The Topeka state journal. [volume], July 02, 1900, LAST EDITION, Page 3, Image 3

About The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980

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TOPEKA STATE JOUBNAL. MONDAY EVENING, JULY 2, 1900.
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RAILROAD-NEWS.
Western Lines to Cease Paying
Tribute to Tourist .Agencies.
Decision of Presidents Will Go
Into Effect Jan. 1, 1901.
SATE $200,000 A TEAR.
Estimated That Agencies Make
This Amount Annually.
Last Tear One Agency Alone
Sold 7,000,000 Tickets.
Chicago, July 2. Executive officers of
western railroads have swung their anti-commission
ax once more, and on
January 1,. 1907, the heads, figuratively
f peaking, of the ' three great tourist
ager-.ies Cook's, Gaze & Co.'s and
Kaymond & Whitcomb's wil fall into
the basket. The committee of officials
appointed at the recent meeting of pres
idents in New York to consider the
proposition to discontinue the payment
of fees to these agencies has just de
cided that the commissions shall be
abolished.
The decision has hit the agencies hard
and in vital spots, for the revenue de
rived annually from the roads has been
responsibiue for much of and from he
responsible for much of the jingle in
the strong: boxes of the three concerns.
A low estimate of the loss the agencies
will suffer has been placed -at 200,000
annually. Last year, it is said, Cook's
alone sold 7,000,000 tickets to tourists.
The average commission paid by The
lines was between 5 and 6 per cent of
the amount received by the railroads.
The agency officials do not seem to be
eirong in. the belief that the roads will
carry out their decision effectually for
any great length of time, for they be
lieve that their existence and operations
have been a source of almost Invalua
ble benefit to the carrying companies.
The eastern lines some time ago de
cided to include the three big agencies
among the "victims" of the anti-commission
agreement, but the lines were
privileged to employ the services of the
tourist people upon fixed salaries. It
is said now, however, that the privilege
of paying salaries, too, will be wiped
away soon.
STARTED ON SUNDAY.
First Train on Through Santa Fe Line
is Started.
Probably the most important event in
the railway history of the present year
is the opening of the new through line
of the Atchison, Tcpeka & Sanu. Fe
road, says the Globe-Democrat. This
"Will be the first company that has ever
had a line over its own tracks between
Chicago and the Pacific coast, and much
importance is attached to this announce
ment. Until fifteen years ago the Santa
Fe was considered more of a Kansas
system. Though it had lines reaching
some distance over the borders of the
state, its principal business was within
that commonwealth. Then it was de
cided that the system was incomplete
unless it secured a route to Chicago.
This was an expensive proceeding, but
was successfully executed. Subsequent
ly the western ends of the road were ex
tended. Though the Chicago line was
valuable to the system as a whole, it re
Quired several years to build up a profit
able business. This has been worked up,
until now the Santa Fe is considered
the strong Chicago-Kansas City line.
Then came the company's through
service to Southern California- This
made a hit at once, and the tourist and
fruit business has made it one of the
must profitable lines in the country. The
officers of the road started in to boom
Southern California as a winter resort,
and luxurious limited trains were put
in service. Though the company has
from time to time added to this service
during the past winter, its equipment
was taxed to the utmost to accommo
date the travel.
The Santa Fe a few years prior to its
reorganization absorbed the St. Louis
and San Francisco, but lost that prop
erty when the federal court assumed
control of both systems. It likewise
owned the bonds of the St. Louis. Kan
sas City and Colorado, or Creve Coeur
line, which has since passed into the
hands of a St. Louis svndicate.
When President Ripley assumed
charge of the system five or six years
ago he reorganized it. He also began to
lay plans for the conquest of upper Cal
ifornia, particularly San Francisco.
"When the persons who started to build
the San Francisco and San Joaquin
alley road, to five them a competitor
of the Southern Pacific, gave up the
task, the Santa Fe purchased the line
and finished it to San Francisco.
About two months ago the line -was
opened for freight traffic, and now the
company announces that it is ready to
land passengers in the metropolis of the
Golden Gate state. The new line will
be the first real competitor the South
ern Pacific has had.
For the present trains Nos. 1 and 2
will be the only ones to and from Cali
fornia, although the resumption of the
California limited by late summer o
early fall is contemplated. Train My
1 will leave Chicago, Kansas Citv and
Albuquerque as at present, but will ar
rive at Los Angeles at 7 a. m. instead of
8:2o a. m., and will reach Point Rich
mond at 5 p. m. and San Franciso at
6 p. m. Train No. 2 will leave San Fran
cisco at 9 a. m.. Point Richmond at 10
a. m. and Los Angeles at 7:30 p m
arriving in Kansas City at 5 p. m anil
at Chicago at 7:30 a. m. The equipment
will consist of standard and tourist
eleepers between Chicago and Los
Angeles and tourist sleepers from Chi
cago to Point Richmond, a short stan
dard sleeper being run between the
Needles and Point Richmond. Thse
trams will have Harvey dining car ser
vice between San Francisco and Bar
stow. Another attraction which the
Santa Fe is enabled to offer the travel
ing public this year is a trip to the
Grand Canyon of the Colorado in Ari
zona, without the long and tedious stage
ride.
WILLIAMS' KNOCK.
TXnion Pacific Official Says Office
holders Should Not Get Passes.
