Argued February 27, 28, 1905. April 10, 1905. Decided governor of the state of Massachusetts, or order," for the sum of $1,611,740.85, and addressed, "P. O. address, c. o. John B. Cot PETITION for writs of prohibition, man. ton, Agent and Att'y, Washington, attorn Mr. Cotton notified the state attorney justices of the Supreme Court of the Dis-general of the delivery of the warrant to trict of Columbia from taking further proceedings or entertaining jurisdiction in an equity cause pending in that court. Rule discharged; petition denied. Statement by Mr. Chief Justice Fuller: By an act of Congress of the United States approved July 27, 1861 (12 Stat. at L. 276, chap. 21), it was provided: "That the Secretary of the Treasury be, and he is hereby, directed, out of any money in the Treasury not otherwise appropriated, to pay to the governor of any state, or to his duly authorized agents, the costs, charges, and expenses properly incurred by such state for enrolling, subsisting, clothing, supplying, arming, equipping, paying, and transporting its troops employed in aiding to suppress the present insurrection against the United States, to be settled upon proper vouchers, to be filed and passed upon by the proper accounting officers of the Treasury." On March 20, 1888, the legislature of Massachusetts passed the following resolu tion: "Resolved, That the governor and council are hereby authorized to employ the agent of the commonwealth for the prosecution of war claims against the United States, to prosecute also the claim of the commonwealth for a refund of the direct tax paid under act of Congress approved August 5th, in the year 1861, and of the interest paid upon war loans during the period from 1861 to 1865, also to fix his compensation, which shall be paid out of any amount received therefrom." On July 12, 1899, the executive council of the commonwealth passed a resolution authorizing the attorney general to employ John B. Cotton to prosecute said claim. Mr. Cotton was a citizen of the District of Columbia. Thereupon a form of contract was prepared and executed by the then governor of Massachusetts, in behalf and under the seal of the commonwealth, and by Cotton; and a duplicate original thereof was deposited with the Secretary of the Treasury of the United States. him, and that he was entitled to a lien upon the warrant for the amount of his fees under his contract; and the governor was informed to the same effect. Mr. Cotton also notified the Secretary of the Treasury that he claimed a lien upon the warrant for compensation in accordance with his contract. Subsequently the governor, Hon. John L. Bates, addressed a communication to the Secretary of the Treasury, in which he demanded that the warrant be canceled, and that a duplicate thereof be forwarded to him as governor of the commonwealth. The Secretary declined to comply with the demand. Later Mr. Cotton filed a bill in the supreme court of the District of Columbia against "Leslie M. Shaw, Secretary of the Treasury, and John L. Bates, governor of the commonwealth of Massachusetts," in which he asserted his right to an attorney's lien upon the papers of his client, the commonwealth of Massachusetts, including the warrant in question, and prayed, among other things, that said Leslie M. Shaw might be restrained and enjoined from canceling the warrant which had been delivered to him, and from drawing or issuing a duplicate thereof to said Bates, and "that the defendant John L. Bates may be restrained and enjoined from asking, demanding, or receiving from the defendant Leslie M. Shaw, or any of his assistants, subordinates, or clerks, a second or duplicate warrant as aforesaid." was not The state of Massachusetts named as a party to this suit, and no relief was prayed against the state. Upon the filing of this bill one of the justices of the supreme court of the District of Columbia entered a rule on the Secretary of the Treasury, requiring him to show cause why the relief prayed against him should not be granted, which was duly served, but has not yet come on for hearing. No proc ess was served upon defendant Bates, who has since ceased to be governor, and he has never appeared in the suit, nor has the commonwealth of Massachusetts intervened therein in any way. The commonwealth of Massachusetts then The prosecution of the claim was at once filed a petition in this court, on leave, for entered upon, and after five years was final-writs of prohibition, mandamus, and certily adjudicated, audited, and passed. On or about May 2, 1904, the Treasury Department issued and delivered to Cotton, as the duly authorized agent of the commonwealth of Massachusetts, war settlement warrant No. 11,343, payable "to the 25 S. C.