North latitude extending Westward to the Mississippi, was fixed as the Southern boundary of the United States, and consequently of Georgia, they say," it has been viewed only as a recognition of pre-existing rights, and on that principle, the soil and sovereignty within their acknowledged limits, were as much theirs at the declaration of Independence, as at this hour." Neither by the British, or Spanish treaty, was there any change of sovereignty, but the admission of the pre-existing rights of one soverign, in exclusion of the other. If the transient wrongful occupancy by Spain, operated any change of sovereignty, it would not ipso facto abolish the common law, which was the law of Great Britain the previous occupant, unless that law was expressly abolished by Spain. But no such abolition of the common law here, or introduction of the Spanish law by the King of Spain, can be found. The Spanish law was duly extended to Florida, but it is now admitted, that this territory never was a part of Florida, and consequently, the laws of Spain never were extended here. The commencement of the occupation of this country by the Spanish forces, was as our ally, during the war of the revolution. Surely this could give Spain no right of sovereignty over the territory of her ally, nor could the subsequent occupancy by the Spanish troops, under the pretence that this was a part of Florida, introduce here the laws of Spain. If Louisiana should for a few years take possession of a county of Mississippi, this state always claiming this county as a part of her territory, and legislating over it, would not the titles to land, and transfers of it, be governed by the laws of Mississippi? That the laws of Spain could vest no one with a title to lands here, is settled; how then could these laws govern the transfer of the title, and that in opposition to the laws of Georgia the rightful sovereign. When there is a wrongful, and rightful sovereign, both legislating at the same time over the same territory, the laws of the latter must prevail. Nor could Spain, or her citizens, complain of the operation of these principles here, for neither Georgia or the United States, ever acquiesced in this wrongful Spanish occupancy. A few of these acts are referred to below. Statute of Georgia of Feb. 17th 1783 extending her laws and jurisdiction here. Statute of Georgia of the 7th Feb. 1785 creating a county here, and extending the land laws of the state here.

Statute of South Carolina of 1787, relinquishing to Georgia her claim to this territory, approved by Georgia.

Act of Georgia of 7th of Jan. 1795-selling part of the land of this territoy--sustain. ed by Supreme Court of the U. States. 6 Cranch 87.

Act of Georgia, 13th Feb. 1796 &c. &c. as to this territory.

Resolutions of Congress, 20th Oct. 1787, approving the relinquishment of her claim by S. Carolina to Georgia, of this territory.

The report of Mr. Jefferson, as Secretary of State, claiming this territory, as already within the acknowledged limits of Georgia.

7th December 1793--Report of our Commissioners to Spain, insisting on the above

claim.

10th August 1795--Communication of Mr. Pinckney, our Minister to the Court of

Spain, insisting upon the right of Georgia to this territory.

27th October, 1795--Spanish treaty recognizing the above claim.

30th March 1798-This territory finally evacualed by the Spanish troops.

Act of Congress 7th April 1798 in regard to the government of this territory, saving "the right of the State of Georgia."

Act of Congress May 10th 1801, of a similar nature, saving "the right of the state of Georgia."

24th of April 1802-Cesssion by Georgia of this territory to the United States, by compact with Congress.

On a perusal of the above acts, it is clear, that neither Congress or Georgia, ever assented to the introduction of the laws of Spain here, but that such assent was uniformly refused, Georgia continually extending her own law here, as the rightful sovereign, sustained by the United States, and her pre-existing right, was admitted by Spain, on the 27th of October 1795. Under these circumstances, many questions of great magnitude may still arise for solemn adjudication. Did the laws of Spain ever extend here, did they govern the transfer and descent of both real and personal property, were the decrees of their courts valid, had they any jurisdiction? If these laws ever extended here, did they

