The Hawaiian gazette., 1899-12-08

SoWuuy CcHrcBs eACtVt tOI BtGlCtty tuu-
nicipal purposes. especially for grant
ing lands. And for the same reason in
both cases: because. after the treaty is
made. there Is not In either the union
Of possession and the right to the ter
ritory which must concur to give pie
mum dOminium ct utile. To give that.
there must be the jus In rem and the
jus In re. or what Is called In the COM
mon law Of England the juris ct seisi-
nae conjunctio. Thh general law of
property applies to the right of terri
tory no less than to other rights, and
all writer's upon the law OF nations
have been comfortable to this princi-
pie. Pu6endorf par Barbeyraf. lib. 4,
c. 3. sec. 8, note g" Davis vs.. The Po-
lice Jury Of Concordia, . Howard, 2S9.)
The reasons for this doctrine, as Civ
en- by the courts. are that II the ceding
power were to be permitted to make
grants and concessions of land. privi-
leges, and franchises. between the date
Of the signature Of the treaty and the
day Of ratification. the concessionary
might be deprived of a very valuable
portion Of the estate which It had con-
tracted to receive. So far does the
doctrine go that II Is declared that be-
fore the signature of the treaty but aft
er negotiation has begun for cession of
territory, grants Of land cannot be
made In 1t without being subject to
confirmation by the sovereign to whom
transfer Is to be made. It Is too mani
fest to require anything more than
statement that II a sovereign could ex-
ercise the power of alienation OF the
public domain after q treaty had been
signed and before its ratification, he
might change materially the relations
which the people OF the coded territory
had to each other. and establish diff
ferent condition than that which had
been contemplated when the agree
ment was definitely concluded. 1.-THE
law OF nations does not recognize in a
nation ceding q territory the continu-
ance OF supreme power over IT. after the
treaty has been signed, or any other
exercise OF sovereignty than that which
is necessary for social order and for
commercial purposes and to keep the
cession in an unaltered value until a
delivery of 1t has been made" Davis
vs.. Police Jury of Concordia, SUPRA
do not think that the difference in
the method Of cession employed in this
case requires different rule of inter-
probation from that which would have
been employed II the cession had been
by treaty. The reasons that are appli-
cable In the one case are equally APP
pl!cable In the other. The language of
the resolution Is in the present tense.
Ii declares that 1.-THE said cession is ac-
cepted, ratified. and confirmed, and
that the said Hawaiian Islands and
| their dependencies be. and they are
hereby, annexed as part of the terri
tory Of the United States and are
subject to the sovereign dominion
thereof. and that all and singular the
property and rights hereinbefore men
toned are vested in the United States
Of America"
This resolution follows a preamble
in which 1t is sOlemnly stated that the
Government Of the Republic Of Ha-
wall had. in due form, slgnified Its
consent. In the manner provided by it,
Constitution, to cede absolutely and
without reserve to the United States
Of America all rights of sovereignty
etc. II the ceremonies that were per.
formed on the 18th OF August. 1898
were necessary as evidencing the rati.
fication Of the agreement between the
two Governments. and II the Govern.
rent OF Hawaii can be considered Il
have participated in those ceremonies
then, unquestionably. their action made
the effect Of the resolution relate back
totne laIe of its adoption and required
that 1t should be given effect in ac
cordance with its language. which re.
lated to the date of its adoption rather
than to the date of the subsequent GER.
emonie. Nothisng Is said in the resolu-
ton as to any formal delivery or any
further solemnity for the purpose OF
transferring absolutely the title to the
United States. The resolution assumes
that the annexation was complete with
the adoption OF the resolution by which
the assent of the United States to the
offer of the Republic of Hawaii was
given.
I therefore advise you that in my
opinion with respect to the public
lands the resolution took effect as OF
the date of its approval, to wit. July
Z. 1898.
Third. The Special Agent of the Ha-
waiian Government refers to certain
correspondence DetWeen MT. SeWdll, tne
Special Agent Of the United States al
Honolulu, and the Department OF State
at Washington. as establishing q JUST.
fication for the exercise of the power
of sale by the Government of Hawaii
subsequently to the annexation. AT
/ the request Of the Hawaiian Govern
ment. the following question was SUBJ
mitted to the Department OF State on
August q. 1898:
should not President Dole continue
to execute land patents and deeds in
the ordinary dealing with Government
lands under the Hawaiian land laws?"
To which II was answered by Mr.. Sew
all. in conformity with his instruc-
lions, as follows:
Resolution provides that land laws
of the United States shall not apply to
public lands In Hawaii and that munic-
ipal legislation OF Hawaii generally
shall remain In force"
The Hawaiian authorities regarded
this answer as tantamount to declara-
ton Of opinion on the part OF the De-
partment OF State that they were au-
Il