author: Mr. Justice. CATRON

text:
    Bernard Permoli, Plaintiff in error, v. Municipality No. 1 of the City of New Orleans, Defendant in error.
    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.

      William, G. Bead and Coxe for the plaintiff in error.

      Barton for .the defendant in error.
    ■ 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< to be carved out of the immense regions north-wert of the Ohiowhich come into the national community shorn of this, flower, or rather thorn, of prerogative. It has left not the trace of a foundation, within their vast extent, whereon bigotry can erect her -citadels. The United States have guarantied, to their inhabitants, religious liberty; as absolutely as they have republican government to us all.
    This ordinance gave the key-note to our territorial legislation; and , every subsequent passage has, on this paramount interest of humanity ,- harmonized therewith. B.ytheact of April 7th, 1798, chap. 45, sect. 6, the inhabitants of the Mississipi territory were admitted to “ all the rights of the people of the north-west territory) -as guarantied by the ordinanceand by the act of March 2d, 1805, chap. 437,.sect, 1, the inhabitants of the territory of Orleans, (now Louisiana,) became - entitled to “ all the rights,-privileges, and-advantages'secured by said ■ordinance, and-enjoyed by the people of the Mississippi territory.”
    But we do not-rely on-the ordinance of 1787 and the aforesaid extending acts alone. The act of February 20th, 1811, chap. 298, by which the people of the territory of Orleans were empowered to, form a constitution and state government, provided expressly in the 3d section, that the constitution to be formed, “ should contain the. fundamental principles of civil and' religious libertyand the act of April 8th, 1812,. chap. . 373, sect. 1,. by -which .the state of-Louisiana was-admitted into the union, provided “that all the conditions and terms’ contained in the said third, section, should be considered, deemed, and taken as fundamental conditions and terms, upon which the said state is .incorporated into the union.”
    The argument ’then is strictly consecutive; that, both undef"fhe ordinance of 1787, and-the nets for admitting Louisiana into the -union, there is a solemn compact between the -people of that state ■and the United- States, (which this- high conservative tribunal will protect from violation hy state authority,) that they shall not be molested on account of their religious belief, of mode of worship ; but that they shall for ever enjoy religious liberty in the fullest-and most comprehensive acceptation of the term.
    To obviate the force Of this conclusion, the judge “ a_- quo” (Preaux) has, in his opinion, which-is pa£rt of the record, (16-Peters, 285,) been'compelled to advance doctrines of the wildest nullification, subversive, of the very first principles of political morality. He argues (pages 19 and 20.of the record,) “ that the ordinance-of 1787 was superseded by the constitution of the state of Louisiana; . ’. . that constitution became the supreme law of the state, and all .acts of Congress regulating the government of the territories of the United States ceased to exist within the limits of Louisiana — a sovereign state; .... the erection of Louisiana into an independent state, under a Constitution adopted by her own citizens, and sanctioned by CongTess, must necessarily set aside the charter established for its territorial government5 by Congress. To accede to a contrary doctrine; would be to admit that thé power of Congress might be perpetuated, notwithstanding' this solemn act, contrary to the rights of the statés as defined and reserved by the federal compact,” and this notwithstanding the most carefully expressed and guarded stipulations between the federal empire and its newly admitted member! To what a solemn farce does this argument reduce the earnest debates., the stern remonstrances, the enthusiastic appeals, which shake our legislative halls, and agitate this vast union from one extremity to the other! What avail our anxious compromises, our reluctant •concessions, our cautious provisoes, if, the instant a. new partner is admitted to the natichal firm, she is at liberty to cast her most solemn obligations behind her ? To what a ridiculous condition is one at least of the high contracting parties degraded by these fancies! ■ Is she sovereign ? Oh, no! not “ sovereign” till she becomes “ a state!” Is she subject ? How can subject stipulate with sovereign ? She is then a nondescript, “ tertium quid” — a sort, of political redemptioner; with just enough of the slave to submit to humiliating con- ' ditions, and just enough of the freeman to count the days the indenT tures have yet to run, and rejoice in anticipated repudiation of the most formal and explicit engagements.
    Such, however, is not the doctrine of this court. In Menard v. Aspasia, 5 Peters, 515, Judge-McLean, delivering the opinion of the court, distinctly intimated that the ordinance of 1787 might .be insisted on,-as yet in force, within the sovereign state 'of Missouri. His words are too clear for misconception:. “ If the decision of the Supreme Court of Missouri had been against Aspasia, it-might have been contended, that the revising'power of this court, under the-25th section of the Judiciary Act, could be exercised;” and although the same learned judge, in Spooner v. McConnell and others, 1 McLean’s C. C. R. 341, subsequently admitted that such provisions of the ordinance as were intended to produce amoral or political effect, (among .which he classes those which secure the rights of conscience,) were annulled, in Ohio, by the adoption of the federal and state constitutions, as implying the “ common consent” required for- their abrogation; his language must necessarily be understood as'harmonizing with- that of this court in Menard v. Aspasia, and inapplicable to the case of Louisiana ; .unless it can be shown either that -the federal constitution abolished those provisions explicitly, which it did not; or vested the states with powers repugnant thereto, which it did not; or superseded them by higher federal guaranties, which it did not; or that the constitution of Loúisiana'proceeded on either of those grounds, which it certainly did not, in terms ; and, if at all, only by, inference from the conditions imposed by the act for admitting that state to the .union; which supposition leaves the case as strong as under the ordinance. -
    Equally unfortunate is the gloss by which the judge below has endeavoured (pages 14 and 15 of rthe record) to evade, the constitutional guarantees of Louisiana, on the subject of religious liberty. The Supreme Court of his own state, in the recent case’ of “ The Wardens of the Church of St. Louis, New Orleans, v. Blanc, Bishop, &c.,” (which is reported, as it would seem by authority, in the New Orleans Weekly Bulletin of July 6th, 1844,) holds this most .emphatic language in reference to the constitution of Louisiana. “If' the state constitution, frarñed a few- years afterwards, contained no such restriction upon the legislative power, it was because it was thought unnecessary. It had already been settled, by solemn and inviolable compact, that religious freedom, in its broadest sense, should form the essential basis of all laws, constitutions and governments, which should for ever after be formed in the territory; and that compact was declared to be unalterable unless by common consent.” . . . “ In the opinion of the court, no man can be molested, so long as he demeans himself in a peaceable and orderly manner,' on account of his mode of worship, his religious opinions and profession,-and the religious functions he may choose to perform, according to the rites, doctrine, and discipline of. the church or sect to which he may belong. And this absolute immunity extends to all religions, and to every sect.”. So that, had the judiciary system of, Louisiana permitted an appeal from the .City Court of New .Orleans to the supreme law tribunal of the plaintiff’s own state, this court -would not .probably have been troubled with this argument.
