vention which framed the Constitution, the fourth section of Article XI read that "the trial of all criminal offenses (except in cases of impeachment) shall be in the States where they shall be committed, and shall be by jury." (1 Elliott's Deb., 2d ed., 229.) But that article was, by unanimous vote, amended so as to read: "The trial of all crimes (except in cases of impeachment) shall be by jury; and such trial shall be held in the State where the said crimes shall have been committed; but when not committed within any State, then the trial shall be at such place or places as the legislature may direct." (Id., 270.) The object of thus amending the section, Mr. Madison says, was "to provide for trial by jury of offenses committed out of any State." (3 Madison Papers, 1441.)

But does not Mr. Madison refer to trials had within a State of offenses committed without the State? That the convention considered the provision as applying to trials within States of offenses so committed seems apparent from the proceedings had with reference thereto, set forth in 3 Madison Papers, 1589, as follows:

Article 2, section 2 (the third paragraph). Mr. Pinckney and Mr. Gerry moved to annex to the end, "and a trial by jury shall be preserved as usual in civil cases.” Mr. GORHAM. The constitution of juries is different in different States, and the trial itself is usual in different cases in different States.

Mr. King urged the same objections.

General Pinckney also. He thought such a clause in the Constitution would be pregnant with embarrassments.

The motion was disagreed to nem, con.

Continuing, the opinion states:

In Reynolds v. United States (98 U. S., 145, 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 had been previously held in Webster r. 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 the people of the Territories of the United States.

The act of February 21, 1871, establishing a government for the District of Columbia, provided as follows:

Section 34.

*

*

* And the Constitution and all the laws of the United States which are not locally inapplicable shall have the same force and effect within the said District of Columbia as elsewhere within the United States. (16 Stat., 426, chap. 62, sec. 34.)

The right of trial by jury, however high its character, is an acquired right, not an inherent one, such as life and liberty. If it is acquired by and through the Constitution, it can not be acquired where the Constitution is not in force. If the right of trial by jury in the Territories is derived from the Constitution, the right was in abeyance until Congress extended the Constitution over the Territory. (See authorities herein before referred to.) Would not a like rule apply in the instance of the District of Columbia?

If the right of trial by jury is one of the inherent rights of man, it would seem that one of the States in the Union could not properly deprive him of it, and if such deprivation was attempted the General 1394-03- -8

Government would protect a national citizen in the assertion of such right. The Supreme Court of the United States has expressly held:

A trial by jury in suits at common law pending in the State courts is not a privilege of immunity of national citizenship which the States are forbidden by the fourteenth amendment of the Constitution of the United States to abridge. (Walker v. Sauvinet, 92 U. S., 90.)

And in criminal cases the holding of that court has been:

The fifth and sixth amendments to the Constitution of the United States (relating to criminal prosecutions) were not designed as limits upon State governments. (Twitchell v. Commonwealth, 7 Wall., 321; Barron r. The City of Baltimore, 7 Pet., 243; Fox r. Ohio, 5 How., 434; Smith . Maryland, 18 How., 71, 76; Withers v. Buckley, 20 How., 90.)

In these cases the court hold that the limitations of the Constitution apply to Federal courts only. As has already been shown, the Supreme Court of the United States sustain the doctrine that courts created in Territories are not Federal courts, although created by Congress or by virtue of authority conferred by Congress, and are free from the restrictions and limitations of the Constitution. By parity of reasoning, a like rule would be applied to courts established by Congress in our newly acquired island possessions.

If the right of trial by jury was acquired from a source antedating the Constitution, running through all the history of the Anglo-Saxon race, recognized, but not created, by Magna Charta, part and parcel of our civilization and racial inheritance, a different question is presented, for the right then becomes one guaranteed by laws higher than the Constitution, and the right to claim such right is to be determined by the same higher laws. Tested by the requirements of these higher laws, the rights of the citizens of the District of Columbia are as far removed from those of the varied races in the Philippines as are the degrees of longitude marking their geographical locations.