A L. Villiams, general attorney of the
Union Pacitie. says in the current issue
or the Knocker:
"Kansas needs a law prohibiting office
holders from accepting railroad passes
Public servants, as a rule, are paid better
than any Other class of laborers and
there is no reason why they should strike
the railroads for favors. It isn't courtesv
that prompts a railroad companv to give
free transportation to judges, legislators
other officials with their raft of polit
ical helpers and kin: it is to keep them
good.' A Kansas railroad attorney Is
authority for the statement that during
one session of the legislature, when an
Important railroad bill was pending, he
had requests for a million miles of trans
portation. Did the men who made the re
quests believe they were entitled to the
transportation as a matter of courtesy?
Not much. They simply worked thir graft
The state pays the fare of those who
travel in the performance of their duties
mud those who sad for fun should be coua-
pelled to buy tickets, like the people who
elected them have to do. It is said that
the railroads realiy want an- anti-pass taw,
but are slow to suggest it the army of
passholders is so big and has so much
'fluence."
FOREMAN FRENCH LZ V7ES.
His Friends Present Him With Watch
and $75 in Gold.
John C. French who has for the past
six years been foreman of the black
smith department in the Santa Fe shops
in this city has resigned. His resigna
tion took effect on the first of July.
Mr. French has accepted a similar
position with the St. Louis & San Fran
cisco at Springfield, Mo. His successor,
RendalL Congdon of Fort Madison, has
arrived and taken charge of the black
smith department of the Santa Fe.
The employes in the blacksmith de
partment working under Mr. French
made up a purse of $200. A beautiful
gold watch was presented to Mr. French
together with $i5 in gold. A committee
from the shops called on Mr. French at
his home and the gifts were presented
to him. Archie M. Baird, -with, a few
words, made the presentation.
S1ILWELL AT THE HELM.
Railroad Promoter Again Assumes
Management of Guardian Trust Co.
Kansas City, July 2. President A. E.
Stllwell, of the Kansas City, Mexico &
Orient has received a telegram from the
engineer in charge that construction work
would begin on the new road at Port Stil
well today. The present construction force
is small, as a large one can not be used
to advantage as yet, but Mr. Stilwell says
it will be increased as soon as the work
gets well under way. The route of the
line leads northwest from Port Stllwell.
Mr. Stilwell has gone to Chicago and
will today re-enter upon his duties as
president of the Guardian Trust company,
a position he resigned some time ago at
the instance of the interests in control,
but to which he was recently re-elected.
His time will be divided between Chicago,
Kansas City and the City of Mexico, in
which latter city the Guardian Trust com
pany will begin business some time in
August. The Mexican government re
cently granted a concession to Mr. Stil
well to do a trust company business in
Mexico, and this concession he will turn
over to the Guardian Trust company, an
arrangement to that end having been
reached at the meeting of the directory in
Kansas City Friday.
FOUR EAST-BOUND TRAINS.
The Santa Fe Improves Its Chicago
Kansas City Service.
Kansas City, July 2. The Santa Fe ad
ded another train to its Kansas City-Chicago
service under the new time card
which became effective yesterday. This
gives the Santa Fe four, instead of three,
east bound trains out of Kansas City
daily, three of which will run to Chicago.
The first east bound morning train will
leave at 7:10 for local points between Kan
sas City and Chillicothe, reaching the lat
ter city at 9:10 p. m. The second train
out is the new one, which will leave at
8 a. m.. and make a thirteen hour run to
Chicago, arriving there at 9 p. m., mak
ing one-half hour quicker time than any
train under the old time card. This will
be the only daylight Chicago train out of
Kansas City on any line.
The new San Francisco train arrives In
Kansas City from the west at 5:15 p. m.,
and leave for Chicago, at 5:45 p. m., ar
riving there at 7:40 a. m. The Colorado
train, which arrives from the west at 7
p. m. and reach Chicago at 9:30 a. m. No
changes have been made in the schedule
of west bound trains out of Kansas '0 ty,
the new San Francisco train departing on
the time of the California express, by
which name it is still known. East bound
this train is known as the Atlantic ex
press. Robinson Promoted.
D. H. Robinson, chief clerk of Joint
Agent C. L. Wellington, whose head
quarters are in Denver, has been ap
pointed city passenger and ticket agent
of the C. R. I. & T. and the Houston &
Texas Central railroads at Fort Worth,
Texas.
The Last Spike.
Guthrie, Ok. T., July 2. The last spike
on the Guthrie and' Western Railroad was
driven at Cajshlon, the new town midway
between this city and Kingfisher. Trains
were put on Sunday. The road will e
operated jointly by the Rock Island and
the Santa Fe companies, giving Guthrie
direct connection with all Rock Island
trains at Kingfisher.
Mr. Kenna Out of Sanger.
Vice President E. D. Kenna, of the
Atchison, Topeka & Santa Fe, is pro
nounced out of danger by the physicians
at St. Luke's hospital, Chicago. He has
shown steady improvement for three days
past.
EMPIRE OB REPUBLIC.
A Paper Prepared by D. C. Til
lotson For the Silver Re
publican Meeting in
Topeka Today.
The relation of our new possessions
to the United States has been widely
discussed, but the issues involved- are
of such momentous importance, not
merely to the islanders but to ourselves,
that another chapter may be not wholly
inexcusable.
For the purpose of establishing the
proposition that the Constitution does
not limit the power of congress In legis
lating for thj territory acquired from
:n: nna that the Declaration of In-
tence, never imposing a legal ob
ligation upon the government of the
United Slates, now imposes no moral
obligation upon it; the administration
has briefed its case and a copy of that
brief and argument is before me. It is
prepared by one Charles E. Magoon
who is designated as Law Officer, Divis
ion of Insular Affairs, War Department,
and the argument, a brief of 78 pages,
is addressed to Hon. Elihu Root, secre
tary of war, and is dated February 12,
1900.
