Permoli v. Municipality No. 1 of New Orleans

This court has not jurisdiction, under the 25th section of the Judiciary-Act; of ¿ .question whether an ordinance of the corporate authorities of New Orleans does or does not impair religious'liberty. The Constitution, of the United States makes-no provision for protecting the • citizens bf-.the respective states-in their religious liberties; this is, left to the state constitutions and laws. • - ’ . The act of February 20th, :-1811j authorizing the people of the territory of - . Orleans to form a-constitution,and state government, contained, in the third section thereof, two provisoes; one in the nature of instructions how tpe constitution was to be formed, and the other, reserving to the United States the property in the public lands, their exemption from state taxation, and the - common right to-navigate the' iflississippi. The first of these provisoes was fully satisfied by the act of 1812, admitting Louisiana into the union, “on an equal.footing with the original states.” The conditions and terms refen-ed to id-.the act of admission referred solely to the second proviso, involving rights of property and navigation. The act of . 1805, chap.'83, extending to the'inhabitants of the Orleans territory the rights, privileges and advantages secured to the North Western territory by the ordinance of 1787, had ho further force after the adoption of the state constitution. of Louisiana,-than other acts- of Congress, organizing the territorial government,-and standing in connection with the ordinance. They are none of them'in force unless'they-were adopted by the state constitution.

- This case .was.brought up by writ of error, under the 25th section of the Judiciary Act, from the City Court of New Orleans,.the highest appellate; court in th^ state, to which the quéstion could be carried. In JL84-2, the. defendants in error passed the following ordinance . , “Municipality No. 1 of the City of New Orleans. “ Sitting of Monday, October 31st, 1842.- — Resolved, that from and after the promulgation .of the present ordinance* it shall be unlawful to carry to, and expose in, any of the Catholic churches of this municipality, any corpse, under , the penalty of a fine of fifty dollars, to be recovered for the use of this municipality, against any person who may have carried into or exposed in-any of the aforesaid cfiurches any corpse, and under penalty of a similar fine of fifty dol-. lars against any priest who may celebrate any funeral at any of the aforesaid churches; and that all the corpses shall be brought to. the obituary chapel, situated in Rampart street, wherein all funeral rites. shall be performed as heretofore. Signed,' Pato Bíertos, Recorder. Approved, November 3d. Signed', - . D. Prieto,-Mayor.” ' And a few days afterwards, the following “ Sitting of November 7th, 1842.- — Resolved, that the. resolution passed on the 31st October last, concerning the exposition of. corpses in the Catholic.churches, he so amended as to annul in said resolution the imp imposed against all persons who should transport and: expose, or cause to be transported or exposed,, any corpses in said churches.' “ Be it further resolved, .that the said fine shall be imposed on any pfiest who shall dfficiate at any funerals made in any other church than the obituary chapel. Signed, Paul Bertus, Recorder. Approved, November 9th. Signed, D. Prieto,Mayor.” • . On the 11th of November, 1842, the municipality issued the following warrant against Pérmoli, a Catholic priest. “Municipality No. rv »• b Bernard Pérmoli. j ; “ Plaintiff demands of defendant fifty dollars fine, for having, on tlié 9th November, 1842, officiated on the body of Mr. .Louis Le Roy, in the church St. Augustin, in contravention of an ordinance passed on the 31st of October last;” To which the following answer was filed: “ The answer of the Reverend B. Permóli, residing at New'Orleans, to the complaint of Municipality No. 1.. “ This respondent, for answer,’ -says: true it is that the corpse of Mr. Louis Le Roy, deceased, was brought (enclosed in a coffin) in the Roman Catholic church of St. Augustin, and there exposed; arid that when there thus exposed, this respondent, as stated-in the complaint, officiated on it, by blessing it, by reciting on it all the other funeral prayers and solemnity, all the usual funeral ceremonies prescribed by the rites of the Roman Catholic, religion, of winch this respondent -is a priest. That in this act he was assisted by two other priests, and by the chanters or singers of the said church. “ This respondent avers, that in so doing be was warranted by the Constitution and laws of' the United States, which, prevent, the. enactment of any law ,prohibiting the