The people keep their former laws till the purchaser or conqueror gives them his laws, at once, and immediately, in toto, or, by degrees, and in time; and the former laws remaining in force after the acquisition of the territory, become the common law of the country. As to Louisiana, ceded.in 1803, special provision was made by congress, Oct. 31, 1803, for the government thereof, and before possession thereof, was taken, the former laws were left in force some time, and were altered by degrees: so the former laws of Florida were understood, as a matter of course, on the principles of the laws of nations, and our common law, to have remained in force long after the United States took posses: a few cases excepted. sion: VOL. VII. CH. 223. Con. §4. Concerning the laws of descent and distribution in Ohio, ART. 17. see a. 1. s. 3, and a. 17, s. 1, this chapter. The said territorial Con. ordinance was the basis of all law in Ohio. No estate ever descended there on the English common law; nor was the Isaid statute of Charles II., of distribution, ever in use there, otherwise, than the material parts of it are contained in the said ordinance. The statutes of Ohio, have made some alterations in the collateral and asrending lines: 1. A distinction between ancestral and acquired estates; the ancestral estate goes to such brothers and sisters of the intestate, as are of the blood of the ancestor from whom it came, and their legal representatives; and if no issue, brother or sister or their representatives of the blood of such ancestor, it goes to him, if living: if he, also, be dead, it goes to his brothers and sisters, or their representatives; and if none of them, it goes to the intestate's relations of the half blood, not of the blood of such ancestor. If no issue, brothers or sisters, or their representatives of the blood of such ancestor, and he is dead, nor brothers or sisters of their representatives of said ancestor, nor brothers nor sisters not of his blood, then the estate goes to the next of kin of the blood of the person from whom it came by descent, devise, or gift to the intestate; no further provision is made for the descent of an ancestral estate; and if no such next of kin, it is conceived the estate will go according to said ordinance, that is, to the next of kin to the intestate. If the estate be acquired by the intestate, by his or her own means, or given, or devised to him or her, by one no way related to him or her, it goes to the intestate's issue as long as any exist; and if no issue, then to the intestate's brothers and sisters of the whole blood, and their legal representatives; if none such, it goes to the brothers and sisters of the half blood, and their legal representatives; if none such, to the father, and if he be dead, it goes to the mother; if no such relations, it goes to the next of kin to the intestate, who need not be actually seised, but only have a title to it and aliens may inherit and be in VOL. VII. herited: the widow has her dower, and illegitimate children are Remarks on the laws of descent and distribution of intestate property in the twentyfour States. These laws, in two States, Massachusetts and Maine, have been largely considered in this work, from the first settlement of those States, as is proper, in every State, when the plan of the work admits such a course; but the plan of this does not proper, as in many trials, it is found necessary to use these laws, and the judicial decisions thereon, very far back as where a person died intestate, leaving estate, it was, of course, settled by such laws then in force. These then entered into the title, though a century or two ago, and must forever remain a part of it. As to the States, Vermont, Kentucky, Ohio, Tennessee, and Louisiana, these laws have not, in this work, been traced back (for reasons above stated,) but only a sketch has been made of those of them understood to have been the last enacted, and in force in the year 1820, and since enacted. These sketches have not been made for practice, especially in doubtful cases. In that only, the statutes themselves, from early times, and the judicial decisions thereon, can be safely trusted. As to these laws of descent and distribution, more than any others whatever, every line, and often every word, is material, for when a person dies intestate, having property, and kindred however numerous and remote, the very persons to take, and their exact proportions, must be exactly ascertained by such laws in force when the intestate died, though long since; and if any part of these laws be misconstrued, as to any one taker, or any one proportion, the estate is not well settled, and till this fault is corrected or waived, nofter settlement is correct. But these sketches are for other purposes mainly: 1. To show the sameness there is in twentythree States, in the principles of these laws in the main points, especially as they respect lineal descendants of the intestate, his children, and others, his issue, however remote: 2. To show the immense heterogeneous variety and fanciful distinctions, that are in the minute and less important parts of these laws. Probably not half of them in the said last enacted statutes, are noticed in this work, to say nothing of a far greater number in prior statutes: 3. To suggest an inquiry if it may not be wise, to prevent the rapid increase of this chaotic mass, soon to think of making our descent laws more simple and rational, wherever, and whenever it can readily be done, on the sound republican principles of our system. As to the most essential and important part, the descent of intestate estates to children, and other lineal descendants of the intestate, Con. the States now agree, with one or two exceptions in giving male VoL. VII. children double portions, and females single ones, a relic of feu- Cн. 223. dality rejected by almost every State, and totally rejected in the Art. 17. said statute of Charles II. Those States, ought gradually, as they shall revise these laws, to extend the simple uniform principles of those statutes to real and personal estate; and unanimously so in the said territorial ordinance. Numerous are the cases in which judges, lawyers, and authors, find a deplorable uncertainty in the minute and various distinctions, found in these laws; increased almost yearly by twentyfour legislatures independent of each other; and twentyfour judiciaries deciding thereon, independently; by repeated revisions of, additions to, and alterations in these laws. Before the new French code was enacted, it was said of the former French laws, they were so numerous and various in different provinces, that a lawyer might well understand them in one, and know nothing of them in another so it may be said of our laws of descent and distribution; generally, a lawyer may well understand them in one State, and know nothing of them in another: as before observed, this difficulty is quite peculiar to these