This argument attempts to prove that
the government of the United States,
although created by the Constitution, is
superior to that document and unre
stricted by its provisions in all places
outside of the states themselves. .The
argument presents three phases of this
.proposition.
1. The Constitution was established
for the United States. Territory be
longing to the United States is not a
part of them. Hence, the Constitution
of its own vigor, ex propria vigore, con
fers no protection upon and gives no
rights to the inhabitants of the terri
tories. 2. The Constitution was established
for the United States. Territory apper
taining to the United States is not a
part of them. Hence, the Constitution
of its own vigor confers no rights upon
and gives no protection to the inhab
itants of such territory.
3. By treaty the United States re
served to the congress the determina
tion of the civil and political status of
the inhabitants of the territory acquired
from Spain. This treaty abrogais the
Constitution. Hence, the Constitution
confers no rights upon and gives no
protection to the inhabitants of the is
lands acquired from Spain.
Instead of using this syllogistic form,
the administration asks the author four
questions:
1. Have the territorial boundaries
of the United States been extended to
embrace the islands of the Philippine
archipelago, the island of Guam and the
island of Porto Rico?
2. Are said islands and their inhab
itants, bound,-, benefited, privileged and
conditioned by the Constitution of the
United States?
3. Has the congress of the United
States jurisdiction to legislate for said
islands and their inhabitants?
4. Must such legislation conform to
the constitutional requirements regard
ing territory within the boundaries ot
the United States and citizens domiciled
therein? (Magoon, p. 3.)
It appears that these questions were
submitted by the war department; and
that Mr. Magoon answered them ac
cording to orders, is shown by the fact
that the fourth question assumes that
the first question has been answered in
the negative and the third in the affirm
ative. With these two answers thus in
dicated, the answers to the other two
must be in the negative. So Mr.
Magoon's task was very evidently lim
ited to preparing the best possible argu
ment for the worst possible cause.
To show the versatility of Judge
Magoon I ought to say that in May,
1SH9, before the political situation was
thought to require a different construc
tion, he was called upon for his opin
ion concerning the legal status of these
islands, and then said: "Thereupon the
territory conveyed became a part of the
United States and as such subject te
the Constitution. No further action by
congress was necessary or possible. The
Constitution does not depend on con
gress for authority in any part of the
United States. The reverse of the pro
position is the fact. From this time on
congress must look to the Constitution
for authority to legislate for Porto
Rico." Yet this same Magoon, revers
ing himself, has prepared the opinion
under discussion, which is the stock in
trade of our imperialist friends.
The administration devotes several
pages of its brief to expounding some
well established legal propositions.
There Is no question that the United
States have the power to acquire ter
ritory, that having acquired territory
they have the power to govern it, and
the power to govern is unlimited unless
limited by the Constitution of the
United States.
Neither is there any question but the
determination of the territorial limits
of the country is a political, not a ju
dicial auestion. The executive and
Congress extend or limit our boundaries
and when so extended or limited, the
courts are bound thereby.
MEANING OF UNITED STATES.
In discussing this question, we find
the various meanings of the term.
United States, to be a source of confu
sion. The Declaration or Independence,
17 1 6, was subscribed by the "Repre
sentatives of the United States of
America." The Articles of Confeder
ation, 1778, take the official designa
tion of the "United States of America,"
The treaty of 1783 concedes the inde
pendence of the "United States," with
boundaries extending from Florida to
the Great Lakes and from the Atlantic
ocean to the Mississippi. The preamble
to the Constitution says, "ordain and
establish this Constitution for the
United States of America." In these
cases the terms certainly means the
territorial area of the country known
as the United States of America In
1S20 the Supreme Court nad occasion
to decide what this term means in sec
tion eight of article one of the Consti
tution, and said: "The eighth section
of the first article gives to Congress
the 'power to lay and collect taxes, du
ties, imposts and excises' for the pur
pose thereinafter mentioned. This grant
is general, without limitation as to
place. It, consequently, extends to all
places over which the government ex
tends. If this could be doubted, the
doubt is removed by the subsequent
words which modify, the grant. These
words, are, 'But all duties, imposts, and
excises shall be uniform throughout the
United States.' It will be contended that
the modification of the power extends
to places to which the power itself does
r.ot extend. The power, then, to lay and
collect duties, imposts, and excises may
be exercised, and must be exercised
throughout the United States. Does this
term designate the whole or any parti
cular portion of the American Empire?
Certainly this question can admit of but
one answer. It is the name given to our
Great Republic, which is composed of
states and territories. The District
of Columbia, or the territory west of
the Missouri, is not less within the
United States than Maryland or Penn
sylvania; and it is not less necessary,
on the principles of our Constitution,
that uniformity in imposition of im
posts, duties, and excises should be ob
served in the one than the other.
Since, then, the power to lay and col
lect taxes, which includes direct taxes,
is obviously coextensive with the power
to lay and collect duties, imposts, and
excises, and since the latter extends
throughout the United States, it follows
that the power to impose direct taxes
also extends throughout the United
It -will be remembered that in 1S20
the territory west of the Missouri was
unorganized territory, the Constitution
h:M not been extended over it by act
of Congress nor had Congress passed
any act declaring said territory within
the territorial boundaries of the United
States. Why? Because it is one of the
"places over which the government
extends." and being such a place it
was and Is in the United States.
But the administration seeks to break
the force of this decision by asking it
self the question: "Has Congress
authority to legislate for territory ap
pertaining to and in the possession of
the United States but outside of its
territorial boundaries?" It will be ob
served that the administration makes
a fundamental error by assuming that
there is territory appertaining to and in
the possession of the United States and
not within its territorial boundary. To
sustain its contention it cites the Na
vassa island case reported in 137 U. S. p.
