with the enlistment of men in the military service of the United States or the state of Minnesota. Among other things this act forbids "any person within the confines of the state advocating that the citizens of this state should not aid or assist the United States in prosecuting or carrying on war with the public enemies of the United States."20 The statute has been upheld and liberally construed by the state supreme court.21 If it be objected that such statutes destroy freedom of speech, the answer must be that the public safety requires them in certain emergencies and that the exercise of the power of the legislature to define crimes is controlled by the people. Public opinion must be relied upon to check the abuse of this great discretionary power.

The right to a jury trial in civil and criminal cases, stated in sections 4 and 6 of this article, has been much misunderstood. The section relating to civil cases provides that "the right of trial by jury shall remain inviolate, and shall extend to all cases at law without regard to the amount in controversy," etc. The intention of this section was clearly not to create a new right but to preserve an old one against interference by the legislature. "The effect of this provision is, first to recognize the right of trial by jury as it existed in the territory of Minnesota at the time of the adoption of the state constitution; and, secondly, to continue such right unimpaired and inviolate." According to the present laws of the state, "in actions for the recovery of money only, or of specific real or personal property, or for a divorce on the ground of adultery, the issues of fact shall be tried by a jury, unless a jury trial be waived or a reference be ordered. All other issues of fact shall be tried by the court, subject to the right of the parties to consent, or of the court to order, that the whole issue, or any specific question of fact involved therein, be tried by a jury or referred."23

1122

The constitution contains the customary provision that "in all criminal prosecutions the accused shall enjoy the right to a speedy and public trial, by an impartial jury."24 As in the case of the section discussed above, it was not the intention of this provision to add a new right or to change materially an old one but rather to conserve a right previously existing. Before the adoption of the constitution, jury trial was not allowed in court-martial cases arising in the state militia, in contempt of court cases, and in cases of misdemeanors arising under municipal ordinances. These exceptions are, therefore, continued under the constitution. The reason is thus stated by Judge Mitchell: "All that is necessary to be said as to the right of trial by jury is that the constitution simply preserves it in cases where it existed previous to

20 Sess. Laws 1917, ch. 463.

State v. Freerks, 140 Minn. 349; 168 N. W. 23, (1918); State v. Gilbert, 141 Minn. 263; 169 N. W. 790, (1918); State v. Townley, 140 Minn. 413; 168 N. W. 591, (1918). But see Zechariah Chafee, Jr., Freedom of Speech, 431 pp., New York, 1920, for a different view of the law of free speech.

its adoption. Courts-martial existed long before the adoption of the constitution, and their existence is impliedly recognized in our own and the constitutions of most states."25 Even a "public trial" is not assured where, from the nature of the case, spectators embarrass the witnesses and impede justice.20 Due process of law is generally guaranteed by our constitutions. In Minnesota it is covered by a number of sections of the bill of rights, including section 7. Yet due process is not an unchangeable process; the constitution has already been modified to eliminate the requirement of a grand jury in cases of felony.27 The legislature has a very extensive control over matters of judicial procedure. Thus the presumption that a person is innocent until proved guilty is a right subject to limitation. The existence of certain facts may by statute create a presumption of guilt. It has been provided by law that the owner of a building, or the vendor of property, may be presumed by law to know the reputation and offences of those with whom he deals. This virtually shifts the burden of proof in criminal cases, yet it is due process of law.28

In Minnesota the very unusual procedure exists of the counsel for the defense speaking first and only once in his argument to a jury in a civil case, and in criminal cases the counsel for the defense speaks once and this is the closing argument.29 This places an unusual burden upon the prosecution in all criminal cases. Not only must the jury be satisfied beyond all reasonable doubt that the defendant is guilty, but the great advantage of the closing argument is given the defense. Moreover, the court may not comment upon or indicate its views as to the relative credibility of witnesses, the theory being that "if the integrity of trial by jury is to be preserved, as it must be, the credibility of witnesses should be left entirely to the jury; and insinuations, comments, or suggestions by the court indicative of belief or unbelief in their testimony cannot be tolerated."30 This is, of course, quite contrary to the English practice and to the procedure in the federal courts, and illustrates the fact that judicial process is subject to legislative control and may be so ordered as to give accused persons even greater privileges than are stated in the bill of rights.

