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 ivas 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. *22230 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 Y and YI were applicable to the Territory of Hawaii after August 12, 1898, the district judge was right, and Mankichi was entitled to he discharged.
The annexation resolution contained three sections, and, omitting the second and third as not material here, is given in the margin.1
*223By the speoific 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 Puífe’ndorf and Plowden.
The argument ab inconvenienti, without more, is an unsafe guide, and departure from the plain 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 empanel a *224grand 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 Ha-, waii as it existed just prior to the transfer of sovereignty; required such officers to take an oath of allegiance to the United *225States; 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 prohibitedJexcept 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 *226artificial rights on the other, but of the fundamental rights of every person living under the sovereignty of the United States inrespect 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, 549, it was said by Mr. Justice Harlan, speaking for the court: “ And as the guarantee of a trial by jury, iii 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 abusé ” 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 énact 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 usé of the local government, shall be used solely for the benefit of theinhabitants 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 ex*223ist, or as maybe 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.” ’