than reformatory, and they assume that the existing principles of the common law are example for the protection of individual rights, when once incorporated in the fundamental law, and thus secured against violation" (Weimer v. Bunbury, 30 Mich. 214).

Mr. Justice Matthews, speaking for the court, said: "In this country written Constitutions were deemed essential to protect the rights and liberties of the people against the encroachments of power delegated to their ptvernments, and the provisions of Magna Charta were incorporated into Bills of Rights.

There were limitations upon all the powers of government, legislative, as well as executive and judicial" (Hurtado v. California, 110 U. S. pp. 531-2).

as

Hon. George F. Edmunds, who is justly regarded one of the greatest living expounders of the Constitution, said: "But the Constitution, as such, I suppose all admit, is not subject to the control of congress, either to enlarge or diminish, extend or contract, or to be applied to or withdrawn from any people or place. It is not a movable thing like the Ark of the covenant of the Israelites, to be set up and moved here or there as the tribes might wander. It is the actual event and condition, and not the legislative or executive will, that must in the nature of things determine the status of a man or country under it.

and privileges of citizens of the United States residing in other parts of its imperial domain.

From the above citation of authorities we reach the easy conclusion that those negative provisions of the Constitution, adopted to declare and protect the life, liberty and property of the citizens were in force in the Hawaiian Islands as soon as the same became a part of the United States territory and subject to the "sovereign domain thereof." It is not necessary in order to decide the case at bar to express an opinion as to whether the Constitution ex proprio vigore, and as a whole extends to and is in force in all territory subject to the sovereignty of the United States. It is clear and well settled that some of the provisions of the Constitution do not apply to the territories, whether there is an act of congress expressly extended them there or not, for the reason that they are totally inapplicable to the conditions existing in the territories. However, the ablest and most earnest advocates of the unlimited power of congress to legislate for the territories, unrestricted by the provisions of the Constitution, frankly admit that those negative provisions of the Constitution, inserted to protect the life and property of the citizen, are in force in the territories and are so far a limitation on the power of congress in legislating for the territories.

"It may be admitted," says Townsend, United States district judge, of southern district of New York, "that the constitutional guarantees of civil rights would apply to the territory under the sovereignty, but not a part of the United States. Certain civil rights which we believe belong to everyone are crystalized into the negative provisions of our Constitution in order to prevent any wrongful and improper use of our power, and these may be held to control our power wherever it reaches. of These considerations may be found to limit us in governing any territory" (Goetz v. U. S., Law Notes for July, 1900, p. 62).

"The instances in which congress had declared in statutes organizing territories that the Constitution and laws should be in force there are no evidence that the Constitution and laws were not already there, for congress and all legislative bodies have often made enactments that in effect merely declared existing law. In such cases they declare a pre-existing truth to

casuists."

ease the doubts

Letter of Senator Proctor, dated March 21, 1900, and published in Congressional Record, March 30. 1900, p. 3737.

We cannot assent to the doctrine that the operation of the Constitution in the territories belonging to the United States depends upon the will or action of congress extending it there. This doctrine necessarily carries with it the admission that what one congress can give, the same or succeeding congress can take away; that although congress, by the Organic Act, organizing the territory of Hawaii, extending the Constitution and laws of the United States to this territory, the next congress might repeal that part of the Organic Act, and that then the people of this territory would have none of the guarantees of life, liberty and property provided in the Constitution and mightt hereafter be governed as a province, a Crown colony, or in any manner that congress in its wisdom or unwisdom, might provide; that a tariff might be levied on the products of the islands going into the States, and citizens of this territory might be denied the rights

66

That some of those negative provisions" are contained in the fifth and sixth amendments to the

Constitution none will deny, and it is equally clear to us that these were in force in the Hawaiian Islands on the 16th day of August, 1898, at the time of the trial and conviction of the petitioner.

Was the petitioner then denied any of the rights and privileges guaranteed him thereby? That he was tried and convicted of an "infamous crime" no citation of authorities will be necessary to establish.

The question is not whether an indictment found by the circuit judge, as provided by the laws of the Republic of Hawaii, is as good a protection to the life and liberty of the citizen as one presented by a grand jury, but it is whether or not the fifth amendment requires or guarantees to the citizen that he shall not be placed on trial for an infamous crime without an indictment by a grand jury.

Mr. Justice Gray said: "But if the crime of which the petitioner was accused was an infamous crime,

within the meaning of the fifth amendment of the Constitution, no court of the United States had jurisdiction to try or punish him, except upon presentment or indictment by a grand jury" (Ex parte Wilson, 110 U. S. 422).