202 (Magoon p. 13-19), but for some rea
son it overlooked some important ques
tions decided therein by the court.
In 1S56 Congress passed an act, one
section of which reads: "Sec. 5570.
Wherever any citizen of the United
States discovers a deposit of guano on
any island, rock, or key, not within the
lawful jurisdiction of any government,
and not occupied by the citizens of any
other government, and take3 peaceable
possession thereof, and occupies the
same, such island, rock, or key may,
at the discretion of the president, be
considered as appertaining to the
United States."
Navassa island came within this law.
Henry Jones killed a man on that isl
and, was brought to the States, regu
larly indicted by a grand jury, con
victed of murder by a regularly qual
ified jury, and sentenced to be hanged.
He appealed to the Supreme Court,
claiming the above law to be uncon
stitutional, because Navassa island was
no part of the United States.
The court in discussing this case say:
"By the law of nations, recognized by
all civilized states, dominion of new ter
ritory may be acquired by discovery
and occupation, as well as by cession
or corquest; and when citizens or sub
jects of one nation, in its name and by
its authority or with its assent, take
and hold, actual, continuous, and useful
possession (although only for the pur
uose of carrying on a special business,
such as catching and curing fish or
working mines) of territory unoccupied
by any other government or its citizens,
the nation to which they belong may
exercise such jurisdiction and for such
period as It sees fit over the territory so
acquired. This principle affords ample
warrant for the legislation of Congress
concerning guano islands." (Citing
cases on International law). 137 U. S.
212.
One of the powers granted to Congress
is to punish crimes against the law of
nations; but in this cat the court
said: "By the constitution of the
United States, while a crime committed
within any state must be tried in that
state and in a district previously ascer
tained by law, yet a crime not com
mitted within any state of the Union
may be tried at such place as Congress
may by law direct." p. 211.
Again the court say: "Both the acts
of . Congress clearly include murder
committed on any land within the ex
clusive jurisdiction of the United States
and not within any judicial district, as
well as murder committed upon the
high seas." p. 212.
And again the court say: "All courts
of Justice are bound to take Judicial no
tice of the territorial extent of the Jur
isdiction exercised by the government
whose laws they administer." p. 214.
And the court very unkindly decided,
"that the, President, exercising the dis
cretionary power conferred upon him
by the Constitution and the laws, was
satisfied that the Island of Navassa
was not within the jurisdiction of Hay
ti, or of any other foreign government."
p. 223
Thus we see that this case does not
decide that an island appertaining to
the United States is outside of its ter
ritorial -boundaries;, but does decide
that Congress in legislating for Na
vassa island - was within the Constitu
tion, that the President in his action
was within- the-Constitution, and that
this island is within the territorial ex
tent of the jurisdiction of the United
States." It is one of the places "over
which " the government extends," and
appears to be wanting in none of the at
tributes of territory within the terri
torial boundary of the United States.
THE DATA FOR DETERMINATION.
Now, these two decisions furnish us
the data to' determine whether any ter
ritory is within the territorial limits of
the United States. It must be within
the jterrilQriaJ .extent of the Jurisdiction
exercised by the government. It must
be land within the exclusive jurisdiction
of the United States. It must be a place
over which the government extends.The
Philippine Archipelago, Guam, and Por
to Rico are within the territorial extent
of our jurisdiction, they are land within
the exclusive Jurisdiction of the United
States, and they are places over which
the government extends. Hence, we are
Justified in claiming that they are with
in the territorial boundary of the United
States.
But the administration relies- upon
two other cases, Fleming vs. Page 9
Howard. 614, (Magoon pp. 12, 13.) and
In Re Ross, 140 U. S. 453, (Magoon pp.
13, and 19-21). These cases are particu
larly valuable to show the weakness of
the administration's case. The first case
simply decides that national boundaries
are not changed by the advance and re
treat of armies. So the occupation of
Mexican territory by the army of the
United States did not change the na
tional boundary. That proposition Is
self-evident, and has no bearing upon
the present situation.
The Ross case is, if anything, more
far-fetched than the Fleming case. Ross
was tried and convicted of murder be
fore the consul-general of the United
States In Japan. The conviction was
sustained-, the court saying: "The con
stitution can have no operation in an
other country. When therefore, the rep
resentatives or officers of our govern
ment are permitted to exercise authori-;
ty of any kind in another country it
must be on such conditions as the two
countries may agree, the laws of neith
er one being obligatory upon the other.
The deck of a private American vessel,
it is true, is considered for many pur
poses constructively as territory of the
United States, yet persons on board of
such vessels, whether officers, sailors, or
passengers, cannot invoke the protec
tion of the provisions referred to until
brought within the actual territorial
boundaries of the United States."
To make this case applicable to our
present situation, the islands must be in
some other country, and our rights
there must depend upon a treaty stipu
lation with that other country. What
and where is that other country? And
with whom can we treat for permission
to exercise authority?
But the administration claims that
even if the islands are within the terri
torial boundary of the United States,
their inhabitants cannot invoke the
protection of the constitution and says:
"The conclusion seems irresistible that
the sovereign people of the United
States, in acquiring territory by the ex
ercise of the inherent right of sovereign
ty, secure said territory free and clear
of Incumbrances other than it sees fit
to impose upon itself by treaty stipula
tion or other agreement entered Into
with direct reference to said territory."
(Magoon, p. 26). "The will of the con
queror Is the law of the conquered"
(Magoon, p. 24).
To sustain this high and mighty doc
trine, three decisions are apparently re
lied upon:
Talbot vs. Silver Bow county, 139 U. S.
446.