-33. orari, to restrain the justices of the supreme court of the District of Columbia from taking further proceedings or entertaining jurisdiction in the equity suit. In response to a rule entered on that petition, the chief justice and associate justices Messrs. Frederick H. Nash and Her- Alaska was so incorporated into the United bert Parker for petitioner. Messrs. J. Spalding Flannery, Frederic D. McKenney, William Hitz, and William Frye White for respondents. Mr. Chief Justice Fuller delivered the opinion of the court: States by the treaty under which it was acquired, and by such subsequent congressional legislation as the act of July 20, 1868, chap. 186, § 107 (15 Stat. at L. 167, U. S. Comp. Stat. 1901, p. 2277), concerning internal revenue taxation, and the act of July 27, 1868, chap. 273 (15 Stat. at L. 240), extending the laws of the United States relating to customs, commerce, and navigation over Alaska and establishing a collection district therein, as to render repugnant to U. S. Const. 6th Amend. the provision of the act of June 6, 1900, § 171 (31 Stat. at L. 358, chap. 786), that in trials for misdemeanors in Alaska six jurors shall constitute a legal jury. This court has no original jurisdiction over this controversy, in any view, because it is not a controversy between a state and a citizen of another state. Hepburn v. Ellzey, 2 Cranch, 445, 2 L. ed. 332; Hooe v. Jamieson, 166 U. S. 395, 41 L. ed. 1049, 17 Sup. Ct. Rep. 596. And it has not appellate jurisdiction, because, since the passage of the act of February 9, 1893 (27 Stat. at Argued and submitted November 4, 1904. L. 434, chap. 74), establishing the court of appeals for the District of Columbia, this court, generally speaking, and not including cases cases arising under the bankruptcy law (Audubon v. Shufeldt, 181 U. S. 575, 45 L. ed. 1009, 21 Sup. Ct. Rep. 735), cannot review the judgments and decrees of the supreme court of the District, directly by appeal or writ of error. By 716 of the Revised Statutes, U. S. Comp. Stat. 1901, p. 580, this court and the circuit and the district courts "have power to issue all writs not specially provided for by statute, which may be necessary for the exercise of their respective jurisdictions, and agreeable to the usages and principles of law." By § 688, U. S. Comp. Stat. 1901, p. 565, prohibition may issue "to the district courts when proceeding as courts of admiralty and maritime jurisdiction," but there is no similar provision in respect of other courts. And it has been repeatedly held, as to the circuit courts, that they have no power, under § 716, to issue writs of prohibition and mandamus, except when necessary in the exercise of their existing jurisdiction. Bath County v. Amy, 13 Wall. 248, 20 L. ed. 541; M'Clung v. Silliman, 6 Wheat. 601, 5 L. ed. 341. This is equally true of this court; that is to say, that in cases over which we possess neither original nor appellate jurisdiction we cannot grant prohibition or mandamus or certiorari as ancillary thereto. Rule discharged; petition denied. [No. 51.] Decided April 10, 1905. IN ERROR to the District Court of the United States for the District of Alaska to review a conviction of a misdemeanor by a jury of six persons. Reversed and remanded, with directions to set the verdict aside and grant a new trial. The facts are stated in the opinion. Mr. Justice White delivered the opinion of the court: The plaintiff in error was indicted for violating § 127 of the Alaska Code, prohibiting the keeping of a disreputable house, and punishing the offense by a fine or imprisonment in the county jail. As stated in the bill of exceptions, when the case was called the court announced "that the cause would be tried before a jury composed of six jurors," in accordance with § 171 of the Code for Alaska adopted by Congress, wherein, among other things, it was provided as follows (31 Stat. at L. 358, chap. 786): "That hereafter in trials for misdemeanors six persons shall constitute a legal jury." To this announcement by the court an exception was duly preserved. A jury of six persons was then impaneled, when the objection was renewed and a demand made for a common-law jury, which was refused, and an exception was again taken. To a verdict and judgment of conviction | United States as an integral part thereof, this writ is prosecuted directly to this court, reliance for a reversal being had on the violation of the Constitution alleged to have resulted from the trial of the case by a jury of six persons, and upon other errors of law which, it is asserted, the court committed in the course of the trial. At the threshold of the case lies the constitutional question whether Congress had power to deprive one accused in Alaska of a misdemeanor of trial by a common-law jury; that