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By the ratifications of the treaty of peace, Porto Rico ceased to be subject to the crown of Spain and became subject to the legislative power of Congress. But the civil government of the United States cannot extend immediately and of its own force over conquered and ceded territory. Theoretically, Congress might prepare and enact a scheme of civil government to take effect immediately upon the cession, but, practically, there always have been delays and always will be. Time is required for a study of the situation and for the maturing and enacting of an adequate scheme of civil government. In the meantime, pending the action of Congress, there is no civil power under our system of government, not even that of the President as civil executive, which can take the place of the government which has ceased to exist by the cession. Is it possible that, under such circumstances, there must be an interregnum? We think clearly not. The authority to govern such ceded territory is found in the laws applicable to conquest and cession. That authority is the military power, under the control of the President as Commander-in-Chief.1 . . .

But whatever may be the limits of the military power, it certainly must include the authority to establish courts of justice, which are so essential a part of government. . . . With this thought in mind, the military power not only established this particular court in Porto Rico, but as well a system of courts, which took the place of the courts under Spanish sovereignty, and were continued by the organic act. The same course was pursued in the Philippine Islands.

By § 34 of the organic act (31 Stat. 77), a District Court of the United States for Porto Rico was created, and it was provided that the same "shall be the successor to the United States provisional court established by General Orders numbered Eightyeight, promulgated by Brigadier General Davis, United States Volunteers, and shall take possession of all records of that Court, and take jurisdiction of all cases and proceedings pending therein, and said United States provisional court is hereby discontinued.”

The record shows that in conformity with this provision the newly-created District Court of the United States for Porto Rico issued an execution upon this judgment of the United

1 Here were cited Cross v. Harrison, 16 How. 164 (1853), Leitensdorfer v. Webb, 20 How. 176 (1857); Downes v. Bidwell, ante, p. 229 (1901); Dooley v. United States, 182 U. S. 222 (1901), and Lincoln v. United States, 197 U. S. 419 (1905). — Ed.

States Provisional Court, and the property was sold upon that execution. . .

We are of the opinion that the judgment of the United States Provisional Court was not a nullity and that the sale on execution, under which the defendants claim, conveyed to them a good title. As the court below took the same view, its judg

ment is

Affirmed.

CASES ON CONSTITUTIONAL LAW

BOOK II.

SOME PROVISIONS PROTECTING THE INDIVIDUAL
AGAINST THE STATE OR THE NATION.

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ERROR to the Circuit Court of the United States for the District of Massachusetts.

Action was brought by Fletcher against Peck for breach of covenants in a conveyance. The land was part of a tract which had belonged to Georgia and which had been conveyed by the Governor in a patent to Gunn and others, in accordance with an act of the legislature passed in 1795. By mesne conveyances the land in question passed to Peck. In 1803 Peck conveyed it to Fletcher by a deed which covenanted, among other things, that the title conveyed by Georgia and vested in Peck had been in no way constitutionally or legally impaired by virtue of any subsequent act of any subsequent legislature.

The declaration contained four counts, averring four breaches, the third count being that, in consequence of the fraudulent practices of the original grantees in procuring members of legislature to vote for the act of 1795, a subsequent legislature in 1796 passed an act rescinding and annulling the law under which the conveyance to the original grantees was made and asserting the title of the state to the lands, wherefore the title of Peck was constitutionally and legally impaired and rendered null and void.

1 The reporter's statement has not been reprinted. - ED.

To each count there was one plea. The plea to the third count was purchase by the mesne grantees and by Peck without notice of the corruption-which was denied to have existed.

There were demurrers to this plea and to the pleas to the first and second counts; and on the plea to the fourth count issue was joined and the jury found a special verdict.

The pleas were sustained and judgment was rendered for the defendant by the Circuit Court.

The plaintiff sued out his writ of error, which was twice argued. Martin, for plaintiff in error; and J. Q. Adams, R. G. Harper, and Story, contra.

MARSHALL, C. J., delivered the opinion of the court as follows:The pleadings being now amended, this cause comes on again to be heard on sundry demurrers, and on a special verdict.

The suit was instituted on several covenants contained in a deed made by John Peck, the defendant in error, conveying to Robert Fletcher, the plaintiff in error, certain lands which were part of a large purchase made by James Gunn and others, in the year 1795, from the State of Georgia, the contract for which was made in the form of a bill passed by the legislature of that State..

The lands in controversy vested absolutely in James Gunn and others, the original grantees, by the conveyance of the Governor, made in pursuance of an act of assembly to which the legislature was fully competent. Being thus in full possession of the legal estate, they, for a valuable consideration, conveyed portions of the land to those who were willing to purchase. If the original transaction was infected with fraud, these purchasers did not participate in it, and had no notice of it. They were innocent. Yet the legislature of Georgia has involved them in the fate of the first parties to the transaction, and, if the act be valid, has annihilated their rights also.

The legislature of Georgia was a party to this transaction; and for a party to pronounce its own deed invalid, whatever cause may be assigned for its invalidity, must be considered as a mere act of power which must find its vindication in a train of reasoning not often heard in courts of justice. . . .

If the legislature of Georgia was not bound to submit its pretensions to those tribunals which are established for the security of property, and to decide on human rights, if it might claim to itself the power of judging in its own case, yet there are certain great principles of justice, whose authority is universally acknowledged, that ought not to be entirely disregarded.

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