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pecially when the peace and welfare of the community is involved, property rights are sacred and cannot be affected

quired territory the rights and status of the inhabitants have been, to some extent, regulated and provided for, but not by a uniform method, but with extreme variance, indicating that the Presidents and Senates were acting in the belief that this Government possessed in this respect all the powers of any other nation.

"Louisiana.-The inhabitants to be incorporated in the Union of the United States and admitted as soon as possible. to the enjoy

ment of all the rights, advantages, and immunities of citizens of the United States.

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"Mexico.-Mexicans who did not elect to retain their former citizenship should be incorporated into the Union and be admitted at the proper time (not immediately, proprio vigore of the treaty), to be judged of by the Congress of the United States to the enjoyment of all the rights of citizens of the United States.

"Alaska.-The inhabitants who remain three years, with the exception of uncivilized native tribes, shall be admitted to the enjoyment of all the rights etc., of citizens of the United States.

"Porto Rico.-Allows one year for Spaniards to elect to retain former citizenship, and provides that the civil status and political rights of the native inhabitants shall be determined by the Congress.'

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"The treaty-making power of the Government has therefore exercised the right to deal with the status of the inhabitants of ceded territory in every treaty of cession from 1803 to 1898. The status fixed has not been uniform, but exceedingly varying.

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"The inhabitants of Louisiana and Florida were to be admitted to citizenship as soon as possible,' not immediately, but at a later date, impliedly to be fixed by Congress. But it has never been considered that this included all the inhabitants, but only the free inhabitants, and excluded the Indian tribes, though not so expressed.

"The inhabitants of New Mexico and California were to be admitted

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to citizenship at the proper time,' not immediately, but at a proper time to be judged of by the Congress.'

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"Alaskans who remained three years were admitted without further action by Congress or otherwise, but native tribes were excepted.

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We find, therefore, great and varying discriminations in the treaties on this subject. No one of them admits all the inhabitants. None admits the inhabitants to immediate citizenship.

"Those that guarantee citizenship to certain classes of the inhabitants -Louisiana, Florida, New Mexico, and California-do not grant it at once, but leave the declaration or promise of the treaty to be performed by Congressional act at a future day; 'as soon as possible;' 'at the proper time;' 'to be judged of by the Congress.'

"This course of dealing with the inhabitants of ceded territory in the treaty of cession establishes beyond question that the Presidents and the Senates have always believed that the status of such inhabitants

by transfer of sovereignty;1 and by the term "property" as applied to lands was held by Chief Justice Marshall to comprehend "every species of title inchoate or complete. It is supposed," he said, "to embrace those rights which lie in contracts; those which are executory as well as those which are executed." The Supreme Court of the United States decided at an early day, in fact as soon as the cases arising under the Louisiana cession came before it, that the transfer of sovereignty over territory by a foreign power to the United States would not affect the private property of the inhabitants.3

was a subject which could properly and constitutionally be settled by the treaty itself or referred to the subsequent action of Congress.

"Such a practice is absolutely opposed to the doctrine that the Constitution follows the flag,' and that when territory is ceded to the United States the inhabitants become immediately proprio vigore citizens of the United States. If that doctrine be true, every treaty that has brought us new lands and new inhabitants has violated in this respect the principles of the Constitution. It convicts of error and usurpation Thomas Jefferson, James Madison, James Monroe, James K. Polk, Franklin Pierce, Andrew Johnson, their Cabinets, and the Senates that ratified their treaties."

The views of the other counsel and many cases bearing on the question discussed by the Attorney General and referred to in the foregoing extract can be found by examining the Insular Cases Record. (Consult Analytical Index at front of the Insular Cases Record.)

§ 395c.

1 American Ins. Co. vs. Canter, U. S. Sup. Ct. 1828, 1 Peters, 511, MARSHALL, Ch. J., and see extracts from this opinion in § 386 and note 1 thereunder, p. 132, ante. Many of the cases cited in note 2 of § 386 apply to this question also.

2 Soulard vs. United States, Smith vs. United States, U. S. Sup. Ct. 1830, 4 Peters, 511, MARSHALL, Ch. J. Same cases appear later, 1836, 10 Peters 100 and 326, BALDJ.

