In Rassmussen v. United States,16 decided in 1905, it was held that Alaska had been incorporated into the United States, and, therefore, that the inhabitants were entitled to jury trial. The court did not, however, attempt to lay down any definite rule for determining when incorporation has taken place, but contented itself with quoting the following sentences from the opinion in Dorr v. United States, and holding that the treaty by which Alaska had been acquired, and the legislation of Congress subsequent thereto, did not bring that Territory within the category of unincorporated Territories according to the test implied in the sentences quoted. These quoted sentences were as follows: "If the treaty-making power could incorporate territory into the United States without congressional action, it is apparent that the treaty with Spain, ceding the Philippines to the United States, carefully refrained from so doing; for it is expressly provided that (article 9) 'the civil rights and political status of the native inhabitants of the territories hereby ceded to the United States shall be determined by the Congress.' In this language it is clear that it was the intention of the framers of the treaty to reserve to Congress, so far as it could be constitutionally done, a free hand in dealing with these newly acquired possessions. The legislation upon the subject shows that not only has Congress hitherto refrained from incorporating the Philippines into the United States, but in the act of 1902, providing for the temporary civil government (32 Stat, at L. 691, Chap. 13.69), there is express provision that Sec. 1891 of the Revised Statutes of 1878 shall not apply to the Philippine Islands."

In this Rassmussen case the attempt had been made to maintain the doctrine that, even if incorporated, Alaska was not entitled to the right in question for the reason that it had not been made an "organized" Territory. This contention, however, the court held clearly unsound. Incorporation, and not organization, it was declared was the test as to the general applicability of the Constitution. Justice Brown concurred, but, as might have been expected from his position in Downes v. Bidwell, held that the general applicability of the Constitution depended not upon the fact of incorporation, but upon whether Congress had by some expression of its will clearly shown that it intended that the particular provision of the Constitution should apply.

16197 U. S. 516; 25 Sup. Ct. Rep. 514; 49 L. ed. 862.

Justice Harlan in a concurring opinion- again stated his doctrine that the Constitution in all its .provisions extends ex proprio vigorè over all Territories immediately upon annexation to the United States. I cannot agree," he said, "that the supremacy of the Constitution depends upon the will of Congress."