State ex rel. Madigan v. Wagener, 74 Minn. 518; 77 N. W. 424; 42 L. R. A. 749; 73 Am. St. Rep. 369, (1898). For a decision impliedly denying the right to a jury trial in a case of contempt of court, see State ex rel. Johnson v. Becht, 23 Minn. 1, (1876); for a decision denying the right to a jury trial in a case of violation of a municipal ordinance, see State v. Marciniak, 97 Minn. 355; 105 N. W. 965, (1906), affirmed in 207 U. S. 584; 28 Sup. Ct. Rep. 262; 52 L. Ed. 351, (1907). 20 State v. Callahan, 100 Minn. 63; 110 N. W. 342, (1907).

See p. 156.

28 State ex rel. Robertson v. New England Furniture and Carpet Co., 126 Minn. 78; 147 N. W. 951; 52 L. R. A. (n.s.) 932, (1914).

29 Gen. Stat. 1913, secs. 7799, 9206.

80 City of Minneapolis v. Canterbury, 122 Minn. 301; 142 N. W. 812; 48 L. R. A. (n.s.) 842, (1913).

2. ARTICLE 2-ON NAME AND BOUNDARIES. There have been no changes of any kind in the text of this article. The following paragraphs will be devoted to a brief elucidation of the meaning of the various sections.

The history of the state boundary has been briefly related in earlier chapters.31 The boundary described in section 1 of this article accepts the Iowa boundary on the south, the Wisconsin and Michigan boundary lines on the east, and the Canadian boundary line at the north. Only at the west is a new line drawn, and it is different from that proposed by Delegate H. M. Rice only from Big Stone lake southward.32

The Iowa line at the south is fixed at the parallel of 43° 30' north latitude. The eastern boundary line is not so easy to understand. By the treaty of peace with Great Britain in 1783, the northern boundary of the United States was traced westward through the Great Lakes to the water communication between Lake Huron and Lake Superior; "thence through Lake Superior northward of the Isles Royal and Phelipeaux, to the Long Lake; thence through the middle of said Long Lake, and the water communication between it and the Lake of the Woods, to the said Lake of the Woods;" and so on.33 The enabling act of the state of Michigan made the northern boundary of that state identical with "the said boundary-line between the United States and Canada, through the Detroit river, Lake Huron, and Lake Superior, to a point where the said line last touches Lake Superior; thence, in a direct line through Lake Superior to the mouth of the Montreal river;" and thence down that river.34

The enabling act for Wisconsin provided that the boundary of that state on the east should follow the western boundary line of the state of Michigan up through Lake Michigan and across country to the headwaters of the Montreal river; "thence down the main channel of the Montreal river to the middle of Lake Superior; thence through the centre of Lake Superior to the mouth of the Saint Louis river; thence up the main channel of said river to the first rapids in the same, above the Indian village, according to Nicollet's map; thence due south to the main branch of the river Saint Croix; thence down the main channel of said river to the Mississippi; thence down the centre of the main channel of that river to the northwest corner of the state of Illinois;" and so on.35 It will be observed from these quotations that the state of Michigan has the greater portion of the American part of Lake Superior within its jurisdiction, and that the boundary of Minnesota in the lake is conterminous with that of Michigan from the center of the lake northward to the mouth of the Pigeon river.38 Isle Royal falls within the jurisdiction of the state of Michigan, though it is closer to the Minnesota shore.

See index, Boundaries of Minnesota.

32 See p. 54, and map, p. 48.

83 Art. 2.

24 Stat. at Large, 5:49; Thorpe, Const., 4:1926-28.

25 Stat. at Large, 9:56; Thorpe, Const., 7:4071-74.

36 See map, p. 48.

There have been several boundary controversies between Minnesota and Wisconsin, the last of which related to the line in the lower St. Louis river. This controversy, involving the right to tax some very valuable ore docks built out from the Minnesota side, was settled in favor of Minnesota.37 An explanation will be found elsewhere of the little area north of 49° north latitude in the Lake of the Woods which comes within the jurisdiction of Minnesota.3

38

The clause giving Minnesota concurrent jurisdiction on all boundary waters is a repetition of the provisions in the enabling acts of Wisconsin and other states. Minnesota has concurrent jurisdiction with Wisconsin on the Mississippi, the St. Croix, the St. Louis, and a portion of Lake Superior; with Michigan on the northerly portion of the line in Lake Superior up to the Pigeon river; with North Dakota on the Red River of the North and the Sioux Wood river; and with South Dakota on the Sioux Wood river, Lake Traverse, and Big Stone lake,-wherever these waters form common boundaries. The results of this concurrent jurisdiction are well illustrated in the case of a Minnesota corporation which constructed a boom across the St. Croix river on the interstate boundary of Wisconsin and Minnesota, under authority granted by Minnesota. Upon suit being brought against the corporation in a Wisconsin court, it was held that a private party may not question the jurisdiction of Minnesota in granting a domestic corporation the right to build a boom upon the Wisconsin side of the river. "No one will deny that the one state has as much jurisdiction over the commerce of the river as the other, nor that the jurisdiction of each and both must be and remain subordinate to any action of Congress under the commerce clause of our national constitution." 9940 This view was upheld by the federal supreme court