IV.

THE CONSENT OF THE GOVERNED.

All powers of all governments rest upon the allegiance of the people over whom the government is instituted. Without allegiance there can be no government. Allegiance must not be confounded with citizenship. Allegiance lies back of citizenship. The theory of our form of government is, that allegiance is created by the consent of the individual; while citizenship is created by the consent of the sovereignty. That is to say, allegiance originates with man, citizenship with the government.

The word "allegiance" is derived from the Latin alligare, to bind to, and means the tie which binds the individual to the government. Acquired allegiance is that binding upon a person who was born an alien but has been naturalized.

Local or actual allegiance is that which is due from an alien while resident in a country in return for the protection afforded by the government.

Natural allegiance is that which results from the birth of a person within the territory and of a sire acknowledging allegiance to the government. (Kent's Com., vol. 2, 42.)

Allegiance may be an absolute and permanent obligation or it may be a qualified and temporary one. The citizen owes the former to his government until by some act he distinctly renounces it, while the alien domiciled in the country owes a temporary allegiance continuing during such residence. (Carlisle . United States, 16 Wall., 147, 154.) Under the feudal law the theory prevailed that a person was bound to give allegiance to the overlord on whose estate he was born, and through his overlord to the king, and through the king to God. This was predicated on the theory that kings ruled by divine right, and that through him such right descended to the overlord. Therefore such allegiance was a duty imposed by the fact of birth, was as binding as allegiance to God, and could not be avoided except with the consent of the overlord and the king. From this arose the system of vassalage under which men were believed to be attached to the soil on which had occurred the accident of their birth. At the time the leaven of independence was fermenting the spirit of revolution in the American colonies this fundamental dogma of the feudal law was an accepted doctrine. The Tories advanced it in opposition to the arguments for independence. The advocates of independence for the colonies met this appeal by a direct challenge of the divine right of kings to command allegiance, and thereby secure the power to rule or govern. They insisted that a man had the right to dispose of his allegiance as he saw fit. If a man wanted to openly or impliedly acknowledge allegiance to the King of Great Britain he could do so, and if he saw fit to transfer his allegiance, with its attendant power, to another sovereignty, he could do so without securing the permission of his then sovereign.

The fundamental idea of the Declaration of Independence is a denial of the divine right of kings to rule; that is, that kings derive their claims to the allegiance of the governed from God. Hence the declaration that governments derive their just powers from the consent of the governed." This was a startling doctrine in those days. So deeply rooted was the idea that kings ruled by divine right that it was not to be overturned by the mere declaration of a contrary doctrine, however true. The new doctrine was not universally accepted, even in the colonies. Therefore, to secure the adherence of those who rejected it and the acquiescence of other nations by whom recognition was desired, the Declaration of Independence entered into an elaborate defense of the proposed change of allegiance by setting forth the many acts of wrongdoing by which the transfer of allegiance

was justified upon the ground that the King of Great Britain had forfeited his divine right, if such right ever existed, and that by reason of said forfeiture the people of the colonies

are absolved from all allegiance to the British Crown, and that all political connection between them and the State of Great Britain is, and ought to be, totally dissolved.

The derivation of powers from the consent of the governed proclaimed in the Declaration of Independence refers to that storehouse of all the powers of all governments -the allegiance of the people constituting the body politic. The declaration that this allegiance must be conferred by the consent of the governed and could not be required by divine right was a direct blow at the foundation stone of the feudal system and the corner stone of all governments then existing.

Attention is directed to the fact that the Declaration sets forth that it is the just powers” which are derived. The Declaration did not mean when uttered, and does not mean now, that after said powers are acquired their subsequent exercise in the matter of enforcing laws created pursuant to said powers should be regulated by the caprices of the governed"-as, for example, that judgment in a criminal action can only be entered by the consent of the accused,

The existence of this distinction enabled the Government of the United States to deny the right of rebellion.

