the Code Napoleon, or civil law, prevailed. Whatever may have been the laws of the country now known as Oklahoma, they ceased to operate in the region originally comprising the Indian Territory when the Territory ceased to be a part of the Territory of Louisi ana, and the laws of the Territory of Indiana and the Territory of Missouri, which may have once prevailed in said region, became inoperative in and ceased to have any force or effect in the Indian Territory, when that Territory ceased to be a part of said Territories. Railroad Co. v. O'Loughlin, 49 Fed. Rep. 440. There was no law in the Indian Territory regulating the making of contracts at the time of the approval of the Act of Congress establishing a United States district court in said Territory by the act of March 1, 1889. 25 Stat. 783. Congress, with the assent of the Indians, created the court for the whole of the Indian Territory, which included Oklahoma, and conferred on it jurisdiction in all civil cases between citizens of the United States who are residents of the Territory, or between citizens of the United States or of any State or Territory, and any citizen of, or person residing or found in, the Indian Territory. It gave the court authority, and imposed upon it the duty, to apply the established rules and principles of the common law to the adjudication of those cases of which it was given jurisdiction. Pyeatt v. Powell, 51 Fed. Rep. 551. But if it be held that the establishment of a United States court in the Indian Territory did not put the common law in force in said Territory, except in so far as was necessary to execute the powers of said court, and for the adjudication of such cases as actually went into that forum, then there was no law in Oklahoma, at the date of its settlement, regulating the making of contracts. If this should be conceded, then it necessarily follows, on principle, that when people from all parts of the United States, on the 22d day of April, 1889, settled the country known as Oklahoma, built cities, towns, and villages, and began to carry on trade and commerce in all its various branches, they brought into Oklahoma, with them, the established principles and rules of the common law, as recognized and promulgated by the American courts, and as it existed when imported into this country by our early settlers, and unmodified by American or English statutes. So that, in any event, the common law prevailed in Oklahoma at the time the con tract between the appellant and appellee was entered into; and as, at common law, contracts for the sale and conveyance of real estate were not required to be in writing, the contract mentioned in the complaint may be enforced, unless void for other reasons.1

1 The contract was held not to be void on the ground alleged: the court followed on this point Lamb v. Davenport, 18 Wall. 307.- Ed.

SECTION III.

CONCURRENT LEGISLATIVE JURISDICTION.

MATTHEWS v. BURDETT.

QUEEN'S BENCH. 1703.

[Reported 2 Salkeld, 412.]

In the primitive church, the laity were present at all synods. When the empire became Christian, no canon was made without the Emperor's consent; the Emperor's consent included that of the people, he having in himself the whole legislative power, which our kings have not. Therefore, if the King and clergy make a canon it binds the clergy in re ecclesiastica, but it does not bind laymen: they are not represented in Convocation; their consent is neither asked nor given.1

SELIM FARAG v. DAME ROSINA MARDROUS ET AL. COURT OF APPEAL OF ALEXANDRIA (EGYPTIAN MIXED COURT). 1894. 19 Juris. des Trib. de la Réforme, 231.

THE Armenian Catholic Patriarch of Constantinople on August 23, 1886, and on November 18, 1887 pronounced a judicial separation between Selim Farag and his wife, and condemned him to pay her 33,000 francs damages and 300 francs a month alimony. One Back, a creditor of Mrs. Farag, made a judicial seizure of the sum thus due from Selim Farag. On January 20, 1891, after due notice, Selim Farag appealed from the decision of the Patriarch to the Holy See; and the Congregation de propaganda fide, to which the matter was referred, by a decision of June 27, 1892 (approved by the Pope the same day), reversed both sentences of the Patriarch.2

THE COURT. It will not be seriously questioned that if, as a result of the decision of the Holy Court of Rome, the sentences of the Patriarch have been made void, all the rights which Mrs. Farag or those claiming under her asserted as a result of the sentences also became void since the original title on which they were based has become null and without effect. The fundamental questions are therefore whether the Holy See exceeded the limits of its jurisdiction, and whether its. decisions have binding force in Turkey.

