The Constitution of the United States confers absolutely on the
government of the Union the power of making war and of making
treaties. Consequently, that government possesses the power of
acquiring territory either by conquest or by treaty.
The usage of the world is, if a nation be not entirely subdued,
to consider the holding of conquered territory as a mere military
occupation until its fate shall be determined at the treaty of
peace. If it be ceded by treaty, the acquisition is confirmed, and
the ceded territory becomes a part of the nation to which it is
annexed, either on the terms stipulated in the treaty of cession or
on such as its new master shall impose. On such transfer of
territory, it has never been held that the relations of the
inhabitants with each other undergo any change. Their relations
with their former sovereign are dissolved, and new relations are
created between them and the government which has acquired their
territory. The same act which transfers their country transfers the
allegiance of those who remain in it, and the law, which may be
denominated political, is necessarily changed, although that which
regulates the intercourse and general conduct of individuals
remains in force until altered by the newly created power of the
state.
The treaty with Spain by which Florida was ceded to the United
States is the law of the land, and admits the inhabitants of
Florida to the enjoyment of the privileges, rights, and immunities
of the citizens of the United States. They do not, however,
participate in political power; they do not share in the government
until Florida shall become a state. In the meantime, Florida
continues to be a territory of the United States, governed by
virtue of that clause in the Constitution which empowers "Congress
to make all needful rules and regulations respecting the territory
or other property belonging to the United States."
The powers of the Territorial Legislature of Florida extend to
all rightful objects of legislation, subject to the restriction
that their laws shall not be "inconsistent With the laws and
Constitution of the United States."
All the laws which were in force in Florida while a province of
Spain, those excepted which were political in their character,
which concerned the relations between the people and their
sovereign, remained in force until altered by the government of the
United States. Congress recognizes this principle by using the
words "laws of the territory now in force therein." No laws could
then have been in force but those enacted by the Spanish
government. If among them there existed a law on the subject of
salvage, and it is scarcely possible there should not have been
such a law, jurisdiction over it was conferred by the act of
Congress relative to the Territory of Florida on the superior
court, but that jurisdiction was not exclusive. A territorial act
conferring jurisdiction over the same cases as an inferior court
would not have been inconsistent with the seventh section of the
act, vesting the whole judicial power of the territory in two
superior courts and in such inferior courts and justices of the
peace as the legislative council of the territory may from time to
time establish.
Page 26 U. S. 512
The eleventh section of the act declares
"That the laws of the United States relating to the revenue and
its collection, and all other public acts not inconsistent or
repugnant to the act, shall extend to and have full force and
effect in the Territory of Florida."
The laws which are extended to the territory by this section
were either for the punishment of crimes or for civil purposes.
Jurisdiction is given in all criminal cases by the seventh section,
but in civil cases that section gives jurisdiction only in those
which arise under and are cognizable by the laws of the territory.
Consequently all civil cases arising under the laws which are
extended to the territory by the eleventh section are cognizable in
the territorial courts by virtue of the eighth section, and in
those cases the superior courts may exercise the same jurisdiction
as is exercised by the Court for the Kentucky District.
The Constitution and laws of the United States give jurisdiction
to the district courts over all cases in admiralty, but
jurisdiction over the case does not constitute the case itself.
The Constitution declares that
"The judicial power shall extend to all cases in law and equity
arising under it, the laws of the United States and treaties made
or which shall be made under their authority, to ail cases
affecting ambassadors, other public ministers and consuls, to all
cases of admiralty and maritime jurisdiction."
The Constitution certainly contemplates these as three
distinct classes of cases, and if they are distinct, the
grant of jurisdiction over one of them does not confer jurisdiction
over either of the other two. The discrimination made between them
is conclusive against their identity.
A case in admiralty does not in fact arise under the
Constitution or laws of the United States. These cases are as old
as navigation itself, and the law admiralty and maritime, as it
existed for ages, is applied by our courts to the cases as they
arise. It is not, then, to the eighth section of the territorial
act that we are to look for the grant of admiralty and maritime
jurisdiction in the territorial courts of Florida. Consequently, it
that jurisdiction is exclusive, it is not made so by the reference
in the act of Congress to the
District Court of Kentucky.
