of taking and holding title to real property.184 But where the land has been actually confiscated by office found, and the confiscation perfected, the treaty had no operation.185 As a citizen of Great Britain was by the treaty entitled to hold land, and no proceedings had been instituted during the war of 1812 to escheat it, his rights were not devested by the war, but upon his death the land descended to his heirs.18 184 Foxwell v. Craddock, 1 Pat. & H. (Va.) 250. 185 Commonwealth v. Bristow, 6 Call (Va.), 60. 186 186 Fiott v. Commonwealth, 12 Gratt. (Va.) 564. CHAPTER X. TREATIES OF CESSION. § 267. Power to acquire territory by treaty. § 268. Territory may be acquired by war power or treaty-making power. $269. Sovereignty passes and not property. 270. Wishes of population not to be consulted. 271. Rules of international law. § 272. Samoan and Gilbert Islands. 273. Titles not devested. § 274. Tide lands previously granted. § 275. Grants made by states in case of disputed boundaries. 276. What are property rights. 277. Subsequent acts of Congress. $278. Property includes every species of title. $279. Copyrights, patents and trademarks. § 280. Loss of trademarks by laches. $281. Political department to provide mode. 285. Collateral attack. $286. Perfected claims before land commission. 287. Measuring of land. $288. Titles complete at time of cession. § 289. Act of Congress in conflict with treaty of cession. § 290. Mexican titles in California after treaty. 291. Effect of these acts. 292. Decree has effect of judgment. 293. Other statutes. § 294. Preventing incorporation of ceded territory into United States. $295. Inhabitants of ceded territory as citizens. $296. Foreign corporations not subjects. $297. Effect of treaty on dam in Rio Grande. § 267. Power to acquire territory by treaty.-The Constitution does not contain an express declaration that the United States has power to acquire foreign territory by treaty, but as Chief Justice Marshall said, the Constitution does confer "absolutely on the government of the Union the power of making war and of making treaties; consequently, that government pos sesses the power of acquiring territory, either by conquest or by treaty."1 With respect to the relations of the inhabitants to each other, Chief Justice Marshall said: "The usage of the world is, if a nation be not entirely subdued, to consider the holding conquered territory as a mere military occupation, until its fate shall be determined at the treaty of peace. If it be ceded by the treaty, the acquisition is confirmed, and the ceded territory becomes a part of the nation to which it is annexed, either on the terms stipulated in the treaty of cession, or on such as its new master shall impose. On such transfer of territory it has never been held that the relations of the inhabitants with each other undergo any change. Their relations with their former sovereign are dissolved, and new relations are created between them and government which has acquired their territory. The same act which transfers their country, transfers the allegiance of those who remain in it; and the law, which may be denominated political, is necessarily changed, although that which regulates the intercourse and general conduct of individuals, remains in force until altered by the newly created power of the state." 2 § 268. Territory may be acquired by war power or treatymaking power.-As said by Mr. Justice Swayne: "What is clearly implied in a written instrument is as effectual as what is ex 1 American Ins. Co. v. 356 Bales of Cotton, 1 Pet. (U: S.) 512, 7 L. ed. 243. 2 American Ins. Co. v. 356 Bales of Cotton, 1 Pet. (U. S.) 512, 7 L. ed. 255: "On the 2d of February, 1819, Spain ceded Florida to the United States. The 6th article of the treaty of cession contains the following provision: The inhabitants of the territories which his Catholic majesty cedes to the United States by this treaty shall be incorporated in the Union of the United States, as soon as may be consistent with the principles of the federal constitution, and admitted to the enjoyment of the privileges, rights, and immunities of the citizens of the United States.' "This treaty is the law of the land, and admits the inhabitants of Florida to the enjoyment of the privi leges, rights, and immunities of the citizens of the United States. It is unnecessary to inquire whether this is not their condition, independent of stipulation. They do not, however, participate in political power; they do not share in the government with Florida till Florida shall become a State. In the meantime, Florida continues to be a territory of the United States, governed by virtue of that clause in the constitution which empowers Congress 'to make all needful rules and regulations respecting the territory or other property belonging to the United States.' pressed. The war power and the treaty-making power, each carries with it authority to acquire territory. Louisiana, Florida and Alaska were acquired under the latter, and California under both."3 The power of the United States to acquire territory, either by purchase or by treaty, is undisputed, and when the territory of California passed to the federal government, every acre of land not the property of Mexican citizens passed to it. As sovereignty can never be in abeyance, it follows, upon the ground of necessity, that until the organization of some local government, the United States succeeded to and represented the government of Mexico, so far as under the Constitution such powers could be exercised. After the acquisition of foreign territory by treaty, Congress has the power to pass laws for the purpose of protecting the private rights of the inhabitants of the ceded territory that have been guaranteed to them by the treaty. State authority cannot interfere with such laws.5 § 269. Sovereignty passes and not property.-When territory is acquired by a treaty of cession, the sovereignty over the territory ceded passes to the United States, but not the property of the inhabitants. It was stipulated in the treaty by which Louisiana was acquired that the inhabitants of the ceded territory should be protected in the free enjoyment of their property. But Chief Justice Marshall, in a case in which this treaty came before the court, said that as a just nation the United States regarded this stipulation as a declaration of a principle "which would have been held equally sacred though it had not been inserted in the contract. 997 Mr. Justice Baldwin, delivering the opinion of the court, said that it was definitely settled: "That by the law of nations, the inhabitants, citizens, or subjects of a conquered or ceded country, territory or province retain all the rights of property which have not been taken from them by the orders of the conqueror, or the laws of the sovereign who acquires it by cession, and remain under their former laws until they shall be changed. That a treaty of cession was a deed or grant by one sovereign to another, which transferred nothing to which he had no right of property, and only such right as he owned and could convey to the grantee. That by the treaty with Spain the United States acquired no lands in Florida to which any person had lawfully obtained such a right by a perfect or inchoate title, that this court could consider it as property under the second article, or which had, according to the stipulations of the rights, been granted by the lawful authorities of the king; which words 'grants or concessions' were to be construed in their broadest sense, so as to comprehend all lawful acts which operated to transfer a right of property, perfect or imperfect."8 § 270. Wishes of population not to be consulted.-There is no principle of international law that the wishes of the people should be consulted upon the cession of the territory inhabited by them, and until title by conquest has disappeared, no such principle can be adopted. In 1897, when it was proposed to annex the Hawaiian Islands to the United States, objections to this course were made by Mr. Toru Hoshi, the Japanese Minister, under instructions from Count Okuma, and in the opening of the note on the subject the statement was made: "It is understood that only a small fraction of their number favor annexation." Mr. Sherman, Secretary of State, said that he could not allow this declaration to pass over in silence, and stated: "It cannot be that one so well informed in the history of international relations as Count Okuma could have wished to suggest thereby the propriety of appealing from the action of the Government to 'the population.' In international comity and practice the will of a nation is ascertained through the established and recognized government, and it is only through it that the nation can speak. This is shown "Hale's International Law, 4th ed., Mitchel v. United States, 9 Pet. 711, 9 L. ed. 283. 49. |