)w rgfTFy" Vf'V. t "
The Commoner.
ii
clause of the constitution was not intended to be
restricted to such territory as the United States
then possessed, there is nothing in the constitu
tion to indicate that the power of congress in deal
ing with them was intended to be restricted by
any of the other provisions;' and that 'the execu
tive and legislative departments of the government
have for more than a century interpreted this si
lence as precluding the idea that the constitution
attached to theso territories as soon as acquired.'
ERA OF LEGISLATIVE ABSOLUTISM.
"These are words of mighty import. They
Involve consequences of the most momentous char
acter. I take leave to say that if the principles
now announced should ever receive the sanction
of a majority of this court, the result will be a
radical and mischievous change in our system of
government. We will, in that event, pass from
the era of constitutional liberty, guarded and pro
tected by a written constitution, into an era of
legislative absolutism, in respect of many rights
that are dear to all peoples who love freedom.
"Although from the foundation of the govern
ment this court has held steadily to the view that
the government of the United States was one of
enumerated powers, and that no one of its
branches, nor all of its branches combined, could
constitutionally exercise powers not grante'd, or
which were not necessarily implied from those ex
pressly granted, we are now informed that congress
possesses powers outside of the constitution, and
may deal with new territory, acquired by treaty
or conquest, in the same manner as other nations
have been accustomed to act with respect to terri
tories acquired by them. In my opinion, congress
has no existence and can exercise no authority
outside of the constitution. Still less is it true
that congress can deal with new territories just
as other nations have done or may do with their
new territories. This nation is under the control
of a written constitution, which is the supreme Jaw
of the land, and the only sourco of the powers
which our government, or any branch or officer of
it, may exercise at any time or at any place.
MEANS A COLONIAL SYSTEM.
"Monarchical and despotic governments, un
restrained in their powers by written constitutions,
may do with newly acquired territories what this
government may not do consistently with our fun
damental law. To say otherwise is to concede that
congress may, by action taken outside of the con
stitution, engraft upon our republican institutions
a colonial system such as exists under monarchical
governments. That result was never contemplated
by the fathers of the constitution, and if that in
strument had contained a word suggesting the
possibility of a result of that character, it would
never have been adopted by the people of the
United States. The idea that this country may ac7
quire territories anywhere upon the earth, by
conquest or treaty, and hold them as mere colonies
or provinces the people inhabiting them to enjoy
only such rights as congress chose to accord to
them is wholly inconsistent with the spirit and
genius, as well as with the "words, of the constitu
tion. "The idea prevails with some indeed, has
found expression in public speeches and addresses
that we have here in this country substantially
two national governments; one, to be maintained
under the constitution, with all its restrictions; the
other to be maintained by congress outside and
independently ot that instrument and exercising
powers that belong to the other nations of the
earth. It is one thing to give such a latitudinarian
construction to the constitution as will bring the
exercise of power by congress, upon a particular
occasion or upon a particular subject, within its
provisions. It is quite a different thing to say
that congress may proceed outside of the constitu
tion. The glory of our American system of gov
ernment is that it was created by a written con
stitution which protects the people against the ex
ercise of arbitrary, unlimited power, and the lim
its of which may not be passed by the government
It created, or by any branch of it, or even by the
people who ordained it, except by amendment or
chango of its provisions.
INJUSTICE FROM ENGLISH RULERS.
"The wise men who framed the constitution,
and the patriotic people who decreed its adoption,
were unwilling to depend for their safety upon
what, in the opinion referred to, is described as
'certain principles of natural justice inherent in
Anglo-Saxon character.' They well remembered
that Anglo-Saxons across the ocean had attempted,
in defiance of justice, to trample upon tho rights
of Anglo-Saxons on this continent, and had sought,
by military force, to establish a government that
could at will destroy the privileges which inhere
in freedom. They resolved that the establishment
of a government here that could administer public
affairs according to its will only, without regard
to the inherent rights of freemen, would be ruinous
to the liberties of tho people and expose them to
tho oppressions of arbitrary power. Hence, the
constitution enumerates tho powers which con
gress and tho other departments may oxerclso,
leaving unimpaired, to tho states cr tho people,
the powers not delegated to tho national govern
ment nor prohibited to tho states. That instru
ment so expressly declares In tho tenth article of
amendment. It will be an evil day for American
liberty if the theory of a government outside of
the supreme law of tho land finds lodgment in our
constitutional jurisprudence."
