New-York tribune., 1903-06-29

tuition did not of itself extend to the Ierrl-
tories. Fundamentally the same point was III
volyed here and the dissent from what was
then decided raises the question, HOW Iar is d
decision of the court binding on the courtf Is
,boro such q thing as stare decisis? jeremiah
rlacl, once on the Pennsylvania bench, dis
sented from a decision reached The same
ouestjon being somewhat later presented to the
court. his associates took his view He vlgor-
ously dissented again, saying that' whiie LIE
had thought that view right, he had been over
ruled. and the court was bound to stand by lts
own ruIings and administer settled law regard
less of individual opinions. That view OF Ju-
dicfaI duty does not seem to prevail with the
Supreme Court minority on insular questlohs
for. though the law of free hand in the ISL
ands is settled, the original dissenters stand
ready to overrule their own court if they have
tbe opportunity It would be interesting TO
know how many decisions through a series OF
wears would be required to establish the plen-
arv power of the United States in its outlying
possessions as firmly many of its other pow
ers once vigorously denied by strict construc-
tionists have been established
Justice Harlan says that 'the Constructor
speaking with commanding authority 10 al
who exercise power under its SANCTION de-
clares that no person shall be held for CRIME
without Indictment by grand jury. Yet IN the
Ross case the Supreme Court years ago said
that persons who exercised power under lis
sanction-namely, consular officers IN Japan
might try American citizens and send them here
TO prison without any such procedure Still,
Justice Harlan now asserts that neither the
life nor the liberty of any person can be taken'
under the authority Of the United States, e1-
"cept in the mode prescribed by the Consttu-
''tion " The "anti-imperial" doctrine, though it
presents itself as the historic principle OF Amer
ican law, likewise ignores host OF other facts
and decisions. Justice Harlan asserts that
neither the life nor the liberty nor the prop
''erty of any person within any territory OF
country over which the United States is SOW
"ereign, can be taken under the sanction of any
civil tribunal acting under its authority, by
.any form of procedure inconsistent with the
Constitution of the United States Yet under
jefferson, in the Territory of Orleans, civil and
criminal law was administered under act OF
Congress by procedure inconsistent with the
Constitution The same thing happened in the
District of Louisiana Much later it also hap
pened in Florida, and Chief Justice Marshall,
for a unanimous court, declared that the incon-
sistent procedure there was lawful because IL
was not taken under the Constitution, but was
an exercise of the sovereign power of the gen.
eral government over the Territories.
Thus it is seen that the dissenting opinion is
based largely on the theory of a school rather
than on the solid facts of history. AS theory
it is widely held and respectable. its advocates
ought not, however, TO assume, as they too often
do. that their theory of the Constitution is the
Constitution itself, and that any Interpretation
but their own is a notification Of its one and
only possible meaning.