The cession of California to the United States did not impair the rights of private property. Those rights are consecrated by the law of nations and protected by the treaty of Guadalupe Hidalgo. U. S. v. Moreno, 1 Wallace, 400. As to treaty of Guadalupe-Hidalgo, see infra § 154. After conquest such of the habitants as do not remain and become citizens of the victorious sovereign, but, on the contrary, adhere to their old allegiance and continue in the service of the vanquished sovereign, deprive themselves of protection or security to their property, except so far as it may be secured by treaty. Hence, where, on such a conquest, a treaty provided that the former inhabitants who wished to adhere in allegiance to their vanquished sovereign might sell their property, provided they sold it to a certain class of persons and within a time named, the property, if not so sold, became abandoned to the conqueror. U. S. v. Repentigny, 5 Wallace, 211. As to naturalization by territorial change, sce infra § 187. The treaty of Guadalupe-Hidalgo, between the United States and Mexico, did not divest the pueblo, existing at the site of the city of San Francisco, of any rights of property, or alter the character of the interests it may have held in any lands under the former government. It makes no distinction in the protection it provides between the property of individuals and that held by towns under the Mexican Government. Townsend v. Greeley, 5 Wallace, 326. See infra, § 152. By the law of nations a change of government does not affect preexisting rights of property. U. S. v. Roselius et al., 15 Howard, 36; Strother v. Lucas, 12 Peters, 412; Dent v. This rule does not extend to mere inchoate rights of property, such as are of imperfect obligation and affect only the conscience of the new sovereign. Dent v. Emmeger, 14 Wallace, 308. Titles which were perfect before the cession of Louisiana to the United States continued so afterwards, and were in no wise affected by the change of sovereignty. The treaty so provided, and such would have been the effect of the principles of the law of nations if the treaty had contained no provision on the subject. United States v. Roselius, 15 Howard, 31; Strother v. Lucas, 12 Peters, 412; (As to operation of treaties annexing Louisiana, see infra, § 148; annexing Florida, infra, § 161; annexing California and New Mexico, infra, § 154.) After the surrender of New Orleans to General Butler, and the issuing of his proclamation of May 1, 1862, declaring that "all rights of property of whatever kind will be held inviolate, subject only to the laws of the United States," private property in the district under his command was not subject to military seizure as booty of war, though not exempt from confiscation under the acts of Congress as enemies' property, if in truth it was such. Planters' Bank v. Union Bank, 16 Wallace, 483. The division of a country and the maintenance of independent governments over its different parts do not of themselves divest the rights which the citizens of either have to property situate within the territory of the other. Airhart v. Massien, 98 U. S., 491. A Mexican was not, by the revolution which resulted in the independence of Texas, or by her constitution of March 17, 1836, or her laws subsequently enacted, divested of his title to lands in that State, but he retained the right to alienate and transmit them to his heirs, and the latter are entitled to sue for and recover them. Ibid. As to aunoxation of Texas, sec infra, §§ 72, 154. The general principle that when political jurisdiction and legislative power over a territory are transferred from one sovereign to another, the municipal laws of the territory continue in force until abrogated by the new sovereign, is applicable as to territory owned by the United States, the exclusive jurisdiction of which is ceded to them by a State. in a manner not provided for by the Constitution, to so much thereof as is not used by the United States for its forts, buildings, and other needful purposes. Chicago and Pacific Railway Co. v. McGlinu, 114 U. S., 542. The State of Kansas ceded to the United States exclusive jurisdiction over the Fort Leavenworth Military Reservation within that State, then and previously the property of the United States. At the time of the cession a State law was in force in Kansas requiring railroad companies whose road was not inclosed by a lawful fence, to pay to the owners of all animals killed or wounded by the engines or cars of the companies the full value of the animals killed and the full damage to those wounded, whether the killing or wounding was caused by negli gence or not. It was ruled in the Supreme Court that this act remained in force in the reservation after the cession. Ibid. "I understand the decision of the Supreme Court of the United States in the case of Harrison v. Cross (16 Howard, 164-202) to declare its opinion that upon the addition to the United States of new territory by conquest and cession, the acts regulating foreign commerce attach to and take effect within such territory ipso facto, and without any fresh act of legislation expressly giving such extension to the pre-existing laws. I can see no reason for a discrimination in this respect between acts [CHAP. 1. regulating foreign commerce and the laws regulating intercourse with the Indian tribes. There is, indeed, a strong analogy in the two sub jects. The Indians, if not foreigners, are not citizens, and their tribes have the character of dependent nations under the protection of this Government. As Chief-Justice Marshall remarks, delivering the opin ion of the Supreme Court in Worcester v. The State of Georgia (6 Peters, 557) 'the treaties and laws of the United States contemplate the Indian territory as completely separated from that of the States, and provide that all intercourse with them shall be carried on exclusively by the Government of the Union.' "The same clause of the Constitution invests Congress with powerto regulate commerce with foreign nations aud with the Indian tribes.' "The act of June 30, 1834 (4 Stat., 729), defines the 'Indian country, as, in fact, all that part of the United States west of the Mississippi and not within the States of Missouri and Louisiana, or the Territory of Arkansas.' This, by a happy elasticity of expression, widening