concurring.
My views in reference to what are called the Insular .Questions have been fully expressed in the opinions filed by me in Downes v. Bidwell, 182 U. S. 244, 375; Hawaii v. Mankichi, 190 U. S. 197, 226; Dorr v. United States, 195 U. S. 138, 154. I adhere to what has been said in those opinions, and do not *529care to restate here the grounds upon which I proceeded in former cases.
The particular question arising in the present case is whether that section of the act of Congress of June 6, 1900, c. 786, relating to Alaska, which provides “that hereafter in trials for misdemeanors six persons shall constitute a legal jury,” is consistent with the Constitution of the United States. I content .myself in this case with stating only the general .reasons for the conclusion which I have reached on that question.
Immediately upon the. ratification in 1867 of the treaty by which Alaska was acquired from Russia, that Territory, as I think, came under the complete, sovereign jurisdiction and authority of the United States, and, without any formal action on the part of Congress in recognition or enforcement of. the treaty, and whether Congress wished such a result or hot, the inhabitants of that Territory became at once entitled to the benefit of all the guarantees found in the Constitution of the United States for the protection of life, liberty, and property.
After such ratification no person charged with the commission of a crime against the United States in that Territory could be legally tried therefor otherwise than by what this court. has adjudged to be the jury of the Constitution.
The constitutional requirement that “the trial of all crimes, except in cases of impeachment, shall be by jury” means,- as this court has adjudged, a trial by the historical, common law jury of twelve persons, and applies to all crimes against the United States committed in any territory, however acquired, over which, for purposes of government, the United States has sovereign dominion.'
No'tribunal or person can exércise authority involving life or liberty, in any territory of the'United States, organized or unorganized, except in harmony with the Constitution.
Congress cannot suspend the operation of the Constitution in any territory after it has come under the sovereign authority of ¿he United States, nor, by any affirmative enactment, or *530by mere non-action, can Congress prevent the Constitution from being the supreme law for.any peoples subject to the jurisdiction of the United States.
The power conferred upon Congress io make néedful rules and regulations respecting the' Territories of the United States does not authorize Congress to make any rule or regulation inconsistent with the Constitution or violative of 'any right secured by that instrument.
The proposition that a people subject to the full authority of the United States for purposes of government, may, under any circumstances, or for any period of time, long or short, be governed, as Congress pleases to ordain, without regard to the Constitution, is, in my judgment, inconsistent with the whole theory of our institutions.
If the Constitution does not become the supreme law in a Territory acquired by treaty, and-whose inhabitants are under the dominion of the United States, until Congress, in some distinct form, shall have expressed its will to that effect, it would necessarily follow that,, by positive enactment, or simply by non-action, Congress, under the theory of “incorporation,” and although a mere creature of the Constitution, could forever withhold from the inhabitants of such Territory the benefit of the guaranties of life, liberty and property as set forth in- the Constitution. I cannot assent to any such doctrine. I cannot agree that the supremacy of the Constitution depends upon the will of Congress.
As these are my views upon the underlying questions presented by the record, I cannot concur in all the reasoning in the opinion.of the court. But I entirely concur in the judgment holding the act of Congress in question to be void. I do so, not upon the ground that Alaska had been previously “incorporated” into the United States by the legislation of Congress, but upon the ground that the right of the accused to a trial by the jury of 'the Constitution became complete immediately upon the acquisition of Alaska by treaty, and before any legislation upon the subject by Congress — indeed, *531without any power in Congress to acid to or impair or destroy that right.