The judges of the superior courts of Florida hold their offices
for four years. These courts, then, are not constitutional courts
in which the judicial powers conferred by the Constitution on the
general government can be deposited. They are incapable of
receiving it. They are legislative courts, created in virtue of the
general right, of sovereignty which exists in the government or in
virtue of that clause which enables Congress to make laws
regulating the territories belonging to the United States. The
jurisdiction with which they are invested, is not a part of that
judicial power which is defined in the Third Article of the
Constitution, but is conferred by Congress in the exercise of its
powers over the territories of the United States.
Although admiralty jurisdiction can be exercised in the states
in those courts only which are established in pursuance of the
Third Article of the Constitution, the same limitation does not
extend to the territories. In legislating for them, Congress
exercises the combined powers of the general and state
governments.
The act of the Territorial Legislature of Florida erecting a
court which proceeded under the provisions of the law to decree for
salvage the sale of a cargo of a vessel which had been stranded,
and which cargo had been brought within the territorial limits is
not inconsistent with the laws and Constitution of the United
States, and is valid, and consequently a sale of the property made
in pursuance of it changed the property.
Page 26 U. S. 513
The libel filed in this cause in the District Court of South
Carolina on 18 April, 1825, alleged that 584 bales of cotton
insured by the libellants were shipped on board the ship
Point
a Petre on a voyage from New Orleans to Havre de Grace in
France, and was in February, 1825, wrecked on the coast of Florida,
from which it was saved and carried into Key West in the Territory
of Florida, where it was sold, without any previous adjudication by
a court of competent jurisdiction, for the ostensible purpose of
satisfying a claim for salvage, amounting to seventy-six percent of
the property saved. That the cotton thus insured was abandoned to
the underwriters, the libellants, and the abandonment was accepted
by them on 10 March, 1825. That part of the cargo, amounting to one
hundred and forty bales, subsequently arrived in the port of New
York and was there proceeded against by the libellants as their
property under the abandonment. That another part of the cargo,
amounting to between 300 and 356 bales, had arrived in the port of
Charleston, within the jurisdiction of the court, in the possession
of one David Canter, and was fraudulently sold in Charleston at
auction on 13 April, 1825. Restitution of this last-mentioned part
was therefore prayed by the libellants, and process was issued
against the said Canter
in personam.
The marshal returned to the warrant that he had taken 160 bales
of cotton, and the person of Canter. 54 bales of the cotton,
specifically brought into court, were ordered to be sold and the
proceeds paid into the registry, and the supposed value of the
remainder in dispute, to be secured by stipulation.
David Canter filed his answer claiming 356 bales of cotton as a
bona fide purchaser under a sale at public auction at Key
West by virtue of the decree of a certain court consisting of a
notary and five jurors, proceeding under an Act of the Governor and
Legislative Council of Florida passed 4 July, 1823, which decree
awarded to the salvors seventy-six percent on the net proceeds of
sale.
The testimony of witnesses was taken and other evidence produced
relating to the title of the libellants under the insurances and
abandonments thereon and to the proceedings in the court at Key
West.
The district judge pronounced the proceedings in the court at
Key West a nullity, but decreed restitution to the libellants of 39
bales of the cotton only, deducting a salvage of
Page 26 U. S. 514
fifty percent, considering the evidence of the identity of the
residue as insufficient to establish their proprietary
interest.
The libellants and claimant both appealed from this decree to
the circuit court.
Further testimony was taken in the circuit court, and at the
hearing the decree of the district court was reversed and the
entire cotton decreed to the claimant with costs upon the ground
that the proceedings of the court at Key West were legal and
transferred the property to the alleged purchaser under them.
From this decree the libellants appealed to this Court.
The documents exhibited and evidence taken in the case showed
that three 333 bales of the cotton on board the
Point a
Petre were insured by the American, and 351 by the Ocean
office. The whole cargo of the ship consisted of 891 bales, but to
whom the other 317 bales belonged did not appear. The ship sailed
on the voyage insured on 17 February, 1825, and was wrecked on
Carysforth Reef on the east coast of West Florida, about eight
miles from the shore. She filled with water and was abandoned by
the captain and crew.
In the depositions taken in the cause it was stated that when
the vessel was first seen, she was filled with water, abandoned,
bilged, and lying on her broadside. The cotton was taken out of
her, hove into the sea, rafts made of it, towed inside of the reef,
and then put on board of vessels. The captain of the ship was
picked up on the shore with his men about fourteen miles from the
wreck, and he went with the salvors to Key West, where the property
saved was carried, and the proceedings for salvage were at Key
West, carried on, as was alleged, with the cooperation and
concurrence of the master of the ship.
