The times., 1901-05-28

ized in the United States which is not eX-
tended to persons born in any place sub
ject to their jurisdiction.
THE question of the legal relations be
tween the States and the newly acquired
Territories first became the subject of
public discussion in connection with the
purchase of Louisiana in 1863 The his
tory of this. Jefferson's early doubts of
the power of the President to make it,
which seemed to have been dispelled with
the progress Of events and the Congress
sionai debate on the bill appropriating
the money to pay France, in which
the powers of Congress to incorporate
territory thus acquired into the United
States, was advocated and denied,
were set forth at great length. Two
bills were passed as the sequence of that
debate. one authorizing the President to
take possession Of the territory. and TO
continue the existing government and
the other making provision for the pay
ment of the purchase price These acts
continued in force until March 26, 1891,
when new aCt was passed providing for
temporary government and Vesting all
legislative powers in a Governor and leg
isiative council. to be appointed by the
President. These statutes, said JUS
tice Brown. may he taken as expressing
the views Of Congress, first, that terri
tory may be lawfully acquired by treaty,
with provision for its ultimate incorpo-
ration into the Union; and, second. that
a discrimination in favor of certain for
eign vessels trading with the ports of
newly acquired territory is no violation
of that clause of the Constitution that de-
clares that no preference shall be given
to the ports of one State over those of an
other. 1t is evident that the constitution
ality of this discrimination can only be
supported upon the theory that ports of
Territories are not ports Of States within
the meaning of the Constitution.
THE PURCHASE OF FLORIDA.
The same construction. he argued, was
adhered to in the treaty for the pur-
chase of Florida. and in the act annexing
the Republic of Hawaii there was a pro-
vision continuing in effect the customs
relations of the Hawaiian Islands with
the United States and other countries.
the effect of which was to compel the col
lection il those islands of duty upon
certain articles. whether coming from the
United States or other countries, much
greater than the duty provided by the
general tariff law then in force. This was
a discrimination against the Hawaiian
ports wholly inconsistent with the reve-
nue. clauses of the Constitution, if such
clauses were there operative
The very treaty with Spain under dis
cussion in this case contains similar dis
criminative provisions, which are appar-
emily irrecOncilable with the Constitution,
if that instrument be held to extend to
these islands Immediately upon their ces-
sion to the United States. Continuing on
this point the opinion proceeded:
Notwithstanding these provisions for
the Incorporation of Territories into the
Union, Congress not only in organizing
the Territory of Louisiana by act of
March 26. 1884, but all other Territories
carved out of this vast Inheritance. has
assumed that the Constitution did not
extend TO them of its own force, and has
in each case made special provision.
either that their Legislatures shall pass
no law inconsistent with the Constitution
of the United States, or that the ConSti-
tuition or laws of the United States shah
be the supreme law of such Territories.
Finally, in Revised Statutes, section 1891,
a general provision was enacted that the
Constitution and all laws Of the United
States which are not locally inapplicable
shall have the same force and effect within
all the organized Territories, and in every
Territory hereafter organized, as else
whore within the United States.
SO. too, on March 6. 1920 % Stat. $50. in
an act authorizing the people of Missouri
10 form a State government, after a
heated debate, Congress declared that in
the Territory OF Louisiana north of 36 de
grees 80 minutes slavery should be for
ever prohibited. II is true that. for rea-
sons which have become historical this
act was declared to be unconstitutional
In Scott VS. SANFORD but it is none the
less a distinct annunCiatiOn by Congress
OF power over property in the Territories
which II obviously did not possess in the
several States.
THE researches of counsel have COL
lated large number Of other instances.
In which Congress has in its enactments
recognized the fact that provisions in
tended for the States did not embrace the
territories. unless specially mentioned
II would prolong this opinion unnecessary
y to set forth the provisions Of these acts
IN detail. It Is sufficient to say that Con-
gress has or has not applied the revenue
laws TO the Territories as the circuu-
stances Of each case seemed to require
and has specifically legislated for the
territories whenever it was its intention
10 execute laws beyond the limits of the
States Indeed. whatever may have been
The fluctuations Of opinion in other bodies
tanu even this ppTgr+ has M haa
from them, Congress has been consistent
In recognizing the difference between the
states and Territories under the Consdtu-
DECISIONS NOT HARMONIOUS.
OF the decisions of the court itself.
many % which were referred TO and
quoted, Justice White said they had not
been altogether harmonious
SOME of them, he said, ARE based
upon the theory that the Constitution
does not apply to the Territories without
legislation. Other cases, arising from
Territories where such legislation has
been had, contain language which would
justify the inference that such legislation
was unnecessary. and that the Constitu-
tion took effect Immediately upon the ces-
sion Of the territory to the United States.
Too much weight must not be given to
general expressions found in several opi1-
ions that the power Of Congress over Ter
ritories is complete and supreme because
these words may be Interpreted as mean
ing only supreme under the Constitution;
nor upon the other hand, to general state
ments that the Constitution covers the
Territories as well as the States, since in
such cases IL viii be found that acts Of
Congress had already extended the Con-
StitutiOu to such Territories, and that
thereby it subOrdinated not only its own
acts, but those Of the territorial legisla-
lures, to what had become the supreme
law of the land"
Quoting the court in Cohens VS. Vir-
ginia; 1t Is maxim not to be disTe-
garded that general expressions. in every
opinion, are TO be taken in connection
with the case in which those expressions
are used. if they 20 beyond the case they
may be respected, but ought not TO con-
troll the Judgment in a subsequent suit
when the very point is presented for de-
cisiOn. The reason Of this maxim is OBJ
yicus. The question actually before the
court is investigated with care and con-
sidered in its fun extent. Other principles
which may serve to illustrate it are con-
sidered in their relation to the case de-
cided. but their possible bearing on all
other cases is seldom completely investi-
gated
cases beginning with Hepburn VS. Ellzey
cd Cranch, H5) and included comments
upon the effect and scope Of many Of the
decisions.
HAS BROADER MEANING.
Certain Of Chief Justice Marshans OBJ
servations in the case of Loughborough
VS. Blake were said 10 have occasioned
some embarrassment in other cases-that
the power to lay and collect duties, i'm
posts. and excuses, may be exercised, and
must be exercised throughout the United
States The decision in Geofroy vs.
Riggs may ba considered as establishing