cease with the Spanish treaty of the 27th of October 1795, or continue till the evacuation by the Spanish troops on the 30th of March 1798? Did the common law, or the laws of Georgia, control in the interim, and do they still govern, when unrepealed by our territorial, or state legislation, and which class of laws has been recognized by such legislation? Did the laws of South Carolina, prior to her cession in 1787 of this territory to Georgia extend here, and how far do they still extend, when unrepealed by Georgia, or by our legislation? If the common law extended here prior to the occupation by Spain, how or when did it cease to operate, and when did the operation of the Spanish law begin? If the Spanish law was ever the lex loci of this territory, when and how did it cease to operate, and how far does it still operate, when unrepealed by our local legislation? How far are the acts of the territorial government of the United States, prior to the cession by Georgia of the 24th of April 1802 valid, it being now admitted, that prior to that period, this territory was a part of the State of Georgia, embraced within her legislation, and not a part of Florida, and consequently, that the organization by Congress of a territoriai government here, prior to the cession by Georgia, was a usurpation of power. These inquiries might be enlarged, but enough has been said, to direct the public attention to this subject.

WILLIAM L. CHEW vs. ALEXANDER CALVERT & OTHERS.

During the existence of the Spanish government in the Mississippi territory, the laws of Spain controuled the transfer and descent of property.

The law of Spain continued in force here, till after the territorial government was actually organized, under the act of Congress of the 7th of April 1798, and this government was not actually organized, until the beginning of the year 1799.

The ancient laws of conquered, or ceded countries, remain unchanged, until actually abrogated by the new government.

Under the laws of Spain, executors had no power to sell the immoveable property of the testator.

The grants of land here by Spain, were donative, and were not subject to the rights of community, between husband and wife. The conditions contained in these grants, were for the benefit of the donee, and were rarely if ever fulfilled. A purchaser is presumed to have notice of every defect, disclosed by any recital in any deed essential to his title. In order to protect himself in equity, as a purchaser without notice, that fact must be averred in the bill.

Persons standing by in silence when a sale of their property takes place, are not deprived of their rights, unless the purchaser in fact, was ignorant of the existence of their title.

This is a writ of error, in nature of a bill of review, brought to reverse the decree of Adams Superior Court in Chancery. The errors assigned, are the general errors, and will bring the whole case before the court. In order clearly to show the grounds of the judgment of this court, a short statement of the case will be required. The bill charges, that Frederick Calvit, the ancestor of the defendants in the year 1788, obtained a patent from the Spanish government for 500 acres of land, that in the year 1790

he made his will, and devised the lands in controversy to his wife and children, giving her a life estate in her portion, appointing John Bisland, Thomas M. Green, Thomas Calvit and his wife executors and executrix to his said will-that no authority was given by the said will to the exeutors, to sell the land-that some of the children were of age, but the defendants were infants under age and of tender years. The bill also charges, that the estate was sold under the authority of the Spanish government, and John Roberts became the purchaser. That Roberts devised the lands to James Stewart jun., but it became necessary to sell the land for the payment of Roberts' debts, and the complainant became the purchaser. That two of the defendants were present, and John F. Bowie, the guardian of the other defendants, knew of the sale to the complainants, made no objections, nor did they make known their claim. That John F. Bowie, solicited the complainants to make the purchase. The bill does not deny that complainants had notice of defendants title. The answer denies all the material facts, to wit: the sale under any authority of the Spanish Government, that Roberts did not purchase under the pretended sale, but the purchase was made by the mother of the defendants, that no assent of theirs was given to the purchase by complainants, charges that complainants had both express and implied notice of their title.

A preliminary point was made in the argument of this cause, by what law the sale by the executors was to be governed, whether by the Spanish or by the laws established by the acts of Congress for the government of the Mississippi territory. It is not very material whether this point be decided or not, as the opinion of the court would be the same, the rules of both are analogous, and would bring the court to the same result. But the point having been taken, and insisted upon, the court will dispose of it. It is a subject of regret, that our libraries furnish few treatises on the laws of nations, from which light might be obtained to elucidate the point in question. The court will have to rely on Vatell, and some English authorities. Vateil 455, speaking of the rights of conquest by war says, a Prince taking a town or province from an enemy, can justly acquire over it, the same rights only, as belonged to the sovereign against whom he had taken up arms-war authorised him to possess what belonged to his enemy-if he deprives him of the sovereignty of a town or province;

