system of private law in force. has, however, been held to continue until specifically altered by statute. It is upon this principle that the courts of all of the states, originally British colonies or settled from them, have continued to apply the common law,73 while those of Louisiana and Texas have applied the French and Spanish systems of law respectively. The application of the English law of admiralty in federal courts has been based on a like principle.?4 The courts have applied the same principle to other acquisitions of territory such as Florida, New Mexico, and the Spanish cessions of 1898.75

The inviolability of existing contracts and property rights of inhabitants of acquired territory has been generally upheld in reference to obligations owed by the former state itself to such inhabitants. Inhabitants as well as persons of foreign states benefit by the acquiescence of the new sovereign in its duty to assume the public burdens attached to the territory.76 If a

73 In Mortimer vs. N. Y. Elevated R. R. Co., 6 N. Y. S. 89, (1889), Scott, ili, a claim that Dutch law rather than English should apply in reference to the portion of New York City originally occupied by the Dutch was denied. The British claim based on Cabot's discovery prior to Dutch occupancy established, in the view of the court, the common law. The court admitted that modern publicists hold that discovery not followed by occupation is insufficient to give title to new territory, but thought that, by the international law of that time, Cabot's claim was valid. As an additional reason for its opinion the court seemed to cast some doubt on the principle that succession does not alter the private law. Thus it held that even if Cabot's claim were not sufficient to establish a prior British title, the Dutch law would have been abrogated by the British conquest and acquisition in 1664. The court, however, suggested that the charter of Charles II, of 1664, specifically established the common law. The intervention of such an act of state would clearly bind municipal courts, even if contrary to international law. It would seem that prescription might have furnished sufficient basis for maintaining the predominance of English law in this case, but it does not seem to have been relied upon.

74Thirty Hogshead of Sugar vs. Boyle, 9 Cranch 191, (1815).

75 Louisiana, see Keene vs. McDonough, 8 Pet. 308; U. S. vs. Turner, 11 How. 663; Florida, see Am. Ins. Co. vs. Canter, i Pet. 542; New Mexico, U. S. vs. Power's Heirs, 11 How. 570, U. S. vs. Heirs of Rillieux, 14 How. 189; Leitsendorfer vs. Webb, 20 How. 176. In Chicago Pac. R. R. Co. vs. McGlenn, 114 U. S. 542, the state law was held to apply in territory donated by the state of Kansas to the Federal Government for a penitentiary. See Mortimer vs. N. Y. Elevated R. R. Co. 6 N. Y. S. 89, (1889), Scott, 111, note 73 above. See also U. S. vs. Chaves, 159 U. S. 452, (1895); Strother vs. Lucas, 12 Pet. 410.

76 Supra, p. 57.

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definite act of the political department of government repudiates such liability, there is no recourse for the inhabitants," although foreigners entitled to similar credits can still resort to diplomatic protest.

Where the obligation is one between private parties, treaties generally have required inviolability, and the courts have emphatically maintained that the same doctrine holds in the absence of treaty.78 Thus Chief Justice Marshall, in upholding a real estate right in Florida based on a grant by Spain, said, “It is very unusual even in cases of conquest for the conqueror to do more than to displace the sovereign and assume domain 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 allegiance, their relations to their ancient sovereign are dissolved, but their relations to each other and their right of property remain undisturbed."79

This same principle has been applied in cases of succession to insurrectionary and military governments. Private rights and obligations, valid under the law of the previous defacto government, have been enforced.80 Neither public nor private obligations will, however, be held as valid if they were contracted in support of armed resistance to the United States, or in rebellion. Thus the courts have held that all acts of the Confederate government of 1861 to 1865 were void. No rights could be derived from its laws because its very existence was rebellion against the United States. Acts of the states in rebellion, however, might be valid if not in direct aid of the insurrection. 81 Acts of the Confederate congress accepted by them and enforced by their law, such for instance as acts requiring the acceptance of Confederate paper currency, were valid. Thus the United States courts, after the war, enforced contracts for the payment of Confederate paper for an equivalent value at the time the contract was made, in United States money.82

To summarize, the United States has generally by treaty obligated itself to permit the inhabitants of acquired territory to retain their old allegiance if they wish. Treaties, statutes and constitutional guarantees have insured them the usual immunities of citizens. Treaty guarantees and the doctrine that courts apply international law have insured the retention of the existing system of private law until changed by express act of the legislature, and the inviolability of private property rights unless they were directly involved in the promotion of hostilities or rebellion. Statutes and executive orders have occasionally retained portions of the previous system of public law and administration, but the courts have affirmed that public law is abrogated by succession unless express act of the sovereign intervenes.

