New-York tribune. [volume] (New York [N.Y.]) 1866-1924, 1900-04-02
CHIEF JUSTICE MARSHALL'S VIEW.

1.-THE Boston Transcript takes The Tribune to
task for its views of the power Of Congress to
govern territory without regard to the rules and
limitations Of the Constitution, and, referring to
recent speech of Congressman Crumpacker,
says:
In his address of acknowledgment he did not
quote John c. Calhoun, but he did quote Chief
Justice Marshall, for whose opinions The Tribune
ought to have some respect
The Tribune has great respect for Chief JUS
tce Marshall, and looks in his exposition of the
Constitution for some of the strongest state
ments of the pIenary power of Congress in gov
erning territory. 1t is we'll aware that he once
uttered dictum about uniformity of taxation
throughout the whole American empire" which
has been much quoted by persons who, though
they object to expansion, are bound that, having
expanded, we shall take the Puerto Ricans and
the Filipinos into full partnership under
Constitution and let them help rule us. That
remark was no essential part of the Chief JUS
tees argument, and the decision of the case
involved no denial Of the power of Congress
over the Territories, but rather It's assertion to
the full extent needed to uphold the particular
law under consideration the levy of a direct tax
in the District of Columbia. The dictum is a
passing expression Of opinion entitled to respect
full consideration such, not studied declara-
ton of the law given as an authoritative settle
ment of the question of Congressional power.
When we seek Chief Justice MarshallS careful
judgment on that point we must look to his
decisions directly involving it, not to his chance
dictum in the argument of another matter.
This authoritative expression of his views is.
for instance, to be found in his famous opinion
in the case of the American Insurance Company
against Canter, when he upheld the power of
the United States Government TO rule Florida
In violation of general provisions of the Consti-
tuition directing how every exercise of the
judicial power of the United States of the Con
stituton should be made. He declared that
local courts in Florida not established under the
Constitution or according to its prescription and
incapable of receiving the Jurisdiction of consti-
tutiOnal courts, might at the discretion of Con
gress exercise in the Territory jurisdiction con-
ferred by the Constitution exclusively on the
courts created by It, These Territorial courts,
he said, "are legislative courts created in virtue
"Of the general right of sovereignty which ex-
lists in the Government or in virtue of that
clause which enables Congress to make all
''needful rules and regulations respecting the
territory of the United States" That was
Chief Justice Marshals deliberate declaration
Of the power of Congress TO govern territory
outside the Constitution as a general act of
sovereignty. If Congress could administer JUS
tice in Florida regardless of the broad rule of
the Constitution for all exercise of 1.-The judicial
power of the United States" Congress could
manifestly perform other functions of govern
ment in the Territories with similar freedom
from constitutional checks
1t is interesting TO note that it was in this
case. arguing for the decision which the Court
in due time gave him. that Daniel Webster
made his well known exposition of the doctrine
that Territories not governed by the Consti-
tuition. He said
What is Florida? It is part of the United
States. How can il lie? How is it represented?
Do the laws of the United States reach Florida?
Not unless by particular provisions The Terri
tory and all within it are to be governed by the
acquiring power, except where there are reserva-
lions by the treaty. Florida was to he
governed by Congress she thought proper
What has Congress done? She might have done
anything-she might have refused trial by Jury
and refused a Legislature.
For the constitutional opinions of Daniel Web
ster Massachusetts at least ought to have some
respect, particularly when they were backed
up by the favorable decision of Chief Justice
Marshall and the Supreme Court