The danger in saving the property was said to have been very
great, the weather to have been stormy, some of the men were
injured, and the saving was done during the night as well as the
day; most of the cotton was much injured.
After the sale, the agent of the appellants, Mr. Ogden, came on
from New York to Key West for the purpose of attending the sale,
and he expressed his willingness to pay to the purchasers of the
cotton a considerable sum beyond what had been paid for it at the
sale.
It was also in evidence that the marks on the cotton were
defaced, and that the efforts to ascertain the particular marks on
that imported into Charleston by the appellee were to a great
extent without success. A large portion of the cotton brought to
Charleston by the claimant was sold at auction as
Page 26 U. S. 515
damaged cotton. An agreement between the two insurance
companies, the appellants, was made previous to the institution of
the suit that the same should be for their joint benefit. David
Canter, the appellee, claimed 356 bales of the cotton as a
bona
fide purchaser under the decree of the court of Key West,
instituted by and proceeding under a law of the Legislative Council
of Florida passed 4 July, 1823, which decree awarded seventy-six
percent to the salvors of the net proceeds of the sale.
Page 26 U. S. 541
MR. CHIEF JUSTICE MARSHALL delivered the opinion of the
Court.:
The plaintiffs filed their libel in this cause in the District
Court of South Carolina to obtain restitution of 356 bales of
cotton, part of the cargo of the ship
Point a Petre, which
had been insured by them on a voyage from New Orleans to Havre de
Grace in France. The
Point a Petre was wrecked on the
coast of Florida, the cargo saved by the inhabitants, and carried
into Key West, where it was sold for the purpose of satisfying the
salvors by virtue of a decree of a court consisting of a notary and
five jurors which was erected by an act of the Territorial
Legislature of Florida. The owners abandoned to the underwriters,
who, having accepted the same, proceeded against the property,
alleging that the sale was not made by order of a court competent
to change the property.
David Canter claimed the cotton as a
bona fide
purchaser under the decree of a competent court which awarded
seventy-six percent to the salvors on the value of the property
saved.
The district judge pronounced the decree of the territorial
court a nullity and awarded restitution to the libellants of such
part of the cargo as he supposed to be identified by the evidence,
deducting therefrom a salvage of fifty percent
The libellants and claimant both appealed. The circuit court
reversed the decree of the district court and decreed the whole
cotton to the claimant with costs on the ground that the
proceedings of the court at Key West were legal, and transferred
the property to the purchaser.
From this decree the libellants have appealed to this Court.
The cause depends mainly on the question whether the property in
the cargo saved was changed by the sale at Key West. The conformity
of that sale to the order under which it was made has not been
controverted. Its validity has been denied on the ground that it
was ordered by an incompetent tribunal.
The tribunal was constituted by an Act of the Territorial
Legislature of Florida passed on 4 July, 1823, which is inserted in
the record. That act purports to give the power which has been
exercised; consequently the sale is valid if the territorial
legislature was competent to enact the law.
The course which the argument has taken will require that,
Page 26 U. S. 542
in deciding this question, the Court should take into view the
relation in which Florida stands to the United States.
The Constitution confers absolutely on the government of the
Union the powers of making war and of making treaties; consequently
that government possesses the power of acquiring territory either
by conquest or by treaty.
The usage of the world is if a nation be not entirely subdued,
to consider the holding of conquered territory as a mere military
occupation until its fate shall be determined at the treaty of
peace. If it be ceded by the treaty, the acquisition is confirmed
and the ceded territory becomes a part of the nation to which it is
annexed, either on the terms stipulated in the treaty of cession or
on such as its new master shall impose. On such transfer of
territory, it has never been held that the relations of the
inhabitants with each other undergo any change. Their relations
with their former sovereign are dissolved, and new relations are
created between them and the government which has acquired their
territory. The same act which transfers their country transfers the
allegiance of those who remain in it, and the law, which may be
denominated political, is necessarily changed, although that which
regulates the intercourse and general conduct of individuals
remains in force until altered by the newly created power of the
state.
On 2 February, 1819, Spain ceded Florida to the United States.
The 6th article of the treaty of cession contains the following
provision:
"The inhabitants of the territories which his Catholic Majesty
cedes to the United States by this treaty shall be incorporated in
the Union of the United States as soon as may be consistent with
the principles of the federal Constitution and admitted to the
enjoyment of the privileges, rights, and immunities of the citizens
of the United States."