The successful conduct of the Revolution established in our country the principle that the right to transfer his allegiance without the consent of his sovereign is one of the inherent rights of man. But when the founders of this nation came to exercise this right the ideas of the feudal system were so ingrafted in the minds of the people that involuntarily, no doubt, the general plan of the system was preserved, although modified to conform to the vital principle of the new doctrine. A sovereign State was substituted for the over-lord as the primary recipient of the allegiance and a confederation of States for the king. The General Government or confederation of States was, however, more like an elector than a king. The central idea of the confederation was that allegiance was given and was thereafter due to the individual States, and the General Government must look to the States for the allegiance of the people. As citizenship is based on allegiance, it followed that to the States belonged the authority to confer citizenship. When the Constitution was adopted and this Government established, this idea that the allegiance of the people was primarily due to the State was not eliminated. In the course of time it proved a bitter heritage. The idea that a man's allegiance was due to the State from which he derived his citizenship was the shibboleth of the rebellion which plunged this nation in civil war.

Brought to a realizing sense of the dangers of this doctrine and the conditions and institutions constructed thereon, the nation changed the rule by the adoption of the fourteenth and fifteenth amendments

to the Constitution, the purpose and effect of which are to confer allegiance upon the General Government and enable the General Government to reciprocally confer citizenship.

The doctrine that a man could transfer his allegiance without the consent of his sovereign being accepted by the United States, our Government proceeded to enact naturalization laws in harmony with said doctrine, and asserted the correlative right to accept the transfer of allegiance without the consent of the previous sovereign. The nations of Europe, founded upon the feudal system, rejected the doetrine and denied the right of the United States to enforce and practice it, and continued to assert sovereign powers over prior subjects who had made such transfer. This led to the war between the United States and Great Britain in 1812. The continued adherence to this doctrine has involved the United States in almost ceaseless diplomatic correspondence with foreign nations.

The statute 3, Jac. 1, chap. 4, provided that promising obedience to any other prince, State, or potentate, subjected the person so doing to be adjudged a traitor, and to suffer the penalty of high treason.

In respect to the naturalization law of the United States, passed in 1795, Lord Grenville wrote to our minister, Rufus King:

No British subject can, by such a form of renunciation as that which is prescribed in the American law of naturalization, divest himself of his allegiance to his sover. eign. Such a declaration of renunciation made by any of the King's subjects would, instead of operating as a protection to them, be considered an act highly criminal on their part. (2 Am. State Pap., p. 149; Fitch e. Weber, 6 Hare, p. 51.)

The right of expatriation was the subject of an elaborate opinion by Attorney-General Cushing in 1856. Therein he said:

The doctrine of absolute and perpetual allegiance, the root of the denial of any right of emigration, is inadmissible in the United States. It was a matter involved in and settled for us by the Revolution, which founded the American Union. (S Op. Atty. Gen., p. 139; 9 Op. Atty. Gen., p. 356; Atty. Gen. Black.)

The right of expatriation was declared by Congress to be a natural and inherent one, in this country, by act of July 27, 1868. (15 Stat., 223, chap. 249; secs. 1999, 2000, Rev. Stats.)

While the Government of the United States is thus firmly committed to the doctrine that its powers resting on allegiance are derived from the consent of the governed, it does not require that such consent shall be evidenced by individual declaration, excepting when it decides to confer citizenship by naturalization proceedings. Ordinarily the consent to allegiance is presumed from the fact of residence in the country and participation in the protection and other benefits of organized goyernment. This rule is applied to the native-born inhabitants as well as the inhabitants of newly acquired territory. In regard to this rule Halleck's International Law says (vol. 2, sec. 7, p. 475, 3d ed.):

The transfer of territory establishes its inhabitants in such a position toward the new sovereignty that they may elect to become, or not to become, its subjects. Their obligations to the former government are canceled, and they may, or may not, become the subjects of the new government, according to their own choice. If they remain