free exercise of any religion. He contends that the ordinance on which the complainants rely is null and void,-being contrary to-the provisions of the act of incorporation of the c.ity of'New Orleans, and to those of the Constitution and laws of the United States) as above recited. “ This respondent therefore prays to be hence.dismissed with costs.Signed, D. Seghers, of counsel.” , The judge, before whom the case was tried, decided that the ordinance was illegal,, and not supported by any of the acts of the legislature incorporating the city of New Orleans. But the case being carried up by appeal to the City. Court, the decision was reversed, and judgment entered in favour of 'Municipality No. 1 againstPer-jrioli,,for fifty dollars and . costs. ■ The judge of the City Court, before deciding the case, made the following remarks, which it-may hot be inappropriate to transcribe. “ Before entering into a statement .of the case, as it appeared on the trial before this court, I consider.it necessary to give a mere outline of the circumstances which induced the Council of the First .’Municipality to pass the ordinances of .the 31st of October and 7th of November,. 1842. “By an ordinance of the corporation of the city of New Orleans, approved 26th September, 1827,,and' entitled £ An ordinance supplementary to an ordinance concerning0 public health,’ it was e Resolved, that from, and after the first of November next, (1827,) it shall.mot be lawful to convey and expose into the-parochial church of St. Louis any dead person-, under, penalty of a> fine, of’fifty-dollars, to b| recovered" for the use of the. corporation, against any person Who should háyé conveyed or exposed a.ny dead person into the aforesaid church; and also under penalty of a similar fine of fifty dollars, against all priests-who should minister, to the celebration of any funeral id said church; and that from the first of November of the present year, (.1827,) all .dead persons shall.be conveyed into the obituary chapel in Rampart .street, where the funeral rites may be performed in the Usual manner.’ ‘‘ This ordinance continued in force'during'a-period of fifteen years, without any opposition on-the part of the Catholic Clergy or population; but in the year-1842, the late lamented.and venerable revered Abbé Moni, curate of the parish of St Louis, having departed this life, some misunderstanding took place between his successor and the . church-wardens.' The new curate and assistant clergy abandoned the cathedral, and commenced to celebrate funeral ceremonies in other churches than the obituary chapel, this chapel being under the administration of the said wardens. The council thereupon passed the ordinances, for the violation of which the defendant is'sued. “ The case was presented here on-the same pleadings as in the court below, but the plaintiff’s counsel introduced evidence to prove, several facts-;, this evidence-was in substance as follows: . “.The Right Reverend A. Blanc, Bishop of New Orleans, testified that the dogmas of the Roman Catholic religion did not require that the dead should be brought to a church, in order that the funeral ceremonies should be performed over them; that this was a matter of discipline only;' that the witness, as-bishop of this diocese, had authorized the clergy to leave the cathedral, and not to officiate at funeral rites at the obituary' chapel, and that these ceremonies might be celebrated at the house where the dead person expired; or at any other place designated by the bishop. “.The Reverend C. Maenhant, curate of the parish of St. Louis, testified, that he was the curate of said parish, and in that capacity he had given orders for no funeral service to be said at the obituary chapel; that, from the' situation of the clergy with regard to the wardens, these funeral services could not, with propriety, be performed at said chapel; that he had been several times applied to, by persons who wished these ceremonies celebrated- over the dead bodies of their friends or relatives'at the obituary chapel, but he had replied that, under present, circumstances, these ceremonies would not be performed at that place, but at the chapel of St. Augustin, or in the house where the deceased person was lying, at the choice of the relatives. “ Cross-examined. — This witness testified, that the St. Augustin chapel .was, in his. opinion, ás conveniently situated for these purposes as the obituary chapel; that, in the funeral office, there is nothing calculated to disturb the public peace, nothing contrary to inorals, and that the greatest decency is always observed in these mortuary rites. . “ The Reverend Jacques Lesne testified, that he is the priest employed as chaplain at the obituary