' r ""r- -.
' whwtit iyj-T i -
If'
people subject to United States jurisdiction
were entitled to tho privileges and immunities
guaranteed to every individual. We dedicate a
tablet to Marshall's memory while our highest
court repudiates Marshall's righteous interpre
tation and revolutionizes our form of govern
ment. It was Channing who said that "the passion
for ruling is the chief peril of free states,
tho only enemy of free institutions." The les
sons of love, of life and of liborty which Chan
ning gave have been forgotten or repudiated.
It was Clay who raised his voice in behalf
of Greek independence and asked if wo were
"so mean and so base" as to refrain from express
ing sympathy in behalf of a people struggling
for liberty against "the most brutal and atroc
ioub war that ever stained earth or shocked
high heaven," and yet we are "so mean and so
base" as to refrain from expressing sympathy
with the republics of South Africa struggling
against an empire.
. It was Webster who prayed that by the
blessing of God his country might become "a
vast and splendid monument, not of oppression
and terror, but of wisdom, of peace and of lib
erty upon which the world may gaze with ad
miration forever." And yet how far we have
gone from Webster's teachings!
Beecher and Emerson were the champions
of liberty, the ardent advocates of American
ism as they learned Americanism in the charter
of American liberty.
To the memory of these great men we erect
tablets; and what a mockery indeed it is to ded
icate a tablet to the memory of a man whose
counsels we have ignored, whose teachings wo
have repudiated and whose principles we have
violated.
Harrison vs. Brown.
In his now famous, or infamous opinion,
-Justice Brown sought to reassure our Porto
Rican subjects by telling, them that they could
safely depend upon the benevolence and kind
ness of congress in the exercise of that body's
"unrestrained possession of power." The
Pittsburg Post reminds us that Justice Brown,
on this point, was well answered by the late
Benjamin Harrison. In the January number
of the North American Review, General Har
rison had an article entitled: "The Status of
Annexed Territory." In that article General
Harrison said it was inexpressibly absurd that
"the constitution does not apply, but all these
provisions in it are in full force notwithstand
ing." Then General .Harrison said:
"It should be asked further, whether the rule
of the uniformity of taxation is a part of tho 'law
of our civilization;' for, without 'it, all property
rights are unprotected. The man whose property
may bo taxed arbitrarily, without regard to uni
formity within tho tax district and without any
limitation as to tho purposes for which taxes may
jbo levied, does not own anything; ho is a tenant
at will. But if these supposed 'laws of civilization
are not enforcible by the courts, and rest wholly
for their sanction upon tho consciences of presi
dents and congresses, then there is a very wide dif
ference. The one Is ownership; the other is char
ity. The one is freedom; the other slavery how
ever just and kind the master may be
The Commoner.
"Our fathers were; not content with an assur
ance of these great rights that rested wholly upon
tho sense of justice and benevolence of tho con
gress. Tho man whoso protection from wrong
rests wholly upon the benevolence of another man
or of a congress, Is a slave a man without rights."
It would be interesting to hear what Ben
jamin Harrison would have to say in tho pres
ence of such a decision as was delivered by
Justice Brown. When congress levied tho
Porto Rican tariff General Harrison referred
to it as "a serious departure from right
principles." What 'would he have thought
had ho known that tho highest court in tho
land had solemnly given its sanction to that
"serious departure from right principles?"
W
It May be Only Temporary.
While tho principles set forth in the opin
ion read by Justice Brown would apply to all
territories, it is barely possible that there may
be a new alignment when the court attempts
to deal with the Philippine question. It will
bo remembered that four judges concurred
with Justice Brown in his conclusion in tho
Downes case, but differed from him in tho
reasons therefore. Justice White delivered an
opinion in which Justices Shiras and McICenna
concurred. In explaining his reasons for con
curring, Justice White said: "Mr. Justice
Brown, in announcing the judgment of affirm
ance, has in his opinion stated his reasons for
his concurrence in such judgment. In the re
sult I likewise concur. As, however, the rea
sons which cause mo to do so arc different
from, if not in conflict with, those expressed
in that opinion, if its meaning is by mo not
misconceived, it becomes my duty to state tho
convictions which control me." He then pro
ceeded to give very different reasons from
those set forth by Justice Brown.
