Page:A legal review of the case of Dred Scott, as decided by the Supreme Court of the United States.djvu/36

 should be more restricted than if it had been expressly granted.

Mr. Justice Catron expressly admits the general power of congress, saying: "More than sixty years have passed away since congress has exercised power to govern the Territories, by its legislation directly, or by territorial charters subject to repeal at all times; and it is now too late to call that power into question, if this court could disregard its own decisions, which it cannot do, as I think." "It is asking much of a judge who has for nearly twenty years been exercising jurisdiction from the Western Missouri line to the Rocky Mountains, and, on this understanding of the Constitution, inflicting the extreme penalty of death for crimes committed where the direct legislation of congress was the only rule, to argue that he had all the while been acting in mistake and as an usurper." p. 523. But he has a view peculiar to himself in respect to this particular Territory, namely, that a prohibition of slavery there is contrary to the treaty of 1803, which, after providing, in the clause we have already quoted, for the admission of the inhabitants into the Union as citizens, stipulates that "in the meantime they shall be maintained and protected in the free enjoyment of their liberty, property, and the religion they profess." To this there are many answers. First, It does not restrain congress from prohibiting the admission of a particular kind of property, for reasons of public policy, into one part of the Territory. Secondly, This provision addresses itself to congress exclusively; for a contract, made by the political department of the government with a foreign nation, can be enforced only by the nation with which it is made, and not by the judiciary department of the government which makes the contract. Foster v. Neilson, 2 Peters, 253; Garcia v. Lee, 12 Peters, 511; Taylor v. Morton, 2 Curtis, C. C. 454. Thirdly, The treaty protected the property of the inhabitants only until their admission into the Union, and all who were slaveholding inhabitants of the Territory at that time have since been so admitted in the States of Louisiana, Arkansas, and Missouri; and thereby this stipulation ceased to have any effect. New Orleans v. De Armas, 9 Peters, 235. And if there were any inhabitants not so admitted, the act, even if inoperative against them, would be valid as to all other persons.

Nearly all the judges who think that congress has no power to prohibit slavery in the Territories rely, more or less distinctly, upon an argument brought forward by Mr.