In Hawaii v. Mankichi1,1 it was held that the provisions of the Fifth and Sixth Amendments with reference to indictment by a grand jury and trial by petit jury, also did not apply. The facts and questions of law involved in this case were these. The Joint Resulution of Congress of July 7, 1898, had provided for the annexation of the Hawaiian Islands "as a part of the territory of the United States, and subject to the sovereign dominion fere of." The Resolution. Indeed, expressly declared that "The municipal legislation of the Hawaiian Islands . . . 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 shall otherwise determine." After the annexation to the United States, Congress not having determined otherwise, the defendant in error, Mankichi, was tried for and convicted of manslaughter according to the usual course of procedure in force in the Republic of Hawaii prior to July 7, 1893, which course of procedure did not require the indictment to be found by a grand jury, and which permitted a less number than the entire twelve of the petit jury to convict. An application for a writ of habeas corpus having been made by Mankichi upon the ground that, according to the Constitution of the United States, no one might be tried for manslaughter except upon an indictment or presentment found by a grand jury, nor convicted except by a unanimous petit jury, and the case having been appealed to the Supreme Court of the United States, that tribunal was called upon to determine: first, whether it was the intention and the necessary effect of the annexing Joint Resolution to make these constitutional provisions immediately applicable to the islands; and secondly, if it did not, whether it lay within the power of Congress or of the authorities of Hawaii to deny to the accused the rights in question. Both of these questions the majority of the court, five justices, answered in the affirmative.

11 190 U. S. 197; 23 Sup. Ct. Rep. 787; 47 L, ed. 1016.

Here, however, as in Downes v. Bidwell, the justices constituting the majority did not agree in their reasoning. Justice Brown, in his opinion, admitting that a literal interpretation of the Resolution would support "Mankichi's claim, but arguing ab inconvenienti, asserts that it could not have been the intention of Congress "to interfere with the existing practice, when such interference would result in imperilling the peace and good order of the islands-" "Of course under the Newlanda resolution," he continues, "any new legislation must conform to the Constitution of the United States; but how far the exceptions to the existing municipal legislation were intended to abolish existing laws must depend somewhat upon circumstances. Where the immediate application of the Constitution required no new legislation to take the place of that which the Constitution abolished, it may be well held to have taken immediate effect; but where the application of a procedure hitherto well known and acquiesced in left nothing to take its place, without new legislation, the result might be so disastrous that we might well say that it could not have been within the contemplation of Congress. In all probability the contingency which has actually arisen occurred to no one at the time. If it had, and its consequences were foreseen, it is incredible that Congress should not have provided against it. It is not intended here to decide that the words ' nor contrary to the Constitution of the United States' are meaningless. Clearly they would be operative upon any municipal legislation thereafter adopted, and upon any proceedings thereafter had, when the application of the Constitution would not result in the destruction of existing provisions conducive to the peace and good order of the community. Therefore we should answer without hesitation in the negative the question put by counsel for the petitioner in their brief: 'Would municipal statutes of Hawaii, allowing a conviction of treason on circumstantial evidence, or on the testimony of one witness, depriving a person of liberty by the will of the legislature and without process or confiscating private property for public use without compensation, remain in force after an annexation of the territory to the United States, which was conditioned upon the extinction of all legislation contrary to the Constitution?' We would even go farther, and say that most, if not all, the privileges and immunities contained in the Bill of Rights of the Constitution were intended to apply from the moment of annexation; but we place our decision of this case upon the ground that the two rights alleged to be violated in this case are not fundamental in their nature, but concern merely a method of procedure which sixty years of practice had shown to be suited to the conditions of the islands, and well calculated to conserve the rights of their citizens to their lives, their property, and their well being."

In a concurring opinion Justices White and McKenna base their conclusion on the doctrine that by the annexing Resolution Congress had not intended to incorporate the islands eo instanti into the United States. With regard to the .provision that the municipal legislation of Hawaii not contrary to the Constitution of the United States should remain in force, they say: "Now, in so far as the Constitution is concerned, the clause subjecting the existing legislation which was provisionally continued to the control of the Constitution, clearly referred only to the provisions of the Constitution which were applicable, and not to those which were inapplicable. In other words, having, by the resolution itself, created a condition of things absolutely incompatible with immediate incorporation, Congress, mindful that the Constitution was the supreme law, and that its applicable provisions were operative at all times, everywhere, and upon every condition and persons, declared that nothing in the Joint Resolution continuing the customs legislation and local law should be considered as perpetuating such laws, where they were inconsistent with those fundamental provisions of the Constitution which were, by their own force, applicable to the territory with which Congress was dealing."

Chief Justice Fuller and Justices Brewer, Peckham, and Harlan dissented. The first three ef these, after adverting to the impropriety of an argument ab inconvenienti, content themselves simply with the statement that, as a matter of fact, the provision of the resolution of annexation which has been quoted above, validating all existing legislation, except such as might be contrary to the Constitution of the United States, should be construed as having extended over the islands the Fifth and Sixth Amendmerits to that instrument. Justice Harlan, however, in his dissenting opinion, in addition to this, attacks the validity of the position assumed by the majority that it was within the constitutional power of Congress to exclude from operation in -a territory, incorporate or not incorporate, any of the provisions of the Constitution.12

In effect, then, the prevailing doctrine of this Mankichi case is to hold that, the provisions of the Constitution guaranteeing indictment and trial by jury are among those limitations which do not control Congress in legislating for unincorporated Territories, or, according to Justice Brown, for such Territories as have not had the Constitution extended over them by act of Congress.