Delaware gazette and state journal. (Wilmington, Del.) 1883-1902, 1900-05-10
Worst Form of Tyranny.


Lochien tiled in tie United States
Circuit Court his decision on tho
application of Rafael Ortiz, Porto
Rioan, TO be released from the Min
nesota State prison.
Ortiz was convicted by military
tribunal in Porto Rico for the murder
of a United States soldier and con-.
demned 70 die The sentence was COM
muted to life imprisonment. The
application for release was hased on
the claim that the military authorities
bad no jurisdiction over Ortiz, that
peace had been declared and that he,
should have had civil trial.
Judge Lochrcn refused tho appli-
cation in an oral decision Thursday
last and on Monady f led an exhaustive
opinion ir the case. The decision bears
largely on constitutional questions
which have arisen on the position of
Porto Rico as territory Of the United
States Among other things, Judge
Lochren holds:
Our general government was founded
by the men of tho Revolution, who had
reballed against the arbitrary power
asserted by Great Britain to govern
her outlying colonies at the will Of her
| Parliament They established this
| government upon the asserted theory
that all Just powers Of government
come from the consent of the governed.
They founded, as described by Presi-
dent Lincoln in language not yet for
| gotten, - government of the people,
| by the people. for the people" 1t will
be, indeed, marvellous il 1t is made to
appear that these men who then
founded our national government so
constructed it that IL is capable of
ruling with unlimited power q subject
| people who have neither guarantees to
| protect them nor any voice in the
government. This is foreign absolutism
tho worst form Of tyranny.
If the Constitution does not extend
to Porto Rico and our other new
acquisitions of territory, Congress has
the untrammeled, absolute power Ia
establish subject governments or make
laws for such territories. 1t has
the power to establish dependent
monarchies or sarapies, State re-
ligioDs, and evcn slavery.
The national government Of the
United States was created and its
powers and jurisdiction granted and
limited by tho Federal Constitution.
Its towers can only be increased by
amendment OF that instrument.
/ The power of the general government
TO acquire additional territory rests
upon its constitutional power to make
war which may result iu conquest. and
its like power to make treaties, which
may bring territory by cession. The
power to govern such acquired ter.
ritories results from the power to
admit new States ard to make all
needful rules and regulations respect
ing the territory or other property be-
longing to the United States.
This clause authorizes Congress to
legislate IN respect to n territory ia
local as well as national matters before
Its admission to statehood IN the
Union.
The novel doctrine that the power Of
Congress to govern territory coded to
the United States may be conferred by
a foreign sovereign. by and through
the terms of the treaty OF cession, and
that the general government can eyer.
else powers thus granted by foreign
sovereign independent of and IN dis.
regard of the Constitution, until Con.
gress, mayhap in the future, shall by
Its enactment sue fit to extend the Con
stitution over the territory Is contrary
to the holding of the Supreme Court
of the United States to the effect that
the general government IS one Of
enumerated powers and can claim anc
exercise no powers not granted to i
by The Constitution, either expressly
or by necessary implication. II Is cleal
l that ha
legislate over territory where the Con
! stitution from which its every power il
derived does not extend. The Cunsti
. tuition mrst be in force over u territor,
before the general government eau hav,
any authority to legislate respecting it
No foreign sovereign can invest tn,
general government with any leeis
! latiye power.
al Unjust be held that upon the cessiol
by Spain to the United States of tn
Island of Porto Rico, that island be
onme q part of the dominion of tn
, United States, rs much SO as il
] Arizona or Minnesota, and that th
Constitution OF the United States, o,
proprih vigorc, at once extended owe
the island, and that this extension o
the Constitution gave Congress, who's
every power must come from that in
strument, the authority to leeislate il
respect to that island as part of tn
United States territory.
1t follows that all the provisions o
the Constitution in respect to persona
I and property rights, including tn
T right to trial by jury in orimina
: prosecution, became at once, whei
l.. tho cession was completed, part @
the supreme law of the land.
: This decision by Judge Lochren
= most important in its bearing. 1t i
: directly against the policy of the ad
: ministration that Porto Rico is nc
United States territory. and that II
> trade can be hampered by tariff i'm
positions. 1t IS in line with wha
President Mckinley conceived TO
4 "our plain duty when he sent hi
v message to Congress, although later h
1t "changed his mind'' at the behcst {
o the tariff benefciaries.
!. The case may go to the Suprenl
!. Court of the United States, and if
!, does there is every probability tht
l. Judge Loohren's' position will be su.
tanned by that body.