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than reformatory, and they assume that the existing and privileges of citizens of the United States residprinciples of the common law are example for the ing in other parts of its imperial domain. protection of individual rights, when once incor- From the above citation of authorities we reach porated in the fundamental law, and thus secured the easy conclusion that those negative provisions against violation " (Weimer v. Bunbury, 30 Mich.of the Constitution, adopted to declare and protect 214).

the life, liberty and property of the citizens were in Mr. Justice Matthews, speaking for the court, force in the Hawaiian Islands as soon as the same said: “ In this country written Constitutions were became a part of the United States territory and deemed essential to protect the rights and liberties subject to the "sovereign domain thereof." It is of the people against the encroachments of power not necessary in order to decide the case at bar to delegated to their puvernments, and the provisions express an opinion as to whether the Constitution of Magna. Charta were incorporated into Bills of ex proprio vigore, and as a whole extends to' and is Rights.

in force in all territory subject to the sovereignty “ There were limitations upon all the powers of of the United States. It is clear and well settled government, legislative, as well as executive and that some of the provisions of the Constitution do judicial” (Hurtado v. California, 110 U. S. pp. not apply to the territories, whether there is an act 531-2).

of congress expressly extended them there or not, Hon. George F. Edmunds, who is justly regarded for the reason that they are totally inapplicable to

one of the greatest living expounders of the the conditions existing in the territories. HowConstitution, said: “ But the Constitution, as such, ever, the ablest and most earnest advocates of the I suppose all admit, is not subject to the control of unlimited power of congress to legislate for the congress, either to enlarge or diminish, extend or territories, unrestricted by the provisions of the contract, or to be applied to or withdrawn from any Constitution, frankly admit that those negative propeople or place. It is not a movable thing like the visions of the Constitution, inserted to protect the Ark oi the covenant of the Israelites, to be set up life and property of the citizen, are in force in the and moved here or there as the tribes might wan- ! territories and are so far a limitation on the power der. It is the actual event and condition, and not of congress in legislating for the territories. the legislative or executive will, that must in the

“ It may be admitted," says Townsend, United nature of things determine the status of a man or States district judge, of southern district of New country under it.

York, “that the constitutional guarantees of civil “ The instances in which congress had declared rights would apply to the territory under the sovin statutes organizing territories that the Constitu- ereignty, but not a part of the United States. Certion and laws should be in force there are no evi- tain civil rights which we believe belong to everydence that the Constitution and laws were one are crystalized into the negative provisions of already there, for congress and all legislative bodies our Constitution in order to prevent any wrongful have often made enactments that in effect merely and improper use of our power, and these may be declared existing law. In such cases they declare held to control our power wherever it reaches. pre-existing truth

the doubts of

These considerations may be found to limit us in casuists.”

governing any territory” (Goetz v. U. S., Law Letter of Senator Proctor, dated March 21, 1900. Notes for July, 1900, p. 62). and published in Congressional Record, March 30. That some of those “negative provisions" 1900, p. 3737.

contained in the fifth and sixth amendments to the We cannot assent to the doctrine that the opera- Constitution none will deny, and it is equally clear tion of the Constitution in the territories belonging to us that these were in force in the Hawaiian to the United States depends upon the will or action Islands on the 16th day of August, 1898, at the time of congress extending it there. This doctrine nec

of the trial and conviction of the petitioner. essarily carries with it the admission that what one Was the petitioner then denied any of the congress can give, the same or succeeding congress rights and privileges guaranteed him thereby? can take away; that although congress, by the That he was tried and convicted of an “infamous Organic Act, organizing the territory of Hawaii, crime” no citation of authorities will be necessary extending the Constitution and laws of the United to establish. States to this territory, the next congress might The question is not whether an indictment found repeal that part of the Organic Act, and that then by the circuit judge, as provided by the laws of the the people of this territory would have none of the Republic of Hawaii, is as good a protection to the ·guarantees of life, liberty and property provided life and liberty of the citizen as one presented by in the Constitution and mightthereafter be gov- a grand jury, but it is whether or not the fifth erned as a province, a Crown colony, or in any amendment requires or guarantees to the citizen manner that congress in its wisdom or unwisdom, that he shall not be placed on trial for an infamous might provide; that a tariff might be levied on the crime without an indictment by a grand jury. products of the islands going into the States, and Mr. Justice Gray said: “ But if the crime of which citizens of this territory might be denied the rights the petitioner was accused was an infamous crime,







within the meaning of the fifth amendment of the imity in finding a verdict as an essential feature of Constitution, no court of the United States had trial by jury in common law cases, and the act of jurisdiction to try or punish him, except upon pre-congress could not impart the power to change the sentment or indictment by a grand jury” (Ex parte constitutional ple and could not be treated as Wilson, 110 U. S. 422).

