The times., 1901-05-28

| WITHIN the meaning OF the CODSIlluLlui-
| In delivering his opinion in this case. MT
| Chief Justice Marshall made no reference
whatever to the prior case OF LougI-
| borough Us. Blake % Wheat. 3lD, In which
! he had intimated that the Territories were
| part of the United States. But if they
| be part of the United States, 1t is dill
| cult to see how Congress could create
! courts in such Territories, except under
! the judicial clause of the Constitution.
| The power to make nCedful rules ana reg
| ulationS would certainly not authorize
| anything inconsistent with the Cohstilu-
| tion If it applied to the Territories. Ger
| tainly no such court could be created
within State, except under the restrlc-
| tions cf the judicial clause 1t Is suffl-
cient to say that this case has ever since
been accepted as authority for the prop
osition that the judicial clause of the Con
stitution has no application to courts Gre
atcd in the Territories. and that with re-
sDect to them Congress has a power Who'll
" unrestricted by it We must assume
as a logical inference from this case that
the Constitution have no application TO
these Territories, or that the Judicial
clause is exceptional in that particular"
STATES AND TERRITORIES.
AS a result of his Investigations into
these decisions, the Justice drew the con-
| clusion that these propositions might be
| considered as established:
4 That the District of Columbia and
the Territories are not States, within the
! judicial clause of the Constitution Civ
| ing jurisdiction in cases between citizens
of different States
- That Territories are not States,
within the meaning of Revised Statutes,
/ section I09, permitting writs of error from
/ this court in cases where the validity of
q State statute is drawn in question.
3. That the District of Columbia and
/ the Territories are States. as that word
| is used in treaties with foreign powers,
with respect to the ownership disposition,
I ard inheritance of property.
Il. That the Territories are not within
the clause of the Constitution providing
} for the creation Of a Supreme Court and
such inferior courts as Congress may see
/ fit to establish
=. That the Constitution does not apply
J to foreign countries or to trials therein
conducted and that Congress may law
I fully provide for such trials before con-
suIar tribunals, without the intervention
of a grand or petit jury.
&c. That where the Constitution has
been once formally extended by Congress
to Territories. neither Congress nor the
Territorial Legislature can enact laws in
consistent herewith
THE DRED SCOTT DECISION.
Considerable attention was paid to the
Dred Scott decision. concerning which,
after a full statement of the facts and
the decision, Justice Brown said
at must be admitted that this case is
a strong authority in favor of the plaintiff.
and If the opinion of the Chief Justice be
taken at its full value it is decisive in his
favor. We are not, however, bound to
overlook the fact that. before the Chief
Justice gave utterance to has opinion upon
the merits, he had already disposed OF
the case adversely to the pialnuH upon
the question of jurisdiction, and that in
view of the excited political condition of
the country at the time, it is unfortunate
that he felt compelled to discuss the
question upon the merits, particularly so
in view of the fact that IL involved
ruling that act of Congress, Whlcn hau
been acQuiesced in for thirty years, was
declared unconstitutional. l. would ap-
pear from the opinion of Mr.. Justice
Wayne that the real reason for discussing
these constitutional questions was that
there had become such a difference OF
opinion about them that the peace and
harmony of the country required the set
tlement of them by judicial decision.
+ fp. 4J5D The attempt was not altogether
successful. Ii is sufficient to say that the
country did not acquiesce in the opinion,
and that the civil war, which shortly
thereafter followed, produced such
changes in judicial, as well as public
sentiment, as TO seriously impair the
authority of this case.
While there is much In the opinion of
the Chief Justice which tends to prove
that he thought all the provisions Of the
Constitution extended OF their own force
to the Territories west of the Mississippi.
the question actually decided is readily
distinguishable from the one involved in
EOnEluEEallDH. j
power to prohibit slavery in the Terri
tories is so different from the power TO
impose duties upon territorial products.
and depends upon such different proVis-
ions of the Constitution, that they can
scarcely be considered as analogous un-
less we assume broadly that every clause
of the Constitution attaches to the Terri
tories as well as TO the StateS-a claim
quite inconsistent with the position Of the
court in the Canter case. II the assump-
tion be true that slaves are indistinguish-
able from other property the inference
from the Dred Scott case Is Irresistible
that Congress had no power to prohibit
their Introduction into Territory. 1t
would scarcely be insisted that Congress
could with one hand invite settlers to
locate in the Territories Of the United
States, and with the other deny them the
right TO take their property and belong
ingS with them. The two are so fnsepar-
scarcely be grantee and the other with
held without an exercise of arbitrary
power inconsistent with the underlying
principles OF free government. II
might, indeed, be claimed with great
plausibility that such a law would amount
70 deprivation Of property within the
Fourteenth Amendment. The difficulty
with the Dred Scott case was thar the
court refused TO make a distinction be-
tween property in general, and a wholly
exceptional class of property. Mr. Benton
terseiy stated the distinction by saving
that the Eirginian might carry his $ ave
into the Territories, but he could NOT
made him a slave"
THE POWER OF CONGRESS.
Considering, then, the question Of the
application Of the Constitution to the con-
ditions involved. the opinion proceeds:
ITO sustain the judgment in the case
under consideration. it by no means be
comes necessary to show that none Of the
articles of the Constitution apply TO the
Island Of Porto Rico. There is a clear
distinction between such prohibitions as
go TO the very root of the power Of Con-
gress to act at all, irrespective Of time or
place, ard such as are operative only
throughout the United States OF among
the several States.
Thus, when the Constitution declares
that no bill Of attainder or ex post facto
law shall be passed. and that no title of
nobility shall be granted by the United
States, it goes TO the competency Of Con-
gress to pass a bill Of that description
Perhaps, the same remark may apply to
the First Amendment, that Congress
shall make no law respecting an estab-
lishment of religion, or prohibiting the
free exercise thereof: or abridging the
freedom of speech or of the press: or
the right Of the people TO peacefully as
semble, and TO petition the Government
for a redress of grievances We do not
wish, however. to be understood as eX-
pressing an opinion how far the bill of
rights contained in the first eight amend
meuts is of general and how far of local
application.
Upon the other hand, when the Con-
stitutiOu declares that all duties shall be
uniform throughout the United States
IL becomes necessary to enquire whether
there be any territory over which Con
gress has jurisdiction which is not a part
Of the United States by which term we