except in pursuance of the authority of the new sovereign.1 In applying this principle it may become expedient to provide in a treaty of cession that certain valid acts of the grantor prior to the transfer be not robbed of the effect which they were designed to produce, in consequence of circumstances attending or following the change of sovereignty.2

After the conclusion of a treaty of cession, and pending the actual transfer of possession to the grantee, the grantor is doubtless permitted to exercise authority necessary to maintain order and safeguard economic conditions within the territory concerned. During that interval (at least in the case of a treaty which is to take effect from the date of signature, and is ultimately confirmed by both parties) it may be regarded as burdened with the duty of impairing in no manner the value to its successor of its new domain. The Supreme Court of the United States has declared that while in such case "full sovereignty" does not pass to the State to which it is transferred until actual delivery, "it is also true, that the exercise of sovereignty by the ceding country ceases, except for strictly municipal purposes, especially for granting lands." 3

"Law once established continues until changed by some competent legislative power. It is not changed merely by change of sovereignty." This principle has been recognized by American tribunals in its application to laws protecting the private rights 1 More v. Steinbach, 127 U. S. 70, 81.

? See, for example, Art. VIII of treaty between the United States and Spain, of Feb. 22, 1819, providing for the cession of the Floridas, Malloy's Treaties, II, 1654.

3 Davis v. Police Jury of Concordia, 9 How. 280, 289; United States v. Reynes, 9 How. 127; United States v. D'Auterive, 10 How. 609; Montault v. United States, 12 How. 47.

Concerning the authorization by the War Department, February 11, 1899, of persons holding the office of notary public in territories subject to military government by the military forces of the United States, to continue to hold such offices and perform the functions thereof, cf. Mr. Adee, Second Assist. Secy, of State, to Mr. Rooker, February 24, 1899, 235 MS. Dom. Let. 131, cited in Moore, Dig., I, 306, note.

Concerning the authorization of foreign consuls to continue to exercise their functions in the Hawaiian Islands, upon their acquisition by the United States, see Mr. Hay, Secy. of State, to Mr. Grip, Swedish Minister, November 17, 1898, MS. Notes to Swedish Legation, VIII, 109, Moore, Dig., I, 308. As to the provisional recognition of consuls in the Philippines and Porto Rico, upon their cession to the United States, cf. Moore, Dig., I, 309, note. Joseph H. Beale, Cases on Conflict of Laws, III. Summary, Sec. 9, citing Commonwealth v. Chapman, 13 Metc. 68. "There can be no break or interregnum in law. into existence with the first-felt corporateness of last until the final disappearance of human society.

From the time law comes primitive people it must Once created, it per

of the inhabitants of the territory concerned.1 It is not believed that even the public laws of the former sovereign form an exception and are directly affected by the transfer. It is doubtless true that such laws as are at variance with the constitution and laws of the new sovereign cease to operate,2 but the reason for such cessation is not to be ascribed to the bare change of sovereignty. sists until a change takes place, and when changed it continues in such changed condition until the next change, and so on forever. Conquest or colonization is impotent to bring law to an end; in spite of change of constitution, the law continues unchanged until the new sovereign by a legislative act creates a change." J. H. Beale, Treatise on the Conflict of Laws, Cambridge, 1916, Sec. 131.

It must be clear that the construction placed upon the statutory law of the former sovereign by its tribunals prior to a change of sovereignty should be respected by those of its successor after the change. In this connection see Kealoha v. Castle, 210 U. S. 149.

1 Marshall, C. J., in American Insurance Co. v. Canter, 1 Pet. 511, 542; Strother v. Lucas, 12 Pet. 410, 438; United States v. Power's Heirs, 11 How. 570, 577; Chicago & Pacific Ry. Co. v. McGlinn, 114 U. S. 452; Ortega v. Lara, 202 U. S. 339, 342; Vilas v. Manila, 220 U. S. 345, 357; Opinion of Mr. Griggs, Attorney-General, 22 Ops. Attys.-Gen., 526; In re Chavez, 149 Fed. 73; Note in Harv. Law Rev., XIX, 131. Cf., also, Calvin's Case, 4 Coke, Part VII, 3, 39; Blankard v. Galdy, 2 Salkeld, 411; Campbell v. Hall, 1 Cowp. 204.

"We take it to be a well-settled principle, acknowledged by all civilized States governed by law, that by means of a political revolution, by which the political organization is changed, the municipal laws regulating their social relations, duties, and rights are not necessarily abrogated. They remain in force, except so far as they are repealed or modified by the new sovereign authority." Shaw, C. J., in Commonwealth v. Chapman, 13 Metc. 68, 71.

