Page:Harvard Law Review Volume 12.djvu/499

OUR NEW POSSESSIONS. 479 ago, a seaman upon an American vessel, charged with murder com- mitted in the waters of Japan, was tried in that country before the American consul and four associates. Against his objection that he was entitled to be accused by a grand jury and tried by a petit jury, he was found guilty by the consular tribunal and sentenced to death. The President of the United States commuted his sen- tence to imprisonment for life in the State prison at Albany. Ten years later the convict sought by a writ of habeas corpus for a discharge on the ground that he was held in violation of the Con- stitution in that he was entitled to a jury and a grand jury; and that the legislation of Congress, under the treaty, providing for the consular tribunal which tried him, was unconstitutional. But he was remanded, and the court declared, by the mouth of Mr. Justice Field, that the Constitution had established a government " for the United States of America, and not for countries outside their limits. The guaranties it affords," they went on to say, "... apply only to citizens and others within the United States, or who are brought there for trial for alleged offences committed elsewhere, and not to residents or temporary sojourners abroad." ^ We observe in such a case that our Congress may constitu- tionally authorize a capital trial without cither jury or grand jury, notwithstanding the express provisions of the Constitution and its amendments. The reason is that these provisions are not appli- cable to this sort of case. The Constitution has to be read side by side with the customs and laws of nations. The operation of our Constitution is not to create a legislative body which is wholly bereaved of power to do anywhere the things which are forbid- den within the United States. It is not stricken with inability, destitute of power, as if paralyzed, on these subjects, anywhere and everywhere and under all circumstances. The prohibitions, although they do not say it, deal only with certain circumstances and persons and places. But to return to the specific question as to the situation of the territories. Hawaii, as I have said, is now a " territory ; " and other islands, although' not made " territories " by the treaty, may be- come such by Act of Congress. It is probably the prevailing legal opinion to-day that a citizen of a territory is a citizen of the United States, and that children born in the territories and subject to our national jurisdiction are citizens of the United States. Probably, 1 In re Ross, 140 U. S. 453.