484 



LOUISIANA. 



tically maintained it by force of arms for a time, and 

 Laving 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 for- 

 feited old ones, and is no longer entitled to demand 

 the benefits of a relation it has renounced and re- 

 pudiated, 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 under- 

 stand 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 exer- 

 cise it, when does the power of the government so set 

 up cease ? 



I answer, first, it will terminate necessarily when- 

 ever the power which formed it shall terminate, or 

 become unable to support it. And secondly, when- 

 ever 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 ad- 

 ministration, 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 pro- 

 visional 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 confes- 

 sedly 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 Eeports, 161, 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 appoint- 

 ment, &c., Ac., from Governor Mason." 



These cases, in deciding that a provisional govern- 

 ment may be maintained by the military power of the 



United States in territory belonging to it, not helc 

 in military occupation, or jure belli, go fur to provo 

 that the fact that this country belonged for somo 

 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 dis- 

 continuance. 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 elect- 

 ed in 18G2, 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 con- 

 vened. 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 Fed- 

 eral 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 Fed- 

 eral 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 divest- 

 ed 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 ot 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 sys- 

 tem 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 everything 

 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 thea 



