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. 1 In Dana's Abridgment it 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 3 1 Von Holst, Const. Hist. U. S. vol. I, Pet. 541; United States v. Percheman, p. 2. 7 id. 51; Mitchel v. United States, 9 Pet. 732; Mitchell v. Tucker, 10 Mo. 2 Vol. 6, ch. 196, art. 7. 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; Chicago, etc. R. R. Co. v. McGlinn, 114 U. S. 542; Whart. Am. L. § 154. United States v. Powers' Heirs, 11 How. 577; Chew v. Calvert, 1 Miss. (Walk.) 54; Fowler v. Smith, 2 Cal. 39, 568; Blankard v. Galdy, 2 Salk. 411; Macoleta v. Packard, 14 Cal. 179; Campbell v. Hall, 1 Cowp. 209. Fowler v. Smith, supra, was a case which arose before there was any legislation of the state of California changing the original Mexican law of interest. It was an action to foreclose a mortgage for purchase money. There was an express promise to pay interest at two per cent. per month. It was stated that by the law of Mexico all contracts to pay a higher rate than six per cent. per annum, either upon money loaned or otherwise, were void. Murray, J., speaking for the court, said: "I cannot approach the point [error having been alleged to the ruling of the trial court that the contract was not usurious] without great hesitation, well knowing that I shall have to contend with what, by many, is considered the settled rule upon this subject. But the frequency of these pleas, and the growing disposition of counsel to apply the principles of the civil or Mexican law to every contract entered into before the passage of the act abolishing all laws previously existing in California, require that some adjudication should be had which may govern these cases for the future. The argument of the appellant is based upon the well-recognized principle of international law that the laws of a ceded country remain in force until changed by the conquering or acquiring power. This principle is to be found in almost every work upon the subject of national law, and is reiterated and affirmed by the courts of England and the United States. Its application to this case can, however, only be determined by an examination of the rule and the particular circumstances under which it is sought to be applied. "The law of nations is said to be founded on right, reason, sound morality and justice; but although it is said to be binding upon nations in their intercourse and transactions, still we find the courts of the United States and Europe in many instances differing in their application of the rules, and even disregarding them. As the world has advanced in civilization and learning, the influence of religion has been felt and recognized by the christian countries of Europe in their intercourse with each other. War has been stripped of many of its most disgusting features. It is no longer considered as the normal condition of man and nations; but only justifiable when resorted to to preserve national honor, prosperity and happiness. "In an acquired territory containing a population governed in their business and social relations by a system of laws of their own, well understood and generally accepted, it is but reasonable that the inhabitants should continue to regulate their conduct and commercial transactions by their own laws, until the same are changed. The reason is obvious and founded, in many instances, on the difference of language and systems of jurisprudence, the peculiar circumstances of the country, the confusion conse For a still stronger reason, this would be true in case of acquisitions by purchase and cession.1 The laws of the insurrebellion, not enacted in aid of 20. Laws of states in rebellion. gent states passed during the quent on such change, and the time necessary to ascertain the applicability of the new laws. It will be observed that the rule presupposes that the acquired country contains a population governed by well settled laws of their own. Let us inquire whether these reasons apply with equal force to this case. Emigration brought with it business, "California, at the time of its acquisition by the United States, contained but a sparse population. It had long been looked upon as one of the outposts of civilization. Its commercial, agricultural and mineral resources undeveloped, it was considered of little importance by the Mexican government. The body of Mexican laws had been extended over it; but there was nothing upon which they could act, and they soon fell into disuse. The system of government was patriarchal, and administered without much regard to the forms of law, which were scarcely alike in any two districts. Such was the state of the country when the discovery of our mineral wealth roused the whole civilized world to its importance. In a few months the emigration from older states exceeded five times the original population of the country. A state government was immediately formed to meet the wants of this unexpected population. The whole world was amazed by our sudden progress; and even the federal government, startled from her usual 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 population of its own, governed by known laws; and the rate of emigration had been small, compared to the number of the original inhabitants. History may be searched in vain for an instance parallel with the emigration to this country. If it would be unjust to compel a densely populated state to take notice of the laws of the conqueror or acquiring power, without any other act than that of submission or cession, it would be still more unjust in this country, where the American population so greatly outnumbered the natives, to compel us to apply their law, instead of our own, to contracts. In this case, the rule consequent upon the discovery of an uninhabited territory might almost apply; and to construe these contracts by a system of laws not adapted to the age nor to the spirit of our institutions, altering the plain meaning of the parties, and giving to them conditions which were never intended, would work the grossest injustice." A rehearing was granted, and at a subsequent term a different conclusion was arrived at, and the foregoing views were rejected. A majority of the court, by Heydenfeldt, J., said: "When the territory now comprised in the state of California was under Mexican dominion, its judicial system was that of the Roman law, modi fied by Spanish and Mexican legislation. Upon the formation of the present state government that system was ordained by a constitutional provision to be continued until it should be changed by the legislature." 2 Cal. 568. See Ryder v. Cohn, 37 Cal. 69, per Rhodes, J., dissenting. When the King of England conquers a country, there, the conqueror, by saving the lives of the people conquered, gains a right and property in such people, in consequence of which he may impose upon them such laws as he pleases. But until such laws are given by the conquering prince, the laws and customs of the conquered country hold place, unless they are contrary to the conqueror's religion, enact something malum in se, or are silent; in all such cases the laws of the conquering country prevail. 2 P. Wms. 75. 1 Horn v. Lockhart, 17 Wall. 570; Texas v. White, 7 id. 733; Sprott v. United States, 20 Wall. 459; S. C. 8 Ct. of Cl. 499; Williams v. Bruffy, 96 U. S. 176; Watson v. Stone, 40 Ala. 451; Home Ins. Co. v. United States, 8 Ct. of Cl. 449; Hawkins v. Filkins, 24 Ark. 286; Harlan v. State, 41 Miss. 566; Berry v. Bellows, 30 Ark. 198; Shattuck v. Daniel, 52 Miss. 834; Cook v. Oliver, 1 Woods, 437; Hatch v. Burroughs, id. 439; Seymour v. Bailey, 66 Ill. 288. the constitution, they have, in general, been treated as binding.1 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." 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; Keith v. Clark, 97 id. 465; Livingston v. Jordan, Chase's Dec. 454; Selden v. Preston, 11 Bush, 191; Pennywit v. Foote, 27 Ohio St. 600; Dillard v. Alexander, 9 Heisk. 719; Rockhold v. Blevins, 6 Baxt. 115; Dow v. Johnson, 100 U. S. 158; Dorr v. Gibboney, 3 Hughes, 382. 2 Sprott v. United States, 20 Wall. 464; Thorrington v. Smith, 8 id. 10. The occupation of a place by a Confederate army and the installation of a temporary civil government under its military cover, suspended co-exten- 1 |