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; 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.1

Cases may arise, however, where the underlying principle is inapplicable. Thus the right of property may take the form of a grant the duration of which by necessary implication is dependent upon the possession of political power by the existing sovereign. In such case it has been held that no property as such survives the loss of sovereignty.2

The United States has demanded that the private property

17 Pet. 51, 86-87; Moore, Dig., I, 416. See, also, Wilcox v. Henry, 1 Dall. 69; Mutual Assurance Society v. Watts's Ex'r., 1 Wheat. 279; De la Croix v. Chamberlain, 12 Wheat. 599, 601; United States v. Arredondo, 6 Pet. 691 United States v. Clarke, 8 Pet. 436; Delassus v. United States, 9 Pet. 117, 133; Mitchel v. United States, 9 Pet. 711, 734; Smith v. United States, 10 Pet. 326; Strother v. Lucas, 12 Pet. 410, 436; United States v. Heirs of Clarke, 16 Pet. 228, 231-232; United States v. Moreno, 1 Wall. 400; Coffee v. Groover, 123 U. S. 1; Astiazaran v. Santa Rita Land and Mining Co., 148 U. S. 80; United States v. Chaves, 159 U. S. 452, 547; Rio Arriba Land and Cattle Company v. United States, 167 U. S. 298, 309; Ely's Adm. v. United States, 171 Ú. S. 220, 223; Ainsa v. New Mexico and Árizona Railroad Co., 175 U. S. 76, 79; Barker v. Harvey, 181 U. S. 481, 486; Ponce v. Roman Catholic Church, 210 U. S. 296, 324; Panama R. R. Co. v. Bosse, 249 U. S. 41, 44.

See, also, Mr. Bayard, Secy. of State, to Mr. Roberts, Mar. 20, 1886, MS. Inst. Chili, XVII, 196, 200, Moore, Dig., I, 421, 422, where it was said: "The Government of the United States therefore holds that titles derived from a duly constituted prior foreign Government to which it has succeeded are 'consecrated by the law of nations' even as against titles claimed under its own subsequent laws. The rights of a resident neutral - having become fixed and vested by the law of the country - cannot be denied or injuriously affected by a change in the sovereignty or public control of that country by transfer to another Government. His remedies may be affected by the change of sovereignty, but his rights at the time of the change must be measured and determined by the law under which he acquired them."

2 O'Reilly de Camara v. Brooke, 209 U. S. 45, where it was held that the holder of a heritable office in Cuba which had been abolished prior to the extinction of Spanish sovereignty, but who, pending compensation for its condemnation, was receiving the emoluments of one of the grants of the office, "had no property that survived the extinction of the sovereignty of Spain.' See, also, decision of Mr. Root, Secy. of War, Dec. 24, 1900, Magoon's Reports, 209, Moore, Dig., I, 429; also Magoon's Reports, 194. See, also, Alvarez y Sanchez v.. United States, 216 U. S. 167, affirming 42 Ct. Cl. 458. See in this connection Percy Bordwell, "Purchasable offices in ceded territory", Am. J., III, 119; also F. B. Sayre, id., XII, 705, 717–718.

of its nationals in countries not possessed of European civilization, and not belonging to States recognized as such, should, nevertheless, be respected, upon the establishment of rights of sovereignty therein by an acknowledged member of the family of nations.1

The general principle enunciated in the Percheman case has received repeated recognition in treaties of cession concluded by the United States, and pursuant to which it became the grantee of territory. These agreements have been looked upon as merely declaratory of the law of nations.3

1 Mr. Bayard, Secy. of State, to Mr. Pendleton, Feb. 27, 1886, MS. Inst. Germany, XVII, 602, Moore, Dig., I, 422-423; same to Mr. Morrow, Feb. 26, 1886; 159, MS. Dom. Let. 177, Moore, Dig., I, 423, note; same to the Portuguese Minister, Mar. 3, 1886, For. Rel. 1886, 772, Moore, Dig., I, 424; same to Mr. von Alvensleben, German Minister, Mar. 4, 1886, For. Rel. 1886, 333, Moore, Dig., I, 424; Mr. Foster, Secy. of State, to Mr. White, Chargé at London, Nov. 5, 1892, For. Rel. 1892, 237 239, Moore, Dig., I, 425–426. See, also, message of President Cleveland on Fiji Island claims against Great Britain, Feb. 14, 1896; report of Mr. Olney, Secy. of State, Feb. 14, 1896; report of George H. Scidmore, July 3, 1893, all contained in For. Rel. 1895, I, 739

et seq.

See, for example, Art. III, treaty with France, April 30, 1803, providing for the cession of Louisiana, Malloy's Treaties, I, 509; Art. VIII, treaty with Spain, Feb. 22, 1819, id., II, 1654; Arts. VIII and IX, treaty with Mexico, Feb. 2, 1848, id., I, 1111-1112; Art. III, treaty with Russia, Mar. 30, 1867, id., II, 1523; Arts. IX and XIII, treaty with Spain, Dec. 10, 1898, id., 16931694.

