quered country to ordain a system of government for it, and, among other institutions, to erect courts of justice, and maintain them in the discharge of their proper functions, is as well established and free from doubt, when considered on authority, as it is in principle.

But it may be said that this reasoning, if correct as to territory foreign to the conqueror, and as to which his rights and duties are simply and solely those of a conqueror by force of arms, is not applicable to the case in question, for this Louisiana is a part of the territory of the United States, over which the powers and duties of the President and the other departments of the Government were already fixed, and are dependent on the constitution and laws of the United States, and limited to the powers and duties conferred by them; and that those laws do not give the President the power to establish a court like this, and therefore that he has not that power.

It is quite certain that, ordinarily, he would have no such power; and hence, instead of looking for it to the Constitution and laws of the United States alone, I have looked elsewhere and to other facts than his merely occupying the place of President at the time. I have invoked also the fact that he was by virtue of that office, as commander of the forces of the United States, holding in armed belligerent occupation the country in which the Court was established, and in which its powers and authority are now brought in question.

It may be said that the act of the United States in this case had not the usual effect of a conquest of foreign territory-that instead of acquiring anew the rights of a conqueror, the United States by this conquest (as I for the sake of convenience have called it), has but removed the obstacles to the enjoyment of its preexisting rights, and has not acquired any new ones of a conqueror.

As we have seen, the foundation of the right of a conqueror to govern conquered territory, and for that purpose to establish provisionally civil institutions in it, is necessity, and that chiefly the necessity of the conquered country and its inhabitants. A government of some kind they must have, for no community can exist without it.

The power of the conqueror has overridden and subjected all other power, and this necessity can be supplied from no other source than him, for he holds for the time being all power. Whilst this continues to be the case, what is there in the case in question of Louisiana, which should make it different from a foreign country?

The inhabitants of that country owed allegiance to and were entitled to the protection of the Government of the United States, it is said familiarly, and this is quite true in the sense in which the remark is usually made. But did the United States ever, at any time, or under any circumstances, owe the people of this territory a protection and government which would supply all, or any considerable part of their wants in this respect?

If the Government of the United States should afford to this country all the protection, and aidshould perform for it all the governmental offices which it by virtue of the Constitution and laws of the land was ever bound, or had a right to do, how far would this go toward supplying the wants of the country in that respect? Is it not quite certain, on looking into the law on the subject of the relations, rights, and duties of the Federal Government to the tract of country in question, or any other tract embraced within the State, that with the Federal Government in full function and all its duties fully performed, a very small portion of the governmental necessities of the country would be supplied?

It is a fact familiar to us all, that under our system of government almost all the governmental aid needed by our people is due to them from the local depositories of power, the State governments-for most purposes within their own territory, sovereign.

These governments, under our system, are the repositories of nearly all of the powers of government in ordinary times in familiar use among us, and whether they be applied by the State itself, by its own officers directly, or be allotted out in parcels to smaller governmental districts, such as counties or parishes, cities, towns, or villages, to be applied by the officers of those localities respectively, still the State and not the Federal Government is the reservoir from which they are drawn, whether it be for distribution or exercise; and the State, and not the Federal power and officers, administer and execute them.

From which Government comes the system of police by which order in society is maintained from one end of the land to the other? From which the judicial power-the one in question here and now--by which, in ordinary cases, crime is punished and repressed, controversies decided, and the rights of persons and property established and maintained? and what is certainly quite in point, from which source comes the power by which these very unfortunate criminals now before me would ordinarily on a basis of peace be tried, and justice be meted out to them?

It is quite certain that the Government of the United States, remitted to its ordinary constitutional functions within one of the States as in times of peace, could not supply a government at all adequate to the necessities of society, and especially could not have taken cognizance of, or punished at all, either of the offences in question by any tribunal it ever had, or had the right to establish.

The necessity for a provisional government here for nearly all the purposes for which a government is necessary, and especially of a provisional tribunal for dispensing justice generally, and in cases like these now under consideration, was the same as, and none other than it would have been if this tract of country in question had been a part of the domain of a government wholly foreign to that of the United States, and over the territory of which it had no other rights than those growing out of war and conquest. Indeed, it may well be doubted whether, in reference to governmental rights and duties in matters of this kind, there is any difference between the citizens of the several States and those of foreign territory. Certain it is, from what has been said, that this territory is not, by the nature of our system of government, under the dominion of the Federal Government as to most matters of local administration, but is exclusively under the State and local government, and the Federal Government was never bound and never assumed or pretended to furnish government to any section of the States as to their internal or local matters generally, and has not, and never had the duty, right, or power to do so.