    3d. To read the ordinances, under which the plaintiff in error has been fined, is to dispose of the third question presented by this cause. Their bearing upon only one denomination of worshippers establishes their tyrannical character. Equality before the law is of the very essence of liberty, whether civil or religious. • The performance of funeral obsequies, in buildings consecrated to public adoration of the Deity, is not confined to Catholics, but is practised by many other religious societies.
    Again; the ordinances, as they now stand, contain but a single penal prohibition. They punish, the performance of a religious function by individuals acting in .their religious capacity or character, “ according to ’ the rites; doctrine, and discipline of the church to which they belong.” They'legislate for .the priest as priest, and only as priest; not as a person transporting and exposing, or causing to be transported or exposed, any corpse in the interdicted churches; but- as the' ordained celebrant of the-office for the dead. What is this function he is forbidden to- exercise ? His church — the. holy Catholic church — teaches that the mercy of God, while it mitigates, does not merge his justice; that, though, many,-through the atoning blood of the Saviour, escape eternal wo, they do not all pass directly from this probationary state to -celestial bliss. Souls may depart this life unpolluted with mortal sin, which would' consign them to everlasting misery, and yet hearing some - stains of earth, -which may not be admitted to His presence, before whose awful purity archangels'veil their faces; and- such,, according to the fearful parable, are cast into that prison whence there is -no egress till “payment'of the uttermost farthing;” till expiation of “ every idle word,” of which we Ene to “ give account.” This ex- • piatory state is termed by theologians, “ purgatory;” and the Catholic doctrine is, that those-who suffer there are aided by the prayers, ' almsdeeds, and other good works of their brethren still in the flesh,. . and the suffrages,of the blessed spirits;. exhibiting thus,- blended in one tender “communion of saints,” the church triumphant in heaven, the church militant on earth, and her suffering members in the ■ middle state. . Thus Catholic charity ceases not with the., last sad offices rendered to thése fainting.,frames. -When eyes that -beamed on us with kindness are closed for .ever, when the intellectual light that blazed-about and. guided us is darkened; when the hearts that . loved 'and trusted us are . cold ánd still,'then'me we stimulated to new demonstrations of .affection, by the very agony .of our bereavement. .And the church, whose every precept is foiinded on the deepest philosophy of human nature, knowing that the efficacy of prayer is proportioned to its Urgency, (as hen-divine master “in his agony prayed the more,”.) directs.” that they shall be offered under every circumstance that can animate hope, strengthen faith, or kindle charity.' And; therefore, to her temples, where she receives the little child at. “the laver of regeneration,” and :where she delights to bless the nuptial ring, she commands that .we bring the bier;' that, kneeling beside the dear remains of friend or'relative, before, the awful memorials of o.ur redemption, surrounded .by the relics of those who have gone before, arid .whom we believe to be confirmed in glory,, in the veiy presence ofthe mercy-seat, where, less terrible ■but dearer than,in the shekinah that filled the tabernacle of the early dispensation, the. Almighty shrouds his glory beneath'the sacramente! veil, we may pour out our souls Iri fervent supplication; that those we inoum may be admitted to the. mansions of eternal, rest, and have .their longing hopes.crowned1 with everlasting fruition. And tell us not-this is a./ond-superstition. It is an office in which “ the church of the New Testament-is in-communion-with the church of the Old;” with the Hebrew- of. thr.ee thousand years ago and the Hebrew of to-day.' In it the Catholic unites with the Nestorian and the Copt, and the. separated Greek, and every liturgist before the sixteenth century; nay, with-many of the wiseand good, who, half doubting or rejecting it as of revealed authority, still practise it at the instinctive teaching of their own hearts; and with the great'Dr. Johnsoii; bow down for them they loved in prayer that God “may have had mercy.” But were it, on the contrary, the last novelty of the day; were it confined to the little chapel where the plaintiff ,. in .error ministers to his flock, still he could lay his hand on the ordinance'bf 1787,-and exclaim with the sage of Tusculum, “ $i erro, libenter erro; nec.hünc errorem a rae-extorquen volo!”
    But the judge “a quo” has argued, that the praying for the dead in churches, with the body there present, is merely a disciplinary observance, as- stated in the evidence of, Bishop Blanc; and may, therefore, be regulated or controlled by the legislature, without violating religious liberty.
    Now if there be aught esseirtially-characteristic of religious liberty, it, is the exemption of ecclesiastical discipline (defined by the learned Hooker, “ church order,”) from secular control,; and this, because, the external forms and practices of religion are all that temporal, power can directly invade. Faith, doctrine, are beyond-its reach; objects of the understanding and :the heart. - .Discipline is the sensible law which regulates the manifestation'of oiir belief or opinion, in our public and social devotional intercourse with our Creator. F-aith is the soul of religion; discipline the visible beauty in .which she coittmendsherself to our'veneration and love. And it may be safely asserted, that there never was an arbitrary change introduced by governments into the religious opinions of a community, which, was not masked- by. a pretended reform of exterior observances. What distinguishes the most numerous sect of Christians, in our country, from- the many who agree with them on doctrinal, points, but their method; the practical methods' established by the founders of their peculiar system of church pqlity? In fact; they have taken their name from it. Yet what is “ method” but another word for “ discipline?” And would a member of that society consider himself ip the enjoyment of religious liberty, if told “believe what you pleáse of the divinity, the incarnation, the atonement, the influences of the Holy' Spirit, baptism; hut hold, no class-meeting — hold no camp-meeting. These, though perhaps edifying and' consolatory to you, are only matters of discipline, and amenable, therefore, to the municipal police?”
    . But the judge below contends that the Catholic office for the dead is not prohibited; inasmuch as it is permitted in the “ obituary chapel.” .That is to say, religion is free, though its observances may be limited to a building in the possession of notorious schismatics, who might tax them to virtual' prohibition, or apply the proceeds, at their own discretion, to .the subversion of religion.itself. The point' is stated arguendo; but borrowed from the facts -which gave rise to this appeal to the court.

