Such a design might be established by evidence of long-continued and complete neglect of the territory, or of a formal and appropriate declaration of policy.

2

CERTAIN EFFECTS OF CHANGE OF SOVEREIGNTY

§ 120. In General.

a

The phrase "change of sovereignty" is here employed to describe the situation where one State succeeds to the right of exclusive control within and supremacy over territory possessed by another. Succession implies that rights of sovereignty are already in existence prior to the change, and their lodgment in a State, or a political community regarded as capable of exercising them, and whose title thereto is respected. When a State asserts dominion over territory occupied by an uncivilized people deemed to lack such capacity, no change of sovereignty is apparent. The occurrence is rather illustrative of the coming into being of rights of property and control through the act of an occupant.1

It is believed to be important to distinguish between the legal effect produced by a change of sovereignty and that resulting from the acquisition of what is gained by the transfer. Thus, for example, the question whether or not the cession of territory serves to terminate the operation of any laws within the ceded domain is wholly unrelated to that concerning the extent of the power of the grantee to legislate at will for the territory acquired. The one has reference to the direct consequence of the change of sovereignty itself, the other to the use of something attributable to what that change has already accomplished.

1 Said Lord Kingsdown in the case of the Advocate General of Bengal v. Ranee Surnomoye Dossee: "Where Englishmen establish themselves in an uninhabited or barbarous country, they carry with them not only the laws, but the sovereignty of their own State; and those who live amongst them and become members of their community become also partakers of and subject to the same laws." 2 Moore's Privy Council, n. s. 22, Beale's Cases on Conflict of Laws, ed. of 1900, I, 67, 68.

"The acquisition of the Philippines was not like the settlement of the white race in the United States. Whatever consideration may have been shown to the North American Indians, the dominant purpose of the whites in America was to occupy the land. It is obvious that, however stated, the reason for our taking over the Philippines was different. No one, we suppose, would deny that so far as consistent with paramount necessities our first object in the internal administration of the islands is to do justice to the natives, not to exploit their country for private gain. By the organic Act of July 1, 1902, Ch. 1369, Sec. 12, 32 Stat. 691, all the property and rights acquired there by the United States are to be administered 'for the benefit of the inhabit

It is necessary to observe with care the extent to which a change of sovereignty serves directly to burden the transferee of territory with the obligations of its predecessor. This is a problem of international law in the solution of which States have been confronted with a variety of considerations the influence of which has varied according to the circumstances of the particular case. The examination of existing practices may, therefore, tend to fortify belief that, save under a few narrowly defined circumstances, discord rather than harmony of view is still prevailing, and that there is lack of evidence of general agreement indicative of the nature and scope of duties to be regarded as possessing the character of law. The scientific value of any conclusions with respect to what interested States have deemed to be burdens legally imposed upon a new sovereign, or concerning the basis upon which rules of conduct should be formulated for future guidance, is believed to depend in no small degree upon the directness and persistence with which the attempt is made to perceive the immediate effect of a change of sovereignty, as distinct from that produced by other events.

b

§ 121. Effect on Legislative and Political Power.

A change of sovereignty serves directly to transfer to the new sovereign all legislative and political power with respect to the territory concerned. Its predecessor is rendered incapable of performing any valid act in defiance of the supremacy of the transferee. Thus the former cannot lawfully alienate public lands or grant public franchises.2 No valid disposition thereof can be made ants thereof.' It is reasonable to suppose that the attitude thus assumed by the United States with regard to what was unquestionably its own is also its attitude in deciding what it will claim for its own." Holmes, J., in Cariño v. The Insular Government of the Philippine Islands, 212 U. S. 449, 458–459.

1 "The mere acquisition by one country (A, for example) of the sovereignty over another country (B, for example) produces no other legal effect upon the latter than to give it a new sovereign, and consequently to substitute the legislature and the chief executive of A for those of B; but A and B will still be in strictness foreign to each other, each having its own government, laws, and institutions; and though the legislature and chief executive of each will be the same, yet they will act in an entirely different capacity when acting for B from that in which they act when acting for A." "The Status of Our New Territories", by Christopher C. Langdell, Harv. Law Rev., XII, 365, 387.

2 Harcourt v. Gaillard, 12 Wheat. 523; More v. Steinbach, 127 U. S. 70, 81; Ely's Administrator v. United States, 171 U. S. 220, 231; Alexander v. Roulet, 13 Wall. 386; opinion of Mr. Griggs, Attorney-General, 22 Ops. Attys.-Gen., 574, 577, where there is strangely attributed to the Supreme Court of the United States, in the case of Harcourt v. Gaillard, language not there employed by that tribunal.

