The Seattle post-intelligencer. [volume] (Seattle, Wash. Terr. [Wash.]) 1888-1914, 1900-05-09
JUDGE Lochren's Decision.

case OF Raldel Or1lz, involving the
constitutional question of the status
of Puerto Rico. Is probably as able
an argument as can or will be put
forward by those who hold to the CAL
houn theory of construction of the con-
stitution. SO far as 1t attempts to lay
down the law in this respect, the opin-
ion is merely obiter dictum. The de-
cision of the case is against the right
of the petitioner to be released on
habeas corpus. and the conclusion
reached is on grounds entirely outside
Of the constitutional question, the con-
sary to the determination OF the case.
Judge Lochren's constitutional argyll
ment is, therefore. simply a political
speech, interjected into the midst of
decision, for the purpose OF throwing
the weight of his judicial position in
support Of a political contention that
involves one of the issues in the ma
tional campaign. 1t is, in this portion
Of II. in no sense decision Of a court
on a question presented to 1t for adju-
dication.
To the student of politicar history.
the arguments presented by Judge
Lochren have a decidedly familiar air.
They are precisely the same as those
advanced against the right of the
United States to acquire territory at
all. Thomas Jefferson, the founder of
the Democratic school of constitutional
construction. was firmly Of the opinion
that he had no constitutional power to
make the treaty by which Louisiana
was acquired, for the reason that there
was no express grant Of power in the
constitution to acquire territory. His
statesmanship rose superior to his mar
. treaty; although he afterwards pro-
posed seriously to have a constitutional
amendment adopted in order that
ratification might thus be had Of what
he considered an Illegal act. When the
supreme court of the United States de-
cided, however, that the power to make
war and to make treaties carried with
1t, "by necessary implication" the pow
er to acquire territory. the whole the
DRY that the federal government had
no powers beyond those expressly
granted by the constitution. fell to the
ground
When the first government was In
stituted for the first foreign territory
acquired after the adoption of the con-
stitution. precisely the same arguments
as those now made by Judge Lochren
were advanced against the power Of
congress to set up any form of gov
eminent in the territory so acquired.
When the question was presented TO
the supreme court of the United States.
in the case of the American Insurance
COMPANY VS.. Canter. coming up from
the newly created territory of Florida,
governed then solely by appointees Of
the president, the issue was raised
squarely. The constitution had made
no direct provision for the acquisition
of new territory, neither, as solemn
matter OF fact, had 1t made any ex-
press provision for the government OF
such territory. Yet here was case
presented where territory had been ac-
quired and where Il was necessary for
1t to be governed. constitution or no
constitution.
The supreme court OF the United
States might have. indeed 1t should
have, faced the situation and enuno!-
ated at once and for all time the true
principle that the federal government
has as a necessary element of sover-
eighty. and by necessary implication,
all powers necessary for the proper per-
| Torrance OF its duties. Instead OF do
ing this. however. the supreme court,
under the influence Of the strict con-
struction dogma, sought In the constI-
tuition itself for a remedy and found II
by distorting and perverting from its
original meaning a clause intended :or
an entirely different purpose.
This power IL was indispensable
should be exercised. The supreme
court was simply looking for some ex-
| cuse within the constitution itself to
| Justify 1t, and took this one. From that
time on. however. the power Of con-
| gress to govern the territories, and In
so doing 90 exercise the combined pow
| ers OF the state and federal govern
ments, has been upheld by the SUI
preme court. although for many years.
/ and until the war. this power was
strenuously denied by the Calhounites.
! of whom Judge Inchren Is a haIatad