The Scranton tribune. [volume] (Scranton, Pa.) 1891-1910, 1900-06-27
The Constitution and
the New Territories

nj sion from the Republican ma
tional platform of the plank
declaratory of the administra-
tions policy with reference to
the government of new territory, the
constitutional question involved is cer-
tain to figure largely in the discussions
of the ensuing campaign. Below Will
be found an exhaustive contribution to
the literature of this subject from the
Republican standpoint, being an ad-
dress delivered yesterday before the
Pennsylvania Bar association by the
solicitor general of the United States:
On April II, 1890, an unanticipated war,
waged in the interest of humanity, distinguish
ed by an unbroken succession Of glorious victor.
les on land and sea, and memorable always as
marking epoch in the history of the Re.
public was formally ended by the exchange Of
ratfcations OF the Treaty OF Paris, whereby
Spain ceded to the United States Porto Rico,
Guam and the Philippine Islands.
The acquisition of these Territories, situated
in distant tropical seas, and inhabited by alien
races, savage scmi.civilizcd, strangers to our
system Of law and mode Of government, with
the accompanying obligation of governing
them as to secure and preserve peace and order
and protect hfe and property, has brought US
face to face with problems, more or less serious
The serious problem is how to govern them; un-
DERIVING it is the question whether the con-
stituton forbds to give them the govern
ment they need The former is question OF
policy, the latter a question Of law. To the dis
cussion Of the latter, as the more appropriate
for the occasion and the audience, | shall ad.
dress myself.
The question Of the power OF congress over
the territories is an important but not new
one. 1t seems new, but it is as old as the con-
stitution itself. We had a vast territory when
the constitution adopted and expected to ac-
qu;re more, so express provision for its govern
ment was made. The purchase Of Louisiana, and
the government Of that enormous region, scantily
populated by the people Of many races and Of
every degree OF civilization, forced Jeferson's
administration to find practical solution Of
this question. They were the strict construction
lists Of that early day. but they promptly took
the view that the Limitations Of the constitution
applied only within the states united under the
constitution, and that congress entirely free
to govern Louisiana the existing conditions re-
quired And this view carried into legisla-
tion. The same thing was dcne in the case Of
Florida, and the Supreme court upheld it. In
deed, the cry "The Constitution follows the
Flag" was not heard until after the Mexican
war, when the grapple between freedom and
slavery in the territories forced Calhoun to
bring forward the doctrine that the Constitu-
tion ex proprio vigore extended to the terri
liberty, but the safeguards of slavery. As
Thomas Benton says in his Thirty Years View
(Vol. 2, page 713):
A new dogma was inverted to fit the case
that of the transmiGration of the Constitution
(the slavery part of it) into the Territories,
overriding and overruling all the ntislavcry
laws which il found there, and planting the
institution there under its own wing, and main
tanning it beyond the power of eradication
either by congress or the people of the Territory.
Webster Fought the Dogma.
The great expounder and defender of the Con.
stitution, Daniel Webster, fought this dogma in
the senate, but the Supreme court, in 1856, in
the Dred Scott case, approved and applied it,
holding the Missouri Compromise of 1920 un-
constitutional and declaring that congress had
no power to prohibit slavery in the territories
According to the construction thus sanctioned,
wherever the flag flew the constitution went,
carrying with it human slavery. The Const.
tuition so construed naturally denounced by
he Abotionists as "a covenant with death and
league with He'll" Acquescence in the de-
,ison as a rule of political action was impos.
sible for those who believed slavery wrong and
so a new party was formed, pledged to the
proposition that congress could control as to
slavery in the territories, and Abraham Lincoln
was elected president, and the civil war came,
and on a thousand battlefelds the supremacy
OF the nation over national matters was vind-
Gated and established then and for all time.
1t was supposed this doctrine of Calhoun's,
brought forward to extend and perpetuate slav.
cry, was buried with slavery, but here it is
again. threatening mischief and potent for evil
And now let us examine it closely.
Reduced to a legal proposition, the denial Of
the power which is being and must be excr-
ciscd by the president and by congress in cur
new territories, amounts TO this Coded terri
tory becomes by the act Of cesson integral
part of the United States, to which the consti-
tuition ex proprio vigore at once extends, plGc-
ing its people, its products and its ports on an
immediate equality with ours, and comforting
upon them all the rights, privileges and i'm.
munities enjoyed under the constitution by the
people, the products and the ports on an i'm
mediate equality with ours, and conferring upon
them all the rights, privileges and inmuniti2s
enjoyed under the Constitution by the people,
the products and the ports Of the several states
Moreover, the limitations Of the Constitution ap.
ply there as here, requiring same taxes, m
posts, duties and eXcises TO be collected and the
same AngoSaXon system of trial by jury to be
used. Their people become at once our people,
citizens of the United States, our ports become
their ports, and markets their markets;
they are free to come here or to send their
products here, while taxes and our laws,
although wholly unsuitable must 20 there.
There is nothing obscure about this doctrine
II il plain and unmiStalahlc The act of ceSsion
Is all powerful, its effect mml table. As soon as
the title passes, the territory becomes a part of
the United States. and the Constitution, cx
propro vigore, does the rest. This proposition
is true it is stated or not true at all. Either
the mere act Of cession makes territory a part
OF the United States, or il does not; either the
Constitution extends as Constitution immed-
lately and Of its own force, or it does not OK
tend as Constitution at all. Moreover, if the
affirmative be true, the treaty making power,
,e rt1,- tol -
providing for the mere act of cesSion. II can
make no terms; it cannot make for this purpose
or that; it can give no pledges it can grant
no privileges; it can reserve no questions for
future disposition; in short, although called the
treatymaking power, and granted without limta.
tion, it is stripped of its proper functions, it
cannot treat. it is lame, impotent, impossible,
ridiculous.
President Cannot Extend Boundaries.
On the other hand. if the territory does not,
by the act OF cession, become Immediately an
integral part of the United States, il the Con-
stitution does not proprio vigore extend over
It then, OF necessity the provisions of the treaty
and the action of congress must determine
whether it shall or shall not become or be
deemed part Of the United States in the con.
stitutional sense, and if ever, when? In other
words, the disposition and government Of the
acquired territory rests with the treaty-making
power and with congress. The president can
not extend the boundaries OF the United States.
1t takes the legislative power to do that, and it
may do it upon what terms it deems best.
II IL takes action by congress TO send the
Constitution and the laws OF the United States
into the territory. or stated differently, to bring