The treaty with Russia concerning Alaska, instead of exhibiting,
as did the treaty with Spain 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 to admit the inhabitants of the ceded territory to the
enjoyment of citizenship, and expressed the purpose to incorporate
the territory into the United States.
Under the treaty with Russia ceding Alaska and the subsequent
legislation of Congress, Alaska has been incorporated into the
United States, and the Constitution is applicable to that
territory, and under the Fifth and Sixth Amendments, Congress
cannot deprive one there accused of a misdemeanor of trial by a
common law jury, and that § 171 of the Alaska Code, 31 Stat. 358,
insofar as it provides that in trials for misdemeanors six persons
shall constitute a legal jury, is unconstitutional and void.
The facts are stated in the opinion.
Page 197 U. S. 518
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
As stated in the bill of exceptions, when the case was
Page 197 U. S. 519
the court announced "that the cause would be tried before a jury
composed of six jurors," in accordance with section 171 of the Code
for Alaska adopted by Congress, wherein, among other things, it was
provided as follows (31 Stat. 321, 359): "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 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
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
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 Sixth Amendment governed. 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 Sixth Amendment to the
Constitution did not apply to Congress in legislating for Alaska.
And this rests upon two contentions, which we proceed separately to
1. Alaska was not incorporated into the United States, and
therefore the Sixth Amendment did not control Congress in
legislating for Alaska.
Page 197 U. S. 520
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
question was whether the Sixth 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
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
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 United States as an
integral part thereof, 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
the basis of the ruling there made, the Court saying (p.
195 U. S.
"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 Philippine Islands, it was
decided that the Sixth 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 reexpress the reasons supporting
this conclusion, and we content ourselves with quoting
Page 197 U. S. 521
the summing up made by the court in the opinion in the
case, as follows (p. 195 U. S.
"We conclude that the power to govern territory, implied in the
right to acquire it, and given to Congress in the Constitution in
Article IV, § 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.,
195 U. S.
"If the treatymaking 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 IX) '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
Page 197 U. S. 522
into the United States, but in the act of 1902, providing for
temporary civil government, 32 Stat. 691, there is express
provision that section eighteen hundred and ninety-one of the
Revised Statutes of 1878 shall not apply to the Philippine
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
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
This declaration, although somewhat changed in phraseology, is
the equivalent, as pointed out in Downes v. Bidwell,
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. 182 U. S.
"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. "
Page 197 U. S. 523
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.
182 U. S.
"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, c. 186,
section 107, 15 Stat. 125, 167, and the Act of July 27, 1868, c.
273, extending the laws of the United States relating to customs,
commerce, and navigation over Alaska, and establishing a collection
district therein. 15 Stat. 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.
the status of Alaska as an incorporated territory was
and has been recognized by the action and decisions of this Court.
By the sixth section of the Judiciary Act of March 3, 1891, 26
Stat. 826, 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. Steamer Coquitlam v. United States, 163 U.
. 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
Page 197 U. S. 524
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 challenged the
jurisdiction of the circuit court of appeals upon the grounds: (1)
that the District Court of Alaska was not a district court within
the meaning of the sixth 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 fifteenth 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. 163 U. S.
"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.
, 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
Page 197 U. S. 525
Alaska contained in the concurring opinions in Downes v.
the one written by Mr. Justice Gray and the other by
MR. JUSTICE WHITE, and after approvingly citing the passage from
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 exerted its authority as a local legislature for
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 Sixth Amendment.
This brings us to the second proposition, which is --
2. 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.
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.
Page 197 U. S. 526
11 How. 437; Reynolds v. United States, 98 U.
; Callan v. Wilson, 127 U.
; American Publishing Co. v. Fisher,
166 U. S. 464
Springville v. Thomas, 166 U. S. 707
Thompson v. Utah, 170 U. S. 345
Capital Traction Co. v. Hof, 174 U. S.
; Black v. Jackson, 177 U.