      But it was further insisted below, that, as a measure of quarantine precaution, the exposition of .corpses may be prohibited. Not if such-prohibitory legislation infringes rights more precioú's than mere animal health, which are guarantied by the Constitution or supreme law of the land. Judge Marshall’s language on this point is clear. In Wilson and others v. The Blackbird Creek Marsh Co., 2 Peters, 251, he says, “The value of the property on the barfks (of this creek), must be enhanced by excluding the water from the marsh, and the health of the inhabitants probably improved. Measures calculated to promote- these objects, provided they do not come into collision with the powers of the general government, are,undoubtedly within those which are reserved to the states.” And if it be • true, as inferred from this. language, that a sovereign state, in her high legislative capacity, cannot, for the preservation of the-health of her citizens* encroach on the constitutional guarantees for unrestricted commerce between man and man; can we suppose she could delegate .the more dangerous power of interfering with the intercourse of man with God, specially guarded as it has been by the organic law of Louisiana, to a petty corporation ? This case, however, passes clear of that suggestion. The judge below endeavoured to implicate the priest, as the ultimate cause of exposing the sad relics of mortality which “lie festering, in the shroud;” but the words of the ordinances, which, being penal, must be construed strictly, have expressly waived the penally against all concerned in exposing, or causing them to bé exposed, and directed their vengeance exclusively against' the priestly function.

      Barton's argument was this:
    The First Municipality of New Orleans embraces the whole of what is called “the city proper,” or “ square of the city,” and is bounded by a wide front levee, and the three streets of Esplanade, Rampart, and Canal, (which are as wide as Pennsylvania Avenue,) and covering also the whole suburbs, and low grounds in the rear of Rampart, •extending to Lake Ponchartrain. The obituary chapel, referred to-in the r.ecord, is situate upon Rampart, button the rearward side, and is thus separated from the city proper by an area of the-width of three of its principal streets. The parochial church of St. Louis is the principal Catholic cathedral in the city, and, like the church of St. Augustin, is situate within the square of the city,- where all the streets are very narrow.
    New Orleans is visited annually with .the yellow fever, in-either the sporadic or epidemic form, and strong sanitary measures aré deemed indispensable there to check the range and prevalence of the pestilence when it comes.
    The great body of the Catholic citizens of New Orleans (other than those oflrish descent) reside in.the First Municipality: The American Protestant population reside chiefly in'the Second"Municipality; they have but one church in the First Municipality, and that fronts the • Second, on Canail street.
    The usages of the'Catholics, there are to perform the mortuary, services with the corpse exposed in open church, and before the con-, gregation. Protestant dhurches there are never used for such purposes, but services for the dead are performed at the cemeteries where the bodies are deposited.
    The statement of facts contained in the opinion of the judge of the City Court having been used in the opening argument at this forum, gives warrant for the statement now made, which it is thought may be useful besides as a clue to the quo animo of the council of the First Municipality in enacting the ordinance complained of. If that measure had its origin in the mere purpose of infringing upon, and discriminating, to the prejudice of the religious rights of one denomination of Christians, it is-not to be defended; but if designed mérely as a regulation of sanitory police, for the preservation of the public health, then the law of necessity pleads in its behalf; and all obituary rites and ceremonials which tend to frustrate its objects, or impair its efficacy, must yield to the supremacy of the common good.
    The learned counsel also cited :and quoted, from the New Orleans Bulletin, an opinion of the Supreme'Court of Louisiana, in the case of the Wardens of the Church of St. Louis «.-The Right Rev. Bishop Blanc, instituted for the legal adjustment of certain differences between them in relation to church affairs, and which that court’s judg-. ment happily put an end to. It may be proper to remark, however, tjiat this controversy was between Catholics; the one administering the temporalities of the church, and maintaining the rights of the corporation — the other administering the ecclesiastical functions, and maintaining the rights of the clergy. None but those professing the Roman'Catholic religion can vote for chuich-wardens, as that opinion makes known; and none, therefore, are chosen such, who are not of that religious persuasion. Nothing could have been further from the designs of either party to that' controversy; than to have trenched upon or abridged the civil or religious privileges of Catholocism itself, .and still less to have favoured, to its prejudice, any other denomination of Christians.
    The controversy referred to having arisen, too, in the same year (1842) in which the ordinance was passed under which the fine was imposed on the plaintiff in error,-leavés the inference fair that there was a necessary connection between them. But this.'is not so; and the circumstances strongly repel all inferences thát the First Miinici-pality council’ could have' designed any infringement upon, or impairment of, the privileges of Catholics. The great body óf the constituency of that council is Catholic; and-.it is believed, ab urbe con-, dita, to the present day, a majority; and véiy frequently the .whole, of that council, are such as have-been reared up in the Catholic faith, and have continued in that religious persuasion. Hence, if the ordinance complained of abridges the privileges of Catholics,, it abridges, to a like extent the privileges of those who enacted it. If-Catholics are wronged,,Catholics have wronged them. This circumstance, indeed, may not lessen the injury, though it weakens the wrong. It may.not test the lawfulness,- but it defends the motive.
    Though the -particular ordinance under which the fine waá imposed, bears date the 31st October,,1842, (modified as it was-by the ordinance of the 7th of November, 1842,) yet the purpose and the occasion originated at'a far earlier period, at,a season when dissensions in the parochial church were unknown, and when the venerable and reverenced Abbé Moni — a priest of all worth and all appreciation — presided as curate of the parish of St. Louis. As'far back as the 26th of September) 1827, (fifteen years before,) the city council adopted an ordinance upon this subject of precisely similar import with that.of the 31st October, 1842; and the motive of its enactment is conspicuous in the very title of the ordinance. It is entitled “ An ordinance supplementary to an ordinance concerning public'health.” It is as follows:
    “ Resolved, That from and after the 1st of November next, (1827,) it shall not be lawful to convey and expose, into the parochial church of St. Louis, any dead person, under penalty of a fine of $50, to be recovered for the use of the corporation, against any person who should have conveyed or exposed any dead into the aforesaid church; and also under penalty of a similar fine.of $50, against all priests who should minister to the celebration of any funeral in said church; and that from the 1st of November of the present year, (1827,).¿11 dead persons shall be. conveyed .into jhe obituary chapel in Rampart street, where the funeral rites may be performed in the usual manner.”
    This aclt has remained in force ever since the 1st November, 1827. Its sole purpose was manifested in its title ¿nd provisions. All persons concerned gave it their obedience, and none ever complained that it impaired or abridged the civil or religious rights and privileges of the Catholics. No motive was attributed.to its authors, other than the fears they may have entertained, in seasons of diséaáe, of the perils of contagions, .or the spread of epidemics. The brdi--nance of the 31st October, 1842, made no change whatever in the ordinance of 1827, except in its penalties, for conveying to, and exposing in, other Catholic churches, in the First Municipality, of dead bodies; the obligations not to do so, and to usé the obituary chapel in Rampart street for that purpose, remaihéd as before'. Neither has the ordinance of the 7th November; 1842, wrought any modification in that of 1827, for its amendments are confined by special references to the ordinance of the 31st October, 1842. That the ordinance of 1827, in principle, affected the rights, and privileges referred to, equally with the subsequent ordinances,-is too plain to be questioned; aid that grievance seems altogether too slight- and impalpable to claim the protection of this august tribunal, when in fifteen'years, for aught that is known, it has passed without complaint, and for; the reason, it may be, that it was so subtle and ethereal as to elude detection..

