EDITORIAL DEPARTMENT Philippine Islands. The court decided that the right to acquire territory carries with it the power and obligation to govern it; and that Congress while acting under Article 4, Sec tion 3, of the Constitution, which gives it power to dispose of and make all needful rules and regulations respecting the territory of the United States, is not bound to extend the right of trial by jury to such territory as the Philippine Islands. It also held that the Constitution does not of its own force and without legislation carry such right to terri tory so situated." The only constitutional point decided in these cases was the right to trial by jury, but the decision is given a wider significance by the rule of interpretation upon which it must rest, viz: "that there are certain prohibitions and restrictions contained in the Constitution relating to fundamental rights which go to the very root of the power of Congress to act at all, in all places, at all times, and under all circumstances, in the territories as well as in the states. On the other hand, there are other constitutional limitations, not absolute in their nature, which relate to such matters as meth ods of procedure and forms of judicial trials that do not restrict Congress in the exercise of its power to create local governments and make needful rules and regulations respecting the territories of the United States. "Generally speaking, those guaranties are fundamental which are essential to the very existence of free government. Those ex pressed and implied restrictions relating to in dividual rights without which our form of government could not exist, and which are respected by all modern governments worthy of the name, are undoubtedly fundamental. The genius, nature and spirit of free govern ment forbid the violation of such rights at all times, in all places, and under all circumstances, and hence those restrictions relating to them go to the very competency of Congress to act at all. Such rights are guaranteed by the Constitution itself, and the first eight amend ments. I would go farther, and say that the general principles of law, reason and justice would guarantee these rights to the people in dependent of their existence in the amend ments of the Constitution known as the 'Bill of Rights.' If the government, or any branch
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of it, should undertake to violate these rights it would subvert the principles on which it is based. The artificial or remedial rights are those which relate to methods and forms of judicial trial and modes of taxation, the ex tension of suffrage, etc., which can be varied with the needs of the people without with holding from them those elemental rights, the enjoyment of which is the essence of free gov ernment." The author then classifies these two kinds of rights and concludes: "A casual analysis of these decisions, in the light of the character of our people and of the position our country now holds among the nations of the world, produces the conviction that the principle here enforced is bound to play a large part in the development of the nation. If the view of the minority of the court had prevailed, it would have been tantamount to saying that this government shall not go to war because it would be unable, by reason of its structure, to meet the obligations that may result from war. When nations go to war, as all are likely to do some time in their history, they are likely to either cede or acquire territory. Hitherto the results of our wars have been the acquisition of territory. "It is clear that when our forefathers threw off their allegiarice to Great Britain and estab lished a republican government, they meant to call into being a nation endowed with those powers to acquire and govern territory which all independent governments, by virtue of their sovereignty, enjoy. In the light of these facts, it is not strange or unreasonable that the Supreme Court should declare that the Philippine Archipelago, being territory belong ing to the United States, legitimately ac quired, may be governed by Congress with a view to the needs, usages, customs and condi tions of the inhabitants of such territory, and to that end may be adopted all appropriate means not in violation of those natural and fundamental rights guaranteed by the Con stitution, which form the basis of all free government." CONSTITUTIONAL LAW (Regulation of Primaries) "Constitutional Limitations on Primary Election Legislation" is discussed by Floyd R. Mechem in the March Michigan Law Re
