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I should like to be remembered to all of the members. I know that you will all have a good time, and hope that the attendance will be larger than ever before. Thanking you for your kind remembrance of me, I remain,
Very truly yours,
W. C. SHARPSTEIN. The following applicants were ballotted for and elected to membership in the Association:
Emil J. Brandt, John T. Condon, Peter V. Davis, Richard Gowan, Reynolds F. Guerin, Maurice D. Leehey, 0. C. McGilvra, John W. Roberts, Frank S. Southard, L. H. Wheeler and Honor L. Wilhelm, of Seattle; Merritt J. Gordon, of Spokane; Edward Whitson, of North Yakima.
On motion, Association adjourned to meet at 2 o'clock P. M.
SEATTLE, July 10, 1900. Association met and was called to order at 2 P. M. by the President.
THE PRESIDENT — The meeting is now open to any miscellaneous business that may be brought forward.
JUDGE HANFORD) -- Mr. President, the concluding portion of the President's address, it seems to me, presents a matter for action. The celebration of John Marshall's Day will be an important event in the United States, as it should be, and the people of the State of Washington ought not to be behind others in the observance of this day. There should be some definite and intelligent action taken at once to inaugurate a proper celebration of the day in the different communities of this State, where it is practicable to have celebrations; and in order to bring this matter before the Association, I move you, sir, that the Executive Committee of this Association be instructed to take this matter in charge and bring to the attention of the different local Bar Associations in the cities in which there are organizations, and to the educational institutions of the State, the subject, with suggestions as to a proper observance of that anniversary.
Mr. RowELL — Second that motion.
Motion adopted unanimously.
Mr. Thompson then delivered before the Association an address upon the subject: “The Status of Our Newly Acquired Territory.” (See Appendix.)
THE PRESIDENT — The subject discussed by Mr. Thompson is now open for discussion by the members of the Association.
MR. HOWE — There are some few observations that I desire to make, more for the purpose of provoking a discussion of this subject than for any other purpose. No one will doubt that any member of the bar of this State, or, I might say, any member of the bar of the United States, would be prepared to stand with Mr. Thompson, shoulder to shoulder, in defense of the flag. That goes without saying. The question, however, which has not been touched upon, in my opinion, is the legal status of the native population of our new possessions as distinguished from the political status, as that term is understood in international law. tion is, what is the legal status of the native population in the territory acquired from Spain? That is a question which has been debated in the Courts; it is a question which has been debated in learned assemblies, and the answer is, we do not know. But it is well, gentlemen, to consider the probable view which the Supreme Court of the United States may take of this question. I am not a
a prophet, neither am I the son of a prophet, but I think I can make a reasonably close guess, that the legal status of the people in the acquired territory as to certain personal rights under the Constitution, will be decided by a vote of six to three or five to four. I do not say that in a partisan sense, because some are Democrats and some are Republicans, for we are not going to find that line of division.
But my reason for making the statement is because of the opinions which have been rendered by different members of the Supreme Court of the United States on these questions; and because even now the Court is beginning to lay the foundation to determine this question. As to the meaning of the word “State" as used in the constitution, I do not think at this time it will be an open question that the word “territory” will not fall within the definition of State; but when we come to the consideration of the personal rights of the people of these territories, as for instance, the right to have any religion which a man may desire to have, or
the right to have none at all, if he sees fit, a right to a trial by a jury, and the right to presentment by a grand jury, we then have a very remarkable state of affairs, but one that is worthy of grave consideration. I said that the Supreme Court of the United States in two opinions has begun to lay the foundation for determining that this territory is not like any territory which we have heretofore acquired, but I say, mark this, that the majority of that Court will decide that a man who is in the Phillipines, that a man who is in Porto Rico, has the right to worship any God whom he pleases, and has the right not to be convicted save by a jury of his peers. (Applause.)
