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Home > Journals > Michigan Law Review > MLR > Volume 21 > Issue 1 (1922)

 

Abstract

The power of Congress over the territories was involved in three cases. Balzac v. Porto Rico held that Porto Rico has not been "incorporated" into the United States so as to make applicable the constitutional requirement of trial by jury in criminal cases. This had been substantially settled in some of the Insular Cases, leaving only the question whether the situation had since been changed. In holding that it had not, Chief Justice Taft placed chief reliance on the absence of any explicit declaration by Congress and on the fact that in the Organic Act of Porto Rico of March 2, 1917, chiefly relied on by the plaintiff in error, Congress had included a bill of rights embracing most of the guarantees of the federal Constitution with the exception of those securing the right of trial by jury. Since the extended discussion of the significance of "incorporation," the presumption against incorporation by implication· was said to be very powerful and sufficient to rebut inferences that otherwise might be drawn from the legislation making Porto Ricans citizens of the United States, establishing territorial courts and extending numerous federal laws to Porto Rico. Weight was attached, too, to the fact that the civil law prevailing under Spanish rule had not made use of juries and that therefore it was likely that Congress deemed it best not to take action to force the jury system on the Porto Ricans, but to leave the matter in the discretion of the territorial legislature. The opinion of the chief justice discusses other phases of the "insular question" and is a valuable essay by one whose past experience has especially qualified him in the particular subject. Mr. Justice Holmes confined his concurrence to the result.

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