attempting to do so. It is equally beyond question The reason why a person so accused cannot be that the provisions of the national Constitution tried or punished in any court of the United relating to trial by jury for crimes and to criminal States," and may be in a State court, is that the prosecutions apply to the territories of the United federal Bill of Rights, or first ten amendments to States (170 U. S. pp. 346-347). the Constitution, do not apply to the people of the Assuming that the provisions of the ConstituStates in making their State Constitutions, nor to tion relating to trials for cives and to criminal the State legislatures in legislating for the States. prosecutions apply to the territories of the United But it is well settled that congress, in legislating States, the next inquiry is whether the jury referred for the territories, is bound by these amendments. to in the original Constitution and the sixth amend

It cannot be seriously contended that congress ment is a jury constituted, as it was a common law, intended, by the joint resolution of annexation, or of twelve persons, neither more nor less (2 Hale's did, in fact, authorize the courts of the Hawaiian P. C. 161; 1 Chitty's Cr. Law, 505). This question Islands to do what the courts of no other territory must be answered in the affirmative (Thompson v. of the United States could do. After annexation, Utah, 170 U. S. p. 349). the courts of the Hawaiian Islands exercised all their “It will be remembered that Thompson was power and authority under the joint resolution and placed upon trial for a felony, committed when by direction of the president of the United States, Utah was a territory, and under the State Constituand we may observe in this connection that the tion eight persons composed a lawful jury, and judges of these courts were requred to take and such a jury tried and found Thompson guilty. In did, in fact, take an oath to support the Constitu- the opinion last cited the court further says: Was tion of the United States.

it then competent for the State of Utah, upon its Mr. Justice Gray further said in the case last admission to the Union, to do in respect of Thompcited, “ That no person can be held to answer, son's crime what the United States could not have without presentment or indictment by a grand jury, done while Utah was a territory, namely, to profor any crime for which an infamous punishment vide for his trial by a jury of eight persons? We may be imposed by the court. The question is are of the opinion that the State did not acquire whether the crime is one for which the statute lipon its admission into the Union the power to authorizes the court to award an infamous punish- provide in respect to felonies committed within its ment, whether the punishment ultimately limits while it was a territory; that they should be awarded is an infamous one. When the accused is : tried otherwise than by a jury such as is provided in danger of being subjected to an infamous pun- by the Constitution of the United States. When ishment, if convicted, he has the right to insist that Thompson's crime was committed, it was his conhe shall not be put on trial except upon the accu-stitutional right to demand that his liberty should sation of a grand jury.

But the Constitu- not be taken from him except by the joint action tion protecting everyone from being prosecuted of the court and the unanimous verdict of a court without the intervention of a grand jury for any of twelve persons. To hold that a State could crime which is subject by law to an infamous pun- deprive him of his liberty by the concurrent action ishment, no declaration of congress is needed to of a court of eight jurors would recognize the secure or competent to defeat the constitutional power of the State not only to do what the United safeguard” (Ex parte Wilson, 110 U. S. 426). States, in respect to Thompson's crime, could not,

Mr. Justice Harlan, in Thompson v. Utah (170' at any time, have done by legislation, but to take U. S. 346), says: “ That the provisions of the Con- from the accused a substantial right belonging to stitution of the United States relating to the right him when the offense was committed' (Thompson of trial by jury in suits at common law apply to the v. Utah, 170 U. S. pp. 350-1). territories of the United States is no longer an " It follows that all the provisions of the Conopen question."

stitution, in respect to personal and property Citing Webster v. Reid (11 How. 437-460); Am. rights, including the right to trial by jury in crimPub. Co. v. Fisher (166 U. S. 464-468); Springville inal prosecutions, became at once, when the cession v. Thomas (166 U. S. 707).