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 Fifth, Sixth and Seventh
Amendments to the District of Columbia or to an incorporated
territory. And, upon the assumption that the cases are
distinguishable from the present one upon the basis just stated,
the argument proceeds to insist that the Sixth Amendment does not
apply to the Territory of Alaska, because section 1891 of the
Revised Statutes only extends the Constitution to the organized
territories, in which, it is urged, Alaska is not embraced.
Whilst the premise as to the existence of legislation declaring
the extension of the Constitution to the territories with which the
cases were respectively concerned is well founded, the conclusion
drawn from that fact is not justified. 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 or acts of Congress purporting to extend the Constitution
were considered as declaratory 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,
Page 197 U. S. 527
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 self-operative 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.
; Black v. Jackson, 177 U.
And this result of the cases will be made clear by a brief
reference to some of the opinions. In Thompson v. Utah,
considering a law of the State of Utah, which provided that a jury
in a criminal cause should consist of only eight persons, the
statute was held to be ex post facto
and void in its
application to felonies committed before the territory became a
"because, in respect of such crimes, the Constitution of the
United States gave the accused at the time of the commission of his
offense the right to be tried by a jury of twelve persons, and made
it impossible to deprive him of his liberty except by the unanimous
verdict of such a jury."
In Springville v. Thomas,
it was contended that the
Territorial Legislature of Utah was empowered by Congress, in the
organic act of the territory, to dispense with unanimity of the
jurors in rendering a verdict in a civil case. The Court said (p.
166 U. S.
"In our opinion, the Seventh Amendment secured unanimity in
finding a verdict as an essential feature of trial by jury in
common law cases, and the act of Congress could not impart the
power to change the constitutional rule, and could not be treated
as attempting to do so."
Again, in Capital Traction Co. v. Hof, 174 U. S.
, no reference whatever being made to the statute of
February 21, 1871, extending the provisions of the Constitution to
the District of Columbia (15 Stat. 419), it was declared (p.
174 U. S. 5
"It is beyond doubt at the present day that the provisions of
the Constitution of the United States securing the right of trial
by jury, whether in civil or criminal cases, are applicable to the
District of Columbia."
And in Black v. Jackson, 177 U.
, speaking of a law of the Territory of Oklahoma,
it was said (p. 177 U. S.
Page 197 U. S. 528
"And it also fails to recognize the provisions of the Seventh
Amendment securing the right of trial by jury in 'suits at common
law' where the value in controversy exceeds twenty dollars. That
amendment, so far as it secures the right of trial by jury, applies
to judicial proceedings in the territories of the United States.
11 How. 437, 52 U. S.
; American Publishing Co. v. Fisher,
166 U. S.
, 166 U. S. 466
Springville v. Thomas, 166 U. S. 707
. So that a court
of a territory authorized, as Oklahoma was, to pass laws not
inconsistent with the Constitution of the United States, 26 Stat.
81, 84, c. 182, could not proceed in a 'common law' action as if it
were a suit in equity, and determine by mandatory injunction rights
for the protection or enforcement of which there was a plain and
adequate remedy at law according to the established distinctions
between law and equity."
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. Having
disposed of the constitutional question, we deem it unnecessary to
review the other alleged errors.
The judgment must therefore be reversed, and the case remanded,
with directions to set aside the verdict and grant a new trial.
And it is so ordered.
MR. JUSTICE HARLAN, concurring:
My views in reference to what are called the Insular Questions
have been fully expressed in the opinions filed by me in Downes
v. Bidwell, 182 U. S. 244
182 U. S. 375
Hawaii v. Mankichi, 190 U. S. 197
190 U. S. 226
Dorr v. United States, 195 U. S. 138
195 U. S. 154
I adhere to what has been said in those opinions, and do not
Page 197 U. S. 529
care to restate here the grounds upon which I proceeded in
The particular question arising in the present case is whether
that section of the act of Congress of June 6, 1900, c. 786,
relating to Alaska, which provides "that hereafter in trials for
misdemeanors six persons shall constitute a legal jury," is
consistent with the Constitution of the United States. I content
myself in this case with stating only the general reasons for the
conclusion which I have reached on that question.