chapel; that he is entitled to no remuneration, besides what he receives from the church-wardens, for attending at the chapel, to bless the bodies of the dead which are brought there; that he does not celebrate funeral obsequieswith that pomp which is given to them in special cases, but he continues, with the permission of the bishop, to read the office of the dead, whenever required, at the obituary chapel, as he -did previous to the departurijof the clergy from thé cathedral; that he is not permitted to leave the chapel to accompany funerals to the cemetery. “ Cross-examined. — He said, there is nothing immoral or contrary to the public tranquillity in the prayers which' are said at funerals. “ Messrs.' José Fernandez, Bernard Turpin, Anthony Fernandez, and Joseph Génois, proved that, for fifteen years pást, the funeral service has been- performed at the obituary chapel, only that this - chapel is the best situated for this puip'ose, and that nothing disorderly ever occurred there:' “Mr. A. Fernandez,/'Cross-examined, added that he had never known of the occurrence of any disturbance of- the public peáce, during the ceremonies at the St. Augustin chapel, but he had heard a great deal of - complaint about it; and that, being a native of New Orleans, and having almost constantly resided here, he has never seen or heard of the performance of-.funeral rites at,any of the Protestant churches, “ The Honourable Paul Bertus, recorder of Municipality No. 1, proved, that having had the misfortune to lose his sister-in-law, he desired that the funeral solemnities jhould have-been celebrated at the-obituary chapel; but that the clergy had left him no choice but between the St. Augustin chapel and the mortuary house, and that he determined upon the latter plgce. “The following resolutions, passed by the church-wardens of the parish of St. Louis, were next introduced: “ ‘Sitting.of Friday, 11th November,. 1842. — Resolved, that-the' obituary chapel shall be open for the reception of the remains of all - deceased Catholics: . Resolved, that all -persons who desire to have dead bodies exposed in funeral state, at the said chapel, are requested to give notice to the secretary of the wardens, in order that he may cause the necessary preparations to be made. “ ‘ Resolved, that the public be informed that the Reverend Abbé Lesne shall continue to bless all bodies of dead persons brought to' the obituary chapel, and that he will continue to say the usual funeral prayers at said chapel.’ “ A correspondence between the mayor and the curate was also introduced, by consent of parties; but the court, considering this evidence as having no legal effect upon the case, contents itself merely with the mention of its introduction. “Henry St. Paul, Esq., (one of defendant’s counsel,) testified, that at Lexington, Kentucky, he- saw the body of a deceased person taken into the Methodist Episcopal church, where a funeral oration was pronounced -for the'.-occasion by the Reverend Maffit, a minister of that persuasion, and that said oration was followed by prayers. “Finally, the testimony of Mr. P. E. Crozat proved, that one of his friendg having departed this life, and having-been warned by Mr. Rufino Fernandez of the existence of the ordinance; he had nevertheless insisted that the body should be takeh to the St. Au-. gustin chapel for the funeral rites, holding himself responsible for the fine imposed, for his opinion was on the side of the clergy.” . The judge of the City Court then gave his opinion at large and decided, as has already been stated, in favour of Municipality No. 1, from which decision a1 writ pf error brought the case up to this court. ■ Read's argument was as follows: Three questions arise on this'record— 1. Is the cause before the court, in accordance with the requirements of the act of September 24th, 1789, sect. 25? 2. Have the court jurisdiction' over cases of infringement of the religious liberty of citizens of Louisiana, by the municipal authorities of that state ? . 3. Do the ordinances of November 3d and November 9th, recited in the. record, infringe the religious liberty of citizens of Louisiana ? 