WIN,

3 United States vs. Percheman, U. S. Sup. Ct. 1833, 7 Peters, 51, MARSHALL, CH. J. As stated in the syllabus of this case, the Chief Justice declared: "Even in cases of conquest, it is very unusual for

the conqueror to do more than to display the sovereignty 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 on a change in the sovereignty of the country. The people change their allegiance, their relation to their ancient sovereign is dissolved; but their relation to each other and their rights of property remain undisturbed." See extract from opinion in this case in note to § 398, p. 186, post.

As there are several hundred cases, involving questions of title to land under grants from the former sovereign, in the Supreme Court Reports they cannot all be collated in this volume; references will be made to other collections of cases on this point, and therefore a few of the leading authorities only will be cited in the notes. In many cases the

4 See Kinney's Digest, United Delassus vs. United States, U. S. States Supreme Court Decisions, Sup. Ct. 1835, 9 Peters, 117, by Jonathan Frederick Kinney, MARSHALL, Ch. J. 1789-1884. Little, Brown & Co., Boston, 1886, vol. 2, pages (columus) 1189–1232. Lands of United States-Grants from foreign Governments, subdivisions as follows:

§§ 1-210: Effect of Treaties of Cession, in general― Grants protected-Grants in what Territory, of what Lands, and to what Persons -How and when made and here of Delivery of Possession, of Maps, Records, Surveys, etc.· - Made by what officers-How shown and how construed.

SS 211-241: Abandonment and Forfeiture of such Titles, and here of Conditions.

§§ 242-264: Direct Legislative Confirmation of Inchoate Titles derived from such Governments.

§§ 265-395: Confirmation through Commissions, etc.—In general, and here of Acts providing therefor and of Proceedings by Commissioners and Courts, Jurisdiction, Parties, Subject-matter, Practice, Limita

tions.

See also Danforth's Supreme Court Digests, Vols. 1-115 U. S., under title California Land Claims, and other appropriate titles for many cases involving effect of change of sovereignty on land titles classified.

5 Some of the cases involving titles after change of sovereignty and in which private rights have been protected are:

Chouteau vs. United States, U. S. Sup. Ct. 1835, 9 Peters, 147, MARSHALL, Ch. J.

The term property is to be construed very broadly in this respect:

Bryan vs. Kennett, U. S. Sup. Ct. 1885, 113 U. S. 179, HARLAN, J.

Delassus vs. United States, U. S. Sup. Ct. 1835, 9 Peters, 117, MARSHALL, Ch. J.

Slidell vs. Grandjean, U. S. Sup. Ct. 1883, 111 U. S. 412, FIELD, J.

But titles to be protected must have existed at the time of the treaty:

Blight vs. Rochester, U. S. Sup. Ct. 1822, 7 Wheaton, 535, MARSHALL, Ch. J.

Craig vs. Radford, U. S. Sup. Ct. 1818, 3 Wheaton, 594, WASHINGTON, J.

Harnden vs. Fisher, U. S. Sup. Ct. 1816, 1 Wheaton, 300, MARSHALL, Ch. J.

Orr vs. Hodgson, U. S. Sup. Ct. 1819, 4 Wheaton, 453, STORY, J.

Hughes vs. Edwards, U. S. Sup. Ct. 1824, 9 Wheaton, 489, WashINGTON, J.

Shanks vs. Dupont, U. S. Sup. Ct. 1830, 3 Peters, 242, STORY, J.

McKinney vs. Saviego, U. S. Sup. Ct. 1855, 18 Howard, 235, CAMPBELL, J.

Tobin vs. Wilkinshaw, U. S. Cir. Ct. Cala. 1855-6, 1 McAllister, 26, 151, 186; Fed. Cas. 14068-69-70, McALLISTER, J.

treaties of cession provided for the protection of the property rights of individuals, but the Supreme Court has decided that even in the absence of treaty stipulations the rules and principles of international law would protect the inhabitants of ceded territory in their vested rights. As will be stated in the next section, however, the inhabitants and other owners of property in the ceded territory must comply with such laws as the new sovereign may enact in order to protect their rights.