was completed, a part of the supreme law of the " In the last-named case it was claimed that the land. The character of an offense and the measure territorial legislature of Utah was empowered by of its punishment would be determined by the law Organic Act of the territory of September 9, 1850, in force when and where the act was committed, 9 Lt. 453, c. 57, par. 6, to provide that unanimity the laws of that character remain in force after the of action on the part of jurors in civil cases was not cession until changed; but the manner of the trial necessary to a valid verdict. That court said: “In must depend on the law in force when the trial is our opinion the seventh amendment secured unan- I had, even though the establishment and organiza


* *

tion of the courts must be awaited before the trial with the jurisdiction to which it is essential” (1 can be had” (Ex parte Ortiz, 100 Fed. p. 962). Brock. 159).

Does this construction of the law mean, as has In Clawson v. United States (114 U. S. 486), in been so earnestly contended, that criminals should, approving of the action of the Supreme Court of of necessity, go unpunished, and that there was no Utah, whose opinion sustained the action of a disprotection to life and property on the Hawaiian trict court of the territory in issuing an open venire Islands between the 7th day of July, 1898, the for jurors and which based its judgment, not on date of signing the joint resolution, and the 14th any statute authorizing it, but the fact that such day of June, 1900, the date of the Organic Act, power was inherent in the court was not forbidden organizing the Territory of Hawaii, went into by any statute in force in Utah," said: “We concur effect? Certainly not. During all of this period in this view, so far as the resort to the open venire there was organized government here; there were aiter the exhaustion of the two hundred names is officers and courts, legally constituted, continued in concerned." office and existence by the order of President The following authorities also

support this McKinley, under the authority given in the joint proposition: 1 Chitty (Crim. Law, 516); 2 Hale resolution. There was the great body of the munici- (P. C. 205); Mackay v. People (2 Cal. 13); Wilburn pal laws of the late republic “not inconsistent with v. State (21 Ark. 198-201); Goodwin v. U. S. (54 the resolution nor contrary to the Constitution of Pac. 432). the United States” continued in force until con- Deciding only the questions presented by the gress should otherwise direct. There was provis- case at bar, we hold that the Hawaiian Islands ion for a trial jury of twelve and that part of the were a part of the United States on the 16th day statute authorizing the jurors to return a verdict of August, A. D. 1898; that the fifth and sixth could have been controlled by a simple direction or amendments to the Constitution of the United instruction of the trial court, that there must be a States were in force here at that time; that the unanimous verdict to convict, and those additional petitioner having been put to his trial on the 16th safeguards to the life, liberty and prosperity of the day of August, A. D. 1898, upon an "indictment," citizen prescribed by the Constitution of the United so-called, found by a circuit judge, charging him States were here in full force and vigor.

with an infamous crime, and thereof convicted by Among the municipal laws continued in force a verdict of ten jurors, was thereby deprived of his was section 1109 of the Civil Laws, which provide constitutional rights, and his detention is illega!. that the common law of England, as ascertained by

Let the writ issue and the petitioner be discharged. the English and the American decisions, is In a very lengthy opinion, much longer than declared to be the common law of the Hawaiian that of the court Judge Frear dissents from the Islands, except when changed by decision, usage decision rendere. by the court, holding that the or law. The Circuit Court of the first circuit was Constitution did not hold over Hawaii until June a court of record and of common law jurisdiction, 14, 1900, and that from August 12, 1898, until June and in August, 1898, had the undoubted power to 14, 1900, there was an inter regnum in which apparissue and open venire and summons and empanel ently neither the Constitution of the United States a grand jury in the manner provided by the rules nor the Constitution of Hawaii was in force over of the common law.

the islands. As Justice Cooley said: “They assume that the existing principles of the common law are ample

