standpoint is that much of the law they rely upon is found in dissenting opinions-that great depository of consolation.

The position of the adherents to Benton's doctrine, from an historical standpoint, is strong. There is, however, a fair comment to be made with reference to it, in this, that while as a rule its adherents belong to that school which has uniformly contended for a liberal construction of the Constitution, insisting that it should expand with the ever-widening growth of the life and purpose of the nation-their position on this question is for a more strict and rigid construction than has often been urged for any purpose. They base their argument almost solely on conditions which existed at that early stage in national development when the fate of the Union hung trembling in the balance.

Having thus briefly cited some of the main authorities which support the contention that the Constitution does not extend of its own force to the territories, let us now consider some of those adduced by the other side.

Those who support the theory that the Constitution extends ex proprio vigore to the territories have the advantage if we consider only the expressions of the Supreme Court. In numerous decisions that court has used language which justifies a very decided opinion as to what its attitude will be when the present controversy is brought directly before it. One of the leading cases on the subject seems to be that of Loughborough vs. Blake, 5 Wheaton, 317. The opinion was delivered by Chief Justice Marshall in 1820. He said:

"The power, then, to lay and collect duties, imposts and excises, may be exercised and must be exercised throughout the United States. Does this term designate the whole of any particular portion of the American empire? It is the name given to our great republic, which is composed of states and territories."

"The District of Columbia or the territory west of the Missouri is not less within the United States than Maryland or Pennsylvania, and it is not less necessary on the principles of our Constitution that uniformity in the imposition of imposts, duties and excises should be observed in one than in the other." It would be difficult to frame a stronger statement than this, on the points involved, but it is now avoided on the ground that the portion of the decision quoted is obiter dictum. In an article in the North American, for April of the current year, on “The

United States and Puerto Rico," Senator Foraker, referring to the clause of the Constitution investing congress with power to "dispose of and make all needful rules and regulations respecting the territory and other property belonging to the United States," says:

"The Supreme Court has repeatedly held that, under this power given by the Constitution, congress can legislate as it may deem advisable with respect to the territories, and not subject to the limitations and restraints of the Constitution, except only as the spirit of our institutions has been formulated in the bill of rights."

If such decisions are extant, a search at least fairly diligent has failed to reveal them. On the other hand, many decisions may be cited which hold quite the contrary doctrine. Ex Parte Oritz, 100 Fed., 955, was the first case which passed upon the constitutional rights of inhabitants of Puerto Rico. So much of the opinion as holds that the right of trial by jury guaranteed by paragraph 3, section 2, article 3 of the federal Constitution, and by the sixth amendment to that instrument, is enjoyed by the people of that island, has been savagely attacked as dictum. It was not dictum in any proper sense. The attorney for the government, perhaps unadvisedly, advanced two propositions: first, that the Constitution and its guaranties do not extend to Puerto Rico; and, secondly, that, ratifications of the treaty of peace not having been exchanged at the time of Oritz' trial, a state of war existed in the island, and so the military tribunal, before which the trial was had, was competent. Judge Lochren decided both points, the first adversely to and the second in favor of the government.

Curiously enough, the learned judge makes no mention, in his opinion, of a line of cases decided by the Supreme Court of the United States, which completely support his view on the first point. These are:

Webster vs. Reid, 11 How., 437, at 460.

American Pub. Co. vs. Fisher, 166 U. S., 464; 17 S. C., 618.

Springville City vs. Thomas, 166 U. S., 707; 17 S. C.,

717.

Callan vs. Wilson, 127 U. S., 540; 8 S. C., 1301.

Thompson vs. Utah, 170 U. S., 343; 18 S. C., 620.

In the first two of these cases the self-extending nature of the Constitution is not clearly laid down, because the court in part rely upon the fact that the organic acts of the territories in question (Iowa and Utah) extended the Constitution to them. But in the remaining cases this quality of the document is clearly established. I shall deal with the cases in their order.

Callan vs. Wilson was an appeal from a judgment of the Supreme Court of the District of Columbia denying a writ of habeas corpus. Callan had been tried before a justice of the peace, without a jury, on an information charging a criminal conspiracy. The proceeding was by information in a police court, but providing for an appeal to the Supreme Court of the district and a trial by jury there. Appellant was sentenced to pay a fine of $25.00, or, in default of payment, to suffer thirty days' imprisonment. He declined to pay the fine and petitioned for a writ of habeas corpus, alleging that the act in question violated the third article and fifth and sixth amendments to the Constitution. As stated, the writ was denied, but on appeal that decision was reversed, the Supreme Court (per Mr. Justice Harlan) holding that the constitutional provisions in question extend to the District of Columbia. He said:

"There is nothing in the history of the Constitution, or of the original amendments, to justify the assertion that the people of this district may be lawfully deprived of the benefit of any of the constitutional guaranties of life, liberty and property; especially of the privilege of trial by jury in criminal cases.”