Shlvely vs. Bowlby, 152 U. a 48.
Benner vs. Porter, 9 Howard 235.
Alluding to the territories, it quotes
from the first:
"It is not a distinct sovereignty. It has
no independent powers. It Is a political
community organized by congress, and
all whose powers are created by con
gress, and all whose acts are subject to
congressional supervision. Its attitude
to the general government is no more
independent than that of a city to the
state in which it is situated, and which
has given to it its municipal organiza
tion." It quotes from the second:
"By the constitution, as is now well
settled, the United States having right
fully acquired the territories, and being
the only government which can impose
laws upon them, have the entire do
minion and sovereignty, national rnd
municipal, federal and state, over all
territories, so long as they are in a
territorial condition."
It quotes from the third:
"The distinction between the federal
and the state Jurisdictions under the
constitutions of the United States has
no foundation in these territorial gov
ernments, and consequently no such
distinction exists either in respect to the
jurisdiction of their courts or the sub
jects submitted to their cognizance.
They are legislative governments and
their courts are legislative courts, con
gress, in the exercise of Its powers in
the organization and government of the
territories, combining the powers of
both the federal and the state authori
ties. There is but one system of laws
operating within their limits, as neith
er is subject to the constitutional pro
visions In respect to state and federal
Jurisdiction.
"They are not organized under the con
stitution nor subject to its complex dis
tribution of the powers of government,
as the organic law, but are creations
exclusively of the legislative depart
ment, and subject to its supervisions
and control."
In the Talbot case the court also said:
"Under the general territorial system,
as expressed in the various organic
acts, the power of taxation is absolute,
save as restricted by the constitution or
congressional enactment." 139 U. S. 448.
Now, the administration unfortunate
ly omitted the last quotation from its
argument. It would be very interesting
to be toid how the constitution can lim
it the power or a territorial legislature
and the inhabitants not be "bound, ben
efited, privileged, and conditioned by the
constitution of the United States."
The Shively case, quoted from by the
administration, was a case dealing with
riparian rights on the Columbia river,
and in disposing of this question of pri
vate ownership of real estate had no oc
casion to, and did not, decide whether
the inhabitants were "bound, benefited,
privileged, and conditioned by the con
stitution of the United States."
In the case from 9 Howard, quoted
from by the administration, it again
omits an important statement from the
opinion of the court. After the words
quoted from in that case the court con
tinues: "Whether, or not, there are
provisions in that instrument (the con
stitution) which extend to and act upon
these territorial governments, it is not
now material to examine. We are
speaking here of those provisions that
refer particularly to the distinction be
tween federal and state jurisdiction."
Here, again, the administration falls
to tell us how a decision that specifi
cally refuses to decide a certain ques
tion can be used, in good faith, to sus
tain a proposition that the court then
specifically refused to decide. .
And the administration attempts to
justify its position by devoting seven
pages to speeches in congress and the
case of Ins. Co. vs. Canter 1 Peters 511.
(Magoon pp. 49-55). The organic act bf
Florida territory provided that no act
of its legislature should be valid if in
consistent with the Constitution of the
United States', in this respect being sim
ilar to the organic acts of the territory
of Orleans and of Louisiana.
The administration says: "It was in
sisted that the Constitution gave ex
clusive jurisdiction of such matters to
the federal courts; that the Constitution
was in force in Florida, and therefore
the acts of the territorial legislature
giving Jurisdiction in admiralty cases
to the territorial courts was in violation
of the Constitution." It was this pro
position which was denied by Mr. Jus
tice Johnson, sitting as circuit justice,
and the denial affirmed by the supreme
court." (Magoon, p. 61). This appears
to be a deliberate misstatement of what
the court decided. In discussing the
status of the territory of Florida, the
court says, p. 542: "This treaty is the
law of the land, and admits the inhab
itants of Florida to the enjoyment of
the privileges, rights, and immunities
of the citizens of the United States. It
is unnecessary to inquire whether this
is not their condition independent of
stipulation." And in giving judgment at
the close of the opinion, the court says:
"We think, then, that the act of the ter
ritorial legislature Is not inconsistent
with the laws and Constitution of the
United States, and is valid."
THE REAL QUESTION AT ISSUE.
Here, then, is the real question in
controversy. Was the law in contro
versy inconsistent with the laws and
Constitution of the United States? The
court held that it was not inconsistent
therewith and for that reason was valid.
Certainly a very different thing from
deciding that the inhabitants of Flor
ida were not "bound, benefited, priv
ileged and conditioned by the Constitu
tion of the United States."
But to further sustain Its case, the
administration says: "Although con
gress had thus legislated directly for
Louisiana and the inhabitants of that
country, President Jefferson did not
consider the territory bound and bene
fited by the Constitution, nor its inhab
itants entitled to the rights, privileges,
and immunities guaranteed by the Con
stitution to the inhabitants of the Uni
ted States." (Magoon, p. 8). But Jeffer
son's official communications hardly
bear out these assertions. In writing
of the treaty ceding Louisiana to the
United States, Jefferson says: "When
these shall have received the constitu
tional sanction of the senate, they will
without delay he communicated to the
representatives also to exercise their
functions as to those conditions which
are within the powers vested by the
Constitution in congress." (Messages of
the Presidents, vol. 1, p. 358). Again on
p. 379, justifying his administration in
his second inaugural address, . he
says: "In matters of religion I
have considered that its free exercise Is
placed by the Constitution independent
of the powers of the general govern
ment. I have therefore undertaken on
no occasion to prescribe the religious
exercises suited to it.but have left them,
as the Constitution found them." As the
only place where he would have had,
under any circumstances, a chance to
interfere with religion was Louisiana,
the above quotations show that Jeffer
son considered both congress and the
president bound to observe the Constitu
tion in Louisiana.