      2. The ordinances of the 31st of-October, and the 7th.N.ovember, 1843, do not invade the rights or privileges of the Catholic citizens of New Orleans.
    The testimony of the Right Rev. Bishop Blanc would seem to establish this .proposition incontroveriibly, for he says that “ the dog-' mas 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.” A dogma is a matter of church-faith, and affects conscience; discipline affects conduct only, where conduct does not affect faith. Under these ordinances, then, and the bishop’s testimony, faith and conscience are left free; nothing molests the enjoyment or constrains the exercise, of either. How is it made tq appear, then, that they, conflict with that “free enjoyment of religion,” secured to the.'^inhabitants of the ceded territory;”- by the Louisiana treaty of 1803, which has been cited ? £>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.
   Mr. Justice. CATRON

delivered the opinion of the court.

. As this case comes hereon a writ of error to bring up the proceed-, ings.of a state court, before proceeding to examine&he merits of the controversy, it is our duty to determine whether this court has jurisdio tion of the matter.

The ordinances complained of, must violate the Constitution or laws of the United States, or some authority exeíciséd under them; if they .do not, wé have no power by the 25th section of the Judiciary Act to interfere. The Constitution makes no provision, for pro-' tecting the citizens of therespective states in their religious liberties ; this is left to the state constitutions and laws: nor is there any inhibition imposed by the Constitution of the United States in this respect on the states. We must therefore look beyond the Constitution for the laws that are supposed to be violated,- and on which our jurisdiction can be,founded; these1 are the following acts of Congress. That of February 20, 1811, authorized the people of the territory of Orleans to form a constitution and state government; by sect. 3, certain restrictions were imposed in the form of instructions to the convention that might frame the constitution; such as that it should be republican; consistent with the Constitution of the United States-; that it should contain the fundamental principles of civil and religious liberty; that it should secure, the right of, trial by jury in criminal' cases, and the writ of .habeas corpus; that the laws of. the State should be published, and legislative and judicial proceedings be written.-and recorded in the language of the Constitution of the •United States.- Then follows by-a second proviso, a stipulation reserving to the United. States the property in the public lands, and their exemption from state taxation — with a declaration that the navigation of the Mississippi and its waters shall be common highways, &c.

By the act of April 8, 1812, Louisiana was admitted according to the mode pn. ¡cribed by the áct of 1811; Congress declared it should be on the conditions and terms contained in, the 3d section of that act; which should be considered, deemed and taken, as fundamental conditions and terms upon which the state was incorporated in the union.

All Congress intended, was to declare in advance, to the people of the territory, the fundamental principles their constitution should contain; this was every way proper under the circumstances: the instrument having been duly formed, and presented, it was for the national legislature to judge whether it contained the.proper principles, and to accept*it if it did; or reject it if it did .not. Having accepted the constitution and admitted the state, “on an equal footing with the origneal states in all respects whatever,” in express terms, by the act of 1812, Congress was concluded from assuming that the instructions contained in the act 'of 1811 had not been complied with. No'fundamental principles could be added by way of amendment, as this would have been making' part of the state- constitution ;• if Congress could make it in part, it might, in the form of amendment, make it entire. The conditions and terms referred to in the act,of 1812, could only relate to the stipulations contained jn the second proviso of the act of 1811, involving rights of property and navigátion; and in our Opinion were not otherwise intended.

The principal stress of the argument for the plaintiff in error proceeded on tiie ordinance of 1787. The. act of 1805, chap. 83,. having.provided, that from and after the establishment of the government of. the Orleans territory, the inhabitants of the same should be entitled to enjoy all the rights, privileges, and advantages secured by said ordinance; and then enjoyed by the people of the Mississippi territory. It was also made the frame of government, with modifications.