he acquires it as it is, with all its limitations and modifications. And again 455 he says, if the sovereign, be only the just object of his complaint, reason declares, by his conquest, he acquires such rights only, as belonged to the dethroned sovereign, and on the submission of his people, he is to govern it according to the law of the State. The above doctrine is recognized by Lord Mansfield, in the celebrated judgment he gave in the case of Campbell vs. Hull, Cowp. 209, he says, the laws of a conquered country continue in force, until they are altered by the con queror. 1st. Black. 108 says, but in conquered or ceded countries, that have already laws of their own, the King may indeed alter and change those laws, but until he does actually change them, the ancient laws of the country remain. In Calvin's case, 7 Rep. 17 the same doctrine is recognised. That Spain, until the fall of 1798, exercised jurisdiction over this country, is not controverted. Whether this jurisdiction was rightful is not the subject of enquiry-it is sufficient if it was a government de facto' but that she had some semblance of right, is evident from her treaty with the United States. One of the objects of that treaty was to settle the limits, and there was a stipulation in the treaty, that if any portion of her subjects should be found within the limits of the United States, as agreed upon, time was given for their removal. If conquest and cession make no alteration in the civil laws of nations, what would place the government of Spain on different grounds?—I know not, and this may be laid down as a general principle, that the change, of one form of government for another, from whatsoever cause it may arise, the municipal laws remain unimpaired, until changed and altered by the new government. Our own rev#olution, the different revolutions in England and France, and the history of all countries prove this. The usurpation of Cromwell in England, the dethronement of the Bourbons in France, the establishment of the republic, and afterwards the Imperial dynasty of Napoleon, did not abrogate the municipal regulations of either of those nations. Rome, under all her mutations, was governed by the civil law. If these principles be just, and I think them consonant with justice, and the laws of nations, an important inquiry arrises, at what time the civil law ceased in this country. From the testimony of Col. Steel, the first Secretary under the territory, the government was not organized until the beginning of the year 1799

-that the civil law did not cease to operate until the organization of the new government, from the above principles, if they be correct, must be obvious, and the court is sustained in the positions assumed, by the act of the 7th April 1798, which act goes far to show the opinion Congress held upon this subject. By the 6th section Congress declares, that from and after the establishment of the said government, the people of the aforesaid territory, shall be entitled to, and enjoy, all and singular the rights, privileges and advantages granted to the people of the United States north west of the river Ohio, in and by the aforesaid ordinance of the 13th July 1787, in as full and complete a manner, as the same are possessed and enjoyed by the people of the said last mentioned territory. The act requires the new government to be organised, before the ordinance should operate, and become the law of the land. The evidence is, that the sale of the executors, was on the 1st April 1798. The court is therefore of opinion, that the civil law prevailed, and the sale of the executors must be governed by the Spanish law.

Having thus disposed of the preliminary point, the following case is presented for the consideration of the court. 1st. Had the executors power under the will, or the laws of Spain, to sell the land? 2nd. Have the defendants, by any acts of their own, raised an equity sufficient to preclude them from enforcing the judgment at law? To the first point, had the executors power under the will, or the laws of Spain, to sell the real estate? By the civil code 246, the executors can sell moveables if there are not assets sufficient to pay the legacies. He cannot sell immoveables, although authorised by the testator, if all the heirs are present, and they are forced heirs.

When an executor has seizen of the property, and is directed to sell, he must proceed to the sale, and payment of the debts of the succession, in the manner prescribed to the creditors of absent heirs, and vacant successions, page 244, the testator may give to his testamentary executor the seizen of the whole succession, or only a determinate part, according as he has expressed himself. If testator has not given seizen to his testa. mentary executor, he cannot acquire it. But if the executor testamentary, be merely and simply appointed, without any other power, his functions are confined, to the execution of the legacies, contained in the will,

H