The Salt Lake herald. [volume] (Salt Lake City [Utah]) 1870-1909, 1899-02-12

renee of the executives: and, If so, why
except where the constitution is in force
in res -,ect to that act, and defines anc
limits and qualities the power Of con
gress? If the act of congress is invalid
unless it receives the concurrence Of
the executive and must be manifested
in accordance with the forms of proceed
ure which that instrument Drescribes
must it not also be in conformity with
all the limitations and qualifications
which that instrument DreScribes as
qualifications and limitations upon the
exercise of congressional authority?
THE KILBOURN CASE
There is one case in the supreme
court, which arose in the District OF
Columbia, which is an apt illustration
of the contention / am now making
The house of representative made an
order. Kilbourn refused to obey that
order. The house of Representatives
passed a resolution directing it's SER
ge9nt- atarms to arrest and detain Kill
bourn for violation of the order. That
order was complied with, and KilbOurn
appealed to the court. He claimed that
no authority had been conferred upon
the house of representatives by the con-
stitution to make the original order;
that the order was invalid; that all the
proceedings based upon it We're equally
III ciilus llldl Ills was
unlawful. He was discharged upon a
writ of habeas corpus. Afterwards Kill
bcurn sued the Sergeant-at-armS OF the
house of representatives and certain
members of that body for damages re-
sulting to him by reason of his unlaw-
full Imprisonment, and he recovered a
verdict for a very large amount, which
was carried to the supreme court of the
United States and there affirmed. The
n
in that case is an instructive one.
The court said that the house of rep
resentatives is not possessed with the
omnipotent powers of the house of par
lament of Great Britain, but possesses
only such powers as have been express
ly conferred upon it by the constitu-
ton, or such as are necessary to carry
into effect the powers which have been
granted. The court searched the con-
stitution and found that the authority
which the house of representa- tiVeS I'M
dertoOk to exercise in that case did not
exist They, therefore, held that the
Imprisonment of Kilbourn was unlaw-
full, and that not only the sergeant-at
arms, the officer Of the house, but men,
bers of the house aiding and abettfng
in the unlawful Imprisonment were
liable for the damages which Kilbourn
sustained by reason of his imprison-
ment.
Mr.. President, extend that principle
to the two houses of congress, include.
if you please, the executive, apply the
doctrine to him, and make it applicable
to the District of Columbia or to any
one of the territories. Suppose that
both houses of congress passed an act,
duly approved by the president accord
ing to the method prescribed in the
directing the imDrison-
ment of some man anywhere within our
domain who owes US allegiance
and who is entitled to the reciprocal
benefit of the equal and just protection
Of our laws and the safeguards of our
liberty, and he should be imprisoned in
accordance with that act, and the case
was brought to our highest tribunal
and a search made for the authority
expressly conferred upon congress TO
make that order, to pass that act, and
no such authority was found or i'm
piled as incidental to the existence of
any authority expressly conferred in
that instrument, what would follow?
The tribunal which passed that act
would be liable, according to the deci-
sion of the supreme court of the United
States, for the damages which that
person would suffer. There is one step
further. Suppose he We're executed by
Command of the president without au-
-nOAlly u6LINdDIG any where OT by any
means from our constitution, would
lot the president. if such act were de-
1ned and recognized in the municipal
aw applicable to the territory, be gull
y of murder?
Mr.. President, we cannot take one
step anywhere within the limits of our
rational domain as affecting the rights
# the meanest of any of the inhabit-
lnts dwelling anywhere therein owing
ue of the constitution No matter how
many of the departments authorized
participate in that act. they stand upon
he footing of mere intruders, maraud-
rs and pirates when they infringe
lpon the right, the liberty or the prop
rty of the inhabitants anywhere with
n our national domain except in the
exercise of power which has been con-
erred upon them by the fundamental
aw of our land. Therefore l state
hat to prove that the constitution is
My operative within the states proves
90 much for the purpose Of those who T.
ssert it.
ACT OF CONGRESS NOT ENOUGH. /
Now, as to the proposition that the /
constitution can only apply to the ter [
cries if extended there by an act of I
OngresS, that, when we analyze il.
ct of congress is an Insufficient basis /
pom which to rest the constitution. +
he constitution cannot rest upon an
CT of congress, but an act of congress
lust rest upon the constitution, and
l every instance must depend for its (
ability upon the authority which that
iStrument conferS upon congress to
nact it.
What is the proposition. when it is
n 1arbi ie
resented here to justify the procedure
hich is proposed in regard to the
by some senators. The
is that the constitution can
OF be in force in the territories eX-
apt by virtue of an act of congress. 1t
equally certain that an act of con-
ress cannot be in force in the terri
)rieS except by virtue OF the constitu-
on. In logic that is what is called a
ciouS circle.
The senator from Massachusetts NIr.
odge), stating the propositions which
2 did-namely, that the constitution
I'd no operative force out of the states
nd that it could only be made applic-
Die by virtue of an act of congress
lid that such had been the course and
'actice of this government. No such
-ecedent and no such practice has
zen presented to US. Every precedent,
neither legislative or judicial is
yainst the senator's contention. All
y life has been spent in a territory.
Or twenty-five years 1 have practiced
W there, and never before did / hear
lybody arise in his place and contend
at the safeguards of the constitution
ere not a vital and living force any
here III the territories. Time and
;ain l have searched the constitution
find safeguards to protect the rights ]
my clients, citizens of a territory,
Id many cases 1 have carried to the I
CHEST judicial tribunal in this land. {
Ii hn,-a honr, IIn e.11.cnecfI1lIrr Il, 1