Weekly national intelligencer., 1857-06-27

slaves IN Cuba and brings them to the United States
where they 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 laws
prohibiting the slave trade If not, how can similar
regulation respecting Territory violate the fifth amend
ment of the Constitution
Some reliance placed by the defendants counsel
upon the fact that the prohibition of slavery this
rltory was in the Words that slavery &C. shall be and
Is hereby forever prohibited" But the insertion of the
word forever have no legal effect Every enactment
not expressly limited in its duration continues in force
until repealed abrogated by some competent power
and the use of the word forever give to the law
no more durable operation The argument is that Con-
gress cannot 1egisate to bind the future States
formed out of the territory and that in this instance it
has attempted to do OF the political reasons which
may have induced the Congress these words and
which caused them to expect that subsequent Legsa-
lures would conform their action to the then general
opinion OF the country that it ought permanent
| this court can take no cognizance
However tit such considerations to control the ac-
ton OF Congress- and however reluctant statesman NAV
be to disturb what has settled every law made by
Congress may be repealed and saving private rights
and public rights gained by States its repeal is subject
to the absolute will of the power which enacted it.
Cengress had enacted that the crime of murder
mtted in this Indian Territory north of hirtysix de-
grees thirty minutes, by any white man, should
forever be punishable with DEATH would seem TO me an
insufficient objection to an Indictment found while It
was Territory that future day States might
exist there and so the law invalid because by its
TERMS it was to continue in force forever Such an OBJ
lection rests upon of the province and
power Of courts respecting the consutonality 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 de-
clare that the Constitution and not the law governs the
case before them for Judgment. If the law include
case save those for which the Constitution has furnished
different rale which the Legislature has the
power to govern, then the law have operation If
1t includes which the Legislature has power to
govern and concerning which the Constitution does not
prescribe different rule, the law governs those cases.
though it may in its terms attempt include Others
which 1t cannot operate. In other words, this
cannot declare void act of Congress which constu
tionaly embraces cases. though other cases. within
Its TERMS are beyend the control of Congress- beyond
the reach of that particular law If therefore Congress
had power to make law excluding slavery from this
territory while under the exclusive of the United
States the use word forever does not invadate
the law so long Congress has the exclusive legislative
power in the territory.
But is further insisted that the treaty of 1903 be-
the United States and France by which this terri
tory was acquired has restrained the constitutional
powers of Congress that by law prohibit the
introduction of slavery into that part of this territory
north and west Of Missouri and north of thirysx de-
grees thirty minutes north latitude.
By a treaty with foreign nation the United States
may rghtfully stipuate that the Congress will or will
not exercise its legislative powerin particular
ner on some particular subject Such promises when
made should be voluntarily kept with the most scrupu
ous good faith but that treaty with foreign nation
can deprive the Congress of any part of the legislative
power conferred by the people, that it longer
egslae it empowered by the Constitution do
more than doubt
The powers of the Government do and must remain
unlmpared. The responsibility of the Government to
foreign nation for the exercise of those powers quite
another matter. That responsibility is be met and
justified to the foreign nation according the require
ments of the rules of public law but upon the
assumption that the United States had parted with
restricted any power of acting according its free
will governed solely by its appreciation of its duty
The second section of the fourth article is
This Constitution, and the laws of the United States
which shall be made in pursuance thereof and all
ted States, shall be the supreme law Of the land
This has made treaties part of municipal law but
it has not assigned to them any particular degree of
thory nor declared that laws enacted shall be ire
pealable No supremacy is assigned to treaties
of Congress That they not perpetual and must be
in some way repealable, all will agree.
If the President and the Senate alone possess power
to repeal or modify law found y treaty, inasmuch
they can change abrogate treaty only by making
another inconsistent with the first the Government of
the United States could not at all to that effect with
out the consent of some foreign Government. do not
consider. / am not it has been considered
that the Constitution has placed country in this help
less condition The action of Congress in repeating the
treaties with France by the act of July 7th, 1885, Il
Stat at Large 578) was in conformity with these views
In the case of Taylor ct al Morton, (2Curs's Cir
CT r. 454 had occasion consider this subject and
adhere to the views there expressed.
IT, therefore, it admitted that the treaty between
the united states and france did contain express
stipulation that the United States would not exclude
slavery from much of the ceded territory as is now in
question: this could declare that of Con-
gress excluding void by force of the treaty Whe
ther existed sufficient justify refusal to
execute such stipulation would not be judicial but
political and legislative question: wholly beyond the
thoriy of this court to try and determine 1t would be-
long to diplomacy and legislation, and the admin
istration of existing laws Such stipulation in treaty
to legislae not to legislate in particular way has
been repeatedly held in this address itself the
political or the legislative power by whose action there
on this court is bound. (Fester Ncoson, Peters,
314; Garcia es. Lee, II Peters 5l91
But, in my Judgment this treaty contains no stipu
latlon in any manner affecting the action of the United
States respecting the territory in question Before
amining the language of the treaty it is material bear
In mind that the part of the ceded territory lying north
OF thlrty-s degrees thirty minutes and and north
Of the present State of Missouri then wilderness
unnhabed save by savages whose possessory title had
not then been extinguished.
1t Is impossible for me to conceive what ground
France could have advanced claim. could have de-
sired to advance claim restrain the United States
from making any rules and regulations respecting this
territory which the United States think fit make
and still less can conceive of any reason which could
have induced the United States to yield to such claim
Ii was to be expected that France would desire make
the change of sovereignty aud jurisdiction little bur-
densome as possible to the then inhabitants of louisiana
tect their property and persons and them and
their poseriy their religious and political rights and
the United States, just Government, might readily
accede to all proper sfpuations respecting those who
were about to have their allegiance transferred But
what interest France could have in uninhabted territory
which, in the language of the treaty be trans
ferred forever and in full sovereignty the United
States or how the United States could allow
foreign nation to interfere in its purely internal affairs
in which that foreign nation had whatever is