whether the circumstances attendant upon and following the withdrawal suggest the intention, or give grounds for reasonable hope, of return." Hall, Higgins' 7 ed., § 34. Such a design might be established by evidence of long-continued and complete neglect of the territory, or of a formal and appropriate declaration of policy. 2 CERTAIN EFFECTS OF CHANGE OF SOVEREIGNTY $120. In General. a The phrase "change of sovereignty" is here employed to describe the situation where one State succeeds to the right of exclusive control within and supremacy over territory possessed by another. Succession implies that rights of sovereignty are already in existence prior to the change, and their lodgment in a State, or a political community regarded as capable of exercising them, and whose title thereto is respected. When a State asserts dominion over territory occupied by an uncivilized people deemed to lack such capacity, no change of sovereignty is apparent. The occurrence is rather illustrative of the coming into being of rights of property and control through the act of an occupant.1 It is believed to be important to distinguish between the legal effect produced by a change of sovereignty and that resulting from the acquisition of what is gained by the transfer. Thus, for example, the question whether or not the cession of territory serves to terminate the operation of any laws within the ceded domain is wholly unrelated to that concerning the extent of the power of the grantee to legislate at will for the territory acquired. The one has reference to the direct consequence of the change of sovereignty itself, the other to the use of something attributable to what that change has already accomplished. 1 Said Lord Kingsdown in the case of the Advocate General of Bengal v. Ranee Surnomoye Dossee: "Where Englishmen establish themselves in an uninhabited or barbarous country, they carry with them not only the laws, but the sovereignty of their own State; and those who live amongst them and become members of their community become also partakers of and subject to the same laws." 2 Moore's Privy Council, n. s. 22, Beale's Cases on Conflict of Laws, ed. of 1900, I, 67, 68. "The acquisition of the Philippines was not like the settlement of the white race in the United States. Whatever consideration may have been shown to the North American Indians, the dominant purpose of the whites in America was to occupy the land. It is obvious that, however stated, the reason for our taking over the Philippines was different. No one, we suppose, would deny that so far as consistent with paramount necessities our first object in the internal administration of the islands is to do justice to the natives, not to exploit their country for private gain. By the organic Act of July 1, 1902, Ch. 1369, Sec. 12, 32 Stat. 691, all the property and rights acquired there by the United States are to be administered 'for the benefit of the inhabit It is necessary to observe with care the extent to which a change of sovereignty serves directly to burden the transferee of territory with the obligations of its predecessor. This is a problem of international law in the solution of which States have been confronted with a variety of considerations the influence of which has varied according to the circumstances of the particular case. The examination of existing practices may, therefore, tend to fortify belief that, save under a few narrowly defined circumstances, discord rather than harmony of view is still prevailing, and that there is lack of evidence of general agreement indicative of the nature and scope of duties to be regarded as possessing the character of law. The scientific value of any conclusions with respect to what interested States have deemed to be burdens legally imposed upon a new sovereign, or concerning the basis upon which rules of conduct should be formulated for future guidance, is believed to depend in no small degree upon the directness and persistence with which the attempt is made to perceive the immediate effect of a change of sovereignty, as distinct from that produced by other events. b § 121. Effect on Legislative and Political Power. A change of sovereignty serves. directly to transfer to the new sovereign all legislative and political power with respect to the territory concerned.1 Its predecessor is rendered incapable of performing any valid act in defiance of the supremacy of the transferee. Thus the former cannot lawfully alienate public lands or grant public franchises.2 No valid disposition thereof can be made ants thereof.' It is reasonable to suppose that the attitude thus assumed by the United States with regard to what was unquestionably its own is also its attitude in deciding what it will claim for its own." Holmes, J., in Cariño v. The Insular Government of the Philippine Islands, 212 U. S. 449, 458-459. 1 "The mere acquisition by one country (A, for example) of the sovereignty over another country (B, for example) produces no other legal effect upon the latter than to give it a new sovereign, and consequently to substitute the legislature and the chief executive of A for those of B; but A and B will still be in strictness foreign to each other, each having its own government, laws, and institutions; and though the legislature and chief executive of each will be the same, yet they will act in an entirely different capacity when acting for B from that in which they act when acting for A." "The Status of Our New Territories", by Christopher C. Langdell, Harv. Law Rev., XII, 365, 387. 2 Harcourt v. Gaillard, 12 Wheat. 523; More v. Steinbach, 127 U. S. 70, 81; Ely's Administrator v. United States, 171 U. S. 220, 231; Alexander v. Roulet, 13 Wall. 386; opinion of Mr. Griggs, Attorney-General, 22 Ops. Attys.-Gen., 574, 577, where there is strangely attributed to the Supreme Court of the United States, in the case of Harcourt v. Gaillard, language not there employed by that tribunal. |