EFFECT ON LAW

[§ 122 except in pursuance of the authority of the new sovereign.1 In applying this principle it may become expedient to provide in a treaty of cession that certain valid acts of the grantor prior to the transfer be not robbed of the effect which they were designed to produce, in consequence of circumstances attending or following the change of sovereignty.2

After the conclusion of a treaty of cession, and pending the actual transfer of possession to the grantee, the grantor is doubtless permitted to exercise authority necessary to maintain order and safeguard economic conditions within the territory concerned. During that interval (at least in the case of a treaty which is to take effect from the date of signature, and is ultimately confirmed by both parties) it may be regarded as burdened with the duty of impairing in no manner the value to its successor of its new domain. The Supreme Court of the United States has declared that while in such case "full sovereignty" does not pass to the State to which it is transferred until actual delivery, "it is also true, that the exercise of sovereignty by the ceding country ceases, except for strictly municipal purposes, especially for granting lands." 3

"Law once established continues until changed by some competent legislative power. It is not changed merely by change of sovereignty." This principle has been recognized by American tribunals in its application to laws protecting the private rights

1 More v. Steinbach, 127 U. S. 70, 81.

2 See, for example, Art. VIII of treaty between the United States and Spain, of Feb. 22, 1819, providing for the cession of the Floridas, Malloy's Treaties, II, 1654.

3 Davis v. Police Jury of Concordia, 9 How. 280, 289; United States v. Reynes, 9 How. 127; United States v. D'Auterive, 10 How. 609; Montault v. United States, 12 How. 47.

Concerning the authorization by the War Department, February 11, 1899, of persons holding the office of notary public in territories subject to military government by the military forces of the United States, to continue to hold such offices and perform the functions thereof, cf. Mr. Adee, Second Assist. Secy. of State, to Mr. Rooker, February 24, 1899, 235 MS. Dom. Let. 131, cited in Moore, Dig., I, 306, note.

Concerning the authorization of foreign consuls to continue to exercise their functions in the Hawaiian Islands, upon their acquisition by the United States, see Mr. Hay, Secy. of State, to Mr. Grip, Swedish Minister, November 17, 1898, MS. Notes to Swedish Legation, VIII, 109, Moore, Dig., I, 308. As to the provisional recognition of consuls in the Philippines and Porto Rico, upon their cession to the United States, cf. Moore, Dig., I, 309, note.

Joseph H. Beale, Cases on Conflict of Laws, III. Summary, Sec. 9, citing Commonwealth v. Chapman, 13 Metc. 68. "There can be no break or interregnum in law. From the time law comes into existence with the first-felt corporateness of a primitive people it must last until the final disappearance of human society. Once created, it per

of the inhabitants of the territory concerned. It is not believed that even the public laws of the former sovereign form an exception and are directly affected by the transfer. It is doubtless true that such laws as are at variance with the constitution and laws of the new sovereign cease to operate, but the reason for such cessation is not to be ascribed to the bare change of sovereignty. sists until a change takes place, and when changed it continues in such changed condition until the next change, and so on forever. Conquest or colonization is impotent to bring law to an end; in spite of change of constitution, the law continues unchanged until the new sovereign by a legislative act creates a change." J. H. Beale, Treatise on the Conflict of Laws, Cambridge, 1916, Sec. 131.

It must be clear that the construction placed upon the statutory law of the former sovereign by its tribunals prior to a change of sovereignty should be respected by those of its successor after the change. In this connection see Kealoha v. Castle, 210 U. S. 149.

1 Marshall, C. J., in American Insurance Co. v. Canter, 1 Pet. 511, 542; Strother v. Lucas, 12 Pet. 410, 438; United States v. Power's Heirs, 11 How. 570, 577; Chicago & Pacific Ry. Co. v. McGlinn, 114 U. S. 452; Ortega v. Lara, 202 U. S. 339, 342; Vilas v. Manila, 220 U. S. 345, 357; Opinion of Mr. Griggs, Attorney-General, 22 Ops. Attys.-Gen., 526; In re Chavez, 149 Fed. 73; Note in Harv. Law Rev., XIX, 131. Cf., also, Calvin's Case, 4 Coke, Part VII, 3, 39; Blankard v. Galdy, 2 Salkeld, 411; Campbell v. Hall, 1 Cowp. 204.

"We take it to be a well-settled principle, acknowledged by all civilized States governed by law, that by means of a political revolution, by which the political organization is changed, the municipal laws regulating their social relations, duties, and rights are not necessarily abrogated. They remain in force, except so far as they are repealed or modified by the new sovereign authority." Shaw, C. J., in Commonwealth v. Chapman, 13 Metc. 68, 71.

