Fred Dorr v. United States, No. 583

CourtUnited States Supreme Court
Writing for the CourtDay
Citation24 S.Ct. 808,49 L.Ed. 128,195 U.S. 138
Docket NumberNo. 583
Decision Date31 May 1904
PartiesFRED. L. DORR and Edward F. O'Brien, Plffs. in Err., v. UNITED STATES

195 U.S. 138
24 S.Ct. 808
49 L.Ed. 128
FRED. L. DORR and Edward F. O'Brien, Plffs. in Err.,

v.

UNITED STATES.

No. 583.
Argued April 21, 22, 1904.
Decided May 31, 1904.

Page 139

No brief or argument for plaintiff in error.

Solicitor General Hoyt and Mr. Lebbeus R. Wilfley for defendant in error.

Mr. Justice Day delivered the opinion of the court:

The case presents the question whether, in the absence of a statute of Congress expressly conferring the right, trial by jury is a necessary incident of judicial procedure in the Philippine Islands, where demand for trial by that method has been made by the accused, and denied by the courts established in the islands.

The recent consideration by this court, and the full discussion had in the opinions delivered in the so-called 'Insular cases,' renders superfluous any attempt to reconsider the constitutional relation of the powers of the government to territory acquired by a treaty cession to the United States. De Lima v. Bidwell, 182 U. S. 1, 45 L. ed. 1041, 21 Sup. Ct. Rep. 743; Downes v. Bidwell, 182 U. S. 244, 45 L. ed. 1088, 21 Sup. Ct. Rep. 770. The opinions rendered in those cases cover every phase of the question, either legal or historical, and it would be useless to undertake to add to the elaborate consideration of the subject had therein. In the still more recent case of Hawaii v. Mankichi, 190 U. S. 197, 47 L. ed. 1016, 23 Sup. Ct. Rep. 787, the right to a jury trial in outlying

Page 140

territory of the United States was under consideration. For the present purpose it is only necessary to state certain conclusions which are deemed to be established by prior adjudications, and are decisive of this case.

It may be regarded as settled that the Constitution of the United States is the only source of power authorizing action by any branch of the Federal government. 'The government of the United States was born of the Constitution, and all powers which it enjoys or may exercise must be either derived expressly or by implication from that instrument.' Downes v. Bidwell, 182 U. S. 244-288, 45 L. ed. 1088-1106, 21 Sup. Ct. Rep. 770, and cases cited. It is equally well settled that the United States may acquire territory in the exercise of the treaty-making power by direct cession as the result of war, and in making effectual the terms of peace; and for that purpose has the powers of other sovereign nations. This principle has been recognized by this court from its earliest decisions. The convention which framed the Constitution of the United States, in view of the territory already possessed and the possibility of acquiring more, inserted in that instrument, in article 4, § 3, a grant of express power to Congress 'to dispose of and make all needful rules and regulations respecting the territory or other property belonging to the United States.'

As early as the February term, 1810, of this court, in the case of Sere v. Pitot, 6 Cranch, 332, 3 L. ed. 240, Chief Justice Marshall, delivering the opinion of the court, said:

'The power of governing and of legislating for a territory is the inevitable consequence of the right to acquire and to hold territory. Could this position be contested, the Constitution of the United States declares that 'Congress shall have power to dispose of and make all needful rules and regulations respecting the territory or other property belonging to the United States.' Accordingly we find Congress possessing and exercising the absolute and undisputed power of governing and legislating for the territory of Orleans. Congress has

Page 141

given them a legislative, an executive, and a judiciary, with such powers as it has been their will to assign to those departments respectively.'

And later, the same eminent judge, delivering the opinion of the court in the leading case upon the subject (American Ins. Co. v. 356 Bales of Cotton, 1 Pet. 511, 542, 7 L. ed. 242, 255), says:

'The Constitution confers absolutely on the government of the Union the powers of making war and of making treaties; consequently that government possesses the power of acquiring territory, either by conquest or by treaty.

'The usage of the world is, if a nation be not entirely subdued, to consider the holding of conquered territory as a mere military occupation, until its fate shall be determined at the treaty of peace. If it be ceded by the treaty, the acquisition is confirmed, and the ceded territory becomes a part of the nation to which it is annexed, either on the terms stipulated in the treaty of cession, or on such as its new master shall impose. On such transfer of territory it has never been held that the relations of the inhabitants with each other undergo any change. Their relations with their former sovereign are dissolved, and new relations are created between them and the government which has acquired their territory. The same act which transfers their country transfers the allegiance of those who remain in it; and the law, which may be denominated political, is necessarily changed, although that which regulates the intercourse and general conduct of individuals remains in force until altered by the newly-created power of the state.