In showing how tho constitution was framed,
Justice Harlan said that the fact that the conven
tion struck out tho words "the supreme law of
the several states" and inserted "the supreme law
of the land," is a fact of great significance. Tho
"land" referred to manifestly embraced all the
territory, whether within or without the states,
over which the United States could exercise juris
diction or authority.
ASSIMILATION OF THE RACES.
"If a particular race will not assimilate with
our people, and cannot with safety to our institu
tions be brought within the operation of tho con
stitution, that is a matter to be thought of when
it is proposed to acquire their territory by treaty.
When the acquisition of territory becomes com
plete, by cession, the constitution necessarily be
comes the supreme law of such new territory, and
no power exists in any department of the govern
ment to make 'concessions' that are inconsistent
with its provisions. The authority to make such
concessions implies the existence in congress of
power to declare that constitutional provisions
may be ignored under particular or embarrassing
circumstances. No such dispensing power exists
in any branch of our government. The constitu
tion is supreme over every foot of territory, wher
ever situated, under the jurisdiction of the United
States, and its full operation cannot be stayed by
any branch of the government in order to meet
special or extraordinary emergencies.
"If the constitution Is in force in any territory,
it is in foce there for every purpose embraced by
the objects for which the government was or
dained. Its authority cannot be displaced by con
cessions, even if it be true, as asserted in argu
ment in some of these cases, that if the Dlngloy
act took effect in the Philippines of its own force,
the inhabitants of Mindanao, who live on imported
rice, will starve, because the import duty is many
fold more than the ordinary cost of tho grain to
them. Tho meaning of the constitution cannot
depend upon accidental circumstances. Even this
court, with its tremendous power, must heed the
mandate of tho constitution. No one in official
station, to whatever department of tho govern
ment he belongs, can disobey its commands with
out violating the obligation of the oath he has
taken. By whosoever and wherever power is ex
ercised in the name and unuer the authority of
the United States, or of any branch of its govern
ment, the validity or invalidity of that which is
done is to be determined by the constitution.
REGARDS IT AS JUGGLING WITH WORDS.
'I reject altogether the theory that congress,
in its discretion, can exclude the constitution from
a territory which we have held to be a domestic
'territory of the United States,' acquired, and
which could only have been acquired, in virtue of
the constitution. I cannot agree that it is a do
mestic territory of the United States for the pur
pose of preventing the application of the Dinglcy
tariff act imposing duties upon imports from for
eign countries, but not a domestic territory and
part of the United States for the purpose of en
forcing the constitutional requirement that 'all
duties, imposts, and excises' imposed by congress
'shall be uniform throughout the United States.' I
do not understand how Porto Rico can bo a do
mestic territory of the United States, as we have
distinctly held in De Lima vs. Bidwell, and yet
that it is not, as is now held, embraced by the
words 'throughout the United States.' The 'ex
panding future of .our country justifying the be
lief that the United States is to become what is
called a 'wo: Id power' of which so much was
heard at the argument does not justify any such
juggling with the words of the constitution as
would authorize tho courts to hold that the
words 'throughout the United States,' in the tax
ing clause of the constitution, do not embrace a
'territory of the United States.' This -is a dis
tinction which I am unable to make, and which
I do not thinlc ought to be made when we are en
deavoring to ascertain the meaning of a great in
strument of government.