as our domain widens, includes the territory ceded by Russia." Mr. Seward, Sec. of State, to Mr. Schofield, Jan. 30, 1869, MSS. Dom. Let. "But the decision now made rests on an alleged rule of international law which, assumed, as it now is, by the Government of Chili, becomes a proper matter of discussion between ourselves and that Government. It is asserted by the Government of Chili (for, in international relations, and the maintenance of international duties, the action of the judiciary in Chili is to be treated, when assumed by the Government, as the act of the Government) that a sovereign, when occupying a conquered territory, has, by international law, the right to test titles acquired under his prede cessor by applying to them his own municipal law, and not the municipal law of his predecessor under which they vested. The true principle, however, is expressed in the following passage cited in the memorialist's brief: "But the right of conquest cannot affect the property of private persons; war being only a relation of state to state, it follows that one of the belligerents who makes conquests in the territory of the other cannot acquire more rights than the one for whom he is substituted; and that thus, as the invaded or conquered state did not possess any right over private property, so also the invader or conqueror cannot legitimately exercise any right over that property. Such is to day the public law of Europe, whose nations have corrected the barbarism of ancient practices which place private as well as public property under military law.' [C. Massé, Rapports du droit des gens avec le droit civil. Vol. I, p. 123, § 148-149.] "This doctrine has frequently been acted on in the United States. Thus it has been held by the Supreme Court that when New Mexico was conquered by the United States, it was only the allegiance of the people that was changed; their relation to each other, and their rights of property remained undisturbed. [Leitensdorfer v. Webb, 20 How., 176.] "The same has been held as to California. The rights acquired under the prior Mexican and Spanish law, so it was decided, were 'consecrated by the law of nations.' [U. S. v. Moreno, 1 Wall., 400. See U. S. v. Auguisola, 1 Wall., 352; Townsend v. Greeley, 5 Wall., 326; Dent v. Emmeger, 14 Wall., 308; Airhart v. Massieu, 98 U. S., 491; Mutual Assurance Society v. Watts, 1 Wheat, 279; Delassus v. U. S., 9 Peters, 117; Mitchel v. U. S., 9 Peters, 711; U. S. v. Repentigny, 5 Wall., 211.] "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 countrycannot 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. The Government of the United States is therefore prepared to insist on the continued validity of such titles, as held by citizens of the United States, when attacked by foreign Governments succeeding that by which they [were] granted. Title to land and landed improvements, is, by the law of nations, a continuous right, not subject to be divested by any retroactive legislation of new Governments taking the place of that by which such title was lawfully granted. Of course it is not intended here to deny the prerogative of a conqueror to confiscate for political offenses, or to withdraw franchises which by the law of nations can be withdrawn by Governments for the time being. Such prerogatives have been conceded by the United States as well as by other members of the family of nations by which international law is constituted. What, however, is here denied is the right of any Government to declare titles lawfully granted by its predecessor to be vacated because they could not have been lawfully granted if its own law had, at the time in question, prevailed. This pretension strikes at that principle of historical municipal continuity of Governments which is at the basis of international law." Mr. Bayard, Sec. of State, to Mr. Roberts, Mar. 20, 1886, MSS. Instr. Chili. On the cession of Florida to the United States the jurisdiction and authority of the former sovereign continued in full force until possession of the ceded territory had actually passed. It follows that an importation of goods into the Floridas after the cession, but previously to the S. Mis 162-VOL. I- -2 17 delivery of possession, was an affair between the importer and the Spanish Government, of which the Government of the United States had no right to complain. 1 Op., 483, Wirt, 1821. But goods carried into a port of Florida before the delivery of possession, remaining in port on shipboard until after delivery and then brought into the United States, having never been entered in the Span ish custom-houses, would be subject to the revenue laws of the United States. Ibid. See infra, § 161, as to treaty ceding Florida. Grants of land in Florida made by the King of Spain to the Roman Catholic Church before the cession of that territory to the United States were valid, and were confirmed by the treaty of cession. 1 Op., 563, Wirt, 1822. As to annexation of Louisiana and Florida see infra, §§ 148, 161. V. BENEFITS AND BURDENS PASS TO CONQUERING OR ANNEXING § 5. Under the treaty of the 1st of October, 1800, Louisiana was ceded to the United States in full sovereignty and in every respect, with all its rights and appurtenances, as it was held by the Republic of France and as it was received by that Republic from Spain. New Orleans v. United States, 10 Peters, 662; Strother v. Lucas, 12 Peters, 410. The treaty of Guadalupe Hidalgo imposed upon the Government of the United States the obligation to protect titles to land in California acquired under Mexican rule. Peralta v. U. S., 3 Wallace, 434. Infra, § 154. The Government of the United States, after the cession of Louisiana, succeeded to the sovereign interests of France and Spain in that province, including reservations of the right to use soil for public purposes. Josephs v. U. S., 1 Nett. and H., 197; 2 Nott. and H., 586. But this succession did not authorize the United States to exercise prerogatives of sovereignty not consistent with the Constitution of the United States. New Orleans v. U. S.,10 Pet., 662. As to treaty ceding Louisiana, see infra, § 148. An alliance between two nations cannot absolve either of them from the obligations of previous treaties with third powers. Mr. Adams, Sec. of State, to Mr. De Onis, March 12, 1818. MSS. For. Leg. Notes. |