political but not rights of § 24. It has already been remarked that, in the transfer of Conquest territory by conquest or cession, the political rights of its in- changes habitants may be essentially changed. This results from a rights, difference in the powers and character of governments, as depending upon their constitutions or fundamental laws. The property new government may not be capable of receiving or exercising all the powers of the old one, or it may not extend to the governed all the political rights which they enjoyed under the former sovereign. But a change of sovereignty is not, in modern times, permitted to effect any change in the rights of private property. What was the property of the former sovereign becomes the property of the new one, and what was the property of individuals before, remains private property, notwithstanding the conquest or cession. 'The modern usage of nations,' says Chief Justice Marshall, speaking of the transfer of a country from one government to another, 'which has become a law, would be violated; that sense of justice and of right which is acknowledged and felt by the whole civilised 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.' The rule of international law, thus clearly enunciated by the Supreme Court of the United States in 1833, has since been repeatedly recognised in the decisions of the same tribunal.' property § 25. As the new State merely displaces the former sove- Title to reignty, and acquires, by cession or complete conquest, no private claim or title whatever to private property, whether of individuals, municipalities, or corporations, and as it assumes the duties and obligations of the former sovereign with respect to private property within such acquired territory, it is conse 1 United States v. Perchman, 7 Peters R., 87; Mitchel v. the United States, 9 Peters R., 734; Strother v. Lucas, 12 Peters R., 38; New Orleans v. the United States, 10 Peters R., 720; Riquelme, Derecho Púb. Int., lib. i. tit. ii. cap. 12. Territory conquered during the progress of a war, is considered, for all commercial and belligerent purposes, as a part of the domain of the conqueror, so long as he continues in its possession and government. Whatever, then, may be the general commercial or political character of a proprietor of land, in such territory, the possession of the soil impresses upon him its own character, so far as its produce is concerned, in the transportation to another country. (Thirty Hogsheads of Sugar v. Boyle, 9 Cranch., 191.) Necessity quently bound to recognise and protect all private rights in lands, whether they are held under absolute grants or inchoate titles, for property in land includes every class of claim to real estate, from a mere inceptive grant to a complete, absolute, and perfect title. A mere equity is protected by the law of nations as much as a strictly legal title. In the words of Chief Justice Marshall, the term "property," as applied to lands, comprehends every species of title, incohate or complete. It is supposed to embrace those rights which lie in contract; those which are executory; as well as those which are executed. In this respect the relation of the inhabitants to their government is not changed. The new government takes the place of that which has passed away.'1 § 26. We are of opinion that the above rule of interof reme- national law laid down by Chief Justice Marshall, and repeated in numerous decisions of the Supreme Court of the United States, is correct. It not unfrequently happens, however, that much injustice and inconvenience will result to the owners of property in a ceded or conquered territory, by the transfer of themselves and their property from one system of laws to another very different from the first, and wholly inadequate to afford remedies for a violation of the rights of property. And as the law of nations and the usage of the civilised world impose upon the new sovereignty the duty to maintain and protect the property of the conquered inhabitants, it is bound to take the necessary steps to clothe equities with a legal title, so as to bring them within the scope of legal remedies under its own laws. It is with this view that Congress has usually passed remedial Acts for the ascertainment and recognition of lands of private ownership in territories acquired by the United States. Although the 1 Soulard et al. v. the United States, 4 Peters R., 512; Mitchel et al. v. the United States, 9 Peters R., 733; United States v. Perchman, 7 Peters R., 51; Chouteau's heirs v. the United States, 9 Peters R., 137. It was decided by the Supreme Court of the United States that, in cases of conquest, the conqueror does no more than replace the sovereign and assume dominion over the country. A cession of territory is never understood to be a cession of the property of the inhabitants. The king cedes only that which belongs to him; lands he had previously granted were not his to cede. The cession of a territory should necessarily be understood to pass the sovereignty only, and not to interfere with private property. No construction of a treaty which would impair that security to private property, and which the laws and usages of nations would, without express stipulation, have conferred, would seem to be admissible, further than its positive words require. (Strother v. Lucas, 12 Pet., 410.) maintenance of such property may be fully guaranteed by the law of nations and the stipulation of treaties, yet, in order to place it under the careful guardianship of our municipal laws, it is necessary to invest it with a new attribute of a legal title, without which the owner may be unable either to maintain his own possession or eject an intruder. For example, a right or title to lands which, under Spanish or Mexican law, is abundantly sufficient for the security and protection of the owner in his rights, may be utterly useless for such purposes under our laws, as it neither secures him in the possession and enjoyment of his property, nor enables him to bring a suit to eject an aggressor. A refusal or neglect to pass the necessary remedial acts in such cases, so as to invest equities with such legal attributes as will place all private property, of whatsoever description, under the guardianship of our laws, would be a violation of the obligations imposed upon us by the law of nations and the usage of the civilised world. A delay in applying such remedies is often equivalent to a denial of justice, or a confiscation of private property, and is, therefore, a breach of public law and a violation of national faith.' conquest on the of the § 27. It follows, from the principles laid down in this and Effect of the preceding chapters, that complete conquest, by whatever mode it may be perfected, carries with it all the rights of the property former