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were either known, or should have been known. authorizes the conclusion that he did — and we to the train operatives: First. The existence of the think it does – we need inquire no further. The station, and the fact that persons were likely to be notice of the company forbidding the use of its present near the track at that point. This latter is depot and approaches has no bearing upon the emphasized by the known presence of a large num- question. It had no right to forbid the use of the ber of people only a short distance from the sta- public crossing or its approaches in a manner tion, and that the railway at that point divided the consistent with ordinary care. The plaintiff did town into about two equal parts. Second. The not overstep the limits of the highway. He was existence of the crossing, with the attendant right not on the track and was in no danger from the of the public to use it and its approaches. In this approaching train, considered alone. As to danger connection it must have been known to them from that source alone he was chargeable with that at that time of night, and under the facts then the duty to exercise his senses. The danger which existing, and patent to the most casual observer, it caused the injury was the high rate of speed, comwould most probably be in use by some portion bined with the presence of the cattle. The comof the public having a right to use it. Third.


actually knew of their presence. The They must be held to have known of the large plaintiff did not, and, had he known, he might number of cattle on and near the track at that have assumed, in the absence of notice to the point, and the probability of striking some of contrary, that the company would exercise the them. To hold otherwise upon this point would care which the situation required. In Railroad Co. be to assume that the engineer and fireman were v. Hare (Tex. Civ. App., 23 S. W. 42) the court, so deficient in vision as to unfit them for the under the peculiar facts of that case, expressed a service in which they were engaged. Keever, a doubt as to whether the injured party was using witness for the company, estimates the number of the crossing as such, but did not decide the quescattle at forty-five or fifty. They were on and tion, and made no declaration inconsistent with near the track, and, in the light of past experience, what is here held. their presence must have been expected and foreseen. Fourth. In view of their knowledge as to the existence of the station and crossing; of the

THE STATUS OF OUR NEW POSSESSIONS. probable presence of a portion of the public at that point; of the presence of the large number of

By J. M. CLINTON. cattle, and the extreme probability of striking

or cow-catcher on the engine was constructed so tricate questions must

. as to throw an obstruction to one side or the Some of the questions presented are as novel as other, and the fact that the greater the speed of the conditions under which they arise, and will the train the greater the probability of striking have to be worked out from the existing law some of the cattle; of the fact that the greater the much as the courts developed the law of railroads force with which they were struck the further they from the earlier law of common carriers; not by would be thrown — they must be held to have reversing established principles, but by seeking known that the probable consequences of the ex- how far they are applicable to the new conditions. cessive speed would be an injury to some by- It appears that one of the crying needs of the stander having the right to be present at that hour is a decision by the United States Supreme point. This last question will be discussed more Court on the subject of the status of our newly fully under the assignment presenting the question acquired possessions. What relations do our new of proximate cause, and their ability to reasonably acquisitions bear to the United States? Are the foresee the consequences complained of. The people of Porto Rico, for example, citizens of above enumerated facts, which the train operatives the United States, or are they not? That an must be held to have known, amply support the

authoritative answer to this question is imperafinding of the jury that the running of the train at tively demanded at this time is evident when we the high rate of speed shown was negligence, from remember that all that is now being done in the which the injury resulted.

way of establishing the forms of government

there and elsewhere in the territory recently taken We cannot assent to the proposition urged in from Spain will have to be undone in case the the second assignment of error, to the effect that Supreme Court does not agree with the present the plaintiff is not shown to have been in the law- administration in its latest interpretation of the ful use of the crossing. There is no rule of law Constitution. That it would be a very great misrequiring of plaintiff more than the exercise of fortune to have the newly established government ordinary care in the use of a crossing. That the set aside after all the trouble of getting it into right of way is crossed leisurely, or not at exact operation, after the people had begun to adjust right angles, and in haste, does not compel a con- themselves to the new conditions, and after captrary conclusion. The question is, did he act as a ital had begun to be invested, is too self-evident person of ordinary prudence? If the evidence I to need argument.

