Congress "to interfere with the existing practice, when such interference would result in imperilling the peace and good order of the islands." "Of course under the Newlands resolution," he continues, "any new legislation must conform to the Constitution of the United States; but how far the exceptions to the existing municipal legislation were intended to abolish existing laws must depend somewhat upon circumstances. Where the immediate application of the Constitution required no new legislation to take the place of that which the Constitution abolished, it may be well held to have taken immediate effect; but where the application of a procedure hitherto well known and acquiesced in left nothing to take its place, without new legislation, the result might be so disastrous that we might well say that it could not have been within the contemplation of Congress. In all probability the contingency which has actually arisen occurred to no one at the time. If it had, and its consequences were foreseen, it is incredible that Congress should not have provided against it. It is not intended here to decide that the words 'nor contrary to the Constitution of the United States' are meaningless. Clearly they would be operative upon any municipal legislation thereafter adopted, and upon any proceedings thereafter had, when the application of the Constitution would not result in the destruction of existing provisions conducive to the peace and good order of the community. Therefore we should answer without hesitation in the negative the question put by counsel for the petitioner in their brief: 'Would municipal statutes of Hawaii, allowing a conviction of treason on circumstantial evidence, or on the testimony of one witness, depriving a person of liberty by the will of the legislature and without process or confiscating private property for public use without compensation, remain in force after an annexation of the territory to the United States, which was conditioned upon the extinction of all legislation contrary to the Constitution?' We would even go farther, and say that most, if not all, the privileges and immunities contained in the Bill of Rights of the Constitution were intended to apply from the moment of

annexation; but we place our decision of this case upon the ground that the two rights alleged to be violated in this case are not fundamental in their nature, but concern merely a method of procedure which sixty years of practice had shown to be suited to the conditions of the islands, and well calculated to conserve the rights of their citizens to their lives, their property, and their well being."

In a concurring opinion Justices White and McKenna base their conclusion on the doctrine that by the annexing Resolution Congress had not intended to incorporate the islands eo instanti into the United States. With regard to the provision that the municipal legislation of Hawaii not contrary to the Constitution of the United States should remain in force, they say: "Now, in so far as the Constitution is concerned, the clause subjecting the existing legislation which was provisionally continued to the control of the Constitution, clearly referred only to the provisions of the Constitution which were applicable, and not to those which were inapplicable. In other words, having, by the resolution itself, created a condition of things absolutely incompatible with immediate incorporation, Congress, mindful that the Constitution was the supreme law, and that its applicable provisions were operative at all times, everywhere, and upon every condition and persons, declared that nothing in the Joint Resolution continuing the customs legislation and local law should be considered as perpetuating such laws, where they were inconsistent with those fundamental provisions of the Constitution which were, by their own force, applicable to the territory with which Congress was dealing."

Chief Justice Fuller and Justices Brewer, Peckham, and Harlan dissented. The first three of these, after adverting to the impropriety of an argument ab inconvenienti, content themselves simply with the statement that, as a matter of fact, the provision of the resolution of annexation which has been quoted above, validating all existing legislation, except such as might be contrary to the Constitution of the United States, should be construed as having extended over the islands the Fifth and Sixth Amend

ments to that instrument. Justice Harlan, however, in his dissenting opinion, in addition to this, attacks the validity of the position assumed by the majority that it was within the constitutional power of Congress to exclude from operation in a territory, incorporate or not incorporate, any of the provisions of the Constitution.12

In effect, then, the prevailing doctrine of this Mankichi case is to hold that the provisions of the Constitution guaranteeing indictment and trial by jury are among those limitations which do not control Congress in legislating for unincorporated Territories, or, according to Justice Brown, for such Territories as have not had the Constitution extended over them by act of Congress.

§ 182. Right to Jury Held to be not Fundamental.