The reason why a person so accused cannot be tried or punished in any court of the United States," and may be in a State court, is that the federal Bill of Rights, or first ten amendments to the Constitution, do not apply to the people of the States in making their State Constitutions, nor to the State legislatures in legislating for the States. But it is well settled that congress, in legislating for the territories, is bound by these amendments.

It cannot be seriously contended that congress intended, by the joint resolution of annexation, or did, in fact, authorize the courts of the Hawaiian Islands to do what the courts of no other territory of the United States could do. After annexation, the courts of the Hawaiian Islands exercised all their power and authority under the joint resolution and by direction of the president of the United States, and we may observe in this connection that the judges of these courts were requred to take and did, in fact, take an oath to support the Constitution of the United States.

imity in finding a verdict as an essential feature of trial by jury in common law cases, and the act of congress could not impart the power to change the constitutional rule and could not be treated as attempting to do so. It is equally beyond question that the provisions of the national Constitution relating to trial by jury for crimes and to criminal prosecutions apply to the territories of the United States (170 U. S. pp. 346-347).

Assuming that the provisions of the Constitution relating to trials for ces and to criminal prosecutions apply to the territories of the United States, the next inquiry is whether the jury referred to in the original Constitution and the sixth amendment is a jury constituted, as it was a common law, of twelve persons, neither more nor less (2 Hale's P. C. 161; 1 Chitty's Cr. Law, 505). This question must be answered in the affirmative (Thompson v. Utah, 170 U. S. p. 349).

"It will be remembered that Thompson was placed upon trial for a felony, committed when Utah was a territory, and under the State Constitution eight persons composed a lawful jury, and such a jury tried and found Thompson guilty. In the opinion last cited the court further says: 'Was it then competent for the State of Utah, upon its admission to the Union, to do in respect of Thompson's crime what the United States could not have done while Utah was a territory, namely, to provide for his trial by a jury of eight persons? We are of the opinion that the State did not acquire upon its admission into the Union the power to

Mr. Justice Gray further said in the case last cited, "That no person can be held to answer, without presentment or indictment by a grand jury, for any crime for which an infamous punishment may be imposed by the court. The question is whether the crime is one for which the statute authorizes the court to award an infamous punish- provide in respect to felonies committed within its ment, not whether the punishment ultimately awarded is an infamous one. When the accused is in danger of being subjected to an infamous punishment, if convicted, he has the right to insist that he shall not be put on trial except upon the accusation of a grand jury. * * * But the Constitution protecting everyone from being prosecuted without the intervention of a grand jury for any crime which is subject by law to an infamous punishment, no declaration of congress is needed to secure or competent to defeat the constitutional safeguard" (Ex parte Wilson, 110 U. S. 426).

Mr. Justice Harlan, in Thompson v. Utah (170 U. S. 346), says: That the provisions of the Constitution of the United States relating to the right of trial by jury in suits at common law apply to the territories of the United States is no longer an open question."

Citing Webster v. Reid (11 How. 437-460); Am. Pub. Co. v. Fisher (166 U. S. 464-468); Springville v. Thomas (166 U. S. 707).

"In the last-named case it was claimed that the territorial legislature of Utah was empowered by Organic Act of the territory of September 9, 1850, 9 Lt. 453, c. 57, par. 6, to provide that unanimity of action on the part of jurors in civil cases was not necessary to a valid verdict. That court said: "In our opinion the seventh amendment secured unan

limits while it was a territory; that they should be tried otherwise than by a jury such as is provided by the Constitution of the United States. When Thompson's crime was committed, it was his constitutional right to demand that his liberty should not be taken from him except by the joint action of the court and the unanimous verdict of a court of twelve persons. To hold that a State could deprive him of his liberty by the concurrent action of a court of eight jurors would recognize the power of the State not only to do what the United States, in respect to Thompson's crime, could not, at any time, have done by legislation, but to take from the accused a substantial right belonging to him when the offense was committed' (Thompson v. Utah, 170 U. S. pp. 350-1).

"It follows that all the provisions of the Constitution, in respect to personal and property rights, including the right to trial by jury in criminal prosecutions, became at once, when the cession was completed, a part of the supreme law of the land. The character of an offense and the measure of its punishment would be determined by the law in force when and where the act was committed, the laws of that character remain in force after the cession until changed; but the manner of the trial must depend on the law in force when the trial is had, even though the establishment and organiza

tion of the courts must be awaited before the trial can be had" (Ex parte Ortiz, 100 Fed. p. 962).