government; or, in other words, the conqueror, by the state completion of his conquest, becomes, as it were, the heir and universal successor of the defunct or extinguished State. As his rights are no longer limited to mere occupation, or to what he has taken physically into his possession, they extend not only to the corporeal property of the State, as real estate and movables, but also to its incorporeal property, as debts, &c. And as his imperium has become established over the whole State, he is considered, in law, as in possession of the things (corpora), and the rights (jura) to things which appertain to such imperium, and may use and dispose of them as his own. It was on this ground that the validity of Alexander's gift to the Thessalonians was principally sustained, and those who advocated the claim of Thebes, did so, mainly, on the supposition that the conquest was not complete, and that the absolute and entire dominion over the universal successorship 1 U. S. Statutes at Large, vol. x. p. 63; United States v. Reading, 8 How. R., 8 The alienated do Hesse- to Thebes had not accrued to Alexander.' Jurists have much more difficulty in agreeing upon the question of the completion of the conquest, prior to the restoration of the former sovereign, than upon the legal consequences to be deduced from the conquest when complete; and it is only in case of a restoration that any question arises with respect to the right of the conqueror to dispose of either the domains or debts of the conquered State. § 28. When the allied powers of Europe overthrew the mains of dynasty of Napoleon, and restored to the countries which he had subdued their legitimate sovereigns, no general provision was made in the peace of Paris for the protection of rights acquired under the de facto rulers (the amnesty provided for in the 27th article being limited in its extent); nevertheless reason, good sense, and the law of nations were generally allowed to prevail, and rights and titles so acquired were left undisturbed. The only exceptions were confined to one or two small German States, and these were considered as most 1 See ante, ch. xxxiii. § 29; Phillimore, On Int. Law, vol. iii. §§ 561, 562; Heffter, Droit International, §§ 185, 186; Schwartz, De Jure Victoris, &c., thes. 27. It was held, by the Rolls Court of Great Britain, that if a foreign power takes prisoner an enemy, and thereby obtains possession of documents, establishing his right to a debt due from another, to him, in his private capacity, the prisoner is entitled to relief in equity; the circumstance that the foreign power is also the debtor will not alter the right; but if such documents are the property of the prisoner, in his sovereign character, and are taken possession of by the conqueror in the exercise of his sovereign and political rights, that Court could not interfere. (Wadeer v. the East India Company, 7 Jur. (N.S.), 350. See also the Secretary of State for India v. Kamachee Boye Sahaba, 7 Moo. Ind. App. Cas., 476.) An ordinance was made by the Government of Denmark in 1817, pending hostilities with Great Britain, whereby all ships, goods, money, and money's worth, of or belonging to the English subjects, were declared to be sequestrated and detained, and all persons were commanded, within three days, to transmit an account of debts, due to English subjects, in default of which they were to be proceeded against in the Exchequer; in consequence of this a suit then depending in the Danish Court, for recovering a debt due from a Danish to a British subject, was not further prosecuted, and the debt was afterwards paid by the Danish subject, at the rate specified by the ordinance, to commissioners appointed in virtue of the ordinance to receive payment, upon production of whose receipt the Danish Court quashed the suit. This was held, in the British Court of King's Bench, to be no answer to an action against the Danish subject, to recover the same debt in the courts of Great Britain, for the ordinance not being conformable to the usage of nations was held to be void. (G. Wolff and others v. Oxholm, 6 Mau. and Selw., 92. The question of Alexander and the 100 talents of the Thebans is discussed in this case. See also Recueil d'Arrêts Notables des Cours Souveraines de France, by Johan Pepon, Paris, 1601, 4to.) discreditable to the petty sovereigns who made them. The most noted of these was the Prince of Hesse-Cassel, who was driven from the Electorate in 1806, and not restored till about the beginning of 1814. His country had remained about a year under the military government of Napoleon, and was then incorporated into the newly-formed kingdom of Westphalia, of which Jerome Bonaparte was recognised as king, by the peaces of Tilsit and Schönbrunn. On his return to his hereditary dominions, in 1814, the Prince refused to recognise the validity of the alienations of the domains of his country, which had taken place under the de facto governments, since his expulsion, in October 1806; the purchasers of these lands were deprived of their possessions which they had purchased and paid for in good faith, and which had been delivered to them with every formality of law. The supreme court of appeal, in Cassel, was stopped by an inhibitorium from taking cognisance of the matter, and the unfortunate proprietors were, in some instances, driven from their possessions by a troop of the Elector's hussars. They appealed in vain for protection to the Congress of Vienna; Prussia, through the mouth of her chancellor, Prince von Hardenberg, declared in their favour; but the other nations represented in that Congress gave no heed to the complaints made against a prince whom they had just restored to power. Resort was then had to the German Confederation, but this modern Amphictyonic assembly either could not, or would not, interfere between a sovereign prince and his own subjects. Public jurists, however, have not failed to condemn the conduct of the Elector, as contrary to law and justice. His pretext for denying the validity of these alienations was mainly founded upon the lex de captivis et postliminio' of the Roman law; but it was readily shown that this law could not be applied directly, and that the argument deduced from its analogy was adverse to his position. He virtually acknowledged the weakness of his case, by refusing to arbitrate the question, or even to permit his own courts to take cognisance of it.' 1 Pfeiffer, Das Recht der Kriegseroberung, p. 237; Schweikart, Napoleon und die Curh., pp. 60 et seq.; Rotteck und Welcker, Staats-Lexicon, verb. 'Domainenkäufer;' Conversations-Lexicon, verb. 'Domainenverkauf;' Koch, Hist. de Traités de Paix, tome iii. p. 364; Encyclopædia Americana, verb. 'Domain,' Digest xlix. t. xv. 12, 3; Phillimore, On Int. Law, vol. iii. §§ 573, 574. VOL. II. K K |