dissenting.
This case is of such exceptional importance in respect of the *227principles 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 7, 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 then determinable? The decision of the case depends upon the answer to these questions.
In 1897 a Treaty between the United States and the'Republic of Hawaii was signed by Secretary Sherman on behalf of the United States and by three Commissioners on the part of Hawaii. Senate Report No. 681, 55th Congress, 2d Sess. March 16, 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 P 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 Island 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.”
*228The 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 hind 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 Grown 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 apart 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 law's 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 puplic purposes.
_ “ Until Congress shall provide for the government of such Islands all the civil, judicial, and military powers exercised by the ofiicers of the existing government in said Islands shall be vested *229in 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 herein-before. provided, said. Government shall continue to pay the •interest on said debt.
“ There shall be no 'further immigration of Chinese info 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 toen ter. 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.
*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.” 30 Stat. 750.
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 Eesolution, 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 Whshingtomon the 16th day of June, 1897. They, as well as the other terms of that treaty, were advisedly incorporated in the Joint Eesolution, 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 Eepublic of Hawaii. The Joint Eesolution therefore accepts, ratifies and confirms On the part of the United States the cession formally agreed to and approved by the Ee-public of Hawaii. As by the adoption of the Joint Eesolution-the cession of the Hawaiian Islands and their dependencies to the United States is thus concluded, it is ¿ssumed 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 áre 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 *231for the Hawaiian Government to deliver to' yon 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 iii 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 offi-. cers 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 contra/ry 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 "cease. . . . These instructions will be borne to you by Rear Admiral Joseph N. Miller, U. S. Navy, who will proceed to *232Honolulu 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 1, 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 beep 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 *233Hawaii 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 Hole, 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 intrusted to him.’ Thereupon the American flag was raised as the band played the Star Spangled Banner, and saluted.”
The United States Minister then congratulated “ bis fellow-countrymen, ” on “theinevitable consummation of the national policies and the natural relations between the two countries now formally wnd 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 s-u'preme law of ¿he 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 ns 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 *234United - 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 Eesolution, 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. Eesolution 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, 1ST. It is not contended that that act can have any effect upon the decision of the present case, because the trial, conviction, sentence and imprison*235ment of the accused all occurred after the formal transfer to the United States pursuant to the Joint Eesolution of 1898, and before the passage of the above act of 1900. We must consequently determine the legality of the proceedings against Man-kiclii by the law as it was between the date of thé 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 Eesolution 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 Eesolution 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 Eesolution, “ 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 al-' legiance 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 Eeso-lution 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, *236then, 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 tmanimous 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, ivas subject, in all respects, to our sovereign dominion. It follows, under the view of the court, that Congress, -by non-action 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 *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 tbe'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 beenvachieved by the easy method of declaring that when Congress provided that only the municipal legislation of flawaii 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, 288, 289, 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 in so far as its provisions are applicable; ” that wherever a power is given by the *238Constitution 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 author^ necessarily limit its power on this subject; ” tha#“ 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 xelied on is applicable.” In these views the minority in Downes v. Bi ell, 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 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 *239Islands, 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 ? Á 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 o£ 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 only for certain peoples and territories under our jurisdiction. It would mean that the United States may acquire territory by 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 follow*240ing 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 eolonial 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 ¿ written Constitution, creating a govern-' ment 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 non-action, 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 *241Government to the exercise of only expressly enumerated powers and such other powers as m'ay -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 Constitutión should be interpreted to mean not whait 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, ft 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 hie 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 they were not intended to have that eifect, for what purpose were they inserted ? Whát 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 legis*242lation 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 sáy 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 ivas 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 *243verdict 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 offence, 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 in*244fringement 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 11 from the moment of annexation,” yet-the two rights created by the constitutional provisions as to grand and petit jurors K-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 Unitéd 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 *245States in-respect of grand and petit juries, it is firmly settled that the Constitution absolutely forbids tbe trial and conviction, in a Federal civil tribunal, of any one 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. 2, 120, 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 offences 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, 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 *246where 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 juryas part of its system of criminal jurisprudence. They, therefore, must be understood to have used the language which they did ... in the full sens,e 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, 349, 350, 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 offence 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 triqd 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 are in the Constitution, and *247the 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 *248consequences 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; 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 scrijpta 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. When therefore Congress, in words 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: tv 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 indictment of a grand jury, and by the unanimous verdict of a petit jury. *2492. That if1 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* abro?, gated 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,, mid i& 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.