Does this construction of the law mean, as has been so earnestly contended, that criminals should, of necessity, go unpunished, and that there was no protection to life and property on the Hawaiian Islands between the 7th day of July, 1898, the date of signing the joint resolution, and the 14th day of June, 1900, the date of the Organic Act, organizing the Territory of Hawaii, went into effect? Certainly not. During all of this period there was organized government here; there were officers and courts, legally constituted, continued in office and existence by the order of President McKinley, under the authority given in the joint resolution. There was the great body of the municipal laws of the late republic "not inconsistent with the resolution nor contrary to the Constitution of the United States" continued in force until congress should otherwise direct. There was provision for a trial jury of twelve and that part of the statute authorizing the jurors to return a verdict could have been controlled by a simple direction or instruction of the trial court, that there must be a unanimous verdict to convict, and those additional safeguards to the life, liberty and prosperity of the citizen prescribed by the Constitution of the United States were here in full force and vigor.

usage

Among the municipal laws continued in force was section 1109 of the Civil Laws, which provide that the common law of England, as ascertained by the English and the American decisions, is declared to be the common law of the Hawaiian Islands, except when changed by decision, or law. The Circuit Court of the first circuit was a court of record and of common law jurisdiction, and in August, 1898, had the undoubted power to issue and open venire and summons and empanel a grand jury in the manner provided by the rules of the common law.

with the jurisdiction to which it is essential" (I Brock. 159).

In Clawson v. United States (114 U. S. 486), in approving of the action of the Supreme Court of Utah, whose opinion sustained the action of a district court of the territory in issuing an open venire for jurors and which based its judgment, not on any statute authorizing it, but the fact that such "power was inherent in the court was not forbidden by any statute in force in Utah," said: "We concur in this view, so far as the resort to the open venire after the exhaustion of the two hundred names is concerned.”

The following authorities also support this proposition: 1 Chitty (Crim. Law, 516); 2 Hale (P. C. 205); Mackay v. People (2 Cal. 13); Wilburn v. State (21 Ark. 198-201); Goodwin v. U. S. (54 Pac. 432).

Deciding only the questions presented by the case at bar, we hold that the Hawaiian Islands were a part of the United States on the 16th day of August, A. D. 1898; that the fifth and sixth amendments to the Constitution of the United States were in force here at that time; that the petitioner having been put to his trial on the 16th day of August, A. D. 1898, upon an "indictment," so-called, found by a circuit judge, charging him with an infamous crime, and thereof convicted by a verdict of ten jurors, was thereby deprived of his constitutional rights, and his detention is illega!. Let the writ issue and the petitioner be discharged. In a very lengthy opinion, much longer than that of the court, Judge Frear dissents from the decision rendere by the court, holding that the Constitution did not hold over Hawaii until June 14, 1900, and that from August 12, 1898, until June 14, 1900, there was an inter regnum in which apparently neither the Constitution of the United States nor the Constitution of Hawaii was in force over

the islands.

A

REPLEVIN FOR A CORPSE.

As Justice Cooley said: "They assume that the existing principles of the common law are ample for the protection of individual rights, when once incorporated in the fundamental law and thus CASE (Keys v. Konkel) recently decided by secured against violation" (Weimer v. Banbury, the Supreme Court of Michigan and noted in Mich. 214). In the United States v. Hill (1 Brock. the Virginia Law Reporter, involved the novel 159). Chief Justice Marshall, speaking of the question whether a dead human body was a perauthority of courts to issue an open venire, in the sonal chattel, recoverable in replevin. The plaintabsence of any statute authorizing it, said: It has iff's brother died in a hospital, and, by the request been justly observed that no act of congress directs of the hospital authorities, the body was taken in grand juries or defines their powers. By what charge by the defendants, who are undertakers. authority, then, are tney summoned, and whence After the defendants had properly performed some do they derive their powers? The answer is that service in preparing the body for burial, the plaintthe laws of the United States have erected courts iff demanded possession. Defendants refused to which are vested with criminal jurisdiction. This deliver, unless their charges were paid, and the jurisdiction they are bound to exercise, and it can gruesome spectacle was presented or the dead body only be exercised through the instrumentality of held for charges. grand juries. They are, therefore, given by a nec- In an action of replevin to recover the body, the essary and inuisputable implication. But how far court held that the action would not lie, under the is this implication necessary and indisputable? The statute authorizing such an action for the recovery answer is obvious. Its necessity is coextensive of "personal goods and chattels," and providing

Dr. N. Matsunami, professor of maritime law in Tokyo University, has, doubtless, had his attention drawn to this important subject by the recent collision between a Japanese warship and a Peninsular and Oriental liner, which has been the subject AND of much litigation in the courts of Japan and before our own Privy Council. Professor Matsunami has devoted a great deal of time and study to his subject. He has visited and studied the laws of most of the maritime countries of Europe, and has arrived at the conclusion that in no country of the world can the merchant ship obtain redress as matter of right and not of grace. In the book before us (A Treatise on the Subject of Collisions Between Warships and Merchant Vessels. London; printed by Hicks, Wilkinson and Sears) he wisely confines himself to setting forth the law and practice of England. This he does at considerable length, indeed, but, on the whole, with accuracy and clearness.

