In the separate opinion which he prepared, Justice Harlan was especially emphatic in his repudiation both of the doctrine asserted by Justice Brown that the Constitution was created" by the people of the United States, as a union of States, to be governed solely by representatives of the States," and of the theory of the other four justices as to the status of unincorporated Territories.10

66

§ 180. Summary and Criticism of Downes v. Bidwell.

In order fully to appreciate the radical character of the doctrine held by the four justices who concurred with Justice Brown in the judgment in the Downes case, it is necessary clearly to appreciate that, it was held, in effect, that this so-called incorporation of a Territory by Congress in the United States is not an act, the commission of which is determined by facts, but only by the formal declaration of an intention, express or implied, by Congress. So long as this intention is not declared, a territory is declared to remain unincorporated in the United States notwithstanding the fact that, as was the case in Porto Rico, a complete territorial government may have been created, federal courts established, with the right of appeal therefrom to the United States Supreme Court, and all the local officials required to take an oath to support the Constitution of a Union of which they were

10" In view of the adjudications of this court," he declares, "I cannot assent to the proposition, whether it be announced in express words or by implica tion, that the National Government is a government of or by the States in union, and that the prohibitions and limitations of the Constitution are addressed only to the States. That is but another form of saying that, like the government created by the Articles of Confederation, the present government is a mere league of States, held together by a compact between themselves; whereas, as this court has often declared, it is a government created by the people of the United States, with enumerated powers, and supreme over States and individuals with respect to certain objects, throughout the entire territory over which its jurisdiction extends. If the National Government is in any sense a compact, it is a compact between the people of the United States among themselves as constituting in the aggregate the political community by whom the National Government was established. The Constitution speaks, not simply to the States in their organized capacities, but to all peoples, whether of States or Territories, who are subject to the authority of the United States."

Lot a part. E-pecially diffult to opt is the declaration that the treaty-making power of the Natinal Givernment is by itself incompetent to add territory to the United States in a domestic, constitutional sense. The authingy of treaty-making power to annex territory is conceded: the Constitution itself places treaties upon a plane of equality with the statutes of Congress; and the Supreme Court has repeatedly armed that a subsequent treaty operates as a repeal of all arts of Congress ins.nsistent with it; wherefore it would seem irresistible to follow that when the treaty making power has accepted an unoon Hitical cession of territory to the United States, that act is as absolutely valid and as fully operative as though Congress itself had legislated upon the subject. To assert the contrary is, in effect, to say that the treaty making and the law-making powers are not coordinate in authority, the express provision of the Constitution to the contrary notwithstanding.

Another objection to the doctrine of the Downes case which it seems absolutely impossible to overcome, is that, in reality, it does not simply assert the right of Congress to legislate regarding unincorporated territory without regard to some of the limitations imposed by the Constitution, but declares that in the exercise of this absolute power Congress may, in effect at least, disregard those same restrictions with reference to the inhabitants of the States of the Union. No argument is needed to show that a tariff law which affects articles taken from a State to an unincorporated territory, or from the latter to the former, affects the inhabitants. of both, and cannot therefore be said to be simply a local law. But if not limited in its effects to the unincorporated territory in question, it would seem to be an act necessarily subject to the constitutional limitations placed upon Congress when legislating for the States. It is, therefore, impossible to escape the argument of the dissenting justices in the Downes case when they say: "Conceding that the power to tax for the purposes of territorial government is implied from the power to govern territory, whether the latter power is attributed to the power to acquire or the power to make needful rules and regulations, these particular duties are

nevertheless not local in their nature, but are imposed as in the exercise of national powers. The levy is clearly a regulation of commerce, and a regulation affecting the States and their people as well as this Territory and its people. . . . In any point of view, the imposition of duties on commerce operates to regulate commerce, and is not a matter of local legislation; and it follows that the levy of these duties was in the exercise of the national power to do so, and subject to the requirement of geographical uniformity."

Lastly, it may be said in objection to the doctrines declared in the Downes case, that in attempting to give to Congress a right to legislate for certain Territories under United States sovereignty, free from certain limitations placed by the Constitution upon its powers, there is seriously weakened, if not, from a strictly logical standpoint, absolutely destroyed, that most fundamental principle of our constitutional jurisprudence according to which all the provisions of the Constitution are equally binding upon Congress. The distinction that is made between the absolute prohibitions of legislative power and the limitations imposed by the Constitution upon the exercise of the powers that are granted, is clearly not calculated to support the conclusion that Congress under certain circumstances may disregard the latter when it may not the former. As Chief Justice Fuller declared in his dissenting opinion: "It is idle to discuss the distinction between a total want of power and a defective exercise of it;" and again, "The powers delegated by the people to their agents are not enlarged by the expansion of the domain within which they are exercised. When the restriction on the exercise of a particular power by a particular agent is ascertained, that is an end to the question. To hold otherwise is to overthrow the basis of our constitutional law." Mr. Carlisle in the address from which we have already once quoted, has also shown so clearly the fallacy of the argument of the prevailing opinion upon this point we may quote his words. He says: "The distinction attempted to be taken between the obligatory force of absolute prohibitions upon the power of Congress and the obligatory force of limitations and qualifications im

posed by the Constitution upon the exercise of its powers over a particular subject, cannot, in my opinion, be sustained by any sound process of reasoning. It is true that there is a difference in degree between an absolute denial of all power to do a particular thing and a grant of power to do that thing to a limited extent, or in a prescribed manner only; but the absolute prohibition and the express or implied limitation are equally obligatory upon Congress. It is bound to obey both or its act is void. . To say that Congress, in legislating for a Territory, is not bound by the constitutional limitations upon a granted power, but is or may be bound by the express prohibitions, is simply to assert that all parts of the Constitution are not of equal force and effect as restraints upon legislation, and that a power not granted may be constitutionally exercised if it is not expressly prohibited, a theory, which, if sanctioned by the judiciary, would at once revolutionize the government. It would no longer be a government of enumerated and delegated powers, but would possess the whole mass of sovereign power which is now vested in the people, subject only to the comparatively few express prohibitions."

It will have been seen that the net result of the decision in Downes v. Bidwell, whether we follow the reasoning of Justice Brown, or of the four justices who concurred in the judgment rendered, is that as to Territories which have not been incorporated into the United States (or, according to Justice Brown, over which the Constitution has not been extended by act of Congress) Congress is not limited by some of the restrictions enumerated or implied in the Constitution. Just which of these limitations do not, in such cases, control Congress, it remains for the Supreme Court to determine in each particular case as the point arises.

In Downes v. Bidwell it was held that the restriction that "all duties, excises, and imposts shall be uniform throughout the United States" does not apply.

§ 181. Status of Hawaii: Hawaii v. Mankichi.

In Hawaii v. Mankichi" it was held that the provisions of the Fifth and Sixth Amendments with reference to indictment by a 11 190 U. S. 197; 23 Sup. Ct. Rep. 787; 47 L. ed. 1016.

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

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