when once acquired by treaty it belongs to the United States and is subject to the disposition of Congress." And the conclusion of the court was that Porto Rico was not a foreign country but a Territory of the United States. Although there was in that case a strong dissent, it was based upon the position taken that Porto Rico occupied a relation to the United States between that of being a foreign country absolutely and that of being a domestic Territory absolutely, and because of that relation its product was subject to the duties imposed by the Dingley Act. The whole discussion turned upon the condition of Porto Rico between the time of the ratification of the Treaty of Paris and the legislation by Congress establishing a government for that island. manner as it was conceived would best subserve the them as homesteads to actual settlers. In short, principles of the Constitution. When it created such a government under the authority of the United States, providing for the appointment of a governor by the President and Senate; a legislative body to exercise the legislative powers, and a judiciary to exercise the judicial powers within the territorial limits of the island, I can see no reason why that island did not then become a territory of the United States with the same effect as other territories acquired by the United States, and divided into sep arate territories governed as provided by law. It seems to me that there is no fundamental distinction between a territory organized by the United States from the property acquired from France or Mexico and the territorial government organized by the United States from property acquired by the United States from Spain by the Treaty of Paris. When the United States organized a government for the island of Porto Rico with executive, legislative and judicial powers, a territory was created subject to the jurisdiction of the United States and thus came directly within the provisions of the laws of the United States relating to territories. Porto Rico has ceased to be a "foreign country or territory" and has become a part of the territory of the United States, and when the United States organized a government under its jurisdiction and control for that island it then became, within the meaning of all provisions of law regulating territories, a Territory of the United States. I think this status of the government of Porto Rico is fairly recognized by the Supreme Court of the United States in De Lima v. Bidwell, 182 U. S. 1. In the opinion in that case there is a statement of the various territories that have been acquired by the United States and the action of the government in taking possession of and governing these territories until regular territorial governments were established by Congress. After considering the effect of the Treaty of Paris the court said (p. 196): "It follows from this that by the ratification of the Treaty of Paris the island became territory of the United States although not an organized territory in the technical sense of the word." That "whatever be❘ the source of this power its uninterrupted exercise by Congress may deal with territory acquired by treaty; tions of this court, have settled the law that the right to acquire territory involves the right to govern and dispose of it. . . . Under this power Congress may deal with territory acquired by treaty; may administer its government as it does that of the District of Columbia; it may organize a local territorial government; it may admit it as a State upon an equality with other States; it may sell its public lands to individual citizens or may donate When Congress established a civil government for the Island of Porto Rico under the control and authority of the United States a territorial government was established under which Porto Rico became an organized Territory of the United States. It ceased to be a foreign country or territory upon the ratification of the Treaty of Paris between the United States and Spain. It became an organized Territory of the United States when the United States established a form of government under which the island was to be governed subject to the jurisdiction of Congress and officers appointed in pursuance of law establishing a territorial government. I think, therefore, it became a Territory within the provisions of section 5278 (U. S. Rev. Stat.), and it follows that the order appealed from should be affirmed. MCLAUGHLIN and LAUGHLIN, JJ., concur. PATTERSON, P. J.-I concur in the views as expressed by Mr. Justice Ingraham concerning the status of the Island of Porto Rico as a Territory of the United States, and while is is not expressly decided in De Lima v. Bidwell, 182 U. S. 1, and Downes v. Bidwell, 182 U. S. 244, yet it seems to have been assumed throughout the opinions written by the learned justices of the Supreme Court of the United States in those cases that such island is a Territory, although not a part of the United States within the revenue clause of the Constitution. I am inclined, however, to the view that it is not necessary to determine on the appeal now pending before us whether the Island of Porto Rico is an incorporated Territory. It is an organized Territory, with a government established by the Congress, by a law which it was authorized to enact. Congress shall see fit to incorporate territory ceded by treaty into the United States we regard it as settled by that decision (Downes v. Bidwell, 182 U. S. 244) that the territory is to be governed under "Until the power existing in Congress to make laws for such Territories," etc. (Dorr v. United States, 195 U. S. 138-143.) States are general, and relate to all Territories. They : 0: mentary System. The By EDWIN MAXEY, Prof. of Public Law Univ. of The speech from the throne, Feb. 13, 1907, has again brought into the foreground of English politics the question of readjusting the relation between the two houses of the British Parliament. It is not surprising that the following sentences should have