In interpreting a statute, the intention of the lawmaking power
will prevail even against the letter of the statute; a thing may be
within the letter of the statute and not within its meaning, and
within its meaning, though not within its letter.
Smythe v.
Fisk, 23 Wall. 374. In inserting in the Resolution
of July 7, 1898, annexing Hawaii, a provision that municipal
legislation not inconsistent with the Constitution of the United
States should remain in force until Congress otherwise determined,
Congress did not intend to impose upon the islands every clause of
the Constitution, and to nullify convictions and verdicts which
might, before the legislature could act, be rendered in accordance
with existing legislation of the islands but not in accordance with
the provisions of the Constitution, nor was such the intention of
Hawaii in surrendering its autonomy.
The conviction of one who, between August 12, 1898, and June 14,
1900, was tried on information and convicted by a jury not
unanimous, in accordance
Page 190 U. S. 198
with legislation of the Republic of Hawaii existing at the time
of the annexation, is legal notwithstanding it is not in compliance
with the provisions of the Fifth and Sixth Amendments of the
Constitution.
This was a petition by Mankichi for a writ of habeas corpus to
obtain his release from the Oahu convict prison, where he is
confined upon conviction for manslaughter, in alleged violation of
the Constitution, in that he was tried upon an indictment not found
by a grand jury, and convicted by the verdict of nine out of twelve
jurors, the other three dissenting from the verdict.
Following the usual course of procedure in the Republic of
Hawaii prior to its incorporation as a territory of the United
States, the prisoner was tried upon an indictment much in the form
of an information at common law, by the Attorney General, and
indorsed "a true bill, found this fourth day of May, A.D. 1899. A.
Perry, first judge of the circuit court," etc.
From an order of the United States District Court discharging
the prisoner, the Attorney General of the territory appealed to
this Court.
Page 190 U. S. 209
MR. JUSTICE BROWN delivered the opinion of the Court.
The question involved in this case is an extremely simple one.
The difficulty is in fixing upon the principles applicable to its
solution. By a joint resolution adopted by Congress, July 7, 1898,
30 Stat. 750, known as the Newlands Resolution, and with the
consent of the Republic of Hawaii, signified in the manner provided
in its Constitution, the Hawaiian islands and their dependencies
were annexed "as a part of the Territory of the United States, and
subject to the sovereign dominion thereof," with the following
condition:
"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."
The material parts of this resolution are printed in the margin.
* Though the
resolution was passed July 7, the
Page 190 U. S. 210
formal transfer was not made until August 12, when at noon of
that day, the American flag was raised over the government house,
and the islands ceded with appropriate ceremonies to a
representative of the United States. Under the conditions named in
this resolution, the Hawaiian Islands lands remained under
Page 190 U. S. 211
the name of the "Republic of Hawaii" until June 14, 1900, when
they were formally incorporated by act of Congress under the name
of the "Territory of Hawaii." 31 Stat. 141. By this act, the
Constitution was formally extended to these islands, sec. 5, and
special provisions made for empaneling grand juries and for
unanimous verdicts of petty juries. Sec. 83.
The question is whether, in continuing the municipal legislation
of the islands not contrary to the Constitution of the United
States, it was intended to abolish at once the criminal procedure
theretofore in force upon the islands and to substitute
immediately, and without new legislation, the common law
proceedings by grand and petit jury which had been held applicable
to other organized territories,
Webster v.
Reid, 11 How. 437;
American Publishing Co. v.
Fisher, 166 U. S. 464,;
Thompson v. Utah, 170 U. S. 343,
though we have also held that the states, when once admitted as
such, may dispense with grand juries,
Hurtado v.
California, 110 U. S. 516, and
perhaps also allow verdicts to be rendered by less than a unanimous
vote.
American Publishing Co. v. Fisher, 166 U.
S. 464;
Thompson v. Utah, 170 U.
S. 343.
In fixing upon the proper construction to be given to this
resolution, it is important to bear in mind the history and
condition of the islands prior to their annexation by Congress.
Since 1847, they had enjoyed the blessings of a civilized
government and a system of jurisprudence modeled largely upon the
common law of England and the United States. Though lying in the
tropical zone, the salubrity of their climate and the fertility of
their soil had attracted thither large numbers of people from
Europe and America, who brought with them political ideas and
traditions which, about sixty years ago, found expression in the
adoption of a code of laws appropriate to their new conditions.
Churches were founded, schools opened, courts of justice
established, and civil and criminal laws administered upon
substantially the same principles which prevailed in the two
countries from which most of the immigrants had come. Taking the
lead, however, in a change which has since been adopted by several
of the United States, no provision was made for grand juries, and
criminals were prosecuted
Page 190 U. S. 212
upon indictments found by judges. By a law passed in 1847, the
number of a jury was fixed at twelve, but a verdict might be
rendered upon the agreement of nine jurors. The question involved
in this case is whether it was intended that this practice should
be instantly changed, and the criminal procedure embodied in the
Fifth and Sixth Amendments to the Constitution be adopted as of
August 12, 1898, when the Hawaiian flag was hauled down and the
American flag hoisted in its place.
If the words of the Newlands Resolution, adopting the municipal
legislation of Hawaii, "
not contrary to the Constitution of the
United States," be literally applied, the petitioner is
entitled to his discharge, since that instrument expressly
requires, Amendment 5, that "no person shall be held to answer for
a capital or otherwise infamous crime, unless on a presentment or
indictment of a grand jury," and, Amendment 6, that
"in all criminal prosecutions, the accused shall enjoy the right
to a speedy and public trial by an impartial jury of the state and
district wherein the crime shall have been committed."
But there is another question underlying this and all other
rules for the interpretation of statutes, and that is what was the
intention of the legislative body? Without going back to the famous
case of the drawing of blood in the streets of Bologna, the books
are full of authorities to the effect that the intention of the
lawmaking power will prevail even against the letter of the
statute; or, as tersely expressed by Mr. Justice Swayne in
Smythe v.
Fiske, 23 Wall. 374,
90 U. S.
380:
"A thing may be within the letter of a statute and not within
its meaning, and within its meaning, though not within its letter.
The intention of the lawmaker is the law."
A parallel expression is found in the opinion of Mr. Chief
Justice Thompson of the Supreme Court of the State of New York
(subsequently Mr. Justice Thompson of this Court), in
People v.
Utica Ins. Co., 15 Johns. 358, 381:
"A thing which is within the intention of the makers of a
statute is as much within the statute as if it were within the
letter, and a thing which is within the letter of the statute is
not within the statute, unless it be within the intention of the
makers."
Without going farther, numerous illustrations of this maxim are
found in the reports of our own Court. Nowhere is the
Page 190 U. S. 213
doctrine more broadly stated than in
United
States v. Kirby, 7 Wall. 482, in which an act of
Congress, providing that, if "any person shall knowingly and
willfully obstruct or retard the passage of the mail, or of any
driver or carrier," was held not to apply to a state officer who
held a warrant of arrest against a carrier for murder, the Court
observing that no officer of the United States was placed by his
position above responsibility to the legal tribunals of the
country, and to the ordinary processes for his arrest and detention
when accused of felony. "All laws," said the Court,
"should receive a sensible construction. General terms should be
so limited in their application as not to lead to injustice,
oppression, or an absurd consequence. It will always, therefore, be
presumed that the legislature intended exceptions to its language,
which would avoid results of this character. The reason of the law
in such cases should prevail over its letter."
A case was cited from Plowden holding that a statute which
punished a prisoner as a felon who broke prison did not extend to a
prisoner who broke out when the prison was on fire, "for he is not
to hanged because he would not stay to be burned." Similar language
to that in
Kirby's case was used in
Carlisle
v. United States, 16 Wall. 147,
83 U. S.
153.
In
Atkins v. Fibre Disintegrating
Co., 18 Wall. 272, it was held that a suit
in
personam in admiralty was not a "civil suit" within the
eleventh section of the Judiciary Act, though clearly a civil suit
in the general sense of that phrase, and as used in other sections
of the same act.
See also In re Louisville Underwriters,
134 U. S. 488. So
in
Heydenfeldt v. Daney Gold &c. Co., 93 U. S.
634,
93 U. S. 638,
it was said by Mr. Justice Davis:
"If a literal interpretation of any part of it [a statute] would
operate unjustly, or lead to absurd results, or be contrary to the
evident meaning of the act taken as a whole, it should be rejected.
There is no better way of discovering its true meaning, when
expressions in it are rendered ambiguous by their connection with
other clauses, than by considering the necessity for it, and the
causes which induced its enactment."
To the same effect are the
Church of Holy Trinity v. United
States, 143 U. S. 457, in
which many cases are cited and reviewed, and
Page 190 U. S. 214
Lau Ow Bew v. United States, 144 U. S.
