NOTES. 205 to two hours. Pleading, Property I, Torts, Bills and Notes, and Evi- dence are divided this year into two sections ; Criminal Law has four divisions. On the whole, then, there appears to be a general develop- ment in the directions reconanaended by the Committee of the Board of Overseers. Government of Territories and Colonies. — The most important legal question brought into prominence by the war with Spain regards the attitude of the Federal Constitution towards government of newly acquired Territories. One branch of this question is wholly unsettled. In passing laws for Hawaii and for Porto Rico, is Congress to keep within the letter of the amendments, and the similar provisions of the Constitu- tion itself, or is it free to establish whatever colonial system it sees fit? Two cases, oddly enough, have arisen during the year in regard to pre- viously existing Territories which throw light upon the matter. In one of them the court had to pass upon the constitutional right of a criminal in the Territories to a trial by twelve jurors. Thompson v. State of Utah., 18 Sup. Ct. Rep. 620. The defendant committed larceny in Utah before it was admitted to the Union as a State. After Utah became a State he was tried and convicted by eight jurors, in accordance with a provision in the Utah constitution. If the prisoner had been entitled to a trial by twelve jurors when he committed the crime, the provision in the Utah constitution would, so the court held, be ex post facto, and void as re- garded him. The court decided that the Sixth Amendment, guaranteeing a trial by twelve jurors, did extend to Utah as a Territory, and hence that the trial was invalid. The reasoning was comprehensive, and would seem at first sight to settle the question. But since a United States statute expressly extended the Federal Constitution to the Territory of Utah, the opinion of the court is merely an addition to the line of dicta that are to the same effect. Another case, decided in the Circuit Court of Appeals, tends in the op- posite direction. Endleman v. United States, 86 Fed. Rep. 456 (C. C A. Ninth Cir.). The question was whether or not certain restrictive liquor legislation for Alaska was constitutional. The objection, among others, was made that the law amounted to a deprivation of property, and was therefore invalid. The court answered, not that this objection was based upon a misconception of the Fifth Amendment, — which would have been a very good answer, and herein lies the weakness of the decision, — but that this argument found its refutation in the fact that Alaska was not formed under the general terms of the Constitution, and that the law in question was justified by the full power of Congress over the Territories. The point of difference is clear. Alaska and Utah may indeed be dis- tinguished on the ground that when Congress formed the territorial gov- ernment of Utah and admitted a representative, by that act, even in the absence of an express statute, it extended the constitutional provisions to Utah. In the case of Alaska no such extension has been made. Alaska would thus be the basis by which to judge Porto Rico. No distinction of this sort, however, is hinted at in the Supreme Court decisions, and it is not likely to be made. The probability is that the dicta, of which the Utah case gives an example, will be followed and applied to the colonies. Yet it is not too late to point out that there is no authority which has given at all an adequate treatment to the matter. Mr. Justice Bradley himself
