Concession (law)

“ When government enters into contracts with individuals, it parts with its sovereignty. 9 Wheat. 907. In the case of the United States vs. Barker, the government was held bound in all proceedings upon bills of exchange to adhere to the same rules as govern individuals.
According to the general principles of the law of nations, the act of cession would not have impaired individual rights. But the peculiar provisions of the act of cession give this principle additional sanction; all the right of the United States to land here, depends exclusively upon the compacts made with individuals. ”

“ The vast majority of concessions must be obtained from the government; but in some states the higher nobility have the right to grant them for the villages and districts which belong to them, and so have convents and charitable foundations. In some of the towns concessions for such trades and professions as chimney-sweeping, gelding, dealing in old clothes, and rag collecting, are granted by the municipality. The grant or refusal of a concession is a perfectly arbitrary act ”

“ There is nothing in that instrument which prohibits the legislature of a State or Territory from exercising judicial functions, nor from passing an act which divests rights vested by law, provided its effect be not to impair the obligation of a contract. ”

“ No objection is suggested to the boundaries given, nor is an intimation made of any intention to exclude from the concession any portion of the land they embrace or to restrict the concession in any particular. ”

“ In Great Britain it resides in the executive (see the parliamentary debates upon the cession of Heligoland in 1890) ; sometimes, however, it is shared for all purposes, as in the United States, or for certain purposes only, as in many countries of the European continent, by the legislature, or by a branch of it. (2) There must be an expression of agreement. This is not (as in private law) rendered voidable by duress; e.g. the cession of a province, though extorted by overwhelming force, is nevertheless unimpeachable. ”

“ Contracts at common law, to which this simple power of assignment is extended by statute, differ essentially from those which arise out of and are governed by the law merchant, or from such as are placed on the footing of the law merchant by express legislative enactment. ”

“ Keeping this principle in view, I shall consider the title of the plaintiff under a Spanish concession, made in 1809, by the lawful authority of the king, independent of its confirmation by any special act of Congress; as resting on its validity by the laws of nations, the Constitution of the United States, the ordinance of 1787, the two treaties, and the general course of legislation by Congress, in relation to government and property in the disputed territory. ”

“ Power of Congress to regulate commerce among the several States, as well as with foreign nations, is fully admitted, and the concession is at least impliedly from the course of the argument-that this court would have jurisdiction in the case, and that the complainants would be entitled to relief, if it appeared that Congress had exercised the power as conferred, and had regulated the navigation of the river within the meaning of the Constitution. ”

“ Yet each state, so long as it does not impair the obligation of any contract, has the power by general laws to regulate the conveyance and disposition of all property, personal or real, within its limits and jurisdiction. ”

“ To grant subsidies which could not 232 be raised by any other course, to propose statutes which were not binding without their consent, to consider of public grievances, and procure their redress, either by law or petition to the Crown, were their acknowledged constitutional privileges, which no sovereign or minister ever pretended to deny. ”

“ If it be true that the 'obligation of contracts,' within the meaning of the constitution, is derived solely from general and universal law, independent of the laws of the State, then it must follow, that all contracts made in the same or similar terms, must, whenever, or wherever made, have the same obligation. ”

“ That the claimant or those under whom he holds must have been out of possession for twenty years or more. 2. That the land must be claimed by a complete grant or concession or order of survey or other mode of investitute of title in the original claimant by separation of the tract from the mass of the public domain, either by actual survey or defined, fixed natural boundaries or initial points and courses and distances by the competent authority, prior to the treaty of cession. ”

“ 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. ”

“ The argument is that, whatever may be the law with regard to grants made by a government clearly beyond its lawful boundaries and jurisdiction, it is certain that grants made within its jurisdiction, being lawful when made, are not invalidated by a subsequent cession of the territory to another sovereign ”

“ Another clause provides that, 'the judicial power shall extend to all cases in law and equity arising under this Constitution, the laws of the United States, and treaties made, or which shall be made, under their authority.'
Does the jurisdiction cease to exist in a case because other questions are involved in it than those arising under the Constitution, laws, or treaties of the United States? ”

“ That the alleged concession, if made, was on a condition precedent, which was never fulfilled. 3. That the concession, if ever made, did not contemplate that the lands conceded should be surveyed in four different tracts or parcels. 4. ”

“ That the vendor should be allowed to keep this large sum, and the land too, is revolting to conscience.
The equity of the appellants rests upon the definite rule of law and justice, which prescribes that the parties, upon the rescission of a contract, shall be replaced in statu quo ante. ”

“ But I will confess, that in the organization of this body, a compromise between contending interests is discernible: and when we reflect how various are the laws, commerce, habits, population, and extent of the confederated states, this evidence of mutual concession and accommodation ought rather to command a generous applause, than to excite jealousy and reproach. ”

“ The enterprise being of public utility, all property belonging to individuals can be appropriated whenever necessary for carrying out the provisions of the concession, and all concessions previously granted which may interfere with the conditions of the contract are to be terminated as speedily as possible. The government undertakes to indemnify the owners. ”