This treaty is the law of the land, and admits the inhabitants
of Florida to the enjoyment of the privileges, rights, and
immunities of the citizens of the United States. It is unnecessary
to inquire whether this is not their condition independent of
stipulation. They do not, however, participate in political power;
they do not share in the government till Florida shall become a
state. In the meantime, Florida continues to be a territory of the
United States, governed by virtue of that clause in the
Constitution which empowers Congress "to make all needful rules and
regulations, respecting the territory or other property belonging
to the United States."
Perhaps the power of governing a territory belonging to the
United States which has not, by becoming a state, acquired the
means of self-government may result necessarily from the facts that
it is not within the jurisdiction of any particular state and is
within the power and jurisdiction of the United
Page 26 U. S. 543
States. The right to govern may be the inevitable consequence of
the right to acquire territory. Whichever may be the source whence
the power is derived, the possession of it is unquestioned. In
execution of it, Congress, in 1822, passed "an act for the
establishment of a territorial government in Florida," and, on 3
March, 1823, passed another act to amend the act of 1822. Under
this act, the territorial legislature enacted the law now under
consideration.
The 5th section of the act of 1823 creates a territorial
legislature which shall have legislative powers over all rightful
objects of legislation, but no law shall be valid which is
inconsistent with the laws and Constitution of the United
States.
The 7th section enacts
"That the judicial power shall be vested in two superior courts
and in such inferior courts and justices of the peace as the
legislative council of the territory may from time to time
establish."
After prescribing the place of cession and the jurisdictional
limits of each court, the act proceeds to say
"Within its limits herein described, each court shall have
jurisdiction in all criminal cases and exclusive jurisdiction in
all capital offenses and original jurisdiction in all civil cases
of the value of one hundred dollars, arising under and cognizable
by the laws of the territory now in force therein or which may at
any time be enacted by the legislative council thereof."
The 8th section enacts
"That each of the said superior courts shall moreover have and
exercise the same jurisdiction within its limits in all cases
arising under the laws and Constitution of the United States which,
by an act to establish the judicial courts of the United States
approved 24 September, 1789, and an act in addition to the act
entitled an act to establish the judicial courts of the United
States, approved 2 March, 1793, was vested in the Court of Kentucky
District."
The powers of the territorial legislature extend to all rightful
objects of legislation, subject to the restriction that their laws
shall not be "inconsistent with the laws and Constitution of the
United States." As salvage is admitted to come within this
description, the act is valid unless it can be brought within the
restriction.
The counsel for the libellants contend that it is inconsistent
with both the law and the Constitution; that it is inconsistent
with the provisions of the law by which the territorial government
was created, and with the amendatory act of March, 1823. It vests,
they say, in an inferior tribunal a jurisdiction, which is by those
acts vested exclusively in the superior courts of the
territory.
Page 26 U. S. 544
This argument requires an attentive consideration of the
sections which define the jurisdiction of the superior courts.
The 7th section of the act of 1823 vests the whole judicial
power of the territory "in two superior courts, and in such
inferior courts and justices of the peace as the legislative
council of the territory may from time to time establish." This
general grant is common to the superior and inferior courts, and
their jurisdiction is concurrent except so far as it may be made
exclusive in either by other provisions of the statute. The
jurisdiction of the superior courts is declared to be exclusive
over capital offenses; on every other question over which those
courts may take cognizance by virtue of this section, concurrent
jurisdiction may be given to the inferior courts. Among these
subjects are
"all civil cases arising under and cognizable by the laws of the
territory now in force therein or which may at any time be enacted
by the legislative council thereof."
It has been already stated that all the laws which were in force
in Florida while a province of Spain, those excepted which were
political in their character, which concerned the relations between
the people and their sovereign, remained in force, until altered by
the government of the United States. Congress recognizes this
principle by using the words "laws of the territory now in force
therein." No laws could then have been in force but those enacted
by the Spanish government. If among these a law existed on the
subject of salvage, and it is scarcely possible there should not
have been such a law, jurisdiction over cases arising under it was
conferred on the superior courts, but that jurisdiction was not
exclusive. A territorial act conferring jurisdiction over the same
cases on a inferior court would not have been inconsistent with
this section.
The 8th section extends the jurisdiction of the superior courts
in terms which admit of more doubt. The words are
"That each of the said superior courts shall moreover have and
exercise the same jurisdiction within its limits in all cases
arising under the laws and Constitution of the United States which,
by an act to establish the judicial courts of the United States,
was vested in the Court of the Kentucky District."