A law the operation of which is, in point of time, expressly or by implication limited to the life of a particular treaty, obviously ceases to exist upon the termination of the compact. That such termination may be brought about by a change of sovereignty over territory of one of the contracting parties, rather than by any other occurrence, is without significance. Doubtless it is possible for a law providing for the enjoyment of special privileges by a class of nationals of a foreign contracting party (such as its consular officers) to survive a treaty itself terminated through the operation of a change of sovereignty. Cf. For. Rel. 1896, lxvii, 117-135; id., 1897, 152-154, respecting the steps taken by France, upon its annexation of Madagascar, to establish its judicial system in that Island and thereby to stop the exercise of judicial functions by American consular officers.

2 "The doctrine invoked by the defendants, that the laws of a conquered or ceded country, except so far as they may affect the political institutions of the new sovereign, remain in force after the conquest or cession until changed by him, does not aid their defense. That doctrine has no application to laws authorizing the alienation of any portion of the public domain, or to officers charged under the former government with that power." Field, J., in More v. Steinbach, 127 U. S. 70, 81.

"Of course, in case of cession to the United States, laws of the ceded country inconsistent with the Constitution and laws of the United States so far as applicable would cease to be of obligatory force; but otherwise the municipal laws of the acquired country continue." Fuller, C. J., in Ortega v. Lara, 202 U. S. 339, 442.

"That there is a total abrogation of the former political relations of the inhabitants of the ceded region is obvious. That all laws theretofore in force which are in conflict with the political character, constitution, or institutions of the substituted sovereign lose their force, is also plain." Lurton, J., in Vilas v. Manila, 220 U. S. 345, 357. See also, Holmes, J., in Panama R. R. v. Bosse, 249 U. S. 41, 44.

EFFECT ON LAW

[§ 122 It is attributable rather to conditions which are in themselves consequences of that change. The very disappearance of the former sovereign with its distinctive and possibly arbitrary form of government leaves no room for the operation of laws designed to uphold it and contemplating its existence. Again, the fundamental law of the new sovereign may prevent it from accepting a grant of territory without either subjecting it to the application of certain organic institutions, or rendering inoperative existing statutes hostile to the spirit thereof.1

In such cases the change is due to circumstances which, operating simultaneously with the cession, produce an effect not unlike that of an amendatory legislative enactment; and it is to be assigned to the operation of the will of the new sovereign rather than to any other cause.2

The revenue laws of ceded territory do not appear to be affected by a change of sovereignty When, however, such territory is by

1 A majority of the Supreme Court (consisting of Justices Gray, Brown, Shiras, White, and McKenna), in the case of Downes v. Bidwell, 182 U. S. 244, concurred in the proposition that "The mere acquisition or cession of a region does not 'incorporate' it into the United States so as to subject it generally to those clauses of the Constitution which restrain and prohibit certain action by the Congress of the United States; but such regions may be temporarily governed, in some respects, at least, as seems most suitable for their own interests and those of the United States." James B. Thayer, "The Insular Tariff Cases in the Supreme Court", Harv. Law Rev., XV, 164, 165.

See, also, the language of Mr. Justice White in Downes v. Bidwell, 182 U. S. 244, 306, 310-311, 314-315, 336; also that of Mr. Justice Brown, id., 279, 285, 287; compare that of Chief Justice Fuller, id., 373; and that of Mr. Justice Harlan, id., 384.

Whether or not the constitution or public policy of a State which acquires territory by cession forbids the enforcement of a particular law of the former sovereign, is obviously not a question of international law, for the solution is dependent upon considerations wholly unrelated to the consequence of a change of sovereignty. New Orleans v. United States, 10 Pet. 662; Ortega v. Lara, 202 U. S. 339, 342.

2 The supplanting of the Dutch control of Manhattan Island by that of the English in the seventeenth century was accompanied by a complete resettlement and change of laws by the latter in pursuance of the charter granted to the Duke of York by his brother, Charles II. Thus it became immaterial whether the Dutch possession was regarded as that of a military occupant temporarily suspending the common law of the de jure sovereign, or as that of an established government exercising fullest rights of sovereignty. Mortimer v. New York Elevated R. R. Co., 6 N. Y. Supp. 898.

"If territory containing a small body of people, not constituting a separate social community, is annexed to another country, the law of the latter country at once takes effect, since the new territory and inhabitants are by the annexation itself incorporated with the old, Chappell v. Jardine, 51 Conn. 64; but if the annexed territory contained a separate political society, their old laws would continue, as in the case of the annexation of Florida." Beale's Cases on Conflict of Laws, Summary, Sec. 10.

3 Taney, C. J., in Fleming v. Page, 9 How. 603; Mr. Griggs, AttorneyGeneral, 22 Ops. Attys.-Gen., 150. Compare Cross v. Harrison, 16 How. 164. After France had acquired control over Madagascar in 1896, the new sov