Evening star. [volume] (Washington, D.C.) 1854-1972, 1901-01-08
SOLICITOR GENERAL IS BRIEF
GOVERNMENTS CONTENTION IN THE
INsULAR CASES.
Argument Against the Claim That the
Constitution Follows the Flag
to New POsessiOns.Ts

Solicitor General Richards, In behalf Of
the government, has filed In the United
States Supreme Court a brief in the cases
brought by Elias s. A. DeLima Samuel B.
Downes. Henry w. Dooley, Carlos Arm
strong and Geo. w. Crossman against either
George r. Bidwell, collector of the port of
New York, or the United States directly
all involving questions of the taxation rela-
tive between the United States and our in
sular possessions. The cases cover the sew
eral phases of the dominion of the United
States oyer the islands before and after
the ratification Of the Paris treaty of peace
and after legislation by Congress with ref
erence to them
The feature of the brief is the direct no.
tice it takes of ex-Presidentl Harrison's ad-
dress at Ann Arbor and the response made
thereto in behalf of the administration.
The DeLima case concerns duties col
lected on sugars imported into New York
from Porto Rico after ratification of the
farls peace treaty and before the passage
OF the Porto Rican act; the Downes case
duties on oranges brought from Porto Rico
I po. NV 1ork after the passage of the
forto Rlcan act; the two Dooley cases and
the Armstrong case duties on goods i'm
ported from Porto Rico during military
occupation and partly before. and partly
after the ratification Of the treaty. and also
ACT and the Crossman case duties on
liquors imported from Honolulu into New
YORK after the passage of the resolution
ahreNlhs the Hawaiian Islands and before
the passage or the act providing for their
government.
Reply to Gen. Harrison.
The reference to ex-Presdent Harrfson's
Ann Arbor address is preceded by a state
ment OF the governments position with ref
erenCe to the extent to which the, rouSti
tuition applies to newly acquired territory
The brief denies the doctrine of ex proprio
vigore, and that all the limitation of the
constitution apply everywhere throughout
the scope of the authority of the govern
ment, but says that there are limitations
in the Constitution which do apply through
out both the states and territories, organ
lied and unorganZed. Because some limi-
tations apply it does not follow that all
apply. Those which do apply everywhere,
both within and without the United States,
In its broadcast sense, it says are those Sc
curing the blessings of justice and liberty
to all the people. Tyranny and oppression
cannot constitutionally exist under the SOW
erelgnty OF the republic, whose founders
declared that al men are entitled to life.
liberty and the pursuit of happiness. This
what Mr.. Justice Bradley meant when
he said in Mormon Church vs. United
States 136 U. s., 144: Doubtless Congress
in legislating for the territories would be
subject to those fundamental limitations in
favor of personal rights which are formu-
lated in the Constitution and its amend
ments. but these limitations would exist
rather by Inference, and the general spirit
of the Constitution, from which Congress
derives all It's powers, than by express and
direct application of its provisions"
The statement of the governments stand
ing ground leads it up to the notice which
1t takes of eXPresident Harrison's address.
OF this address Solicitor General Richards
brief says:
In recent address. a portion of which,
/ understand, has been brought to the at
tention of the court, a distinguished states
man and lawyer affects to believe that if
the view of the government is correct Con-
gress could without constitutional objec-
ton, pass a Porto Rican act providing for
number of shocking things. The govern
ment has never asserted and does not be-
lieve that Congress has the power of des-
pot in Porto Rico. The fundamental lim-
tations in favor of personal rights which
formulated In the Constitution and its
amendments referred to by Mr.. Justice
Bradley, stand in the way of everything
suggested which shocks the moral sense.
Congress could not pass any eX post facto
law or declare an attander or grant any
title of nobility or provide for the trial or
punishment of treason other than in the
way marked out by the Constitution, all
these things being prohibited by direct and
applicable provisions. If the first ten
amendments do not limit by direct appI-
cation Congress in legislating for our new
possessions, neither do they operate within
the states which compose the Union. AS
this court, speaking by Chief Justice Waite,
said in United States vs.. Cruikshank ct al.
(92 L. S.. 81. 552):
The first amendment to the Constitu-
ton prohibits Congress from abridging the
right of the people to assemble and to pc
tition the government for a redress of
grievances" This, like the, other amend
ments proposed and adopted at the same
time, was not intended to limit the powers
OF the state governments in respect to
their own citizens, but to operate upon the
national government alonei'
Powers of the States.
"Protection to life. liberty and property
rests primarily with the states, as Chief
Justice Fuller said In re Kemmler 136 u.
S.. 1873. 44s). The Constitution makes no
provision for protecting the citizens of the
respective states in their religious liber-
ties; this is left to the state constitutions
and laws, said Mr.. Justice Catron in Per-
moli vs. First Municipality g How, $50,
500. The Constitution forbids the states 10
pass any bill of attainder, eX post facto
law or law impalring the obligation Of con-
tracts, or to grant any title of nobility. and
the fourteenth amendment provides that
no state shall deprive any person of life,
liberty or property without due process OF
law. nor deny to any person within its jul
r!sdiDtion the equal protection of the laws:
but outside the range of these limitations
the people of the state, through its consti-
tuition and laws. are supreme. They can
define treason against the state as they
see fit; they can restrict the bearing OF
arms. they provide for the quartering
Of troops; they can regulate the right of
search and of arrest; they can provide for
the trial of capital or otherwise Infamous
crimes upon information and without in
dictment, and without a jury, and they
have done so. They can do away with the
trial Of civil suits by a jury. And they
may do many other things which l need
not enumerate.
The right Of the people Of the states
to change their laws and system Of pro-
cedure SO as to make them conform to
changed views Of administration. or the
exigencies Of their social life, has been
sustained. If the constitutional guarantees
relating to indictment by grand jury and
trial by a petit jury are not fundamental
in character and therefore do not tie hands
of the Inhabitants Of territory when or
ganizing a state, why should they tie the
hands Of the President and Congress IN
preserving order and protecting life and
property in our new possessions?
Power to Preserve Order.
"It is strange contention that as soon
as the treaty went into effect the power of
the President and Congress to preserve or
der in the new possessions ceased. There
were no grand juries. no petit juries. no ma
chinery for Furnishing crime by the pro-
cesses Of the Anglo-Saxon law, and yet. II