caused some consternation in the upper House: "Serious questions affecting the working of our parliamentary system have arisen from the unfortunate differences between the two Houses. My ministers have this important subject under consideration with a view to a solution of the difficulty." It seems to me that the authority of the Congress to legislate for the return of fugitives from justice to the authorities of Porto Rico is to be found in the power last referred to. The question here is whether the Governor of Porto Rico had the right to call upon the Governor of the State of New York for the surrender of the relator, and whether the duty Prospective Changes in the British Parliawas incumbent upon the Governor of the State of New York to comply with such a demand. Congress of the United States established a complete governmental scheme for the Island of Porto Rico, which included an executive head called the governor, By an express provision of the law creating that governmental establishment, passed April 12, 1900 (sec. 17), and commonly called the Foraker Act, it is required that the Governor of Porto Rico shall at all times faithfully execute the laws and he shall in that behalf have all the powers of governors of the Territories of the United States that are not locally inapplicable. By section 5278 of the Revised Statutes of the United States, it is enacted that Whenever the executive authority of any State or Territory demands any person as a fugitive from justice of the executive authority of any State or Territory to which such person has fled . . . it shall be the duty of the executive authority of the State or Territory to which such person has fled to cause him to be arrested and secured, and to cause notice of the arrest to be given to the executive authority making such demand or to the agent of such authority appointed to receive the fugitive and to cause the fugitive to be delivered to such agent when he shall appear." | The Governor of Porto Rico had the power to proceed under this section of the Revised Statutes by force of the terms of section 17 of the Act of April 12, 1900. 66 It is charged against the present relator that he is the subject of a criminal prosecution by "The People of Porto Rico," and the Governor of Porto Rico, being invested by the Congress with the authority of a governor of a Territory of the United States, has, in the performance of the duty and obligation resting upon him to execute the laws of the Island of Porto Rico, demanded the surrender or rendition of the relator to the proper authorities of that island. Unless it must be held that the provisions of section 5278 of the Revised Statutes of the United States are locally inapplicable to the Island of Porto Rico it seems to me that the clear authority for the demand and surrender of the relator is shown to exist by force of the act of the Congress passed in pursuance of its power to legislate. The provisions of section 5278 of the Revised Statutes of the United That we may the better appreciate the force of this language, it is well that we examine with some care the legislation upon the subject which is responsible for the present strained relations between the Commons and Lords. For the question upon which they are divided is by no means a new one. The rock upon which they may split has not been raised above the surface by any sudden seismic movement. The question of the degree of control which the state should exercise over the public schools, or, if you please, to what extent public education should be secularized, has for a long time been one of considerably more than purely academic interest. In other words, it has been a question of practical polities, almost from time "whereof the memory of man runneth not to the contrary." Yet a review of what has been done during the past century will give us a sufficiently clear idea of the genesis of the present trouble. In 1807, the Whitehead bill passed the House of Commons. This provided for a school in each parish supported and controlled by the taxpayers. It would have provided England with a national system of education similar to that possessed by other leading countries. But the clerical influence in the House of Lords was too strong to permit of any such dangerous and revolutionary innovations, hence the bill was defeated. The fate of this bill seems to have discouraged further action in the same direction for over half a century. But finally in 1870 the Liberal party under the leadership of Gladstone succeeded in getting through a bill which provided for a sys tem of schools supported by taxes and controlled by school boards elected by the various school districts. While this was a compromise and would of course in the end proved unsatisfactory, it was a move in the right direction, and was a decided advance over what had previously existed. Perhaps the strangest thing connected with this measure is that the House of Lords, in which the Conservative party is always in control, should have accepted it. Yet at that time they did not seem to have so exalted an idea of their prerogatives as at present, or it may be that Gladstone had a more convincing way of expounding their constitutional rights than has Sir Henry Campbell-Bannerman. At any rate, the Lords yielded, and for more than thirty years the system thus established worked fairly well. But in 1902 the Conservatives felt themselves so strongly intrenched in power that it seemed to them safe to enact any legislation which pleased their fancy. Acting upon this conviction, they changed the school law so as to increase the control of the established church over the public schools. This was effected by substituting for the school boards elected by the district, committees appointed by the county and municipal governments. This made it easier for Conservatives, in which the clerical element is strong, to dominate the committees, determine the curriculum, and, in short, to manage the schools. In districts where the