LOUISIANA. 



483 



qucred 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 applica- 

 ble 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 du- 

 ties 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 estab- 

 lished, 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 con- 

 quest (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 institu- 

 tions 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 V 



The inhabitants of that country owed allegiance to 

 and were entitled to the protection of the Govern- 

 ment 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 peo- 

 ple 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 aid 

 should 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 em- 

 braced within the State, that with the Federal Gov- 

 ernment in full function and all its duties fully per- 

 formed, 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 need- 

 ed T)y our people is due to them from the local depos- 

 itories of power, the State governments for most 

 purposes within their own territory, sovereign. 



These governments, u ider our system, are the re- 

 positories 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 reser- 

 voir 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 po- 

 lice by which order in society is maintained from one 

 end of the land to the other ? From which the ju- 

 dicial power the one in question here and now by 

 which, in ordinary cases, crime is punished and re- 

 pressed, controversies decided, and the rights of 

 persons and property established and maintained? 

 and what is certainly quite in point, from which sendee 

 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 func- 

 tions 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 ot 

 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 con- 

 quest. Indeed, it may well be doubted whether, in 

 reference to governmental rights and duties in mat- 

 ters 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 Gov- 

 ernment as to most matters of local administration, 

 but is exclusively under the State and local govern- 

 ment, and the Federal Government was never bound 

 and never assumed or pretended to furnish govern- 

 ment 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 insurrec- 

 tion 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 re- 

 mained 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- 