“ Among the powers which such corporations may exercise are 'to make contracts, acquire and transfer property, possessing the same powers in such respects as private individuals now enjoy,' and 'to establish bylaws, and make all rules and regulations deemed expedient for the management of their affairs in accordance with law, and not incompatible with an honest purpose.' Section 1151. ”

“ Even if it be conceded that the concession is proved, it is clear that it has no boundaries, nor does it contain any means to determine either the location or the extent of the supposed grant.
Grants of the kind which do not contain any description by which the land can be located, and are not connected with a survey, do not create private property under the treaty of cession. ”

“ And this Court, proceeding to render such decree as the district court ought to have rendered, doth further order, adjudge, and decree, that the title of the petitioners to all of said land embraced in said concession and survey, which has not been so sold by the United States, is valid by the laws and treaty aforesaid, and is hereby confirmed to them, agreeably to said concession and survey. ”

“ The hardship of the inhabitants being handed over to a new Sovereign against their will can be lessened by a stipulation in the treaty of cession binding the acquiring State to give the inhabitants of the ceded territory the option of retaining their old citizenship on making an express declaration. ”

“ The prior proceedings and decree of concession were passed to the departmental assembly, and the concession was approved, under the condition that within four months they should put in the hands of the governor a proper map of the land. ”

“ Art. XIV.—The High Contracting Parties agree that, in all that concerns commerce and navigation any privilege, favour, or immunity which either High Contracting Party has actually granted, or may hereafter grant, to the Government, ships, subjects, or citizens of any other State, shall be extended to the Government, ships, subjects, or citizens of the other High Contracting Party, gratuitously, if the concession in favour of that other State shall have been gratuitous, and on the same or equivalent conditions if the concession shall have been conditional ”

“ The moment that lands were relinquished at the request of the Secretary a contract was made and the Government was bound to convey to the Company such vacant lands within the Territory as the Company should select provided only that they were of equal quality. In theory of law the obligation was immediate when the selection was made, if it complied with the condition. ”

“ As the ground is thus logical and practical, the doctrine is not confined to powers that are sovereign in the full sense of juridical theory, but naturally is extended to those that, in actual administration, originate and change at their will the law of contract and property, from which persons within the jurisdiction derive their rights. ”

“ The stipulations were mutual, for reciprocal advantages. 'No higher or other duties' were to be imposed by either upon the goods specified; but if any particular favor should be granted by either to other countries in respect to commerce or navigation, the concession was to become common to the other party upon like consideration, that is, it was to be enjoyed freely if the concession were freely made, or on allowing the same compensation if the concession were condito nal. ”

“ The operation of voluntary or common-law assignments upon property situated in other states has been the subject of frequent discussion in the courts, and there is a general consensus of opinion to the effect that such assignments will be respected, except so far as they come in conflict with the rights of local creditors, or with the laws or public policy of the state in which the assignment is sought to be enforced. ”

“ Like sovereignty itself, the exercise of its essential powers, even when delegated functionally in government, does not yield to the limits of definition. The decisions of the Supreme64 Court are not definitions of the power over commerce so much as they are definitions of the particular exercise of the power of Congress within its jurisdiction, with respect to commerce, by the Constitution.129 For the States also have jurisdiction over commerce. ”

“ I am persuaded that it is a point of true Policy to make these Concessions at a time when they may be received as a matter of favour, and when it is in Our own power to regulate and direct the manner of applying them, rather than to wait till they shall be extorted from us by a necessity which shall neither leave us any discretion in the form nor any merit in the substance of what We give. ”

“ The holder of a concession which is maintained in force shall have the right, within a period of six months after the expiration of the period specified in the second paragraph of this Article, to demand the adaptation of his contract to the new economic conditions, and in the absence of agreement direct with the Governrnent concerned the decision shall be referred to the Arbitral Commission provided for above. ”

“ Mr. BAYARD. Now, the states of Maryland and Virginia have made this cession, with the consent and approbation of the people in the ceded territory, and Congress has accepted the cession, and assumed the jurisdiction. Are they, then, at liberty, or can they relinquish it, without the consent of the other parties? It is presumed they cannot. ”

“ When such legislative power is acquired in any other way, as by an express act ceding it, its cession may be accompanied with any conditions not inconsistent with the effective use of the property for the public purposes intended. ”

“ If you marry as a concession to the government, because you don’t want to ruin your business or have your wife insulted, the government will divorce you—and on the concession basis: but you pay for both the concessions. ”

“ And this renders it unnecessary to consider the supposed advantages which would arise from the adopting of a new rule, since, if the wisdom of so doing be arguendo conceded, that concession would not justify the misapplication of the existing rule and the destruction of rights vested in reliance, not only upon its existence, but upon the discharge of the duty to enforce and apply it. ”

“ The admission which we most freely make, of a power in the state, so to regulate the conduct of corporations as to attain the objects of their formation may appear to conflict with a proposition, which we shall endeavor to sustain; which is this, that the state, by becoming a party to the contract, was as much bound to respect the rights of the other party, as if the state had been an individual. ”