Rassmussen v. United States, 197 U.S. 516 (1905)

MR. JUSTICE BROWN, concurring:

I am disposed to concur in the conclusion of the Court upon the ground that, by the treaty of cession with Russia, it was provided that

the inhabitants of the ceded territory . . . shall be admitted to the enjoyment all the rights, advantages, and immunities of citizens of the United States, and shall be maintained and protected in the free enjoyment of their liberty, property, and religion.

I am inclined to think, though with some doubt, that those words include a right to a trial by a jury as understood among us from the adoption of the Constitution. I certainly should not dissent if the case were put upon that ground.

The tenor of the opinion, however, is such that I should be doing an injustice to myself if I failed to express my views upon the doctrine of incorporation. My position regarding the applicability of the Constitution to newly acquired territory is contained in the opinion delivered by me in Downes v. Bidwell, 182 U.S. 244. It is simply that the Constitution does not apply to territories acquired by treaty until Congress has so declared, and that, in the meantime, under its power to regulate the territories, it may deal with them regardless of the Constitution except so far as concerns the natural rights of their inhabitants to life, liberty, and property.

A different view, however, was expressed in a concurring opinion by MR. JUSTICE WHITE, to the effect that, when Congress "incorporated" territory into the United States, it resulted that, in governing such territory,

all the limitations of the Constitution which are applicable to Congress in exercising this authority necessarily limit its power on this subject. It follows also that every provision of the Constitution which is applicable to the territories is also controlling therein, . . . and the determination of what particular provision of the Constitution is applicable, generally speaking, in all cases, involves an inquiry into the situation of the territory, and its relation to the United States.

The question was thus briefly stated: "Had Porto Rico, at the time of the passage of the act in question, been incorporated into and become an integral part of the United States?" If it had, the inference was that the Constitution applied in all its force.

This, however, was not the opinion of the Court; it was certainly not the opinion of the justice who announced the conclusion and judgment of the Court; it was wholly disclaimed by the four dissenting justices, who held that the Constitution applied the moment the territory was ceded and became the property of the United States, and that no act of incorporation was necessary. It was simply the individual opinion of three members of the Court. The point was not pressed upon our attention in the briefs or arguments of counsel in that case. It is but faintly suggested in the briefs in this case. It has never since that time received the indorsement of this Court, and in my opinion is wholly unnecessary to the disposition of this case.

My own view is and has been that Congress, in dealing with newly acquired territory, is unfettered by the Constitution unless it formally or by implication extends the Constitution to it, and that it may accept a cession of territory, institute a temporary government there, as it has done in a large number of instances, without thereby extending the Constitution over it. In the general act, Rev.Stat. sec. 1891, Congress did declare that

the Constitution, and all laws of the United States which are not locally inapplicable, shall have the same force and effect within all the organized territories, and in every territory hereafter organized, as elsewhere within the United States.

If the Act of May 17, 1884, providing a civil government for Alaska, 23 Stat. 24, be regarded as organizing a territory there, it would follow that such territory at once fell within Rev.Stat. sec. 1891, and the Constitution was extended to it without further action. The first article declares that Alaska "shall constitute a civil and judicial district, the government of which shall be organized and administered as hereinafter provided." Had the opinion treated the territory as organized under this act, I should not have dissented from this view, since section 1891 would have applied to it.

Congress did undoubtedly provide a permanent civil government for Alaska by the Act of June 6, 1900, 31 Stat. 321, but it evidently did not regard the Constitution as extended to it by any previous act, since it provided in section 171 for trials of misdemeanors by a jury of six.