47,
144 U. S. 59. In
this latter case, it was held that a statute requiring the
permission of the Chinese government, and the identification of
"every Chinese person other than a laborer, who may be entitled by
said treaty or this act [of Congress] to come within the United
States" did not apply to
"Chinese merchants already domiciled in the United States who,
having left the country for temporary purposes,
animo
revertendi, seek to reenter it on their return to their
business and their homes."
Said the Chief Justice:
"Nothing is better settled than that statutes should receive a
sensible construction such as will effectuate the legislative
intention and, if possible, so as to avoid an unjust or an absurd
conclusion."
Two recent English cases are instructive in this connection: in
Plumstead Board of Works v. Spackman, L.R. 13 Q.B.D. 878,
887, it was said by the Master of Rolls, afterwards Lord Esher: "If
there are no means of avoiding such an interpretation of the
statute" (as will amount to a great hardship),
"a judge must come to the conclusion that the legislature by
inadvertence has committed an act of legislative injustice; but, to
my mind, a judge ought to struggle with all the intellect that he
has, and with all the vigor of mind that he has, against such an
interpretation of an act of Parliament; and, unless he is forced to
come to a contrary conclusion, he ought to assume that it is
impossible that the legislature could have so intended."
See also Ex Parte Walton, L.R. 17 Ch.D. 746.
Is there any room for construction in this case, or are the
words of the resolution so plain that construction is impossible?
There are many reasons which induce us to hold that the act was not
intended to interfere with the existing practice when such
interference would result in imperiling the peace and good order of
the islands. The main objects of the resolution were, 1st, to
accept the cession of the islands theretofore made by the Republic
of Hawaii, and to annex the same "as a part of the Territory of the
United States, and subject to the sovereign dominion thereof;" 2d,
to abolish all existing treaties with various nations, and to
recognize only treaties between the United States and such foreign
nations; 3d, to continue the existing laws and customs regulations,
so far as they were not
Page 190 U. S. 215
inconsistent with the resolution, or contrary to the
Constitution, until Congress should otherwise determine. From the
terms of this resolution, it is evident that it was intended to be
merely temporary and provisional; that no change in the government
was contemplated, and that, until further legislation, the Republic
of Hawaii continued in existence. Even its name was not changed
until 1900, when the "Territory of Hawaii" was organized. The laws
of the United States were not extended over the islands until the
organic act was passed on April 30, 1900, when so careful was
Congress not to disturb the existing condition of things any
further than was necessary that it was provided, sec. 5, that
only
"the laws of the United States which are not locally
inapplicable shall have the same force and effect within the said
territory as elsewhere in the United States."
There was apparently some discretion left to the courts in this
connection.
Indianapolis &c. R. Co. v. Horst,
93 U. S. 291,
93 U. S. 299.
The fact, already mentioned, that Congress, in this organic act,
inserted a provision for the empaneling of grand juries and for the
unanimity of verdicts indicates an understanding that the previous
practice had been pursued up to that time, and that a change in the
existing law was contemplated.
Of course, under the Newlands Resolution, 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.
If the negative words of the resolution, "nor contrary to the
Constitution of the United States," be construed as imposing
Page 190 U. S. 216
upon the islands every provision of a constitution which must
have been unfamiliar to a large number of their inhabitants, and
for which no previous preparation had been made, the consequences
in this particular connection would be that every criminal in the
Hawaiian Islands convicted of an infamous offense between August
12, 1898, and June 14, 1900, when the act organizing the
territorial government took effect, must be set at large, and every
verdict in a civil case rendered by less than a unanimous jury held
for naught. Surely such a result could not have been within the
contemplation of Congress. It is equally manifest that such could
not have been the intention of the Republic of Hawaii in
surrendering its autonomy. Until then, it was an independent
nation, exercising all the powers and prerogatives of complete
sovereignty. It certainly could not have anticipated that, in
dealing with another independent nation and yielding up its
sovereignty, it had denuded itself, by a negative pregnant, of all
power of enforcing its criminal laws according to the methods which
had been in vogue for sixty years, and was adopting a new procedure
for which it had had no opportunity of making preparation. The
legislature of the Republic had just adjourned, not to convene
again until sometime in 1900, and not actually convening until
1901. The resolution on its face bears evidence of having been
intended merely for a temporary purpose, and to give time to the
Republic to adapt itself to such form of territorial government as
should afterwards be adopted in its organic act.
The language of Mr. Buchanan, then Secretary of State, in
holding that the military government established in California did
not cease to exist with the treaty of peace, but continued as a
government
de facto until Congress should provide a
territorial government, is peculiarly applicable to this case.
"The great law of necessity justifies this conclusion. The
consent of the people is irresistibly inferred from the fact that
no civilized community could possibly desire to abrogate an
existing government, when the alternative presented would be to
place themselves in a state of anarchy, beyond the protection of
all laws, and reduce them to the unhappy necessity of submitting to
the dominion of the strongest."
57 U. S. 16
How. 184.
Page 190 U. S. 217
It is insisted, however, that, as the common law of England had
been adopted in Hawaii by the Code of 1897, it was within the power
of the courts to summon a grand jury, and that such action might
have been taken and criminals tried upon indictments properly
found, and convicted by a unanimous verdict. The suggestion is
rather fanciful than real, since § 1109 of the Code of 1897,
adopting the common law of England, contained a proviso that "no
person shall be subject to criminal proceedings except as provided
by the Hawaiian laws." These laws provided expressly (§ 616, Penal
Laws of 1897) as follows:
"The necessary bills of indictment shall be duly prepared by a
legal prosecuting officer, and be duly presented to the presiding
judge of a court before the arraignment of the accused, and such
judge shall, after examination, certify upon each bill of
indictment whether he finds the same a true bill or not."
The question thus squarely presented to every judge in the
Republic was whether he was bound to summon a grand jury under the
Newlands Resolution when no provision existed by law for impaneling
the same or their payment, and when, in so doing, he was obliged to
ignore the plain statute of his own country.
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
Page 190 U. S. 218
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 wellbeing.
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. Of course, for the
reasons already stated, the questions involved in this case could
arise only from such as occurred between the taking effect of the
joint resolution of July 7, 1898, and the Act of April 30, 1900,
establishing the territorial government.
The decree of the District Court for the Territory of Hawaii
must be reversed, and the case remanded to that court, with
instructions to dismiss the petition.
*
"
Joint Resolution to Provide for Annexing the Hawaiian
Islands"
"
to the United States. 30 Stat. 750."
"Whereas the government of the Republic of Hawaii having, in due
form signified its consent, in the manner provided by its
Constitution. to cede, absolutely and without reserve, to the
United States of America, all rights of sovereignty of whatsoever
kind in and over the Hawaiian Islands and their dependencies, and
also to cede and transfer to the United States the absolute fee and
ownership of all public, government, or Crown lands, public
buildings or edifices, ports, harbors, military equipment, and all
other public property of every kind and description belonging to
the government of the Hawaiian Islands, together with every right
and appurtenance thereunto appertaining: Therefore,"
"
Resolved by the Senate and House of Representatives of the
United States of America in Congress assembled, That said
cession 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 are
subject to the sovereign dominion thereof, and that all and
singular the property and rights hereinbefore mentioned are vested
in the United States of America."
"
* * * *"
"Until Congress shall provide for the government of such
islands, all the civil, judicial, and military powers exercised by
the officers of the existing government in said islands shall be
vested in such person or persons, and shall be exercised in such
manner, as the President of the United States shall direct, and the
President shall have power to remove said officers and fill the
vacancies so occasioned."
"The existing treaties of the Hawaiian Islands with foreign
nations shall forthwith cease and determine, being replaced by such
treaties as between the United States and such foreign nation. 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."
"Until legislation shall be enacted extending the United States
customs laws and regulations to the Hawaiian Islands, the existing
customs relations of the Hawaiian Islands with the United States
and other countries shall remain unchanged."
"
* * * *"
There shall be no further immigration of Chinese into the
Hawaiian Islands except upon such conditions as are now or may
hereafter be allowed by the laws of the United States, and no
Chinese, by reason of anything herein contained, shall be allowed
to enter the United States from the Hawaiian Islands.
"The President shall appoint five commissioners at least two of
whom shall be residents of the Hawaiian Islands, who shall, as soon
as reasonably practicable, recommend to Congress such legislation
concerning the Hawaiian Islands as they shall deem necessary or
proper."