But this district of territory had been in insurrection against the Government of the United States, had openly withdrawn from all connection with that Government under the forms of law and civil legisla tion, had allied itself with others hostile and at war with it, and had, by force of arms, for a considerable time maintained this attitude external and hostile, resisting successfully the efforts of the Government to subject it to law and duty. However the act of secession was ineffectual in law, this district had in fact and practically withdrawn from all relations with the Government of the United States, and had arrayed itself in armed hostility to it. Its duties remained unchanged, no doubt, but its rights to the filial relation-its rights to receive from the Federal Government the consideration and care of a parent rather than the imperious commands of a military master, may have been much changed by the events which had transpired, and I think that they had been. Having taken for itself the attitude of a foreign State, and that, too, of one hostile and at war with the United States, and formed and adapted all its civil institutions, and in every respect bent itself to that condition, and claimed and asserted it, and prac

tically maintained it by force of arms for a time, and having been at this time overcome and subjected to the arms of the Government of the United States, it may very well be that while it has acquired no new rights by virtue of its pretensions, it has resigned and forfeited old ones, and is no longer entitled to demand the benefits of a relation it has renounced and repudiated, however it may have failed in establishing at that time its freedom from the duties attendant upon it.

The counsel for the prisoners Reiter and Louis, however, take different grounds on this motion. The former insists that the whole structure of the Court in its origin was without warrant in law.

While the learned counsel for the accused insist that these powers have ceased, by reason, as I understand the argument, of the organization of a civil government here which supersedes the military, I pass to consider the question presented by this argu

ment.

If a conqueror in a conquered country have a right to set up a government in it, when does that right cease? Or, rather, if he have such a right, and exercise it, when does the power of the government so set up cease?

I answer, first, it will terminate necessarily whenever the power which formed it shall terminate, or become unable to support it. And secondly, whenever that power shall for any cause voluntarily bring

it to an end.

That the power of the Federal Government here has not been terminated, I need no argument to prove. But on this point, as well as the one to which I have cited the cases above referred to, some of those cases speak as authorities. In two of those cases, at least, in which the power of the provisional government and the provisional courts was sustained by the Supreme Court of the United States, it was so upheld in territory belonging, aside from military occupation and of right, to the domain of the United States, and over which that Government had powers of government full and complete, for all purposes, as any sovereign or State has ordinarily within its own territory; rights not limited to its external matters alone, or chiefly, as are those of the United States, in territory lying within one of the States, but embracing powers for all the details of local administration, legislative, executive, and judicial.

And even there, where the United States had, by the Constitution, powers of government ample for all purposes, the power to continue in force a provisional government long after military occupation had ceased, and when the rights of the United States there depended not at all on military power, or bel ligerency, but wholly on compact between the former Sovereign and itself-even there, in territory confessedly belonging to the United States, and in time of peace, and in the absence of military power or military necessity, the provisional government and the provisional courts were upheld to the fullest extent, and were adjudged to continue legally and practically in force as instruments of the Federal Government until it should, by its constitutional action, through its legislature, otherwise provide.

In the earlier of those cases, Cross vs. Harrison, 16 Howard's Reports, 164, the Court say: "Our conclusion from what has been said is, that the civil government of California, organized as it was, from a right of conquest, did not cease or become defunct in consequence of the signature of the treaty or from its ratification.

"We think it was continued over a ceded conquest, without any violation of the Constitution or laws of the United States, and that until Congress legislated for it, the duties upon foreign goods, &c., were legally demanded and lawfully received by Mr. Harrison, the collector of the port, who received his appointment, &c., &c., from Governor Mason."

These cases, in deciding that a provisional government may be maintained by the military power of the

United States in territory belonging to it, not helɑ in military occupation, or jure belli, go far to prove that the fact that this country belonged for some purposes to the United States, aside from the coming from conquest and military occupation did not take it from the application of the general principle that the conqueror, in conquered territory, has the right to govern it and to establish government as he may deem expedient; but that such territory, on the con trary, is on the same footing in that respect as terri tory strictly and for all purposes foreign.

