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sion of 1853, for the adjustment of claims between England and the United States, to hold the federal government responsible for the payment of the Texan bonds.
In his opinion, Mr. Upham, commissioner said :
“ The matter of the indebtedness of Texas was a distinct subject of agreement by the terms of the union. According to those terms the vacant and unappropriated lands within the limits of Texas were to be retained by her, and applied to the payment of the debts and liabilities of the Republic of Texas, and the residue of the lands, after discharging these debts and liabilities, was to be disposed of as the State might direct, but in no event were the debts and liabilities to become a charge upon the Government of the United States.' (U.S. Statutes at Large, vol. 5, p. 798.)
“ The lands of Texas were thus specifically set apart for the payment of the debts of Texas, by agreement of the two Governments, in addition to any separate pledge Texas had previously made of this class of property, for the payment of her debts.
“ The United States subsequently, by act of Congress, on the 9th of September, 1850, on condition of the cession of large tracts of these lands, agreed to pay Texas $10,000,000, but stipulated · that $5,000,000 of the amount should be retained in the United States treasury until creditors, holding bonds, for which duties on imports were specifically pledged, should file releases, of all claims against the United States.' [U. S. Statutes at Large, vol. 9, ch. 49, p. 446.]
“ It thus appears that the United States has acted, from the outset, in concert with Texas, in causing express provision to be made for the payment of these debts..
“ A difficulty early arose in carrying the law, above cited, into effect, for the reason that the pledge of payment of the debts of Texas was made generally upon her revenues, and was not specific con imposts' eo nomine, and for the further reason that doubts arose whether any portion of the debts could be paid under this contract, unless the whole could be discharged.”
(Report of the commission of claims under the convention of 1853.) Mr. Dana says of this case:
“ It certainly would not be satisfactory to say that the United States discharges its obligation to the creditors of Texas, to whom her customs were pledged, by paying only the amount of the customs received.
“ The United States determines what those duties shall be, in reference to the interest and policy of the whole Republic. The condition of Texas is changed by her annexation. The new government has a large control over the material resources of the inhabit
ants, in the way of internal revenues, excise or direct taxation, in its demands on the services of the people, and in the debts it can impose; in fact, the entire public system of Texas has passed into other hands, and no such state of things any longer exists as that to which the creditor looked. It may be better or worse, but it is not the same; and, if the duties laid by the United States and collected in Texan ports did not in fact pay the debts, it would be unjust for the United States to limit the payment of the creditor to them. The truth is, by the annexation the United States changed the nature of the thing pledged, and is bound generally to do equity to the creditor." (Dana's Wheaton, note 18.)
Mr. Lawrence says: “The liability of the United States for the debts of Texas came before the mixed commission, under the convention with England of 1853, in the case of a British subject who had received before the annexation, bonds secured by a pledge of the faith and revenue of Texas. It was disposed of on the ground that never having been made a subject for international interposition against the United States, it did not fall within the scope of the convention ; but it seemed to be admitted that the liability of the United States, if any, arose, not from the merger, but from the transfer, under the Constitution of the United States, to the Federal Government of the duties on imports. It was said by the American Commissioner, in announcing his opinion, that it was an inaccurate view of the case to regard this annexation as an entire adoption of one nation and its revenues by another. “Texas is still a sovereign State, with all the rights and capacities of government, except that her international relations are controlled by the United States, and she has transferred to the United States her right of duties on imports.'
“ And he seemed to consider any claim arising from the previous pledge of such duties to be limited to their value. The British commissioner held that the obligation of Texas to pay her debts is not in dispute, nor has it been argued that the mere act of her annexation to the United States has transferred her liabilities to the Federal Government, though certainly, as regards foreign governments, the United States is now bound to see that the obligations of Texas are fulfilled. It is the transfer of the integral revenues of Texas to the Federal Government that is relied on as creating the new liability."
(Decisions of the Commission of Claims under the convention of 1853, pp. 405-420. Lawrence's Wheaton, ed. 1863, p. 54, note).
1 When Lombardy and Venice were respectively acquired by Italy at the close of the wars of 1859 and 1866 with Austria, the Italian government assumed no part of the general debt of Austria, but only the local debts of the ceded provinces.
OPINION OF CHANCELLOR KENT.
(Kent's Commentaries, I. 25.)
“It is well to be understood, at a period when alterations in the constitutions of governments, and revolutions in states, are familiar, that it is a clear position of the law of nations, that treaties are not affected, nor positive obligations of any kind with other powers, or with creditors, weakened, by any such mutations. A state neither loses any of its rights, nor is discharged from any of its duties, by a change in the form of its civil government. The body politic is still the same, though it may have a different organ of communication. So, if a state should be divided in respect to territory, its rights and obligations are not impaired; and if they have not been apportioned by special agreement, those rights are to be enjoyed, and those obligations fulfilled, by all the parts in common.”