MR. JUSTICE WHITE and MR. JUSTICE McKENNA, concurring:
The Court, in its opinion, disposes of the case solely by a
construction of the act of Congress. Conceding
arguendo
that such view is wholly adequate to decide the cause, I concur in
the meaning of the act as expounded in the opinion of the court,
and, in the main, with the reasoning by which that interpretation
is elucidated. I prefer, however, to place my concurrence in the
judgment upon an additional ground which seems to me more
fundamental. That ground is this: that, as a consequence of the
relation which the Hawaiian Islands occupied towards the United
States, growing out of the resolution of annexation, the provisions
of the Fifth and Sixth Amendments
Page 190 U. S. 219
of the Constitution concerning grand and petit juries were not
applicable to that territory, because, whilst the effect of the
resolution of annexation was to acquire the islands and subject
them to the sovereignty of the United States, neither the terms of
the resolution nor the situation which arose from it served to
incorporate the Hawaiian Islands into the United States, and make
them an integral part thereof. In other words, in my opinion, the
case is controlled by the decision in
Downes v. Bidwell,
182 U. S. 244.
The resolution of Congress annexing the islands, it seems to me,
makes the conclusion just stated quite clear, and manifests that it
was not intended to incorporate the islands
eo instanti,
but, on the contrary, that the purpose was, whilst acquiring them,
to leave the permanent relation which they were to bear to the
government of the United States to await the subsequent
determination of Congress. By the resolution, the islands were
annexed, not absolutely, but merely "as a part of the Territory of
the United States," and were simply declared to be subject to its
sovereignty. The minutest examination of the resolution fails to
disclose any provision declaring that the islands are incorporated
and made a part of the United States, or endowing them with the
rights which would arise from such relation. On the contrary, the
resolution repels the conclusion of incorporation. Thus, it
provided for the government of the islands by a commission to be
appointed by the President, until Congress should have opportunity
to create the government which would be deemed best. Further, it
stipulated,
"until legislation shall be enacted extending the United States
customs laws and regulations to the Hawaiian Islands, the existing
customs relations of the Hawaiian Islands with the United States
and other countries shall remain unchanged."
And, if possible, to make the purpose of Congress yet clearer,
the act provided that
"the President shall appoint five commissioners at least two of
whom shall be residents of the Hawaiian Islands, who shall, as soon
as reasonably practicable, recommend to Congress such legislation
concerning the Hawaiian Islands as they shall deem necessary or
proper."
All these provisions, in my opinion, clearly point out that,
whilst the purpose was to acquire
Page 190 U. S. 220
and extend the sovereignty of the United States over the
islands, it was proposed only to provide, by the resolution of
annexation, a provisional government until Congress should become
possessed of the information necessary to enable it to determine
what should be the permanent status of the annexed territory. And
the meaning of the resolution of annexation thus indicated, by its
terms, is reflexly demonstrated by the act "To Provide a government
for the Territory of Hawaii," approved April 30, 1900, by which the
islands were undoubtedly made a part of the United States in the
fullest sense and given a territorial form of government. When the
two acts are put in contrast and the declarations in the later act
are considered, which were not found in the earlier act, and which,
it is to be presumed, were intentionally omitted from the
resolution providing for annexation, I can see no reason for
holding that the mere act of annexation accomplished the result
which was brought about by the subsequent law containing the more
comprehensive provisions.
The mere annexation not having effected the incorporation of the
islands into the United States, it is not an open question that the
provisions of the Constitution as to grand and petit juries were
not applicable to them.
Hurtado v. California,
110 U. S. 516;
In re Ross, 140 U. S. 473;
Bolln v. Nebraska, 176 U. S. 83, and
cases cited on page
176 U. S. 83;
Maxwell v. Dow, 176 U. S. 584,
and
Downes v. Bidwell, 182 U. S. 244.
Nor is there anything in the provision in the act of annexation
relating to the operation of the Constitution in the annexed
territory which militates against the conclusions previously
expressed. The text of the resolution on this subject is as
follows:
"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."
Now, insofar as the Constitution is concerned, the clause
subjecting the existing legislation which was provisionally
continued
Page 190 U. S. 221
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.
To say the contrary would be but to declare that Congress had
provided for the continuance of the tariff and other legislation,
whilst at the same time it had enacted that that result should not
be brought about. It would, moreover, lead to the assumption that
provisions of the Constitution which were inapplicable to the
particular situation should yet govern and control that
condition.
MR. JUSTICE McKENNA authorizes me to say that he also concurs in
the result for the foregoing reasons.
MR. CHIEF JUSTICE FULLER, with whom concurred MR. JUSTICE
HARLAN, MR. JUSTICE BREWER, and MR. JUSTICE PECKHAM,
dissenting:
In my opinion, the final order of the district court should be
affirmed.
Mankichi was tried on an information filed May 4, 1899, charging
him with the commission of the crime of murder on March 26 of that
year, and was found guilty of manslaughter in the first degree by
the verdict of nine jurors. The statutes of Hawaii, prior to July
7, 1898, provided for such trial and conviction.
July 7, 1898, the "Joint Resolution to Provide for Annexing the
Hawaiian Islands to the United States" was approved.
Page 190 U. S. 222
30 Stat. 750. Surrender of sovereignty and possession was
effected August 12, 1898.
The act "To Provide a government for the Territory of Hawaii"
was approved April 30, 1900. 31 Stat. 141.
If Articles of Amendment V and VI were applicable to the
Territory of Hawaii after August 12, 1898, the district judge was
right, and Mankichi was entitled to be discharged.
The annexation resolution contained three sections, and,
omitting the second and third as not material here, is given in the
margin.*
Page 190 U. S. 223
By the specific language of this resolution, no legislation
which was contrary to the Constitution of the United States
remained in force.
The language is plain and unambiguous, and resort to
construction or interpretation is absolutely uncalled for. To
tamper with the words is to eliminate them.
This is not one of those rare cases where adherence to the
letter leads to manifest absurdity, as in
United
States v. Kirby, 7 Wall. 482, and the illustrations
there drawn by Mr. Justice Field from Puffendorf and Plowden.
The argument
ab inconvenienti, without more, is an
unsafe guide, and departure from the plan meaning tends to usurp
legislative functions. Besides, that argument has no application
here. Courts in Hawaii have had criminal law jurisdiction for more
than half a century, and they had power to impanel a
Page 190 U. S. 224
grand jury,
United States v. Hill, 1 Brock 156, 159,
and to direct the petit jury of twelve that conviction could only
be had by a unanimous verdict.
In giving the instructions which accompanied the joint
resolution, MR. JUSTICE DAY, then Secretary of State, under date of
July 8, 1898, said:
"These recitals, it will be observed, are made in the language
of the treaty of annexation concluded at Washington on the 16th day
of June, 1897. They, as well as the other terms of that treaty,
were advisedly incorporated into the joint resolution because they
embodied the terms of cession, which have not only been agreed upon
by the two governments, but which have also been ratified by the
government of the Republic of Hawaii."
The reference is to a proposed treaty signed by Secretary
Sherman on the part of the United States, and by three
commissioners on the part of Hawaii, to which the advice and
consent of the Senate was not given.
The preamble to this treaty expressed the
"desire of the government of the Republic of Hawaii that those
islands should be incorporated into the United States as an
integral part thereof and under its sovereignty,"
and that the two governments "have determined to accomplish by
treaty an object so important to their mutual and permanent
welfare."
The language of the remainder of the treaty is reproduced in the
joint resolution, including the provision that the municipal
legislation of Hawaii should remain in force when not inconsistent
with the resolution or any existing treaty of the United States nor
contrary to the Constitution of the United States.
By the resolution, Congress provided for the government of
Hawaii under the authority of the United States. All the civil,
judicial, and military powers exercised by the officers in the
islands were vested in the appointees of the President, and were to
be exercised "in such manner as the President of the United States
shall direct." The President prorogued the legislature; reappointed
the officers
"of the Republic of Hawaii as it existed just prior to the
transfer of sovereignty, required such officers to take an oath of
allegiance to the United
Page 190 U. S. 225
states, and required all bonded officers to renew their bonds to
the government of the United States."
All existing treaties of Hawaii were abrogated; further
immigration of the Chinese was prohibited except as allowed "by the
laws of the United States;" the customs laws of Hawaii and its
municipal legislation not contrary to the Constitution of the
United States were continued in force until Congress should
otherwise determine.
Commissioners were to be and were appointed to recommend to
Congress such legislation as they might "deem necessary and
proper."
The Act of April 30, 1900, was the result of their report, and
provided further government, dealing with details, and permanent
instead of temporary. But, while temporary under the resolution, it
was nevertheless a system of government, and the territory was
under the sovereignty of the United States, and governed by its
agencies.
By the resolution, the annexation of the Hawaiian Islands became
complete, and the object of the proposed treaty, that "those
islands should be incorporated into the United States as an
integral part thereof, and under its sovereignty," was
accomplished.
The exceptions in respect of customs relations and the
prohibition of the immigration of the Chinese, embodied in the
treaty agreement and in the resolution, could not destroy the
effect of incorporation or of the extension of the Constitution. If
this were possible, the Act of April 30, 1900, would be open to the
same objection.
