territoire, et transfere au nouveau souverain la propriété du domaine public de son cedant. Il n'en est pas de même de la propriété privé qui demeure incommutable entres les mains de ses legitimes possesseurs.'" Concessions of the nature of those which were the subject of our enquiry presented examples of mixed public and private rights: they probably continue to exist after annexation until abrogated by the annexing state," and, as matter of practice in modern times, where treaties have been made on the cession of territory, have been often maintained by agreement. In considering what the attitude of a conqueror should be towards such concessions we are unable to perceive any sound distinction between a case where a state acquires part of another by cession, and a case where it acquires the whole by annexation. The opinion that in general private rights should be respected by the conqueror, though illustrated and supported by jurists by analogies drawn. from the Roman law of inheritance, is based on the principle, which is one of ethics rather than of law, that the area of war and of suffering should be, so far as possible, narrowly confined, and that non-combatants should not, where it is avoidable, be disturbed in their business; and this principle is at least as applicable to a case where all as where some of the provinces of a state are annexed.

"10. Though we doubt whether the duties of an annexing State towards those claiming under concession or contracts granted or made by the annexed State have been defined with such precision in authoritative statement, or acted upon with such uniformity in civilized practice as to warrant their being termed rules of international law, we are convinced that the best modern opinion favors the view that, as a general rule, the obligations of the annexed State towards private persons should be respected. Manifestly the general rule must be subject to qualification, e. g., an insolvent State could not by aggression, which practically left to a solvent State no other course but to annex it, convert its worthless into valuable obligations; again, an annexing State would be justified in refusing to recognize obligations incurred by the annexed State for the immediate purposes of war against itself; and probably no State would acknowledge private rights, the existence of which caused, or contributed to cause, the war which resulted in annexation.

"11. Subject to these reservations His Majesty's Government in dealing with the concessions in question will probably be willing to adopt the principle which, in the case of the annexation of Hanover by Prussia (the modern case most nearly corresponding with that under consideration), was proclaimed by the conquerors in the follow

a Calvo. Le Droit International, 2478. Halleck. Interna. Law, p. 831. Prussia and Netherlands, 1816.

Peace of Zurich, 1859. France and Sardinia, 1860. Peace of Vienna, 1864. Cession of Venetia, 1866. Germany and France, 1871. Great Britain and Germany, 1890.

Huber, Staaten Succession, p. 149. Martens Nouveau Recueil.

ing terms: We will protect everyone in the possession and enjoyment of his duly acquired rights.' (Royal Prussian Patent, 3rd Oct., 1866.)

12. The acceptance of this principle clearly renders it necessary that the annexing government should in each case examine whether the rights which it is asked to recognize have, in fact, been duly acquired. It is an obvious corollary that the rights in question must be valid not only by reason of due acquisition in the first instance, but by reason of their conditions having been subsequently duly performed. "13. Applying these principles more in detail to the case of the concessions with which we have had to deal, we have come to the conclusion that the cancellation of a concession may properly be advised when

(i) The grant or the concession was not within the legal powers of the late government; or,

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(ii) Was in breach of a treaty with the annexing State; or,

(iii) When the person seeking to maintain the concession acquired it unlawfully or by fraud; or

(iv) Has failed to fulfill its essential conditions without lawful

excuse.

"In any case, falling within these categories, where there has either been no duly acquired' right, or there has been a nonfulfillment of essential conditions by the concessionaire, cancellation or modification without compensation appears to us, in the absence of special circumstances, to be justifiable.

14. We further think that the new government is justified in cancelling or modifying a concession when

“(v) The maintenance of the concession is injurious to the public interest.

15. In this last case, however, the question of compensation arises, inasmuch as it would be inequitable that a concessionaire should lose without compensation a right duly acquired, and whose conditions he had duly fulfilled, because the new government differed from the old in its view as to what was, or was not, injurious to public interest even though the opinion of the new government were obviously the true one. We do not consider the actual amount of compensation payable as a matter within the scope of our inquiry, but we submit the following observation as to the principles relevant to the question:

"In determining the amount of compensation in respect of losses sustained by the owner of a concession cancelled or modified as injurious to the public interest, regard may justly be paid to the question whether the owner, at the time when he received or acquired the concession, knew, or reasonably ought to have known, that it was precarious. A concession may be precarious for many reasons, but it certainly is so if the subject-matter of it is closely related to large and changing public interests. In such matters, no reasonable man can anticipate that a government can indefinitely fetter the legislation

of the future; and indeed, in countries such as Great Britain, where opinion is tender to vested interests, modification without compensation has been made in the statutory powers and privileges of undertakings incorporated under Parliamentary powers and relating to gas, water, electric light, public transport, and other subjects with which the well-being of the community at large is closely bound up.

16. We submit also that no concessionaire can rightly claim to be placed in a better position under the new than under the old government, and therefore in assessing compensation to any owner of a concession in respect of his loss the value of his interest should be taken as it was before the war which has resulted in annexation, and before the superior credit and stability of the annexing State have appreciated his property.

17. On the other hand, when public interest requires the modification or cancellation of a justly acquired concession, due consideration ought properly to be shown in cases where new, and under the cir cumstances, hazardous enterprises have been pioneered into stability in an unsettled and undeveloped country where profit was uncertain, and total loss a possible contingency."

Report of the Hon. Alfred Lyttelton, K. C., M. P.; A. M. Ashmore, C. M. G., and R. Kelsey Loveday, esq., Transvaal Concession Commission, April 19, 1901, Blue Book, South Africa, June, 1901 Cd. 623), 6–8.