is to say, whether the provision of the act of Congress in question was repugnant to the 6th Amendment to the Constitution of the United States. as we have said, was sustained upon the reasoning expounded in the opinion of three, if not of four, of the judges who concurred in the judgment in Downes v. Bidwell, that reasoning being in effect adopted in the Dorr Case as the basis of the ruling there made, the court saying (p. 143, 195 U. S., p. 110, 24 Sup. Ct. Rep., 49 L. ed. 128): "Until Congress shall see fit to incorporate territory ceded by treaty into the United States, we regard it as settled by that decision [Downes v. Bidwell] that the territory is to be governed under the power existing in Congress to make laws for such territories, and subject to such constitutional restrictions upon the powers of that body as are applicable to the situation." And in view of the status of the Philip At the bar the government did not deny that offenses of the character of the one here prosecuted could only be tried by a common-law jury, if the 6th Amendment gov-pine Islands it was decided that the 6th erned. The government, moreover, did not dispute the obvious and fundamental truth that the Constitution of the United States is dominant where applicable. The validity of the provision in question is, therefore, sought to be sustained upon the proposition that the 6th Amendment to the Constitution did not apply to Congress in legislating for Alaska. And this rests upon two contentions, which we proceed separately to consider. Amendment was not applicable to those islands, and therefore Congress, when it legislated concerning them, was not controlled by the provisions of that amendment. It would serve no useful purpose to re-express the reasons supporting this conclusion, and we content ourselves with quoting the summing up made by the court in the opinion in the Dorr Case, as follows (p. 149, 195 U. S., p. 813, 24 Sup. Ct. Rep., 49 L. ed. 128): "We conclude that the power to govern territory, implied in the right to acquire 1st. Alaska was not incorporated into the United States, and therefore the 6th Amendment did not control Congress in legislat-it, and given to Congress in the Constituing for Alaska. If the premise, that is, the status of Alaska, be conceded, the conclusion deduced from it is established by the previous rulings of this court. In Dorr v. United States, 195 U. S. 138, 24 Sup. Ct. Rep. 808, 49 L. ed. 128, the question was whether the 6th Amendment was controlling upon Congress in legislating for the Philippine Islands. Applying the principles which caused a majority of the judges who concurred in Downes v. Bidwell, 182 U. S. 244, 45 L. ed. 1088, 21 Sup. Ct. Rep. 770, to think that the uniformity clause of the Constitution was inapplicable to Porto Rico, and following the ruling announced in Hawaii v. Mankichi, 190 U. S. 197, 47 L. ed. 1016, 23 Sup. Ct. Rep. 787, it was decided that, whilst by the treaty with Spain the Philippine Islands had come under the sovereignty of the United States and were subject to its control as a dependency or possession, those islands had not been incorporated into the United States as a part thereof, and therefore Congress, in legislating concerning them, was subject only to the provisions of the Constitution applicable to territory occupying that relation. The power to acquire territory without incorporating it into the tion in article 4, § 3, to whatever other limitations it may be subject, the extent of which must be decided as questions arise, does not require that body to enact for ceded territory, not made a part of the United States by congressional action, a system of laws which shall include the right of trial by jury, and that the Constitution does not, without legislation and of its own force, carry such right to territory so situated." We are brought, then, to determine whether Alaska has been incorporated into the United States as a part thereof, or is simply held, as the Philippine Islands are held, under the sovereignty of the United States as a possession or dependency. Concerning the test to be applied to determine whether in a particular case acquired territory has been incorporated into and forms a part of the United States, we do not deem it necessary to review the general subject, again contenting ourselves by quoting a brief passage from the opinion in Dorr v. United States, summing up the reasons which controlled in determining that the Philippine Islands were not incorporated, viz. (p. 143, 195 U. S., p. 810, 24 Sup. Ct. Rep., 49 L. ed. 128): "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 temporary civil government (32 Stat. at L. 691, chap. 1369), there is express provision that § 1891 of the Revised Statutes of 