When there is no law ...

[palani]

The situation is a new territory. No existing government. No established law. No established authority. A murder. A trial.

Look for
(1) source of authority to conduct a trial
(2) source of the power to pardon
(3) limitation of the presidential power to pardon
(4) limitation of governor of adjoining states to interfere
(5) was Illinois considered liberal even in 1834?
(6) what kind of musket in the period fired five slugs in one shot (an assault musket as it were)?


http://iagenweb.org/history/palimpsest/1920sep.htm

[farmer_giles_of_ham]

thanks for posting that very interesting report. I really like older accounts for the direct and down-to-earth manner.

The story as it is told presents a very difficult situation for which I myself have no answer. But it is noteworthy that at the end of the day people took responsibility for themselves and even the U.S. president of that day understood the matter: do it yourself and bear the burden. Full Liability.

The whole thing was very Biblical, and also notice the healthy result: the ne'er-do-well element left town after witness to the power of real Law.

Innocent blood cries out for Justice.

This is why the system so fears honesty and prayerful devotion-they know their turn would be next.

[KarenM]

A musket is basically a shot gun -- distinct from a rifle.

Early muskets were large-bore weapons that fired several pieces of shot at once.

They were smooth-bored (no rifling) and relatively inaccurate except at close range.

[palani]

The title of this thread is a misnomer. Law attaches to the person and not the land. Note the composition of the jury ... all from foreign lands. Essentially you bring your law with you. You don't inherit it from a piece of dirt.

The jury came back with a verdict specifying "we the jury, chosen of ... ". The man did not object to the jury and therefore provided his own voluntary consent to be judged by them. In a sense he agreed to his own trial even though he knew there was no "law of the land" active.

President Jackson had no power to pardon. Government had not been established yet.

The governor of Missouri had no power to pardon. Not his territory.

Muskets were sometimes loaded with two round balls or a round ball and several pieces of buckshot (buck 'n ball). I don't think anyone today would attempt to abuse an arm by loading it with 5 balls. Buckshot might back one up but even five of them would not take anyone down (unless it was a head shot).

[Lawdog]

Originally Posted by palani

The title of this thread is a misnomer. Law attaches to the person and not the land. active.

Oh really? Then why does article VI of the Constitution say that it, along with federal statute laws and treaties, are the "supreme law of the LAND"?

[palani]

Originally Posted by Lawdog

Oh really? Then why does article VI of the Constitution say that it, along with federal statute laws and treaties, are the "supreme law of the LAND"?

And WHEN exactly did the constitution begin to apply west of the Mississippi? Think carefully before answering, LawyerMan. Everything has a beginning and an ending. Even the evolutionists agree on this point.

[palani]

Blackstone, Book the First, Chapter the First:

For it is held, that if an uninhabited country be discovered and planted by English subjects, all the English laws are immediately there in force. For as the law is the birthright of every fubject, so wherever they go they carry their laws with them.

[mrg]

Originally Posted by Lawdog

Oh really?

Then why does article VI of the Constitution say that it, along with federal statute laws and treaties, are the "supreme law of the LAND"?

I missed the part about "federal statute laws" in the part of the Constitution you mentioned.

Will you cite and quote verbatim the passage where you found the words "along with federal statute laws?"

Did you not say that this is what the Constitution says?

"Then why does article VI of the Constitution say..."

Are those not your precise words?

Is that your claim?

[BOBT12]

Originally Posted by mrg

I missed the part about "federal statute laws" in the part of the Constitution you mentioned.

Will you cite and quote verbatim the passage where you found the words "along with federal statute laws?"

Did you not say that this is what the Constitution says?


Are those not your precise words?

Is that your claim?

Originally Posted by Article. VI.

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; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.

Well, I don't see "federal statute laws". And unless Lawdog says otherwise, it appears that he is suggesting that these "federal statute laws" should trump state laws as a general condition, rather than a special condition, as enumerated in the Constitution itself.

However, I do see this:

Originally Posted by Amendment IX

The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.

Originally Posted by Amendment X

The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.