And the administration, also, seeks
consolation in acts of congress and
claims that congress has, at all times,
proceeded upon the theory that the con
stitution only reached the territories by
congressional favor. (Magoon, pp. 46,
47). As a source of argument, investi
gation shows that congress has over
done the matter. The organic act of
every territory organized since 1850 has
contained a section extending the con
stitution over the territory. In 1850 air
act was passed extending the constitu
tion over all territories then organized or
thereafter organized. But in 1854 the
constitution was extended to the terri
tories of Kansas and Nebraska by their
organic acts. Colorado was afterwards
organized from territory taken from
Utah and Kansas over which the con
stitution had been duly extended. Tet
the constitution was again extended
ever this territory as usual.Arizona and
Dakota were formed out of territory
over which congress had extended the
constitution, and by the organic act of
each the constitution was again extend
ed over them. These acts of congress
are either a formality, possibly a pre
cautionary one, or the constitution is a
very uncertain thing in a territory,
likely to slip off almost any time.
Now, it is a matter of history that In
the organization of territories prior to
1850, congress never passed an act ex
tending the constitution over any terri
tory. Why did congress begin at that
late day? The answer is, again, a mat
ter of history. California was admitted
as a free state and this had carried free
territory south of the line of the Mis
souri compromise. The slave-holding
interests believed they had some ad
vantages under the constitution. They
wished to guard against the south
west's being captured for free territory.
The question whether the constitution
by its own vigor extend to the territor
ies had not yet been before the supreme
court. So, as a precautionary measure,
made so to them by the admission of
California as a free state, the slave
holding interests, by act of congress, in
1S50, extended the constitution to New
Mexico and Utah, and to all territories
heretofore or hereafter organized, and
later to the territories of Kansas and
Nebraska. And the precedent, thus es
tablished in the interest of slavery, has
been followed ever since.
But the administration claims that if
it has no right to nullify the constitu
tion In the organized territories of the
United States, it has, by treaty, abroga
ted the constitution In the islands from
Spain and quotes from the treaty:
"Art. 9. The civil and po
litical status of the native inhabitants
of the territories hereby ceded to the
United States shall be determined by
congress." The administration then
proceeds to argue that, because of this
provision, the inhabitants of these isl
ands acquire no rights under our con
stitution, in other phrases reasserting
the doctrine that the will of the con
queror is the law of the conquered not
withstanding the fundamental law of
the conquering country. (Magoon, p.
11.).
But the supreme court has said:
"The treaty power, as expressed in
the constitution, is unlimited except by
those restraints which are found in that
instrument against the action of the
government itself and that of the states.
It would not be contended that it extends
so far as to authorize what the constitu
tion forbids, or a change in the charac
ter of the government, or in that of one
of the states, or a cession of any portion
of the territory of the latter without its
consent." Geoffrey vs. Rigg3, 133 U. S.
266. Citing 114 U. S. 525.
If the government can not by treaty
do what' the Constitution forbids, then
the attempt to deprive the inhabitants
of their civil rights under the Constitu
tion must come to nought but shame to
those who have made the attempt.
But we are not left to argument to
learn whether the Constitution of its
own vigor extends to the territories.
The supreme court has decided that
question in as plain English as can be
written. The question first came before
them in 1853. The question before the
court was whether, by the treaty with
Mexico, California became a part of the
United States and whether the Consti
tution of the United States extended
thereto. The court affirmed both pro
positions.and in speaking of the de facto
government of California as it existed
in 1S48, they say: "This de facto gov
ernment will, of course, exercise no
power inconsistent with the provisions
of the Constitution of the United States
which is the supreme law of the land."
Cross vs. Harrison, 16 U. S. 184. Ma
goon's opinion of 1S99 recognized this
case as conclusive that the Constitu
tion is the supreme law of the land.
This question again came before the
court in 1S56, in what is known as the
Dred Scott case, 19 Howard 450. There
were two questions decided in this case:
1. Does the Constitution of its own vigor
extend to the territories? 2. Are slaves
property within the meaning of the
Constitution? Both propositions were
decided in the affirmative, the first by
a unanimous court and the second by a
divided court. By amendment to the
Constitution the second has ceased to
be a practical question; but the first
stands as the law of the land, never
having been overruled by the court.
In deciding this case the court said:
"The powers over persons and property
of which we speak are not only not
granted to congress, but in express
terms denied, and they are forbidden
to exercise them, and this prohibition
is not confined to the states, but the
words are general, and extend to the
whole territory over which the Consti
tution give3 it power to legislate, in
cluding those portions of it remaining
under, territorial government, as well as
that covered by the state. It is a total
absence of power everywhere within
the dominion of the United States."
19 Howard 450. That the court was un
animous on this proposition is shown
by the fact that the dissenting justices
concurred in this portion of the opinion.
Council for plaintiff had argued that
the power of congress over the terri
tories was plenary and unrestrained by
the Constitution, and for that reason
they had power to exclude slavery from
the territories. Replying to this argu
ment, McLean, J., dissenting, said: "Did
Chief Justice Marshall, by saying that
congress governed the territories by ex
ercising the combined powers of federal
and state governments, refer to unlimit
ed discretion? A government that can
make white men slaves? Surely such
a remark in the argument must have
been inadvertently uttered. No pow
ers can be exercised which are prohib
ited by the Constitution, or which are
contrary to its spirit." p. 542. And Cur
tis, J., dissenting, said: "If, then, this
clause does contain a power to legis
late respecting the territories, what are
the limits of that power? To this I
answer, that in common with all other
legislative powers of congress, it finds
its limits in the express prohibitions on
congress not to do certain things." p.
