LOUISIANA. 



LOVEJOY, OWEX. 



485 



in operation hero, were and are the constitutional 

 courts of that government. All else were creations 

 of the military power of the Federal Government. 



All the governmental functions in exercise here at 

 that time, not only courts of justice but all others, 

 and all the judges, officers, and instruments by which 

 they were performed and operated, were those of 

 the Federal Government, and were appointed, com- 

 missioned, animated, sustained, and moved by that 

 power alone. 



The Provisional Court for the State of Louisiana 

 the Court of the Federal Government retains all the 

 powers it ever had, and will continue to exercise 

 rightfully a jurisdiction commensurate with its char- 

 ter, so long as the President, or the Government he 

 represents, shall will it, and shall uphold it for that 

 purpose ; and whatever other institutions may have 

 been brought, or allowed to come into existence in 

 the mean time, this Court will not cease, or go out of 

 existence, or be shorn of any cf its powers or pro- 

 portions by reason of the fact that some modicum of 

 them, or of other powers of civil government, have 

 been allotted by the common parent the Federal 

 Government to other institutions or instrumentali- 

 ties. 



Something was said on the argument about the 

 laws which these courts should administer. The 

 laws of the conquered country, like every thing else 

 connected with its government, are entirely under 

 the control and subject to the will of the conqueror. 

 He makes and adopts them in use at his pleasure. 

 Those found in use at the time of the conquest may 

 be continued in use by him or laid aside at his pleas- 

 ure. If continued in use, however, they become 

 his, and derive their force and efficacy from him and 

 his adoption of them. In the cases cited above, a 

 new code was made and introduced by Gen. Kearny, 

 representing the government of the conqueror, called 

 the Kearny Code. 



In the absence of any provision on the subject, in 

 such a case courts of justice are not bound to adhere 

 to any particular system. This Court is commission- 

 ed to administer justice, and no code of laws is pre- 

 scribed for it. It may adopt such rules as may seem 

 wise and expedient, 'whether corresponding to the 

 system in use here at the time of the conquest, or 

 differing from it. It has always administered justice 

 according to the Code of Louisiana, and so have all 

 other courts here, not because it was bound by that 

 code, as law of the State, but because it seemed ex- 

 pedient and wise to continue along under the system 

 found in use here, rather than introduce a new one. 



In the cases cited above from California, Cross rs. 

 Harrison, 16 Howard R., 164; Leitensdorfer vs. 

 Webb, 20 Howard, 17G, and Jecker tf. Montgomery, 

 14Howard, 498, the previously existing- systems of la'w 

 were ignored and a new and original system intro- 

 duced, which course received the sanction of the 

 Supreme Court of the United States in those cases; 

 and in the case cited from Maine, the United States 

 vs. Rice, 4 Wheaton, 254, the British Government 

 made a new and different law and administered it 

 while the territory was held by it, and that course 

 received the sanction of the same court of highest 

 authority, in the case referred to. 



I have not cited authority for every thing I have 

 said in this opinion perhaps not for every doctrine 

 I have declared. I have, however, referred to the 

 court of highest authority in such cases of any tribu- 

 nal known among men, and to the decisions of that 

 court, quite in point, for every principle and doctrine 

 claimed in this opinion, which is not so plain and 

 evident as to make reference to cases for authority 

 unnecessary and inexpedient, and, for the omission 

 to cite them to such points, I have the very high 

 authority of the Supreme Court of the United States, 

 in the case of the United States i~s. Rice, 4 Wheaton, 

 V!54, above referred to, that in cases like that "too 

 clear to require aid from authority," it is not well 

 to encumber an opinion with them." 



In addition to the cases already commented on, I 

 will refer to several more having important bearing 

 on this question, not as establishing any new princi- 

 ple or sustaining any old one not better sustained by 

 more modern and unquestionable authority already 

 referred to, though equally conclusive of the princi- 

 ple with them ; but as furnishing, perchance, to 

 some mind some new view, reason, or illustration 

 of a principle better established on authority by cases 

 already introduced. 



Grotius De J. B., ac. P. 1. 2, c. , s. 5 et sea. ; Ib., 

 1. 3, c. 6, s. 4; Ib., 1. 3, c. 9, s. 9, 14; Pufl'endorf, by 

 Barbeyrac, 1. 7, c. 7, s. 5; Ib., 1. 8, c. 11, s. 8; Byn- 

 kershoek Q. J., Pub., 1. 1, c. 6, 16 ; Duponceau's 

 transl., 46, 124; Voet ad Pandect, 1. 39, tit. 4, 

 no. 7, De Yectigalibus ; Ib., 1. 19 tit. 2, no. 28; 

 Ib., .' 49, tit. 15, no. 1 ; United States vs. Hay ward, 

 2 Galhs, 501 ; Tke lama, Rob., 106 ; The foltina, 

 Dodson, 450; 30 hogsheads sugar, Bentzen, claim- 

 ant, 9 Cranch., 191; Reeve's "Law. of Ship., 98 

 et seq. ; United States vs. Vowell, 5 Cranch., 368 ; 

 United States vs. Arnold, 1 Gallis, 348, S. C., 9 

 Cranch., 106; Empson vs. Bathurst, Winch. Rep., 

 20, 50, Winch. Entries, 334, cited Poph. 176, S. C. 

 Hutton, 52, Com. Dig. Officer, H. 



My conclusions, therefore, are : That at the time 

 of the establishment of the Provisional Court for 

 Louisiana, a considerable part of the territory of that 

 State was held by the forces of the United States, in 

 armed belligerent occupation. 



That in a country so held, the authority of the 

 occupying force is paramount, and necessarily oper- 

 ates the exclusions of all other independent author- 

 ity in it. 



That government from some source is a necessity, 

 and while the power to give and administer govern- 

 ment is exclusively with a party occupying a coun- 

 try, there can be no doubt that the right and the 

 duty are his to furnish a government and'supply that 

 want. 



That the actual military occupation of that terri- 

 tory by the United States has continued from that 

 time to the present, and still continues, and the right 

 and duty of government, therefore, continue with 

 the United States. 



That the establishment of the Provisional Court for 

 Louisiana, by the President, as Commander-in-Chief 

 of the forces of the United States, while they held 

 the territory in which it was to exercise its functions, 

 was an act warranted by the law of nations. 



That so long as the authority of the United States 

 shall continue, the right and the duty of it as the 

 party dominant there to afford to the country a gov- 

 ernment will continue. 



That said Court has, from the time of its founda 

 tion to the present time, rightfully exercised its 

 functions in territory in which the Government of the 

 United States has been by force of its arms sover- 

 eign, and will continue rightfully to exercise them 

 there, so long as its commission shall remain unre- 

 voked and the power of the United States shall con- 

 tinue to support it in the exercise of them. 



LOYE-JOT, OWEX, born in Albion, Kennebec 

 County, Maine, January 6th, 1811, died in Brook- 

 lyn, X. Y., March 25th, 1804. His father was 

 a clergyman and farmer, and he worked upon 

 the farm until he was eighteen years of age, 

 when he fitted for college at a neighboring 

 academy, and entered Bowdoin College. Ho 

 graduated in 1835, and emigrated to Alton, Illi- 

 nois, Avhere he engaged in theological studies, 

 his brother Eev. Elijah P. Lovejoy being at the 

 time the editor of a paper there which advo- 

 cated anti-slavery views. In 1837, the pro- 

 slavery citizens of Alton and the neighboring 

 counties in Missouri, taking offence at the de- 