It was said at the bar that the words "contrary to the
Constitution of the United States" were inserted as a declaration
that certain "fundamental rights and principles, the basis of all
free government, which cannot with impunity be transcended," were
to be protected in Hawaii; that certain limitations of the
Constitution applied "wherever the jurisdiction of the United
States extends." But, in that view, the insertion of the phrase was
superfluous and accomplished nothing.
Nor were we informed what those fundamental rights are. This is
not a question of natural rights, on the one hand, and
Page 190 U. S. 226
artificial rights on the other, but of the fundamental rights of
every person living under the sovereignty of the United States in
respect of that government. And among those rights is the right to
be free from prosecution for crime unless after indictment by a
grand jury, and the right to be acquitted unless found guilty by
the unanimous verdict of a petit jury of twelve.
In
Callan v. Wilson, 127 U. S. 540,
127 U. S. 549,
it was said by MR. JUSTICE HARLAN, speaking for the Court:
"And as the guaranty of a trial by jury, in the third article,
implied a trial in that mode and according to the settled rules of
the common law, the enumeration, in the Sixth Amendment, of the
rights of the accused in criminal prosecutions, is to be taken as a
declaration of what those rules were, and is to be referred to the
anxiety of the people of the states to have in the supreme law of
the land,
and so far as the agencies of the general government
were concerned, a full and distinct recognition of those
rules, as involving the fundamental rights of life, liberty, and
property."
Common law rights are described in the ordinance of 1787 as
"fundamental principles of civil and religious liberty," and the
amendments embodying common law rights were demanded, as the
preamble of the act of Congress proposing them declares, "in order
to prevent misconstruction or abuse" of the powers of the general
government.
Assuming, solely for the sake of argument, that the mere fact of
annexation might not, in itself, have at once extended to the
inhabitants of Hawaii all the rights, privileges, and immunities
guaranteed by the Constitution, and that Congress had the power to
impose limitations in that regard, I think not only that Congress
did not do so in the particulars in question, but that, in
reenacting existing legislation, Congress, by the terms of the
resolution, intentionally invalidated so much thereof as in these
particulars was inconsistent with the Constitution. The
presumptions are all opposed to any capitulation in the matter of
common law institutions.
*
"Whereas, the government of the Republic of Hawaii, having in
due form signified its consent in the manner provided by its
constitution to cede, absolutely and without reserve, to the United
States of America all rights of sovereignty of whatsoever kind in
and over the Hawaiian Islands and their dependencies, and also to
cede and transfer to the United States the absolute fee and
ownership of all public, government, or Crown lands, public
buildings or edifices, ports, harbors, military equipment, and all
other public property of every kind and description belonging to
the government of the Hawaiian Islands, together with every right
and appurtenance thereunto appertaining: Therefore:"
"
Resolved by the Senate and House of Representatives of the
United States of America in Congress assembled, That said
cession 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 are
subject to the sovereign dominion thereof, and that all and
singular the property and rights hereinbefore mentioned are vested
in the United States of America."
"The existing laws of the United States relative to public lands
shall not apply to such lands in the Hawaiian Islands, but the
Congress of the United States shall enact special laws for their
management and disposition:
Provided, That all revenue
from, or proceeds of, the same, except as regards such part thereof
as may be used or occupied for the civil, military, or naval
purposes of the United States, or may be assigned for the use of
the local government, shall be used solely for the benefit of the
inhabitants of the Hawaiian Islands, for educational and other
public purposes."
"Until Congress shall provide for the government of such
islands, all the civil, judicial, and military powers exercised by
the officers of the existing government in said islands shall be
vested in such person or persons, and shall be exercised in such
manner, as the President of the United States shall direct, and the
President shall have power to remove said officers, and fill the
vacancies so occasioned."
"The existing treaties of the Hawaiian Islands with foreign
nations shall forthwith cease and determine, being replaced by such
treaties as may exist, or as may be hereafter concluded, between
the United States and such foreign nations. 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."
"Until legislation shall be enacted extending the United States
customs laws and regulations to the Hawaiian Islands, the existing
customs relations of the Hawaiian Islands with the United States
and other countries shall remain unchanged."
"The public debt of the Republic of Hawaii, lawfully existing at
the date of the passage of this joint resolution, including the
amounts due to depositors in the Hawaiian Postal Savings Bank, is
hereby assumed by the government of the United States; but the
liability of the United States in this regard shall in no case
exceed four million dollars. So long, however, as the existing
government and the present commercial relations of the Hawaiian
Islands are continued as hereinbefore provided, said government
shall continue to pay the interest on said debt."
"There shall be no further immigration of Chinese into the
Hawaiian Islands, except upon such conditions as are now or may
hereafter be allowed by the laws of the United States, and no
Chinese, by reason of anything herein contained, shall be allowed
to enter the United States from the Hawaiian Islands."
The President shall appoint five commissioners at least two of
whom shall be residents of the Hawaiian Islands, who shall, as soon
as reasonably practicable, recommend to Congress such legislation
concerning the Hawaiian Islands as they shall deem necessary or
proper.
MR. JUSTICE HARLAN, dissenting:
This case is of such exceptional importance in respect of
the
Page 190 U. S. 227
principles announced by my brethren of the majority that I deem
it not inappropriate to state my views in a separate opinion.
I entirely concur with THE CHIEF JUSTICE in holding that the
accused was properly discharged from custody. Whether the legality
of his detention be tested by the Constitution or alone by the
joint resolution of Congress, approved July 7th, 1898, providing
"for annexing the Hawaiian Islands to the United States," his
imprisonment was, in my judgment, wholly unauthorized.
What, at the time of the arrest and trial of the accused, were
the relations existing between the United States and Hawaii? By
what law were the personal rights of the people of Hawaii to be
then determined? The decision of the case depends upon the answer
to these questions.
In 1897, a treaty was made between the United States and the
Republic of Hawaii which was signed by Secretary Sherman on behalf
of the United States, and by three commissioners of the part of
Hawaii. Senate Report No. 681, 55th Congress, 2d Sess., March 16th,
1898.
The preamble to that treaty expressed the
"desire of the government of the Republic of Hawaii that those
islands shall be
incorporated into the United States
as an integral part thereof and under its
sovereignty."
It also recited the determination of the two governments "to
accomplish by treaty an object so important to their mutual and
permanent welfare."
The treaty stipulated that, until Congress provided for the
government of such islands, all the civil, judicial, and military
powers exercised by the officers of the existing government in the
islands should be vested in such person or persons, and be
exercised in such manner, as the President of the United States
directed, and that the President should have power to remove said
officers and fill the vacancies so occasioned; also that the
municipal legislation of the Hawaiian Islands
"not inconsistent with this treaty
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. "
Page 190 U. S. 228
The treaty was not formally ratified, but its object was
accomplished by the passage of the joint resolution of July 7,
1898. 30 Stat. 750.
In order that the full scope of that resolution may be seen, it
is here given in full:
"Whereas the government of the Republic of Hawaii having, in due
form, signified its consent, in the manner provided by its
Constitution, to cede absolutely and without reserve to the United
States of America
all rights of sovereignty of whatsoever
kind in and over the Hawaiian Islands and their dependencies,
and also to cede and transfer to the United States the absolute fee
and ownership of all public, government, or Crown lands, public
buildings or edifices, ports, harbors, military equipment, and all
other public property of every kind and description belonging to
the government of the Hawaiian Islands, together with every right
and appurtenance thereunto appertaining: Therefore,"
"
Resolved by the Senate and House of Representatives of the
United States of America in Congress assembled, That said
cession 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 are subject to the
sovereign dominion thereof, and
that, all and singular, the property and rights hereinbefore
mentioned are vested in the United States of America."
"The existing laws of the United States relative to public lands
shall not apply to such lands in the Hawaiian Islands, but the
Congress of the United States shall enact special laws for their
management and disposition:
Provided, That all revenue
from or proceeds of the same, except as regards such part thereof
as may be used or occupied for the civil, military, or naval
purposes of the United States, or may be assigned for the use of
the local government, shall be used solely for the benefit of the
inhabitants of the Hawaiian Islands for educational and other
public purposes."
"Until Congress shall provide for the government of such
islands, all the civil, judicial, and military powers exercised by
the officers of the existing government in said islands shall be
vested
Page 190 U. S. 229
in such person or persons, and shall be exercised in such
manner, as the President of the United States shall direct, and the
President shall have power to remove said officers and fill the
vacancies so occasioned."
"The existing treaties of the Hawaiian Islands with foreign
nations shall forthwith cease and determine, being replaced by such
treaties as may exist, or as may be hereafter concluded, between
the United States and such foreign nations. 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."
"Until legislation shall be enacted extending the United States
customs laws and regulations to the Hawaiian Islands, the existing
customs relations of the Hawaiian Islands with the United States
and other countries shall remain unchanged."