In the ordinance, there are terms of compact declared to be thereby established, between the original states, and the people-in the states afterwards to be formed north-west of the Ohio,'unalterable, unless by common consent — one of which stipulations is, that “no person- demeaning himself in a peaceable manner, shall ever be molested on account of his mode of worship, or religious sentiments, in the said territory.” For this provision is claimed the sanction of an unalterable law of Congress; and it is insisted the city ordinances above have violated it; and what the force of the ordinance is north of the Ohio, we do not pretend to say,' as it is unnecessary for the.purposes of this case. But as regards the state of Louisiana, it had no further force, after the adoption of the state constitution,, than other acts of Congress organizing, in part, the . territorial government of Orleans, and standing in connection with the ordinance of. 1787. So far as they conferred political rights, and secured civil and religious liberties, (which are political rights,)-the laws of Congress were all superseded by the state constitution; nor is any part of them in force, unless they were adopted by the constitution.of-' Louisiana, as laws of the state.’ It is not possible to maintain that the-United States hold' in trust, by. force of the ordinance, for the ■people of Louisiana, all the great elemental principles, or any one of them, contained in the ordinance, and secured to the people of the Orleans territory, during its existence. It follows, no repugnance could arise between 'the ordinance of 1787 and. an act'of the legislature of Louisiana, or- a city regulation founded on such act; ‘ and therefore this court has no jurisdiction on the last ground assumed, more than bn the preceding'ones. In our judgment, the question presented by the record is exclusively of state, cognisance, and equally so in the old states and the new ones; and. that the Writ'of error must be dismissed.


source: Caselaw Access Project

author: Mr. Justice CATRON

license: Public Domain

text:
    Joseph Chaires, executor of Benjamin Chaires, deceased, and Peter Miranda and Gad Humphreys, appellants, v. The United States.
    Where this court has affirmed the title to lands in Florida, and referred, in its decree, to a particular survey, it would not be proper, for the court below to .open the case'for a reffieáring, for the purpose of adopting' another survey.
    The court below can oniy execute the mandate of this' court. It has no autho- ■ rity to disturb the decree, and; can only settle what remains to be done.
    This was an appeal from, the Superior Court oí East Florida, and a sequel to the case reported in 10 Peters; 308.
    The appellants filed in the court below the following petition:
    “ To the Honourable Isaac H. Bronson, judge of the Superior Court in and for the eastern district of Florida.
    “The petition of Joseph Chaires, of the said territory, executor of the-last will and testament of Benjamin Chaires, late of the same .territory, but now deceased, Peter Miranda; and Gad Humphreys, respectfully showeth:
    “ That the said Benjamin Chaires, Peter Miranda, and. Gad Hum-phreys; heretofore, to wit, on the 11th day of May, which- was in ■the -year of our Lord one thousand eight hundred and twenty-nine, filed their petition in the office of the clerk of this honourable court in terms of an act of Congress of the United. States, entitled an act supplementary to the several acts providing.for the settlement and confirmation of private land claims in Florida, approved on the 23d of May, in the year one thousand eight hundred and twenty-eight, praying for the confirmation of certain claims to' lands therein specified, and founded on a title made and granted by his excellency Don Jose Coppinger, lieutenant-colonel of the royal armies of Spain, civil and military governor of the territory of Florida, then subject and belonging to his Catholic Majesty, the King of Spain, and chief of the royal exchequer of the'city of St. Augustine, Florida, to José de la- Maza Arredondo.
    “That the attorney of the United States in. and for said district, duly appeared, and answered the said petition; and thereupon such proceedings were had in the said court, that afterwards, on the 24th day of November, in the year of our Lord one thousand eight bun-. dred and thirty-four; a.decree was rendered therein in favour of the petitioners; and the said court did thereupon order, adjudge, and decree, that the claim of the said petitionef was valid, and that, in accordance with the laws and customs of Spain, and under and by virtue of the treaty of amity, settlement, and limits, between the United States and Spain, ratified by the President of the United States on the 22dday of February, (me thousand eight hundred and twenty-one, and under and by virtue of the laws of nations and of the United' States, the said claim was thereby confirmed, adjudged, and decreed, unto the said claimant, to the extent, for the number of acres, and at the place specified in the grant for the said land, to José de la Maza Arredbndo; and as in the certificate and plat of the same, made by Andres Burgevin,’ dated the 14th of September, in the year, of our Lord one thousand eight hundred-and’ nineteen, and fully in the said cause is set forth, that is to Say—
    “ A piece of .land, which contains twenty thousand acres, situated on both margins of a creek, known as Alligator creek, said land commencing a little above the head of said creek, and embracing an Indian town, distant about eighty miles from the port of Buena Vista; and about forty miles to the north-west of Payne’s Town — its first line running north twenty degrees west, three hundred and • fiity-séven chains,-begins at a pine marked. X-, and ends at another marked =; the second line running south seventy degrees west, five hundred and sixty chains, and ending- at. a stake; the third line running south twenty degrees east, three hundred .and fifty-seven chains,- and ending at a pine marked IIand the fourth line running north seventy- degrees east, five hundred .and sixty chains.
    “ That an appeal was taken from the decree, so rendered in this honourable- court, to the Supreme Court, of the United States, by the attorney- of the said United States, in and for- the said territory, and such proceedings were’thereupon had in the said Supreme .Court, that afterwards, on the day -of ,' in the year of our Lord one thousand eight hundred and thirty-six, the decree of this, honour-ablé court was affirmed; and.thereupon the mandate of the’said Supreme Court was awarded, directing the same to be carried into •effect’.
    “ And your petitioner further shows to your honour, that upon application to the proper officer of the United States, to carry the said decree into effect, by-admeasuring to your petitioner the lands specified in' the grant, it appears that there is error in rendering the said decree, and that the same requires to be reformed; in this— ■

