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Hawaii Organic Act: Congressional debates on Hawaii Organic Act

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In McAllister vs. the United States, Mr. Justice Harlan delivered 
the opinion and repeated the language of the court in the Mormon 
Church vs. United States.	
In Thompson vs. Utah. Mr. Justice Harlan, delivering the opinion of the court, said:
That the provisions of the Constitution of the United States relating to the 
right of trial by jury in suits at common law apply to the Territories of the 
United States is no longer an open question. (Webster vs. Reid, 11 How., 437. 460; 
American Publishing Company vs. Fisher, 166 U. S., 464,468; Springville vs. 
Thomas, 166 U. S., 707.) In the last-named case it was claimed that the 
Territorial legislature of Utah was empowered by the organic act of the Ter-
ritory of September 9,1850 (9 Stat. 453, chapter 516), to provide that unanimity of 
action on the part of jurors in civil cases was not necessary to a valid verdict. 
This court said: In our opinion the seventh amendment secured unanimity in 
finding a verdict as an essential feature of trial by jury in common-law cases, 
and the act of Congress could not impart the power to change the constitutional 
rule, and could not be treated as attempting to do so.
In Murphy vs. Ramsey, Mr. Justice Matthews, delivering the opinion of the 
court, said:
The personal and civil rights of the inhabitants of the Territories are 
secured to them, as to other citizens, by the principles of constitutional lib-
erty, which restrain all the agencies of government, State and national; their 
political rights are franchises which they hold as privileges in the legislative 
discretion of the Congress of the United States.
In Reynolds vs. United States, Mr. Chief Justice Waite, delivering the opinion of 
the court, said:
Congress can not pass a law for the government of the Territories which 
shall prohibit the free exercise of religion. The first amendment to the Constit- 
ution expressly forbids such legislation. Religious freedom is guaranteed 
everywhere throughout the United States, so far as Congressional interfer-
ence is concerned.
In Callan vs. Wilson, Mr. Justice Harlan, delivering the opinion of the court, said:
There is nothing in the history of the Constitution or of the original amend-
ments to justify the assertion that the people of this District (District of 
Columbia) may be lawfully deprived of the benefits of any of the constitu-
tional guaranties of life, liberty, and property, especially of the privilege of 
trial by jury in criminal cases.
In the draft of a constitution reported by the committee of five on the 6th of 
August, 1787, in the convention which framed the Constitution, the fourth 
section of Article XI read that "the trial of all criminal offenses (except in 
cases of impeachment) shall be by jury." (1 Elliot's Debates, 2d edition, 
889.) But that article was, by unanimous vote, amended so as to read:" The 
trial of all crimes (except in cases of impeachment) shall be by jury; and 
such trial shall be held in the State where the said crime shall have been 
committed; but when not committed within any State, then the trial shall be 
at such place or places as the legislature may direct." (Id., 270.)
The object of thus amending the section, Mr. Madison says, was " to pro-
vide for trial by jury of offenses committed out of any State." (3 Madison 
Papers, 144.) In Reynolds vs. The United States (98 U. S.. 145,154) it was 
taken for granted that the sixth amendment of the Constitution secured to 
the people of the Territories the right of trial by jury in criminal prosecu-
tions; and it had previously been held in Webster vs. Reid (11 How., 437,460) 
that the seventh amendment secured to them a like right in civil actions at 
common law. We can not think that the people of this District have in that 
regard less rights than those accorded to the people of the Territories of the 
United States.
Justice Deady, in the case from Alaska (30 Fed. Rep., 115), said:
The power to enlarge the number and limits of the United States by the 
admission of new States into the Union is also expressly given to Congress. In 
the construction of this power it has been practically held to authorize the 
Acquisition of territory not then qualified for such admission, and the gov-
ernment of the same by Congress in the meantime, and until it is deemed 
fitted therefor.
In the exercise of this power, however, Congress can not do or authorize any 
act or pass any law forbidden by the Constitution, as suspending the writ of 
habeas corpus in the time of peace; passing a bill of attainder or ex j post 
facto law; quartering soldiers in a house without the consent of the owner in 
time of peace; making a law respecting the establishment of religion; bat it 
may exercise any legislative power not expressly forbidden to it by the 
Constitution, and to this there maybe a further limit that the same shall not be 
inconsistent with the spirit and genius of that instrument, nor contrary to the 
purpose for which territory may be acquired. Subject to these limitations the 
manner in which this power can be exercised rests in the discretion of 
I ask now-and I will not use the word" challenge "-any of my colleagues who 
have asserted this extraordinary doctrine that the Constitution is dead in the 
Territories until the breath of life is breathed into it by Congress or by treaty to 
find me one single allusion in all these cases to the effect that Congress has 
applied the Constitution by direct act to these Territories or that treaty stipulations 
had done the same thing.
