Evening star., 1900-05-08
JUDGE LocHREN's OPINION
DELIVERED IN CASE OF PORTO
RICAN ORTIZ.
His Trial by Court-MnrtiaI Was Legal,
as Constitution Extends
a
to Islands.

Ortiz was convicted by military tribu-
nal in Porto Rico for the murder of a
United States soldier, and condemned to
die. The sentence was commuted to life
Imprisonment.
The application for release was based on
the claim that the military authorities had
no jurisdiction over Ortiz; that peace had
been declared, and that he should have had
a civil trial
Judge Lochren refused the application In
an oral decision Thursday last, and today
filed an exhaustive opinion thereon.
The decision states:
our general government was founded
by the men of the revolution, who had
rebelled against the arbitrary power as
serted by Great Britain to govern her out
lying colonies at the will of her parlia-
ment. They established this government
upon the asserted theory that all just
powers of government come from the con-
sent of the governed. They founded. as
described by President Lincoln in Ian
SuaSe not yet forgotten, "a government
of the people, by the people. for the peo-
pie 1t will be, indeed. marvellous if it
Is made to appear that these men who
then founded our national government, so
constructed 1t that it is capable of ruling
with unlimited capital power, a subject
people who have neither guarantees to
protect them nor any voice in the govern
ment This is foreign absolutism-the
WI io4 III VI y
Constitution Superior to Congress.
IF the Constitution does not extend TO
Porto Rico and our other new acqusi-
tlons of territory, Congress has the un-
trammeled absolute power to establish
subject governments or make laws for
such territories; it has the power to es-
tablish dependent monarchies or satrapies,
state religions, and even slavery. The
argument OF of the senators referred
to that the last clause of the thirteenth
amendment prevents the establishment
there of slavery is obviously lame and i'm
potent, for If the Constitution does not
extend to those parts of the domain of
the United States, nor limit Congress in
its powers of legislation over them, by
what process will this single clause of an
amendment of that instrument detach it
self from the skin of the parchment and
alone fasten itself upon these new terri
tories? If it be considered that this
clause of the thirteenth amendment ex
propria vigore' extends to these new ter
ritories. or limits the powers of Congress
respecting them, every clause of that in
strument for the like reason is equally po-
tent. To say that a clause in the Con-
st:tution does not extend to a territory.
but does limit the power of Congress in
legislating for the territory, is to draw a
distinction too fine to be practical.
The argument much repeated. that if
the national government of the United
States has not the power to deal with
these new territories untrammeled by the
Constitution its power is less than that
possessed by the other governments of
the civilized world is admitted. 1t proves
nothing. The national government of the
United States is one of very limited pow
ers. In respect to its own people, in its
entire domain, and, generally, except in
respect to its power to deal with foreign
nations and concerning matters expressly
committed to 1t by the Constitution, its
powers are much less than that possessed
by other governments. No one will dispute
this.
Not Greater Than It's Creator.
''The national government of the United
States was created and its powers and
jurisdiction granted and limited by the fed
eral Constitution Its powers can only be
increased by amendment of that fnstru-
ment.
The power of the general government
to acquire additional territory rests upon
its constitutional power to make war.
which may result in conquest, and its like
power to make treaties. which may bring
territory by cession. The power to govern
such acquired territories results from the
power to admit new states and to make all
needful rules and regulations respecting the
territory or other property belonging to the
United States.
This clause authorizes Congress to leeis-
late in respect to a territory in local as well
as national matters, before it's admission to
statehood into the Union.
THE novel doctrine that the power of
Congress to govern territory ceded to the
United States may be confessed by a for
eign sovereign, by and through the terms
of treaty of cession, and that the general
government can exercise powers thus
granted by a foreign sovereign independent
of and in disregard of the Constitution until
Congress, mayhap in the future, shall by its
enactment see fit to extend the Constitution
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
and exercise no power not granted to 1t by
the Constitution, either expressly or by
necessary Implication. 1t is clear that the
general government cannot legisIate over
territory where the Constitution from
which its every power is derived does not
extend. The Constitution must be in force
over territory before the general govern
ment can have any authority to legslate
respecting it. No foreign sovereign can in
vest the general government with any legis-
lative power"
Effect of the Act of Cession.
Numerous decisions are cited in support
of his opinion, and he continues:
'It must be held that upon the cession by
Spain to the United States of the Island of
Porto Rico, that island became a part of
the dominion of the United States as nnucb
so as Is Arizona or Minnesota: and that the
Constitution of the United States, ex pro-
pria vigore, at once extended over that is
land. and that this extension of the Con-
stituton gave Congress, whose every power
must come from that instrument the au-
thority to legislate in respect to that island
part of the United States territory.
1T follows that all the provision of the
Constitution in respect to personal and
property rights, including the right to trial
by jury in criminal prosecution became at
once, when the cession was completed, a
part of the supreme law of the land. The
character of an effense and the nature of
it, punishment would be determined by the
law in force where and when the act was
committed, and laws OF that character re-
main in force after the cession until
changed; but the manner of trial must de-
pend on the law in force when the trial IL
had, even though the establishment and or
ganiZation Of courts must be awaited be-
fore the trial can be had
The decision states that military law be-
ing the sole authority the acts of a military
court were entirely legal, and the petition
for writ of habeas corpus was denied
STANDARD OIL PIERS BURN.