614. To the same effect Is National Bank
vs. County of Yankton, 101 U. S. 133.
The court again had this question up
in Murphy vs. Ramsey, 114 U. S. 44-45.
and say: "The people of the United
States, as sovereign owners of the na
tional territories, have supreme power
over them and their inhabitants. In the
exercise cf this sovereign dominion.they
are represented by the government of
the United States, to whom all the pow
ers of the government over the subject
have been delegated, subject only to
such restrictions as are expressed in the
Constitution, or necessarily implied in
its terms.
"The personal and civil rights of the in
habitants of the territories are secured
to them, as to other citizens, by the
principles of constitutional ' liberty
which restrains all agencies of govern
ment, state and national." We find
among the authorities cited to maintain
this opinion that much-maligned Dred
Scott case. And the same doctrine is
affirmed in the Mormon church case, 136
U. S. 44.
The supreme court has gone even far
ther and decided that aliens within the
jurisdiction of the United States were
"bound, benefited, privileged, and con
ditioned" by the constitution. "While
he (an alien) lawfully remains here he
is entitled to the benefits of the guaran
ties of life, liberty, and property, secur
ed by the constitution to all persons of
whatever race, within the jurisdiction
of the United States. His personal rights
when he is in this country and such of
his property as is here during his ab
sence, are as fully protected by the su
preme law of the land as if he were a
native or naturalized citizen of the Uni
ted States." Lem Moon Sing vs. the
United States. 158 U. S. 547.
Again in 166 U. S. 464 our supreme
court expressly said that the constitu
tion extended to the territories by its
own vigor, ex propria vigore. and in the
same volume at 707, in Springville vs.
Thomas, the court says: "In our opinion
the seventh amendment secured unani
mity in finding a verdict as an essen
tial feature of a trial by Jury In com
mon law cases, and the act of congress
could not impart the power to change
the constitutional rule." This decision
held an act of congress relating to Utah
territory to be unconstitutional and
void. How can an act of congress re
lating to a territory be unconstitutional,
if the power of congress therein is un
limited? As late as 1S97 this proposition was
again before the supreme court, and they
held: "That the provisions of the Con
stitution of the United States relating to
the right of trial by jury in suits at com
mon law apply to the territores of the
United States is no longer an open ques
tion. Webster vs. Reid, 11 Howard. 437
4C0: American Pub. Co. vs. Fisher, 166 U.
S. 464; Springville vs. Thomas, 166 U. S.
7u7. In the last named case it was claimed
that the territorial legislature of Utah
was empowered by the organic act of the
territory of September 9, 1850, (Stat. 453,
ch. 51, sec. 6) to provide that unanimity of
action on the part of jurors in civil cases
was not necessary to a valid verdict.
This court said: 'In our opinion the sev
enth amendment secured unanimity in
finding a verdict as an essential feature
of trial by jury in common law cases,
and the act of congress could not impart
the power to change the constitutional
rule, and could not be treated as attempt
ing to do so. It is beyond question that
the provision of the national constitution
relating to trials by jury for crimes and
to criminal prosecutions apply to the ter
ritories of the United States." Thomp
son vs. Utah, 170 U. S. 346. 347.
That the government is especially bound
by the Constitution is emphasized rn the
Speis case, 123 U. S. 131, where the court
says:
"The first ten articles of amendment to
the Constitution of the United States were
not intended to limit the powers of the
states, in respect to their own people, but
to operate upon the national government
only."
Thus we see that there are certain le
gally established limitations to the power
on congress everywhere:
Duties, imposts and excises must be uni
form in all "places over which the gov
ernment extends."
The powers prohibited to congress are
limitations upon its power everywhere.
The -first ten amendments to the con
stitution are limitations upi n the general
government, not upon the states.
And these limitations upon the power
of the government, established by the
highest judicial tribunal in our land, the
opponents of the empire Insist shall be
observed.
THE DECLARATION OF INDE
PENDENCE. The administration admits that while it
is not compelled to recognize the prin
ciples of constitutional government and
of the Declaration of Independence in tha
government of the islands, yet it may do
so; and devotes four pages to establishing
the proposition that by giving the inhabi
tants of the islands permission to retain
their allegiance to Spain, leave the isl
ands, or remain, the terms of the Decla
ration are complied with. (Magoon, pp.
67, 70). As the Czar of Russia recognizes
the Declaration of Independence after
that fashion, it is difficult to see what pe
culiar virtue there is in the position of
the administration.
Senator Ross, of Vermont, speaking for
his party on the 23d of January last,
states the case thus:
"CONSENT OF THE INHABITANTS OF!
THE ISLANDS NOT REQUIRED.
Tf these principles are enforced as far
as applicable to the government ot these
islands, the Inhabitants will be blesseu.
whether they consent thereto in advance
or not. In a representative government
the right to govern is not derived from
the consent of the governed until they
arrive at a stage of advancement which
will render them capable of giving an in
telligent consent. Four-fifth of the in
habitants of this country have given no
consent except representatively. The con
sent of women, as a rule. And of minors
is never required, nor allowed to be taken.
Wives and children are assumed to be
represented by husbands and fathers.
Boys are to be educated, trained, anil
ripened into manhood before they are
capable of giving consent."
Senator Petit, of Indiana, discussing the
Kansas-Nebraska bill, on February 20,
1854. more vigorously asserting the same
doctrine, said:
"It is alleged that all men are created
equal, and the Declaration of Independ
ence is referred to. to sustain that posi
tion. However unpopular or displeasing
it may be to the mass of my fellow citi
zens, I am constrained to dissent from
any such position or dogma. It is not true
In fact; it is not true in law; it is not
true physically, mentally or morally that
all men are created equal. I will not play
upon the term of the creation of men or
babies. I will not say that men are not
created. But, sir, is it a fact? If Mr.
