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

| riparian rights on the Columbia river
and in disposing of this question of pri-
vate ownership of real estate had no &C.
| casion to, and did not. decide whether
| the Inhabitants were bound, benefited.
! privileged. and conditioned by the con-
stitution of the United States''
| In the case from Howard, quoted
from by the administration, 1t again
orn1tS an important statement from the
| opinion of the court. After the words
| quoted from in that case the court con-
| tinues: Whether, or not, there are
| provisions in that instrument (the con-
| stitution) which extend to and act upon
| these territorial governments, it is not
now material to examine. We are
| speaking here of those provisions that
refer particularly to the distinction be-
tween federal and state jurisdiction"
| Here, again. the administration fails
| to tell US how a decision that specifi-
cally refuses to decide a certain ques-
| ton can be used, in good faith, to sus-
| tain a proposition that the court then
| specifically refused to decide
And the administration attempts to
/ justify it's position by devoting seven
| pages to speeches in congress and the
case of ms. Co. VS.. Canter Peters 511.
| (Magoon PIP. 1850. The organic act of
! Florida territory provided that no act
of its legislature should be valid if in
consistent with the Constitution of the
United States, in this respect being sim
! liar to the organic acts of the territory
| of Orleans and of Louisiana.
| The administration says: 1T was in
| sisted that the Constitution gave ex-
| elusive jurisdiction of such matters to
! the federal courts; that the Constitution
| was in force in Florida, and therefore
| the acts of the territorial legislature
| giving jurisdiction in admiralty cases
| to the territorial courts was in violation
| of the Constitution" 1t was this pro-
position which was denied by Mr. Jus
| tice Johnson, sitting as circuit justice,
and the denial affirmed by the supreme
court" CMagoon, p. Sd This appears
to be a deliberate misstatement of what
4ln Tr~f IN
status of the territory of Florida, the
court says, p. 542: This treaty is the
law of the land. and admits the inhab-
itants of Florida to the enjoyment OF
| the privileges, rights, and immunitleS
of the citizens of the United States. 1t
| is unnecessary to inquire whether this
is not their condition independent of
! stipulation" And in giving judgment at
the close of the opinion, the court says:
I'VE think, then, that the act of the ter
ritorial legislature is not inconsistent
| with the laws and Constitution OF the
United States, and is valid"
THE REAL QUESTION AT ISSUE
Here, then, is the real question in
| controversy Was the law in cOntro-
| Constitution of the United States? The
| court held that it was not inconsistent
herewith and for that reason was valid 1
| Certainly a very different thing from
/ deciding that the inhabitants of Flor
| ida we're not bound, benefited, priv
ileged and conditioned by the Constitu-
| But to further sustain its case, the
| administration says: Although con-
| gress had thus legislated directly for
! Louisiana and the inhabitants of that
| country, President Jefferson did not
| consider the territory bound and bene-
| fitted by the Constitution, nor its inhab-
| itants entitled to the rights, privileges,
/ and immunitieS guaranteed by the Con-
| Stitution to the inhabitants of the Uni
| ted States" (MagOon, p. 81. But Jeffer-
sons official communications hardly
| bear out these assertions. In writing
| of the treaty ceding Louisiana to the
United States, Jefferson says: when
| these shall have received the constitu-
tional sanction of the senate, they Will
without delay he communicated to the
representatives also to exercise their
| functions as to those conditions which
are within the powers vested by the
| Constitution in congress" messages OF
the Presidents, vol. 1, p. $3.50. Again on
| D. 49, justifying his adminiStra ton in
his second inaugural address, he
| says: I'm matters of religion L
have considered that its free exercise is
| placed by the Constitution Independent
! of the powers of the general govern
ment. I have therefore undertaken on
| no occasion to prescribe the religious
! exercises suited to it, but have left them,
as the Constitution found them As the
/ only place where he would have had,
under any circumstances, chance TO
| interfere with religion was Louisiana,
| the above quotations show that Jeffer-
| son considered both congress and the
/ ton in Louisiana.
| And the administration, also, seeks
| consolation in acts of congress and
| claims that congress has. at all times,
| proceeded upon the theory that the con-
stitution only reached the territories by
congressional favor. tMagoon, PIP 40,
47). AS a source of argument, investI-
| cation shows that congress has over
| done the matter. The organic act of
every territory organized since 1850 has
| contained a section extending the con-
stitution over the territory. In 1880 an
| act was passed extending the constitu-
| ton over all territories then organized or
| thereafter organized But in 1854 the
| constitution was extended to the terri
| tories of Kansas and Nebraska by their
organic acts Colorado was afterwards
| organized from territory taken from
| Utah and Kansas over which the con-
| stitution had been duly extended Yet
| the constitution was again extended
| ever this territory as uSuaLArlZOna ana
| Dakota were formed out of territory
over which congress had extended the
| constitution, and by the organic act of
each the constitution was again extend
ed over them. These acts of congress
are either a formality, possibly a pre-
cautionary one, or the constitution is
very uncertain thing in territory
| likely to slip off almost any time
| Now, it Is a matter of history that in
| the organization of territories prior to
| 1850, congress never passed an act eX-
| tending the constitution over any terri
tory. Why did congress begin at that
! late day? The answer is, again, a mat
| ter of history. California was admitted
as a free state and this had carried free
territory south of the line of the Mis-
souri, compromise. The slave-holding
| interests believed they had some ad-
vantages under the constitution. They
wished to guard against the south
VESTS being captured for free territory.
The question whether the constitution
| by it's own vigor extend to the territor
! les had not yet been before the supreme
court So, as a precautionary measure
made so to them by the admission of
/ California as a free state, the slave
holding interests. by act of congress, in
| 1850, extended the constitution to New
| Mexico and Utah, and to all territories
heretofore or hereafter organized. and
later to the territories of Kansas and
| Nehra ska And the precedent. thus es-