Vermont watchman and State journal. [volume] (Montpelier, Vt.) 1836-1883, 1857-05-01

on the legislative power is not peculiar to the
Constitution of the United States it was
borrowed from Magma Cbaria was brought
to America by our ancestors as part of their
inherited liberties and has existed in all the
States, usually in the very words of the great
charter. 1t existed in every political COM
munity in America in l787, when the Ordi-
nance prohibiting slavery north and west ofthe
Ohio was passed
And il prohibition Of Slavery in terri
tory in $50 violated the principle of Mrqna
Chayta the Ordinance Of 787 also violated
1t and what power had. do not say the
Congress Of the Confederation alone, but the
Legislature Of Virginia, or the Legislatures
of any or all the States Of the Confederacy.
to consent to such violation. The people
of the States had conferred no such power.
think | may at least say, if the Congress did
then violate Hqgpa Chaifa by the Ordinance.
no one discovered that violation Besides, if
the prohibition upon all persons, citizens as
well as others, to bring slavos into a Terri
tory, and a declaration that if brought they
shall be free, deprives citizens Of their prop
erty without due process Of law, what shall
we say Of the legislation Of many of the
slaveholding States which have enacted the
same prohibition. As carly as October, 1878.
law was passed In Virginia, that hereafter
no slave should be imported into that Com
monwealth by sea or by land and that every
slave who should be imported should become
free. \ citizen of Virginia purchased in
Maryland a slave who belonged to another
citizen Of Virginia, and removed with the
slave to Virginia. The slave sued for her
freedom and recovered it as may be seen in
Wilson agt. Isabel, Coils r.. 42j See
also Hunter agt. Hulsher, Leigh, / y and
a similar law has been recognized as valid in
Maryland. in Stewart agt Oaks. Har and
John, l07 | am not aware that such laws,
though they exist in many States, were ever
supposed to be in conflict with the principle
of Naqqa Charto incorporated into the State
Constitutions. 1t was certainly understood
by the Convention which framed the Consti-
tuition, and ever since that under the power
to regulate commerce, Congress could prohib-
IL the importation Of slaves, and the exercise
of the power was restrained until 1905. A
citizen of the United States owns slaves in
Cuba and brings them to the United States,
where they are set free BY the legislation Of
Congress. Does this legislation deprive him
Of his property without due process of law
If so, what becomes Of the law prohibiting
the slave-tradc; If not, how can similar
regulation respecting a Territory violate the
fifth amendment of the Constitution
Some reliance was placed by the defendant
counsel upon the fact that the prohibition Of
slavery in this Territory was in the words,
THAT slavery. &c, shall be- and is hereby
forerer prohibited But the insertion of tho
word forerer can have no legal effect. Every
enactment not expressly limited in its dura-
tion continues in force until repealed or abro-
gated by some competent power, and the use
Of the word forever can give to the law no
more durable operation. The argument is
that Congress cannot so legslate as to bind
the future States formed out Of the Territory,
and In this instance it has attempted to do so.
OF the political reasons which may have in
duced tho Congress to use these words, and
which caused them to suspect that subsequent
Legislatures would conform their action to the
general opinion of the country that it ought
to be permanent, this Court can take no cog
nizance.
However fit such considerations are to con
troll the action of Congress, and however re-
luctant a statesman may be to disturb what
has been settled, every law made by Congress
may be repealed, and saving private rights
and public rights gained by the States its re-
peal is subject to the absolute will of the
same power which enacted it. If Congress
had enacted that the crime of murder, COM
mitted in this Indian Territory north Of SO
deg. SOM, by or on any white man, should for
erer be punishable with death, it would-seom
to me an insufficient objection to an ndict-
ment, found while it was a Territory that at
some future date States might exist there
and so the Law was invalid because by its
terms it was to continue in force forever
Such an objection rests upon misapprehcn-
sion of the province and power of courts re-
specting the constitutionality of laws enacted
by the Legislature
If the Constitution prescribe one rule, and
the law another and different rule, it is the
duty Of Courts to declare that the Constitu-
ton, and not the law, governs the case before
them for Judgment. If the law include no
case save those for which the Constitution
has furnished different rule. or no case which
the Legislature has power to govern, then the
law can have no operation. If it includes
cases which the Legislature has power to gov
ern, and incoming which the Constitution
does not prescribe different rule, the law
governs the cases. though it may, in its terms,
attempt to include others on which it cannot
operate In other words, this Court cannot
declare void an act Of Congress which consti-
tutionally embraces some cases, though other
cases within its terms are beyond the control
Of Congress, or beyond the reach Of that par
tieular law If, therefore, Congress had pow
er to make a law excluding slavery from the
territory while under the exclusive power of
the United States, the use Of the word "for-
ever does not invalidato the law so long as
Congress has the exclusive legislative power
in the Territory.
But it is further insisted that the treaty OF
1903, between the United States and France,
by which this territory was acquired has so
restrained the constitutional powers Of Com
gress that il cannot by law prohibit the in
PRODUCTION of slavery into that part of this
territory north and west Of Missouri and
north Of SO deg. 80 min. north latitude.
BY treaty with foreign nation, the Unit
ed States may yet fully stpulate that the Con-
gress will or will not exercise its legislative
power in some particular manner, on some
particular subject Such promises, when
made. should be voluntarily kept with the
most scrupulous good faith, But that treaty
with foreign nation can deprive the Congress
of any part Of the legislative power conferred
by the people, so that it can no longer logis-
late as it was empowered by the Constitution
to do, ! more than doubt