      “ Thát in and. by the decree of this honourable court, hereinbe-fore alleged and affirmed, in manner hereinbefore set forth by the Supreme Court, your petitioner’s claim was confirmed, adjudged, and decreed to be valid ‘ to the extent, -for the number- of acres, and at the place as in the grant to the said- land to José de la Maza Arredondo,’ but it is'added in the said decree, ‘ and as in the certificate and plat-of survey'of the same, made by Don Andres Bur-gevin, and dated the'14th September, one thousand eight hundred and nineteen, and filed herein, is set forth, to wit,’ &c., &c.; and the' said decree thereafter proceeds to recite the metes and bounds as specified and set forth in the survey made by the said Don Andres Burgevin.
    “That the land granted to José de la Maza Arredondo;’and, in the decree before referred to, confirmed and adjudged to your petitioner, is described in the royal grant or title to property, also before herein referred to, to consist of ‘twenty thousand acres of land, with title of absolute property, of those known as Alachua, about eighty miles distant from this city (of St. Augustine) at a place' known as “Big Hammock,” about twenty'miles from the river Lawanee westward, about sixty miles from St. John’s.’ While the land specified in the survey of Don Andres Burgevin is described as follows: ‘ twenty thousand acres of land, situated on both margins of a creek known as Alligator creek. Said land commences a little above the head of said'creek, and embraces an Indian town, distant about eighty miles from the post at Buena Vista, and about forty to the north-west of Payne’s town, &c., &c.’
    “ That the land specified in the said survey does not conform to, or correspond with, the land described in the said grant, and that the surveyor-general of-the United States has-therefore been-unable to exeeute the decree of this honourable court,-affirmed as aforesaid ■by the Supreme Court of-the United States, and to-admeasure to your petitioner the land adjudged to him by the said decree.
    “ That forasmuch as the land specified in the said grant to José de la Maza Arredondo, is, by the decree aforesaid, adjudged to yóur petitioner, ‘ to the extent, for the number of acres, and at the place, as in the grant for said land,’ your petitioner is entitled to have the same admeasured to him according to the terms of the said grant, and the description therein contained; and that if the said survey of Don' Andres Burgevin conflicts with the said grant, the said survey must yield to, and be controlled by, the terms of the grant.
    “ Your petitioner further shows to your honour, that the said -land was duly surveyed and.admeasured, and a plat thereof made and returned to this honourable court, and given in evidence in said cause, by Joshua A. Golfee, a competent and qualified surveyor, but that the same was omitted in the transcript of the record sent to the Supreme Court • of the United. States, although the fact of its having been given in evidence appears in the said transcript, a copy of which said survey is hereunto annexed.
    ■ “ Your petitioner further shows to your'hononr, that the surveyor-general of the United States hath refused to execute the. said decree-by admeasuring' for your petitioner the land thereby confirmed and adjudged to him, and that, upon application to ■ the commissioner of the General Land-office, he hath in like manner refused so to do, until the said decreé' shall have been reformed by the competent .authority.
    “ Wherefore, your petitioner prays this honourable court, the premises aforesaid being considered, and due proof thereof being made, that the said decree may be reformed, and to that end, that a rehearing of the said cause in this behalf- may be granted; that the title of your petitioner to the twenty thousand acres of land, specified in the grant to José de la Maza Arredondo may be adjudged to your petitioner according to the terms and specifications of the said grant, and the survey of the said Joshua A. Coffee, a copy whereof is hereunto- filed; or according to a survey to be made under the order. of this court, by the surveyor-generál of, the territory, of Florida, in conformity to the description of the said laud in the said grant specified and set forth, to be returned into the registry of this hon-ourable court; and that he may have such other and further reliefj as in the wisdom of this honourable court shall seem meet and right, in the premises; and your- petitioner,' See., &c., &e.” •
    In June, 1844, the court, after hearing an argument, decided that the,petition for rehearing could not be entertained, ana ordered it to -be dismissed.
    From this decree the petitioners appealed to this court.,
    Berrien, for the appellants.

      JYelsón, (attorney-general,) for the United States.
    - Berrien, after stating the case, said: this petition-was dismissed by the District-Court, on the ground that it had not been filed in time.
    .The relief sought by the petitioner is therefore resisted solely on - the ground that too much time has elapsed since the decree was\ rendered, to entitle them to it.
    They have -the decree of this court affirming their title to twenty ; thousand acres of land, specified'in their grant, and at the place therein specified.
    The ministerial officer of the government refuse's to admeasure the land so awarded to them, according to the terms of the grant, because the decree also' 'refers to an inconsistent description contained m the survey of Burgeyin.' . '
    And an application to have the decree reformed, according to the clear and manifest intent of the cd.urt, is resisted on the ground of time.
    ' This' objection' is sustained by, a referente to the rules established .in the English courts of chancery, and recognised here in cases to which they apply, in relation to applications for a rehearing, and bills of revivor.
    And to the argument from analogy, drawn-from the limitation of time'in o.ur statute, within which appeals maybe entered, and writs ' of error sued out.
    As'to the first objection: it is submitted that the ¡rules which regulate the proceedings of courts of chancery, in the exercise of their general jurisdiction over cases, between individual parties, are not applicable to this proceeding.
    - This case-was brought before the court, below, and subsequently-transferred to this court, hot by an appeal to the general.. chancery ■ jurisdiction .of either but under the speciál authority given to these courts by .the act of 1828, providing, for the settlement and confirmation of private land claims in Florida, and those other acts ,to which,it refers..-
    The proceeding was by' petition; which was required tó be conducted according to the rules of a court of equity; and certain limitations of time were prescribed, within which .petitions were to be filed, and appeals to be entered.
    ■But the court,was required to settle, and determine the validity of the title, by a final decree, and the successful claimant was entitled to a copy of the decree, and the admeasurement by the surveyor-general of Hie land awarded, with a certificate of such admeasure- ' ment, for the purpose of obtaining a patent from the commissioner - . of the General Land-office.
    No time is specified wjfriin which the duties of these-officers are to be respectively perforated.
    But in the case of a successful claimant, their acts constitute part of die res gesta. ■ They are part of the proceeding;- and the District court must, in such case, retain possession of the cause, until the mandate of this court is carried into execution.
    Its intervention, may, in various ways, be necessary to direct, or speed the action of the ministerial officers of the United States.
    Neither the enrolment of .the decree in this court, nor of the mandate in the court below, can conclude the cause, and fix a period from which the time for filing a petition for a rehearing, or bill of revivor, is to run.
    The case remains open, always liable to be,acted on'by the court below, until the mandate is executed.
    No time is prescribed by the act, within which the duties of the surveyor-general are to be performed. The nature of these duties forbade it. It'Vas to survey wild lands in trackless forests.
    In .point of- fact, the decision of the surveyor-general, and of the commissioner of the General Land-office, that this' decree, in its preserit form, could not be executed, was only obtained immediately before the application to the court below.-
    ■ If they erred in that decision, had not the' District Court power, in the exercise of its authority, to carry the mandate of this court into execution to correct that error, and to require the survey to be made according to its interpretation of the decree'? That was one of the prayers of the petitioners.
    No application could be made here. The case had passed from this court with its mandate.
    It remained with the court below to superintend the. execution of the mandate; and must therefore have remained open in that court.
    ■That which is here..contended is, that neither the time at which the decree is pronounced,-in this court, nor that when the mandate is filed in the court below, can be considered as the starting point, from which the limitation applicable to petitions for rehearing, and bills of revivor, is to be computed.
    This seems to. result inevitably, from-the mode of proceeding.
    The decree of this court is spoken of. But the proceeding here is but an affirmance of the decree of the court below.

