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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 is a "sacred and inviolate palladium" of liberty; and decisions of our courts without number have employed similar language in describing it.13

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 circumstances 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,11 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 1878 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.

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expected from his position in Downes v. Bidwell, held that the general applicability of the Constitution depended not upon the fact of incorporation, but upon whether Congress had by some expression of its will clearly shown that it intended that the particular provision of the Constitution should apply.

Justice Harlan in a concurring opinion again stated his doctrine that the Constitution in all its provisions extends ex proprio vigore over all Territories immediately upon annexation to the United States. I cannot agree," he said, "that the supremacy of the Constitution depends upon the will of Congress."

$ 184. Other Insular Cases.

In Binns v. United States17 it was held with reference to license fees imposed on certain kinds of luxuries, that, though Alaska was an incorporated Territory and, therefore, within the scope of the provision of the Constitution that excises shall be uniform throughout the United States, the tax in question was valid as an act passed by Congress acting as a local legislature, and not as a general legislature exercising a power under the clause1s empowering it to levy and collect taxes to pay the debts and provide for the common defense and general welfare of the United States.

In Kepner v. United States,' decided in 1904, it was held that by an act of Congress of 1902, the immunity from double jeopardy for crime as provided in the Constitution had been extended to the Philippines. The point urged by the United States in this case that the question as to what constitutes double jeopardy should be settled according to the local Spanish civil law, will be considered in another chapter of this work in which the Constitutional provision regarding immunity from a second jeopardy for the same criminal offense will be specially considered.20

17 194 U. S. 486; 24 Sup. Ct. Rep. 816; 48 L. ed. 1087.

18 Art. 1, Sec. VIII, Cl. 1.

19 195 U. S. 100; 24 Sup. Ct. Rep. 797; 49 L. ed. 114. 20 See section 423.

In Goetze v. United States and Crossman v. United States21 the doctrine of De Lima v. Bidewell was followed with reference to taxes levied on goods imported into the United States from Porto Rico after the taking effect of the Foraker Act establishing civil government in that island.

22

In the so-called second Dooley case it was held that the tax collected under the Foraker Act on goods imported into Porto Rico from the United States was not a tax on goods exported from a State and, therefore, forbidden by the Constitution. The tax in question, it was held, was in essential character rather a local Porto Rican tax upon goods coming into that country, than an export tax on goods leaving the United States. As Justice Brown in his opinion said: "There can be no doubt whatever that if the legislative assembly of Porto Rico should, with the consent of Congress, lay a tax upon goods arriving from ports of the United States, such tax, if legally imposed, would be a duty upon imports to Porto Rico, and not upon exports from the United States; and we think the same result must follow if the duty be laid by Congress in the interest and for the benefit of Porto Rico. The truth is that, in imposing the duty as a temporary expedient, with a proviso that it may be abolished by the legislative assembly of Porto Rico, at its will, Congress thereby shows that it is undertaking to legislate for the island for the time being and only until the local government is put into operation. The mere fact that the duty passes through the hands of the revenue officers of the United States is immaterial, in view of the requirement that it shall not be covered into the general fund of the Treasury, but be held as a separate fund for the government and benefit of Porto Rico. It is not intended

by this opinion to intimate that Congress may lay an export tax upon merchandise carried from one State to another. While this does not seem to be forbidden by the express words of the Constitution, it would be extremely difficult, if not impossible, to lay such a tax without a violation of the first paragraph of Art. 1,

21 182 U. S. 221; 21 Sup. Ct. Rep. 742; 45 L. ed. 1065.

22 Dooley v. United States, 183 U. S. 151; 22 Sup. Ct. Rep. 62; 43 L. ed.

128.

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