I consider the foundation of the [Federal] Constitution as laid on this ground: That "all powers not delegated to the United States, by the Constitution, nor prohibited by it to the States, are reserved to the States or to the people." [10th Amendment] To take a single step beyond the boundaries thus specifically drawn around the powers of Congress is to take possession of a boundless field of power, no longer susceptible of any definition." --Thomas Jefferson: Opinion on National Bank, 1791. ME 3:146

"All of the States [except] Virginia... had... delineated [the] unceded portions of right and [the] fences against wrong which they meant to exempt from the powers of their governors, in instruments called declarations of rights and constitutions. And as they did this by conventions which they appointed for the express purpose of reserving these rights and of delegating others to their ordinary legislative, executive, and judiciary bodies, none of the reserved rights can be touched without resorting to the people to appoint another convention for the express purpose of permitting it. Where the constitutions then have been so formed by conventions named for this express purpose, they are fixed and unalterable but by a convention or other body to be specially authorized." --Thomas Jefferson to Noah Webster, 1790. ME 8:113

[Lawdog]

Correct! Federal laws trump state laws to the contrary in the case of conflict. That is the clear meaning of article VI.

STATE OF MISSOURI v. HOLLAND , 252 U.S. 416 (1920)

STATE OF MISSOURI
v.
HOLLAND

Mr. Justice HOLMES delivered the opinion of the Court.

This is a bill in equity brought by the State of Missouri to prevent a game warden of the United States from attempting to enforce the Migratory Bird Treaty Act of [252 U.S. 416, 431] July 3, 1918, c. 128, 40 Stat. 755, and the regulations made by the Secretary of Agriculture in pursuance of the same. The ground of the bill is that the statute is an unconstitutional interference with the rights reserved to the States by the Tenth Amendment, and that the acts of the defendant done and threatened under that authority invade the sovereign right of the State and contravene its will manifested in statutes. The State also alleges a pecuniary interest, as owner of the wild birds within its borders and otherwise, admitted by the Government to be sufficient, but it is enough that the bill is a reasonable and proper means to assert the alleged quasi sovereign rights of a State. [Citations omitted] A motion to dismiss was sustained by the District Court on the ground that the Act of Congress is constitutional. 258 Fed. 479. Acc. United States v. Thompson (D. C.) 258 Fed. 257; United States v. Rockefeller (D. C.) 260 Fed. 346. The State appeals.

On December 8, 1916, a treaty between the United States and Great Britain was proclaimed by the President. It recited that many species of birds in their annual migrations traversed many parts of the United States and of Canada, that they were of great value as a source of food and in destroying insects injurious to vegetation, but were in danger of extermination through lack of adequate protection. It therefore provided for specified closed seasons and protection in other forms, and agreed that the two powers would take or propose to their lawmaking bodies the necessary mes ures for carrying the treaty out. 39 Stat. 1702. The above mentioned act of July 3, 1918, entitled an act to give effect to the convention, prohibited the killing, capturing or selling any of the migratory birds included in the terms of the treaty except as permitted by regulations compatible with those terms, to be made by [252 U.S. 416, 432] the Secretary of Agriculture. Regulations were proclaimed on July 31, and October 25, 1918. 40 Stat. 1812, 1863. It is unnecessary to go into any details, because, as we have said, the question raised is the general one whether the treaty and statute are void as an interference with the rights reserved to the States.

To answer this question it is not enough to refer to the Tenth Amendment, reserving the powers not delegated to the United States, because by Article 2, Section 2, the power to make treaties is delegated expressly, and by Article 6 treaties made under the authority of the United States, along with the Constitution and laws of the United States made in pursuance thereof, are declared the supreme law of the land. If the treaty is valid there can be no dispute about the validity of the statute under Article 1, Section 8, as a necessary and proper means to execute the powers of the Government. The language of the Constitution as to the supremacy of treaties being general, the question before us is narrowed to an inquiry into the ground upon which the present supposed exception is placed.

