a territory by purchase or voluntary transfer. The uncontrolled rights of force are, in the first case, mitigated by a rule which the law of nations has established; a law founded on a principle of mutual convenience, which convenience is not less in the case of a cession than of a conquest. This principle, therefore, applies with greater force to the former than to the latter case. Besides, it is a well established maxim of the modern law of nations, that it is not the conquest of a country or the possession of it by force of arms that gives the conqueror a right to its quiet dominion, but the cession that is made of it to him by the treaty of peace. It is only the cession which makes the acquisition complete.* The military title which conquest gives is merged in the civil title obtained by this voluntary act, which alone gives to the conqueror a legal permanent dominion over the ceded country.

Hence the learned Blackstone, when laying down the common law on this subject, which is no other than the law of nations interwoven into that system, makes no difference between countries acquired by conquest and those obtained by voluntary cession. "In conquered or CEDED countries," says that able writer, that have already laws of their own, the "King may, indeed, alter and change those laws; "but till he does actually change them, the ancient "laws of the country remain."

authorities he cites,‡ do not go the

• Vattel's Law of Nations, B. 3. c. 13. § 197.

I admit that the

whole length of

†1 Blac. Com. 108.

They are, 7 Rep. 17, Calvin's case; Shower's Parl. Cases, 31, and Lord Mansfield's argument in Campbell v. Hall, Cowp. 204.

his position, as they only refer to countries acquired by conquest; but of this he was, no doubt, aware, and nevertheless did not hesitate to lay down the principle in its fullest extent; so that his opinion, though not supported by a direct adjudication at Westminster Hall, is nevertheless entitled to the the greatest respect as the deliberate and well considered sentiment of an enlightened common lawyer and general jurist.

It is, indeed, difficult to reconcile to reason the opposite principle. If the laws in force in a ceded country at the time of the cession do not continue to operate until others are substituted in their place, one of two things must happen; either the laws of the new sovereign must immediately take effect, or there must be a period of anarchy or military despotism. The latter supposition cannot be for a moment entertained, and as to the former it will be asked whether the new laws are to be enforced from the moment of the cession, when the old sovereign has given up all his right, title, and jurisdiction over the country, or from the moment of possession delivered. If the cession avoids the laws of the ceding power, how is the country to be governed until the new sovereign comes into possession? If the latter epoch is to be the period of change, how can the new subjects be expected to obey laws that they are not acquainted with, and how can they be justly punished for their infraction? If a single day is allowed to give time for the promulgation of the new system, my whole prin

ciple is granted. which is that the old laws remain in force until new ones are introduced by some public act of the sovereign in possession.

On this interesting subject, I have been astonished to find none but vague and unsettled opinions among the gentlemen of the profession whom I have consulted, who candidly acknowledged that they had never had occasion to reflect upon it. I searched the writers on the Law of Nations and on the Common Law, and, except the passages which I have above cited from Montesquieu and Blackstone, which, however, are no where contradicted, found nothing that I could consider as directly in point, though much from whence the principle may fairly be inferred. The Acts of Congress, on taking possession of the District of Columbia and the territories of Louisiana and Florida, did not afford me more satisfaction. I found there the same uncertainty and indecision, the Legislature sometimes providing for the continuation of the ancient laws, at others seeming to take it for granted that they remained in force without the necessity of a legislative sanction. In fact, if we except Blackstone, this subject does not appear to have been much considered in Europe or in this country.

There is not much reason to be astonished. This is not an every day question, and lawyers are not likely to meet it often in their practice. As to governments, while they can settle every thing with a stroke of the pen, they will not be inclined to lose their time in inquiring about abstract principles.

In the despotic kingdoms of Europe, these matters are very easily arranged; but in this free and inquisitive country, where every man will not only know the law, but the reason of it, it cannot be expected that such an important subject should remain long undiscussed. I have therefore thought it my duty to bring it before you, and offer it as a subject for your earnest investigation. I believe I may venture to assert that you will not find the principle laid down by Blackstone any where contradicted, much less will you find another substituted in its place. It appears to me impossible to find one that will not be at once tyrannical and unjust.

I shall therefore proceed to its application to the subject before us, as resped the Distt of Columbia, and the other Territorio de dominion

of the United States.

ед

1. THE DISTRICT OF AV the 17th paragraph of the 8th section ofthe 1st article of the Constitution of the United States, the Congress is authorised "to exercise exclusive Tegislation, in all "cases whatsoever, over such District (not exceed"ing ten miles square) as may, by the cession of "particular States, and the acceptance of Congress, "become the seat of the government of the United "States." The States of Maryland and Virginia, sometime after the adoption of the Contitution, offered to cede the Territory which is now the District of Columbia, and was then divided between their several jurisdictions. Congress by their act of the 16th July, 1790, accepted this offer, with a proviso

"that the operation of the State laws should not "be affected by their acceptance, until the time "fixed for the removal of the government thereto, "and until Congress should otherwise by law pro"vide." This proviso shews that at that time some doubt was entertained, as to the effect of the cession on the then existing laws, and it was probably inserted as a matter of precaution to avoid unnecessary discussion.

In the year 1800, the seat of government was removed to Washington. On the 27th of February, in the following year Congress passed an act, directing "that the laws of the State of Virginia and "Maryland, as they then existed, should continue "in force within the parts of the District which had "been ceded by those States respectively." This act seems to have been unnecessary, as the former statute had provided that those laws should remain in vigour until they should be altered. It may, however, be considered as corroborative, and as declaratory of the existing state of things.

Be that as it may, there can be no doubt, that whether in virtue of these acts of Congress, or of the general law existing at the time they were made, the common law of Maryland and that of Virginia as they respectively apply have never ceased to be in force within this District. Therefore, there can be no question there, whether the Courts of the United States do, or do not, possess what is called common law jurisdiction, either in criminal or civil cases, and they have in fact been to this day in the