non-conformists were in the majority this domination by the established church was particularly distasteful. So much so that many of them refused to pay taxes for the support of the schools in which, now, instruction was given to which they were conscientiously and uncompromisingly opposed. Those who had property permitted it to be distrained rather than pay what they conceived to be an unjust tax, and those who had no property preferred imprisonment to submission. While it is impossible to gauge exactly the effect of different governmental acts in deciding elections, there can be no mistake in concluding that the unprecedented Liberal victory of last year was due in large part to the stand taken by the Balfour government with reference to the control of the public schools. As reform in the public school system was one of the issues in the campjaign, upon coming into power the Liberal party proceeded to redeem its pledge. For this purpose the Birrell bill was introduced and passed by the Commons by a decided majority. The essential features of this bill are: Abolition of religious tests for teachers, exclusion of all particular forms of catechism, and, what was of prime importance, it placed all schools supported by taxes under public control. From this it will be seen that the bill does not exclude the teaching of the Bible from the public schools, but simply all denominational interpreta tions of it. It is very doubtful if a majority of the English people would favor the exclusion of all teaching of the Bible from the public schools, and it is certain that a majority disapproves of the pres ent tests, which have resulted in practically al teachers in the public schools being members of the Church of England. That schools supported by the public should be controlled by the public, and not by the church, seems so natural and self-evident to Americans as not to admit of argument. When the Birrell bill went to the House of Lords, that body immediately proceeded to impress upon it its personality. Before the bill was sent back to the Commons it had been changed to such an extent as to be even more reactionary than the Balfour Act of 1902, just as though the recent elections had re sulted in a Conservative victory. It would seem that either the House of Lords had not heard of what happened at the recent elections, or that they applied to those results a rule of interpretation peculiar to themselves, or that they did not care what took place in the elections. The latter is by far the more res sonable conclusion to reach. In other words, the conclusion is almost irresistible that the will of the people is, as regards this question, a matter of indifference to the House of Lords. There is, therefore, a great deal more involved in the present dispute than the expediency or inexpedi ency of a change in the school law. The issue goes to the every foundation of the British government. In a very practical way, it raises the question whether or not the House of Lords, as at present constituted, is not so far out of harmony with the democratic spirit of the majority of the English people as to be intolerable. Many of us on this side the Atlantic could answer this question with but ten minutes' reflection and be absolutely sure that we were correct. But the question is not one to be answered in any such cavalier fashion. To the mind of the Englishman, unlike that of the Frenchman, government is not something to be considered in the abstract but is an organism whose roots reach deep into the past and can only be understood historically. The weight which the Englishman attaches to traditions is there fore a factor which must not be left out of account in considering a question of this sort. A scheme of government which leaves out of account the mental constitution of the people to whom it is applied is of use as furnishing an index to the type of mind which devised it, but its usefulness ends at that point. Given the perennial regard of the English nation for traditions and its instinctive respect for nobility, it is safe to conclude that the continued existence of the House of Lords, even as at present constituted, is in no immediate danger, provided that body is con necessarily a guarantee of ability in statecraft. In fact, it has proven that they do not generally go together, that the type of mind which qualifies for the one disqualifies for the other. tent to share with the crown the office of representing the dignity of the realm and leave the Commons represent the power. But if, not satisfied to play this harmless role, it insists upon asserting prerogatives and exercising power, in short, if it insists upon That the landed gentry as such should exercise so challenging the House of Commons to a test of powerful an influence in the legislation of Great strength, we need not be surprised to find such pre-Britain is at present without any adequate justificatensions followed by their logical consequences-im- tion. The justification it once had, if indeed it ever portant changes in the English constitution. The present challenge-for it clearly is a challenge -may not be accepted. The Commons may conclude that the present is not an opportune time to force the issue. The fact that the Irish Nationalists, a large contingent of the majority party which on most questions vote solidly with the Liberals, are solidly opposed to them on this question may tend to dissuade the Premier from forcing the issue upon this question. The additional fact that the present Premier is not a preeminently great and aggressive leader, and his advanced years, increase the probability of a compromise rather than a decisive battle. If, however, the Premier should decide that the present time and the education question are as good as any for the purpose of determining whether or not the growth of democratic ideas in England have in fact shorn the Lords of their ancient prerogatives, he will dissolve Parliament and appeal to the people for a mandate upon the question. Should