The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1900-07-02

government itself and that of the states
1t would not be contended that it extends
so far as to authorize what the constitu-
ton forbids. or change in the charac-
ter of the government. or in that of one
of the states, or a cession of any portion
of the territory of the latter without its
consent" Geofrey ys. Riggs, 1873 y. s.
266- Citing ia U. S. SIS.
If the government can not by treaty
do what the Constitution forbidS, then
the attempt to deprive the inhabitants
Of their civil rights under the Constitu-
ton must come to nOught but shame to
those who have made the attempt.
But we are not left 10 argument to
learn whether the Constitution of its
The supreme court has decided that
question in as plain English as can be
written. The question first came before
them in 1858: The question before the
court was whether, by the treaty with
Mexico, California became a part of the
United States and whether the Consti-
tuition of the United States extended
thereto. The court affirmed both pro-
positions, and in speaking of the de faCto
government of California as it existed
in 1S48, they say: This de facto gov
eminent will, of course, exercise no
power inconsistent with the provisions
of the Constitution of the United States
which is the supreme law of the land"
Cross VS.. Harrison, 16 u. s. 1874. Ma
goon's opinion of 1889 recognized this
case as conclusive that the ConStitu-
This question again came before the
court in 1856, in what is known as the
bred Scott case, 10 Howard 450. There
were two questions decided in this case:
l. Does the Constitution of its own vigor
extend to the territories2 2. Are slaves
property within the meaning of the
Constitution? Both propositions were
decided in the affirmative, the first by
a unanimous court and the second by a
divided court. By amendment to the
Constitution the second has ceased to
be practical question; but the first
stands as the law of the land, never
having been overruled by the court.
In deciding this case the court said:
THE powers over persons and property
granted to congress, but in express
terms denied, and they are forbidden
to exercise them, and this prohibition
is not confined to the states, but the
words are general, and extend to the
whole territory over which the Consti-
tuition gives it power to legislate, in
Guiding those portions of it remaining
under territorial government, as well as
that covered by the state. 1t is a total
absence of power everywhere within
the dominion of the United States"
10 Howard 450. That the court was I'M
animous on this proposition is shown
by the fact that the dissenting justices
concurred in this portion of the opinion
Council for plaintiff had argued that
the power of congress over the terri
tories was plenary and unreStrained by
the Constitution, and for that reason
they had power to exclude slavery from
the territories. Replying to this argu-
ment, Mclean, J.. dissenting, said: Did
Chief Justice Marshall, by saying that
congress governed the territories by ex-
ercising7 the combined powers OF federal
and state governments, refer to unllmlt-
ed discretion? A government that can
make white men slaves2 Surely such
a remark in the argument must have
been inadvertently uttered. No pow
ers can be exercised which are prohib-
contrary to it's spirit" p. 542. And Cur
tbs, J., dissenting, said: IF, then, this
clause does contain a power to legis-
late respecting the territories, what are
answer, that in common with all other
legislative powers of congress, 1T finds
its limits in the express prohibitions on
congress not to do certain things" p.
GA. To the same effect is National Bank
VS.. County of Yankton, 101 U. s. 1873.
The court again had this question up
in Murphy VS.. Ramsey, ia U. s. 44-45,
and say: 1.-The people of the United
States, as sovereign owners of the ma
tional territories, have supreme power
over them and their inhabitants. In the
exercise of this sovereign dominion, they
are represented by the government Of
the United States, to whom all the pow
ers of the government over the subject
have been delegated, subject only to
such restrictions as are expressed in the
Constitution, or necessarily implied in
it's terms.
1.-THE personal and civil rights of the in
habitants of the territories are secured
to them, as to other citizens, by the
principles of constitutional liberty
which restraints all agencies of govern
ment, state and national" We find
among the authorities cited to maintain
this opinion that much maligned bred
Scott case. And the same doctrine is
affirmed in the Mormon church case, 136
U. S. A.
The supreme court has gone even far
Their and decided that aliens within the
Jurisdiction of the United States were
bound, benefited. privileged. and con-
ditioned" by the constitution while
he Can alien) lawfully remains here he
is entitled to the benefits of the guaran-
ties of life, liberty, and property, secur-
ed by the constitution to all persons Of
whatever race, within the jurisdiction
of the United States. His personal rights
when he is in this country and such of
his property as is here during his abb
sence, are as fully protected by the SUI
preme law of the land as If he were
native or naturalized citizen of the Uni
ted States" Lem Moon Sing VS.. the
United States, 1853 u. S. SAT.
Again in 166 U. s. 464 our supreme
court expressly said that the constitu-
ton extended to the territories by it's
own vigor, ex prOpria vigore, and in the
same volume at 707, in SpringviHe VS..
Thomas, the court says: I'm our opinion
the seventh amendment secured unani-
nifty in finding verdict as an essen
tial feature of a trial by jury in com
mon law cases, and the act of congress
could not impart the power to change
the constitutional rule" This decision
held an act of congress relating to Utah
territory to be unconstitutional and
void. How can an act of congress re-
lating to a territory be unconstitutional
If the power of congress therein is un-
limited?
AS late as 1897 this proposition was
again before the supreme court, and they
held: That the provisions of the Con-
stitution of the United States relating to
the right of trial by jury in suits at COM
mon law apply to the territories of the
United States is no longer an open ques-
ton Webster vs. Reid. IL Howard, 4s7
S. 464; SpringvilIe VS.. Thomas, 1855 U. s.
707. In the last named case it was claimed
that the territorial legislature of Utah
was empowered by the organic act of the
territory of September 9. 1856. (Stat. 453,
CHI 81, sec. g. to provide that unanirnity of
action on the part of jurors in civil cases
was not necessary to a valid verdict.