What intelligent lawyer believes that the Supreme Court of the United States 
would have disposed of this great question without alluding to the fact that there was 
a treaty stipulation which ex-tended the Constitution to the New Mexican territory, or 
the North-western territory, or the Louisiana territory, or the Florida territory, or 
that Congress had in 1871 passed an act applying the power of the Constitution 
to the District of Columbia, set apart for the seat of government?
Here are cases which I have collated, showing that the right of trial by jury could 
not be taken away from the inhabitants of the District of Columbia. Is there 
anything in these decisions stating that that right could not be taken away because 
the territory of the District of Columbia was carved out of Maryland and Virginia or 
ceded by them to the National Government; that the Constitution having
spread its aegis over this territory, once a part of these two States, it must remain there 
for all time to come? 
    Is it possible that the nine eminent jurists upon the Supreme Bench did not see 
and know that this point disposed of the whole controversy?   When was it ever heard 
that an act of Congress was necessary to extend the Constitution until this new 
doctrine of imperialism was brought before the people of the United States?
Why, Mr. President, if that be the law, in what a deplorable condition must 
have been the inhabitants of the Territory of Oregon, which we took from Great Britain 
upon a compromise, when Colonel Benton declared in his first speech in the United 
States Senate, when that controversy was before Congress, that he could take 10,000 
Missourians and settle it in a fortnight? Colonel Ben-ton believed in manifest destiny, 
and that the soil of the United States or of this continent belonged to the white 
men; and he largely sympathized with the idea that the Indians and the Latin races 
must give place to the white man, as the buffalo had given place to the domestic 
If this doctrine be true, as I said, then in Oregon, when it was a Territory and 
before its admission into the Union as a State, the people there could have been 
hung without a trial by jury; they could have been made to pay tithes to an 
established church not-withstanding the Constitution of the United States forbade 
it; they could have had soldiers quartered upon them in time of peace; they could have 
been refused the right of the writ of habeas corpus, and they were left at the mercy of 
Congress to enact any such laws as a partisan majority might see fit to place upon the 
statute book, there being no treaty stipulation nor act of Congress extending the 
Constitution over that Territory.
I repeat that this doctrine is utterly abhorrent. It violates every principle of 
republican government. It goes further even than England has ever gone with some 
of her colonies, because in Canada and Australia to-day the great writs of right to 
obtain which the commons of England made war upon their kings and barons are 
extended to the people in these territories. In the Crown colonies this doctrine 
which is sought now to be applied to Puerto Rico and the Philippines obtains to its 
full extent, but not so in Canada and Australia.
Mr. President, I now repeat that I heartily approve of this bill before the Senate. 
It contains no such unconstitutional provision as that in the Puerto Rico bill, 
declaring that 25 per cent of the present tariff taxes shall be levied upon Puerto 
Rican imports. The Constitution says that-
Congress shall have power to lay and collect taxes, duties, imposts, and excises: * * * but 
all duties, imposts, and excises shall be uniform throughout the United States.
Is Puerto Rico a part of the United States or not? Will some Senator on the 
other side answer me that question and remove any nebulosity about this 
argument? Is Puerto Rico a part of the United States or entirely outside of its 
domain and jurisdiction? If it is a part of the United States, where do you get the 
authority to place upon the imports from that country one-fourth of what you put 
upon the imports from another, and by what right do you place an export duty, as 
is done in the bill pending in another portion of this Capitol, when the 
Constitution says expressly that no export duty shall be imposed either by the 
United States or any State? Where do you find the constitutional power to make this 
discrimination as to one part of the territory of this country, or at least territory which 
is under our jurisdiction?
Mr. President, we are told that the people there are not citizens. What do yon 
propose to do with the fourteenth amendment, which declares that all persons 
born or naturalized in the United States, and subject to the jurisdiction thereof, 
shall not be deprived of their rights as citizens of the United States? No State shall 
make any law abridging that right. What do you do with the children that are 
born in Puerto Rico and the Philippines? What becomes of the young Malay who 
grows and becomes 21 years of age and demands his right as a citizen because he 
was born in the jurisdiction of the United States? Yon are driven to the alternative 
of saying that the Philippines are not within the jurisdiction of the United States, 
when you know that your Army and Navy are being used to-day to enforce the 
Federal power in those islands.
Mr. President, I do not know, nor shall I pretend to prophesy, what is to be the 
end of these strange and monstrous doctrines. It may be that I have the 
pessimism of advanced years; but. it seems to me that we have come to the most 
critical period in all our history. The war between the States was not any covert at-
tack upon the Constitution of the country. It was an open, bold, armed revolution. 
The men who fought the Federal authority honestly believed that they were fighting 
for the Constitution, and gave the highest evidence of their sincerity in laying down 
their lives in defense of what they believed.
"Eternal vigilance is the price of liberty," said Andrew Jack-son. And now here, 
not with arms in our hands, but through the

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