80 Succession to British Military Govt. of Castine, Me., 1814, U. S. vs. Rice, 4 Wheat. 246, (1819); to confederate De Facto Govt. of Southern states, 1861-1865, Thorington vs. Smith, 8 Wall. 1, 9-11, (1868); The Venice, 2 Wall. 258; Hanauer vs. Woodruff, 15 Wall. 448; Bissell vs. Heyward, 96 U. S. 580; Delmar vs. Insurance Co., 14 Wall. 661; Horn vs. Lockhart, 17 Wall. 570, 580; Baldy vs. Hunter, 171 U. S. 388, 392, (1890); Sprott vs. U. S., 20 Wall. 459, (1874). See Moore's Digest, 1;45-80.

81 On the distinction between acts of the Confederate government and of the state in rebellion, see Sprott vs. U. S. 20 Wall. 459, (1874); Williams vs. Bruffy, 96 U. S. 176, 191-2, (1877); Dewing vs. Perdicaries, 96 U. S. 193, (1877); Ford vs. Surget, 97 U. S. 594, 604, (1878). See Moore's Digest, 1;54-60.

82Thorington vs. Smith, 8 Wall. 1, (1868).

SERVITUDES.

There have been at different times claims that certain portions of territory are subject to servitudes or rights of use by foreign powers and persons, which are beyond the authority of the territorial sovereign to abridge. Thus it has been said that international rivers and canals are owned by adjacent states subject to the rights of free commerce for all; that marginal seas and straits are free to the innocent passage of foreign vessels, that the territorial sovereign's control of ports is subject to the right of asylum for vessels in case of imminent danger from stress of weather or other cause; that certain portions of territory are subject to the right of innocent passage of foreign troops, and even that all foreign territory, especially frontiers, is held by the territorial sovereign subject to the right of foreign states to enter the same for the purpose of enforcing order when self defense demands.83 The United States for a long time maintained that British territorial waters about Newfoundland were subject to prescriptive fishing rights of United States fishermen.

If there are any such inalienable servitudes they clearly put the territorial sovereign under a duty of acquiescence. By the award of the Hague arbitration of 1910 between Great Britain and the United States it was held that servitudes were contrary to the doctrine of sovereignty maintained by international law, and could be recognized "only on the express evidence of international contract;" hence the American claim that prescriptive fishing rights on Newfoundland territorial waters constituted a legal servitude in which Great Britain must acquiesce, was of no avail.84

(1) It seems that possibly an exception to this broad statement should be made in the case of boundary rivers. In that case the right of free commerce could scarcely be unilaterally restricted, and is universally recognized. United States courts have recognized the principle by holding that vessels traversing American waters of international rivers cannot be seized for

83 Pleas of self defense were used to justify violations of Spanish and Mexican territory in pursueing Indian marauders, and the landing of troops in foreign ports to protect United States citizens as in the recent (1914) case of Vera Cruz. See Moore's Digest, 2;400-425. On servitudes generally see Hall, Int. Law, 4th ed., p. 106; Moore's Digest, 2;18.

84See text of this decision, Am. Jour. Int. Law, 4:948, 958, (1910), Editorial Comment, Ibid. 8;859, (1914); also article C. P. Anderson, The Final Outcome of the Fisheries Arbitration, Ibid. 7;1, 9, (1913).

H

violation of municipal statutes when bound for a foreign port.85

(2) The right of asylum for vessels in distress has also been affirmed in United States law.86 The courts have refused to condemn vessels forced by stress of weather into ports closed by statute or blockaded by right of war.87 The right of asylum, however, is subject to the provision that the vessel, unless a public one, shall be subject to the local jurisdiction. It can therefore scarcely be said that the privilege constitutes a servitude upon the port waters.

Most of these so-called servitudes are not maintainable by modern international law. The United States has diplomatically and judicially affirmed its absolute right to sovereignty over its entire territory.88

(3) Servitudes conceded by treaty are, however, clearly recognized and certainly impose a duty of acquiescence upon the country. The United States has specifically accorded by treaty the right to certain countries of free commerce in international rivers89 and in the Panama canal," the right of asylum in ports to either private or public vessels in case of “stress of weather or pursuit of pirates or enemies,''91 the right of using troops

90

85The Appollon, 9 Wheat. 362, (1824).

86Cushing, Att. Gen. 7 op. 122, (1855); The Santissima Trinidad, 7 Wheat. 283; Moore's Digest, 7;982-985. Great Britain treated Jefferson's proclamation, prohibiting hospitality to British warships in 1807, after the Leopard and Chesapeake affair, as a breach of international law. See Moore's Digest, 6;1035.

87 The Nuestra Senora de Regla, 17 Wall. 30; Moore's Digest, 2;339

et seq.

88Schooner Exchange vs. McFaddon, 7 Cranch 116-136, (1812). See Moore's Digest, 2;4-16.