We have, apparently, at least, some conflicting for a seat in congress. These results are certainly judicial constructions touching the different opposed to the ideas that have prevailed hitherto. phases of this question. The general canon for Objections may be raised in like manner to the the interpretation of legal authorities is well broader construction, which extends the provisknown. It requires the search for a principle ions of the Constitution over our new dependenwhich shall reconcile all the authorities, or, if this cies. This construction assumes that the interis out of the question, a principle which shall pretation given by the courts to the Constitution reconcile as large a part of them as possible, so in the case of the older territories applies to all that those only are rejected which cannot by any places subject to the jurisdiction of the United authority be brought into accord with the rest. States, an assumption for which there is no Of two propositions, of which one is consonant judicial sanction, and which actually contradicts with all or nearly all the authorities, and of which two decisions. It may be urged that this conthe other agrees only with a part of them and struction is irrational, because it extends the contradicts another part, the former is always to restrictions of the Constitution to conditions be preferred. Legal authorities are no doubt of where they cannot be applied without rendering different weight, the most important being actual the government of our new dependencies well decisions, that is, judgments in cases where the nigh impossible, and surely no provision ought to point in question was so involved that the judg- be given an interpretation which leads to an irrament could not have been rendered without pass-tional result, if the language will bear equally ing upon it.

well a different construction. In the interpretation of a constitution some The Constitution (art. 4, sec. 3) provides that weight must also be attributed to the conditions congress shall have power to dispose of and under which it was formed, to previous constitu- make all needful rules and regulations respecting tions, to the steps by which it attained its final the territory or other property belonging to the form, and finally to generally accepted legal opin- United States." We then come to the nucleus of ions and decisions. It is the latter to which we the whole matter: What constitutional prohibitions shall give especial attention, since we generally are laid upon congress in legislating for territofind all the others embodied in this one. It seems ries? that two opposing theories of the application of Constitutional prohibitions may be express or the Constitution to our new dependencies have implied — unqualified or they may be qualified. been put forward. One opinion holds that the For example, congress is unqualifiedly forbidden limitations imposed by the Constitution upon the to pass a bill of attainder or an ex post facto law Federal government apply only to the States, and (art. 1, sec. 9, par. 3). The inhibition is absolute that the term “ United States," when used in a and excludes all action of the kind forbidden unterritorial sense, includes the States alone.

der any and all circumstances, whether of time, The other opinion holds that these limitations place or condition. Hence it is plain that no such apply wherever the jurisdiction of the govern- legislation would be valid, whether applying to ment extends, and that all territory in the posses- States or to territories. On the other hand, the sion of the nation is a part of the United States. next preceding inhibition (art. 1, sec. 9, par. 2) But it seems to us that both of these theories forbids the suspending of the writ of habeas correject a certain number of decisions, and it may pus “ unless when in cases of rebellion or invasion not be impossible to formulate a third opinion the public safety may require it." Plainly this is a which reconciles a larger proportion of the author- qualified prohibition, implying that under the speities than either of them. These are the extreme cial circumstances named the prohibition does not views on either side, and if they are examined lie. In order to know the precise limitations closely, each of them presents serious objections. which the Constitution places on congress with The narrower view of the Constitution, that which respect to territories, then, we must first enumerlimits all its provisions to the area of the States, ate all the unqualified prohibitions on Federal besides contradicting many judicial opinions, leads legislation. These, of course, must forbid such to conclusions sharply at variance with legislation under any circumstances and for any monly received opinion. It allows congress to area, and hence must apply to territories as well confiscate property in the District of Columbia, or to States. In the second place, we must in the territories, without compensation, or to take enumerate the qualified prohibitions, and must it arbitrarily from the owner and bestow it upon examine whether the qualifications are such as to another person. It suffers the government to pass cover territories. Bearing in mind the power of a bill of attainder against a resident of Arizona or congress to legislate for territories, the judicial New Mexico. According to this view, moreover, construction of which we shall soon show, it at a person born of alien parents in a territory is not once appears that the doctrine is exactly the cona citizen of the United States either by the Con- verse of that which relates to Federal legislative stitution or by statute (R. S., secs. 1992–3), and power over the States. So far as the States are residence there is not residence within the United concerned, congress has only powers granted, States for the purpose of subsequent qualification whether expressly or by implication, while all the