REPLEVIN FOR A CORPSE. 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 they 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 oi 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


where the plaintiff fails in his case — for the return the action. If the decision of the court goes against of the property or its value. “ It is apparent,” says the warship, the government pays the damages, and, the court,“ that no return of the property can be probably, no case has occurred in modern times ordered in the case of a dead body, and it is equally where actual injustice has occurred. But it is not true that its value in money can neither be altogether satisfactory that the only remedy given appraised nor ascertained by a jury.” The plaintiff by the law is a wholly inadequate one, and that seems, however, to have accomplished his purpose substantial redress can only be obtained, as a matby this action, since he got possession by replevy, ter of grace and favor, on the part of the Crown. and the court held that no return could be ordered. There is little doubt that, in the past, injustice has He also recovered his costs. This decision recog- resulted from this state of the law; and it must nizes the American rule that there may be a quasi not be forgotten that the advisers of the Crown are property in a dead body for the purpose of control even now human, and that they and admiralty offand burial, and that the damages may be recovered cials are, like other mortals, liable to a bias in favor. of mutilation. But the recovery of damages in such of their own ship. In some countries, we believe, the a case is based upon the infringement of the right merits of a collision between a government ship and a of the next-of-kin to have the control of the body merchant ship are never adjudicated upon by the orfor the purposes of burial, in an unmutilated condi- dinary tribunals, and the government pays damages, tion, rather than upon any notion of property or refuses to pay them, according to the suggestion therein. The American authorities are treated at it receives from its naval or other advisers. It is large in monographic note: 82 Am. Dec. 509-516; not clear that in this country the moral responsisee, also, Pierce v. Proprietors (10 R. I. 227, 14 Am. bility of the Crown for damages done by its men-ofRep. 667); State v. Doepke (68 Mo. 208, 30 Am. war has always been recognized. In 1653 the Ruby, Rep. 785); Weld v. Walker (130 Mass. 422, 39 irigate, sank the Report, merchant ship, apparently Am. Rep. 465 and note); Griffith v. Charlotte, etc., i by gross, if not wilful negligence. In that case only R. C. (23 S. C. 25, 55 Am. Rep. 1); Renihan v. partial damages were paid by Cromwell's governWright (125 Ind. 536, 21 Am. St. Rep. 249 and note); | ment. The temper in which a ship of war was naviLarsen v. Chase (47 Minn. 307, 28 Am. St. Rep. gated in those days is indicated by the sworn depo370 and note). The English law on this point is sition of the master of the Report. “How many similar. A corpse can neither be attached nor taken men-of-war have you known to come under a merin execution, nor arrested or detained for debt, chant's stern?” asked Captain Curtis, of the Runy, although the contrary theory has been propounded after he had sunk the Report and her master had by novelists, and illegalities of this kind have been clambered on board him. Again, in 1707, H. M. S. practiced even during the present century in Eng- Pembroke, in bad weather, drove from her anchor land and Ireland (Jones v. Ashburnham (1804), 4 o

on board the Delight, merchant ship, and damaged East. 460). But the persons bound by law to bury her severely. The secretary to the lord high a corpse have a special custody of it for that pur- admiral advised him, when the Delight owners pose, and their rights cannot be defeated by any claimed redress, as follows: “ It hath been a maxim bequest of the deceased of his own corpse, or any at this board that the Crown never pays for such direction as to the mode of its disposition (Foster | damages; ” and he added that he knew of no case v. Dodd ([1867), 8 B. & S. 842); Williams v. Wil- in which damages had been paid by the Crown. liams ([1882), 31 Law J. Rep. Chanc. 388; L. R. These cases are not to be found in “the books," 20 Chanc. Div. 659). This latter proposition, of but they are, nevertheless, authentic. course, does not affect the question of cremation

Dr. N. Matsunami, professor of maritime law in (Regina v. Price ([1883], 53 Law Rep. M. C. 51; Tokyo University, has, doubtless, had his attention L. R. 12 Q. B. Div. 47.— Scots Law Times. From drawn to this important subject by the recent Irish Law Times.

collision between a Japanese warship and a Penin

sular and Oriental liner, which has been the subject COLLISIONS BETWEEN WARSHIPS AND of much litigation in the courts of Japan and before MERCHANT VESSELS.

