The Commoner.
h
Hepburn
s.
Ellzey.
feel confident tliat at least as to applicable provi
sions eight justices will concur. Mr. Justice Brown
is not as sensitive as his brethren, who agree with
liim as to "what in the Downes case, but disagree
a& to how.
"The inconsistency on the part of Mr. Justice
Brown in the De Lima and Downes cases is ob
vious, and tends to impair our confidence in his
conclusions. On' the other hand the consistency
of the dissenting justices in tho Downes case and
the manner in which their reasoning without dis
tortion answers the various conditions, tend to es
tablish its correctness.
" Is the conclusion in tho Downes
case sustained by such reason and authority as to
justify ue in assuming that it is tho deliberate and
final judgment of the court upon this great ques
tion; that it has laid down the rule which will gov
ern the republic for all time, so that although new
territory may be acquired, the republic will not ex
pand, but will simply accumulate property? It
seems to me more than doubtful.
"Mr. Justice Brown holds that under that pro
vision of the constitution which declares that 'all
duties, imposts and excises shall be uniform
throughout the United States,' the term 'United
States' is confined to the several states, and that
the territories and the District of Columbia are
not 'states' and not included therein, and therefore
Porto Rico, being a territory, is not protected
thereby.
"The earliest case upon which he relies is Hep
burn vs. Elizey, 2- Cranch, 445, whore it was held
that under the clause of the con
stitution limiting the jurisdiction
of the courts of the United States
to controversies between citizens
of the different states, a citizen
of the District of Columbia could not maintain an
action in the circuit court of tho United States. It
is true that Mr. Chief Justice Marshall there said:
" 'It becomes necessary to inquire whether
Columbia is a' state In the sense of that instrument.
Tho result of that examination is the conviction
that the members of the American confederacy
only are the states contemplated in the constitu
tion.' -"It is also true tha MY. Chief Justice Marshall,
recognizing the distinction between tho term 'state'
as used in that provision and tho 'United States'
said, in speaking of the same man that he had
just held was not a citizen of a 'state:'
"'It is true that as citizens of the United
States, and of that particular district which is sub
ject to the jurisdiction of congress, it is extraordi
nary that the courts of the United States, which
are open to aliens, and to citizens of every state
in the union, should be closed upon them. But
this is a subject for legislative and not for judicial
consideration.'
"It seems that Marshall could see how a man
could be within the 'United Staes' and not be in a
'state.' It will be observed that the learned jus
tice does not quote this remark.
"An examination of tho Downes case requires
the consideration of at least four great leading
cases: Loughborough vs. Blake, 5 "Wheat., 1820;
Insurance Co. vs. Canter, 1 Pet., 511, 828; Cross vs.
'Harrison, 1G How., 164, 1853, and Dred Scott vs.
Sandford, 19 How., 393, 1856.
"In the first three cases the court were unani
mous, and in the last case as to the proposition
liere involved there was no dissent, and as to that
proposition the authority of these cases prior to ttio
case had never been denied or questioned. One is
directly and two are practically overruled by a dis
agreeing majority of one."
Mr. Liltlefield then went'at great length into a
consideration of those famous cases and their
bearing upon the cases lately be
Inf uencca fore the supreme court, point-
Unwar- lQe out that the Downes case re-
ranted, versed the holdings of the court
since the earliest days, and that
the construction placed upon, and the interferences
drawn from, the utterances of former Justices were
unwarranted, forced' and, in some cases, absolutely
erroneous. Ho showed that in tho Dred Scott case
tho entire court and both sides to the case wore in
agreement that the constitution extended to tho
territories and differed only as to whether it did or
did not carry slavery with it. Abraham Lincoln
conceded that tho constitution oxtonded to tho ter
ritories. The liberty abolitionist party itself, .in
its first platform, in 1856, expressly declared that
the constitution prohibited slavery, in tho terri
tories and that an attempt by congress to extend
slavery to them would violate tho constitution. . ,
"A base and studious effort has 'been made'
said Mr. Littlefleld, "to show that tho theory of tho
control of congress by the constitution in legislat
ing for the territories is tho special property of
Calhoun, and if overthrown another nail is driven
in the coffin of Calhounism, another clod placed
upon the grave of disunion and slavery. It pro
ceeds from insufficient knowledge or pure dema
gogism." Mr. Littlefleld makes a strong point against
Justice Brown, the member of the court who prac
tically decided the cases by siding in turn. with
the two different sets of four judges each that held
opposite views. Ho points out that Justice Brown
quoted from Henry Clay in a manner to show that
Mr. Clay did not look upon tho constitution as ex
tending to the territories, "whereas In the very
same speech, later on, Mr. Clay clearly said that ho
held the constitution to so extend. "There aro
prohibitions with tho constitution," said Mr. Clay,
"which I admit must apply to congress whenever it
legislates, whether for the old states or the new
territories." ' .
In concluding, Mr. Littlefleld said:
"With the greatest respect for the court and
without Intimating, oither directly or indirectly,
that any justice was actuated by
Too any censurable motive, I feel
Profoundly ' bound to say it seems to me that
Impressed. they were too profoundly im
pressed with the supposed conse
quences of an adverse decision.