Immediately upon the ratification in 1867 of the treaty by which
Alaska was acquired from Russia, that territory, as I think, came
under the complete sovereign jurisdiction and authority of the
United States, and, without any formal action on the part of
Congress in recognition or enforcement of the treaty, and whether
Congress wished such a result or not, the inhabitants of that
territory became at once entitled to the benefit of all the
guaranties found in the Constitution of the United States for the
protection of life, liberty, and property.
After such ratification, no person charged with the commission
of a crime against the United States in that territory could be
legally tried therefor otherwise than by what this Court has
adjudged to be the jury of the Constitution.
The constitutional requirement that "the trial of all crimes,
except in cases of impeachment, shall be by jury" means, as this
Court has adjudged, a trial by the historical common law jury of
twelve persons, and applies to all crimes against the United States
committed in any territory, however acquired, over which, for
purposes of government, the United States has sovereign
No tribunal or person can exercise authority involving life or
liberty, in any territory of the United States, organized or
unorganized, except in harmony with the Constitution.
Congress cannot suspend the operation of the Constitution in any
territory after it has come under the sovereign authority of the
United States, nor by any affirmative enactment, or
Page 197 U. S. 530
by mere nonaction, can Congress prevent the Constitution from
being the supreme law for any peoples subject to the jurisdiction
of the United States.
The power conferred upon Congress to make needful rules and
regulations respecting the territories of the United States does
not authorize Congress to make any rule or regulation inconsistent
with the Constitution or violative of any right secured by that
The proposition that a people subject to the full authority of
the United States for purposes of government may, under any
circumstances or for any period of time, long or short, be governed
as Congress pleases to ordain, without regard to the Constitution
is, in my judgment, inconsistent with the whole theory of our
If the Constitution does not become the supreme law in a
territory acquired by treaty, and whose inhabitants are under the
dominion of the United States, until Congress, in some distinct
form, shall have expressed its will to that effect, it would
necessarily follow that, by positive enactment, or simply by
nonaction, Congress, under the theory of "incorporation," and
although a mere creature of the Constitution, could forever
withhold from the inhabitants of such territory the benefit of the
guaranties of life, liberty, and property as set forth in the
Constitution. I cannot assent to any such doctrine. I cannot agree
that the supremacy of the Constitution depends upon the will of
As these are my views upon the underlying questions presented by
the record, I cannot concur in all the reasoning in the opinion of
the Court. But I entirely concur in the judgment holding the act of
Congress in question to be void. I do so not upon the ground that
Alaska had been previously "incorporated" into the United States by
the legislation of Congress, but upon the ground that the right of
the accused to a trial by the jury of the Constitution became
complete immediately upon the acquisition of Alaska by treaty, and
before any legislation upon the subject by Congress -- indeed,
Page 197 U. S. 531
without any power in Congress to add to or impair or destroy
MR. JUSTICE BROWN, concurring:
I am disposed to concur in the conclusion of the Court upon the
ground that, by the treaty of cession with Russia, it was provided
"the inhabitants of the ceded territory . . . shall be admitted
to the enjoyment 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
I am inclined to think, though with some doubt, that those words
include a right to a trial by a jury as understood among us from
the adoption of the Constitution. I certainly should not dissent if
the case were put upon that ground.
The tenor of the opinion, however, is such that I should be
doing an injustice to myself if I failed to express my views upon
the doctrine of incorporation. My position regarding the
applicability of the Constitution to newly acquired territory is
contained in the opinion delivered by me in Downes v.