In Reynolds vs. U. S., 154, it was taken for granted that the sixth amendment of the Constitution secured to the people of the territories the right of trial by jury in criminal prosecutions; and it has been previously held, in Webster vs. Reid, 11 How., 437, 460, that the seventh amendment secured to them a like right in civil actions at common law. We can not think that the people of this district have, in that regard, less rights than those accorded to the people of the territories of the United States.”

Paragraph 17, section 8, article 1, provides that congress shall have power "to exercise exclusive legislation in all cases whatsoever over" the district, while paragraph 2, section 3, article 4, gives to that body "power to make all needful rules and regulations respecting the territory belonging to the United States."

In Springville City vs. Thomas (supra), it was decided that the seventh amendment extends to and operates in the territories. Says Chief Justice Fuller:

"In these three cases judgments were entered on verdicts returned by less than the whole number of jurors by which they were tried.

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"In our opinion, the seventh amendment secured unanimity of finding a verdict as an essential feature of trial by jury in common law cases, and the act of congress could not impart the power to change the constitutional rule, and could not be treated as attempting to do so."

Then followed the decision in Thompson vs. Utah. Thompson was charged with grand larceny, committed while Utah was a territory, and on his first trial, had at that time, was tried by a jury of twelve. A new trial being granted, his case came up after the territory had become a state, and the trial was had before a jury of eight. Thompson's contention was that at the time of the commission of the offense he was entitled, under the Constitution of the United States, to be tried by a jury of twelve and that as to him, the legislation of the state, changing the number of jurors, was ex post facto. The contention was sustained, and in delivering the opinion of the court, Mr. Justice Harlan said:

"That the provisions of the Constitution of the United States relating to the right of trial by jury in suits at common law apply to the territories of the United States, is no longer an open question. ** It is equally beyond question that the provisions of the national Constitution relating to trial by jury for crimes and to criminal prosecutions, apply to the territories of the United States."

So it is clearly decided by the court of last resort that a number of provisions of the Constitution extend, ex proprio vigore, to the territories of the United States and to the District of Columbia and other places ceded to the United States by the states.

Presentment by a grand jury, trial by a petit jury consisting of twelve persons and trial by jury in civil cases are clearly not among those fundamental rights of man which are recognized and protected by all free governments. They are simply mat ters of procedure. The grand jury may be abolished by any of the states. The state of Louisiana can abolish the petit jury in civil cases, as was held in Walker vs. Sanvinet, 92 U. S., 90, but in a territory that body must be preserved, as was held in Springville City vs. Thomas. The reason for this difference lies upon the surface; the federal Constitution ties the hands of congress

in the territories as well as in the states. Justice Matthews says in Murphy vs. Ramsay, 114 U. S., at 44:

"The people of the United States, as sovereign owners of the national territories, have sovereign power over them and their inhabitants. In the exercise of this sovereign dominion they are represented by the government of the United States, to whom all the powers of government over that subject have been delegated, SUBJECT only to such restrictions as are expressed in the Constitution or are necessarily implied in its terms, or in the purposes and objects of the power itself."

The question in that case was the validity of an oath, required under act of congress, before residents of Utah could reg. ister.

Waite, C. J., says in First National Bank vs. Yankton, 101 U. S., 129:

"Congress is supreme in the territories and has all the powers of the people of the United States except such as have been expressly, or by implication, reserved in the prohibitions of the Constitution."

The latest expression of the court on the general subject is to be found in Utter vs. Franklin, 172 U. S., 423, decided in January, 1899.

Mr. Justice Brown, speaking for the court, says:

"This court has repeatedly held that congress has full legislative power over the territories,-as full as that which a state legislature has over its municipal corporations."

A state may legislate with reference to its municipal corporations unrestrained save by its own and the federal Constitutions.

The comparison made in the language quoted is such as to leave no question regarding the limitations on congressional action in the territories.

This, as Justice Brown says, has been "repeatedly held," and it would serve no useful purposes to cite further expressions of the court.

It has been urged, in view of the long line of cases supporting those already cited, that they really have no bearing on the question, since the right of trial by jury, as well as others referred to in the first ten amendments to the Constitution, exist regardless of those amendments, and existed prior to their adop tion.