a majority be returned to the House of Commons favoring his view, the House of Lords might then conclude that as it cannot be popular it should at least be politic and yield, otherwise a reorganization of that ancient institution of government would no doubt be begun at once. How thoroughgoing the reorganization would be would of course depend upon the temper of the Commons and the character of its leaders. The mildest form which it could take would be the addition of a sufficient number of peers to change the present minority into a majority. This, however, would be but a temporary expedient. It would simply increase the unwieldiness of a body that is already too large to be a really deliberative assembly. What is needed, and what must eventually come, is a fundamental change in its constitution that will make it representative of the people and not of classes. Whatever reason there may once have been for providing that the clergy as such should be entitled to a certain number of seats in a national legislative body, the evolution of ideas of government has caused that reason to disappear. We are no longer in the ecclesiastical stage of political development. Men no longer have confidence in one's ability as a legislator simply because his devoutness and learning in theology have entitled him to a sacredotal robe. The political experience of mankind has made it clear that the qualifications for priesthood are not was justified, has been rapidly disappearing before the industrial development of the nation. While it is usual for changes in laws to lag behind the changes in social or industrial conditions upon which they rest, it is dangerous for an institution which is out of harmony with existing ideas and conditions to presume too much upon mere inertia. LINCOLN, Neb., March, 1907. : 0 : EDWIN MAXEY. Old Newgate Prison. ITS UNSANITARY CONDITION RESULTING IN A FATAL EPIDEMIC. In his editorial researches Mr. John F. Geeting has discovered a very interesting account of jail conditions a century and a half ago in England, written by that noted jurist, Sir Michael Foster. It will appear in a future volume of the American Criminal Reports, and is as follows: "At the Old Bailey sessions in April, 1750, one Mr. Clarke was brought to his trial; and it being a case of great expectation, the court and all the passages to it were extremely crowded; the weather too was hotter than is usual at that time of the year. Many people, who were in court at this time, were sensibly affected with a very noisome smell; and it appeared soon afterwards upon an inquiry ordered by the court of aldermen, that the whole prison of Newgate, and all the passages leading thence into the court, were in a very filthy condition, and had long been so. What made these circumstances to be at all attended to was, that within a week, or ten days at most, after the session, many people, who were present at Mr. Clarke's trial, were seized with a fever of the malignant kind; and few who were seized recovered. The symptoms were much alike in all the patients; and in less than six weeks' time the distemper entirely ceased. It was remarked by some, and I mention it because the same remark hath formerly been made on a like occasion, that women were very little affected; I did not hear of more than one woman who took the fever in court, though doubtless many women were there. It ought to be remembered that, at the time this disaster happened, there was no sickness in the gaol more than is common in such places. This circumstance, which distinguished this from most cases of the like kind which we have heard of, suggesteth a very proper caution; not to presume too far upon the health of the gaol, barely because the gaol-fever is not among the prisoners. For without doubt, if the points of cleanliness and free air have been greatly neglected, the putrid effluvia which the prisoners bring with them in their cloaths, &c., especially where too many are brought into a crowded court together, may have fatal effects on people who are accustomed to breathe better air; though the poor wretches, who are in some measure habituated to the fumes of a prison, may not always be sensible of any great inconvenience from them. The persons of chief note who were in court at this time and died of the fever were, Sir Samuel Pennant, Lord Mayor for that year, Sir Thomas Abney, one of the justices of the Common Pleas, Charles Clarke esquire one of the barons of the Exchequer, and Sir Daniel Lambert, one of the aldermen of London. Of less note, a gentleman of the bar, two or three students, one of the undersheriffs, an officer of Lord Chief Justice Lee who attended his Lordship in court at that time, several of the jury on the Middlesex side, and about forty other persons whom business or curiosity had brought thither. : 0: Francis Scott Key. Bury me beneath the shadow of the everlasting hills. Francis Scott Key. Beautiful hills of Maryland With shadow at their feet, With sunlit heads-God's sentries standSleep, Patriot-Poet, sleep. They lift their heads, they kiss the skies, To strew with bloom that never dies The grateful world uplifts Key's form, He sings in sunshine and mid storm With outstretched arm and kindling eye, The clouds of war are swept away, The smouldering guns are still, The starry flag awaits the day, Raptures his bosom thrill. In fragrant breath of early morn, The eagle from the beetling crag Seeks summit tall and higher; The mountains lift th' emblazoned flag Aglow with freedom's fire. O matchless flag of glistening stars! Was priceless freedom won. Key breathed into thy radiant fold And touched with love life's purest gold You greet the day at rising sun, And round the globe at evening gun O anthem with the sacred chord! On battlefield, from realms of steel, Thy cause the cause of Heaven. Where'er thy squadrons ride the sea Their noble mission e'er shall be To make the struggling brave and free, In teeming hosts they love to dwell, 'Twas here Key spent the morn of life |