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Besides, commercial intercourse between the distant colonies, in consequence of the great extent of their territory, the scantiness of the population, and the poor means of transportation at the time, was so slight, that the similarity of thought and feeling, which can be the result only of a constant and thriving trade, was wanting.” It is not surprising, therefore, that the same English statutes were not equally applicable to the local condition in all the colonies.
In Dana's Abridgmentit is said, “there is no question more difficult to be answered than this: “What British statutes were adopted in the British colonies?' In the chartered colonies but few were adopted and practiced upon; in the proprietary colonies, not many; in the royal colonies, usually a great many."
$ 19. Continuance of laws after a change of sovereignty.Laws, customary and statutory, continue in force, though they originate under a sovereign whose power has ceased by cession of the country and all political jurisdiction, or by conquest. "The usage of the world is,” says Chief Justice Marshall, “ if a nation be not entirely subdued, to consider the holding of 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 the 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.": Among civilized na
i Von Holst, Const. Hist. U. S. vol. I, Pet. 541; United States v. Percheman,
7 id. 51; Mitchel v. United States, 9 2 Vol 6, ch. 196, art. 7.
Pet. 732; Mitchell v. Tucker, 10 Mo. 3 The American Ins. Co. v. Canter, 1 262; Leitensdorfer v. Webb, 20 How,
tions having established laws, the rule is that laws, usages and municipal regulations, in force at the time of the conquest, remain in force until changed by the new sovereign.' 176; Langdeau v. Hanes, 21 Wall, 527; principle is to be found in almost Chicago, etc. R. R. Co. v. McGlinn, 114 every work upon the subject of naU. S. 542; Whart. Am. L. S 154. tional law, and is reiterated and
United States v. Powers' Heirs, 11 affirmed by the courts of England How. 577; Chew v. Calvert, 1 Miss. and the United States. Its applica(Walk.) 54; Fowler v. Smith, 2 Cal. tion to this case can, however, only 39, 568; Blankard v. Galdy, 2 Salk. be determined by an examination of
Macoleta v. Packard, 14 Cal. 179; the rule and the particular circumCampbell v. Hall, 1 Cowp. 209. stances under which it is sought to
Fowler v. Smith, supra, was a case be applied. which arose before there was any “The law of nations is said to be legislation of the state of California founded on right, reason, sound mochanging the original Mexican law rality and justice; but although it is of interest. It was an action to fore- said to be binding upon nations in close a mortgage for purchase money. their intercourse and transactions, There was an express promise to pay still we find the courts of the United interest at two per cent. per month. States and Europe in many instances It was stated that by the law of Mex- differing in their application of the ico all contracts to pay a higher rate rules, and even disregarding them. than six per cent. per annum, either As the world has advanced in civiliupon money loaned or otherwise, zation and learning, the influence of were void. Murray, J., speaking for religion has been felt and recognized the court, said: “I cannot approach by the christian countries of Europe the point [error having been alleged in their intercourse with each other. to the ruling of the trial court that War has been stripped of many of its the contract was not usurious] with- most disgusting features. It is no out great hesitation, well knowing longer considered as the normal conthat I shall have to contend with dition of man and nations; but only what, by many, is considered the justifiable when resorted to to presettled rule upon this subject. But serve national honor, prosperity and the frequency of these pleas, and the happiness. growing disposition of counsel to ap- “ In an acquired territory containply the principles of the civil or Mexi- ing a population governed in their can law to every contract entered business and social relations by a sysinto before the passage of the act tem of laws of their own, well underabolishing all laws previously exist- stood and generally accepted, it is but ing in California, require that some reasonable that the inhabitants should adjudication should be had which continue to regulate their conduct may govern these cases for the and commercial transactions by their future. The argument of the appel- own laws, until the same are changed. lant is based upon the well-recognized The reason is obvious and founded, principle of international law that in many instances, on the difference the laws of a ceded country remain of language and systems of jurispruin force until changed by the con- dence, the peculiar circumstances of quering or acquiring power. This the country, the confusion conse
For a still stronger reason, this would be true in case of acquisitions by purchase and cession."
$ 20. Laws of states in rebellion.— The laws of the insurgent states passed during the rebellion, not enacted in aid of
quent on such change, and the time Emigration brought with it business, necessary to ascertain the applica- litigation, and the thousand attendbility of the new laws. It will be ants that follow in the train of enterobserved that the rule presupposes prise and civilization. The laws of that the acquired country contains a Mexico, written in a different lanpopulation governed by well settled guage, and founded on a different laws of their own. Let us inquire system of jurisprudence, were to them whether these reasons apply with a sealed book. The necessities of equal force to this case.
trade and commerce required prompt “ California, at the time of its ac- action. This flood of population had quisition by the United States, con- destroyed every ancient landmark; tained but a sparse population. It and finding no established laws or had long been looked upon as one of institutions, they were compelled to the outposts of civilization. Its com- adopt customs for their own governmercial, agricultural and mineral re- ment. The proceedings in courts sources undeveloped, it was consid- were conducted in the English lanered of little importance by the Mexi- guage; and justice was administered can government. The body of Mexi- by American judges without regard can laws had been extended over it; to Mexican laws. Custom was for but there was nothing upon which all purposes law. No law concerning they could act, and they soon fell usury was recognized or supposed to into disuse. The system of govern- exist. Under this peculiar system ment was patriarchal, and adminis- this country acquired its present tered without much regard to the wealth and prosperity. But it would forms of law, which were scarcely have been much better for the peralike in any two districts. Such was manent interests of this country, that the state of the country when the dis- its progress had been less rapid, if, covery of our mineral wealth roused after escaping from the tutelage of a the whole civilized world to its im- territorial government, we are to be portance. In a few months the emi- fettered by the dead carcass of a law gration from older states exceeded which expired at its birth, for want five times the original population of of human transactions on which to the country. A state government was subsist; the application of which immediately formed to meet the wants would overturn almost every contract of this unexpected population. The entered into before the act abolishing whole world was amazed by our sud- all laws, etc., — would unhinge busiden progress; and even the federal ness and entirely destroy confidence government, startled from her usual in the country. caution by so novel a spectacle, beheld * There is no case like the present us take our place as a sovereign state, to be found in the history of the before her astonishment had subsided. world. In every instance cited in