our own Privy Council. Professor Matsunami has

devoted a great deal of time and study to his sub11 T IS remarkable that a professor in a Japanese ject. He has visited and studied the laws of most

university should have been the first to call of the maritime countries of Europe, and has arrived attention to the fact that in no country of the world at the conclusion that in no country of the world has the owner of a merchant ship sunk or damaged can the merchant ship obtain redress as matter of by the negligence of a man-of-war a right of action right and not of grace. In the book before us against the government to which the warship (A Treatise on the Subject of Collisions Between belongs. True it that he may sue the captain of Warships and Merchant Vessels. London; printed the man-of-war, or other, the actual wrongdoer by Hicks, Wilkinson and Sears) he wisely confines who caused the collision, and it is the practice in 'himself to setting forth the law and practice of Engthis, and, probably, in other European countries for land. This he does at considerable length, indeed, the government to enter an appearance and defend but, on the whole, with accuracy and clearness. The difficulties which he has had to contend with through bad example or education, have been the in collecting his information and in presenting it to causes of his falling into crime, or if his former English readers in the English language must have environments seem in any way to be morally unbeen very great; and it would be unfair to criticise wholesome, the judge may either demand from the his work minutely. The general law of collision is parent or guardian security for the reform of the dealt with in about 200 pages, and for this purpose child; or, if he has cause to distrust their assurthe usual English text-books have been freely laid ances, may commit the child to a reformatory or under contribution. The remaining 100 pages are charitable institution during his minority or for any devoted to stating and discussing the remedies shorter period he may think desirable. He cannot, which the subject has against the Crown and its however, be detained aiter he is twenty-one. 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 has sentence pronounced against him, but does not important to be dealt with on that occasion. It undergo it at the time. If, however, he is again will, doubtless, be fully considered at some future convicted, he has to undergo the sentence for both meeting of the Comite.

crimes. Since the law of conditional conviction was The objects at which the writer aims are, first, adopted in 1891, about 16,000 cases have been dealt to induce all maritime nations to give a legal remedy with annually, and of those seventeen per 1,000 have to the owner of a merchant ship damaged by col- been reconvicted. By this law a first offender eslision with a man-of-war; secondly, to induce them capes both the stigma and the more or less harmful to erect an international tribunal before which all influences of imprisonment. such collisions, whatever the flags of the ships may In Germany, where children under twelve are not be, shall be adjudicated upon. The first part of accounted criminals, they may nevertheless be sent this proposal is, in our opinion, more likely to meet to reformatories, or boarded out by the State in with success than the second part.- Law Times private families. No conviction can, however, be (London).

recorded against them. Even when they acted with

knowledge, and are convicted, the punishment of THE TREATMENT OF THE YOUTHFUL first offenders is lenient. For slight offenses a repCRIMINAL IN EUROPE.

rimand only is given, and the offenders are not

deprived of their civil rights, nor subjected to police HE different countries of Europe hold different supervision. Bad parents may be deprived entirely

ideas as to the age when responsibility begins of the control of their children, who then become and a person can be regarded as knowing the mean the wards of the State. It may be surmised that ing of his actions. In England the law looks upon bad parents are not unwilling thus to free themselves everyone over the age of seven as a responsible from parental responsibility. At any rate, crime is being; and every child beyond that age can be increasing faster than population in Germany. The prosecuted as a criminal. The same age is accepted latter increased twenty per cent between 1888 and in Russia and Portugal. In France and Belgium 1893; but the former increased thirty-two per cent. the age is eight; in Italy and Spain it is nine; In Austria criminals under the age of ten are left Norway, Greece, Austria, Denmark and Holland entirely to the disciplinary control of their parents; decline to prosecute a child under ten, and this is between ten and fourteen their offenses are all the rule also in some of the Swiss cantons.

classed as misdemeanors, and are generally dealt In Belgium, though an offender is called a crimi- with at home; only in special circumstances are the nal from the age of eight, the penal law recognizes offenders put under police control. In the latter two distinct periods, and a criminal under seventeen case the criminal, if under fifteen, may be sent to is treated differently from one above that age. With a reformatory till he is twenty. There are special the young offender, the judge must take the respon- establishments for beggars and vagra

ts; and in sibility of deciding whether or not his moral nature all these the inmates must be taught a trade, besides was sufficiently developed for him to understand receiving moral and religious instruction. In Swethe nature of his act. If the judge thinks he acted den there is an increasing tendency to punish by without the knowledge of right and wrong, he is fine instead of imprisonment. In Denmark whipto acquit him, and, after a reprimand, send him ping is largely resorted to. Boys may be whipped home to his parents; but if he thinks that they, up to the age of fifteen, and in certain cases eigh


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