8. ON PRIVATE RIGHTS.

§ 99.

By the treaty by which Louisiana was ceded to the United States, it was provided (Art. III.) that the inhabitants should be "maintained and protected in the free enjoyment of their liberty, property, and the religion which they profess."

Stipulations for the protection of rights of property may also be found in other treaties by which the United States has acquired title to territory. They are held by the courts to be merely declaratory of the law of nations..

As to property of the Orthodox Greek Church in Alaska, under Art. II. of the treaty of cession, see Mr. Day, Assist. Sec. of State, to the Sec. of the Interior, Sept. 27, 1897, 221 MS. Dom. Let. 205, enclosing copy of a letter of Bishop Nicolas to the Russian minister at Washington, Aug. 9, 1897, left at the Department of State Sept. 23, 1897; Mr. Sherman, Sec. of State, to the Sec. of the Interior, Jan. 21, 1898, enclosing copy of a note from the Russian chargé of Jan. 15, 1898. "If, also, a conquered country is ceded, the old possessors are entitled to their estates; and when any country is conquered the possessors are not deprived of their estates, but only change their masters."

Judicial decisions.

Wilcox . Henry (1782), supreme court of Pennsylvania, 1 Dallas, 69.

"In the treaty by which Louisiana was acquired, the United States stipulated that the inhabitants of the ceded territory should be protected in the free enjoyment of their property. The United States, as a just nation, regard this stipulation as the avowal of a principle which would have been held equally sacred, though it had not been inserted. in the contract.

"The term 'property,' as applied to lands, comprehends every species of title inchoate 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."

Marshall, C. J., United States v. Soulard (1830), 4 Pet. 511, quoted in Smith v. United States (1836), 10 Pet. 326; S. P., United States . Kingsley, 12 Pet. 476. This rule, however, does not extend to mere inchoate rights which are of imperfect obligation and affect only the conscience of the new soyereign. (Dent v. Emmeger, 14 Wall. 308.) A mere change of sovereignty produces no change in the state of rights existing in the soil. (Mutual Ass. Society v. Watts' Ex'r (1816), 1 Wheaton, 279, relating to a lien on real property in a part of the District of Columbia after its cession to the United States.)

It was held that grants of land made by the Spanish authorities in Louisiana after its cession to France and before its cession by the latter to the United States, were void (United States v. Reynes, 9 How. 127; Davis v. Concordia, id. 280); and that grants made by the French authorities in Louisiana after the treaty of Fontainebleau, were void unless continued possession laid a foundation for presuming a confirmation by the authorities of Spain. (United States v. Pillerin, 13 How. 9.)

The 8th article of the treaty of cession of the Floridas to the United States providing, according to the English text, that grant of land made in the ceded territory by Spain prior to Jan. 24, 1818, "shall be ratified and affirmed," it was at first held that this was the "language of contract," and that, till Congress had legislated on the subject, the stipulations of the treaty in this respect were inoperative. Subsequently this view of the article was overruled, on the strength of the Spanish text, which read that the grants should remain ratified and confirmed"-"thus conforming," declared the court, "exactly to the universally received doctrine of the law of nations." There could be no motive for the interposition of the government in order to give validity to titles which, according to the usages of the civilized world, were already valid."

United States v. Percheman (1833), 7 Pet. 51, overruling on this point Foster v. Neilson (1829), 2 Pet. 253. See, also, United States v. Arredondo, 6 Pet. 691; United States v. Clarke, 8 Pet. 436; United States ". Clarke, 16 Pet. 231, 232.

The protection of the treaty extended to conditional as well as absolute concessions. (United States. Clarke, 9 Pet. 168; Mitchel v. United States,

id. 734.) But if the condition without good reason remained unperformed, no title vested. (United States v. Percheman, 7 Pet. 51; United States v. Clarke, 9 Pet. 168; United States r. Mills, 12 Pet. 215.)

A Spanish grant made after Dec. 2, 1820, was void. (2 Op. 191, Wirt, 1829. See, also, United States . Clarke, 8 Pet. 436.) So were unlocated and indefinite grants. (O'Hara v. United States, 15 Pet. 275; United States ". Delespine, id. 319; United States v. Miranda, 16 id. 153.) An equitable Spanish title, not confirmed by the United States, could not prevail against a legal title acquired from the United States. (United States v. King, 3 How. 773.)

The authorities of Spain had power to make grants of the public domain in Florida in accordance with their own ideas of the merits of the grantee, and the court can only consider the questions whether a grant was made and what was its legal effect.

United States v. Hanson, 16 Pet. 196; United States. r. Acosta, 1 How. 24.

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.

Wirt, At.-Gen. (1822), 1 Op. 563.

"It is very unusal, 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 acklow. edged 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.

"This article [Art. VIII. of the treaty of 1819 with Spain, ceding the Floridas] is apparently introduced on the part of Spain, and must be intended to stipulate expressly for that security to private property which the laws and usages of nations would, without express stipulation, have conferred. Without it the titles of individuals remain as valid under the new government as they would under the old; and those titles, so far at least as they were consummate, might be asserted in the courts of the United States, independently of this article."

Marshall, C. J., United States . Percheman (1833), 7 Pet. 51, 86, 87. Substantially the same language is used by Marshall, C. J., in Delassus 7. United States (1835), 9 Pet. 117, 133, where he says: "No principle is better settled in this country than that an inchoate title to lands is property." S. P., Mitchell v. United States (1835), 9 Pet. 711.

"A grant or a concession made by that officer who is by law authorized to make it, carries with it prima facie evidence that it is within