1

through bad example or education, have been the causes of his falling into crime, or if his former environments seem in any way to be morally unwholesome, the judge may either demand from the parent or guardian security for the reform of the child; or, if he has cause to distrust their assurances, may commit the child to a reformatory or charitable institution during his minority or for any shorter period he may think desirable. He cannot, however, be detained after he is twenty-one.

The difficulties which he has had to contend with in collecting his information and in presenting it to English readers in the English language must have been very great; and it would be unfair to criticise his work minutely. The general law of collision is dealt with in about 200 pages, and for this purpose the usual English text-books have been freely laid under contribution. The remaining 100 pages are devoted to stating and discussing the remedies which the subject has against the Crown and its servants, whether by petition of right or otherwise. The treatment of young criminals in France is Petition of right, he points out, does not lie in case very similar to that in Belgium. In the various reof collision. The last chapter contains the writer's formatories a law of 1850 ordains that moral, reproposals for amending the law. The book is ligious and trade instruction should be given to the intended mainly for the use of the members of the inmates; but an experiment is being tried at an Maritime Internationale Comite, to whom it was institution at Montesson of abolishing the religious presented at the congress of the Comite recently instruction. All the reformatories for boys under held in Paris. Professor Matsunami brought the twelve are under the care of women. In France subject before that congress in a speech which "conditional conviction" is common, and seems excited much interest, and was listened to with to act very well. The criminal, if a first offender, great attention. The matter, however, was too important to be dealt with on that occasion. It will, doubtless, be fully considered at some future meeting of the Comite.

The objects at which the writer aims are, first, to induce all maritime nations to give a legal remedy to the owner of a merchant ship damaged by collision with a man-of-war; secondly, to induce them to erect an international tribunal before which all such collisions, whatever the flags of the ships may be, shall be adjudicated upon. The first part of this proposal is, in our opinion, more likely to meet with success than the second part.- Law Times (London).

THE TREATMENT OF THE YOUTHFUL
CRIMINAL IN EUROPE.

TE
HE different countries of Europe hold different
ideas as to the age when responsibility begins
and a person can be regarded as knowing the mean-
ing of his actions. In England the law looks upon
everyone over the age of seven as a responsible
being; and every child beyond that age can be
prosecuted as a criminal. The same age is accepted
in Russia and Portugal. In France and Belgium
the age is eight; in Italy and Spain it is nine;
Norway, Greece, Austria, Denmark and Holland
decline to prosecute a child under ten, and this is
the rule also in some of the Swiss cantons.

In Belgium, though an offender is called a criminal from the age of eight, the penal law recognizes two distinct periods, and a criminal under seventeen is treated differently from one above that age. With the young offender, the judge must take the responsibility of deciding whether or not his moral nature was sufficiently developed for him to understand the nature of his act. If the judge thinks he acted without the knowledge of right and wrong, he is to acquit him, and, after a reprimand, send him home to his parents; but if he thinks that they,

has sentence pronounced against him, but does not undergo it at the time. If, however, he is again convicted, he has to undergo the sentence for both crimes. Since the law of conditional conviction was adopted in 1891, about 16,000 cases have been dealt with annually, and of those seventeen per 1,000 have been reconvicted. By this law a first offender escapes both the stigma and the more or less harmful influences of imprisonment.

In Germany, where children under twelve are not accounted criminals, they may nevertheless be sent to reformatories, or boarded out by the State in private families. No conviction can, however, be recorded against them. Even when they acted with knowledge, and are convicted, the punishment of first offenders is lenient. For slight offenses a reprimand only is given, and the offenders are not deprived of their civil rights, nor subjected to police supervision. Bad parents may be deprived entirely of the control of their children, who then become the wards of the State. It may be surmised that bad parents are not unwilling thus to free themselves from parental responsibility. At any rate, crime is increasing faster than population in Germany. The latter increased twenty per cent between 1888 and 1893; but the former increased thirty-two per cent.

In Austria criminals under the age of ten are left entirely to the disciplinary control of their parents; between ten and fourteen their offenses are all classed as misdemeanors, and are generally dealt with at home; only in special circumstances are the offenders put under police control. In the latter case the criminal, if under fifteen, may be sent to a reformatory till he is twenty. There are special establishments for beggars and vagrants; and in all these the inmates must be taught a trade, besides receiving moral and religious instruction. In Sweden there is an increasing tendency to punish by fine instead of imprisonment. In Denmark whipping is largely resorted to. Boys may be whipped up to the age of fifteen, and in certain cases eigh