The 11th section of the act declares
"That the laws of the United States relating to the revenue and
its collection and all other public acts of the United States not
inconsistent or repugnant to this act shall extend to and have full
force and effect in the territory aforesaid."
The laws which are extended to the territory by this section
were either for the punishment of crime or for civil
Page 26 U. S. 545
purposes. Jurisdiction is given in all criminal cases by the 7th
section, but in civil cases, that section gives jurisdiction only
in those which arise under and are cognizable by the laws of the
territory; consequently all civil cases arising under the laws
which are extended to the territory by the 11th section are
cognizable in the territorial courts by virtue of the 8th section,
and in those cases the superior courts may exercise the same
jurisdiction as is exercised by the court for the Kentucky
district.
The question suggested by this view of the subject, on which the
case under consideration must depend, is this:
Is the admiralty jurisdiction of the district courts of the
United States vested in the superior courts of Florida under the
words of the 8th section, declaring that each of the said courts
"shall moreover have and exercise the same jurisdiction within its
limits, in all cases arising under the laws and Constitution of the
United States," which was vested in the courts of the Kentucky
District?
It is observable that this clause does not confer on the
territorial courts all the jurisdiction which is vested in the
Court of the Kentucky District, but that part of it only which
applies to "cases arising under the laws and Constitution of the
United States." Is a case of admiralty of this description?
The Constitution and laws of the United States give jurisdiction
to the district courts over all cases in admiralty, but
jurisdiction over the case does not constitute the case itself. We
are therefore to inquire whether cases in admiralty, and cases
arising under the laws and Constitution of the United States, are
identical.
If we have recourse to that pure fountain from which all the
jurisdiction of the federal courts is derived, we find language
employed which cannot well be misunderstood. The Constitution
declares that
"The judicial power shall extend to all cases in law and equity
arising under this Constitution, the laws of the United States, and
treaties made or which shall be made under their authority; to all
cases affecting ambassadors or other public ministers and consuls;
to all cases of admiralty and maritime jurisdiction."
The Constitution certainly contemplates these as three distinct
classes of cases, and if they are distinct, the grant of
jurisdiction over one of them does not confer jurisdiction over
either of the other two. The discrimination made between them in
the Constitution is, we think, conclusive against their identity.
If it were not so -- if this were a point open to inquiry -- it
would be difficult to maintain the proposition that they are the
same. A case in admiralty does not in fact arise under the
Constitution or laws of the United States. These cases
Page 26 U. S. 546
are as old as navigation itself, and the law, admiralty and
maritime, as it has existed for ages is applied by our courts to
the cases as they arise. It is not,
then, to the 8th
section of the territorial law that we are to look for the grant of
admiralty and maritime jurisdiction to the territorial courts.
Consequently, if that jurisdiction is exclusive, it is not made so
by the reference to the District Court of Kentucky.
It has been contended that by the Constitution, the judicial
power of the United States extends to all cases of admiralty and
maritime jurisdiction, and that the whole of this judicial power
must be vested "in one Supreme Court and in such inferior courts as
Congress shall from time to time ordain and establish." Hence it
has been argued that Congress cannot vest admiralty jurisdiction in
courts created by the territorial legislature.
We have only to pursue this subject one step further to perceive
that this provision of the Constitution does not apply to it. The
next sentence declares that "the judges both of the Supreme and
inferior courts shall hold their offices during good behavior." The
judges of the superior courts of Florida hold their offices for
four years. These courts, then, are not constitutional courts, in
which the judicial power conferred by the Constitution on the
general government can be deposited. They are incapable of
receiving it. They are legislative courts, created in virtue of the
general right of sovereignty which exists in the government or in
virtue of that clause which enables Congress to make all needful
rules and regulations respecting the territory belonging to the
United States. The jurisdiction with which they are invested is not
a part of that judicial power which is defined in the 3d Article of
the Constitution, but is conferred by Congress in the execution of
those general powers which that body possesses over the territories
of the United States. Although admiralty jurisdiction can be
exercised in the states in those courts only which are established
in pursuance of the 3d Article of the Constitution, the same
limitation does not extend to the territories. In legislating for
them, Congress exercises the combined powers of the general and of
a state government.
We think, then, that the act of the territorial legislature
erecting the court by whose decree the cargo of the
Point a
Petre was sold is not "inconsistent with the laws and
Constitution of the United States," and is valid. Consequently the
sale made in pursuance of it changed the property, and the decree
of the circuit court awarding restitution of the property to the
claimant ought to be
Affirmed with costs.