There are so many difficulties connected with the applicability of the Constitution that it has seemed to me that the only true test was whether Congress intended to apply it or not in the particular case. When is a territory incorporated so as to make the Constitution applicable in all its provisions? That some action on the part of Congress is necessary to extend the Constitution to the territories was settled in Downes v. Bidwell, but shall such action be direct, or may it be indirect by way of incorporation? May Congress, in organizing or incorporating a territory, restrict the application of the Constitution to it, or must it give it all? What is an organized, as distinguished from an incorporated, territory? Does not the acceptance of a cession of territory and the appointment of a civil governor work an incorporation of the territory as territory of the United States? If the acceptance of territory as territory of the United States be not an incorporation, what language is necessary to effect that result? Apparently acceptance of the territory is insufficient in the opinion of the Court in this case, since the result that Alaska is incorporated into the United States is reached not through the treaty with Russia or through the establishment of a civil government there, but from the Act of July 20, 1868, concerning internal revenue taxation, and the Act of July 27, 1868, extending the laws of the United States relating to the customs, commerce, and navigation over Alaska and establishing a collection district there. Certain other acts are cited, notably the Judiciary Act of March 3, 1891, making it the duty of this Court to assign the several territories of the United States to particular circuits. But no mention is made either of the Act of May 17, 1884, providing a civil government for Alaska, or the Act of June 6, 1900, making further provision for a civil government and establishing a complete code of laws. These seem to me the vital acts upon the status of Alaska; yet they are completely ignored in the opinion of the Court, and the fact of incorporation is sought to be established by what seem to me remote inferences from immaterial statutes. Indeed, I regard the whole theory of the extension of the Constitution by the incorporation of territory as a new departure in federal jurisprudence, and that the true answer to the question whether the Constitution applies to a territory is to be found in the fact whether Congress has extended the Constitution to it or not.

That the mere act of incorporating territory into the United States does not, of its own force, carry the Constitution there, regardless of the wishes of Congress, is evident from the case of Hawaii v. Mankichi, 190 U.S. 197, wherein it was held that, notwithstanding the island had been annexed to the United States "as a part of the territory of the United States, and subject to the sovereign dominion thereof," yet it was possible for Congress to declare that

the municipal legislation of the Hawaiian Islands, not enacted for the fulfillment of the treaties so extinguished, and not inconsistent with this joint resolution, nor contrary to the Constitution of the United States, nor to any existing treaty of the United States, shall remain in force until the Congress of the United States shall otherwise determine.

While the government provided by this resolution was temporary in its character, and a mere continuance of existing laws, the act itself was as complete an incorporation of the islands as it was possible for language to make it. The resolution declared that "said cession" of the Republic of Hawaii

is accepted, ratified, and confirmed, and that the said Hawaiian Islands and their dependencies be, and they are hereby, annexed as a part of the territory of the United States, and are subject to the sovereign dominion thereof.

In view of this language, I do not see how it is possible to escape the conclusion that there was a plain incorporation by Congress of these islands, and an extension of sovereignty over them. Notwithstanding this, however, we held that the conviction of one who, between the date of the Newlands resolution and the date of establishing a civil government, had been tried on information and convicted by a nonunanimous jury, was legal, though not in compliance with the Fifth and Sixth Amendments to the Constitution, upon the ground that the Constitution was not formally extended to them until the territory was organized, June 14, 1900. 31 Stat. 141, sec. 5. This case shows the impossibility of applying the doctrine of incorporation without an accurate definition of the term. Hitherto we have been content to divide our territories into the organized and unorganized, but now we are asked to introduce a new classification of "incorporated" territories, without attempting to define what shall be deemed an incorporation. The word appears to me simply to introduce a new element of confusion, and to be of no practical value. Rev.Stat. sec. 1891, declaring that the Constitution shall have force and effect within all the organized territories and in every territory hereafter organized, seems to meet the requirements of every case, and to be operative wherever Congress does not, in the organization, restrict the application of the Constitution in some particular.

In Dorr v. United States, 195 U.S. 138, the question was presented, as stated by MR. JUSTICE DAY, whether,

in the absence of a statute of Congress expressly conferring the right, trial by jury is a necessary incident of judicial procedure in the Philippine Islands, where demand for trial by that method has been made by the accused and denied by the courts established in the islands.

In discussing the case, it was said that not only has Congress hitherto refrained from incorporating the Philippine Islands into the United States, but in the act of 1902, providing for temporary civil government, 32 Stat. 691, there was an express provision that Rev.Stat. sec. 1891 should not apply to the Philippine Islands. This is the section giving force and effect to the Constitution of the United States, not locally inapplicable, within the organized territories. The case simply holds that, as Congress did not extend the right of trial by jury to the Philippine Islands, and had not so incorporated them as to make the provision apply by implication, the right did not exist. The cases of Steamer Coquitlam, 163 U.S. 346, and Binns v. United States, 194 U.S. 486, are too obviously inapplicable to require comment.

I do not dissent from the conclusion of the Court in this case, but I do dissent from the proposition that Congress may not deal with territories as it pleases until it has seen fit to extend the provisions of the Constitution to them, which, once done, in my view, is irrevocable. I regret that the disputed doctrine of incorporation should have been made the mainstay of the opinion of the Court when the case might so easily have been disposed of upon grounds which would have evoked no utterance of disapproval.