To the laws of the new sove reignty and the introduction of the civil government and civil jurisprudence of the new sovereign.' $19. We will next consider what laws of the new sovereign extend over the ceded conquered territory without legislative action, or any special provisions to that effect in the laws themselves. When a country which has been conquered is ceded to the conqueror by the treaty of peace, the plenum et utile dominium of the conqueror will be considered as having existed from the beginning of the conquest. When it is said that the law political ceases on the conquest, and that the law municipal continues till changed by the will of the conqueror, it is not meant that these latter laws, proprio vigore, remain in force, but that, it is presumed, the new political sovereign has adopted and continued them as a matter of convenience. They do not derive any force from the will of the conquered, for the person capable of having and expressing a will—the body politic, or law-making power of the conquered-is extinguished by the conquest. When, therefore, we come to pronounce upon the force of a law of the conquered people after the conquest, and to determine whether it has been tacitly adopted by the conqueror, we must look to the character of its provisions, and compare them with the laws and institutions of the conquering State: that is, with the will of the conqueror as expressed by himself in similar matters. Whatever is in conflict with, or directly opposed to, such expressions of his will, we cannot presume to have been adopted by his tacit consent. Hence, Lord Coke says, if a Christian king should conquer an infidel country, the laws of the conquered, ipso facto, cease, because it is not to be presumed that a Christian king has adopted the laws of an infidel race. But, where there is no such conflict in the institutions and laws of the two countries, those of the conquered which regulate personal relations, commercial transactions, and property in all its modes of transfer and acquisition, are presumed to have been adopted as a matter of convenience. This rule of international law is both reasonable and just. Each case must rest upon its own basis, and be judged of by its own circumstances. From this view of the jurisprudence of the conquered country, we must determine what laws of the acquired territory remain in force, 1 Gardiner v. Fell, 1 Jack. and Walk. R., 27; Heffter, Droit International, § 185. and what laws of the conqueror, proprio vigore, extend over such territory.' tion in tween covered § 20. The English courts make a distinction between ceded Distincor conquered territory, and territory acquired by discovery, English or occupancy, and peopled by the discoverer. British colo- law benists are considered as carrying with them such laws of their conquered sovereign as are beneficial to the colony and applicable to the and disnew condition of the colonists; but penal laws, inflicting for- territory feitures and disabilities, laws of tithes, bankruptcy, mortmain, and police do not extend to colonies not in esse. And laws passed after the settlement of a discovered or occupied country do not affect such colony, without special provisions to that effect, unless they relate to the exercise of the powers of the sovereign with regard to foreign relations, navigation, trade, revenue, and shipping. But the rule is different with respect to territory acquired by cession or conquest, for the municipal laws of such territory at the time of its acquisition remain till changed by competent authority, and the subjects of the new sovereignty who enter such newly-acquired territory do not, in general, carry with them the laws of their sovereign; but with respect to their rights and relations inter se, they are in the same condition as the inhabitants of such territory; that is, they are governed by the laws and usages of the country at the time of the conquest or cession. Whoever purchases, lives, or sues there puts himself under the laws of the place; an Englishman in Ireland, Minorca, the Isle of Man, or the plantations, has no privileges distinct from the natives.' 2 § 21. There can be no doubt of this general principle of Laws contrary to English Common Law: that the inhabitants of territory ac- fundaquired by cession or conquest are governed in their relations mental principles inter se by the municipal laws of such territory in force at the of new time of the cession or conquest, and that statutes previously sovereignty passed do not, in general, extend proprio vigore over such territory. Nevertheless, it is equally true that some of the laws of the new sovereignty do extend over such newly-acquired territory, and that the existing municipal laws of such terri 1 Calvin's case, Coke R., pt. 7. 2 Dwarris on Statutes, pp. 527, 905, 906; Atty.-Gen. v. Stewart, 2 Meriv. R., 143; Darnes v. Painter, Freem. R., 175; Blackstone, Com., vol. i. p. 102; Clarke, Colonial Law, p. 4. Decisions of the United States tory are, in some degree, modified and changed by the acts of acquisition, and without any special decree, or statute, of the executive or legislative departments of the new sovereignty. Thus, any municipal laws existing in such territory, which are in violation of treaty stipulations with foreign nations, or of the general laws of trade, navigation and shipping, or which give privileges exclusive of other subjects, are not only void in themselves, but the king even cannot introduce any which are contrary to fundamental principles. However absurd the exception as to pagans, mentioned in Calvin's case, there can be no doubt of the correctness of the general rule, that the laws of the conquered territory which are contrary to the fundamental principles of the government of the conqueror, cease, on the complete acquisition of the conquered territory, because they are opposed to the already expressed will of the conqueror. All other municipal laws continue in force till changed by the same will subsequently expressed; that is, the king himself may change these laws, or he may, by his charters and commands, authorise the conquered country to do so. Such