residuary powers are in the States (amendt. X). portion of the American empire? Certainly this On the other hand, so far as territories are con- question can admit of but one answer. It is the cerned the States severally have no power what- name given to our great republic, which is comever, and congress has all power not denied by the posed of States and territories. The District oi Constitution - i. e., congress has all the residuary Columbia, or the territory west of the Missouri, is powers. We consider this distinction vital in the not less within the United States than Maryland solution of this problem. The prohibitions of the or Pennsylvania; and it is not less necessary, on Federal government which are incontestably un- the principles of our Constitution, that uniformity qualified are not many, and may easily be enumer- in the imposition of imposts, duties and excises ated. They include the prohibitions of bills of should be obserevd in the one than in the other." attainder and ex post facto laws (art. sec. 9, par. Many years later (1887) in the case of Callan v. 3), of titles of nobility (Ib., par. 8), of certain Wilson (127 U. S. 540), the question was presented modes of legislation (Ib., par. 7, and also art. 1, whether the provision for trial by jury applied to sec. 7), of slavery, of the repudiation of the na- the District of Columbia, and the Supreme Court tional debt or the assumption of the insurrection-decided that it did. The same doctrine affirmed ary debt (amendt. XIV, sec. 4), and a few others, in 19 Sup. Ct. Rep. 580, and 167 U. S. 548. express and implied.

The status of the territory acquired since the The prohibitions on the Federal government adoption of the Constitution has given birth to which are obviously qualified are also not many more abundant litigation; but in regard to this Among them are that directed against the sus- three distinct questions arise: First, has the pension of the writ of habeas corpus, above noted; United States the right to acquire possessions? that which forbids a direct tax unless laid in pro- Second, do they have the same standing as those portion to population (art. I, sec. 9, par. 4); those which belonged to the nation at the time of the which forbid export duties at State ports or com-adoption of the Constitution? and third, What in mercial discrimination among States (art. 1, sec. either case is their constitutional position? 9, pars. 5 and 6); of involuntary servitude except The Constitution makes no provision for the as a punishment for crime (amendt. XIII); the acquisition of territory, and although Gouverneur limitation of suffrage for certain specified reasons Morris, in the letters quoted by Campbell, J., in (amendt. XV, sec. I), and some others, express the Dred Scott case (19 How. 393), says that he or implied. It will be observed that the inhibition contemplated such action, he certainly gave no on congress to lay export duties is placed among intention of it in the Constitution. The purchase the qualified prohibitions. The words of the Con- of Louisiana was, however, a political necessity; stitution are: No tax or duty shall be laid on and while at first Jefferson was doubtful of his articles exported from any State” (art. I, sec. 10, own authority, and desired the sanction of a conpar. 5). The Supreme Court has repeatedly held stitutional amendment, his precedent has been that in the sense of the Constitution a territory is followed so often, and has been so thoroughly not a State. Hence the prohibition of export confirmed by judicial decisions and by practice oi duties is not absolute, but is limited to State every department of the government, that its areas, and leaves congress free so far as territories | legality is no longer a subject of dispute. are concerned. The same reasoning applies to It is a well-settled principle that the sovereign commercial discriminations among States. The nations of the world possess equal rights and text is: “No preference shall be given by any equal powers. Their equality is perfect, their inregulation of commerce or revenue to the ports dependence absolute. Between them national of one State over those of another” (art. 1, sec. constitutions are unknown. In all international 9, par. 6). This inhibition cannot lie against leg- relations the United States is assumed by other islation with respect to territories.

sovereignties to possess absolute powers unreIn considering the judicial authority upon the strained by constitutional limitations.

That asquestion a distinction may be drawn between sumption is correct, based upon the fundamental the territory belonging to the United States at the canon of the law of nations. The United States time of the adoption of the Constitution and that has ratified the recent treaty with Spain, and now which has been acquired subsequently. The status

no other nation has the right to question its of the former has been brought before the courts political or constitutional authority to do so. It only in the case of the District of Columbia. The would seem, from the very nature of government, first allusion to it is in Loughborough v. Blake from the necessity of its preservation, from the (5 Wheat. 317), which involved the right to im- efforts which must be made to keep it in its inpose a direct tax upon the District, and where tegrity, that the necessity and power of making Chief Justice Marshall, in the course of the de- war involves the power of crippling, hindering cision, gave his famous dictum on the meaning and, if necessary, destroying the adversary by of the provision “that duties, imports and excises every means necessary to prevent it from doing shall be uniform throughout the United States." harm in the future, and, if necessary, to carry that