1. The-first question is settled affirmatively by a bare inspection of the feeord. - It fells within the very terms of the act. .'2. For an answer to the second question, we must go back, in the'first" place, to the “ordinance for the government of the territory of the United States north-west of -the river Ohio,” passed by Congress onihe 13th of July, a. d.: 1787 ; part of preamble and article 1st: “And for extending the fundamental principles of civil and religious liberty, which form the basis whereon these republics, their-laws, and,constitutions are erected; to fix and establish those principles as the basis of all laws, constitutions,.and governments, which for ever hereafter shall .be formed -in the said territory.it is hereby ordained and declared .... That the following articles shall be considered as articles of compact- between the original states and the péople and states in the said'territory, and for ever remain unalterable unless by common consent; to wit:' “'Art. 1st. No person demeaning himself-.in a peaceable and orderly manner shall ever be molested on account' of his mode of worship or religious sentiments, in the said territory.” This ordinance, so comprehensive, so.far-reaching, so simple, and sublime; established a new era for the millions who were destined to sWárm within the sphere of its benévolent operation. For them, we may say iri the words of the Roman poet, “ magnas ab integro Seeclorum nascitur-ordo /” Till then, the right of the civil power to control the religion of the state had always been practically asserted and recognised; if not by moralists and .theologians, at least by statesmen' and- jurists. Such has been the theory and practice of European governments, from the timeg when the emperors lighted the streets of Rome with blazing Christians, to the last liturgy forced on his Protestant subjects by the despot of Prussia. Even these American states, planted as they were by refugees from religious persecution, presented for generations any thing but a land of religious liberty. The government of the Puritans was the very opposite of tolerant; and if they spilled not 1he lives of their dissentient brethren as freely as others had done, if-was because they fled from before theiy face, into the wilderness. The government of Virginia was equally exclusive; and the land of the Calverts was peopled by exiles from both. Even Old Maryland, the primal seat of Christian freedom, has enfranchised- the Israelite within -our own brief memories. It was but yesterday that the Catholic was made eligible to- office in North' Carolina; and his continued exclusion from it disgraces'New Hampshire to-day. But the ordinance of 1787 drew a broad line of distinction between the thirteen original states, which, ' in conquering their independence, acced ed to all the known attributes of sovereignty, and the new ones r, with the 1st article of the ordinance of 1787, which says,- that “ no person demeaning himself in a peaceable ' and orderly manner, shall, eyer be molested on account'of his mode . of worship or religious sentiment's,” which has been also cited ? Or, with the 4th section of' the- act of’ Congress of March 26, 1804," which prohibits the Legislative-Council of the.Orleans territory from passing any law “which shall lay any person under restraint,, bur- ' den, .or disability, on account of his religious opinions, profession, ■ or worship; in all which he shall be free to maintain his own, and Apt burdened for those of another,” which has been also cited? . Or, with the act qf Congress of the 20th February, 1811, (also cited,)which provides that the constitution to.be formed by the people-of the Orleans territory, “ shall contain the fundamental principles of civil and religious liberty ?” Or, with the act of- Congress of .the 8th' April, 1812, admitting Louisiana as a staté, and providing-that the terms of admission contained in the 3d section of the act of 20th February, 1811, “shall be considered, deemed; and taken, as fun- ■ damental condition's and terms'upon which the said state is incorporated in the union?” Supposing these various provisions, relied on by the plaintiff in error, to have- not spent their force by the Operations of time, nor ■the change' of government, it is submitted, that there is nothing in -.these ordinances repugnant to either or any of them; for, if they be enforced evermore, they dcr not, and cannot, affect the religious sentiments or opinions, the worship or the liberty, of any. But the bishop says, further, that “these ceremonies might' be celebrated at the house where the dead person expired, Of at any'1 other place designated by the bishop.” . The • place, then, for the mortuary ceremonials not being sacramental, how-is the faith or conscience of Catholics assailed, by designating a few places in which they, could not be performed ? The essence of the*right consists in the thing that is to be done, and not'in the place of performance. If the thing itself were forbidden, then might have been drawn in question the power to forbid; coupled with the further inquiry, how far religious, as well as civil rights and privileges, may be constrained to give way to the public necessities and the common good? .3. The ordinances complained of were within-the competency of .the council of the First Municipality. ■ No express authority is needed to invest in a corporation a power of preservation of the public health. The law of necessity would constitute it an incident essential- to its existence. Vide Bacon’s Abridgment, tit. Corp. (D.) It is there laid down that “there are . some things incident' to a corporation — which it may do without any express provision in the act of incorporating — such are powers to make laws, for a body politic cannot be governed without laws.” ' And Chief Justice Holt says, (Carth. 