1878 shall not apply to the Philippine Islands." This brings us to consider the treaty by which Alaska was acquired, and the action of Congress concerning that acquisition, for the purpose of ascertaining whether, within the criteria referred to in Downes v. Bidwell and adopted and applied in Dorr v. United States, Alaska was incorporated into the United States. The treaty concerning Alaska, instead of exhibiting, as did the treaty respecting the Philippine Islands, the determination to reserve the question of the status of the acquired territory for ulterior action by Congress, manifested a contrary intention, since it is therein expressly declared, in article 3, that: "The inhabitants of the ceded territory shall be admitted to the enjoyment of all the rights, advantages, and immunities of citizens of the United States; and shall be maintained and protected in the free enjoyment of their liberty, property and religion." [15 Stat. at L. 542.] This declaration, although somewhat changed in phraseology, is the equivalent, as pointed out in Downes v. Bidwell, of the formula, employed from the beginning to express the purpose to incorporate acquired territory into the United States, especially in the absence of other provisions showing an intention to the contrary. And it was doubtless this fact conjoined with the subsequent legislation of Congress which led to the following statement concerning Alaska made in the opinion of three, if not four, of the judges who concurred in the judgment of affirmance in Downes v. Bidwell (p. 335, L. ed. p. 1125, Sup. Ct. Rep. p. 805): "Without referring in detail to the acquisition from Russia of Alaska, it suffices to say that that treaty also contained provisions for incorporation, and was acted upon exactly in accord with the practical construction applied in the case of the acquisition from Mexico, as just stated." Presumably it was also a consideration of the character of the rights conferred by the treaty by which Alaska was acquired, and the legislation of Congress concerning that territory, to which we shall hereafter refer, which caused Mr. Justice Gray, in his concurring opinion in Downes v. Bidwell, to say (p. 345, L. ed. p. 1128, Sup. Ct. Rep. p. 809): "The cases now before the court do not touch the authority of the United States over the territories, in the strict and technical sense, being those which lie within the United States, as bounded by the Atlantic and Pacific Oceans, the Dominion of Canada, and the Republic of Mexico, and the territories of Alaska and Hawaii, but they relate to territory in the broader sense, acquired by the United States by war with a foreign state.” That Congress, shortly following the adoption of the treaty with Russia, clearly contemplated the incorporation of Alaska into the United States as a part thereof, we think plainly results from the act of July 20, 1868, concerning internal revenue taxation, chap. 186, § 107 (15 Stat. at L. 167, U. S. Comp. Stat. 1901, p. 2277), and the act of July 27, 1868, chap. 273, extending the laws of the United States relating to customs, commerce, and navigation over Alaska, and establishing a collection district therein. 15 Stat. at L. 240. And this is fortified by subsequent action of Congress, which it is unnecessary to refer to. Indeed, both before and since the decision in Downes v. Bidwell the status of Alaska as an incorporated territory was and has been recognized by the action and decisions of this court. By the 6th section of the judiciary act of March 3, 1891 (26 Stat. at L. 826, chap. 517, U. S. Comp. Stat. 1901, pp. 549, 550), it was made the duty of this court to assign the several territories of the United States to particular circuits; and in execution of this law this court, by an order promulgated May 11, 1891, assigned the territory of Alaska to the ninth judicial circuit. The Coquitlam v. United States, 163 U. S. 346, 41 L. ed. 184, 16 Sup. Ct. Rep. 1117. That case was a suit in admiralty, brought by the United States in the district court of Alaska for the forfeiture of the steamer Coquitlam, because of a violation of the revenue laws of the United States. From a decree rendered in favor of the United States an appeal was prosecuted to the circuit court of appeals for the ninth circuit. The United States It follows, then, from the text of the treaty by which Alaska was acquired, from the action of Congress thereunder, and the reiterated decisions of this court, that the proposition that Alaska is not incorporated into and a part of the United States is devoid of merit, and therefore the doctrine settled as to unincorporated territory is inapposite and lends no support to the contention that Congress in legislating for Alaska had authority to violate the