Bidwell, 182 U. S. 244
is simply that the Constitution does not apply to territories
acquired by treaty until Congress has so declared, and that, in the
meantime, under its power to regulate the territories, it may deal
with them regardless of the Constitution except so far as concerns
the natural rights of their inhabitants to life, liberty, and
A different view, however, was expressed in a concurring opinion
by MR. JUSTICE WHITE, to the effect that, when Congress
"incorporated" territory into the United States, it resulted that,
in governing such territory,
"all the limitations of the Constitution which are applicable to
Congress in exercising this authority necessarily limit its power
on this subject. It follows also that every provision of the
Constitution which is applicable to the territories is also
controlling therein, . . . and the determination of what particular
provision of the Constitution is applicable, generally speaking, in
Page 197 U. S. 532
involves an inquiry into the situation of the territory, and its
relation to the United States."
The question was thus briefly stated: "Had Porto Rico, at the
time of the passage of the act in question, been incorporated into
and become an integral part of the United States?" If it had, the
inference was that the Constitution applied in all its force.
This, however, was not the opinion of the Court; it was
certainly not the opinion of the justice who announced the
conclusion and judgment of the Court; it was wholly disclaimed by
the four dissenting justices, who held that the Constitution
applied the moment the territory was ceded and became the property
of the United States, and that no act of incorporation was
necessary. It was simply the individual opinion of three members of
the Court. The point was not pressed upon our attention in the
briefs or arguments of counsel in that case. It is but faintly
suggested in the briefs in this case. It has never since that time
received the indorsement of this Court, and in my opinion is wholly
unnecessary to the disposition of this case.
My own view is and has been that Congress, in dealing with newly
acquired territory, is unfettered by the Constitution unless it
formally or by implication extends the Constitution to it, and that
it may accept a cession of territory, institute a temporary
government there, as it has done in a large number of instances,
without thereby extending the Constitution over it. In the general
act, Rev.Stat. sec. 1891, Congress did declare that
"the Constitution, and all laws of the United States which are
not locally inapplicable, shall have the same force and effect
within all the organized
territories, and in every
territory hereafter organized, as elsewhere within the United
If the Act of May 17, 1884, providing a civil government for
Alaska, 23 Stat. 24, be regarded as organizing
there, it would follow that such territory at once fell within
Rev.Stat. sec. 1891, and the Constitution was extended to it
without further action. The first article declares that Alaska
"shall constitute a civil and judicial district, the
Page 197 U. S. 533
government of which shall be organized and administered as
hereinafter provided." Had the opinion treated the territory as
organized under this act, I should not have dissented from this
view, since section 1891 would have applied to it.
Congress did undoubtedly provide a permanent civil government
for Alaska by the Act of June 6, 1900, 31 Stat. 321, but it
evidently did not regard the Constitution as extended to it by any
previous act, since it provided in section 171 for trials of
misdemeanors by a jury of six.
There are so many difficulties connected with the applicability
of the Constitution that it has seemed to me that the only true
test was whether Congress intended to apply it or not in the
particular case. When is a territory incorporated so as to make the
Constitution applicable in all its provisions? That some action on
the part of Congress is necessary to extend the Constitution to the
territories was settled in Downes v. Bidwell,
such action be direct, or may it be indirect by way of
incorporation? May Congress, in organizing or incorporating a
territory, restrict the application of the Constitution to it, or
must it give it all? What is an organized, as distinguished from an
incorporated, territory? Does not the acceptance of a cession of
territory and the appointment of a civil governor work an
incorporation of the territory as territory of the United States?
If the acceptance of territory as territory of the United States be
not an incorporation, what language is necessary to effect that
result? Apparently acceptance of the territory is insufficient in
the opinion of the Court in this case, since the result that Alaska
is incorporated into the United States is reached not through the
treaty with Russia or through the establishment of a civil
government there, but from the Act of July 20, 1868, concerning
internal revenue taxation, and the Act of July 27, 1868, extending
the laws of the United States relating to the customs, commerce,
and navigation over Alaska and establishing a collection district
there. Certain other acts are cited, notably the Judiciary Act of
March 3, 1891, making it the duty of this Court to assign
Page 197 U. S. 534
the several territories of the United States to particular
circuits. But no mention is made either of the Act of May 17, 1884,
providing a civil government for Alaska, or the Act of June 6,
1900, making further provision for a civil government and
establishing a complete code of laws. These seem to me the vital
acts upon the status of Alaska; yet they are completely ignored in
the opinion of the Court, and the fact of incorporation is sought
to be established by what seem to me remote inferences from
immaterial statutes. Indeed, I regard the whole theory of the
extension of the Constitution by the incorporation of territory as
a new departure in federal jurisprudence, and that the true answer
to the question whether the Constitution applies to a territory is
to be found in the fact whether Congress has extended the
Constitution to it or not.
