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MR. JUSTICE DAY delivered
the opinion of the court MR. JUSTICE PECKHAM,
concurring.
MR. JUSTICE HARLAN, dissenting
I do not believe now any more than I did when
Hawaii v. Mankichi, 190 U.S. 197, was decided, that the provisions
of the Federal Constitution as to grand and petit juries relate
to mere methods of procedure and are not fundamental in their
nature. In my opinion, guaranties for the protection of life,
liberty and property, as embodied in the Constitution, are for
the benefit of all, of whatever race or nativity, in the States
composing the Union, or in any territory, however acquired, over
the inhabitants of which the Government of the United States may
exercise the powers conferred upon it by the Constitution.
The Constitution declares that no person, except
in the land or naval forces, shall be held to answer for a capital
or otherwise infamous crime, except on the presentment or indictment
of a grand jury; and forbids the conviction, in a criminal prosecution,
of any person, for any crime, except on the unanimous verdict
of a petit jury composed of twelve persons. Necessarily, that
mandate was addressed to every one committing crime punishable
by the United States. This court, however, holds that these provisions
are not fundamental and may be disregarded in any territory acquired
in the manner the Philippine Islands were acquired, although,
as heretofore decided by this court, they could not be disregarded
in what are commonly called the organized territories of the United
States. Thompson v. Utah, 170 U.S. 343. I cannot assent to this
interpretation of the Constitution. It is, I submit, so obviously
inconsistent with the Constitution that I cannot regard the judgment
of the court otherwise than as an amendment of that instrument
by judicial construction, when a different mode of amendment is
expressly provided for. Grand juries and petit juries may be,
at times somewhat inconvenient in the administration of criminal
justice in the Philippines. But such inconveniences are of slight
consequence compared with the dangers to our system of government
arising from judicial amendments of the Constitution. The Constitution
declares that it "shall be the supreme law of the land."
But the court in effect adjudges that the Philippine Islands are
not part of the "land," within the meaning of the Constitution,
although they are governed by the sovereign authority of the United
States, and although their inhabitants are subject in all respects
to its jurisdiction -- as much so as are the people in the District
of Columbia or in the several States of the Union. No power exists
in the judiciary to suspend the operation of the Constitution
in any territory governed, as to its affairs and people, by authority
of the United States. As a Filipino committing the crime of murder
in the Philippine Islands may be hung by the sovereign authority
of the United States, and as the Philippine Islands are under
a civil, not military, government, the suggestion that he may
not, of right, appeal for his protection to the jury provisions
of the Constitution, which constitutes the only source of the
power that the Government may exercise at any time or at any place,
is utterly revolting to my mind, and can never receive my sanction.
The Constitution, without excepting from its provisions any persons
over whom the United States may exercise jurisdiction, declares
expressly that "the trial of all crimes, except in cases
of impeachment, shall be by jury." It is now adjudged that
that provision is not fundamental in respect of a part of the
people over whom the United States may exercise full legislative,
judicial and executive power. Indeed, it is adjudged, in effect,
that the above clause, in its application to this case, is to
be construed as if it read: "The trial of all crimes, except
in cases of impeachment, and except where Filipinos are concerned,
shall be by jury." Such a mode of constitutional interpretation
plays havoc with the old-fashioned ideas of the fathers, who took
care to say that the Constitution was the supreme law -- supreme
everywhere, at all times, and over all persons who are subject
to the authority of the United States. According to the principles
of the opinion just rendered, neither the Governor nor any American
civil officer in the Philippines, although citizens of the United
States, although under an oath to support the Constitution, and
although in those distant possessions for the purpose of enforcing
the authority of the United States, can claim, of right, the benefit
of the jury provisions of the Constitution, if tried for crime
committed on those Islands. There are many thousands of American
soldiers in the Philippines. Besides, they are there by command
of the United States to enforce its authority. They carry the
flag of the United States, and have not lost their American citizenship.
Yet, if charged in the Philippines with having committed a crime
against the United States of which a civil tribunal may take cognizance,
they cannot, under the present decision, claim of right a trial
by jury. So that, if an American soldier, in discharge of his
duty to his country, goes into what some call our "outlying
dependencies," he is, it seems, "outside of the Constitution,"
in respect of a right which this court has said was justly "dear
to the American people," and has "always been an object
of deep interest and solicitude, and every encroachment upon it
has been watched with great jealousy;" a right which, Mr.
Justice Story said, was from very early times insisted on by our
ancestors in the parent country "as the great bulwark of
their civil and political liberties." Parsons v. Bedford,
3 Pet. 433, 446; 2 Story's Const. § 1779. Referring to the
declaration by a French writer, that Rome, Sparta and Carthage
having lost their liberties, those of England must in time perish,
Blackstone observed that the writer "should have recollected
that Rome, Sparta and Carthage, at the time their liberties were
lost, were strangers to the trial by jury." 2 Bl. Comm. 379.
In a former case I had occasion to say, and
I still think, that "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;" 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."
My views as to the scope and meaning of the
provisions of the Constitution which relate to grand and petit
juries, and as to the relations of the United States to our newly
acquired possessions, have been more fully stated in cases heretofore
decided in this court, 1 and
I have therefore not deemed it necessary in the present case to
enter upon a review of the authorities.
I dissent from the opinion and judgment of
the court.
---- Begin EndNotes ----
1 Hurtado
v. California, 110 U.S. 516, 538; Thompson v. Utah, 170 U.S. 343;
Maxwell v. Dow, 176 U.S. 581, 605; Downes v. Bidwell, 182 U.S.
244, 375; Hawaii v. Mankichi, 190 U.S. 197, 221, 226.
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