authority is derived directly from the crown, and without the interposition of Parliament.' § 22. The Supreme Court of the United States, where questions of this kind have come before that tribunal, have adopted the decisions of the English courts, so far as applicable to its system of government. While recognising the general principle that the laws of the conquered territory remain in force after the cession, they distinctly assert that the ceded territory becomes instantly bound and privileged by the laws which Congress has previously passed to raise revenue from duties on imports and tonnage; and that such territory is subject to the Acts of Congress, previously made to regulate foreign commerce with the United States, without other special legislation declaring them to be so. And although Congress may not have established collection districts or custom houses, or authorised the appointment of officers to collect the revenue accruing upon the importation of foreign dutiable goods into that territory, nevertheless, it may be legally demanded and lawfully received by the officers of the government, which was organised in such territory by the right of conquest, and existing at the date of the cession. California became a part of Bowyer, Universal Public Law, ch. xvi. · the United States as a ceded conquered territory, by the treaty which was ratified on May 30, 1848; but the Act of Congress, including San Francisco within one of the collection districts of the United States, was not passed till March 3, 1849, and the collector authorised by law to be appointed for that port did not enter upon the duties of his office till November 13, 1849. The ratification of the treaty was not officially announced in California till August 17, 1848. The civil government of California, which had been organised during the war, by right of conquest and military occupation, continued to collect duties under the war tariff till officially notified of the ratification of the treaty of peace; it then declared that the tariff of duties for the collection of military contributions will immediately cease, and the revenue laws and tariff of the United States will be substituted in its place,' and continued to enforce these laws and to collect the revenue accruing under them upon the importation of foreign dutiable goods into California, until November 13, 1849, when the collector, duly appointed under the authority of an Act of Congress, entered upon his duties. The importers of such dutiable goods denied the legality of these collections, and protested against the exaction of duties, and subsequently brought suit against the officers of the civil government to recover the moneys so collected, with interest. The legality of the acts of these officers was sustained by the unanimous opinion of the Supreme Court of the United States; and Mr. Justice Wayne, in delivering the opinion of the court, said that the officers, in coercing the payment of dutiable goods landed in California, 'had acted with most commendable integrity and intelligence.' 1 1 laws in § 23. There is one point in this decision deserving of par- Revenue ticular notice, with respect to the operation of laws which ex- California tend, proprio vigore, over ceded conquered territory. A statute law of the United States, when no time is fixed in the law itself, takes effect in every part of the Union from the very day it is passed. Not so, however, with the operation of existing revenue laws over newly acquired territory, which, though a part of the United States, is not within the Union, 1 Cross et al. v. Harrison, 16 How. R., 201; Dunlop, Digest of Laws of U. S., pp. 1214, 1215; Brightly, Digest of Laws of U. S., p. 115; U. S. Statutes at Large, vol. ix. p. 400. As already remarked, nearly three months elapsed between the ratification of the treaty of cession and its official announcement in California. During that interval, tonnage and impost duties were imposed and collected according to the war tariff, instead of the tariff of the United States. If the revenue laws extended over California, eo instante, on the ratification of the treaty by which that territory was acquired, these duties were unlawfully collected. It was so claimed by those who had paid them, and suit was brought for their recovery. But Mr. Justice Wayne, in delivering the opinion of the Supreme Court on this question, remarked: 'It will certainly not be denied that these instructions [imposing the war tariff] were binding upon those who administered the civil government in California, until they had notice from their own government that a peace had been finally concluded. Or that those who were locally within its jurisdiction, or who had property there, were not bound to comply with those regulations of the government, which its functionaries were ordered to execute. Or that any one would claim a right to introduce into the territory of that government foreign merchandise, without the payment of duties which had been originally imposed under belligerent rights, because the territory had been ceded by the original possessor and enemy to the conqueror. Or that the mere fact of a territory having been ceded by one sovereignty to another, opens it to a free commercial intercourse with all the world, as a matter of course, until the new possessor has legislated some terms upon which that may be done. There is no such commercial liberty known among nations, and the attempt to introduce it in this instance is resisted by all of those considerations which have made foreign commerce between nations conventional. The treaty that gives the right of commerce is the measure and rule of that right. The plaintiffs in this case claim no privilege for the introduction of their goods into San Francisco, between the ratifications of the treaty with Mexico and the official announcement of it to the civil government in California, other than such as that government permitted under the instructions of the government of the United States.” 1 Vattel, liv. i. ch. viii. § 93. 2 Matthews v. Zane, 7 Wheat. R., 104; the 'Ann,' 1 Gallis R., 62; Cross et al. v. Harrison, 16 Howard R., 191. |