"The public debt of the Republic of Hawaii, lawfully existing at
the date of the passage of this joint resolution, including the
amounts due to depositors in the Hawaiian Postal Savings Bank, is
hereby assumed by the government of the United States, but the
liability of the United States in this regard shall in no case
exceed four million dollars. So long, however, as the existing
government and the present commercial relations of the Hawaiian
Islands are continued as hereinbefore provided, said government
shall continue to pay the interest on said debt."
"There shall be no further immigration of Chinese into the
Hawaiian Islands, except upon such conditions as are now or may
hereafter be allowed by the laws of the United States, and no
Chinese, by reason of anything herein contained, shall be allowed
to enter the United States from the Hawaiian Islands."
"The President shall appoint five commissioners at least two of
whom shall be residents of the Hawaiian Islands, who shall, as soon
as reasonably practicable,
recommend to Congress such
legislation concerning the Hawaiian Islands as they shall deem
necessary or proper. "
Page 190 U. S. 230
"§ 2. That the commissioners hereinbefore provided for shall be
appointed by the President, by and with the advice and consent of
the Senate."
"§ 3. That the sum of one hundred thousand dollars, or so much
thereof as may be necessary, is hereby appropriated out of any
money in the Treasury not otherwise appropriated, and to be
immediately available, to be expended at the discretion of the
President of the United States of America, for the purpose of
carrying this joint resolution into effect."
Under date of July 8, 1898, the Secretary of State transmitted a
copy of this joint resolution to the United States envoy
extraordinary and minister plenipotentiary accredited to Hawaii,
with instructions as to his duty in the premises.
Referring to the preamble of that resolution, the Secretary, in
his letter of instructions, said:
"These recitals, it will be observed, are made in the language
of the treaty of annexation concluded at Washington on the 16th day
of June, 1897. They, as well as the other terms of that treaty,
were advisedly incorporated in the joint resolution, because they
embody the terms of cession which have not only been agreed upon by
the two governments, but which have also been ratified by the
government of the Republic of Hawaii. The joint resolution
therefore accepts, ratifies, and confirms, on the part of the
United States, the cession formally agreed to and approved by the
Republic of Hawaii. As, by the adoption of the joint resolution,
the cession of the Hawaiian Islands and their dependencies to the
United States is thus concluded, it is assumed that no further
action will be necessary on the part of the Hawaiian government
beyond the formalities of transfer. Should that government,
however, desire to take any further action, formally confirmatory
of what has been done, no objection will be interposed on the part
of the United States. When all preliminaries shall have been
settled, you are instructed to accept, in the name of the United
States, the formal transfer of the sovereignty and property of the
Hawaiian government, and to raise the American flag, with such
suitable ceremonies as may be agreed on for the occasion. It may be
advisable
Page 190 U. S. 231
for the Hawaiian government to deliver to you an inventory of
the public property transferred to the United States. There are
several provisions of the joint resolution to which it is deemed
proper specially to refer. Until Congress shall provide for the
government of Hawaii, 'all the civil, judicial, and military powers
exercised by the officers of the existing government' are to be
vested in such person or persons, and to be exercised in such
manner, as the President of the United States shall direct. In the
exercise of the power thus conferred upon him by the joint
resolution, the President hereby directs that the civil, judicial,
and military powers in question shall be exercised by the officers
of the Republic of Hawaii as it existed just prior to the transfer
of sovereignty, subject to his power to remove such officers and to
fill the vacancies. All such officers will be required at once to
take an oath of
allegiance to the United States, and all
the military forces will be required to take a similar oath, and
all bonded officers will be required
to renew their bonds to
the government of the United States. The powers of the
minister of foreign affairs will, upon the transfer of the
sovereignty and property of Hawaii to the United States,
necessarily cease, so far as they relate to the conduct of
diplomatic intercourse between Hawaii and foreign powers. The
municipal legislation of Hawaii, except such as was enacted for the
fulfillment of the treaties between that country and foreign
nations, and except such as is inconsistent with the joint
resolution, or
contrary to the Constitution of the United
States, or to any existing treaty of the United States, is to
remain in force till the Congress of the United States shall
otherwise determine. The existing customs relations of Hawaii with
the United States and with other countries are to remain unchanged
till Congress shall have extended the customs laws and regulations
of the United States to the islands. Under these various
provisions, the government of the islands will proceed without
interruption. Upon the completion of the formalities of the
transfer, your functions as envoy extraordinary and minister
plenipotentiary to Hawaii will necessarily case. . . . These
instructions will be borne to you by Rear Admiral Joseph N. Miller,
U.S. Navy, who will proceed to
Page 190 U. S. 232
Honolulu in the U.S.S.
Philadelphia, and who, together
with the commander of the United States military forces present,
will act with you in the ceremonies attending the formal transfer
of the islands to the United States."
So that the Secretary of State gave the representative of the
United States to understand that the joint resolution and the
treaty had the same object in view -- namely, to incorporate Hawaii
into the United States "as an integral part thereof and under its
sovereignty."
Proceeding in our examination of the history of annexation, we
find that, under date of August 15, 1898, the United States
minister made his official report as to what was done in execution
of the joint resolution, annexing Hawaii to the United States. That
report contains the details of the ceremonies attending the formal
transfer of the sovereignty and property of the Hawaiian government
to the United States. From it the following extract is made:
"At a quarter before 12 [on August 12, 1898], the ceremonies
opened with prayer at the conclusion of which I [the United States
minister] arose, and, addressing President Dole, said:"
"Mr. President, I present you a certified copy of a joint
resolution of the Congress of the United States, approved by the
President on July 7, 1898, entitled 'Joint Resolution to Provide
for Annexing the Hawaiian Islands to the United States.' This joint
resolution accepts, ratifies, and confirms on the part of the
United States the cession formally consented to and approved by the
Republic of Hawaii. . . ."
"President Dole, taking the copy of the resolutions, said:"
"A treaty of political union having been made, and the cession
formally consented to by the Republic of Hawaii having been
accepted by the United States of America, I now, in the interest of
the Hawaiian body politic, and with full confidence in the honor,
justice, and friendship of the American people, yield up to you, as
the representative of the government of the United States, the
sovereignty and public property of the Hawaiian Islands,"
"and, waving his hand to his chief of staff, the Hawaiian flag
was saluted by the battery of the Hawaiian National Guard, in which
salute our ships in the harbor joined. Then the Hawaiian band
played
Page 190 U. S. 233
Hawaii Ponoi for the last time, taps were sounded, and the
Hawaiian flag came down, and was taken possession of by the
Hawaiian corporal of the guard. Then, replying to President Dole, I
said:"
"Mr. President, in the name of the United States, I accept the
transfer of the sovereignty and property of the Hawaiian
government. The admiral commanding the United States naval forces
in these waters will proceed to perform the duty entrusted to
him."
"Thereupon the American flag was raised as the band played the
Star Spangled Banner, and saluted."
"The United States minister then congratulated 'his
fellow-countrymen' on 'the inevitable consummation of the
national policies and the natural relations between the two
countries
now formally and indissolubly united.' He urged
the Hawaiians not to rest content in the enjoyment of free
institutions, but"
"to help maintain them in the spirit they will be extended to
you, in the spirit you have sought them, in the spirit of
fraternity and equality, in the spirit of the Constitution itself,
now the supreme law of the land."
"The oath of allegiance was thereupon administered by the Chief
Justice of Hawaii to the officers of that country, each one
swearing that he would 'support and defend the Constitution of the
United States of America against all enemies, foreign and
domestic.'"
It is thus perceived that the Republic of Hawaii ceded,
absolutely and without reserve, to the United States of America all
rights and sovereignty of whatsoever kind in and over the Hawaiian
Islands and their dependencies, as well as the absolute fee and
ownership of all public, government, or Crown lands, public
buildings or edifices, ports, harbors, military equipment, and all
other public property of every kind and description belonging to
the government of the Hawaiian Islands, together with every right
and appurtenance thereunto appertaining; that the cession was
accepted, ratified, and confirmed by Congress, and that the
Hawaiian Islands and their dependencies were "annexed as a part of
the Territory of the United States and are subject to the sovereign
dominion thereof," and, what is of vital moment in this case, that
such municipal legislation of the islands as was not "
contrary
to the Constitution of the
Page 190 U. S. 234
United States" -- and therefore
only such
legislation as was consistent with that instrument -- was to remain
in force until Congress otherwise determined. Necessarily,
therefore, if regard be had merely to the action of Congress, all
local legislation inconsistent with the Constitution ceased to have
any force in Hawaii after that country thus passed under the
sovereign dominion of the United States.
After the passage of the joint resolution, and after the formal
transfer of Hawaii to the United States -- namely, in 1899 -- Osaki
Mankichi, a subject of Japan, was tried in one of the courts of
Hawaii for the alleged crime of murder. He was convicted of the
crime of manslaughter in the first degree, and sentenced to
imprisonment for twenty years at hard labor. Although the crime was
of an infamous nature, there was no presentment or indictment of a
grand jury, and the verdict was rendered by only nine of the twelve
persons composing the petit jury.
