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 ir 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 circumstances, 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 See. 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 v. 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 r. 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 r. 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 v. Clarke, 16 Pet. 231, 232.

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

id. 734.) But if the condition without good reason remained unperformed, no title vested. (United States r. Percheman, 7 Pet. 51; United States r. Clarke, 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 r. Clarke, 8 Pet. 436.) So were unlocated and indefinite grants. (O'Hara v. United States, 15 Pet. 275; United States r. 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 r. 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 r. 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

his power. He who alleges that an officer intrusted with an important duty has violated his instructions, must show it. This subject was fully discussed in the United States v. Arredondo, 6 Peters, 691; Percheman . United States, 7 Peters, 51; United States v. Clarke, 8 Peters, 436."

Marshall, C. J., Delassus r. United States (1835), 9 Pet. 134.

The act of Congress of June 22, 1860, had for its object the final adjustment
of land claims and the validation of grants of land made by the Spanish
Government to bona fide grantees within the disputed territory while that
Government remained in possession of it. (United States v. Lynde, 11
Wall. 632.)

Where grants of land in Florida were in fact complete prior to the ratification
of the treaty of cession, Congress might require their genuineness and
extent to be established by proper proceedings before they could be held
valid. (Florida . Furman (1901), 180 U. S. 402.)

A grant of lands in California, while it was a Mexican province, made by the chief of an administration, during an intestine war, when he was in flight from the seat of government, and his cause, soon afterwards completely overthrown, in extremity, can not be sustained, its validity never having been acknowledged by the grantor's successors, and no sanction ever having been given it by the United States.

United States r. Sutter, 21 Howard, 170; United States r. Rose, 23 id. 262.

The fact that Mexico declared through her commissioners who negotiated the treaty of Guadalupe Hidalgo that no grants of land were issued by the Mexican governors of California after May 13, 1846, does not affect grants actually made after that date by those governors, while their authority and jurisdiction continued.

United States v. Yorba, 1 Wallace, 412. See, also, More v. Steinbach, 127
U. S. 70.

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.

"The United States have never sought by their legislation to evade the obligation devolved upon them by the treaty of Guadalupe Hidalgo to protect the rights of property of the inhabitants of the ceded territory, or to discharge it in a narrow and illiberal manner. They have directed their tribunals, in passing upon the rights of the inhabitants, to be governed by the stipulations of the treaty, the law of nations, H. Doc. 551

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the laws, usages, and customs of the former government, the principles of equity, and the decisions of the Supreme Court so far as they are applicable. They have not desired the tribunals to conduct their investigations as if the rights of the inhabitants to the property which they claim depended upon the nicest observance of every legal formality. They have desired to act as a great nation, not seeking, in extending their authority over the ceded country, to enforce forfeitures, but to afford protection and security to all just rights which could have been claimed from the government they superseded."

Field, J., United States v. Auguisola (1863), 1 Wall. 352. S. P., United States v. Moreno (1863), 1 Wall. 400; Strother v. Lucas, 12 Pet. 412; United States v. Roselius, 15 How. 36; Lietensdorfer . Webb, 20 How. 176; United States v. Peralta, 3 Wall. 434; Beley r. Naphtaly, 169 U. S. 353; United States v. Olvera, 154 U. S. 538. As to the three kinds of Mexican grants, see United States v. McLaughlin, 127 U. S. 428, 448. See also 175 U. S. 76, 248, 500, 509, 552.

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. 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.

Airhart v. Massieu, 98 U. S. 491; S. P., Jones v. McMasters, 20 How. 8.

A suit was brought by the heirs of the Chevalier de Repentigny to recover certain lands at the Sault de Ste. Marie, which were granted to him by the French Government in 1751. It appeared that, after the grant was made, he took possession of the land, but that subsequently, in 1754, after the war between France and Great Britain broke out, being called into the active service of France, he left it. He never returned to it. On the contrary, he continued in the service of France and became a major-general in the army and governor of Senegal. By the treaty of 1763, which surrendered Canada to Great Britain, it was provided that French subjects might retire and sell their estates, provided it be to British subjects, and transport their effects as well as their persons within a certain time. The court, Mr. Justice Nelson delivering the opinion, said (1) that the rule as to protection of private rights in case of conquest was limited to the inhabitants who remained and became subjects of the victorious sovereign; and (2) that the conqueror had the right to forbid the departure of his new subjects and exercise his sovereignty over them. "Now, in view of these principles," said the court, "it is apparent that Repentigny, having refused to continue an inhabitant of Canada and to