1 United States v. Powers' Heirs, supra; McNair v. Hunt, 5 Mo. 300, 308.
the rebellion but relating to the domestic affairs of the people of the state as a community, were valid after the war and the restoration of the states to all their rights in the Union. The same general form of government, the same general laws for the administration of justice and the protection of private rights, which had existed in the states prior to the rebellion, remained during its continuance and afterwards. As far as the acts of the states did not impair, or tend to impair, the supremacy of the national authority, or the just rights of the citizens under
the books the acquired country had a fied by Spanish and Mexican legislapopulation of its own, governed by tion. Upon the formation of the presknown laws; and the rate of emigra- ent state government that system was tion had been small, compared to the ordained by a constitutional provisnumber of the original inhabitants. ion to be continued until it should be History may be searched in vain foran changed by the legislature.” 2 Cal. instance parallel with the emigration 568. See Ryder v. Cohn, 37 Cal. 69, to this country. If it would be un- per Rhodes, J., dissenting. just to compel a densely populated When the King of England constate to take notice of the laws of the quers a country, there, the conqueror, conqueror or acquiring power, with- by saving the lives of the people conout any other act than that of sub- quered, gains a right and property mission or cession, it would be still in such people, in consequence of more unjust in this country, where which he may impose upon them the American population so greatly such laws as he pleases. But until outnumbered the natives, to compel such laws are given by the conquerus to apply their law, instead of our ing prince, the laws and customs of own, to contracts. In this case, the the conquered country hold place, rule consequent upon the discovery unless they are contrary to the conof an uninhabited territory might al- queror's religion, enact something most apply; and to construe these malum in se, or are silent; in all such contracts by a system of laws not cases the laws of the conquering adapted to the age nor to the spirit country prevail. 2 P. Wms. 75. of our institutions, altering the plain i Horn v. Lockhart, 17 Wall. 570; meaning of the parties, and giving to Texas v. White, 7 id. 733; Sprott v. them conditions which were never United States, 20 Wall. 459; S. C. 8 intended, would work the grossest in- Ct. of Cl. 499; Williams v. Bruffy, 96 justice."
U. S. 176; Watson v. Stone, 40 Ala. A rehearing was granted, and at 451 ; Home Ins. Co. v. United States, a subsequent term a different conclu- 8Ct. of Cl. 449 ; Hawkins v. Filkins, 24 sion was arrived at, and the foregoing Ark. 286; Harlan v. State, 41 Miss. 566; views were rejected. A majority of Berry v. Bellows, 30 Ark. 198; Shatthe court, by Heydenfeldt, J., said: tuck v. Daniel, 52 Miss. 834; Cook v. “When the territory now comprised Oliver, 1 Woods, 437; Hatch v. Burin the state of California was under roughs, id. 439; Seymour v. Bailey, Mexican dominion, its judicial sys- 66 Ill. 288. tem was that of the Roman law, modi
the constitution, they have, in general, been treated as binding
These laws, necessary in their recognition and administration to the existence of organized society, were the same, with slight exception, whether the authorities of the state acknowledged allegiance to the true or the false federal power. They were the fundamental principles for which civil society is organized into government in all countries, and must be respected in their administration under whatever dominant authority they may be exercised. It is only when in the use of these powers substantial aid and comfort was given or intended to be given to the rebellion, when the functions necessarily reposed in the state for the maintenance of civil society were perverted to the manifest and intentional aid of treason against the government of the Union, that these acts are void.?
$ 21. Federal and state statutes.— The sovereign power of making laws in the United States is divided and qualified; a part is vested in the federal congress, and a part in the several state legislatures. Congress has a legislative power only in respect to certain subjects enumerated in the federal constitution; the state legislatures have a general legislative power within the several states. They have not an unlimited power; for the power of each is diminished by the legislative power granted to congress, and it is also restricted by various provisions in the state constitutions.3
The acts of congress passed in the exercise of the enumerated powers are the supreme law of the land, - in the states, in the District of Columbia, in the territories throughout the
1 Williams v. Bruffy, 96 U. S. 176; military cover, suspended co-extenKeith v. Clark, 97 id. 465; Livingston sively with their potential range the v. Jordan, Chase's Dec. 454; Selden government and the laws of the state, v. Preston, 11 Bush, 191 ; Pennywit v. and not only compelled but legalized Foote, 27 Ohio St. 600; Dillard v. Alex- submission to the authority, however ander, 9 Heisk. 719; Rockhold v. spurious, of the de facto power. Blevins, 6 Baxt. 115; Dow v. John- Baker v. Wright, 1 Bush, 500; Lay son, 100 U. S. 158; Dorr v. Gibboney, v. Succession of O'Neil, 29 La. Ann. 3 Hughes, 382
722; Railroad v. Hurst, 11 Heisk. 625. 2 Sprott v. United States, 20 Wall. 3 Donnell v. State, 48 Miss. 679; 461; Thorrington v. Smith, 8 id. 10. Thayer v. Hedges, 22 Ind. 282; Blair The occupation of a place by a Confed- v. Ridgely, 41 Mo. 63; Sears v. Coterate army and the installation of a trell, 5 Mich. 251, 256. temporary civil government under its