482,) “That every by-law, by ■ which the benefit of the corporation is advanced, is >a good by-law ■ for that very reason, that being the true touch-stone of all by-laws.” So in matters (f corporate police. ■ 'In Com. Dig. 3, tit. By-law C, it is laid dowi., “ That a by-law to restrain-butchers, chandlers,' et al., from setting up in Cheapside, or such other eminent parts in the city of Lopdon, was good” — (not because a special power was conferred to enact it, but) — “because such trades were offensive* .and apt to create diseases; and that, therefore, for fear of infection, and for the sake of public decorum and conveniency, such kind of offensive trades might be removed to places of more restraint.” The validity of a similar by-law, made by the corporation of Exeter, was afterwards affirmed by Lord Mansfield. Sée Cowp. R. 269, 27°. “ Where a restraint appears to be of manifest benefit to the public, such is to be considered rather as a regulation than as a restraint.” Willes, 388 ; 1 Strange, 675 ; 2 Strange, 1085; 3 Burr. 1328* 1H. Black. 370; 1 Roll. Abr. 365 '; 3 Salk. 76; Sid. 284; 2 Kyd. on Corp. 149. In The Village of Buffalo v. Webster; 10 Wend.. 101, Chief Justice Savage puts this case ex gratia. “ A by-law that no .meat should be sold in the ■village would be • bad, being -a general restraint ; but that meat shall not be sold, except in a particular place, . is good, not being a restraint of the right to sell meat, but a regulation of that right.” In the case of The Commonwealth v. Abram Wolf, 3 Serg. & Rawle, 48, Chief Justice Tilghman affirmed the validity of an ordinance of Philadelphia, imposing a fine for working on a Sunday, against a Jew ;• though under the teachings of the Jewish Talmud and the Rabbinical' Constitutions, the Jew deemed. Saturday as the Jewish Sabbath, and felt it both as a'privilege and a duty to labour for six-days, and to rest on the seventh, or Saturday. In the case of the Máyor of New York v. Slack, 3 Wheeler, 248, el seq., the court affirmed the validity of an ordinance imposing penalties for burying the dead within three miles of the city limits, on the ground that the preservation of the public health was ah, incident of the corporate power. The opinion of the court is particularly referred to for the minuteness and learning with which it review's the whole power of city corporations -over matters of general police and sanitary regulation. To the same end reference is also made to the- ordinances of Boston,, pp. 53, 55, 76; of Nashville, p. 60; the Revised ordinances of Baltimore, (1838,) p. 285, for the act of assembly, conferring the power; and from ,p. 37 to 51, for the ordinances made under that authority; quarantine laws, &c. So far as the legislative power of Louisiana, both territorial and state, could confer the power to make the ordinances in question, that power has been amply conferred. The 6th section, of the act of the Í7th February, 1806, provides that “ the said council shall have the power to make and pass all.by-laws and ordinances for the better government of the affairs of the said corporation, for regulating the police, and preserving the peace an(l good prefer of the said cityso the act of the 14th March,, 1816, provides “ that the city council shall have power and authority to make and pass such bylaws and ordinances as they shall deem necessary to maintain the. cleanness and salubrity of the said city, &c. And to make any other regulations which may contribute to the better administration of the . affairs of the said corporation, as well as for the maintenance of the police, tranquillity, and safety of the said city. These acts were all in force at the time these ordinances were passed, and still areand also the '4th section of an.act of- the 8th of March, 1836, which provides that “ each of the municipalities, &c., shall possess generally .all such rights, .powers, and capacities as are usually incident to municipal corporations, &c., &c. The power conferred on the council, then, is ample enough to sanction these ordinances; but it is material to know* whether the delegating power could rightfully do what it has -thus done; and if it could not, whether it. is the province, or within the competency of