1912.] OF THE UNITED STATES. 303 



The question of the appHcabiHty to the treaty-making power of 

 the first eight amendments to the Constitution (appended hereto as 

 note 7) is one which should in this connection be considered. An 

 examination of the Insular Cases will show that the question of 

 the applicability of these amendments and of the other constitu- 

 tional restrictions on State action, to the new possessions of the 

 United States, revealed considerable divergence in opinion among 

 the justices who decided these cases. Before these decisions it had 

 been held that the amendments (the sixth and seventh were particu- 

 larly in controversy) controlled the action of the United States in 

 the District of Columbia, in the Indian Territory, and in the Terri- 

 tories generally. ^^ After, however, Porto Rico, Hawaii, and the 

 Philippines had been acquired, although the prior cases have been 

 approved, a disposition has been manifested to apply a different 

 principle toward determining the applicability of the constitutional 

 restraints on Federal action. In Hawaii vs. Alankichi^- the appellee 

 had been convicted of manslaughter on an indictment not found 

 by a grand jury, and by a vote of a petit jury of 9 to 3. This had 

 been the usual course of procedure in Hawaii prior to annexation. 

 The joint resolution of Congress had provided : 



" 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 Con- 

 gress of the United States shall otherwise determine." 



It was held that this resolution failed to state the intention of Con- 

 gress, which could not have been, said the court, " to interfere with 

 the existing practice when such interference would result in im- 

 perilling the peace and good order of the islands. '"■'•■' Mr. Justice 

 White and Mr. Justice AIcKenna added their conviction that the 

 constitutional provisions could not apply in toto upon annexation, 

 but that the language of the congressional resolution "clearly 



"Callan vs. Wilson, 127 U. S., 540 (1888), Cook vs. United States, 138 

 U. S., 157 (1891), American Publishing Company vs. Fisher, 166 U. S., 464 

 (1897). Thompson vs. Utah, 170 U. S., 343 (1898). 



"'190 U. S., 197 (1903). 



^ 190 U. S., p. 214. 



