Washington sentinel., 1854-05-02

iorihcuj ~ apsorpeu The Whoie pofitlcal organ
zation Of the Territory of that name, and lefi
the country north Of 360 S0> and west Of the
State limit, without any organization whatever.
The actual condition Of this Territory, at this
period, is particularly described in the letter OF
Charles Pinckney SO frequently quoted in this
debate. He says:
To the north OF 500 80, there is to be, by the
present law, restriction, which, you will see by
the votes, voted against. But il is at present
OF no moment. IL is vast tract, inhabited only
by savages and wild beasts in which not foot OF
the Indian claim TO soil is extinguished, and in
which, according to the ideas prevalent, no land
office will be open for great length of time"
From that period to this, this Territory has
remained unchanged The tribes which occu-
pied the country from the earliest periods of
history still maintain undisputed possession
and sway. Other tribes from the east Of the
Mississippi have removed into the Territory.
1t is emphatically the Indian country. The
policy of our laws has excluded all ordinary
intercourse between onr citizens and them.
No trade or barter of any kind is permitted
but on special license. SO far from extending
our laws and jurisdiction over them, their right
has heretofore been considered so exclusive
that, in 1925 Congress, desiring to lay out
road from west of the State of Missouri to-
wards Santa Fe, required as condition prece
dent that the commissioners should first OBJ
tain the consent Of the intervening tribes of
Indians By treaty. and the government, while
holding the ultimate fee, has never sought to
disturb the possessory right.
Being thus clearly outside of any State or
territorial jurisdiction, it becomes a very grave
inquiry whether any law can be said to exist
in their Territory, except such as pertain to
their several tribes. If citizen Of Massachu-
sets, with his family, had penetrated into these
remote regions and there died, by what law
would his property have been distrbuted2 2
Would the claim Of the wife have been sus-
tanned by the civil law rule of matrimonial
partnership, or would the children have in
herited according to the common law rule of
distribution? Sir, it seems to me the parties
would have obtained but feeble aid, whether
they had appealed to the liberality of Justinian,
or the stern inhexiblity of Coke. The rights
OF persons who enter into territories in this
condition, if any can be said to exist, are such
as writer's denominate imperfect rights" They
are without sanction or remedy, and, so far,
practically valueless.
But on SO grave subject as this / will not
rest my reply upon question of such nice
learning. | will assume the broader and
boder ground, that the civil law, including the
black code originally given to the province by
Louis XIV, extended by construction to the
precise Territory in question.
The laws, then, which existed in the pro-
vince OF louisiana, SO far as they sanctioned
and protected slavery, continued to be the
rule Of action from the date of our acquisition
down to the act oflS20. As that act, however,
forever prohibited slavery and involuntary ser.
vitude in that Territory, it follows that assam
ing the act to be constitutional, slarery, and all
stacery lap then eristing, ceased to BE- From
that time they acere nullifed and acere to be ne.
ga,ded as u they had nerer eristed.
This. principle of law is thus illustrated in the
books. Ifa statute which Furnishes an offence
capltailyis repealed by one which Furnishes the
offence as msdemeanor only, a crime COM
mitted during the existence of the first statute
cannot be punished subsequent to its repeal.
because, as already stated. the first statute is
regarded as II it hGd aecer had an existence,
and it cannot be punished under the second
statute, because this would be er post tacto
SO, by analogy, debt barred and extinguished
by limitation or bankrupt laws never again be-
come the foundation of an action, though the
debtor subsequently promised to pay them, but
the action rests on the ne,o promise.
The act Of 1920, with its prohibition, having
thus excluded all other laws on this subject,
and annexed to the domain law for ita per.
petualg government, withoutrcgard toany change
in its political condition, the measure now be-
fore US proposes boldly to repeal this law, or,
what is equivalent, to declare it 7" imperative
and void" and TO leave the people inhabiting
the Territory perfectly free to form and regu-
late their domestic institutions in their own
way, subject only to the Constitution of the
United States" To a proposition SO Just, so
equal, so constitutional, there are, to my sur
prise, dissenting voices from the South and
we are called upon to vote against this measure
because the proviso declares:
THAT nothing contained IN this ae. shall be
CONSTRUED TO revive or put in force any law or
regulation which may have existed prior to 9th
March, 1890. either protecting, establishing, pro-
hibiting, or abolishing slavery"
The question then presented to us is, shall
we reject the proposition which leaves southern
men free to emigrate with their property into
the Territory under the sanction and protec-
ton Of the Constitution, because it does not
also contain re-enactment of the ancient pro-
slavery laws?
But am told by the dissentients that re-
is not trequired; and that, if Congress
will merely content itself with simply repeating
the eighth section of the Missouri act. these
la,cs wiu yevire ofthemselces.
Here is the fundamental error. Laws once
destroyed have no selfrecreativc power and
whenever revived, it is only by force Of some
new creative act
The first great rule, Mr.. Chairman, in the
of statutes is, that the intention
Of the law.giver is to be deduced from view
of the whole and every part of statute taken
and compared together. The real intention,
when accurately ascertained, will always pre-
vail over the literal sense of terms
Subordinate to this is the special rule of the
common law-that on :" the repeal Of repeal
ng statute (the new law containing nothing in
t that manifests the intention of the legisla-
ure that the former act shall continue repealed) |
he original statute is revived. ."-Dwarris on
statutes, P. 534.
1t is therefore only by virtue of the intention
in the new act, ascertained by the
,ourt according to the rule already quoted, that
he ancient law is revived or recreated and not
~ force of any vitality existing in the ancient
aw itself
Now, as the essential rale of construction,
IS just read, only permits the court to declare