1 See 21 E. 4. 44. pl 6. — ED.

2 This short statement of facts has been slightly altered in form from the statement of the court. Part of the opinion, upon a point of procedure, has been omitted. — ED.

On the first point, the Pope is the head of the Catholic Church. His jurisdiction extends directly over all bishops for the maintenance of the unity of the faith and the discipline; he is, as the Council of the Vatican proclaims, the Supreme judge of the faithful. They may appeal to him in all cases which are within the ecclesiastical jurisdiction; his sovereign power extends over the churches of the Orient as well as over all other churches in the whole world. By a recent bull of July 20, 1883, addressed to the Patriarchs, Archbishops, and Bishops of the Oriental rites, the Congregation de propaganda fide has reminded them of this fundamental rule of jurisdiction, especially with regard to matrimonial causes: "To harmonize the rigorous observance of the Canon Law in this very important matter with the special conditions of the Ecclesiastical Courts of the Orient, appeals ought to be taken in the following order: if the first judgment has been given in the Diocesan Court, appeal shall be taken to the Patriarchal Court; and if judg. ment is given in the Patriarchal Court, appeal shall be taken to the Holy See." (Chap. IV., § 24). As to the Armenian Catholic Patriarch of Constantinople, in particular, before he was proclaimed in the Consistory of August 4, 1881, Patriarch of Cilicia under the name of Peter IV., Mgr. Stephen Azarian had addressed to His Holiness Leo XIII. the profession of faith and obedience to the Holy See, which he had pronounced before the Synod in the form prescribed by Urban VIII., and submitted himself to the authority of the Roman Church in all things touching the faith, the discipline, and the administration of his patriarchate. There is no doubt, therefore, that in granting the appeal of Selim Farag against the decisions of the Patriarch, and in setting them aside, the Holy See has acted within the bounds of its jurisdiction and its powers.

On the second point, far from disowning the authority and the right of jurisdiction of the heads of religious communities established in the Orient, the Sublime Porte has for a long time granted to these communities the most absolute right of conforming to the rules and rites of their religion. In such a spirit were promulgated the Hatti Humayoum on February 18, 1856, the organic rule of the Supreme Court of Constantinople on 8 Zilhedje, 1284, and the law of the Vilayets in 1867. The idea and intention of the Sublime Porte are made still clearer by its spontaneous declaration in the Treaty of Berlin on July 13, 1878; in which it is said that "the Sublime Porte having expressed the wish to maintain the principle of religious liberty and give it the widest extension," it has been stipulated that "the liberty and the open practice of all cults are assured to every one, and no hindrance shall be placed in the way either of the hierarchical organization of the different communions or of their relations to their spiritual heads."

The Berat of the Sultan, dated 21 Gamad Akher, 1303, accrediting the Patriarch Azarian after the confirmation of his election by the Holy See, inspired by the same principles, expressly imposes upon the Patriarch respect and observance of the laws of his church, orders that the

Christians of his communion shall be judged in accordance with the rules of their rite and the laws of their religion, and makes the observance and respect of these laws by the Patriarch the condition of his continuance during his life. The constant practice of the Catholic Patriarchates of the Orient, Syriac, Chaldee, Copt, Maronite, Armenian, and Latin, has certainly been to render legal decisions in the name of the Pope, and to take appeals to him, without any opposition on the part of the local authorities or of the Sublime Porte. It is only necessary to read the circulars of February 3 and April 1, 1891, to be convinced that the Sublime Porte, in decreeing that in future the decisions of the Patriarchates should be executed like the other judgments of the country, without any foreign intervention, had no other aim than to put such decisions beyond the reach of objections brought by the defendants before the local courts charged with the execution of judgments, and to give the Patriarch alone jurisdiction to pass upon the objections. One might therefore rely upon these circulars to establish the doctrine that the Patriarch's decisions are in future sovereign, and beyond all appeal except to the superior jurisdiction of the Holy See.