"Conceding that the national government is
one of enumerated powers, to bo exerted only for
the limited objects defined i- the constitution, and
that congress has no power except as given by
that instrument, expressly or by necessary im
plication, it is said that a new territory, acquired
by treaty or conquest, cannot becomo incorporated
into the United States without the consent of con
gress. Of course, no suoh territory 'an become a
stata without Uio consent of tho legislative branch
of tho government, for only congress Is given pow
er by the. constitution to admit now states. But it
Is an entirely different question whether a terri
tory, without becoming a state, may not, for all
purposes of government by tho nation, como un
der the complete jurisdiction of tho United States,
and therefore a part of the United States, subject
to all the authority which tho government may
oxcrt over any territory or people. If Porto Rico,
whoso officers aro appointed as if it were not a
part of the United States, then Now Mexico, Ari
zona,, and Alaska, may he treated as not parts of
tho United States, and subject to bucIi legislation
as congress may choose to onact without reference
to tho restrictlo i .mpdBed by tho constitution.
NO VALUE TO CONSTITUTIONAL LIBERTY.
"This court has distinctly held that the pcoplo
of the organized territories of the United States,
and the p oplo of this district, are entitled to tho
benefit of those provisions of tho constitution
which protect life, liberty, and property against
the arbitrary power of government. What will it
bo but judicial legislation for this court to say
that tho express requirement of tho constitution
that all duties, imposts, and excises prescribed by
congress 'shall bo uniform throughout tho United
States,' shall not apply to a territory which this
court holds to.be a part of the United States? The
concession, therefore, that no power can be exer
cised under and by authority of tho United States
oxcopt in accordance with the constitution is of no
practical value to constitutional liberty if, as soon
as the concession is made, the constitution is so in
terpreted as to produce the same results as those
which flow from the theory that congress may go
outside of the constitution in dealing with newly
acquired territories, and give them the benefit of
that instrument only when and as congress shall
direct.
"The addition of Porto Rico to the territory of
tho United States has ben recognized by direct ac
tion upon the part of congress. It has legislated
in recognition of the treaty with Spain. If Porto
Rico did not by such action become a part, of the
United States, it did become such at least when
congress passed the Foraker act. 1 cannot be
lieve that' congress may impose any duty, impost,
or excise with respect to that territory and its
people which is not consistent with the constitu
tional requirement that all duties, Imposts, and ex
cises shall -be uniform throughout the United
States'."
While the sweet girl graduate's dress is being
fixed up by the dressmaker, her essay is having
the flounces put upon it by the teacher. Kansas
City Times.
Judge "You are charged with stealing six
turkeys from Colonel Smilax. Have you any wit
nesses?" Rastus "No, sah; you bet I ain't. I doan'
steal turkeys befo' witnesses, sah." Judge.
"111 speak my mind!" This was the threat
From chappie that we heard.
And then the dear boy sat and sat
And never said a word. Pick-Me-Up.'
WHEKE'S. THE USE?
Drugging with Coffee and Keeping Sick all the
Time.
A coffee drinker is liable to a smash almost any
time and without much warning. A New York man,
C. W. Bedford, 10(35 Lex. Ave., says that when ho
was in apparently perfect health, weighing about 185
pounds, with good appetite, he suddenly had a severe
attack of gastritis. Ho lost his appetite and the
doctor put him on a rigid diet and gave him reme
dies, but all to no purpose. He says, "Everybody I
met had & cure, and I tried a lot of them. I lost
weight until I reached 144 pounds, I had those
nasty gastric staggers.
About the middle of summer, when on a vaca
tion, a friend asked whether I drank coffee or not.
Being told that I did, he suggested that I quit it and
take Postum Food Coffee and Grape-Nuts breakfast
food. I laughed at him and told him that I was
through with special articles of diet
One day tho nerves had another bad smash and
I concluded to quit coffee and see if that was really
the cause of the trouble.
Next morning I had Postum for breakfast and it
was well made, and tasted good. I also had Grape
Nuts for breakfast, and from that day my troubles
began to fade away.
I am steadily gaining in flesh, can sleep natur
ally, and can eat whatever I want What is the use
of a man's drinking an article like coffee 'that
poisons him, and causes such troubles as I have hnd
when you can have a delicious Food Coffee like
Postum that builds up instead of tearing down."
Health is worth more than all the coffee on earth.
'
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