If the Constitution prescribe one rule, and the law another and

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.

Report of the Decision of the Supreme Court of the United States, and the Opinions of the Judges Thereof, in the Case of Dred Scott versus John F. A. Sandford December Term, 1856. · 第 26 / 26 段