Jefferson had said, in his Declaration of
Independence, that all men constituting
portions of the body politic ought to b
equal, ought to have equal political rights,
there would have been something like pro
priety and wisdom in it- But however
egotistical or absurd It may appear in
ma to venture to contradict or dispute
the language of the Declaration of lnde-
rndence, I proceed to do it fearlessly,
cannot, in the first place, believe that
Mr. Jefferson ever intended to give the
meaning or force which is attempted now
to be applied to this language when he
said: 'We hold these truths to be self
evident, that all men are created equal.
I hold it to be a self-evident lie. There
is no such thing."
And the Democrats failed to return
Judge Petit to the United States senate.
Alluding to the foregoing speech of
Judge Petit, Abraham Lincoln, on Oc
tober 7, 1S5S, at Galesburg, 111., said:
"The Judge (Senator Douglas) has al- '
luded to the Declaration of Independence,
and insisted that negroes are not included
in that declaration; and that it is a slan
der upon the framers of that instrument,
to suppose that negroes were meant
therein; and asks you: 'Is it possible to
believe that Mr. Jefferson, who formed
the immortal paper, could have supposed
himself apply-'.ng the language of that in
strument to the negro race .and yet held a
portion of that race in slavery? Would
he not at once have freed them?' I have
only to remark upon this part of the
Judge's speech that I believe the entire
records of the world, from the date of the
Declaration of Independence up to within
three years ago, may be searched in vain
for one single affirmation, from any one
man, that the negro was not included in
the Declaration; I thlnit I may defy
Judge Douglas to show that he ever said
so, that any president ever said so, that
Washington ever said so, that any mem
ber of congress ever said so, or that a uy
living man upon all the earth ever said
so, until the necessities of the present pol
icy of the Democratic party, in' regard to
slavery, had to invent the affirmation."
Paraphrasing Lincoln, can it not be
said: Can we not defy the administration
to show that any previous administration
ever attempted to not only disregard the
Declaration of Independence but to nullify
the Constitution? That Washington ever
attempted to do so, that any president
ever attempted to do so, until the neces
sities of the present policy of the present
administration, In regard to an Imperial
programme, compelled it to espouse this
proposition?
Emphasizing this idei., the second plank
in the Republican platform of 1860 was
made to read:
"That the maintenance of the prin
ciples promulgated in the Declaration of
Independence .and embodied in the Fed
eral Constitution, is essential to the pres
ervation of -our republican institutions;
that the Federal Constitution, the rights
of the states, and the union of the states,
must and shall be preserved; and that we
reassert 'these truths to be self-evident
that all men are created equal; that they
are endowed by their Creator w'th cer
tain Inalienable rights: that among these
are life, liberty, and the pursuit of happi
ness; that to secure these rights, govern
ments are Instituted among men. deriving
their Jus: powers from the consent of the
governed.' "
It will be observed that this plank links
the Declaration and the Federal Constitu
tion together. They stand together every
where. But we are told that the party
separated them In the seventh plank and
denied that the Constitution, of its own
force, extended to the territories. Let us
examine that. It read: "That the new
dogma that the Constitution, of Its own
force, carries slavery into any or all the
territories of the United States. Is a
dangerous political heresy, at variance
with the explicit provisions of that in
strument itself, with contemporaneous ex
positions, and with legislative and judi
cial precedent, is revolutionary in its ten
dency, and subversive of the peace and
harmony of the country."
Nowhere does this plank or this plat
form deny that the Constitution extends
to the territories by its own force, but it
does sav that it does not carry slavery
there. That this is true is shown by the
next plank. It reads:
"That the normal condition of the ter
ritory of the United States is that of
freedom: that as our republican fathers,
when they had abolished slavery in all
our national territory, ordained that no
person should be deprived of life,, liberty
or property, without due process of law,
it becomes our duty, by legislation, when
ever such legislation is necessary, to
maintain this provision of the Constitu
tion against all attempts t. violate it;
and we deny the authority of congress,
of a territorial legislature, or of any indi
viduals, to give legal existence to slavery
in -any territory of the United; States."
Now, if congress had no power in 1SCU
to establish slavery In the territories, it
did not have unlimited power over them.
But the power of congress ove the terri
toies must be limited by the constitution
if limited at all. Hence, the Constitution,
as the supreme law of all the land was
expressly recognized by the Republican
party in 18S0, and Abraham Lincoln sub
scribed to that platform. Why Is It not a
good platform now so far aa i applies
to present conditions? An ' U not the ad
vice he gave in Cincinnati in still
pood advice? "The people f these United
States are the rightful meters rf bott
congresses and courts, not .o overthrow
the Constitution, but to overthrow the
men who prevert the Constit ution."
We are called upon to combat a new
form of nullification. In its earlier form.
It was claimed that a state had the rignt
to nullify the constitution; now it is
claimed that the congress has that right
when seconded by the president. These
doctrines are equally pernicious. The first
cost us the best blood of the nation will
not the second lead to a similar catas
trophe? Can this nation exist half em-
6 Ire and half republic? Is loyalty to the
eclaratlon of Independence and the Con
stitution no longer the test of patriotism?
Shall we allow it to be truthfully said of
us that
" "Tis the Jingle of the guinea heals
The hurt that honor feels?"
Are we to follow John Petit or Abra
ham Lincoln?
D. C. TILLOTSON.