different rule, it is the duty of courts to declare that the
Constitution, 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 a different rule, or no case which the
Legislature has the power to govern, then the law can have no
operation. If it includes cases which the Legislature has power to
govern, and concerning which the Constitution does not prescribe a
different rule, the law governs those 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
constitutionally embraces some cases, though other cases, within its
terms, are beyond the control of Congress, or beyond the reach of that
particular law. If, therefore, Congress had power to make a law
excluding slavery from this territory while under the exclusive power
of the United States, the use of the word "forever" does not
invalidate the law, so long as Congress has the exclusive legislative
power in the territory.
But it is further insisted that the treaty of 1803, between the United
States and France, by which this territory was acquired, has so
restrained the constitutional powers of Congress, that it cannot, by
law, prohibit the introduction of slavery into that part of this
territory north and west of Missouri, and north of thirty-six degrees
thirty minutes north latitude.
By a treaty with a foreign nation, the United States may rightfully
stipulate that the Congress 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 a treaty with a foreign nation can
deprive the Congress of any part of the legislative power conferred by
the people, so that it no longer can legislate as it was empowered by
the Constitution to do, I more than doubt.
The powers of the Government do and must remain unimpaired. The
responsibility of the Government to a foreign nation, for the exercise
of those powers, is quite another matter. That responsibility is to be
met, and justified to the foreign nation, according to the
requirements of the rules of public law; but never upon the assumption
that the United States had parted with or restricted any power of
acting according to its own free will, governed solely by its own
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 treaties made or which shall be made under the
authority of the United States, shall be the supreme law of the land."
This has made treaties part of our municipal law; but it has not
assigned to them any particular degree of authority, nor declared that
laws so enacted shall be irrepealable. No supremacy is assigned to
treaties over acts of Congress. That they are not perpetual, and must
be in some way repealable, all will agree.
If the President and the Senate alone possess the power to repeal or
modify a law found in a treaty, inasmuch as they can change or
abrogate one 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 foreign Government. I do not
consider, I am not aware it has ever been considered, that the
Constitution has placed our country in this helpless condition. The
action of Congress in repealing the treaties with France by the act of
July 7th, 1798, (1 Stat. at Large, 578,) was in conformity with these
views. In the case of Taylor et al. _v._ Morton, (2 Curtis's Cir. Ct.
R., 454,) I had occasion to consider this subject, and I adhere to
the views there expressed.
If, 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 question, this court could not declare that an act of
Congress excluding it was void by force of the treaty. Whether or no a
case existed sufficient to justify a refusal to execute such a
stipulation, would not be a judicial, but a political and legislative
question, wholly beyond the authority of this court to try and
determine. It would belong to diplomacy and legislation, and not to
the administration of existing laws. Such a stipulation in a treaty,
to legislate or not to legislate in a particular 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 _v._ Nicolson, 2 Peters, 314; Garcia _v._ Lee, 12 Peters,
519.)
But, in my judgment, this treaty contains no stipulation in any manner
affecting the action of the 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 ceded territory lying north of
thirty-six degrees thirty minutes, and west and north of the present
State of Missouri, was then a wilderness, uninhabited save by savages,
whose possessory title had not then been extinguished.
It is impossible for me to conceive on what ground France could have
advanced a claim, or could have desired to advance a claim, to
restrain the United States from making any rules and regulations
respecting this territory, which the United States might think fit to
make; and still less can I conceive of any reason which would have
induced the United States to yield to such a claim. It was to be
expected that France would desire to make the change of sovereignty
and jurisdiction as little burdensome as possible to the then
inhabitants of Louisiana, and might well exhibit even an anxious
solicitude to protect their property and persons, and secure to them
and their posterity their religious and political rights; and the
United States, as a just Government, might readily accede to all
proper stipulations respecting those who were about to have their
allegiance transferred. But what interest France could have in
uninhabited territory, which, in the language of the treaty, was to be
transferred "forever, and in full sovereignty," to the United States,
or how the United States could consent to allow a foreign nation to
interfere in its purely internal affairs, in which that foreign nation
had no concern whatever, is difficult for me to conjecture. In my
judgment, this treaty contains nothing of the kind.
The third article is supposed to have a bearing on the question. It is
as follows: "The inhabitants of the ceded territory shall be
incorporated in the Union of the United States, and admitted as soon
as possible, according to the principles of the Federal Constitution,
to the enjoyment of all the rights, advantages, and immunities, of
citizens of the United States; and in the mean time they shall be
maintained and protected in the enjoyment of their liberty, property,
and the religion they profess."