(6) Upon Private Rights.
THE UNITED STATES v. PERCHEMAN.
SUPREME COURT OF THE UNITED STATES, 1833.
(7 Peters, 51, 86.)
Juan Percheman claimed two thousand acres of land lying in the territory of Florida, by virtue of a grant of the Spanish governor of that province made in 1815. After Florida was ceded to the United States by the treaty of 1819, this claim was rejected by the United States commissioners appointed to settle claims to territory in Florida; and the question then came before the court for decision.
Held that title to private property in the soil is not affected by a cession of territory.
MARSHALL, C. J., delivered the opinion of the court, an extract from which is as follows:
So, in the case of the cession of Alsace and Lorraine to Germany in 1871, no part of the French national debt was assumed by Germany on their account. (Bluntschli: Droit International, Article 48.)
On the other hand, on the seizure of Schleswig-Holstein by Prussia, in 1866, the debt of Denmark was divided between that country and Schleswig-Holstein; “and in the same year, Italy, by convention with France, took upon itself so much of the Papal debt as was proportionate to the revenues of the Papal provinces which it had appropriated.” (Hall's International Law, 3d ed., 102, note.)
“It may not be unworthy of remark that it is very unusual 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 acknowledged 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. If this be the modern rule even in cases of conquest, who can doubt its application to the case of an amicable cession of territory? Had Florida changed its sovereign by an act containing no stipulation respecting the property of individuals, the right of property in all those who became subjects or citizens of the new government would have been unaffected by the change. It would have remained the same as under the ancient sovereign. * * *
“A cession of territory is never understood to be a cession of the property belonging to its inhabitants. The king cedes that only which belonged to him. Lands he had previously granted were not his to cede. Neither party could so understand the cession. Neither party could consider itself as attempting a wrong to individuals, condemned by the practice of the whole civilized world. The cession of a territory by its name from one sovereign to another, conveying the compound idea of surrendering at the same time the lands and the people who inhabit them, would be necessarily understood to pass the sovereignty only, and not to interfere with private property.” 1
OPINION OF BAYARD, SECRETARY OF STATE.
DESPATCH TO ROBERTS, MARCH 20, 1886.
(1 Wharton's Digest, 16.)
In the territory conquered by Chili from Peru in the war of 1879-1882, citizens of the United States had acquired certain rights from the Peruvian government which, after the conquest, the Chilian government was inclined not to respect. In Mr. Bayard's opinion, rights of individuals acquired under a former government should be respected in the case even of conquest by another government.
“ The decision now made rests on an alleged rule of interna. tional law which, assumed, as it now is, by the Government of Chili,
1 To the same effect in Mutual Ass. Society v. Watts, 1 Wheaton, 270, 282.
becomes a proper matter of discussion between ourselves and that Government. It is asserted by the Government of Chili (for, in international relations, and the maintenance of international duties, the action of the judiciary in Chili is to be treated, when assumed by the Government, as the act of the Government) that a sovereign, when occupying a conquered territory, has, by international law, the right to test titles acquired under his predecessor by applying to them his own municipal law, and not the municipal law of his predecessor under which they vested. * * *
“The Government of the United States, therefore, holds that titles derived from a duly constituted prior foreign Government to which it has succeeded are consecrated by the law of nations' even as against titles claimed under its own subsequent laws. The rights of a resident-neutral—having become fixed and vested by the law of the country—cannot be denied or injuriously affected by a change in the sovereignty or public control of that country by transfer to another Government. His remedies may be affected by the change of sovereignty, but his rights at the time of the change must be measured and determined by the law under which he acquired them. * * * The Government of the United States is therefore prepared to insist on the continued validity of such titles, as held by citizens of the United States, when attacked by foreign Governments succeeding that by which they (were] granted. Title to land and landed improvements, is, by the law of nations, a continuous right, not subject to be divested by any retroactive legislation of new Governments taking the place of that by which such title was law. fully granted. Of course it is not intended here to deny the prerogative of a conqueror to confiscate for political offenses, or to withdraw franchises which by the law of nations can be withdrawn by Governments for the time being. Such prerogatives have been conceded by the United States as well as by other members of the family of nations by which international law is constituted. What, however, is here denied, is the right of any Government to declare titles lawfully granted by its predecessor to be vacated because they could not have been lawfully granted if its own law had, at the time in question, prevailed.
« This pretension strikes at that principle of historical municipal continuity of Governments which is at the basis of international law."