There can be no doubt but that this decision of the court that the right to trial by jury is not a fundamental right, but only one of practice and convenience, states a new principle in American jurisprudence. Blackstone speaks of the right as "the most transcendent privilege which any subject can enjoy or wish for;" Kent declares it "a fundamental doctrine;" Story that it "sacred and inviolate palladium" of liberty; and decisions of our courts without number have employed similar language in describing it.13

is a

A second especial fact to be noted regarding the position of the four justices concurring with Brown in the judgment ren

12 He says: "I dissent altogether from any such view. It assumes the possession by Congress of power quite as omnipotent as that possessed by the English Parliament. It assumes that Congress, which came into existence, and exists, only by virtue of the Constitution, can withhold fundamental guarantees of life and liberty from peoples who have come under our complete jurisdiction; who, to use the words of the United States minister, have become our fellow-countrymen; and over whose country we have acquired the authority to exercise sovereign dominion. In my judgment neither the life nor the liberty nor the property of any person, within any territory or country over which the United States is sovereign, can be taken, under the sanction of any civil tribunal acting under its authority, by any form of procedure inconsistent with the Constitution of the United States."

13 See article by J. W. Garner, entitled "The Right of Jury Trial in the Dependencies," in American Law Review, XL, 1.

dered is that they render most indefinite the criteria by which it may be determined in any given case whether or not a Territory has, in fact, been "incorporated" into the United States. In this case the Territory in question had not been annexed by the treaty power as had the Territories involved in the Insular Cases decided in 1901, but by an act of Congress declaring it "a part of the Territory of the United States," and expressly making the Constitution paramount to the local law. Also all the cir cumstances preceding and attending the annexation of the islands indicated an intention to "incorporate" them into the United States. The treaty which the annexing resolution had taken the place of had expressly provided that the islands "should be incorporated into the United States as an integral part thereof and under its sovereignty," and there is absolutely nothing to show that when the resolution for annexation was adopted, a different destiny was intended for them.

In Dorr v. United States,14 decided in 1904, it was held that trial by jury was not a necessary incident of due process of law in the Philippine Islands. By the act of Congress of 1902 providing for the temporary government of the Philippines various individual rights were guaranteed, among them that no person should be held for a criminal offense without due process of law: But the right to jury trial was not mentioned, and Section 1891 of the Revised Statutes was expressly declared not to be applicable.15

This decision was necessarily determined by the Downes v. Bidwell, and United States v. Mankichi cases; the former case holding that unincorporated territories were not necessarily entitled to all the privileges created by the Constitution; and the latter that the right to a jury trial is not a fundamental right. Justice Harlan again dissented upon the same grounds as those given by him in the Mankichi case.

14 195 U. S.. 138: 24 Sup. Ct. Rep. 808; 49 L. ed. 128.

15 This is the section giving force and effect to the Constitution and laws of the United States not inapplicable within all the organized Territories and every Territory thereafter organized as elsewhere in the United States.

$183. Alaska Incorporated: Rassmussen v. United States.

In Rassmussen v. United States,16 decided in 1905, it was held that Alaska had been incorporated into the United States, and, therefore, that the inhabitants were entitled to jury trial. The court did not, however, attempt to lay down any definite rule for determining when incorporation has taken place, but contented itself with quoting the following sentences from the opinion in Dorr v. United States, and holding that the treaty by which Alaska had been acquired, and the legislation of Congress subsequent thereto, did not bring that Territory within the category of unincorporated Territories according to the test implied in the sentences quoted. These quoted sentences were as follows: "If the treaty-making power could incorporate territory into the United States without congressional action, it is apparent that the treaty with Spain, ceding the Philippines to the United States, carefully refrained from so doing; for it is expressly provided that (article 9) the civil rights and political status of the native inhabitants of the territories hereby ceded to the United States shall be determined by the Congress.' In this language it is clear that it was the intention of the framers of the treaty to reserve to Congress, so far as it could be constitutionally done, a free hand in dealing with these newly acquired possessions. The legislation upon the subject shows that not only has Congress hitherto refrained from incorporating the Philippines into the United States, but in the act of 1902, providing for the temporary civil government (32 Stat. at L. 691, Chap. 1369), there is express provision that Sec. 1891 of the Revised Statutes of 1873 shall not apply to the Philippine Islands."

In this Rassmussen case the attempt had been made to maintain the doctrine that, even if incorporated, Alaska was not entitled to the right in question for the reason that it had not been made an "organized" Territory. This contention, however, the court held clearly unsound. Incorporation, and not organization, it was declared was the test as to the general applicability of the Constitution. Justice Brown concurred, but, as might have been 16 197 U. S. 516; 25 Sup. Ct. Rep. 514; 49 L. ed. 862.