Having been placed in prison pursuant to the verdict and
sentence, the accused, in 1901, sued out a writ of habeas corpus
from the District Court of the United States for the Territory of
Hawaii, and was discharged, upon the ground that his trial,
conviction, sentence, and imprisonment were in violation of the
Constitution of the United States in that he was not proceeded
against upon the presentment or indictment of a grand jury, nor
found guilty by the unanimous verdict of the petit jury, but only
by a majority of the jurors. Hence, this appeal.
It should be here stated that, by the Act of Congress of April
30, 1900, c. 339, a territorial government was organized over the
islands which had been acquired under the joint resolution of 1898,
and those islands were designated as the Territory of Hawaii. In
that act, provision was made for grand juries, and also for petit
juries in criminal cases, to be composed, as at common law, of
twelve persons. It was also declared that "no person should be
convicted in any criminal case except by unanimous verdict of the
jury." 31 Stat. 141, 157. It is not contended that that act can
have any effect upon the decision of the present case, because the
trial, conviction, sentence, and imprisonment
Page 190 U. S. 235
of the accused all occurred after the formal transfer to the
United States pursuant to the joint resolution of 1898, and before
the passage of the above act of 1900. We must consequently
determine the legality of the proceedings against Mankichi by the
law as it was between the date of the acquisition of sovereignty
over the islands by the United States and the date of the passage
of the act of 1900. To that question I now address myself.
It must be assumed that the trial of the accused was in
accordance with the municipal law of Hawaii as it existed prior to
the approval of the joint resolution of 1898. The contrary is not
asserted by the accused. But it is conceded by the court that, if
the words "contrary to the Constitution of the United States" in
that resolution are interpreted according to their usual, ordinary
meaning, and if the validity of the trial be tested by the
provisions of that instrument, then the prisoner is entitled to his
discharge. Nevertheless it is now held that, although the United
States acquired, on the passage of that resolution, "all rights of
sovereignty of whatsoever kind" in and over the Hawaiian Islands
and their dependencies; although Hawaii then became "an integral
part" of the United States, and subject to its "sovereign
dominion;" although the United States obtained the absolute fee and
ownership of all public, government, or Crown lands, public
buildings or edifices, ports, harbors, military equipments, and all
other public property belonging to Hawaii; although all its
officers took an oath of allegiance to the United States; yet,
persons there charged with infamous crimes could not, as of right,
before the passage of the act of 1900, invoke for their protection,
when prosecuted for crime, the guarantees relating to grand and
petit juries found in the Constitution of the United States -- the
supremacy of which instrument was in effect declared by the joint
resolution when existing municipal legislation contrary to its
provisions was superseded.
Practically, under the view taken by the Court and so far as
those guarantees were concerned, if Congress had not chosen to
provide a system of criminal procedure -- as it did by the act of
1900 -- for the government, tribunals, and people of Hawaii,
Page 190 U. S. 236
then, for an indefinite time -- it may have been for a century
-- the courts in Hawaii, although acting under and by the authority
of the United States, might have tried persons there for capital or
infamous crimes in a mode confessedly "contrary to the Constitution
of the United States." The Constitution, speaking with commanding
authority to all who exercise power under its sanction, declares
that "
no person shall be held to answer for a capital or
other infamous crime unless on a presentment or indictment of a
grand jury," and it as clearly forbids a conviction in any criminal
prosecution except
upon the unanimous verdict of a petit
jury. In other words, neither the life nor the liberty of any
person can be taken under the authority of the United States except
in the mode thus prescribed. Yet the present holding is that these
constitutional requirements need not have been regarded in Hawaii
at any time prior to the act of 1900, although that country was an
integral part of the United States, and, with its inhabitants, was
subject in all respects to our sovereign dominion. It follows under
the view of the Court that Congress, by nonaction simply, could
have kept in force even such municipal legislation of the Hawaiian
Islands relating to criminal trials as was in palpable conflict
with the Constitution of the United States.
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. If the accused had
committed the crime of murder in the Territory of Arizona; if he
had been convicted in any
Page 190 U. S. 237
court in that territory except under a presentment or indictment
of a grand jury and by the unanimous verdict of a petit jury, and
if he had been then sentenced to be hanged, and was hanged, the
judge of the court pronouncing the sentence would have been guilty
of judicial murder. Of that the decisions of this Court leave no
room to doubt, for it has been adjudged repeatedly that the people
of the organized territories, as well as the people of the District
of Columbia, are entitled, by force of the Constitution alone, to
the guarantees of life, liberty, and property found in the
Constitution. And yet the result of the present judgment is that
the hanging of the accused in Hawaii, an integral part of the
United States, after a trial for murder committed there, but not
upon indictment of a grand jury or on a verdict concurred in by all
of the petit jury, could be sustained as legal if the case had
arisen at any time prior to the act of 1900. This result has been
achieved by the easy method of declaring that, when Congress
provided that only the municipal legislation of Hawaii not contrary
to the Constitution should remain in force, it did not mean what
its express words implied according to their ordinary
signification; that Congress had no reference to the provisions of
the Constitution relating to criminal prosecutions, but intended
that the modes of criminal procedure in operation in Hawaii should
remain in force until Congress otherwise provided, even if they
were, as they are admitted to be, contrary to the Constitution,
thus conceding to Congress the power of suspending the
constitutional guarantees of life and liberty among a people
undeniably subject to the authority and jurisdiction of the United
States as completely as are the people of our organized
territories.
Three members of the Court, constituting the majority, who
concurred in the
judgment in
Downes v. Bidwell,
182 U. S. 244,
182 U. S.
288-289,
182 U. S.
291-292, distinctly held that "the government of the
United States was born of the Constitution," and that all the
powers enjoyed by it, or which it may exercise, must be derived,
either expressly or by implication, from that instrument; that that
instrument, in respect of every function of the government, "is
everywhere and at all times potential, insofar as its provisions
are applicable;" that, wherever a power is given by the
Page 190 U. S. 238
Constitution, and a limitation imposed upon its exercise, "such
restriction operates upon and confines every action on the subject
within its constitutional limits;" that, "as Congress, in governing
the territories, is subject to the Constitution, it results that
all the limitations of the Constitution which are applicable to
Congress in exercising this authority necessarily limit its power
on this subject;" that "every provision of the Constitution which
is applicable to the territories is also controlling therein;" and
that,
"in the case of the territories, as in every other instance,
when a provision of the Constitution is invoked, the question which
arises is not whether the Constitution is operative, for that is
self-evident, but whether the provision relied on is
applicable."
In these views, the minority in
Downes v. Bidwell,
constituting four other members of this Court, substantially
concurred.
The petit jury system existed in Hawaii long before the passage
of the joint resolution. But it was inconsistent with the
Constitution of the United States in that it allowed a verdict of
guilty in a criminal case by a majority of the jurors. Where was
the difficulty in applying in Hawaii the constitutional provision
forbidding such a verdict? To have applied that provision to Hawaii
would not in any essential sense have imposed upon that country a
new system for the trial of crimes. It would have only enforced the
existing mode of trial so as to conform to the constitutional
requirement in respect of petit juries. It would have left
untouched the petit jury system in Hawaii except as it was contrary
to the Constitution. Whatever may be said as to the absence of a
grand jury system in Hawaii, it cannot, I think, be said with any
show of reason that the constitutional provision relating to petit
juries was inapplicable in Hawaii after its annexation to this
country. Nothing stood in the way of the court's instructing the
jury in a criminal case, arising after annexation, that unanimity
among the jurors as to the verdict was essential under the
Constitution.