$396. Necessity for legislation to make treaties of cession effectual and to protect property rights.-How far Congressional legislation is necessary to make a treaty of cession effectual depends largely upon the nature of the treaty and the various stipulations therein. We have already seen that the Supreme Court has recently decided in the Insular Cases that no legislation is necessary to make the ceded territory domestic instead of foreign. As to property rights, however, and the status of the inhabitants, legislation is at times necessary to render the stipulations of the treaty effectual. In regard to ownership of real estate,

For some of the acts affecting titles in Louisiana, Florida and Mexico see 2 U. S. Stat. at L. p. 324; 3 Ib. 709, 754; 4 Ib. 495; 9 Ib. 681; many other acts have also been passed providing for methods of determing title to property in ceded territory.

Callsen vs. Hope, U. S. Dist. Ct. Alaska, 1896, 75 Fed. Rep. 758, DELANEY, J., held that the title to certain church property referred to in an inventory, and designated on a map, which were attached to the protocol in the transfer of Alaska under the treaty of cession of 1867 must be protected. See also cases One of the most important acts cited in note 2 to § 394, p. 157, ante. is that establishing the Court of McGregor vs. Comstock, N. Y. Private Land Claims passed March Sup. Ct. 1853, 16 Barb. 427, ED-3, 1891, 26 U. S. Stat. at L. p. 854. WARDS, J. The entire act, the rules adopted by

6 See § 398 and notes thereunder, the Court, and a collection of laws p. 185, post.

§ 396.

1 De Lima vs. Bidwell, U. S. Sup. Ct. 1901, 182 U. S. 1, BROWN, J., and see INSULAR CASES APPENDIX at end of Vol. I.

2 See Acts of Congress passed after the treaty with Spain of 1898 and referred to in notes under § 308, pp. 441, et seq., Vol. I.

of New Spain and Mexico will be found in: Spanish and Mexican Land Claims, by Matthew G. Reynolds, United States attorney for the Court of Private Land Claims, St. Louis, 1891.

The power of Congress to establish the Court of Private Land Claims and to give an appeal therefrom to the Supreme Court of the

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Congress has often passed acts appointing commissions to investigate titles, and required claimants to prove their titles in order to retain ownership. One reason for this course is that as all the public land in the ceded territory passes to the United States and becomes part of the public domain, the government has the right to require proof of ownership of property in order to determine the extent of public domain. Many of the cases referred to in the preceding sections of this chapter equally apply to this section.

§ 397. Necessity for compliance with such legislation to preserve rights and property.-There are cases which go to great lengths in holding the necessity for compliance with statutory enactments to make the terms of a treaty effectual. It has been held that, although the treaty with Mexico of 1848 provided that private rights of owners of property were to be respected, the owners of property in California who failed complied with the conditions of the act passed in 18511 to carry the treaty into effect, and to adju dicate the ownership of property, could not retain title to property of which they were in actual possession; but it was held that they were obliged to prove their titles in the same manner as contested titles were proved before the Commission appointed under the act, and on failure to comply with the terms of the act the property would fall into the general domain of the United States. As this practically United States was sustained in United States vs. Coe, U. S. Sup. Ct. 1894, 155 U. S. 76, FULLER, Ch. J. Since the organization of the Court of Private Land Claims, under the statute just cited, many cases involving the validity of Spanish and Mexican titles have been decided in that court and subsequently reviewed by the Supreme Court, amongst them the following: United States vs. Coe, U. S. Sup. Ct. 1898, 170 U. S. 681, McKENNA, J.

United States vs. Sandoval, also Morton vs. United States, U. S. Sup. Ct. 1897, 167 U. S. 278, FULLER, Ch. J.

United States vs. Santa Fé, U. S. Sup. Ct. 1897, 165 U. S. 675, WHITE, J.

United States vs. Chaves, U. S. Sup. Ct. 1895, 159 U. S. 452, SHIRAS, J.

Rio Arriba L. & C. Co. vs. United States, U. S. Sup. Ct. 1897, 167 U. S. 298, FULLER, Ch. J.

3 For a review of legislation after the acquisitions of Louisiana, Florida and Mexican Territory see opinion in Botiller vs. Dominguez, cited in note 3, § 397, p. 182, post. § 397.

19 U. S. Stat. at L. p. 681.

2 United States vs. Clark, U. S. Sup. Ct. 1834, 8 Peters, 436, MAR

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