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grand jury and trial by petit jury, also did not apply. The facts and questions of law involved in this case were these. The Joint Resolution of Congress of July 7, 1898, had provided for the annexation of the Hawaiian Islands "as a part of the territory of the United States, and subject to the sovereign dominion thereof." The Resolution, indeed, expressly declared that "The municipal legislation of the Hawaiian Islands not inconsistent with this Joint Resolution, nor contrary to the Constitution of the United States, nor to any existing treaty of the United States, shall remain in force until the Congress of the United States shall otherwise determine." After the annexation to the United States, Congress not having determined otherwise, the defendant in error, Mankichi, was tried for and convicted of manslaughter according to the usual course of procedure in force in the Republic of Hawaii prior to July 7, 1898, which course of procedure did not require the indictment to be found by a grand jury, and which permitted a less number than the entire twelve of the petit jury to convict. An application for a writ of habeas corpus having been made by Mankichi upon the ground that, according to the Constitution of the United States, no one might be tried for manslaughter except upon an indictment or presentment found by a grand jury, nor convicted except by a unanimous petit jury, and the case having been appealed to the Supreme Court of the United States, that tribunal was called upon to determine: first, whether it was the intention and the necessary effect of the annexing Joint Resolution to make these constitutional provisions immediately applicable to the islands; and secondly, if it did not, whether it lay within the power of Congress or of the authorities of Hawaii to deny to the accused the rights in question. Both of these questions the majority of the court, five justices, answered in the affirmative.

Here, however, as in Downes v. Bidwell, the justices constituting the majority did not agree in their reasoning. Justice Brown, in his opinion, admitting that a literal interpretation of the Resolution would support Mankichi's claim, but arguing ab inconvenienti, asserts that it could not have been the intention of

Congress to interfere with the existing practice, when such interference would result in imperilling the peace and good order of the islands." "Of course under the Newlands resolution," he continues, "any new legislation must conform to the Constitution of the United States; but how far the exceptions to the existing municipal legislation were intended to abolish existing laws must depend somewhat upon circumstances. Where the immediate application of the Constitution required no new legislation to take the place of that which the Constitution abolished, it may be well held to have taken immediate effect; but where the application of a procedure hitherto well known and acquiesced in left nothing to take its place, without new legislation, the result might be so disastrous that we might well say that it could not have been within the contemplation of Congress. In all probability the contingency which has actually arisen occurred to no one at the time. If it had, and its consequences were foreseen, it is incredible that Congress should not have provided against it. It is not intended here to decide that the words 'nor contrary to the Constitution of the United States' are meaningless. Clearly they would be operative upon any municipal legislation thereafter adopted, and upon any proceedings thereafter had, when the application of the Constitution would not result in the destruction of existing provisions conducive to the peace and good order of the community. Therefore we should answer without hesitation in the negative the question put by counsel for the petitioner in their brief: 'Would municipal statutes of Hawaii, allowing a conviction of treason on circumstantial evidence, or on the testimony of one witness, depriving a person of liberty by the will of the legislature and without process or confiscating private property for public use without compensation, remain in force after an annexation of the territory to the United States, which was conditioned upon the extinction of all legislation contrary to the Constitution? We would even go farther, and say that most, if not all, the privileges and immunities contained in the Bill of Rights of the Constitution were intended to apply from the moment of

annexation; but we place our decision of this case upon the ground that the two rights alleged to be violated in this case are not fundamental in their nature, but concern merely a method of procedure which sixty years of practice had shown to be suited to the conditions of the islands, and well calculated to conserve the rights of their citizens to their lives, their property, and their well being."

In a concurring opinion Justices White and McKenna base their conclusion on the doctrine that by the annexing Resolution Congress had not intended to incorporate the islands eo instanti into the United States. With regard to the provision that the municipal legislation of Hawaii not contrary to the Constitution of the United States should remain in force, they say: "Now, in so far as the Constitution is concerned, the clause subjecting the existing legislation which was provisionally continued to the control of the Constitution, clearly referred only to the provisions of the Constitution which were applicable, and not to those which were inapplicable. In other words, having, by the resolution itself, created a condition of things absolutely incompatible with immediate incorporation, Congress, mindful that the Constitution was the supreme law, and that its applicable provisions were operative at all times, everywhere, and upon every condition and persons, declared that nothing in the Joint Resolution continuing the customs legislation and local law should be considered as perpetuating such laws, where they were inconsistent with those fundamental provisions of the Constitution which were, by their own force, applicable to the territory with which Congress was dealing."

Chief Justice Fuller and Justices Brewer, Peckham, and Harlan dissented. The first three of these, after adverting to the impropriety of an argument ab inconvenienti, content themselves simply with the statement that, as a matter of fact, the provision of the resolution of annexation which has been quoted above, validating all existing legislation, except such as might be contrary to the Constitution of the United States, should be construed as having extended over the islands the Fifth and Sixth Amend

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ments to that instrument. Justice Harlan, however, in his dis senting 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

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A second especial fact to be noted regarding the position of the four justices concurring with Brown in the judgment ren12 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 exist ence, 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 cir cumstances 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 Derr v. United States,1 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.

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