LOUISIANA. 



theretofore known as the State of Louisiana, the 

 power by which the Government of it had been there- 

 tofore administered, and having established there its 

 own power, was bound by the laws of war, as well as 

 the dictates of humanity, to give to the territory 

 thus bereft a Government in the place and stead of 

 the one deposed or overthrown, such an one as 

 should reasonably secure the safety and welfare of 

 the people thus reduced to subjection ; in some man- 

 ner, not inconsistent, to be sure, with the proper in- 

 terests of the governing power, and the maintenance 

 of it in its supremacy there. 



The power established there was the military 

 power of the United States, and the President of the 

 United States, as we have seen, the Commander-in- 

 Chief of the forces, military and naval, of the United 

 States, was at the head 01 that power, and had the 

 right and duty to exercise and direct it. It was in- 

 cumbent on him, representing for this purpose the 

 sovereignty of the United States, to see that the duty 

 devolving on his Government should be properly per- 

 formed. He acted in obedience to this duty, and in 

 accordance with this right, when he attempted to 

 establish there a judicial tribunal capable of deciding 

 controversies and administering justice. 



But how does this question stand on the authority 

 of adjudged cases. In the case of Cross et al. vs. 

 Harrison, in the Supreme Court of the United States, 

 in 1853, reported in 16 Howard, at page 164, the 

 Court held that a civil Government formed in Cali- 

 fornia, under the direction of the President of the 

 United States, as Commander-in-Chief of the army 

 and navy, shortly after the conquest of the country, 

 and while it was held in military occupation by the 

 forces under him, was an act warranted by the laws 

 of nations, and that the formation of such a civil 

 Government was the rightful exercise of a belligerent 

 right over a conquered country. 



The decision covered the whole ground, that the 

 Provisional Government of the United States there 

 was rightful and legal, and that it continued in force 

 a legal, rightful Government through the time the 

 country was held in military occupation, and after 

 that occupation ceased, and that it was, in fact, in 

 force until some other system was provided ac- 

 cording to law to supersede it. 



For the doctrine that a conqueror in a conquered 

 country may establish a Government, and courts for 

 the administration of justice, the case of Leitensdor- 

 fer et al. vs. Webb, decided by the Supreme Court 

 of the United States, in 1857, reported in 20 Howard, 

 176, is an authority directly in point. In that case 

 the conduct of the Government of the United States 

 by General Kearny, the officer in command of its 

 forces there, was brought in question. It appeared 

 that after the conquest of that country by the arms 

 of the United States, General Kearny in command 

 of the forces there, established a Government and 

 provisional courts for the administration of justice. 



Those courts, in the case referred to, were ad- 

 judged to be legal, and their decisions obligatory as 

 warranted by law. The power to establish the Gov- 

 ernment and the courts was directly in question, and 

 was directly passed upon by the Court, and was sus- 

 tained on trie ground of the right of conquest. 



In that case, moreover, it appeared that the 

 country conquered was subsequently, by treaty, 

 ceded to the United States, and it was claimed that 

 by the act of cession the rights of the United States 

 to govern the country and enforce the laws made by 

 the Provisional Government while it was held in 

 military occupation, was terminated. 



The Court say : " Of the validity of these ordinan- 

 ces of that Provisional Government there is made no 

 question with respect to the period during which the 

 territory was held by the United States, as occupy- 

 ing conqueror, and it would seem to admit of no 

 doubt, that during the period of their valid existence 

 and operation, these ordinances must have displaced 

 and superseded every previous institution of the 



vanquished or deposed political power which was in 

 compatible with them. But it has been contended, 

 that whatever might have been the rights of the oo 

 cupying conqueror, as such, these were all termi- 

 nated by the termination of the belligerent attitude ol 

 the parties, and that with the close of the contest, 

 every institution which had been overthrown or sus- 

 pended would be revived and reestablished." 



" The fallacy of this pretension," the Court p-o- 

 ceed to say, "is exposed by the fact, that the con- 

 quered territory never was relinquished by the con- 

 queror, nor restored to its original condition 01 

 allegiance, but was retained by the occupant uuti 

 possession was matured into absolute, permanent 

 dominion and sovereignty." The Court then pro- 

 ceed to decide when the institutions of the Pro- 

 visional Government would terminate. 



They say : " We conclude, therefore, that the 

 ordinances and institutions of the Provisional Gov- 

 ernment could be revoked or modified by the United 

 States alone, either by direct legislation on the part 

 of Congress, or that of the Territorial Government, 

 in the exercise of powers delegated to it by Con- 

 gress." The question there presented was the 

 validity of an ordinance of the Territorial Govern- 

 ment, authorizing attachments of property of debtors, 

 enacted by the Provisional Government, while the 

 country was held in military occupation, and before 

 the cession of it, but sought to be enforced by the 

 Provisional Territorial Court after the cession of the 

 country to the United States, and after the military 

 occupation had ceased. The Court upheld the law 

 in its origin, and also in its continuance in force, and 

 the administration of it by the Provisional Territorial 

 Court after the cession of the country, and after the 

 military occupation had ceased. 



In the case of Jecker vs. Montgomery, 14 Howard, 

 498, decided in 1854, the same Supreme Court of the 

 United States incidentally recognize the legality and 

 powers of those Provisional Courts, and while de- 

 ciding that, for reasons peculiar to cases of prize, 

 and not at all applicable to any others, they could 

 not legally act in cases of that class, the Court ad- 

 mit their powers and jurisdiction in other cases 

 making three decisions of the Court of last resort of 

 the Government of the United States quite in point. 

 Either of these should be sufficient authority for 

 such a principle, if indeed a principle so plainly 

 proper and necessary, can be thought to need au- 

 thority of precedent at all. 



But at the risk of being tedious and doing work of 

 supererogation, which charges I am persuaded might 

 well be maintained against me, I will add to these 

 authorities already commented on, still another one, 

 which has a bearing quite material on this case at 

 more than one point. I mean the case of the United 

 States iis. Rice, 4 Wheaton, 246. That case, as well 

 as those already cited, decides that, by the conquest 

 and military occupation by one nation of a portion 

 of the territory of another, the portion so acquired 

 passes from the operation of the laws and govern- 

 ment of the nation to which it had previously belong- 

 ed, and comes under the laws and government of the 

 nation making the conquest. It also decides that 

 while such territory is held by the conqueror, it is the 

 right of the party so holding it to govern it, and for 

 that purpose to make laws by which to govern it. In 

 short, that, by conquest, the sovereignty and right to 

 rule of the conqueror are introduced and established, 

 and the sovereignty and right of rule in the party 

 expelled are extinguished ; and that the duty of alle- 

 giance in the people remaining there is transferred in 

 like manner from the vanquished to the victorious 

 party ; in fact, that by such an act the change in the 

 sovereignty and allegiance are complete, and new 

 rights and duties in both parties are created accord- 

 ingly. I think that all these conclusions certainly 

 follow from what is decided, if, indeed, they are not 

 all actually decided there. 



The right, therefore, of a conqueror in a con 