There is no pretence that the Federal Government has in any manner directly brought, or sought to bring, the labors of this Court to a close. Having established it, and bade it proceed in the performance of its mission, it will continue (the power which established it continuing) until that power shall revoke its commission, or otherwise decree its discontinuance. But it is said that a civil government has been established here, and that therefore the proper functions of the provisional one, and among others the functions of the provisional court, have

ceased.

It is quite true that some measures apparently tending to the establishment of a civil government have been taken. Members of Congress were elected in 1862, and were admitted to seats in the national Legislature. Several other officers-a Governor, Attorney-General, and others-have also been elected more recently under the direction of the military authorities. A convention for the revision of the Constitution of the State has been elected and convened. These things look like measures for the organization of a State government, and measures of this kind pursued may in course of time lead to such a consummation, at the pleasure of the Federal Government. That all these things have been done under and by virtue of the fostering care of the Federal Government, as exercised by the military arm of it, no one at all acquainted with the facts will doubt.

Waiving, for the present, however, as unnecessary to be considered here, the question whether these movements have their foundation in and derive their vital principle from the State or from Federal sources and whether in use, as some of them are, they are in fact instruments in the hands of the defunct State, or of the living Federal power, it is quite cer tain and sufficient for present purposes that the Federal Government has not voluntarily abdicated and resigned to them all, or generally the functions of government, certainly not those of the provisional

court.

Such a general surrender alone could have divested the power of this Court, for there is no pretence that the Federal Government has singled out certain powers, and among them the powers heretofore exercised by this Court, and so parted with them as to be unable to recall or exercise them. The whole argument, on the contrary, proceeds on the idea that civil government, as a whole, has been established here, and all the power to exercise it resigned into the hands of State authorities.

In short, that the State is again in possession of all the governmental powers which of right, under our system, belong to the State, in contradistinction to the Federal Government, and that the United States retain only what are designed, under our system of government, ordinarily to be exercised by the Federal Government in all the States in times of peace, and that both parties are, in fact, remitted to their own positions in the constitutional government formerly occupied by them, and the same as are now occupied by the loyal States.

At the time this motion was made (and every thing must relate to that time) there was not a court in the part of Louisiana within the Federal lines having any reasonable pretence of authority from any other source than the Federal Government.

The United States District and Circuit Courts then

in operation here, were and are the constitutional courts of that government. All else were creations of the military power of the Federal Government. All the governmental functions in exercise here at that time, not only courts of justice but all others, and all the judges, officers, and instruments by which they were performed and operated, were those of the Federal Government, and were appointed, commissioned, animated, sustained, and moved by that power alone.

The Provisional Court for the State of Louisiana

the Court of the Federal Government-retains all the powers it ever had, and will continue to exercise rightfully a jurisdiction commensurate with its charter, so long as the President, or the Government he represents, shall will it, and shall uphold it for that purpose; and whatever other institutions may have brought, or allowed to come into existence in the mean time, this Court will not cease, or go out of existence, or be shorn of any of its powers or proportions by reason of the fact that some modicum of them, or of other powers of civil government, have been allotted by the common parent--the Federal Government -to other institutions or instrumentalities.

Something was said on the argument about the laws which these courts should administer. The laws of the conquered country, like every thing else connected with its government, are entirely under the control and subject to the will of the conqueror. He makes and adopts them in use at his pleasure. Those found in use at the time of the conquest may be continued in use by him or laid aside at his pleasure. If continued in use, however, they become his, and derive their force and efficacy from him and his adoption of them. In the cases cited above, a new code was made and introduced by Gen. Kearny, representing the government of the conqueror, called the Kearny Code.

In the absence of any provision on the subject, in such a case courts of justice are not bound to adhere to any particular system. This Court is commissioned to administer justice, and no code of laws is prescribed for it. It may adopt such rules as may seem wise and expedient, whether corresponding to the system in use here at the time of the conquest, or differing from it. It has always administered justice according to the Code of Louisiana, and so have all other courts here, not because it was bound by that code, as law of the State, but because it seemed expedient and wise to continue along under the system found in use here, rather than introduce a new one.