'On the 22d of February, 1819, Spain ceded Florida to the United States. The 6th article of the treaty of cession contains the following provision: 'The inhabitants of the territories which His Catholic Majesty cedes the United States by this treaty shall be incorporated in the Union of the United States as soon as may be consistent with the principles of the Federal Constitution, and admitted to the enjoyment of the privileges, rights, and immunities of the citizens of the United States.' [8 Stat. at L. 256.]

Page 142

'This treaty is the law of the land, and admits the inhabitants of Florida to the enjoyment of the privileges, rights, and immunities of the citizens of the United States. It is unnecessary to inquire whether this is not their condition, independent of stipulation. They do not, however, participate in political power; they do not share in the government till Florida shall become a state. In the meantime Florida continues to be a territory of the United States, governed by virtue of that clause in the Constitution which empowers Congress 'to make all needful rules and regulations respecting the territory or other property belonging to the United States."

While these cases, and others which are cited in the late case of Downes v. Bidwell, 182 U. S. 244-288, 45 L. ed. 1088-1106, 21 Sup. Ct. Rep. 770, sustain the right of Congress to make laws for the government of territories, without being subject to all the restrictions which are imposed upon that body when passing laws for the United States, considered as a political body of states in union, the exercise of the power expressly granted to govern the territories is not without limitations. Speaking of this power, Mr. Justice Curtis, in the case of Scott v. Sandford, 19 How. 614, 15 L. ed. 787, said:

'If, then, this clause does contain a power to legislate respecting the territory, what are the limits of that power?

'To this I answer that, in common with all the other legislative powers of Congress, if finds limits in the express prohibitions on Congress not to do certain things; that, in the exercise of the legislative power, Congress cannot pass an ex post facto law or bill of attainder; and so in respect to each of the other prohibitions contained in the Constitution.'

In every case where Congress undertakes to legislate in the exercise of the power conferred by the Constitution, the question may arise as to how far the exercise of the power is limited by the 'prohibitions' of that instrument. The limitations which are to be applied in any given case involving territorial government must depend upon the relation of the particular territory to the United States, concerning which Congress is exercising the power conferred by the Constitution. That

Page 143

the United States may have territory which is not incorporated into the United States as a body politic, we think was recognized by the framers of the Constitution in enacting the article already considered, giving power over the territories, and is sanctioned by the opinions of the justices concurring in the judgment in Downes v. Bidwell, 182 U. S. 244-288, 45 L. ed. 1088-1106, 21 Sup. Ct. Rep. 770.

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.

For this case the practical question is, Must Congress, in establishing a system for trial of crimes and offenses committed in the Philippine Islands, carry to their people by proper affirmative legislation a system of trial by jury?

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 [30 Stat. at L. 1759], 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 temporary civil government (32 Stat. at L. 691, chap. 1369), there is express provision that § 1891 of the Revised Statutes of 1878 shall...