It is believed that the following provision contained in Art. II of the convention between the United States and Denmark of Aug. 4, 1916, providing for the cession of the Danish West Indies, contains significant recognition of the underlying principle involved: "But it is understood that this cession does not in any respect impair private rights which by law belong to the peaceful possession of property of all kinds by private individuals of whatsoever nationality, by municipalities, public or private establishments, ecclesiastical or civic bodies, or any other associations having legal capacity to acquire and to possess property in the islands ceded." Treaty Series No. 629; Am. J., XI, Supp. 54. Also, Art. X, treaty of peace between Russia and Japan, Aug. 23 (Sept. 5), 1905, For. Rel. 1905, 826; Art. XI, treaty between Turkey and Greece, Nov. 1 (14), 1913, Coleman Phillipson, Termination of War and Treaties of Peace, 452; Am. J., VIII, Supp. 49.

Cf. Report of Mr. Magoon, law officer, Division of Insular Affairs, War Department, Mar. 27, 1901, as to the protection under Arts. I and VIII, the treaty of peace with Spain, Dec. 10, 1898, of trade-marks in Cuba and the Philippines, previously registered at the Bureau for the Protection of Industrial Property at Berne, Magoon's Reports, 305. See, also, report of the same officer, Apr. 16, 1901, on the Right of the municipality of Habana to exercise over property owned by said city the rights which by law belong to the peaceful possession of the property." Id., 541; report of same officer, April 20, 1901, on "Certain rights of municipalities in Cuba." Id., 374; report of same officer, May 22, 1900, on "Mining claims and appurtenant privileges in Cuba, Porto Rico, and the Philippines." Id., 351. See, also, in re certain revocable licenses in Porto Rico. Id., 650.

3 Soulard v. United States, 4 Pet. 511; Delassus v. United States, 9 Pet. 117, 133; Dent v. Emmeger, 14 Wall. 308, 312; Ponce v. Roman Catholic Church, 210 U.S. 296, 324. Also Moore, Dig., I, 416. See A. B. Keith, Theory of State Succession, 79-84, concerning British practice and certain difficulties incidental thereto.

$133. The Same.

By the treaty of peace with Germany of June 28, 1919, the Allied and Associated Powers reserved the right to retain and liquidate all property, rights and interests belonging, at the date of the coming into force of the treaty, to German nationals, or companies controlled by them, within territory detached from Germany by cession (as well as within the territories, colonies, possessions and protectorates of those Powers). This action was based upon the theory that it was necessary to utilize enemy private property within places subject to the control of the Allied and Associated Powers as a means of enabling them to recover a part of their claim against Germany. The application of measures of liquidation to private property within ceded territory was merely incidental to the broader claim enforced against the grantor. Nor did it appear to have any bearing upon the principle of international law with respect to the effect of transfer of sovereignty. It should be observed that Germany undertook to compensate its nationals in respect of the sale or retention of their property, rights or interests "in Allied or Associated States", and that those States did not admit that their action was confiscatory.3

2

As the grantee of territory the United States has been regarded by the Supreme Court as having assumed the duty to treat as property requiring protection under the terms of appropriate treaties, equitable as well as legal titles to lands, and such as would have been a charge upon the conscience of the former sovereign.1 Thus the absence of a legal title at the time of cession has not

1 Arts. 297, 298, and Annex following the latter. Also Arts. 249, 250, and Annex following the latter, of the treaty of peace between the Principal Allied and Associated Powers, and Austria, of Sept. 10, 1919.

2 Art. 297 (i) of treaty of peace with Germany.

3 Reply of the Allied and Associated Powers, of June 16, 1919, to Observations of the German Delegation on conditions of peace, Misc. No. 4, 1919, (Cmd.) 258, 51-54. Also provisions of Art. 253 saving from prejudice in any manner from the operation of previous provisions "charges or mortgages lawfully effected in favour of the Allied or Associated Powers or their nationals respectively, before the date at which a state of war existed between Germany and the Allied or Associated Power concerned, by the German Empire or its constituent States, or by German nationals, on assets in their ownership at that date." Cf. infra, §§ 621–622.

4 Strother v. Lucas, 12 Pet. 410, 436, where it was stated: "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."

been fatal to a claimant, when he had received an unconditional grant, valid according to the law of the former sovereign, and from which he might have obtained a legal title had not the transfer taken place.1 Where the former sovereign imposed a condition precedent which was not performed by the claimant either prior to the cession or thereafter, and no excuse for non-performance was shown, no equitable title has been deemed to survive the change of sovereignty and burden the grantee. The situation has been otherwise regarded, however, where the condition imposed by the grantor State was a condition subsequent, of which performance was rendered impossible by the act of the grantor (through its cession of territory) and was a matter of no importance to the grantee State.3

The United States has been unwilling to admit that the cession to itself of territory has served to lessen the duty of the grantee of land, or so to diminish the burdens of an individual claimant as to transform an equitable into a legal title. It has frequently been declared by the Supreme Court that the duty of providing a mode or system for the establishment of rights of private and immovable property, and of ascertaining thereby the extent of the obligation of the new sovereign, rests upon the political department

1 Delassus v. United States, 9 Pet. 117, 133-135. See, also, Mitchel v. United States, 9 Pet. 711, 734; United States v. Clarke, 9 Pet. 168; United States v. Heirs of Clarke, 16 Pet. 228, 231-232.

