304 BURR— THE TREATY-MAKING POWER [April 20, 



referred only to the provisions of the Constitution which were 

 appHcable and not to those which were inapplicable."-'^ The Chief 

 Justice and Justices Harlan, Brewer, and Peckham dissented. Said 

 Mr. Justice Harlan in a learned and earnest opinion: 



[The principle underlying the decision of the majority of the Court] 

 " would place Congress above the Constitution. It would mean that the 

 benefit of the constitutional provisions designed for the protection of 

 life and liberty may be claimed by some of the people subject to 

 the authority and jurisdiction of the United States, but cannot be claimed 

 by others equally subject to its authority and jurisdiction. ... It would 

 mean that, if the principles now announced should become firmly estab- 

 lished, the time may not be far distant when, under the exactions of 

 trade and commerce, and to gratify an ambition to become the dominant 

 political power in all the earth, the United States will acquire territories in 

 every direction, which are inhabited by human beings, over which territories, 

 to be called ' dependencies ' or ' outlying possessions,' we will exercise abso- 

 lute dominion, and whose inhabitants will be regarded as 'subjects' or 

 ' dependent peoples,' to be controlled as Congress may see fit, not as the Con- 

 stitution requires, nor as the people governed may wish. Thus will be en- 

 grafted upon our republican institutions, controlled by the supreme law of 

 a written constitution, a colonial system entirely foreign to the genius of our 

 Government and abhorrent to the principles that underlie and pervade the 

 Constitution. It will then come about that we will have two governments 

 over the peoples subject to the jurisdiction of the United States, one exist- 

 ing under a written Constitution, creating a government with authority to 

 exercise only powers expressly granted and such as are necessary and appro- 

 priate to carry into effect those so granted; the other, existing outside of the 

 written Constitution, in virtue of an unwritten law to be declared from time 

 to time by Congress, which is itself only a creature of that instrument.""^ 



In Dorr z'S. United States,^** the decision in Hawaii I's. Mankichi is 

 approved and followed."' The court lays down the following prin- 

 ciple as controlling: 



" Until Congress shall see fit to incorporate territory ceded by treaty into 

 the United States, we regard it as settled by that decision that the territory 

 is to be governed under the power existing in Congress to make laws for such 

 territories and subject to such constitutional restrictions upon the powers of 

 that body as are applicable to the situation.""^ 



"■• 190 U. S., p. 221. 



"° 190 U. S., pp. 238-40. 



'"195 U. S., 138 (1904). 



"' See also the case of Rassmussen vs. United States, 197 U. S., 516 

 (1905), wherein the constitutional provisions were declared to be applicable 

 to Alaska. 



"' 195 U. S., p. 143. 