The dicision on this point in the case of ex parte Orting, 100 Federal, 955, in which an opinion was rendered by Judge Laughlin, has been criticized as a dictum. The newspapers say that Judge Townsend of the District Court, or Circuit Court, I forget which, in Connecticut, has reached exactly the opposite conclusion the one judge holding that the constitution follows the flag, the other holding that the constitution does not, nor does any part of it, follow the flag until an act of Congress so provides. We are talking somewhat in the dark about Judge Townsend's opinion. I do not think that he could have held as reported. There is a very interesting article in the April number of the North American Review by Senator Foraker, and it seems to me that he strikes the key note for the determination of this question, viz.: That any provisions of the constitution in which occur the words "state" or “United States” have no application to the territories, but as to those rights which are contained within the amendments and of those provisions of the Constitution which preserve the individual rights of a man, those rights are protected by the Constitution itself, without any act of Congress extending those provisions to the territories. Now, gentlemen, Mr. Justice Matthews some years ago had before him the question of what were the rights of the persons in a territory, and he rendered an opinion that Congress was restrained by those provisions of the Constitution which protected personal rights. Mr. Justice Harlan will certainly be found upon that side. His opinions read, and you know that he is as strong a Republican as can be found upon the bench,- his decisions read clearly and emphatically that the right to a trial by jury means a trial by twelve men, and that an inhabitant of a territory has it by virtue of the sixth amendment to the Constitution of the United States. In 1897 there was presented to the Supreme Court this question: Whether in a civil case in the territory of Utah a territorial statute was valid which provided for a verdict by less than twelve men. Mr. Justice Brewer rendered the opinion. There was the first time— remember this was in '97— did we hear the note sounded that there was any doubt upon the proposition. He stated the views of the learned judges who had rendered earlier decisions, but he said whether the Constitution is of force in the territories of the United States ex proprio vigore may admit of dispute, but he held that even if it did not, yet under the act extending the Constitution to Utah, a man has the right to a trial by a jury of twelve. Two weeks later a case came up to the Supreme Court from the same territory, and Mr. Chief Justice Fuller rendered the opinion. He said, referring to the case decided by Mr. Justice Brewer, that the Court held that both the Constitution and the act of Congress extending the Constitution to the territory, gave the right to a trial by a unanimous jury, but Mr. Chief Justice Fuller said: The question presented in this case is not the construction of the act of the Territory of Utah, but it is whether an act of Congress authorizing the Territory of Utah to provide for a trial by a jury of less than twelve would be in conflict with the Sixth Amendment of the Constitution of the United States, and he held that the act of Congress did not authorize such a trial; that if it had authorized such trial, it would be in conflict with the Amendment. Now, sometime ago, before a very learned body,
. the American Academy of Political and Social Science, a debate upon this very question was held. There was Professor Woolsey, professor of international law at Yale College; Professor Huffent, of Cornell, and some others, English and American. Professor Woolsey took the position that the Constitution does apply, and that we must just simply do the best we can, and stick to the Constitution. I must say I am amazed at the article read by Professor Huffent --- amazed because he is to be classed among those whom he calls experts. His view seems to be that the only limitation on the power of Congress is that it cannot establish or permit slavery in these territories. Gentlemen, had Professor Huffent filed that article as a brief in court against any man who is accustomed to the practical working of the law, if he had been for the plaintiff he would have been non-suited. He cites a case, which is a very remarkable one. It is the case of in re Ross in the 140 United States. That was a case where a man on an American ship, an Englishman, who was an American sailor, committed the crime of murder in Japanese waters. He was arrested and taken before the Consul General of the United States. He was tried by the Consul General and four associates, convicted and sentenced to death, and the sentence was approved by the American Minister to Japan. The sentence was commuted by President Hays to imprisonment in the penitentiary at Albany for the term of the convict's natural life. The Consul accepted that commutation. After he had served ten years in the Albany penitentiary he applied for habeas corpus, and one of the grounds on which his application was based was, that he had not been tried by a jury of twelve. The Court denied the writ, but Mr. Justice Field, in delivering the opinion, based his decision upon the proposition that the Constitution of the United States, and no law of the United States, was in force outside of the territory of the United States, and yet that is the decision which Professor Huffent cites for the purpose of showing that within the territory of the United States a man can be tried by a jury of less than twelve.
A later decision, and it will be the last one to which I call your attention, is a case in the 174 United States, in which the decision is by Mr. Justice Gray. Now, in that opinion he says that the Congress of the United States has sole, absolute and exclusive power over the District of Columbia, the same power to legislate that any state would have. The question arose whether a corporation sued for three hundred (300) dollars, which had a trial before a justice of the peace and a jury, had a trial by jnry, as contemplated by the Constitution of the United States, and the holding was that it had not. The question was then, whether the provision in regard to an appeal, providing that on appeal the case should be tried in the Supreme Court of the District of Columbia before a jury of twelve, complied with the constitutional provision, and whether that provision violated the constitutional provision that says a case once tried before a jury in a court of the United States