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176 practice notes
  • Al Bahlul v. United States, No. 11–1324.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (District of Columbia)
    • July 14, 2014
    ...(Harlan, J., concurring)); see Balzac v. Porto Rico, 258 U.S. 298, 42 S.Ct. 343, 66 L.Ed. 627 (1922) (Puerto Rico); Dorr v. United States, 195 U.S. 138, 24 S.Ct. 808, 49 L.Ed. 128 (1904) (U.S.-occupied Philippines); Hawaii v. Mankichi, 190 U.S. 197, 23 S.Ct. 787, 47 L.Ed. 1016 (1903) (pre-s......
  • Gautier Torres v. Mathews, Civ. No. 75-1331.
    • United States
    • United States District Courts. 1st Circuit. District of Puerto Rico
    • February 14, 1977
    ...U.S. 222, 21 S.Ct. 762, 45 L.Ed. 1074 (1901); Downes v. Bidwell, 182 U.S. 244, 21 S.Ct. 770, 45 L.Ed. 1088 (1901); Dorr v. United States, 195 U.S. 138, 24 S.Ct. 808, 49 L.Ed. 128 (1904); Balzac v. Porto Rico, 258 U.S. 298, 42 S.Ct. 343, 66 L.Ed. 627 (1922). 3 For some contemporary legal thi......
  • Tuaua v. United States, Civil Case No. 12–01143(RJL).
    • United States
    • United States District Courts. United States District Court (Columbia)
    • June 26, 2013
    ...part of the United States and were not on a path toward statehood. See, e.g., Downes, 182 U.S. at 312, 21 S.Ct. 770;Dorr v. United States, 195 U.S. 138, 143, 24 S.Ct. 808, 49 L.Ed. 128 (1904); see also United States v. Verdugo–Urquidez, 494 U.S. 259, 268, 110 S.Ct. 1056, 108 L.Ed.2d 222 (19......
  • Ali Hamza Ahmad Suliman Al Bahlul v. United States, No. 11–1324.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (District of Columbia)
    • July 14, 2014
    ...(Harlan, J., concurring)); see Balzac v. Porto Rico, 258 U.S. 298, 42 S.Ct. 343, 66 L.Ed. 627 (1922) (Puerto Rico); Dorr v. United States, 195 U.S. 138, 24 S.Ct. 808, 49 L.Ed. 128 (1904) (U.S.-occupied Philippines); Hawaii v. Mankichi, 190 U.S. 197, 23 S.Ct. 787, 47 L.Ed. 1016 (1903) (pre-s......
  • Request a trial to view additional results
173 cases
  • Al Bahlul v. United States, No. 11–1324.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (District of Columbia)
    • July 14, 2014
    ...(Harlan, J., concurring)); see Balzac v. Porto Rico, 258 U.S. 298, 42 S.Ct. 343, 66 L.Ed. 627 (1922) (Puerto Rico); Dorr v. United States, 195 U.S. 138, 24 S.Ct. 808, 49 L.Ed. 128 (1904) (U.S.-occupied Philippines); Hawaii v. Mankichi, 190 U.S. 197, 23 S.Ct. 787, 47 L.Ed. 1016 (1903) (pre-s......
  • Gautier Torres v. Mathews, Civ. No. 75-1331.
    • United States
    • United States District Courts. 1st Circuit. District of Puerto Rico
    • February 14, 1977
    ...U.S. 222, 21 S.Ct. 762, 45 L.Ed. 1074 (1901); Downes v. Bidwell, 182 U.S. 244, 21 S.Ct. 770, 45 L.Ed. 1088 (1901); Dorr v. United States, 195 U.S. 138, 24 S.Ct. 808, 49 L.Ed. 128 (1904); Balzac v. Porto Rico, 258 U.S. 298, 42 S.Ct. 343, 66 L.Ed. 627 (1922). 3 For some contemporary legal thi......
  • Tuaua v. United States, Civil Case No. 12–01143(RJL).
    • United States
    • United States District Courts. United States District Court (Columbia)
    • June 26, 2013
    ...part of the United States and were not on a path toward statehood. See, e.g., Downes, 182 U.S. at 312, 21 S.Ct. 770;Dorr v. United States, 195 U.S. 138, 143, 24 S.Ct. 808, 49 L.Ed. 128 (1904); see also United States v. Verdugo–Urquidez, 494 U.S. 259, 268, 110 S.Ct. 1056, 108 L.Ed.2d 222 (19......
  • Ali Hamza Ahmad Suliman Al Bahlul v. United States, No. 11–1324.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (District of Columbia)
    • July 14, 2014
    ...(Harlan, J., concurring)); see Balzac v. Porto Rico, 258 U.S. 298, 42 S.Ct. 343, 66 L.Ed. 627 (1922) (Puerto Rico); Dorr v. United States, 195 U.S. 138, 24 S.Ct. 808, 49 L.Ed. 128 (1904) (U.S.-occupied Philippines); Hawaii v. Mankichi, 190 U.S. 197, 23 S.Ct. 787, 47 L.Ed. 1016 (1903) (pre-s......
  • Request a trial to view additional results
3 books & journal articles
  • The Insular Cases Run Amok: Against Constitutional Exceptionalism in the Territories.
    • United States
    • Yale Law Journal Vol. 131 Nbr. 8, June 2022
    • June 1, 2022
    ...by grand jury does not apply to the Philippines); Dowdell v. United States, 221 U.S. 325, 332 (1911) (same); Dorr v. United States, 195 U.S. 138,149 (1904) (concluding that Congress is not required to guarantee the right to trial by jury in unincorporated territories like the Philippines). ......
  • Indigenous Subjects.
    • United States
    • Yale Law Journal Vol. 131 Nbr. 8, June 2022
    • June 1, 2022
    ..."fundamental" restrictions may nevertheless constrain Congress); Hawaii v. Mankichi, 190 U.S. 197, 201 (1903); Dorr v. United States, 195 U.S. 138, 144, 148 (1904); Balzac, 258 U.S. at 312. "Fundamental" in the territories is not the same as "fundamental" in the states. Whereas rights apply......
  • Aurelius' Article III Revisionism: Reimagining Judicial Engagement with the Insular Cases and 'The Law of the Territories'.
    • United States
    • Yale Law Journal Vol. 131 Nbr. 8, June 2022
    • June 1, 2022
    ...(11.) Dowries v. Bidwell, 182 U.S. 244, 287 (1901). (12.) Id. at 306 (White, J., concurring); see also Dorr v. United States, 195 U.S. 138, 145-48 (1904) (hesitating to limit flexible application of the Constitution in future scenarios where the United States, "impelled by its duty and adva......

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