Ex parte Ortiz

• Decision Date: 05 May 1900
• Citation: 100 F. 955
• Parties: Ex parte ORTIZ.
• Court: U.S. District Court — District of Minnesota

100 F. 955

Ex parte ORTIZ.

United States Circuit Court, D. Minnesota, Third Division.

May 5, 1900

LOCHREN District Judge.

Upon the amended return of C. McC.Reeve, warden of the Minnesota state prison at Stillwater, to the writ of habeas corpus in this case, hearing was had at the court room in the federal building at St. Paul on the 2d and 3d days of May, 1900, the petitioner being produced in court, and represented by his counsel, J. W. Willis, Esq.; the United States appearing by M. D. Purdy, Esq., Assistant United States Attorney. It appears: That in the war between the United States and Spain and during the month of July, 1898, the United States forces under the command of Maj. Gen. Miles invaded and took military possession of the Island of Porto Rico, and held such possession until the cession of that island by Spain to the United States by the treaty of Paris, signed December 10 1898, the ratifications of which were exchanged April 11 1899. That on October 1, 1898, by order of the president, the military department of Porto Rico was established under the command of Maj. Gen. John R. Brooke, who was succeeded by Gen. Guy v. Henry December 6, 1898, by whose orders a military commission was appointed to meet at San Juan on February 20, 1899, for the trial of such persons as might be brought before it. And on March 27, 1899, the petitioner Rafael Ortiz, was put upon trial before said military commission upon the charge of murder of John Burke, private of Company C, 47th infantry, on February 24, 1899, and of carrying concealed weapons, and was convicted and sentenced to suffer death, which sentence was, on May 12, 1899, commuted by the president to imprisonment at hard labor for life in the Minnesota state prison at Stillwater, Minn. This brief statement of facts will suffice, as no objection in respect to the formal regularity of the proceedings is made or suggested.

The contention on the part of the petitioner is that at the time of his trial in March, 1899, there was no war in Porto Rico, which had then been ceded to and become a part of the United States; and, as the petitioner had never belonged to the army or navy of the United States, but was a civilian and native resident of Porto Rico, the military commission had no jurisdiction to try him for the alleged murder; and under the provisions of the constitution of the United States he could only be tried by a jury, after indictment or presentment by a grand jury. The contention on the part of the United States is that by the cession the Island of Porto Rico did not become an integral part of the United States, nor subject to the constitution, but merely an outlying province or dependency, to be ruled by the absolute will of congress, untrammeled by any provision of the constitution; and, second, that the war with Spain was not ended, so as to displace the jurisdiction of the military commission, until the exchange of ratifications of the treaty on April 11, 1899, and that then, because the constitution had no force in that island, such jurisdiction continued until displaced by the provisions of some act of congress. This contention on the part of the government that territory ceded to and brought under the sovereignty of the United States is no part of the United States, and outside of the constitution and its guaranties, is strenuously urged, and an elaborate argument of a law officer of the war department, as well as arguments of several distinguished senators, in support of this contention, have been presented, and carefully considered. The arguments are ingenious, but, in view of the history of the country, and the terms of the constitution, and the very numerous decisions of the supreme court, all to the contrary, I do not find them persuasive. Our general government was founded by the men of the Revolution, who had rebelled against the arbitrary power asserted by Great Britain to govern her outlying colonies at the will of her parliament. They established this government upon the asserted theory that all just powers of government come from the consent of the governed. They founded, as described by President Lincoln in language not yet forgotten, 'a government of the people, by the people, for the people. ' It will be, indeed, marvelous, if it is made to appear that these men who then founded our national government so constructed it that it is capable of ruling with unlimited power a subject people who have neither guaranties to protect them nor any voice in the government. This is foreign absolutism,-- the worst form of tyranny. If the constitution does not extend to Porto Rico and our other new acquisitions of territory, but congress has the untrammeled absolute power to establish subject governments, or make laws for such territories, it has the power to establish dependent monarchies or satrapies, state religions, and even slavery. The argument of one of the senators referred to, that the last clause of the thirteenth amendment prevents the establishment there of slavery, is obviously lame and impotent, for, if the constitution does not extend to these parts of the domain of the United States, nor limit congress in its powers of legislation over them, by what process will this single clause of an amendment of that instrument detach itself from the skin of the parchment, and alone fasten itself upon these new territories? If it be considered that this clause of the thirteenth amendment 'ex proprio vigore' extends to these new territories, or limits the powers of congress as to these territories, that will concede away the entire contention; for, if that clause extends to the territories, or limits the powers of congress respecting them, every clause of that instrument, for the like reason, is equally potent. To say that a clause in the constitution does not extend to a territory, but does limit the power of congress in legislating for that territory, is to draw a distinction too fine to be practical.

The argument, much repeated, that, if the national government of the United States has not the power to deal with these new territories untrammeled by the constitution, its power is less than that possessed by the other governments of the civilized world, is admitted. It proves nothing. The national government of the United States is one of very limited powers. In respect to its own people, in its entire domain, and generally, except in respect to its power to deal with foreign nations, and concerning matters expressly committed to it by the constitution, its powers are much less than that possessed by other governments. No one will dispute this. The national government of the United States was created, and its powers and jurisdiction granted and limited, by the federal constitution. Its powers can only be increased by amendment of that instrument. As said by Chief Justice Marshall in Martin v. Hunter's Lessee, 1 Wheat. 326, 4 L.Ed. 102:

'The government, then, of the United States can claim no powers which are not granted to it by the constitution; and the powers actually granted must be such as are expressly given, or given by necessary implication.'

And by Mr. Justice McLean, in Briscoe v. Bank, 11 Pet. 317, 9 L.Ed. 733:

'The federal government is one of delegated powers. All powers not delegated to it, or inhibited by it to the states, are reserved to the states, or to the people.'

This last is but a paraphrase of the tenth amendment. It is needless to pursue this line of authorities. The reports of the supreme court are full of them; all to the effect that the general government can exercise no power not given by the constitution expressly or by fair implication.

The power of the general government to acquire additional territory rests upon its constitutional power to make war, which may result in conquest; and its like power to make treaties, which may bring territory by cession. The power to govern such acquired territory results from the power to admit new states, and to make all needful rules and regulations respecting the territory or other property belonging to the United States. This clause authorizes congress to legislate in respect to territory in local as well as national matters before its admission to statehood in the Union. As said by Chief Justice Marshall in Insurance Co. v. Canter, 1 Pet. 546, 7 L.Ed. 257:

'In legislating for them, congress exercises the combined powers of the general and of a state government.'

This definition of the power of congress in respect to the territories has been often repeated in later decisions, and is exact. It leaves the territory under the protection of the constitution, which grants the power, and which enumerates every power of the general government and to which the state governments are subordinate.

The novel doctrine that the power to congress to govern territory ceded to the United States may be conferred by a foreign sovereign by and through the terms of the treaty of cession and that the general government can exercise powers thus granted by a foreign sovereign, independent of and in disregard of the constitution, until congress, mayhap, in the future, shall, by its enactment, see fit to extend the constitution over the territory, is contrary to the holding of the supreme court of the United States above cited, to the effect that the general government is one of enumerated powers, and can claim and exercise no power not granted to it by the constitution, either expressly or by necessary implication. It is clear that the general government cannot legislate over territory where the constitution from which its every power is derived does not extend. The constitution must be in force over a territory before the general government can have any authority to legislate respecting it. No...