New-York tribune., 1901-01-09
MORE PORTO RICAN BRIEFS

new SET or briefs concerning the power of
the Government over our recent ACQUISITIONS
has been filed with the Supreme Court In antici-
patton of the second series of cases which are now
before the court. They cover much the same
ground as did the arguments in the Goetz case
which was up last month, but some phases of
the question are brought TO the front more EN-
phaucally than before. The brief of Solicitor
General Richards is particularly interesting in
that IL takes special notice of the arguments OF
ex-President Harrison who. though not engaged
as an attorney in the conduct of any of the
cases has undoubtedly exercised as great an
influence on the public mind. and perhaps even
on the minds Of the justices, as any lawyer ap-
pearing in court. Mr. Richards clearly and
satisfactorily meets the charge that the Govern
ments contention would establish il as a desnot
and open the way for ii to do terrible things
He repudiates the notion attributed to the Ad-
minlstration that Congress can depart from the
law of its own being. He takes his stand on
the rule as laid down by Justice Bradley in the
Mormon Church case:
Doubtless Congress in legislating for the Terri
tories would be subject to those Fundamental
limitations in favor of personal rights which are
formulated in the Constitution and it's amend
ments but these limitations would exist rather
by Inference and the general spirit of the Con-
stltutlon, from which Congress derives all its
NA4NA
tion OF its provisions
Congress, of course. could not pass an OK most
facto law or grant title Of nobility anywhere
These are acts contrary to the nature of the
American Government and are beyond the
power OF every State well as of the Federal
Government. But certain other prohibitions
apply merely to the Federal Government in the
exercise Of power within the States. but not
TO the States themselves. The States can aboI-
lsh grand Juries or jury trials, and some OF
them have done SO, but the United States can
not in its dealing with the citizens of those
States The Solicitor-G General pertinentIv asks
why the United States cannot in ruling terri.
tory do what the people of that territory could
do for themselves with the permission of Con-
gress in forming a State government if these
restrictions are not fundamental as to be
binding on the States as well as the general
Government, it may fairly be argued that they
were meant simply by the people of the States
in making their constitution to limit the Fed
eral power when it operated beside that of
the States, without depriving the United States
of any authority which the States had within
their limits when dealing with its own ex-
elusive territory, over which, as Chief Justice
Marshall declared. Congress exercises the COM
"bined powers of the general and of State
II Ildl Is tTueS Inen IN the
Territories Congress may do not only what
under the Constitution is allowed il within the
States, but also anything which the States in
their sovereign capacity could do within their
own limits A State, with the consent Of Con
gress. can levy a special tariff. Why then,
cannot Congress, possessing over a Territory
its own powers and those of a State levy a
tariff for il, has been done in Porto Rico?
Mr.. COudert in his opposing brief arguing
that the United States Government has no
power 10 exercise any authority beyond the
grants OF the Constitution, is forced TO admit
that such government is practically impossi-
bic, for he denies that
Every prescription OF the Constitution. its
delegations, limitations and prohibitions can al
ways and at ali places be made applicable to all
governmental action In all circumstances. These
are applicable according to varying place and
circumstance. The unquestoned proposition
that the Government is powerless to act outside
the charter of its existence does not of necessity
imply that the bill of rights-the prohibition
against cruel and unusual punishments-oper-
ates at once throughout any territory over
which the Government of the United States ex-
ercses n-mitary-transtory or per
manent
In other words. according to his theory we
have a Nation which every time it meets an
emergency has TO become breaker of its own
Constitution and make its servants usurners
III would seem more reasonable TO conclude that
its Constitution was never meant to be con-
strued in such absurd fashion, but left lawful
liberty for the action which as Mr. Coudert
comedies may be required by varying place
and circumstance.
Mr.. Coudert also puts in happy phrase the
extreme Constitution follows the flag" theory.
He says:
There is no boundary TO the Constitution other
than the whole sphere OF the activity Of the