There can be no doubt but that this decision of the court that the right to trial by jury is not a fundamental right, but only one of practice and convenience, states a new principle in American jurisprudence. Blaekstone speaks of the right as "the most transcendent privilege which any subject can enjoy or wish for;" Kent declares it "a fundamental doctrine;" Story that it is a "sacred and inviolate palladium" of liberty; and decisions of our courts without number have employed similar language in describing it.13

A second especial fact to be noted regarding the position of the four justices concurring with Brown in the judarnent rendered is that they render most indefinite the criteria by which. it may be determined in any given case whether or not a Ttexri-tory has, in fact, been "incorporated" into the United States. In this case the Territory in question had not been annexed by the treaty power as had the Territories involved in. the Insular Cases decided in 1901, but by an act of Congress-declaring, it "a part of the Territory of the United States," and expressly making the Constitution paramount to the local law. Also all the circumstances preceding and attending the annexation of the islands indicated an intention to "incorporate" them into the United State-. The treaty which the annexing resolution had taken the place of had expressly provided that the islands "should be incorporated into the United States as an integral part thereof and under its sovereignty," and there is absolutely nothing to show that when, the resolution for annexation was adopted, a different destiny was intended for them.

12 He says: "I dissent altogether from any such view. It assumes the possession by Congress of power quite as omnipotent as that possessed by the English Parliament. It assumes that Congress, which came into existence, and exists, only by virtue of the Constitution, can withhold fundamental guarantees of life and liberty from peoples who have come under our complete jurisdiction; who, to use the words of the United States minister, have become our fellow-countrymen; and over whose country we have acquired the authority to exercise sovereign dominion. In my judgment neither the life nor the liberty nor the property of any person, within any territory or country over which the United States is sovereign, can be taken, under the sanction of any civil tribunal acting under its authority, by any form of procedure inconsistent with the Constitution of the United State;."

13 See article by J. W. Garner, entitled " The Eight of Jury Trial in the Dependencies," in American Law Review, XL, 1.

In Dorr v. United States,14 decided in 1904, it was held that trial by jury was not a necessary incident of due process of law in the Philippine Islands. By the act of Congress of 1902 providing for the temporary government of the Philippines various individual rights were guaranteed, among them that no person should be held for a criminal offense without due process of law; But the right to jury trial was not mentioned, and Section 1891 of the la-vised Statutes was expressly declared not to be applicable.'5

This decision was necessarily determined by the Downes v. Bidwell, and United Stefan v. Mankichi cases; the former case holding that unincorporated territories were not necessarily entitled to all the privileges created by the Constitution; and the latter that the right to a jury trial is not a fundamental right.

Justice Harlan again dissented upon the same grounds as those given by him in the Mankichi case.

14195 U. S. 138; 24 Sup. Ct. Rep. 8(18; 49 L. ed. 128.

15 This is the section giving force and effect to the Constitution and laws of the United States not inapplicable within all the organized Territories and every Territory thereafter organized as elsewhere in the United States.