In my opinion, the Constitution of the United States became the
supreme law of Hawaii immediately upon the acquisition by the
United States of complete sovereignty over the Hawaiian
Page 190 U. S. 239
Islands, and without any act of Congress formally extending the
Constitution to those islands. It then, at least, became
controlling beyond the power of Congress to prevent. From the
moment when the government of Hawaii accepted the joint resolution
of 1898 by a formal transfer of its sovereignty to the United
States -- when the flag of Hawaii was taken down by authority of
Hawaii, and in its place was raised that of the United States --
every human being in Hawaii charged with the commission of crime
there could have rightly insisted that neither his life nor his
liberty could be taken, as punishment for crime, by any process or
as the result of any mode of procedure that was inconsistent with
the Constitution of the United States. Can it be that the
Constitution is the supreme law in the states of the Union, in the
organized territories of the United States, between the Atlantic
and Pacific oceans, and in the District of Columbia, and yet was
not, prior to the act of 1900, the supreme law in territories and
among peoples situated as were the territory and people of Hawaii,
and over which the United States had acquired all rights of
sovereignty of whatsoever kind? A negative answer to this question,
and a recognition of the principle that such an answer involves,
would place Congress above the Constitution. It would mean that the
benefit of the constitutional provisions designed for the
protection of life and liberty may be claimed by some of the people
subject to the authority and jurisdiction of the United States, but
cannot be claimed by others equally subject to its authority and
jurisdiction. It would mean that the will of Congress, not the
Constitution, is the supreme law of the land for certain peoples
and territories under our jurisdiction. It would mean that the
United States may acquire territory be cession, conquest, or
treaty, and that Congress may exercise sovereign dominion over it,
outside of and in violation of the Constitution and under
regulations that could not be applied to the organized territories
of the United States and their inhabitants. It would mean that,
under the influence and guidance of commercialism and the supposed
necessities of trade, this country had left the old ways of the
fathers, as defined by a written constitution, and entered upon a
new way, in following
Page 190 U. S. 240
which the American people will lose sight of, or become
indifferent to, principles which had been supposed to be essential
to real liberty. It would mean that, if the principles now
announced should become firmly established, the time may not be far
distant when, under the exactions of trade and commerce, and to
gratify an ambition to become the dominant political power in all
the earth, the United States will acquire territories in every
direction, which are inhabited by human beings, over which
territories, to be called "dependencies" or "outlying possessions,"
we will exercise absolute dominion, and whose inhabitants will be
regarded as "subjects" or "dependent peoples," to be controlled as
Congress may see fit, not as the Constitution requires nor as the
people governed may wish. Thus, will be engrafted upon our
republican institutions, controlled by the supreme law of a written
Constitution, a colonial system entirely foreign to the genius of
our government and abhorrent to the principles that underlie and
pervade the Constitution. It will then come about that we will have
two governments over the peoples subject to the jurisdiction of the
United States -- one, existing under a written Constitution,
creating a government with authority to exercise only powers
expressly granted and such as are necessary and appropriate to
carry into effect those so granted; the other, existing outside of
the written Constitution, in virtue of an unwritten law, to be
declared from time to time by Congress, which is itself only a
creature of that instrument.
I stand by the doctrine that the Constitution is the supreme law
in every territory, as soon as it comes under the sovereign
dominion of the United States for purposes of civil administration,
and whose inhabitants are under its entire authority and
jurisdiction. I could not otherwise hold without conceding the
power of Congress, the creature of the Constitution, by mere
nonaction, to withhold vital constitutional guarantees from the
inhabitants of a territory governed by the authority, and only by
the authority, of the United States. Such a doctrine would admit of
the exercise of absolute, arbitrary legislative power under a
written Constitution full of restrictions upon Congress, and
designed to limit the separate departments of
Page 190 U. S. 241
government to the exercise of only expressly enumerated powers
and such other powers as may be implied therefrom -- each
department always acting in subordination to that instrument as the
supreme law of the land. Indeed, it has been announced by some
statesmen that the Constitution should be interpreted to mean not
what its words naturally, or usually, or even plainly, import, but
what the apparent necessities of the hour, or the apparent majority
of the people at a particular time, demand at the hands of the
judiciary. I cannot assent to any such view of the Constitution.
Nor can I approve the suggestion that the status of Hawaii and the
powers of its local government are to be "measured" by the
resolution of 1898, without reference to the Constitution. It is
impossible for me to grasp the thought that that which is
admittedly contrary to the supreme law can be sustained as
valid.
I have so far considered the case principally in the light of
the results that must, as I think, follow from the interpretation
placed by the majority on the joint resolution of 1898. But, in my
judgment, Congress should not be held to have intended to do what
is now attributed to it. When it declared that the municipal
legislation of Hawaii not "contrary to the Constitution of the
United States" should remain in force, it meant that legislation
contrary to that instrument should not remain in force after
annexation. Those words were inserted out of abundant caution, to
make it certain that no municipal legislation of Hawaii contrary to
the Constitution should thereafter be regarded as in force. If the
above words did not have that effect, for what purpose were they
inserted? What local legislation was declared to be abrogated, if
not that which was "contrary to the Constitution?" Under the view
taken by the court, those words in the joint resolution are made
wholly inoperative.
It is said to be evident from the terms of the joint resolution
that Congress intended it to be merely temporary and provisional.
Of course, some further legislation by Congress was contemplated in
order to provide a complete territorial government for Hawaii. But
in language perfectly direct and explicit, Congress said that, in
the meantime, no municipal legislation
Page 190 U. S. 242
of Hawaii should be enforced that was "contrary to the
Constitution of the United States." And yet a trial conducted in a
mode forbidden by that instrument is now sustained as legal.
It is also said that "the
laws of the United States"
were not extended over the islands until the Organic Act of April
30, 1900, was passed. But, by the joint resolution of 1898,
Congress -- assuming that action upon its part to that end was
necessary -- did extend the
Constitution over the Hawaiian
Islands when it declared that the municipal legislation of Hawaii
"not contrary to the Constitution of the United States" should
remain in force. And yet the Court decides that, although the trial
of Mankichi, if tested by the Constitution, was illegal, it must be
sustained from the necessities of the case.
Again, it is said that the words "contrary to the Constitution"
in the joint resolution referred only to such provisions of that
instrument as were
applicable to Hawaii, and in support of
that view, reference is made to that part of the resolution which
keeps alive existing customs regulations between Hawaii and the
United States and other countries. It seems to me that the argument
based on that clause of the resolution is misleading and
fallacious. Customs regulations are not determined by the
Constitution. The authority to make them is given by that
instrument to Congress, and it was for Congress to say what should
be the nature of the customs regulations to be observed in Hawaii.
Its direction that existing Hawaiian regulations of customs duties
should remain in force until otherwise ordered was, in legal
effect, an adoption of them by Congress for the time being. Now,
the provisions as to grand and petit juries are in the
Constitution, and could not be altered by Congress under any power
it possessed. Their applicability, before civil tribunals, in a
territory of the United States, was determinable by the
Constitution itself. In other words, if the Constitution was in
force at all in Hawaii, prior to the act of 1900, it was in force
there for all it ordained, in respect at least, of the guarantees
of life and liberty. To sustain the prosecution of Mankichi upon
the ground that Congress did not intend to supersede the local law
permitting a
Page 190 U. S. 243
verdict in criminal cases by a majority of the petit jury, but
did intend to keep such law in force until altered or abrogated by
Congress, is, in effect, to say that, if Congress so ordered,
persons charged with crime in Hawaii could, consistently with the
Constitution, be tried before a single judge. It is not perceived
why the argument based upon the provision as to customs regulations
does not lead, logically, to such a result, nor how that provision
can have any bearing upon the present case, unless it be that the
power of Congress over criminal proceedings in Hawaii, involving
the life and liberty of a freeman, is as full, comprehensive, and
complete as it is over mere customs regulations. I cannot go that
far in upholding the power of Congress over what some are pleased
to call our "dependencies" or "outlying possessions," and the
"subjects" therein residing.
It is again said that the annexation of Hawaii, and the transfer
of its sovereignty, of whatsoever kind, to the United States, did
not so
incorporate it into the United States as to make
the Constitution supreme, in
all respects, in that newly
acquired territory. As the two countries desired that Hawaii, upon
annexation, should become "an integral part" of the United States;
as all the civil, military, and judicial officers of Hawaii were
required to take, and did take, an oath of allegiance to the United
States; as Hawaii passed under the "sovereign dominion" of the
United States and became subject to all valid laws, civil and
criminal, that Congress might enact; as its people may be subjected
to punishment for any crime or offense committed against the United
States; as by the authority of Hawaii the Hawaiian flag has come
down, and in its place that of the United States substituted, and
as Hawaiians cannot rightfully invoke for their protection the
authority of any government except that of the United States -- in
view of these relations between the two countries, it is, to my
mind, inconceivable that Hawaii was not so far incorporated into
the United States that the Constitution was in force there, after
the passage of the joint resolution of 1898, in respect at least,
of those personal rights which that instrument expressly guarded
against infringement
Page 190 U. S. 244
by any tribunal deriving authority from its provisions.
It is further said that, under the joint resolution of 1898, any
new legislation must conform to the Constitution of the
United States. This must mean that, after the passage of that
resolution the Constitution was operative in Hawaii to prevent new
legislation inconsistent with its provisions, but was not operative
there so as to prevent the enforcement of local enactments or
regulations that were confessedly in violation of that instrument.
I cannot forbear saying that this view of the Constitution is most
extraordinary. It does not commend itself to my judgment. I had
supposed that, when the Constitution came into operation in any
country or over any people, all local laws, customs, or usages
within the same jurisdiction that were inconsistent with its
provisions necessarily ceased to have any legal force whatever;
otherwise, the declaration of the Constitution that it was the
supreme law of the land would be meaningless.
