The Scranton tribune. [volume] (Scranton, Pa.) 1891-1910, 1900-06-27


good behavior. Mr.. Webster argued the case for
Canter. and in behalf Of the jurisdiction said
(page 53s):
What Is Floridap
What Is FloridaH 1t is no part Of the United
states. How can II heY How is IL represented
DO the laws OF the United States reach Florida2
Not unless by particular provisions The terri.
tory and all within il to be governed by tie
acquiring power, except where there are reser
BY the law Of England when possession Is
taken OF territories. the king. Jure Coronae has
INC power OF legislation until parliament shall
interfere. Congress have the Jus Coronae in this
case, and Florida was to be governed by con.
gress as she thought proper
What has congress doneP She might have done
a@nytmng-she any might have refused a trial by jury
ana refused legislature. She has given a
Legislature. to be exercised at her will, and a
government Of mixed nature, in which she
has endeavored TO distinguish between state
and United States jurisdiction anticipating the
future erection Of the Territory in to a state
Mr. Webster won his case. The opinion OF
Chief Justice Marshall is worthy Of careful
study Its logic is unanswerabe. While the
power OF congress to govern ceded territory was
declared to be inevitable and absolute, the limi.
tation OF the constitution upon the exercise Of
the judicial power Of the United S,ates was ex.
pressly held to be confined to the states, the
chief justice saying (page 5l5):
Although admiralty jurisdiction can be exer.
cised in the states in those courts onlv which
are established in pursuance of the third article
OF the Constitution, the same Limitation does NOT
entend to the territories In legislating for
Them, congress exercises the combined powers OF
the general. and Of the state government
The doctrine thus enuncatcd by the great
chief justice, has been approved and followed
by his successors in long line of cases, in.
Guiding Benner W.. Porter 60 Howard, 235 lS5O)
Mr.. Justice Nelson: Clinton VS.. Englebrecht Cl3
Wall, 432; 1s7l), Chief Justice Chase; National
Bank VS.. lankton 1Ol U. s., 100; 1870, Chief
Ittatt ~asN,
10; 1Ssl), Mr. Justice Matthews; Mormon Church
ys. United States Q3G L. s.. /; 1890, Mr.. Jus.
tce Bradley; McAllister VS.. United States Q4l
U. S. ia; 1s9D, MIR. Justice Harlan; and Shively
vs. Bowlby, Q52 U. s., l; 1s0D, Mr.. Justice
Gray.
Justice Waite Speaks.
Chief Justice Waite speaks OF the territories as
THE outlying dominion Of the United States"
an apt phrase. lie says that congress "may do
Tor the territories what the people, under the
constitution Of the United States, may do for the
states" the fullest and clearest expression Of
sovereign power without Limitation. Mr. Jus.
tice Matthews says that 'thc people Of the
United States, sovereign owners Of the Ma.
tional territories, have supreme power over them
and their Inhabitants" 1T rests with congress
to say, whether, in given case. any of the pco.
pie, resident of the territory shall participate in
the election of its officers the making of its
laws" Mr. Justice Bradley says that 1T would
be absurd to hold that the United States has
power to acquire terrtcry, and no power to gov.
ern it when acquired" Mr. Justice Harlan
says that "The whole subject of the organization
Of territorial courts, etc, was left, by the con.
stituton, with congress under its plenary power
over the territories of the United States" And
Mr.. Justice Gray says that "By the consttu.
ton, as is well settled, the United States,
! having rightfully acquired the territories, and
being the only government which can impose
laws upon them, have the crtire dominion and
sovereignty, national and municipal federal and
state all the territories, so long as they re.
main in territorial condition"
Are there then no limitations on this plenary
power of congress to govern the territories?
| believe there are. Obviously, those limitations
which are laid upon the exercise by congress Of
a special power irrespective of the place whore
exercised, do apply, such those forbdding
congress to pass any hill OF attaindcr, or any ex
post facto law, confer any title of nobility.
The prohibition of slavery operates by express
provision everywhere. But these arc not the
only limitations. 1t is always to be borne in
mind that this is government of the people,
by the people ard for the people, which was
created, among other things, to establish justice
ard to secure the blessings OF liberty. gov
erLment thus dedicated TO liberty and justice, Is
based on fundamental principles and at all times
must show respect for fundamental rights. Out
side the limitations OF the constitution, its spirit
requires the government to treat all subject TO
our dominion with justice and equality under
the law. Tyranny and oppression cannot consti-
tutionally exist under the sovereignty of the re-
public which is based upon the proposition that
all men are entitled to life, liberty and the pur-
suit of happiness. This is what Mr.. Justice
Bradley meant when he said in Mormon Church
VS.. United States O3G U. s. I, 40. "Doubtless
congress in legisating for the territories would
be subject to those fundamental limitations in
favor Of personal rights which are formulated in
the constitution and its amendments, but these
limitations would exist rather by inference and
the general spirit of the constitution from which
congress derives all its powers, than by any en-
press and direct application OF its provisions"
And ii was to this that Mr.. Justice Harlan re-
ferred in McAister vs. United States al U. S.,
17i, 1881, when he said: GLOW far the exercise
OF that power (the power to govern the terri
tores) is restrained by the essential principles
upon which our system OF government rests, and
which are embodied in the constitution, we need
not stay to inquirc' and then he quotes the
language OF Mr.. Justice Bradley, which I have
Just read.
Essential Principles.
But these essential principles upon which our
government rests, these fundamental limitations
in favor of personal rights do not compel the
president and congress to provide trial by jury
in territories where 10 proper iures are to be
had to let crime go unpunished IL is true
that, in the case Of Callan Wilson (127 U. s.,
$40, 1850, it was held that under the consttu.
ton 4 man accused Of a misdemeanor, committed
in the District of Columbia, involving the pun.
ishments OF Imprisonment, entitled to
trial by jury. The case was properly decided,
because the District Of Columbia had once been
n part of Maryland and therefore a part OF the
United States under the constitution. The
guarantee having once attached, was never with
drawn. But the cases Of Webster vs.. Reid III
How, 437, $500, and Reynolds VS.. United
States COS U. s., li5, 1S7s), which are cited in
Callan VS.. Wilson, not authorities upon the
point that the limitations OF the constitution
respecting trial by jury extend, pToprio vi
gore and without congressional action, to the
territories. The first tWebster vs. Reid
arose in the territory of Iowa and involved the
right of trial by jury in a civil action, but the
court points out in the opinion that the r'sanic
law of this territory, by express provision and
by reference, extended the laws OF the United
States, including the ordinance Of 1878, over the
territory, thus guaranteeing the right If trial by
jury involved in the case. And in tine second
case (Reynolds VS.. United States) arising out
Of a conviction in Utah for bgamy, while the
court did hold that the accused was enLlued to
trial by jury, it is TO be observed that con-
greSs by the act Of September .. 1850, had ex-
tended the constitution an laws Of the United
States over the territory, and thus granted by
statutory enactment the right inolyed
In the latter case of American Publishing Co
VS. Fisher 1G6 U. s., 1854; 1890, while the court
held that the territorial law of Utah authorizing
a verdict when nine more Jurors concurrad