Justice Gray also gave a separate opinion.
Ho began by saying: "Concurring in the
judgment of affirmance in this
Justice case, and in substance agrce-
Gray's Opinion, ing with tho opinions of Mr.
Justice White, I will sum up
the reasons for my concurrence in a few propo
sitions which may also indicate my position in
other cases now standing for judgment." Ho
bases his conclusion on the ground that con
gress was dealing with a temporary condition.
A few sentences indicate the trend of his ar
gument: "Tho Civil Government of tho
United States cannot extend immediately and
of its own force, over territory acquired by
war. Such territory must necessarily, in tho
first instance, be governed by the military
power under the control of the president as
commander-in-chief. Civil government cannot
take effect at once, as soon as possession is ac
quired under military authority, or even as
soon as that possession is confirmed by treaty."
"There must of necessity, be a transition
period." "If congress is not ready to con
struct a complete government for the con
quered territory, it may establish a temporary
government, which is not subject to all tho re
strictions of the constitution." "Tho system
of duties, temporarily established by that act,
(the Forakcr act) during tho transition period,
was within the authority of congress under tho
constitution of the United States."
Justice Gray sustained the Foraker act be
cause it was in tho naturo of temporary legis
lation intended to cover a
flcrely transition period. What will
Temporary bo his position when the" ad-
Legislation. ministration attempts to fleal
with tho Philippine ques
tion as a pormancnt proposition? Ex-At-torhcy
General Griggs rejoiced over "the vic
tory for the administration;" ho shouted like a
boy at a base ball game because his sido had
won by a score of five to four. But is it cer
tain that a colonial policy has been perma
nently established? Tho emphatic dissent of
four judges out of nine detracts from the value
of tho decision as a settlement of a constitu
tional question, but the division which ap
peared among tho majority and the conflicting
reasons 'which led to tho in-harmonious agree
ment of a bare majority destroys what little
weight a five-to-four decision might havo in
the determination of such a grave issue. It is
possible that Justice Gray may not favor tho
permanent subversion of the constitution; if so,
tho triumph of the administration is only a
temporary one.
Justice Gray's opinion follows:
Concurring in tho judgment of affirmance in
this case, and In substance agreeing with tho
opinion of Mr. Justice" Whito, I will sum up tho
reasons for my concurrence In a few propositions,
which may also indicate my position in other casea
now standing for judgment.
Tho cases now before tho court do not touch
tho authority of tho United States over the terri
tories, in tho strict and technical sense, being those
which lie within tho United States, as bounded by
the Atlantic and Pacific oceans, the Dominion of
Canada and the Republic of M'oxico, and tho terri
tories of Alaska and Hawaii; but they relate to ter
ritory, in tho broader sense, acquired by the United
States by war with a foreign state.
As Chief Justice Marshall said: "The constitu
tion confers absolutely on tho government of the
union tho -powers of making
Power o! war, and of making treaties;
Acquiring consequently, that government
Territory. possesses the power of acquiring
territory, either by conquest or
by treaty. Tho usage of the world is, if a nation
be not entirely subdued, to consider tho holding of
conquered territory as a mere military occupa
tion, until its fate shall be determined at the treaty
of peace. If it be ceded by the treaty, the acquisi
tion is confirmed, and tho ceded territory becomes
a part of the nation to which it Is annexed; either
on the terms stipulated in the treaty of cession, or
on such as its new master shall impose." Ameri
can Insurance Co. v. Canter, (1828) 1 Pet. 511, 542.
The civil government of the United States can
not extend immediately, and of its own force, over
territory acquired by war. Such territory must
necessarily, in the first instance, be governed by
the military power under the control of the presi
dent as commander-in-chief. Civil government
cannot take effect at once, as soon as possession is
acquired under military authority, or even as soon
as that possession Is confirmed by treaty. It can
only be put in operation by the action of the ap
propriate political department of tho government,
at such time and in such degree as that department
may determine. There must, of necessity, be a
transition period.
In a conquered territory, civil government
must take effect, either by the action of the treaty
making power, or by that of tho
in a Con- congress of tho United States,
quered The office of a treaty of cession
Territory. ordinarily is to put an end to all
authority of the foreign govern
ment over the territory; and to subject the terrl-