The decision of the Holy See, which has set aside the two sentences of the Armenian Catholic Patriarch of Constantinople, has in Turkey therefore, the authority of a sovereign judgment, and had the immediate effect of quite avoiding the two sentences. Back and the heirs of Mardrous cannot in addition invoke the authority of the judgment of this court, January 29, 1891, and the Court of Cairo, January 28, 1892, which declared regular and valid the suits against Farag by virtue, and in execution of the Patriarchal sentences; for these judgments were given before the Papal decision, which in setting aside the Patriarchal sentences has at the same time as necessary consequence avoided all the effects of the supposed res judicata. It is in fact a principle of the Courts of the Reform that the setting aside or reversal of a judgment in any legal way caused the avoidance of the execution and of all decisions based on the judgment; cessante causa, cessat effectus.

PAPAYANNI v. RUSSIAN STEAM NAVIGATION CO. JUDICIAL COMMITTEE OF THE PRIVY COUNCIL. 1863.

[Reported 2 Moore's Privy Council Cases, New Series, 161.]

THIS was an appeal from two judgments in an action and crossaction, being a claim and counter-claim, respecting damage by collision off the Island of Marmora, whereby the steamer "Colchide was lost, pronounced by the Judge of the Supreme Consular Court at Constantinople. The appellants were British subjects domiciled in England, and owners of the "Laconia." The respondents were Russian subjects, "The Russian Steam Navigation and Trading Company," a public company, incorporated by an Imperial ukase of His Majesty

the Emperor of Russia, and were the owners of the steamship "Colchide." . . . The appellants entered a protest against the jurisdiction of the Supreme Consular Court to entertain the cause of collision, it being a proceeding in rem.1

Their Lordships' judgment was pronounced by

DR. LUSHINGTON. In considering what power and what jurisdiction was conceded to Great Britain within certain portions of the Turkish dominions, it must always be borne in mind that in almost all transactions, whether political or mercantile, a wide difference subsists in the dealings between an Oriental and a Christian State and the intercourse between two Christian nations.

This is an undoubted fact. Many of the reasons are obvious, but this is not the occasion for discussing them. It is sufficient for us to know and acknowledge that such is the fact.

It is true beyond all doubt that, as a matter of right, no State can claim jurisdiction of any kind within the territorial limits of another independent State. It is also true that between two Christian States all claims for jurisdiction of any kind, or exemption from jurisdiction, must be founded on treaty, or engagements of similar validity. Such, indeed, were factory establishments for the benefit of trade. But though, according to the laws and usages of European nations, a cession of jurisdiction to the subjects of one State within the territory of another, would require, generally at least, the sanction of a treaty, it may by no means follow that the same strict forms, the same precision of treaty obligation, would be required or found in intercourse with the Ottoman Porte.

It is true, as we have said, that if you inquire as to the existence of any particular privileges conceded to one State in the dominions of another, you would, amongst European nations, look to the subsisting treaties; but this mode of incurring obligations, or of investigating what has been conceded, is matter of custom and not of natural justice.

Any mode of proof by which it is shown that a privilege is conceded is, according to the principles of natural justice, sufficient for the purpose. The formality of a treaty is the best proof of the consent and acquiescence of parties, but it is not the only proof, nor does it exclude other proof; and more especially in transactions with Oriental States. Consent may be expressed in various ways: by constant usage permitted and acquiesced in by the authorities of the State, active assent, or silent acquiescence, where there must be full knowledge.

We, having considered the materials before us, entertain no doubt that, so far as relates to the Ottoman Government, no objection is tenable against the exercise of jurisdiction between British and Russian subjects. Indeed, the objection, if any such could properly be urged, should come from the Ottoman Government rather than a 1 The remainder of the statement of facts, the arguments of counsel, and part of the opinion are omitted.- ED.