“Does this term designate the whole or any power of destruction to the ultimate and com


plete extinction of the nation with which war

that we also possess the right to hold and hence to exists, and that only one of the methods which 'govern it. may be adopted for the purpose is that of depriv- The right to acquire being a primary attribute ing the hostile power of its territory. This we of sovereignty, and the right to hold and govern believe is the view which has been adopted in the being ancillary thereto, it follows that wherever practice of all nations, however highly civilized, our sovereignty extends there our right to acquire, which has been incorporated in the law of nations, and hence to hold and govern, extends also. The and that has been adopted by the Supreme Court, situs of the territory is immaterial; it may be conwhich is to us the highest exponent of the law. tiguous or remote, on the American continent or It was said by Chief Justice Marshall in the in foreign lands. Our abstract right to acquire American Insurance Co. v. Canter (1 Pet. 511) and hold is as plenary and sovereign in the Philipthat:

pines as in Alaska or Arizona. * The Constitution confers absolutely on the Subject to the unqualified prohibitions already government of the Union the power of making mentioned, congress has absolute and unlimited war and of making treaties; consequently, that control over the territories, and we believe that government possesses the power of acquiring ter- this view is sustained by the great weight of ritory either by conquest or by treaty. The usage American authority. Congress has the of the world is, if a nation be not entirely subdued, power over its public domain as over any other to consider the holding of conquered territory as property belonging to the United States. This a mere military occupation until its fate shall be power,” said the Supreme Court (14 Pet. 537), determined at the treaty of peace. If it be ceded “is vested in congress without limitation, and has by the treaty, the acquisition is confirmed, and been considered the foundation upon which territhe ceded territory becomes a part of the nation to torial governments rest.” The Supreme Court which it is annexed, either by the terms of stipu- early announced (9 How. 242) the comprehensive lation in the treaty of session or such as its new principle that "territories are not organized under master shall impose.”

the Constitution nor subject to its complex disChief Justice Marshall also said that the right tribution of the powers of government as the to govern is the inevitable consequence of the organic law, but are the creations exclusively of right to acquire territory, whichever may be the the legislative department, and subject to its source whence the power is derived, the possession supervision and control.” of it is unquestioned.”

The power of congress over the territories is The United States possessing every attribute of general and plenary,” said Mr. Bradley in 136 U. the most potential sovereignty, and, in the lan- S. 42. guage of Mr. Justice Lamar, the Federal govern- And the court (114 U. S. 44), summarizing the ment in all external relations being “the exclusive whole matter, announced this opinion through representative and embodiment of the entire sov- Justice Brewer: “A territory is a political comereignty of the nation,” it follows that any power munity organized by congress, all whose powers possessed by any sovereignty is possessed by the are created by congress, and all whose acts are United States; and unless specifically prohibited subject to congressional supervision.” by the Constitution (as above shown), can be The broad constructionists support their view exercised without restriction by the Federal gov. by the dicta of Chief Justice Marshall in Loughernment. The right to acquire territory irrespec- borough v. Blake, above quoted. It will be aptive of its situs, contiguous or foreign, by parent upon the most casual examination that the conquest, treaty, purchase or discovery, is an expression relied upon in this case is a mere acknowledged and well-established attribute of dictum, and was not at all necessary to the desovereignty, and has been exercised by sovereigns cision of the case. This case," said the chief from the beginning of recorded history. I ad- justice, “presents to the consideration of the vance the proposition with deference that this court a single question. It is this: Has congress right is itself a primary and substantive attribute a right to impose a direct tax on the District of of sovereignty, as is the right of natural existence Columbia?” This he answered in the affirmative. or of self-defense, and I have regarded it in this Of course congress had a right to impose a direct discussion as the primary and fundamental au- tax upon the District of Columbia, because under thority for territorial expansion. The same doc- the Constitution congress is given exclusive contrine was laid down by Mr. Justice Story when trol over that District. No necessity arose for the he said: “ The power of the United States to ac- court to define the term “United States." It does quire new territory by cession or conquest does not, therefore, necessarily follow that in the disnot depend upon any specific grant in the Consti- position of that case anything was involved like tution to do so, but flows as an incidental power the proposition that the United States covered from its sovereignty over war and treaties." The both the United States and territories, nor do we United States, then, possessing the right to acquire think the case decided any such thing. In effect territory, it follows as an inevitable consequence it decided the exact opposite, because it decided