laws. Concerning the laws in the different States, on the subject of wills, conveyances, uses, leases, insurances, bonds, bills, notes, accounts, pleadings, bail, &c., &c., there is such a sameness in all the twentythree States, that a good lawyer in one State, may, with a moderate degree of preparation, practice in any of them. Not so is the case of the laws of descent and distribution. In such numerous conditions are intestates and their property,-in such numerous situations are the claimants and the takers, and so infinitely various their shares or proportions, that no end is seen in the multiplied forms into which these laws may be made to run, if legislators will freely indulge in all kinds of minutie: the more need, therefore, to restrain them, by fixing some principles, fundamentally pervading the nation to restrain this intolerable variety. This is now done in France, has been done in England one hundred and sixty years, as to personal estate, by the said statute of Charles II. Where the same principles do, in substance, and ought to pervade the whole nation; the form of a federal republic makes no difference; and if any laws in such a republic, ought to be as fixed and unalterable as the constitution, they are those that direct the descent and distribution of property. In fact the evidence is that more than three fourths of the States are well prepared to exclude in future, every relic of feudality from our laws, and nineteen twentieths of these deviations in these laws of descent and distribution. Numerous little and notional deviations from the said statutes of Charles II, and James II., under which our legislation commenced, as to per87 VOL. IX. 690 STATUTE TITLES IN THE SEVERAL STATES. VOL. VII. sonal estate, in all the colonies, and as to real in some also, it 523 to 545; 12 Wheat. 599603, De La Croix v. Chamberlain. 1. True northern boundary. British and Spanish titles there. Held, a concession of lands made by the Spanish auCh. 89, a. 4, s. thorities at Mobile, in the year 1806, cannot be given in evi36; 12 Wheat, dence to support an ejectment in the courts of the United States, the same not having been recorded or passed upon by the board of commissioners or register of the land office, established by acts of congress relating to land titles in that country. The English king's proclamation of October 7, 1763, established the northern boundary of Florida at the thirty first degree of north latitude, &c. as in the treaty of peace of 1783. Acts of congress March 3, 1803, s. 5, as to recording grants; of March 27, 1804, as to recording grants and said board; cession, &c. of Georgia, April 24, 1802; treaty with Spain, Oct. 27, 1795. Great Britain, by the preliminary articles of peace of Nov. 30, 1782, having admitted the United States' right to said 31st degree, &c. could not afterwards in her treaty with Spain, Jan. 20, 1783, cede to her land or jurisdiction north of said line, yet Spain continued to claim north of that line until said treaty of 1795 was made, adopting the said line of 1783, but neither treaty, divested private rights or titles to soil, previously vested. A. D. 1806, the Spanish authorities were in the actual possession of Mobile, and claimed the place as being a part of West Florida. The United States claimed it as part of Louisiana, purchased by them in 1803, and the dispute was settled only by their purchase of the Floridas, in Feb. 1819, by which they were bound to confirm certain inchoate rights or titles to lands in Florida, acquired under Spain. The manner of confirming grants in Florida and Louisiana, congress has ever assumed, whether made by France, Spain, or Great Britain, and this manner is seen in said two and other acts. ART. 19. Congress has exclusive legislation in the District of Columbia. How easy is it for the legislature of the nation to set an example of this simple and already well-explained legislation, found in those statutes of Charles and James, or of Charles alone? And to extend the principles thereof to real as well as personal estates. At present, the laws of Maryland remain in force in the Maryland part east of the Potomac, and the laws of Virginia in the Virginia part of the district west of that river as to intestate estates. CHAPTER CCXXIV. SEIZURES IN REVENUE AND OTHER CASES. VOL. VII. Art. 1. § 2. Seizures made on land and water, to be kept distinct. Hence a libel, stating a seizure to have been made on water, when in fact made on land, will not support a verdict and judgment, or sentence thereon; but must be amended or dismissed: 2. As to seizures on land under the revenue laws, the district court proceeds, as at common law, according to the course of the exchequer, on informations in rem, and the trial of the issues of fact is by jury. But as to seizures on water navigable from the sea by vessels of ten or more tons burthen, it proceeds as an instance court of admiralty by libel, and the trial is by the court. The Sarah, 8 The district courts are both courts of common law, and admi- Wheat. 391ralty jurisdiction. See ch. 186, a. 9, s. 10, and cases therein. cited. 397. So goods are not forfeited by any mercantile devise, where there is no intention to defraud the government, as 10 Wheat. 421-427; under the duty act of 1799, ch. 128, s. 43, no cause of forfeiture that the casks marked and accompanied with the certificates required by the act, contained distilled spirits, imported into the United States, or a mixture of domestic with foreign spirits; the object of the act being to secure the revenue. § 1 con. Voyage broken. Non-intercourse act of 1818. ART. 3. Held, this act of April 18, 1818, ch. 65, prohibited the coming of British vessels to the ports of the United States from a British port, closed against the commerce of the United States, either directly or through a British port; but did not prohibit such vessel's coming from a British port closed as aforesaid, through a foreign port, (not British,) where the continuity of the voyage was fairly broken. The Pitt sailed from Kingston in Jamaica, a closed port, but took in a new cargo in a Spanish port, bona fide, and thence came to the United States. The commercial convention concluded between the United States and Great Britain, July 3, 1815, did not extend to the British colonies in the West Indies, but as to them, the navigation laws and colonial system of Great Britain, continued in full force, which the United States were at liberty to counteract by any regulations in their power. Con. 8 Wheat. 371 379, the Pitt. 8 Wheat. 398406, the Fran Non-intercourse. Such vessel is not forfeited if the continuity of the voyage be not broken, though she touch at an intermediate cis v. Ely. British closed port, from necessity, and in order to procure provisions, if she do not trade there. The policy of the said act was to prevent British vessels from bringing British goods from the islands, in exclusion of vessels of the United States, and to |