But it is said that, while 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," yet the two rights created by the constitutional
provisions as to grand and petit jurors "are not fundamental in
their nature, but concern merely a method of procedure."
It is a new doctrine, I take leave to say, in our constitutional
jurisprudence that the framers of the Constitution of the United
States did not regard those provisions, and the rights secured by
them, as fundamental in their nature. It is an indisputable fact in
the history of the Constitution that that instrument would not have
been accepted by the required number of states, but for the promise
of the friends of that instrument at the time, that immediately
upon the adoption of the Constitution, amendments would be proposed
and made that should prevent the infringement by any
federal tribunal or agency, of the rights then commonly
regarded as embraced in Anglo-Saxon liberty; among which rights,
according to universal belief at that time, were those secured by
the provisions relating to grand and petit juries. Whatever may be
the power of the
Page 190 U. S. 245
states in respect of grand and petit juries, it is firmly
settled that the Constitution absolutely forbids the trial and
conviction, in a
federal civil tribunal, of anyone charged
with crime otherwise than upon the presentment or indictment of a
grand jury and the unanimous verdict of a petit jury composed, as
at common law, of twelve jurors.
In
Ex Parte
Milligan, 4 Wall. 120,
71 U. S. 121, the
accused, not in the Army of the United States, was tried by a
federal military court-martial for a crime against the United
States alleged to have been committed in a state that adhered to
the Union, and he was denied the right to a trial by jury. This
Court, referring to the provisions of the federal Constitution
relating to criminal offenses and proceedings, said:
"These securities for personal liberty, thus embodied, were such
as wisdom and experience had demonstrated to be necessary for the
protection of those accused of crime. . . . Time has proven the
discernment of our ancestors, for even these provisions, expressed
in such plain English words that it would seem the ingenuity of man
could not evade them, are now, after the lapse of more than seventy
years, sought to be avoided. Those great and good men foresaw that
troublous times would arise when rulers and people would become
restive under restraint and seek by sharp and decisive measures to
accomplish ends deemed just and proper, and that the principles of
constitutional liberty would be in peril unless established by
irrepealable law. The history of the world had taught them that
what was done in the past might be attempted in the future. The
Constitution of the United States is a law for rulers and people,
equally in war and in peace, and covers with the shield of its
protection all classes of men at all times, and under all
circumstances. No doctrine involving more pernicious consequences
was ever invented by the wit of man than that any of its provisions
can be suspended during any of the great exigencies of
government."
In
Ex Parte Bain, 121 U. S. 1,
121 U. S. 12-13,
the Court, referring to the constitutional provision relating to
grand juries, said:
"It is never to be forgotten that, in the construction of the
language of the Constitution here relied on, as, indeed, in all
other instances
Page 190 U. S. 246
where construction becomes necessary, we are to place ourselves
as nearly as possible in the condition of the men who framed that
instrument. Undoubtedly the framers of this article had for a long
time been absorbed in considering the arbitrary encroachments of
the Crown on the liberty of the subject, and were imbued with the
common law estimate of the value of the grand jury as part of its
system of criminal jurisprudence. They therefore must be understood
to have used the language which they did . . . in the full sense of
its necessity and of its value. We are of the opinion that an
indictment found by a grand jury was
indispensable to the power
of the court to try the petitioner for the crime with which he
was charged."
In
Thompson v. Utah, 170 U. S. 343,
170 U. S.
349-351, which was a case arising in an organized
territory, the question was whether the jury referred to in the
original Constitution of the United States, and in the Sixth
Amendment, was a jury constituted as it was at common law of twelve
persons, neither more nor less. This Court said:
"When Magna Charta declared that no freeman should be deprived
of life, etc., 'but by the judgment of his peers or by the law of
the land,' it referred to a trial by twelve jurors. . . . When
Thompson committed the offense of grand larceny in the Territory of
Utah --
which was under the complete jurisdiction of the United
States for all purposes of government and legislation -- the
supreme law of the land required that he should be tried by a jury
composed of not less than twelve persons. . . . When Thompson's
crime was committed, it was his constitutional right to demand that
his liberty should not be taken from him except by the joint action
of the court and the unanimous verdict of a jury of twelve
persons."
Nevertheless it is contended that the constitutional provisions
in question are not fundamental in their nature; that whether a
person charged, for instance, with murder, shall be convicted and
hung pursuant to a verdict rendered by a majority of the petit
jury, rather than by all the jurors, is only "a method of
procedure." My judgment refuses assent to this doctrine. I believe
it to be most mischievous in every aspect. The provisions as to
grand and petit juries and in the Constitution, and
Page 190 U. S. 247
the mandatory character of that instrument ought not to be
disregarded. What tribunal, deriving its authority from the United
States, can rightfully hold them to be immaterial? Whether those
provisions are fundamental in their nature or not, no federal Civil
tribunal, existing under the Constitution, and under a solemn
obligation to maintain and defend it, can properly or safely ignore
them. If the local law under which Mankichi was tried and convicted
was contrary to any provision of the Constitution, that instrument
should have been respected, whatever the nature of such
provision.
The opinion of the Court contains observations to the effect
that some persons heretofore convicted of crime in the Hawaiian
courts will escape punishment if the joint resolution of 1898 is so
interpreted as to make Congress mean what, it is conceded, the
words "contrary to the Constitution of the United States" naturally
import. In the eye of the law, that is of no consequence. The cases
cited by the Court fall far short of sustaining the proposition
that the court may reject the plain, obvious meaning of the words
of a statute in order to remedy what it deems an omission by
Congress. The consequences of a particular construction may be
taken into account only when the words to be construed are
ambiguous. If, after the passage of the joint resolution, the local
authorities proceeded in the prosecution of crimes under municipal
laws palpably contrary to the Constitution, the fault was theirs.
They were informed by the joint resolution of 1898, by the
Secretary of State, as well as by the proclamation of President
McKinley, announcing the annexation of Hawaii to the United States,
that only local legislation not contrary to the Constitution should
remain in force. Their fault cannot justify the Court in
disregarding the express command of Congress that only municipal
legislation that was consistent with the Constitution should remain
in force in Hawaii. If the accused is held in palpable violation of
that instrument, we cannot shrink from discharging him because of
its effect upon convictions in other cases. We must interpret the
law as it is written. As just stated, the doctrine is well settled
that, when the meaning of a statute is plain, there is no room for
interpretation. The
Page 190 U. S. 248
consequences are for the lawmaking power. If the intention of
the legislature
"is expressed in a manner devoid of contradiction and ambiguity,
there is no room for interpretation or construction, and the
judiciary are not at liberty, on considerations of policy or
hardship, to depart from the words of the statute; that they have
no right to make exceptions, or insert qualifications, however
abstract justice or the justice of the particular case may seem to
require it."
Sedgwick on Constr. of Stat. & Const.Law 253, 328.
"We are bound to take the act of Parliament as they have made
it; a
casus omissus can in no case be supplied by a court
of law, for that would be to make laws."
Jones v. Smart, 1 T. R. 44, 52.
"Arguments drawn from impolicy or inconvenience ought here to be
of no weight. The only sound principle is to declare
ita lex
scripta est, to follow, and to obey. Nor, if a principle so
just and conclusive could be overlooked, could there well be found
a more unsafe guide in practice than mere policy and
convenience."
Story on Const., vol. 1, sec. 426.
"I shall always deem it a duty to conform to the expressions of
the legislature, to the letter of the statute, when free from
ambiguity and doubt; without indulging a speculation either upon
the impolicy or the hardship of the law."
Mr. Justice Chase, in
Priestman v. United
States, 4 Dall. 30, note, note. When, therefore,
Congress, in words of perfectly clear and free from doubt; declared
that the municipal legislation of Hawaii not contrary to the
Constitution should remain in force, does not the Court usurp the
function of making laws when it rules that certain municipal
legislation of Hawaii was in force, although it was manifestly
contrary to the Constitution? Can it depart from the plain,
distinct words of the statute upon any ground of policy or to
remedy an omission by Congress?
I am of opinion: 1. That when the annexation of Hawaii was
completed, the Constitution -- without any declaration to that
effect by Congress, and without any power of Congress to prevent it
-- became the supreme law for that country, and therefore it
forbade the trial and conviction of the accused for murder
otherwise than upon a presentment or an indictment of a grand jury,
and by the unanimous verdict of a petit jury.
Page 190 U. S. 249
2. That if the legality of such trial and conviction is to be
tested alone by the joint resolution of 1898, then the law is for
the accused, because Congress, by that resolution, abrogated, or
forbade the enforcement of, any municipal law of Hawaii so far as
it authorized a trial for an infamous crime otherwise than in the
mode prescribed by the Constitution of the United States, and that
any other construction of the resolution is forbidden by its clear,
unambiguous words, and is to make, not to interpret, the law.
The judgment of the District Court of the United States for
Hawaii, discharging the accused, should be affirmed.