this court to say so ? This brings us to the question: 4. Has this court jurisdiction in this case ? If it has, it does not derive it from the character of the parties, for they are all citizens of the same state; and not deriving it thence, the function of this court to administer state laws between certain classes of parties does not atfech. The questions raised hete, there-, fore, of the repugnancy of these ordinances to the laws of the state, or of the repugnancy of those laws to the state constitution, be such repugnancy what it may, it is most respectfully submittedj are mere municipal questions, upon which the judgment of the court, a quo, in the present conjuncture, is final and conclusive. If, indeed, there be a repugnancy between these ordinances and “ the constitution, treaties, or laws of the United States,” and their validity is “ drawn in question” by the court’s judgment, the jurisdiction is conceded. _ 1st. There is no vepugnancy to the constitution, because no provision thereof forbids the enactment of law or ordinance, under state authority, in reference to religion. The limitation of power in the first- amendment of the Constitution is upon Congress, and not the states. 2d. The provisions of the treaty of 1803 are juncia, officiorum, with regard to that portion of “ the ceded territory?’ which has been formed into states which have been admitted into the union. To that, end the-guarantees in behalf of the “ inhabitants”'were directed and confined, for no higher or other privileges' were claimed or provided for them; and it is hence submitted, that when a state, formed . . out of that territory, enters the union, the treaty, quoad hoc, has been ‘executed, and has spent.its force. The “ inhabitants” of Louisiana have provided their own securities for their own rights.in their own constitution, which they themselves have established; and the federal government has admitted hér into the union upon- their owfi terms. They have absolved the government from its,treaty dues to them, and the government has absolved itself from its 'treaty- dues to' France on. their account. '3d. So much of the ordinance of 1787 a? may have been' extended to the people of' the /Orleans territory expired within the jurisdiction of- Louisiana when she was admitted as a state .into the union. That ordinance is older'than the Constitution,-but;it cannot, to any extent, supersede it. The federal government possesses no powers but such as it has derived from the states;. and no One state has conferred upon it,- or can. confer upon it, more, Or less power than any ather.state has conferred,- or can confer. This results from the incapacity of the government to take,, rather than from the incapacity of the states .to give. Hence there is, and . must be, .from a constitutional necessity, a perfect and.unchangeable equality, among the states, not indeed in reference to the powers which they may separately exercise, (for that depends upon their 'own municipal constitutions,) but in reference to those which.they separately retain. -What Massachusetts may do, Louisiana may do. What Congress may not forbid Massachusetts to do, it may not forbid Louisiana, to do. • If Congress may not extend over Massachusetts the' provisions, of the ordinance of 1787, or anyportións thereof, neither can it over Louisiana, or retain them there after Louisiana became Massachusetts’s equal, and had the power to decide for herself. ■ If they are retained there they derive their .exclusive obligation and force from Louisiana’s adoptipn, and not from the authority of Congress. They have thus become laws of Louisiana, and have ceased to be laws of the United States. If they have so ceased to be laws of the United States, how could the imputed repugnancy between them and the ciiy ordinances confer any jurisdiction upon this court ? As laws of Louisiana, the judicial functionaries thither are the .constitutional and final expounders in cases between her own eitizens, like the one at bar. • The act of Congress of the 8th April, 1812, which admitted Louisiana into the union, acknowledged that very equality with her sovereign sisters, which is here asserted. The 1st section provides— “ That the said state shall be one, and is hereby declared to be one, of .the United States of America, and admitted into the union on an equal footing with the original states, in all respects whatever.”'' It is not 'the mere assertion of her equality, in this clause,, which establishes her equality — it. only pronounces that equality. which the Constitution establishes.