There are two views of this article, each of which, I think,
decisively shows that it was not intended to restrain the Congress
from excluding slavery from that part of the ceded territory then
uninhabited. The first is, that, manifestly, its sole object was to
protect individual rights of the then inhabitants of the territory.
They are to be "maintained and protected in the free enjoyment of
their liberty, 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 exist before or at the time the treaty was
made. The French and Spanish Governments while they held the country,
as well as the United States when they acquired it, always exercised
the undoubted right of excluding inhabitants from the Indian country,
and of determining 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 reference to their
use of that property, where they had no right, under the treaty, to go
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
property then owned by him, consisting of fire-arms, ammunition, and
spirits, and had gone into the Indian country north of thirty-six
degrees thirty minutes, to sell them to the Indians, all must agree
the third article of the treaty would not have protected him from
indictment under the act of Congress of March 30, 1802, (2 Stat. at
Large, 139,) adopted and extended to this territory by the act of
March 26, 1804, (2 Stat. at Large, 283.)
Besides, whatever rights were secured were individual rights. If
Congress should pass any law which violated such rights of any
individual, and those rights were of such a character as not to be
within the lawful control of Congress under the Constitution, that
individual could complain, and the act of Congress, as to such rights
of his, would be inoperative; but it would be valid and operative as
to all other persons, whose individual rights did not come under the
protection of the treaty. And inasmuch as it does not appear that any
inhabitant of Louisiana, whose rights were secured by treaty, had been
injured, it would be wholly inadmissible for this court to assume,
first, that one or more such cases may have existed; and, second, that
if any did exist, the entire law was void--not only as to those cases,
if any, in which it could not rightfully operate, but as to all
others, wholly unconnected with the treaty, in which such law could
rightfully operate.
But it is quite unnecessary, in my opinion, to pursue this inquiry
further, because it clearly appears from the language of the article,
and it has been decided by this court, that the stipulation was
temporary, and ceased to have any effect when the then inhabitants of
the Territory of Louisiana, in whose behalf the stipulation was made,
were incorporated into the Union.
In the cases of New Orleans _v._ De Armas et al., (9 Peters, 223,) the
question was, whether a title to property, which existed at the date
of the treaty, continued to be protected by the treaty after the State
of Louisiana was admitted to the Union. The third article of the
treaty was relied on. Mr. Chief Justice Marshall said: "This article
obviously contemplates two objects. One, that Louisiana shall be
admitted into the Union as soon as possible, on an equal footing with
the other States; and the other, that, till such admission, the
inhabitants of the ceded territory shall be protected in the free
enjoyment of their liberty, property, and religion. Had any one of
these rights been violated while these stipulations continued in
force, the individual supposing himself to be injured might have
brought his case into this court, under the twenty-fifth section of
the judicial act. But this stipulation ceased to operate when
Louisiana became a member of the Union, and its inhabitants were
'admitted to the enjoyment of all the rights, advantages, and
immunities, of citizens of the United States.'"
The cases of Chouteau _v._ Marguerita, (12 Peters, 507,) and Permoli
_v._ New Orleans, (3 How., 589,) are in conformity with this view of
the treaty.
To convert this temporary stipulation of the treaty, in behalf of
French subjects who then inhabited a small portion of Louisiana, into
a permanent restriction upon the power of Congress to regulate
territory then uninhabited, and to assert that it not only restrains
Congress from affecting the rights of property of the then
inhabitants, but enabled them and all other citizens of the United
States to go into any part of the ceded territory with their slaves,
and hold them there, is a construction of this treaty so opposed to
its natural meaning, and so far beyond its subject-matter and the
evident design of the parties, that I cannot assent to it. In my
opinion, this treaty has no bearing on the present question.
For these reasons, I am of opinion that so much of the several acts of
Congress as prohibited slavery and involuntary servitude within that
part of the Territory of Wisconsin lying north of thirty-six degrees
thirty minutes north latitude, and west of the river Mississippi, were
constitutional and valid laws.
I have expressed my opinion, and the reasons therefor, at far greater
length than I could have wished, upon the different questions on which
I have found it necessary to pass, to arrive at a judgment on the case
at bar. These questions are numerous, and the grave importance of some
of them required me to exhibit fully the grounds of my opinion. I have
touched no question which, in the view I have taken, it was not
absolutely necessary for me to pass upon, to ascertain whether the
judgment of the Circuit Court should stand or be reversed. I have
avoided no question on which the validity of that judgment depends. To
have done either more or less, would have been inconsistent with my
views of my duty.
In my opinion, the judgment of the Circuit Court should be reversed,
and the cause remanded for a new trial.