      The mandat^ is the certificate of that affirmance, and the case is remanded to the District*Court for “ such further proceedings,” as. according to right and justice, and the laws of the United States, ought to be had. It is then necessarily open in that court.
    .It may do whatever “ right and justice,” and “the laws of the United States,” require to be done.
    Here it is obvious that this application is.founded on such matter.
    The impossibility of reconciling the different parts of this decree, so as to give it effect, could only be ascertained (from the vagueness of this, as of all.ofner Spanish grants,) by the experimental surveys of the United States officer.
    This suggestion' withdraws the case at bar from the authority of that of Thomas and Brockenborough, and of the rules of the English chancery.
    Repeated experimental surveys were necessary, for the purpose of ascertaining whether the lines of surveys lying in the supposed vicinity of those specified in this grant would correspond with those of. the survey referred to in the decree.' It- was only when this had been done, that the impossibility of carrying this decree into effect, without abandoning the lines of . the survey of Burgevin, and resorting to those in the grant, and the survey of Coffee, could be ascertained.
    No laches can be imputed to • the petitioners, because the time which has since elapsed is not within any- legal or equitable limitation.
    The ground upon which, however, it is apprehended- that this case Ought to be put is, that this case was still open jn the Court below for the purpose of this petition.
    The petitioners had a final decree in their favour, as ascertaining their title to twenty thousand acres.
    As they were required to do, they applied to the surveyor to ad-measure their land to them.
    This, after repeated efforts, in a wild country, he failed to do, alleging certain errors in the decree.
    When this was ascertained, application was made to the court below, so to reform the decree as -to give the petitioners the benefit of it in some form.
    This was refused, solely on the ground that such petition could not now be received.
    ' If, therefore, this cause is open for any. purpose, in the District Court, as we apprehend all such cases must be, while the surveyor is engaged in making the survey, in'obedience to the mandate; if that court could havé granted relief iq any form, upon pétition, to the appellants, then we suppose that its judgment must be reversed, as the petition contains a prayer for general relief.-

      Nelson's argument was this:
    This is an appeal from the. decision of the Superior Court of the district of East Florida, rendered on a petition exhibited in said court by the appellants, praying for certain relief, and which was dismissed by said' court'. The error alleged is, that the decree of dismissal was improvidently passed.
    The petition is spread upon the record, and need not be repeated here.
    it is sufficient to state, that it seeks to reform a decree of the court to which it was presented, passed on the-24th day -of November, 1834, and which was, at the January term, Í836, of this court, upon an appeal prosecuted by the United States, affirmed. 10 Peters, 308;
    .. The object sought to be effectuated is to make the decree availa-r .ble for other lands than those covered by it, under an allegation that the recitals in said decree are erroneous, and this it is proposed to do by the instrumentality of the" petition set out iii the record.
    The appellee maintains that the court helow, in dismissing the petition, committed no error, and that the same ought not to have been entertained by it, because of the lapse of time from thé rendition -of the decree proposed to be reformed, to the exhibition of the petition in this. case.
    The proceedings in the court of Florida were had in pursuance of the provisions of the act of Congress of the 23d of May, 1828, entitled “An act supplementary to the several acts providing for the settlement and confirmation of private land-claims in Florida,” the 6th section of which provides, that “ all claims, &c., shall be received and adjudicated by the judge of the Superior Court in which the. land lies, upon the petition oí the claimant, according to the forms, rules, regulations, conditions, restrictions, and limitations, prescribed, to the district judge', and- claimants in the state of Missouri, by act of1 Congress, approved May 26th, 1824, entitled cAn act enabling the claimants to lands, within the limits of the state of Missouri and territory of Arkansas, to institute proceedings to try the validity of their claims.’ ”
    The 2d section of the act last referred to declares, “ that every petition, which shall be presented, under the provisions of this act, shall be conducted according to the rules of a court of equity.”
    The question then to be decided is, in the view entertained by the appellees, whether, according to those rules, the petition for a rehearing, filed in this case, was in time to justify the court below in opening the original decree?
    This was passed ón the 24th day oi November, 1834, and was affirmed in this court in January, 1836, and the present petition was .-filed on the 21st day of May, 1844.
    A rehearing will not be granted, if once the-, decree has been enrolled, even if only one of several defendants has caused the enrolment. 1 Schoales & Lefroy, 234.
    Whatever may be the capacity of a bill of revivor1 or review, to open a decree thus enrolled, a petition for a rehearing is incompetent to such an end. Bennett v. Wertér, 2 Johns. Ch. Rep. 305, 3 Ch. ■ Rep. 94.
    But in this case, the lapse of time, in (analogy to the principles of law applicable to limitations^ is a bar to any relief under this petition, if not, indeed, under any form of proceeding.. 10 Wheat. 146; 8 Peters, 123.
    The 22d section of the Judiciary Act of. September 24, 1789, limits -Writs-of error and appeal’-to -five'years. 1 Story’s Laws,'60: 2 Ibid. 905, 906, sect. 5; McClung v, Silliman,. Wheat.' 598.
    Appeals in cases arising under the act of 1828 are governed-by the 7th and 9th sections thereof.
    And the 12th section provides, that claims riot brought or, prosecuted to final decision within two years shall be barfed.
    Besides, in this case, a mandate had been sent down from the Supreme Court to the Superior Court of Florida; and after a mandate, no rehearing will be granted. Sibbald v. The United States, 12 Peters, 492, and authorities there cited.
    It is a mistake to suppose, that the object of this petition was to operate upon a ministerial officer,- the surveyor-general, in the' execution of the decree of the court; its purpose was to reform the decree itself, and to assert, substantially, a new claim. This, it is re- ' spectfully insisted, it is not competent for the appellants to-do in the form they have adopted.
   Mr. Justice CATRON

