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Dissenting Opinion

BATES, J.—I dissent from the opinion of the Court, as delivered in this cause. I part with my associates on the threshold, on the point of jurisdiction; and, therefore, in the brief opinion which I shall give for the grounds of my disagreement, I shall not find it necessary, or even proper, to touch the other points which have been raised and so ingeniously and elaborately argued. Obsta principiis, is a maxim dear to the lovers of sound government. I shall endeavor on this, as on all other occasions, to manifest my appreciation of its value.

By the treaty negotiated by the United States, in 1803, with the French republic, for the acquisition of Louisiana, our government became bound, in good faith, to perfect certain obligations which the previous governments, Spanish and French, had contracted with their citizens or subjects. But this treaty guarantee had no stipulation as to mode, and the government does not recognize in the citizen a right to sue without its consent.

This consent was given by the act of congress of May, 1824. Tribunals were created in the State of Missouri and Territory of Arkansas to adjudicate claims to land founded on French and Spanish grants, of which tribunals this is one; a special and extraordinary tribunal, created by the law referred to. Under this law, and before this tribunal, the claimant instituted his suit, which, at its maturity, ripened to a decree in his favor.

The bill of review has been instituted to annul and reverse the decrees on the ground that the grant is a forgery, the claimant a supposititious character. It is foreign to my purpose to inquire into the well-foundedness of these allegations, for, whatever the decision, in the view I take of the subject, it could lead to no practical result.

I assume it as a postulate not to be questioned, that the government going into the courts, is to be tried only by the same rules, and have the same measure of justice meted out to it, that the law secures to ordinary parties litigant.

The law of 1824 gave to the party against whom the final decree of this court should be given the right of appeal within one year from the time of its rendition. The appeal not applied for, the decree became final and conclusive. More than a year had elapsed before the filing of the bill of review in this case. I will not moot the point, whether a bill of review would lie at all: it is rendered more than superfluous from the obvious fact, that no revision of the decree, of any kind, was sought for within the year. But it is said that the congressional legislation of May, 1830, puts this question at rest, cures all defects, gives jurisdiction,—gives it, too, to defeat rights and destroy vested interests growing out of, and based on, a former act of congress. Such, it is true, is the import of the language of the law; but is it so? Can it be that the federal legislature has the constitutional competency so to do? We could expect to find such a doctrine prevailing only in the worst days of the most tyrannical governments. It is a language that Sejanus may have whispered to Tiberius. It is a language that may hold at this day in the meridian of Constantinople and St. Petersburg, where the mandate of the sultan, or the ukase of the emperor, supersedes reason, subverts right, and abrogates law. It is a language repudiated even in constitutional monarchies; and it is a language which, if received here as orthodox, goes convincingly to prove that the liberty, of which we have so proudly boasted, has an existence rather in name than in essence.

Yet, highly objectionable as I deem this law, I couple with that objection no ascription of motives. It was probably a work of much haste,—the principles it involves not pushed to their conclusions, and not seen in their practical results. I think I heard in argument that the principles of this act might be inoperative when sought to be brought to bear on the property and rights of the citizens of the States, but that congress had unlimited and illimitable power over the territories. This proposition scarcely requires the show of refutation; it is incompatible with the genius of our government, and is, as it regards this territory, palpably in violation of treaty stipulations.

I cannot resist the conclusion that we have not cognizance of this case, and that the bill of review should be dismissed for want of jurisdiction.