express commands of the 6th Amendment. challenged the jurisdiction of the circuit | exerted its authority as a local legislature court of appeals upon the grounds: (1) for Alaska. That the district court of Alaska was not a district court within the meaning of the 6th section of the judiciary act of 1891, and was not a district court belonging to the ninth circuit; (2) that the district court of Alaska was not the supreme court of a territory within the meaning of the order of this court. The circuit court of appeals certified the question of jurisdiction. After fully reviewing the legislation of Congress relating to Alaska, and stating the general appellate power of the circuit courts of appeal over judgments and decrees of the district and circuit courts, it was decided that under the authority granted to the circuit courts of appeal by the 15th section of the judiciary act of March 3, 1891, to review judgments of the supreme court of any territory assigned to such circuit by this court, the circuit court of appeals of the ninth circuit possessed appellate jurisdiction over the cause. In the course of the opinion it was declared (p. 352, L. ed. p. 186, Sup. Ct. Rep. p. 1119): "Alaska is one of the territories of the United States. It was so designated in that order [referring to the order of this court assigning to the ninth circuit], and has always been so regarded. And the court established by the act of 1884 is the court of last resort within the limits of that territory. It is, therefore, in every substantial sense, the supreme court of that territory." In Binns v. United States, 194 U. S. 486, 48 L. ed. 1087, 24 Sup. Ct. Rep. 816, the question was this: The Penal Code for Alaska imposed certain license taxes. The plaintiff in error was convicted for not paying such a tax, and the case was brought to this court on the contention that the act of Congress levying the tax was repugnant to the clause of the Constitution requiring uniformity throughout the United States, as licenses of the character complained of were imposed only in Alaska. After referring to the statements concerning Alaska contained in the concurring opinions in Downes v. Bidwell, the one written by Mr. Justice Gray and the other by Mr. Justice White, and after approvingly citing the passage from the Coquitlam Case above referred to, the court declared it to be settled that Alaska had been undoubtedly incorporated into the United States, and hence conceded that the license complained of was invalid if levied by Congress under the general grant in the Constitution of the power of taxation. The legislation in question was, however, sustained on the exceptional ground that Congress had therein merely This brings us to the second proposition, which is— 2d. That even if Alaska was incorporated into the United States, as it was not an organized territory, therefore the provisions of the 6th Amendment were not controlling on Congress when legislating for Alaska. We do not stop to demonstrate from original considerations the unsoundness of this contention and its irreconcilable conflict with the essential principles upon which our constitutional system of government rests. Nor do we think it is required to point out the inconsistency which would arise between various provisions of the Constitution if the proposition was admitted, or the extreme extension on the one hand, and the undue limitation on the other, of the powers of Congress which would be occasioned by conceding it. This is said, because, in our opinion, the unsoundness of the proposition is conclusively established by a long line of decisions. Webster v. Reid, 11 How. 437, 13 L. ed. 761; Reynolds v. United States, 98 U. S. 154, 25 L. ed. 246; Callan v. Wilson, 127 U. S. 540, 3 L. ed. 223, 8 Sup. Ct. Rep. 1301; American Pub. Co. v. Fisher, 166 U. S. 464, 41 L. ed. 1079, 17 Sup. Ct. Rep. 618; Springville v. Thomas, 166 U. S. 707, 41 L. ed. 1172, 17 Sup. Ct. Rep. 717; Thompson v. Utah, 170 U. S. 345, 42 L. ed. 1064, 18 Sup. Ct. Rep. 620; Capital Traction Co. v. Hof, 174 U. S. 1, 43 L. ed. 873, 19 Sup. Ct. Rep. 580; Black v. Jackson, 177 U. S. 349, 44 L. ed. 801, 20 Sup. Ct. Rep. 648. The argument by which the decisive force of the cases just cited is sought to be escaped is that, as when the cases were decided there was legislation of Congress extending the Constitution to the District of Columbia or to the particular territory to which a case may have related, therefore the decisions must be taken to have proceeded alone upon the statutes, and not upon the inherent application of the provisions of the 5th, 6th, and 7th Amendments to the District of Columbia or to an incorporated territory. And, upon the assumption that the cases are distinguishable from the pres |