that a tax which was uniform throughout the ipso facto derive rights from the Constitution. Its United States, but was not applied to the terri- only powers, he said, were those " stiplated in the tories at all, was a constitutional tax. If the case treaty” or granted by “its new master” (1 Pet. had decided what is claimed by its supporters that 542). it did, it certainly would be overruled by the sub- Mr. Justice Nelson, in a subsequent case (9 sequent decision of Chief Justice Marshall in Am. How. 252), suggested a patent reason therefor. Ins. Co. v. Canter (1 Pet. 511), above noted; nor He said: “ Territories are not organized under is it in harmony with a long line of decisions, the Constitution. They are the creations exclumany of which we have had occasion to quote. sively of the legislative department of the governAlso, Dr. Judson, professor of political science in ment, and subject to its supervision and control.” the University of Chicago, in a recent article on If territories are neither created, nor organized, the Thirteenth Amendment, says that the Thir- nor supervised under authority of the Constituteenth Amendment is a complete reversal of Chieftion, how can it be urged that they acquire all Justice Marshall's well-known opinion in Lough- rights from the Constitution ex proprio vigore! borough v. Blake.

With respect to the cases cited by those claimAll the treaties for the acquisition of territory ing this doctrine, it may be said further that even on the continent of North America have provided if they furnish decisions instead oi opinions — mere that the people should be incorporated into the orbiter dicta -- they would not be decisive of the Union, or admitted to the right of citizens, and question now under consideration. They related some of them have professed in terms to extend to an entirely different condition of things from the limits of the United States. The joint resolu- that now. presented: (1) They all had to do with tions for the annexation of Hawaii may, perhaps, territory belonging to the United States acquired have the same effect, for they declared that the for the purposes of statehood and with respect to islands "be and they are hereby annexed as a which the general and plenary power of congress part of the territory of the United States.” But had been modified by treaty stipulations; (2) they the recent treaty with Spain makes no such pro- all had to do with territory over which congress vision, It merely cedes Porto Rico and the had legislated, provided a code of laws, and so far Philippines to this country without any stipulation as might be extended the Constitution. in regard to the relation in which the islands or With respect to our newly acquired territories, their inhabitants shall stand towards the United on the other hand, we have not legislated. UnStates. In fact, the ninth article — after provid- hampered by treaty or other stipulations or ing that Spanish subjects, natives of the peninsula causes, congress has both the constitutional and residing in the ceded territory, may preserve “power to dispose of and make all needíul rules their allegiance to the crown of Spain or renounce and regulations,” and also all the combined powit - substitutes for the clause in earlier treaties ers of both State and Federal governments. that in the latter case they shall acquire or be

JACOB MANCIL CLINTON. admitted to the rights of citizens of the United BLOOMINGTON, IND., July 20, 1900. States, the provision that they shall be held " to have adopted the nationality of the territory in which they may reside,” and adds: “The civil

DIVORCE LAWS. rights and political status of the native inhabitants of the territories hereby ceded to the United States ADDRESS BY HON. CHARLES PRATT BEFORE THE shall be determined by the congress.” The power

Ohio STATE BAR ASSOCIATION. of congress, therefore, with respect to them, whether that power be the result of our power to T cannot be expected that in the brief time acquire or of the constitutional power to dispose allowed me I should enter into any general of and make all needful rules and regulations, etc., discussion of the important subject announced. I is unlimited.

may, however, properly in these limits seek to But it is contended by the theory of some thai point out some of the defects in our divorce laws, immediately upon the acquisition of territory by and also to suggest some of the amendments to the United States the Constitution ex proprio our statutes, and changes in our practice which vigore is extended to that territory. No authority occur to me as calculated to protect the rights of will be found anywhere in the rulings of the courts individuals and subserve the public interests. My to support this proposition. It depends for its aim is to speak as a member of this association vitality upon certain dicta to be found here and and as an Ohio lawyer to Ohio lawyers upon the there in cases discussed by the Supreme Court.

statutes of Ohio and the practice of the courts We believe that in all of the cases wherein such

under these statutes. A few elementary principles, dicta is to be found they dealt with the law in supposed at least to be undisputed, will be suffplaces where the constitutional power of congress cient by the way of introduction. Mr. Bishop has, had been limited. In an early case Chief Justice in the preface of his original work on the subject, Marshall decided that territory annexed did not stated as follows:


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