scattered to the four quarters of the globe, before the time arrives for the court to assemble. His life even, before a term could be held, might be taken away, under the direction of an act in palpable violation of the supreme law, and yet it is his duty, if this doctrine be correct, to yield up the sacrifice. Obedience to the law until set aside by the court, is the dogma. Such a position I apprehend, is utterly indefensible upon any sound view of law or upon any principle of common sense. Where there is no right on the part of a legislature to pass a law, there can 'exist no duty on the citizen's part to observe it-otherwise he is bound to respect usurpation. The authorities to sustain these positions, if any are necessary in a case so palpable to the reason, are numerous and most explicit. In the case of Charles River Bridge vs. Warren Bridge, 7 Pick. Rep. 444-Morton, judge,

says:

"Legislators act by delegated authority, and only as the agents of the people. The constitution contains the grant of their power; if they exercise any not contained in this instrument, it is usurpation. Any such acts are void for the want of authority to make or pass them."

Again, on page 458-9, he says:

"The supreme law of the land expressly and peremptorily interdicts the Legislatures of the several States, from passing any law impairing the obligation of contracts. Any legislative act, assuming the form of law, having this effect, is a nullity and a blank upon the statute book."

And further on in the same case he observes, in respect to the act then under discussion:

"Upon its constitutionality we are bound to decide. If it clearly contravenes any constitutional provision, our duty is plain; the act is a nullity."

In the case of Kimberly vs. Ely, whieh arose in Massachusetts, Parker, chief justice, remarks:

"It has been urged that the proceeding are not void, but voidable, and, therefore, may become valid by the consent or ratification of the party whose interests are affected. But an act of the legislature, which it has no constitutional right or power to pass, is a nullity, and all proceedings under it are void."

In 3d McLean's Reports, page 107, it is laid down that an unconstitutional law can afford a justification to no one. In the case of Rice vs. Foster, 4th Harrington Reports, page 603, Judge Harrington, in speaking of an act of the legislature obnoxious to the constitution, says: "The delegation of such power is unauthorized and invalid, and the execution of it is not an act of legislation, but of usurpation, which the citizen is not obliged, and the other departments of government are not at liberty to obey." In the same case, page 506, the Chancellor of Maryland observes : "In like manner, the action of the legislative powers when exercised in order to produce a valid law, must be in accordance with the mode of action prescribed in the constitution, otherwise the result cannot be pursuant to the agreement as contained in the social compact, and therefore not obligatory on the citizen." In the case of Baily vs. Railroad company, Harr., page 414-Houston, judge, says: "No one will contend, I presume, that if the legislature should pass an unconstitutional act, the people of the State would be bound to obey it." The case of Prigg vs. the Commonwealth of Pennsylvania, 16th Peters' S. Court Rep., U. S., page 539, bears with direct application on this matter. After an attentive examination of that

4th

case, I cannot conceive how any further room is left to doubt as to the matter in question. The supremacy of the tribunal that decided it joined to the exalted character of the judges, and the profound consideration given to the case by the court, entitles its doctrines to instant and cordial acquiescence. The case was thus: Prigg, a citizen of Maryland, was indicted in a criminal court in Pennsylvania for having forcibly taken and carried away from that State, contrary to the statutes of Pennsylvania, a negro slave who had escaped from Maryland, and who, by the laws of Maryland, belonged to a citizen of Maryland, who had duly appointed Prigg agent to recover the slave. The acts and doings of Prigg were in plain open violation of the statutes of Per.nsylvania; but he utterly disregarded them on the ground that they conflicted with the constitution of the United States. The State courts gave judgment against Prigg, and he carried the matter to the supreme court of the United States for review. That august tribunal after most thorough searching and eloquent arguments of distinguished counsel, unanimously reversed the judgment of the State courts, and thus in effect decided that Priggs' open disobedience and disregard of a plain statute of the Pennsylvania legislature was right and legal, because the statute was void. Chief Justice Taney, in that case, in speaking of the right of the master to arrest his fugitive slave, remarks: "He has a right peaceably to take possession of him and carry him away, without any certificate or warrant from the judge of the district or circuit court of the United States; and whoever resists or obstruets him, is a wrong doer, and" (mark the words,) "every State law which proposes directly or indirectly to authorize such resistance or obstruction, is null and void, and affords no justification to the individual or officer of the State who acts under it."

Judge McLean, in the opinion given by him in the case, observes: "If the master may lawfully seize and remove the fugitive out of the State where he may be found, without an exhibition of his claim, he may lawfully resist any force, physical or legal, which the State or citizens of the State may interpose. To hold that he must exhibit his claim in case of resistance is to abandon the ground assumed. He is engaged, it is said, in the lawful prosecution of a constitutional right. All resistance, then, by whomsoever made or in whatsoever form, must be illegal. Under such circumstances, the master needs no proof of his claim; though he might stand in need of additional physical power, he has only to collect a sufficient force to put down all resistance, and attain his object. Having done this, he not only stands acquitted and justified, but he has recourse for any injury he may have received in overcoming the resistance. If this be a constitutional remedy, it may not always be a peaceful one. But if it be a rightful remedy, that it may be carried to this extent no one can deny." Again, in speaking of the master's claim, he says: "His right is guaranteed by the constitution, and the most summary means for its enforcement is found in the act of Congress, and neither the State nor its citizens can obstruct the prosecution of the right."

Now two reflections may be made upon this case. If Prigg was justified in disregarding an unconstitutional statute of Pennsylvania, the justification would extend to all the citizens of the State if they had disregarded it. There existed, then, no duty on the part of any citizen to respect the act. Second, if the State legislature obstructs or interferes with a right given by the superior law, and the citizen may or should utterly disregard their action, then if the subordinate body attempts to exercise powers

which are denied to it by the paramount law, it is equally the privilege and duty of every one to give to their illegal doings no countenance nor respect. Apply these principles to the case in hand, and they seem to me decisive of the question.