- If she be equal, however, she. must be equally exempt from the legislation of Congress, past’ or future,""as her elder sisters. If the 1st article of the compact created by the ordinance of 1787, in these words, “ No- person demeaning himself in a peaceable and orderly manner shall ever be molested on account of his mode of worship or religious sentiments,”, has been extended over Massachusetts by any act of Congress, and through its Own proper vigour has the force of-law, it binds Louisi- ' ana to the same extent, but no ‘further, and not 'otherwise. The learned counsel for thev plaintiff ’in error have cited two decisions of this court — the one' 5lPeters¿ 515,- the other 9 Peters, 235 —-to sustain their position upon this branch of the' issues raised by , the record; but it is presumed that there is some error in the .references; for there is naught to.be found at- those pages applicable to the matter for which they are cited. A case ,has also been cited from 1 McLean’s C. C. Rep. 341, to maintain that the ordinance of 1787 survives the organization of ■ a state government over territory to "which it applies.- That may be, in those new states which have been erected in the identical territory to whim. thé. compact contained in the ordinance relátes. Nor is the authority understood as extending beyond that. The case arose- in Ohio. It had reference especially to the free navigation of her waters, as. secured to the' other states by the compact, aud it may be doubted if Ohio could have deprived .them of that, though there had been no compact. The learned judge, in delivering his opinion, and in speaking of the ordinance, says-: Many of the provisions were temporary in their nature, having for their object the organization and operation of a territorial government. Others assume the solemn form of a compact between the original states and the people and states in the territory which were to remain for ever unalterable, unless by common consent.” The portion of the ordinance thus deemed “ unalterable,” could never have been made applicable to the “ inhabitants” of the Orleans territory, because there could have been no such “ compact” made in reference to them; nor was it made. Indeed, other parts of the Opinion seem to assail the position it was cited to support. At p. 343, the learned, judge says: “The change from' a territorial government to.that of a state necessarily abolished all those parts of the ordinance which gave a temporary organization to the government, and-also such parts as. were designed to produce a certain moral and political effect. Of the latter description were those provisions, which secured’ the rights of conscience — which declared that education should be encouraged, and excessive bail should not be required,” &c. What “ provisions” df. the ordinance “secured the rights "of conscience,” other than those forbidding a person to “ bemiolested on account'of his mode of worship,-or religious sentiments,” already quoted from the 1st article of the compact? The counsel of .the plaintiff in error has made reference tp no other “ provisions,” and. it is believed there are none. Then wé are furnished by the learned counsel with the high- authority of Mr, Justice McLean, that these “provisions” are “necessarily abolished,” by the..erection of a territory, in which they apply, into a state government-. And as this is true of a territory embraced within the very limits to which the compact originally referred, h fortiori must it be applicable to states formed out of territory aliunde. ■ |t is believed that the opinion also sustains other views, presented in the argument in behalf of the defendants in error; in the following passage: “ It may be admitted that any provision in the constitution of the state must annul any repugnant provision contained in the ordinance. This is within the terms of the compact. The people of the state .formed the constitution, and if was sanctioned by .Congress; so that there was the £ common consent required by the compact to alter or annul it.” So, too, the constitution-of Louisiana “ was sanctioned by Congress.” If there be a repugnancy between its provisions and those “ provisions” of the • ordinance referred to, those provisions are annulled. If not, then the state of Louisiana has retained them, and made them her own proper laws, and they are, in.no. just sense, -since then, laws of -the United States; for Congress is without capacity to make for her, or to extend over her sovereign domain, any laws of Congress upon that subject. The defendants in error' further rely on, and make reference to, the well-reasoned opinion of the judge; a quo, and the authorities cited therein. Coxe, in reply, directed his attention chiefly to the other questions in the case than that of jurisdiction, and referred to the ppening argument of bis colleague, Mr; Bead, as a full exposition of the merits of the case.