.delivered the opinion of the court.

On the facts presented, one consideration is whether the petition was dismissed for a proper reason. The petition was moved on by the claimant’s counsel — and resisted on the ground that it had not been filed within the time allowed by law, arid the rulesrof the court-: and it is insisted it was dismissed for. this reason, which is insufficient ; as the-bar of five years cannot be interposed under the circumstances. If this had been the reason given, it would be imma'terial, if die order was proper for other reasons. The 32d section of the Judiciary Act prescribes the duty of this court in such cases, and directs it to proceed and give judgment according to the right of the cause, and matter in law, without regard-to any imperfections in the judgment.

But we do not apprehend any imperfection to exist; the court says — “It,is considered that a petition for a rehearing cannot now be entertained by this court, in this cause:” And why not? In 1829, a proceeding was instituted in the Superior Court of.East Florida bv the claimants for the confirmation of a claim for twenty thousand acres of land granted to Arredondo: In 1830 that court declared the title valid, on the facé of the title-papers; this fact existing, the next presented for ascertainment was the sufficiency of the description as to the general locality of the land granted. But the duties of the. court did not end here; by the 2d section of the act of 1824 it was not only given full power and authority to hear and determine all questions arising in die cause relative to the validity of the title, and •the descriptive identity'of location on the face of the title; but thirdly to settle the precise boundaries of the land on the ground; founding its decree on an existing survey, if a proper one was produced, and if not, to let-the party proceed according to the 6th section of the act. On the face of the' title no material difficulty seems to have arisen; but to identify the land called for was most difficult,' and probably impossible:- If the grant had been..unaided by a survey, it cannot well be perceived how it could have escaped from the principles on. which were rejected the claims of Forbes, Buyck, and Joseph Delespine, (found in 15 Peters,) and of Miranda, (in 16 Peters.) To avoid doing so, the land was decreed by metes and line-marks, founded on a survey (purporting to have been made for the land granted) by Don Andres Burgevin on the" 14th of September, 1819.

This survey, it is contended, is for land lying in a different locality from that referred to in the grant, and being so, it is urged, that according to the rulings of this court, no surveycould .be made for any other land than that granted after the 24th of January, 1818 as this would in effect be a hew grant, which the treaty prohibited after'that date, according to the cases of Clarke and Huertas, in 8 and 9 Peters, and that of Forbes, 15 Peters, 182; and there being no-equivalent provided in the'grant to except the case from these principles,-the survey could riot legally be the basis of a decree.

This may have been true, and, the decree for the Jand contained in Burgevin’s survey erroneous; but the question is, whether the . court below had any- power to-correct it? If it hád not, fhon no petition for such purpose could be heard, either on the part of the United States, or the claimants in that court.

From tire decree made in 1830, an appeal was prosecuted by the United States to this court; the claimants rested content, and prosecuted no cross appeal. 10 Peters, 308.’, On a hearing, the decree below was affirmed for the specific land, and the cause remanded for further proceedings, to the end that: a patent might issue, pursuant to the 6th section of the act of 1824, which declares it shall be for the land “specified in the decree;”.and prohibits a survey for any other land, unless that decreed' has been disposed of, when a change is authorized by the 11th section; but as no -other appropriation of the land set forth in the decree is. alleged to exist, this circumstance is' out of the present case,

The claimants not being willing to take-the land in Burgevin’s Survey, assumed the right to have a resurvey made, or to have adopted that, made by JoshuaiA. Coffee, on their behalf, in 1834, which they allege is at the place, called for in the grant; and this on the ground that the decree of 1830 is inconsistent, it being in confirmation of the land granted, and also of Burgevin’s survey — r the places-not being the-same. This change was refused at'the land-office here, for the, reason that the decree excluded such a change until it was altered by the proper judicial authority. For . this purpose the petition for, a re-hearing was filed, seeking to have the decree of 1830 reformed, and that part of it establishingiocality and 'boundaries set aside or disregarded, and the land located elsewhere. This the Superior Court of East Florida had no power to do, on the facts set forth by the petition, because the decree of this court, made in affirmance of that made below, is conclusive on the inferior court; and it has no authority .to disturb it by the mode proposed, but can only execute our mandate, and settle so much as remains to be done. For the principles governing in like 'cases, we refer to the ex parte application of Sibbald, and the rules there laid down, (12 Peters, 489, 490,) to which nothing need be added; as they are altogether adverse to the present proceeding, and show that the petition was properly dismissed.