But again it has been said that inasmuch as the Legislative Assembly had the right to act upon the subject matter of the act, it is to be presumed good; and that it is the duty of the court to go to Salem, and there if it be vicious, pronounce it bad. It is true that we are not to suppose, without clear evidence to the contrary, that the legislature has transgressed its powers] We are to presume everything in favor of the correctness of its acts; but if, upon comparison of its doings with the law under which it derives its powers, we discover a failure to conform to the will of its superior, it is the duty of the court to declare the mandate of the law. Now, how are we to ascertain that the Legislative Assembly had jurisdiction over the subject matter? We shall be answered by an examination of the act of Congress. But does not the same act of Congress require every law to embrace but one object, and that to be expressed in the title? It will thus be seen that whilst we are looking for the source of the assembly's power to legislate, we at the same time discover a provision that kills the act. The assembly has no more right to pass a law that embraces more than one object, than it has to legislate upon a subject on which it is forbidden to act. Two things are required to be observed in all legislation by the assembly: first, it must have power over the subject matter; second, each act must embrace but one object, and that must be expressed in the title. Disregard of either of these rules renders its doings null and void.

But if the court shall go to Salem, and there, as a court, decide that Salem was not the seat of government, it would in effect convict itself of a violation of the law-and even if it was not unlawful for it to do so, what good purpose could it serve if it should proceed there? It would be a mere piece of useless formality, and the law never requires an idle ceremony.

It has been alleged that unless the court meets at Salem and there decides upon the question, its decision given elsewhere can have no force, for the reason that it would be simply an opinion of individuals holding, it is true, official stations, but not being assembled pursuant to law, it cannot be considered as a judgment of the court. This is a petito principi. But if the judges should go to Salem, and there decide upon the question, and the decision should be against the law, would not the decision be that of individuals, and not of the court? because, by their own declarations, they were not sitting at the place prescribed by law. The question as to the proper place to pass upon the act of assembly, is as much a judicial question as that of the validity or invalidity of the act itself. And when a sufficient number of the judges constituting the court are convened together at the proper time and at what they deem the proper place for holding a term, and proceed to do business as a court, the question is by necessary implication decided, and must be regarded as settled until their doings are pronounced erroneous by the tribunal having the power to review them.

But we are told that as a matter of expediency, as an indication of respect to one of the co-ordinate departments of the government, we ought in the first place to go to Salem, even if the act of the assembly contravenes the law of Congress. I entertain as sincere a respect for the assembly as any other individual. I regret the necessity which calls in question any of its proceedings. But if respect is due any where, it is first due to Congress.

When its will is made known to us, we should yield to it every deference and obedience, in preference to any act of the territorial legislature that may be in conflict with it. We cannot serve two opposing masters. Whilst proper deference is to be shown to every one in matters of this kind, mere complements are out of the question. Courts are not to sacrifice duty to etiquette. They are bound to follow the law and not expediency. A judge would be unworthy of his place on the bench, if he should suffer any notions of false politeness, or temporary expediency to bend his opinions, or to influence his conduct from the straight line of duty. And who is there so vain as to suppose that the present assembly is weak enough to be flattered by a compliment so hollow as that proposed to be paid by the body that framed this act? Will it be better satisfied to have the law pronounced invalid at Salem rather than at Oregon city? Is there any magic in the place where such opinion shall be given? If any of its acts are to be declared void by judicial determination, I entertain too high an opinion of the good sense of the members of that body to suppose that the effect of the judgment of the court is to be rendered less unpalatable to them by reason of the locality where it is pronounced. I for one will never demean them so far as to suppose they are to be "pleased with a rattle, and tickled with a straw."

I have thus freely expressed my views on this question, not because it involves in my judgment any serious difficulty, but because the principle at stake is one of high importance. It is perhaps well that the discussion of it has taken place at this period in the history of this young nation. We cannot expect that men will be wholly influenced by their local interests and feelings: but I cannot but think that in a matter affecting so deeply the character and interests of the Territory, there will be found enough of good sense and patriotism pervading all the citizens of this Territory, wheth er in public or private station, to uphold with a steady hand, regardless of all minor considerations, the law of the land, as settled by the authoritative tribunal. The objections made must be overruled.

i

1st Session.

No. 105.

REDUCTION OF ESTIMATES-WAR DEPARTMENT.

LETTER

FROM THE

SECRETARY OF THE TREASURY,

TRANSMITTING

A letter from the Secretary of War, suggesting a reduction in the esti-. mates submitted heretofore for that department.

MAY 3, 1852.

Referred to the Committee of Ways and Means, and ordered to be printed.

TREASURY DEPARTMENT,

April 27, 1852. Sig: I have the honor to transmit, herewith, a communication from the Secretary of War, of the 24th instant, wherein he states that the estimates for the War Department, submitted at the commencement of the present session of Congress, may be reduced, in certain particulars, $525,522 52. I am, very respectfully, your obedient servant,

Hon. LINN BOYD,

THO. CORWIN, Secretary of the Treasury.

Speaker of the House of Representatives.

WAR DEPARTMENT,

Washington, April 24, 1852.

SPR: On reviewing the estimates of this department for the fiscal year ending June 30, 1853, which were prepared at the usual time, (early in November) and sent to Congress at the commencement of the present session, I find that the following named items may be reduced by the amounts respectively opposite them, viz:

Pay of the army-

Pay of officers, cadets, &c., Military Academy-

Expenses of recruiting-

Ordnance service

Arsenals --

Ordnance, ordnance stores, and supplies - -