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

that laws so enacted shall be irropealabe No
supremacy is assigned to treaties over acts Of
Congress. That they are not perpetual,
and must be in some way repealabe, all will
agree
II the President aud the Senate alone pos
sess the power to repeal or modify law found
in treaty. inasmuch as they can change or
abrogate ono treaty only by making another
inconsistent with the first the Government
of the United States could not act at all to
that effect without the consent of some for
eign Government. do not consider-I am
not aware it has ever been considered--that
the Constitution has placed our country in
tins helpless condition. The action Of Con-
gress IN repeating the treaties with France by
the act Of July Z, 1893, 4 Stats at Large,
5I1,) was IN conformity with these views In
the case OF Taylor ct al agt. Morton. y Cur
tis Cir. ct. r., 4jl,) had occasion TO con-
slider this subject, and adhere to the views
there expressed
II therefore, it were admitted that the treaty
between the United States and France did
contain an express stipulation that the United
States would not exclude slavery from so
much Of the ceded territory as is now in ques-
hon, this Court could not declare that an act
Of Congress excluding il was void by force of
the treaty Whether or no a case existed
sufficient to Justify refusal to execute such
a stipulation would not be judicial, but
political and legislative question, wholly be-
yond the authority Of this Court to trv and
determine. 1t would belong to diplomacy
and legislation, and not to the administration
of existing law Such stipulation in a trea-
ty, to egislate or not TO legislate in partic-
ular way, has been repeatedly held in this
Court to address itself to the political or the
legislative power, by whose action thereon
this Court is bound. Foster agt Nelson.
Peters, 2ll; Garcie agt. Lee. - Peters, 5l9.
But, in my Judgment, this treaty contains
no stipulation in any manner affecting the
action of tho United States respecting the
Territory in question Before examining the
language Of the treaty. it is material to bear
in mind that the part of the cedcd territory
lying north of SO deg. 80 min, and west of
the present State of Missouri, was then a
wilderness uninhabited save by savages.
whose possessory title had not then been ex-
tinguished.
1t is impossible for me to conceive on what
ground France could have advanced a claim,
or could have desired to advance claim to
restrain the United States from making any
rules and regulations respecting this territory
which tho United States might think fit to
make and still less can | conceive of any rea-
son which would have induced the United
States to yield such claim 1t was to be
expected that France would desire to make
the change of sovereignty and jurisdiction as
little burdensome as possible to the then in
habitants Of Louisiana, and might well exhibit
even an anxious solieitude to protect their
property and persons, and secure to them and
their posterity their religious and political
rights and the United States, as Just gov
ernment, might readily accede to all proper
stipulations respecting those who were about
to have their allegiance transferred But
what interest France could have IN unnhab-
tied territory which. in the language of the
treaty, was to be transferred forever. and in
full sovereignty to the United States and
how the United States could consent to allow
a foreign nation to intefere in its purely in
ternal affairs in which that foreign nation had
no concern whatever. is difficult for me to
conjecture. In my judgment, this treaty con
tains nothing of the kind.
The third article is supposed to have bear
ing on the question. 1t is as follows
"The inhabitants Of tho ceded territory shall be incor-
poated into the Unon Of the United States and admit
ted as soon as possible according to the principles Of the
Federal Constttou the enjoyment OF all the rights
and mmunities of citizenship Of the United
Satesi and in the meantime they shall be maintained
aud protected in the enjoyment their liberty proper
ty and the religion they profess"
There are two views of this article each of
which, think docisiyely shows that it was
not intended to restrain the Congress from
slavery from that part of the coded
territory then uniuhabited. The first is, that
its sole object was to protect indi-
vidual rights Of the then inhabitants of the
territory They are to be maintained and
protected in the free enjoyment of their lib
crty, property, and the religion they profess.
But this article does not secure to them the
right to go upon the public domain ceded by
the treaty, either with or without their slaves.
The right or power Of doing this did not ex-
ist before or at the time the treaty was made
The French and Spanish Governments, while
they held the country, as we'll as the United
States when they acquired it, always exercs-
ed the undoubtcd right of excluding inhabi-
tants from the Indian country. and of determ-
lining when and on what conditions it should
be opened to settlers And a stipulation that
the then inhabitants of Louisiana should be
protected in their property, can have no refer
ence to their use Of that property where they
had no right under the treaty to 20 with it,
save at the will OF the United States. If one
who was an inhabitant of Louisiana at the
time Of the treaty had afterwards taken prop
erty then owned by him, consisting of fire.
arms, ammunition and spirits, and had gone
into the Indian country north of SO degrees
80 minutes, TO sell them to the Indians, all
must agree the third article of the treaty
would not have protected him from indict-
ment under the act Of Congress of March
so, 1902, q Stat at Large, l39,) adopted
and extended to this Territory by act of March
26, 1904, q Stat at Large, 2s3.
Besides, whatever rights wore secured were
individual rights. Il Congress should pass
any law which violated Euch rights of any in
dsidual, and those rights were of such
character as not to be within the lawful con-
troll of Congress under the Constitution, that
individual could complain, and tho act of
Congress, as to such rights of his, would be
imperative but it would be valid and oper-
ative as to all other persons whose individual
rights did not come under the protection of
the treaty. And inasmuch as it does not ap-
pear that any inhabitant Of Louisiana. whose
rights were secured by treaty, had been in
jured, it would be wholly inadmissble for
this Court TO assume. frat, that one or more
such cases may have existed and second
tN..N. : IL g "a L.