A law the operation of which is, in point of time, expressly or by implication limited to the life of a particular treaty, obviously ceases to exist upon the termination of the compact. That such termination may be brought about by a change of sovereignty over territory of one of the contracting parties, rather than by any other occurrence, is without significance. Doubtless it is possible for a law providing for the enjoyment of special privileges by a class of nationals of a foreign contracting party (such as its consular officers) to survive a treaty itself terminated through the operation of a change of sovereignty. Cf. For. Rel. 1896, lxvii, 117-135; id., 1897, 152-154, respecting the steps taken by France, upon its annexation of Madagascar, to establish its judicial system in that Island and thereby to stop the exercise of judicial functions by American consular officers.

2 "The doctrine invoked by the defendants, that the laws of a conquered or ceded country, except so far as they may affect the political institutions of the new sovereign, remain in force after the conquest or cession until changed by him, does not aid their defense. That doctrine has no application to laws authorizing the alienation of any portion of the public domain, or to officers charged under the former government with that power." Field, J., in More v. Steinbach, 127 U. S. 70, 81.

"Of course, in case of cession to the United States, laws of the ceded country inconsistent with the Constitution and laws of the United States so far as applicable would cease to be of obligatory force; but otherwise the municipal laws of the acquired country continue." Fuller, C. J., in Ortega v. Lara, 202 U. S. 339, 442.

"That there is a total abrogation of the former political relations of the inhabitants of the ceded region is obvious. That all laws theretofore in force which are in conflict with the political character, constitution, or institutions of the substituted sovereign lose their force, is also plain." Lurton, J., in Vilas v. Manila, 220 U. S. 345, 357. See also, Holmes, J., in Panama R. R. v. Bosse, 249 U. S. 41, 44.

It is attributable rather to conditions which are in themselves consequences of that change. The very disappearance of the former sovereign with its distinctive and possibly arbitrary form of government leaves no room for the operation of laws designed to uphold it and contemplating its existence. Again, the fundamental law of the new sovereign may prevent it from accepting a grant of territory without either subjecting it to the application of certain organic institutions, or rendering inoperative existing statutes hostile to the spirit thereof.1

In such cases the change is due to circumstances which, operating simultaneously with the cession, produce an effect not unlike that of an amendatory legislative enactment; and it is to be assigned to the operation of the will of the new sovereign rather than to any other cause.2

The revenue laws of ceded territory do not appear to be affected by a change of sovereignty. When, however, such territory is by

A majority of the Supreme Court (consisting of Justices Gray, Brown, Shiras, White, and McKenna), in the case of Downes v. Bidwell, 182 U. S. 244, concurred in the proposition that "The mere acquisition or cession of a region does not 'incorporate' it into the United States so as to subject it generally to those clauses of the Constitution which restrain and prohibit certain action by the Congress of the United States; but such regions may be temporarily governed, in some respects, at least, as seems most suitable for their own interests and those of the United States." James B. Thayer, "The Insular Tariff Cases in the Supreme Court", Harv. Law Rev., XV, 164, 165.

See, also, the language of Mr. Justice White in Downes v. Bidwell, 182 U. S. 244, 306, 310-311, 314-315, 336; also that of Mr. Justice Brown, id., 279, 285, 287; compare that of Chief Justice Fuller, id., 373; and that of Mr. Justice Harlan, id., 384.

Whether or not the constitution or public policy of a State which acquires territory by cession forbids the enforcement of a particular law of the former sovereign, is obviously not a question of international law, for the solution is dependent upon considerations wholly unrelated to the consequence of a change of sovereignty. New Orleans v. United States, 10 Pet. 662; Ortega v. Lara, 202 U. S. 339, 342.

2 The supplanting of the Dutch control of Manhattan Island by that of the English in the seventeenth century was accompanied by a complete resettlement and change of laws by the latter in pursuance of the charter granted to the Duke of York by his brother, Charles II. Thus it became immaterial whether the Dutch possession was regarded as that of a military occupant temporarily suspending the common law of the de jure sovereign, or as that of an established government exercising fullest rights of sovereignty. Mortimer v. New York Elevated R. R. Co., 6 N. Y. Supp. 898.

"If territory containing a small body of people, not constituting a separate social community, is annexed to another country, the law of the latter country at once takes effect, since the new territory and inhabitants are by the annexation itself incorporated with the old, Chappell v. Jardine, 51 Conn. 64; but if the annexed territory contained a separate political society, their old laws would continue, as in the case of the annexation of Florida." Beale's Cases on Conflict of Laws, Summary, Sec. 10.

3 Taney, C. J., in Fleming v. Page, 9 How. 603; Mr. Griggs, AttorneyGeneral, 22 Ops. Attys.-Gen., 150. Compare Cross v. Harrison, 16 How. 164. After France had acquired control over Madagascar in 1896, the new sov

some domestic process incorporated into or united with the country of the grantee, those laws may be in fact changed. This is obviously due to the fact of incorporation however accomplished, rather than to the transfer of sovereignty.

