The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1900-05-08
IT IS TYRANNY.
The Course Being Pursued To
ward Porto Rico
Is Foreign AbsOlutism in Worst
Form Says Judge LOchren.
HIS OPINION FILED
In the Rafael Ortiz Habeas
Corpus Case.
Islands Are on Same Footing as
HIS OPINION FILED
Islands Are on Same Footing as
Arizona He Says.

St. Paul. Mimi, May S.-Judge Lochren |
has filed in the United States circuit court
his decision on the application of Rafael |
Ortiz, Porto Ricans to be released from |
Minnesota state prison Ortiz was con-
victed by a military tribunal in Porto !
Rico for the murder of a United States |
soldier and condemned to die. The sent |
enee was committed 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
nave had a civil trial.
Judge Lochren refused the application in
an oral decision Thursday last and has
now filed an exhaustive opinion thereon.
The decision has evoked great interest
throughout the country as it bears large
ly on constitutional questions, which have
arisen on the position of Porto Rico as a
territory of the United States.
The decision states:
"Our general government was founded
by the men of the revolution who had re-
belled against the arbitrary power assert
ed by Great Britain to govern her outly-
ing 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 President Lincoln. in language not vet
forgotten, a government of the people,
by the people. for the people. 1t will be.
indeed, marvellous If 1t IS made TO appear
that these men who then founded our ma
tional government so constructed 1t that
it is capable of ruling with unlimited pow
er a subject people who have neither
guarantees to protect them nor any voice
in the government. This is foreign abso-
lutism-the worst form of tyranny.
IF the constitution does not extend to
Porto Rico and our other now acqu1s1-
trammeled absolute power to establlsh,
subject government or make laws for
such territories. 1t has the power to es-
tabllsh dependent monarchleS or satrap-
les, state religions, and even slavery. The
argument of one of the senators referred
to that the last clause OF the thirteenth
amendment prevents the establishment of
slavery is obviously lame and 1mpotent,
for if the constitution does not extend
to those parts of the domain of the IN
tied States nor is limiting in its powers
of LEGISLATION over them by what process
will this single clause of amendment of
that instrument detach itself from the
skin of the parchment and alone hasten
itself upon those new territOries2 If 1t
be considered that this clause of the thir-
tenth amendment, 'ex priora, vigore. ex-
tends to these new territories or limits
the powers of congress respecting them
every clause of that instrument for the
like reason. is equally potent. TO say
that a clause IN the constitution does not
extend to a territory. but does limit the
power of congress in legislating for that
! territory, IS to draw a d1Sunctlon 100 me
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 possess
| ed nv the other governments of the civ
ilized world, is admitted. 1t proves moth
ing. 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 general except in re-
spect to its power, to deal with foreign
nations and concerning matters expressly
committed to it by the constitution, its
/ powers are much less than that possessed
| by other governments. No one will dis
9'The national government of the United
! States was created and its powers and
| jurisdictions granted and limited by the
| federal constitution. Its powers can only
| be increased by amendment OF that IN
| strument.
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 IKE
power to make treaties. which may bring
territory by cession. The power to gov
ern such acquisition of territories results
from the power to admit states ana te
make all needful rules and regulations
| respecting the territory or other property
belonging to the United States.
This clause authorizes congress TO leg
islate in respect to a territory in local as
we'll as national matters before its adInls'
sion to statehood in the union.
1.-The novel doctrine that the power OF
congress to govern territory coded to the
United States may be conferred BY LOT
eign sovereign by and through the terms
of the treaty of cession and that the gen
era1 government can exercise powers thus
granted by foreign sovereign, lhdepend
ent of and in disregard of the conSt1tu
ton until congress, mayhap in the future
SHALL by its enactment, see fit to eXtent
the constitution over the territory is con
trary to the holding of the supreme cour
of the United States, to the erect ina
Grated powers and can claim ana eXercls'
no power not granted to 1t by the constl
tuition, either expressly or by necessary
of implication. 1t is clear that the gen
eral government can not legislate owe
territory where the constitution iron
which every power is derived, does no
'sThe constitution must be in force owe
q territory before the general government
can have any authority TO leglslate re
specting it. No foreign sovereign can IN
vest the general government with any Ies
Numerous decisions are cited in sup
port of his opinion and he continues:
1T must be held that upon the cesslol
by Spain to the United States Of the Is
land of Porto Rico, that lsianq psc 3 s.
part of the dominion of the United states
+ as much so as Arizona and Minnesota, tn
! constitution of the United states eN PR
! ora vigore at once extended over that Is
l land; and that this extension of the con
l stitution gave congress, whose ever
= power must come from that 1nStrumen
? the authority to legislate in respect [
2 that island as part OF the limited Statg
territory. It follows that all the PROV
sions of the constitution IN respect 70 PEI
| sonal and property rights, lncIudlng IN
right to trial by jury In criminal prose
t cutiOn became at once, When the cesslo
g was completed, a part OF the supreI 2
| law of the land. The character OF an OF
Tense and the nature of its punlShIner
| would be determined by the law IN Tore
where and when the act was eommitte6
= and laws of that character remain
= force after the cessiOn until changed; bl
= the manner of trial must depend on IN
law in force when the trial is had eve
l. though the esta blishrnent and organize
u ton of courts must be awaited before II
e trial be had
d The decision states that military law b'
: ing the sole authority the acts of a mil
: tary court were entirely legal and the ps
+ tftion for writ of habeas corpus was o'
q MED.