That the mere act of incorporating territory into the United
States does not, of its own force, carry the Constitution there,
regardless of the wishes of Congress, is evident from the case of
Hawaii v. Mankichi, 190 U. S. 197
wherein it was held that, notwithstanding the island had been
annexed to the United States "as a part of the territory of the
United States, and subject to the sovereign dominion thereof," yet
it was possible for Congress to declare that
"the municipal legislation of the Hawaiian Islands, not enacted
for the fulfillment of the treaties so extinguished, and 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."
While the government provided by this resolution was temporary
in its character, and a mere continuance of existing laws, the act
itself was as complete an incorporation of the islands as it was
possible for language to make it. The resolution declared that
"said cession" of the Republic of Hawaii
"is accepted, ratified, and confirmed, and that the said
Hawaiian Islands and their dependencies be, and they are hereby,
annexed as a part of the territory of the United States, and
Page 197 U. S. 535
subject to the sovereign dominion thereof."
In view of this language, I do not see how it is possible to
escape the conclusion that there was a plain incorporation by
Congress of these islands, and an extension of sovereignty over
them. Notwithstanding this, however, we held that the conviction of
one who, between the date of the Newlands resolution and the date
of establishing a civil government, had been tried on information
and convicted by a nonunanimous jury, was legal, though not in
compliance with the Fifth and Sixth Amendments to the Constitution,
upon the ground that the Constitution was not formally extended to
them until the territory was organized, June 14, 1900. 31 Stat.
141, sec. 5. This case shows the impossibility of applying the
doctrine of incorporation without an accurate definition of the
term. Hitherto we have been content to divide our territories into
the organized and unorganized, but now we are asked to introduce a
new classification of "incorporated" territories, without
attempting to define what shall be deemed an incorporation. The
word appears to me simply to introduce a new element of confusion,
and to be of no practical value. Rev.Stat. sec. 1891, declaring
that the Constitution shall have force and effect within all the
organized territories and in every territory hereafter organized,
seems to meet the requirements of every case, and to be operative
wherever Congress does not, in the organization, restrict the
application of the Constitution in some particular.
In Dorr v. United States, 195 U.
, the question was presented, as stated by MR.
JUSTICE DAY, whether,
"in the absence of a statute of Congress expressly conferring
the right, trial by jury is a necessary incident of judicial
procedure in the Philippine Islands, where demand for trial by that
method has been made by the accused and denied by the courts
established in the islands."
In discussing the case, it was said that not only has Congress
hitherto refrained from incorporating the Philippine Islands into
the United States, but in the act of 1902, providing for temporary
civil government, 32 Stat. 691, there was an express provision that
Rev.Stat. sec. 1891
Page 197 U. S. 536
should not apply to the Philippine Islands. This is the section
giving force and effect to the Constitution of the United States,
not locally inapplicable, within the organized territories. The
case simply holds that, as Congress did not extend the right of
trial by jury to the Philippine Islands, and had not so
incorporated them as to make the provision apply by implication,
the right did not exist. The cases of Steamer Coquitlam,
163 U. S. 346
Binns v. United States, 194 U. S. 486
too obviously inapplicable to require comment.
I do not dissent from the conclusion of the Court in this case,
but I do dissent from the proposition that Congress may not deal
with territories as it pleases until it has seen fit to extend the
provisions of the Constitution to them, which, once done, in my
view, is irrevocable. I regret that the disputed doctrine of
incorporation should have been made the mainstay of the opinion of
the Court when the case might so easily have been disposed of upon
grounds which would have evoked no utterance of disapproval.