"In Mr. Justice McKenna's view it took 'this
great country out of the world and shuts it up
within itself.' MY. Justice Brown thought: 'If
such be their status (citizens) the consequences
would be extremely serious. Indeed, It is doubtful
if congress would ever assent to the annexation of
territory upon the condition that its inhabitants,
however foreign they may be to our habits, tradi
tions and modes of life, shall become at once citi
zens of the United States. Such require
ments would bring them at once within our in
ternal revenue system and applying it
to territories which have no experience of this
kind, and where it would prove an intolerable
burden. Our internal laws, if applied to
that island, would prove oppressive and ruinous
to many people and interests. A false
step at this time might be fatal to the development
of what Chief Justice Marshall called the Ameri
can empire,' and 'the question at once arises
whether large concessions ought not to be made.'
And Mr. Justice White thought that if incorpor
ated, 'it resulted .that the millions of people to
whom -that treaty related were without consent of
tho American people, as expressed by congress, and
without any hope of relief, undissolubly made a
part of our common country.'
"What are the direful consequences that inhere
In the application of all of the provisions of the
constitution to the territories? I can understand
how sugar and tobacco planters, and raisers of
tropical fruits, can see 'serious' consequences in
conditions that might compel them by competition
to reduce tho price of their goods to the consumer,
and hence the importance of being able to dis
criminate against such competitors. Such conse
quences, however, would not necessarily be very
'serious' to the great mass of our people.
"Inasmuch as voting and representation are
not elements, what other consequences are there
that should be guarded against with such zeal?
Is it tho competition of cheap labor? Wo have
emancipated millions in our own land without dis
turbing labor conditions. Thore wore those who
thought that upon emancipation 'a torrent of black
oraigration would set forth from tho south to tho
north;' 'ono of tho first results of its emigration
would bo a depreciation in tho price of labor. Tho
added number of laborers would, of itself, ( occa
sion (this, fall of prices, but tho limited wants of tho
negro, which enablo him to underwork tho whjfe
laborer, would tend still further to produce this re
sult. The honest white poor of tho north would,
therefore, bo either thrpwn out of employment en
tirely by tho black, or forced to descend to an
equality with the negro, and work, at his reduced
, prices.'
"Npne of these woes have vexed, us. The negtjo
cannot.be driven out of the south. He has as yet
made no injurious competitive
wiicre industrial development hero, sur-
latiie rounded by vast natural re-
Buffbeur? sources, and the Filipino phy
sically, and until the Philippines
produce a Fred Douglas or a Booker T. Washing
ton, he has nothing to fear in an intellectual com
parison. Tho temporary inconvenienco of internal
revenue laws seems to me vastly overestimated.
Mere inconvenience can hardly determine a con
stitutional question.
"Whore is tho bugbear? Is citizenship really
'oxtremely serious?' If so, in what particular,
and how? The Foraker bill when first reported
from tho committee contained a provision making
the inhabitants of Porto Rico 'citizens of the
United States.' Tho committee did not seem to be
impressed with tho 'serious' character ot that act.
They said in their report:
"'The committee have seen fit, by the provi
sion of this bill, to make them citizens ot the
United States, not because of any supposed con
stitutional compulsion, but solely because, in the
opinion of the committee, having duo regard' to
the best interests of all concerned, it is deemed
wise and safe to make such a provision.'
"Again:
' 'It was necessary to give these people some
definite status. They must be either citizens,
aliens or subjects. We have no subjects, and should
not make aliens of our own. It follows that they
should be made citizens, as the bill provides.'
"If, for any reason, tho committee had thought
it unwise or unsafe, they might have withheld that
quality. Apparently we now have subjects. As
to dangers, the court seems to have become pos
sessed of light which was denied to the committee.
The committee studied the practical conditions,
and it seemed to them 'wise and safe What
has happened to make it so 'serious?' . Should we
not have a specification of the dangers that In
here in giving to 'our own' the same civil rights
under the constitution that we possess?
"Such aro a few of the considerations tending
to show that the profession and tho country may
not feel like unreservedly acquiescing in this de
cision. The foundation upon which it rests is too
insecure to insure permanence. As the needle al
ways turns to the pole, may we not hope that
the greatest court in Christendom will in the end
determine the law of the land in accordance with
correct principles. With such an unerring guide
tho republic will achieve its splendid destiny,
'conquering and to conquer,' enlarging its borders,
disseminating the blessing of its civilization, and
fulfilling the mission of Him who 'hath made of
one blood all nations of men, for to dwell on
the face of the earth "
When Horace Greeley volunteered the advice,
"Go west, young man," he evidently knew what
he was talking about. Grandpa and Grandma Mc-
Daniel of Attica, Kas., celebrated the sixty-second
anniversary of their marriage last spring. When
friends and neighbors went over to congratulate
them they found grandpa planting corn and
grandma cleaning up the breakfast dishes.