9941

in a similar case. "If neither the state of Wisconsin nor the United States complained of this as an obstruction of the navigation of the Mississippi, it does not lie in the mouth of the plaintiff to complain." Even the criminal jurisdiction is concurrent, and thus a crime committed upon an interstate bridge is within the jurisdiction of Minnesota, although the offense was committed beyond the channel and upon the Wisconsin side of the river."2

87 Hoshour, Boundary Controversies between States Bordering on a Navigable River, in Minn. Law Rev., 4:463-82.

28 See pp. 6, 8. The "most northwestern point" of the Lake of the Woods lying north of 49° no. lat., it was necessary in carrying out the convention of 1818 to draw a line due south from that point until it intersected the forty-ninth parallel.

30 Stat. at Large, 9:56; Thorpe, Const., 7:4071-74.

40 Keator Lumber Co. v. St. Croix Boom Corporation, 72 Wis. 62, 88; 38 N. W. 529; 7 Am. St. Rep. 837, (1888).

41 Lindsay & Phelps Co. v. Mullen, 176 U. S. 126, 131; 44 L. Ed. 400; 20 Sup. Ct. Rep. 325, (1900).

42 State v. George, 60 Minn. 503; 63 N. W. 100, (1895). See also the statutes on game and fish, Sess. Laws 1919, ch. 400, part 10.

The provision that the navigable waters "shall be common highways and forever free" is an exact copy of the provision found in the Northwest Ordinance.13 Navigable waters have been well described by the Minnesota supreme court. "The public have a right of way in every stream which, in its natural state and ordinary volume, is capable of transporting to market the products of the forest or mines or of the soil along its banks. It is not essential that the property to be transported shall be carried in vessels or be guided by the hand of man. Nor is it necessary that the stream shall be capable of navigation against the current or that it shall be navigable at all times of the year." Navigable waters must be left free. They are primarily under federal control. A county may not bridge a navigable stream if such act be in violation of the statute of Congress.45

46

The provisions in section 3 in which it is "ordained" that the state shall never interfere with the primary disposal of the soil by the United States, nor tax lands belonging to the United States, nor tax non-resident proprietors at a higher rate than residents, are derived from the Northwest Ordinance and the enabling act. Although it is well established that all the states in the Union are entirely equal one with another, a state may not, even after its admission to the Union, alter its agreements with reference to the public lands without the consent of Congress. Agreements as to the private proprietary interests of the state, as distinguished from political restrictions imposed upon the admission of the state, are binding after statehood."

This article

3. ARTICLE 3-DISTRIBUTION OF THE POWERS OF GOVERNMENT. stands in its original form. No direct amendment has even been proposed, but certain minor changes in the original separation of powers have resulted from other changes in the constitution, such as that which took the pardoning power from the governor and vested it in a pardon board, and that which conferred upon the judges of district courts the power and duty of appointing boards of freeholders for the framing of city charters.48 There is not, of course, any legal objection to changes in the separation of powers being made by amendment to the constitution.

The separation of powers provided applies solely to the state government. It places no restriction upon the consolidation of executive and legislative functions in cities, such as is involved in the establishment of the commission form of government."

43 See p. 289; U. S. Rev. Stat., 1878, pp. 13-16.

44 Minnesota Canal and Power Co. v. Koochiching County, 97 Minn. 429; 107 N. W. 405;

5 L. R. A. (n.s.) 638, (1906).

45 Viebahn v. Board of Co. Comm'rs of Crow Wing County, 96 Minn. 276; 104 N. W. 1089;

3 L. R. A. (n.s.) 638, (1905).

48 See p. 289.

47 Stearns v. Minnesota, 179 U. S. 223; 21 Sup. Ct. Rep. 73; 45 L. Ed. 162, (1900).

49 Minn. Const., art. 5, sec. 4; art. 4, sec. 36.

State ex rel. Simpson v. City of Mankato, 117 Minn. 458; 136 N. W. 264, (1912).