2 United States v. Kingsley, 12 Pet. 476, 485; also United States v. Mills's Heirs, 12 Pet. 215.

3 United States v. Arredondo, 6 Pet. 691, 745–746.

"The true rule of law would seem to be that the receiving State should have the right at the time of cession to declare that it will not allow under its jurisdiction and law the further completion of title by the performance of unfulfilled conditions, and will therefore grant titles only to such claimants as are at the time of cession substantially owners of the interest claimed. Where no such declaration is made, however, it would seem that the receiving State should be compelled to perfect the titles of claimants who have in good faith performed after cession the unfulfilled conditions of their grants before the expiration of the time allowed in the condition." Francis B. Sayre, "Change of Sovereignty and Private Ownership of Land", Am. J., XII, 475, 488.

4 Thus, it was said in De la Croix v. Chamberlain: "It may be admitted, that the United States were bound, in good faith, by the terms of the treaty of cession, by which they acquired the Floridas, to confirm such concessions as had been made by warrants of survey; yet, it would not follow, that the legal title would be perfected until confirmation. The Government of the United States has, throughout, acted upon a different principle in relation to these inchoate rights, in all its acquisitions of territory, whether from Spain or France. Whilst the Government has admitted its obligation to confirm such inchoate rights or concessions as had been fairly made, it has maintained, that the legal title remained in the United States, until, by some act of confirmation, it was passed, or relinquished to the claimants. It has maintained its right to prescribe the forms and manner of proceeding in order to obtain a confirmation, and its right to establish tribunals to investigate and pronounce upon their fairness and validity.' 12 Wheat. 599, 601. See, also, Cessna v. United States, 169 U. S. 165, 186–187.

of the Government,' and that that department may reasonably demand that the validity of a title derived from a prior sovereign be judicially determined.2

The validity of any act attributable to the former sovereign as such must be obviously tested according to its laws. The new sovereign may, however, exercise its own judgment in determining what shall be required as proof of the validity of acts of its predecessor.4

The law of nations imposes no duty upon a State to permit nonresident aliens to retain title to immovable property within the national domain. The new sovereign may, therefore, not unreasonably demand that the retention of ownership of such property be dependent upon the continued residence of the owners therein, and upon the severing of any existing ties of allegiance to the former sovereign. Thus treaties of cession not infrequently provide that the existing owners of immovable property desirous of retaining their national character, be given reasonable opportunity to dispose of their holdings. The terms of a treaty may not,

1 De la Croix v. Chamberlain, supra; Astiazaran v. Santa Rita Land and Mining Co., 148 U. S. 80, 81; United States v. Santa Fé, 165 U. S. 675, 714; Ainsa v. New Mexico and Arizona Railroad Co., 175 U. S. 76, 79.

2 See Ainsa v. New Mexico and Arizona Railroad Co., supra. The opinion of the court by Mr. Justice Gray contains a summary of the several acts of Congress providing for the confirmation of titles of claimants to lands in Louisiana, the Floridas, California and New Mexico, granted by the former sovereigns of those territories. See, also, Florida v. Furman, 180 U. S. 402; Barker v. Harvey, 181 U. S. 481.

Mr. Bayard, Secy. of State, to Mr. Roberts, Mar. 20, 1886, MS. Inst, Chili, XVII, 196, 200, Moore, Dig., I, 421-422; United States v. Clarke, 8 Pet. 436, 450, with reference to Art. VIII of the treaty with Spain of Feb. 22, 1819, providing for the protection of certain Spanish grants of land in the territories ceded. Also Kealoha v. Castle, 210 U. S. 149.

Hayes v. United States, 170 U. S. 637, 647, with reference to the Act of Congress of March 3, 1891, creating a Court of Private Land Claims for the adjustment of land titles in Mexico and Arizona, as compared with certain earlier legislation of Congress; also Ely's Admr. v. United States, 171 U. S. 220, 224; United States v. Elder, 177 U. S. 104; Whitney v. United States, 181 U. S. 104, 114. Compare the statutes construed in United States v. Arredondo, 6 Pet. 691, with reference to grants by the Spanish Crown in Florida, and United States v. Peralta, 19 How. 343, with reference to prior grants in California.

In his paper on "Change of Sovereignty and Private Ownership of Land", Am. J., XII, 475, 495, Prof. Francis B. Sayre concludes: "There can be no question that United States courts will not allow a mere cession of territory to the United States to injure or abrogate vested rights of land ownership, legal or equitable, held by individuals at the time of cession. It is equally clear that United States courts will feel free to disregard mere expectant rights which could not have been enforced as of right in the courts of the ceding State. Grants which were unenforceable before cession either because of unperformed conditions, or because of the indefiniteness of the grant, or because of the want of power in the granting officer or imperfection in the grant itself, will clearly not be upheld by United States courts."

See, for example, Art. IX, treaty between the United States and Spain,