It is said that a treaty cannot be valid if it infringes the Constitution, that there are limits, therefore, to the treaty-making power, and that one such limit is that what an act of Congress could not do unaided, in derogation of the powers reserved to the States, a treaty cannot do. An earlier act of Congress that attempted by itself and not in pursuance of a treaty to regulate the killing of migratory birds within the States had been held bad in the District Court. United States v. Shauver, 214 Fed. 154. United States v. McCullagh, 221 Fed. 288. Those decisions were supported by arguments that migratory birds were owned by the States in their sovereign capacity for the benefit of their people, and that under cases like Geer v. Connecticut, 161 U.S. 519 , 16 Sup. Ct. 600, this control was one that Congress had no power to displace. The same argument is supposed to apply now with equal force. [252 U.S. 416, 433] Whether the two cases cited were decided rightly or not they cannot be accepted as a test of the treaty power. Acts of Congress are the supreme law of the land only when made in pursuance of the Constitution, while treaties are declared to be so when made under the authority of the United States. It is open to question whether the authority of the United States means more than the formal acts prescribed to make the convention. We do not mean to imply that there are no qualifications to the treaty- making power; but they must be ascertained in a different way. It is obvious that there may be matters of the sharpest exigency for the national well being that an act of Congress could not deal with but that a treaty followed by such an act could, and it is not lightly to be assumed that, in matters requiring national action, 'a power which must belong to and somewhere reside in every civilized government' is not to be found. Andrews v. Andrews, 188 U.S. 14, 33 , 23 S. Sup. Ct. 237. What was said in that case with regard to the powers of the States applies with equal force to the powers of the nation in cases where the States individually are incompetent to act. We are not yet discussing the particular case before us but only are considering the validity of the test proposed. With regard to that we may add that when we are dealing with words that also are a constituent act, like the Constitution of the United States, we must realize that they have called into life a being the development of which could not have been foreseen completely by the most gifted of its begetters. It was enough for them to realize or to hope that they had created an organism; t has taken a century and has cost their successors much sweat and blood to prove that they created a nation. The case before us must be considered in the light of out whole experience and not merely in that of what was said a hundred years ago. The treaty in question does not contravene any prohibitory words to be found in the Constitution. The only question is whether [252 U.S. 416, 434] it is forbidden by some invisible radiation from the general terms of the Tenth Amendment. We must consider what this country has become in deciding what that amendment has reserved.

[Portion redacted due to space limitation]


As most of the laws of the United States are carried out within the States and as many of them deal with matters which in the silence of such laws the State might regulate, such general grounds are not enough to support Missouri's claim. Valid treaties of course 'are as binding within the territorial limits of the States as they are elsewhere throughout the dominion of the United States.' Baldwin v. Franks, 120 U.S. 678, 683 , 7 S. Sup. Ct. 656, 657. No doubt the great body of private relations usually fall within the control of the State, but a treaty may override its power. We do not have to invoke the later developments of constitutional law for this proposition; it was recognized as early as Hopkirk v. Bell, 3 Cranch, 454, with regard to statutes [252 U.S. 416, 435] of limitation, and even earlier, as to confiscation, in Ware v. Hylton, 3 Dall. 199. It was assumed by Chief Justice Marshall with regard to the escheat of land to the State in Chirac v. Chirac, 2 Wheat. 259, 275; Hauenstein v. Lynham, 100 U.S. 483 ; DeGeofroy v. Riggs, 133 U.S. 258 , 10 Sup. Ct. 295; Blythe v. Hinckley, 180 U.S. 333, 340 , 21 S. Sup. Ct. 390. So as to a limited jurisdiction of foreign consuls within a State. Wildenhus' Case, 120 U.S. 1 , 7 Sup. Ct. 385. See Ross v. McIntyre, 140 U.S. 453 , 11 Sup. Ct. 897. Further illustration seems unnecessary, and it only remains to consider the application of established rules to the present case.

Here a national interest of very nearly the first magnitude is involved. It can be protected only by national action in concert with that of another power. The subject matter is only transitorily within the State and has no permanent habitat therein. But for the treaty and the statute there soon might be no birds for any powers to deal with. We see nothing in the Constitution that compels the Government to sit by while a food supply is cut off and the protectors of our forests and our crops are destroyed. It is not sufficient to rely upon the States. The reliance is vain, and were it otherwise, the question is whether the United States is forbidden to act. We are of opinion that the treaty and statute must be upheld. Carey v. South Dakota, 250 U.S. 118 , 39 Sup. Ct. 403.

Decree affirmed.

Mr. Justice VAN DEVANTER and Mr. Justice PITNEY dissent.