it was held to be valid, regardless of the uniformity clause of the Constitution, because, in the opinion of Mr. Justice Brown, who delivered the judgment, the Constitution does not, by its own force, extend to the possessions of the United States, whether created into territories with a regular form of government, or existing as unorganized possessions. As a qualification of that statement, that ever sane and luminous judge said: "To sustain the judgment in the case under consideration, it by no means becomes necessary to show that none of the articles of the Constitution apply to the island of Porto Rico. There is a clear distinction between such prohibitions as go to the very root of the power of Congress to act at all, irrespective of time or place, and such as are operative only 'throughout the United States' or among the several states. Thus when the Constitution declares that 'no bill of attainder or ex post facto law shall be passed,' and that 'no title of nobility shall be granted by the United States,' it goes to the competency of Congress to pass a bill of that description. Upon the other hand, when the Constitution declares that all duties shall be uniform 'throughout the United States,' it becomes necessary to inquire whether there be any territory over which Congress has jurisdiction which is not a part of the 'United States,' by which term we understand the States whose people united to form the Constitution,and such as have since been admitted to the Union upon an equality with them." Thus it was expressly decided that incorporation into the United States territory acquired by treaty or cession in which there are conditions against the incorporation of the territory until Congress provides therefor, will not take place until in the wisdom of Congress it is deemed that the acquired territory has reached that state where it is proper that it should enter into and form a part of the American family. Until the fiat is given by Congress, no territory can pass from a colonial or territorial

condition into that full statehood which alone confers the right to participate in the national Constitution.

With the foregoing preface clearly in view, it will be easy to explain the principles of that class of cases to which Hawaii v. Mankichi, 190 U. S. 197, belongs. Upon a petition for habeas corpus, the District Court of the United States for the Territory of Hawaii discharged Mankichi, who had been convicted of manslaughter upon an indictment not found by a grand jury and upon a verdict rendered upon the agreement of nine jurors. Following the usual course of procedure in Hawaii, prior to its incorporation as a territory of the United States, the prisoner was tried upon an indictment by the attorney general, resembling an information at common law, and indorsed "a true bill found this 4th day of May, A. D. 1899. A. Perry, first judge of the circuit court,' etc. From the order discharging the prisoner the attorney general of the territory appealed to the Supreme Court of the United States, where it was contended for the prisoner that "It is contrary to the Constitution of the United States that any person should be held to answer for a capital crime unless on a presentment or indictment of a grand jury, and that in a criminal prosecution a conviction should be had by verdict of nine members of the jury." In disallowing that contention, the court held that the then existing criminal procedure of the Hawaiian islands was not superseded by the criminal proceedings by grand and petit juries, as prescribed by Amendments Five and Six to the Constitution of the United States, by the annexation of said islands as a part of the territory of the United States and subject to the sovereign dominion thereof, under the Newlands resolution of July 7, 1898, accepting the cession thereof made by the Republic of Hawaii, and continuing the municipal legislation of such islands not inconsistent with such resolutions, "nor contrary to the Constitution of the United States," until Congress should otherwise determine. In concluding its judgment the Court said:

"Inasmuch as we are of opinion that the status of the islands and the powers of their provisional government were measured by the Newlands Resolution, and the case has been argued upon that theory, we have not deemed it necessary to consider what would have been its position had the important words 'nor contrary to the Constitution of the United States' been omitted, or to reconsider the questions which arose in the Insular Tariff Cases regarding the power of Congress to annex territory without, at the same time, extending the constitution over it."

§ 56. Rassmussen v. U. S.o-Incorporation of Alaska with the United States and the right of trial by a jury of twelve men. Despite the fact that the Sixth instead of the Fifth Amendment was directly involved in this case, it should be considered here because it illustrates in such a vivid way the constitutional results of an actual incorporation of a colony or territory with the parent state. The plaintiff in error was convicted of a misdemeanor by a jury of six men, in accordance with section 171 of the Code of Alaska adopted by Congress, wherein it was provided "That hereafter in trials for misdemeanor six persons shall constitute a legal jury." At the trial a common-law jury of twelve was demanded and refused, and upon an exception to that ruling the case was determined on appeal. The Court said: "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 Sixth Amendment to the Constitution of the United States. . . . The validity of the provision in question is, therefore, sought to be sustained upon the proposition that the Sixth Amendment to the Constitution did not apply to Congress in legislating for Alaska. And this rests upon two conten

9-197 U. S. 516.

1st.

tions, which we proceed separately to consider. Alaska was not incorporated into the United States, and therefore the Sixth Amendment did not control Congress in legislating for Alaska. 2d. That even if Alaska was incorporated into the United States, as it was not an organized territory, therefore the provisions of the Sixth Amendment were not controlling on Congress when legislating for Alaska." In rejecting those contentions, and in reaching the conclusion that by the treaty under which it was acquired, and by the subsequent congressional legislation imposing internal revenue taxation, and extending the laws of the United States as to customs, commerce and navigation over Alaska, and establishing a collection district therein, Alaska was so incorporated into the United States as to render the article of the Code in question (31 Stat. at L. 358, c. 786) repugnant to the Sixth Amendment, the Court said: "Without attempting to examine in detail the opinions in the various cases, in our judgment it clearly results from them that they substantially rested upon the proposition that where territory was a part of the United States, the inhabitants thereof were entitled to the guaranties of the Fifth, Sixth and Seventh Amendments, and that the act of Congress purporting to extend the Constitution were considered as declaring merely of a result which existed independently by the inherent operation of the Constitution. It is true that, in some of the opinions, both the application of the Constitution and the statutory provisions declaring such application were referred to, but in others no reference to such statutes was made, and the cases proceeded upon a line of reasoning leaving room for no other view than that the conclusion of the court was rested upon the selfoperative application of the Constitution. Springville v. Thomas, 166 U. S. 707; Thompson v. Utah, 170 U. S. 343; Capital Traction Co. v. Hof, 174 U. S. 1; Black v. Jackson, 177 U. S. 349. As it conclusively results from the foregoing considerations that the Sixth Amendment to the Constitution was applicable to Alaska, and as, of

course, being applicable, it was controlling upon Congress in legislating for Alaska, it follows that the provision of the act of Congress under consideration, depriving persons accused of a misdemeanor in Alaska of a right to trial by a common-law jury, was repugnant to the Constitution and void."

§ 57. A group of cases involving the extension of due process to the Philippine Islands. Consideration should be given here to a group of cases involving the extension of due process to the inhabitants of the Philippine Islands, residing on territory not incorporated into the United States. In the case of Dorr v. United States, 195 U. S. 138, the court, in reaching the conclusion that the Constitution, of its own force, and without legislation, did not extend the right of trial by jury to the Philippine Islands, ceded by Spain to the United States, and not incorporated by congressional action, said: "As we have had occasion to see in the case of Kepner v. United States, 195 U. S. 100, the President, in his instructions to the Philippine Commission, while impressing the necessity of carrying into the government the guaranties of the Bill of Rights securing those safeguards to life and liberty which are deemed essential to our government, was careful to reserve the right to trial by jury, which was doubtless due to the fact that the civilized portion of the island had a system of jurisprudence founded upon the civil law, and the uncivilized parts of the archipelago were wholly unfitted to exercise the right of trial by jury. The Spanish system, in force in the Philippines, gave the right to the accused to be tried before judges, who acted, in effect, as a court of inquiry, and whose judgments were not final until passed in review before the audiencia, or superior court, with right of final review, and power to grant a new trial for errors of law, in the supreme court at Madrid. To this system the Philippine Commission, in executing the power conferred by the orders of the President, and sanctioned by