Page:Harvard Law Review Volume 12.djvu/406

386 386 HARVARD LAW REVIEW. of Art. i), are reserved to the States respectively or to the people {i. e., the people of the respective States) ; and there could not well be a stronger proof that the sole object of the first ten amendments was to limit the power of the United States in and over the several States. Nor should the fact be lost sight of that these ten amend- ments as a whole are so peculiarly and so exclusively English that an immediate and compulsory apphcation of them to ancient and thickly settled Spanish colonies would furnish as striking a proof of our unfitness to govern dependencies, or to deal with alien races, as our bitterest enemies could desire. It may be added that Art. 3, Section 2, subsection 3, is of the same nature as the first ten Amendments; and yet that subsection is limited, like the 7th Amendment, to the courts of the United States, and so to the several States, and that, too, not only for rea- sons applicable to the whole of Art. 3, but because it is expressly provided that all trials for crimes shall be held in the State where the crime was committed; and though it is added that, when not committed in any State, the trial shall be at such place as Congress by law directs, yet a crime not committed in a State can come within that subsection only when it is committed on the high seas, or in some place which is without an organized government, and so without the means of administering justice.^ It must be admitted that the provisions, both of the original Constitution and of the amendments, securing the right of trial by jury, have several times been subjects of discussion in the Supreme Court, and that opinions have been expressed by members of that court that these provisions extend to Territories. But, in the recent case of the American Publishing Co. v. Fisher,^ the ques- tion was treated as still an open one; and though, in the still more recent case of Thompson v. Utah,^ the court professedly decided that the provisions in question extended to the former territory of Utah, yet it seems clear that the question was not involved in the decision. The only question directly involved was whether the clause in the constitution of Utah, providing that per- sons accused of felonies not capital should be tried by a jury of eight persons, was ex post facto as to a felony committed while ' See U. S. V. Jones, 137 U. S. 202; Cook v. U. S., 138 U. S. 157, 181. It seems clear also that the Constitution intended that Congress, in directing the place of trial of a crime not committed in any State, should select a place within the limits of some State, as otherwise the trial could not be in a United States court.
 * 166 U. S. 464. " 170 U. S. 343.