which defendants were officers, and relieve them from the duty thereby imposed. Defendants were indicted for refusal to perform an official duty in not acting under the former statute. On the trial the jury found a special verdict reciting that the county commissioners had, on advice of counsel, determined not to act under the later statute on the ground that it was void, and that defendants also, on advice of counsel, were of opinion that nevertheless the later statute repealed the earlier, and therefore failed to do the official acts required by the earlier statute, believing that those acts devolved, in accordance with the later statute, on other officers as therein provided. From a judgment of not guilty the State appealed. The court in its opinion reaches the conclusion that the later statute was unconstitutional by reason of some provisions therein, and that the earlier statute was not thereby repealed, and then continues.] MONTGOMERY, J.

The question for decision, then, is, is one who is a public officer under a former provision of law compelled, under pain of indictment and punishment, to perform the duties of the office during the time when there was on the statute books a subsequent act unconstitutional in all of its provisions? The matter is an important one, both to the public and to the individual. With us, public office is a public trust, and public officers are merely the agents of the people. This fundamental principle of republican government may not always be recognized by the officer, but it is nevertheless the true theory. When the people, through their representatives, create a public office, and prescribe the duties of the officer, the people act for the common good, and the incumbent of the office is the mere instrument used for the general welfare. His gain or profit is not in contemplation of the lawmakers. The public interest is the chief consideration. What an anomalous state of things would we have, then, if a person believing himself to be a public officer, because of the discharge of the duties which he thought he owed to the public, should afterwards be indicted and punished, because the courts had held the act which created the office and prescribed its duties to be against the provisions of the Constitution and void! Such a proposition would be equivalent to declaring that the individual officeholder must be wiser than the whole people, represented in their general assembly. Such a proposition, to us, seems opposed to every idea of justice. It could not be true. The criminal law cannot be invoked to punish one who acts as a public officer, as an agent of the people, and who in the discharge of a public duty had obeyed an act of the law-making power, even though the law be unconstitutional, unless the act itself had required the committal of a crime, a thought which could not be entertained for a moment. And it makes no difference that in the case before the court the defendants are indicted for a refusal to perform certain duties under a former

law attempted to be repealed by a subsequent unconstitutional statute, and not for doing positive acts under an unconstitutional law. The principle is the same in both cases. The defendants here cannot be punished under the criminal law for failing and refusing to perform the duties of an office, which office, and the duties pertaining to it, had been sought to be repealed by a subsequent act of the legislature, afterwards declared by the courts to be unconstitutional. Until the subsequent statute was declared to be unconstitutional by competent authority, the defendants, under every idea of justice and under our theory of government, had a right to presume that the law-making power had acted within the bounds of the Constitution, and their highest duty was to obey.

It is not necessary, to a proper determination of this case, to go into the realm of the effect of contracts, executed or executory, made by a person claiming to be a public officer, but where there is no lawfully created office. The counsel for the prosecution cited to the court, in support of his position, the case of Norton v. Shelby Co., 118 U. S. 425, and especially to that portion of the opinion wherein it was declared by the court that "an unconstitutional act is not a law; it confers no rights; it imposes no duties; it affords no protection; it creates no office; it is, in legal contemplation, as inoperative as though it had never passed." The opinion in that case was rendered upon the effect of an executory contract made by one who claimed to be a public officer, the office having been created without authority of law. For the reasons given in this opinion, the case of Norton v. Shelby Co., supra, does not apply to the facts in this case. Upon the special verdict the judgment of the court below was that the defendants were not guilty, and the judgment is affirmed. Affirmed.1

1 In 12 Harvard Law Review, at p. 352, is the following note to a brief statement of the foregoing case:

The case seems to be correct in principle, although there is a direct conflict of authority on the question. Many jurisdictions hold that when a legislative enactment proves to be invalid, it is, for all legal purposes, as if it had never existed; and, before it has been declared unconstitutional by the courts, acts done or duties neglected by a public officer, bona fide believing it to be valid and in reliance upon it, are, according to the general rule, not excused by his ignorance of the law. Sumner v. Beeler, 50 Ind. 341; Campbell v. Sherman, 35 Wis. 103. The better and more just doctrine, however, appears to be that the officer is protected unless the statute relied upon appears on its face clearly unconstitutional. Henke v. McCord, 55 Iowa, 378; Sessums v. Botts, 34 Tex. 335."

CHAPTER VIII.

THE GOVERNMENT OF THE TERRITORIES.

THE AMERICAN INSURANCE COMPANY v. CANTER.

1 Peters, 511; 7 Curtis, 685. 1828.

MARSHALL, C. J., 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 per cent 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 per cent.

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 the 4th 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 territoral legislature was competent to enact the law.

The course which the argument has taken will require that 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 occu pation, 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 gov ernment 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 the 2d of February, 1819, Spain ceded Florida to the United States. The sixth article of the treaty of cession (8 Stats. at Large, 252) 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 mean time, Florida continues to be a Territory of the United States, gov erned 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 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" (3 Stats. at Large, 654), and on the 3d of March, 1823, passed another act to amend the act of 1822. Under this act the territorial legislature enacted the law now under consideration.

[Portions of the act last above referred to, which provide for certain territorial courts, are set out and discussed, but it is held that the territorial court in question did not have admiralty power under that act. Such power is found to have been derived from the territorial legislature under the authority to pass laws with reference to all rightful objects of legislation not "inconsistent with the laws and Constitution of the United States."]

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 gov ernment 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 third 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 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 of a State government.

We think, then, that the act of the territorial legislature erecting