In the case of Dooley v. United States, a majority of the Supreme Court of the United States concluded that the authority of the President as Commander in Chief of the Army, to exact duties in 1899, on imports from the United States to Porto Rico, ceased with the ratification of the treaty of peace with Spain, and that the right of free entry of goods into that island from the ports of the United States continued until Congress should properly legislate upon the subject. The opinion of the Court made no reference to the legal effect of cession on the laws of ceded territory, although it was declared that the validity of the order of the President imposing duties upon goods imported into Porto Rico from foreign countries was not questioned.2

d

Effect on Public Debts
(1)

$123. In General.

Statesmen have found it an illusive task to determine what should be regarded as the effect produced upon the public debts of a State by a change of sovereignty over a part or all of its terriereign enacted a law declaring Madagascar and its depending islands a French colony, and announcing that after the promulgation of that law French products imported into the island from France or one of her colonies would pay no duty, and that until the adoption of the definitive customs regulations, foreign goods would pay a duty of 10 per cent. ad valorem. It will thus be seen that it was by means of the act of the new sovereign and not as a consequence of a change of sovereignty, that the revenue laws of Madagascar were altered. U. S. For. Rel. 1896, 134-135.

1 182 U. S. 222. See, also, dissenting opinion of Mr. Justice White, id., 236.

2 The decision was due to the opinion that the President could not, for constitutional reasons, continue the exaction of duties imposed by him during the military occupation of Porto Rico after that island had been ceded to the United States pursuant to the ratification of the treaty. See well-considered note in Harv. Law Rev., XV, 220.

The important opinions of the several Justices of the Supreme Court of the United States in the group of cases known as the Insular Cases, concern generally the relation of the Constitution of the United States to the territory ceded by Spain in the treaty of Dec. 10, 1898. They relate specifically to the extent of the legislative and administrative power of the new sovereign (Downes v. Bidwell, 182 U. S. 244; Dooley v. United States, 183 U. S. 151); or of its executive (Dooley v. United States, 182 U. S. 222); or to the application of existing revenue laws of such sovereign on imports from the newly acquired lands (De Lima v. Bidwell, 182 U. S. 1; Fourteen Diamond Rings v. United

tory. Divergent practices have been reflected in treaties of cession. Respecting the significance of those by which the successor to the sovereignty has assumed any measure of the burden of its predecessor, there has been controversy. Writers who have denied that such agreements prior to The World War were indicative of a practice acknowledging a legal duty, have, nevertheless, admitted that the transfer of sovereignty oftentimes begets a moral obligation which may still be disregarded without impropriety. Such admissions reveal the course which the development of the law should follow. When it is perceived that a moral obligation rests upon a State to accept a particular burden with respect to any other of its nationals, there is at once apparent a solid reason for the claim that practice should shape itself accordingly and evolve a rule of law stamping evasion with an illegal character. It is appropriate, therefore, at the present time to observe with care not only what appears to be the evidence of legal duties recognized as such, but also the nature of equities which ought to affect the consciences and therefore limit the freedom of action of the transferees of territory.

The existence and extent of any duty causing a new sovereign to assume the public debt of its predecessor must be examined with reference to distinct lines of inquiry.2 At the outset it is necessary to observe the relation which the territory subjected to transfer bears to the domain of the former sovereign; whether, for example, as in the case of the relinquishment by Spain of sovereignty over Cuba, the territory concerned is merely a part, States, 183 U. S. 176). In one case, Dooley v. United States, 182 U. S. 222, the scope of the right of the President to exercise the powers of a military occupant preceding the ratification of a treaty of cession of territory, became a matter of adjudication.

1

See, for example, Arthur B. Keith, Theory of State Succession, 60-65, in contrast with the views expressed by Max Huber in Die Staatensuccession. See, also, discussion in E. M. Borchard, Diplomatic Protection, § 83; Hall, Higgins' 7 ed., 94, note 1; Coleman Phillipson, Termination of War and Treaties of Peace, 322-326; Oppenheim, 2 ed., I, §§ 80-85

2 Documents in Moore, Dig., I, 334-385. See, also, in general, Henri Appleton, Des effets des annexions de territoires sur les dettes de l'État démembré ou annexé, et sur celles des Provinces, Départements, etc., annexés, Paris, 1894; Bonfils-Fauchille, 7 ed., §§ 222-228 (2); E. M. Borchard, Diplomatic Protection, § 83; Bluntschli, Droit International Codifié, 5 ed., French translation by Lardy, §§ 46-61; Arrigo Cavaglieri, La Dottrina della Successione di Stato a Stato, Pisa, 1910; Maurice Costes, Des Cessions de Territoires, Paris, 1914; Pasquale Fiore, International Law Codified, English translation by Borchard, §§ 157-158; Hall, Higgins' 7 ed., §§ 27-29; A. S. Hershey, "The Succession of States", Am. J., V, 285; Max Huber, Die Staatensuccession, Leipzig, 1898, §§ 125-175; Arthur B. Keith, Theory of State Succession, London, 1907, Chap. VIII; Oppenheim, 2 ed., I, §§ 80-84; Coleman Phillipson, Termination of War and Treaties of Peace, London, 1916, 40-44, 322326; Westlake, 2 ed., I, 74-83.