In the cases cited above from California, Cross vs. Harrison, 16 Howard R., 164; Leitensdorfer vs. Webb, 20 Howard, 176, and Jecker vs. Montgomery, 14 Howard, 498, the previously existing systems of law were ignored and a new and original system introduced, which course received the sanction of the Supreme Court of the United States in those cases; and in the case cited from Maine, the United States vs. Rice, 4 Wheaton, 254, the British Government made a new and different law and administered it while the territory was held by it, and that course received the sanction of the same court of highest authority, in the case referred to.

I have not cited authority for every thing I have said in this opinion-perhaps not for every doctrine I have declared. I have, however, referred to the court of highest authority in such cases of any tribunal known among men, and to the decisions of that court, quite in point, for every principle and doctrine claimed in this opinion, which is not so plain and evident as to make reference to cases for authority unnecessary and inexpedient, and, for the omission to cite them to such points, I have the very high authority of the Supreme Court of the United States, in the case of the United States vs. Rice, 4 Wheaton, clear to require aid from authority," it is not well to encumber an opinion with them.

254, above referred to, that in cases like that "too

In addition to the cases already commented on, I will refer to several more having important bearing on this question, not as establishing any new princi ple or sustaining any old one not better sustained by more modern and unquestionable authority already referred to, though equally conclusive of the principle with them; but as furnishing, perchance, to some mind some new view, reason, or illustration of a principle better established on authority by cases already introduced.

Grotius De J. B., ac. P. 1. 2, c., s. 5 et seq.; Ib., 1. 3, c. 6, s. 4; Ib., 1. 3, c. 9, s. 9, 14; Puffendorf, by Barbeyrac, 1. 7, c. 7, s. 5; Ib., 1. 8, c. 11, s. 8; Bynkershoek Q. J., Pub., 1. 1, c. 6, 16; Duponceau's transl., 46, 124; Voet ad Pandect, 1. 39, tit. 4, no. 7, De Vectigalibus; Ib., 1. 19 tit. 2, no. 28; Ib.. 49, tit. 15, no. 1; United States v. Hayward, 2 Gallis, 501; The Fama, Rob., 106; The Foltina, Dodson, 450; 30 hogsheads sugar, Bentzen, claimant, 9 Cranch., 191; Reeve's Law. of Ship., 98 et seq.; United States vs. Vowell, 5 Cranch., 368; United States vs. Arnold, 1 Gallis, 348, S. C., 9 Cranch., 106; Empson vs. Bathurst, Winch. Rep., 20, 50, Winch. Entries, 334, cited Poph. 176, S. C. Hutton, 52, Com. Dig. Officer, H.

My conclusions, therefore, are: That at the time of the establishment of the Provisional Court for Louisiana, a considerable part of the territory of that State was held by the forces of the United States, in armed belligerent occupation.

That in a country so held, the authority of the occupying force is paramount, and necessarily ates the exclusions of all other independent authority in it.

That government from some source is a necessity, and while the power to give and administer government is exclusively with a party occupying a country, there can be no doubt that the right and the duty are his to furnish a government and supply that

want.

That the actual military occupation of that territory by the United States has continued from that time to the present, and still continues, and the right and duty of government, therefore, continue with the United States.

That the establishment of the Provisional Court for Louisiana, by the President, as Commander-in-Chief of the forces of the United States, while they held the territory in which it was to exercise its functions, was an act warranted by the law of nations.

That so long as the authority of the United States shall continue, the right and the duty of it as the party dominant there to afford to the country a government will continue.

That said Court has, from the time of its founda tion to the present time, rightfully exercised its functions in territory in which the Government of the United States has been by force of its arms sovereign, and will continue rightfully to exercise them there, so long as its commission shall remain unrevoked and the power of the United States shall continue to support it in the exercise of them.

LOVEJOY, OWEN, born in Albion, Kennebec County, Maine, January 6th, 1811, died in Brooklyn, N. Y., March 25th, 1864. His father was a clergyman and farmer, and he worked upon the farm until he was eighteen years of age, when he fitted for college at a neighboring academy, and entered Bowdoin College. Ho graduated in 1835, and emigrated to Alton, Illinois, where he engaged in theological studies, his brother Rev. Elijah P. Lovejoy being at the time the editor of a paper there which advo cated anti-slavery views. In 1837, the proslavery citizens of Alton and the neighboring counties in Missouri, taking offence at the de