OPINION OF THE COURT BY
GALBRAITH, J.
(Frear, C.J., dissenting.)
This was an original proceeding on a writ of habeas corpus issued on the petition of George L. Edwards, and the return thereto.
The petitioner was charged on an indictment found by the Circuit Judge of the First Circuit, Island of Oahu, Hawaiian Islands with'the offense of an attempt to commit sodomy; was tried and convicted on the 16th day of August, A. D., 1898, by the concurrence of ten of the twelve jurors, and sentenced by the court to imprisonment at hard labor for a term of five years. The return admits that 'he is now held in the Oahu Prison, Territory of'Hawaii,'under the commitment' issued in- pursuance of the conviction and sentence as alleged in the petition.
The indictment against the petitioner was- returned- under Sec/ 616'of the Penal Code of 1897 of the Republic of Hawaii, which reads:1 “The necessary bills of indictment -shall be duly prepared by a legal'prosecuting officer, and be duly presented -to [34]*34the presiding judge of the court before the arraignment of the accused, and such judge shall, after examination, certify upon each bill of indictment whether he finds the same a true bill.”
The provision of the code relative to the verdict of juries reads as follows: “Sec. 1345. No jury for the trial of any case^ civil or criminal, shall be less than twelve in number; but when nine of the jury shall agree upon a verdict, they may render the same and such verdict shall be as valid and binding upon the parties as if rendered by all twelve.”
It is contended by the petitioner that his indictment, conviction and sentence were void, and his detention is now illegal, in this that he was placed upon trial for an infamous crime without an indictment by a grand jury and was convicted by the minority verdict of a jury and thus denied the rights and privileges guaranteed bim under the 5th and 6th Amendments of the Constitution of the United States.
It is contended on behalf of the Territory that the petitioner was legally convicted under the laws of the Republic of Hawaii, that no act of Congress had, at that time, extended the Constitution and laws of the United States to the Hawaiian Islandsi, and that these amendments, or any other parts of the Constitution of the United States, were not in force on the Hawaiian Islands, at the time of his conviction and sentence, to-wit, Aug. 16th, 1898.
In passing upon the question raised in this case we cannot overlook the history of the long and laborious struggle for the Annexation of the Hawaiian Islands to the United States, extending over a period of nearly half a century and ending with tbe passage of the Joint Resolution by the United States Congress and its approval by President McKinley on the 7th day of July A. D. 1898; nor forget the fact that one of the strong arguments for annexation was that American civilization had long been established in these islands and its people and institutions would easily and naturally adapt themselves to and be assimilated with American law and government.
The constitution of the Republic of Hawaii, adopted in 1894, contained this provision: “The President, with the approval of the Cabinet, is hereby expressly authorized and empowered to [35]*35make a Treaty of Political or Commercial Union between tbe Republic of Hawaii and the United States of America, subject to the ratification of the Senate.” Art. 32.
A treaty of annexation was negotiated by the Representatives of the United States and the Republic of Hawaii in February 1893, and withdrawn from the consideration of the United States Senate by the President, in March following, and another treaty was made on June 17th, 1897. This last treaty was pending before the United States Senate for ratification when the Joint Resolution was passed.
This resolution reads in part as follows:
“joint RESOLUTION
TO PROVIDE FOR ANNEXING THE HAWAIIAN ISLANDS TO THE UNITED
STATES.
“Whereas the Government of the Republic of Hawaii having, in due form signified its consent, in the manner provided by its constitution, to cede absolutely and without reserve to the United States of America all rights of sovereignty of whatsoever kind in and over the Hawaiian Islands and their dependencies, and also to cede and transfer to the United States the absolute fee and ownership of all public, Government or Crown lands, public buildings or edifices, ports, harbors, military equipment, and all other public property of every kind and description belonging to the Government of the Hawaiian Islands together with every right and appurtenance thereunto appertaining; therefore,
“Resolved by the Senate and the House of Representatives of the United States of America in Congress assembled, that said cession is accepted, ratified and confirmed, and that the said Hawaiian Islands and their dependencies be, and they are hereby annexed as a part of the territory of the United States, and are subject to the sovereign dominion thereof, and that all and singular the property and rights hereinbefore mentioned are vested in the United States of America.” ****** “The existing treaties of the Hawaiian Islands with foreign nations shall forthwith cease and determine, being replaced by such treaties as may exist, or as may be hereafter concluded between the United States and such foreign nation. The municinal legislation of the Hawaiian Islands, not enacted for the fulfillment of the treaties so extinguished, and not inconsistent with this [36]*36Joint 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 Congress of the United States shall otherwise determine.” 30 U. S. Statutes at Large p. 750.
On the 12th day of August, A. D., 1898, four days prior to the conviction of the petitioner, the ceremonies attending the formal transfer of the sovereignty and public property of the Republic of Hawaii occurred; the Hawaiian flag was lowered from the Capitol Building and the American flag raised into place. The public property was delivered to and accepted by the representative of the United States.
Prior to the signing of the resolution of annexation the Republic’ of Hawaii had been an independent sovereignty. She had long occupied a picturesque position among the governments of the world. Although annexation was brought about by the mutual efforts and in compliance with the desire of both .governments when annexation became an accomplished fact, the Republic of Hawaii passed into history; there was no “union” or “marriage” as has been claimed, there was' absorption — annihilation. In the language of the resolution “the Hawaiian Islands and their dependencies” were “annexed as a part of the territory of the United States,” and at once became “subject to the sovereign dominion thereof.”
The Joint Resolution further provided “until Congress shall provide for the government of such islands all the civil, judicial and military powers exercised by the officers of the existing government in said islands shall be vested in such person or persons ■and shall be exercised in such manner as the President of the United States shall direct; and the President shall have power to remove said officers and fill the vacancies so occasioned.”
' Chief Justice Taney says on the subject of newly acquired territory: “There is certainly no power given by the constitution to the federal government to establish, or maintain, colonies, bordering on the United States, or at a’ distance, to be ruled and governed at its own pleasure.”
-“The power to’expand, the territory of the United States by the admission of new states is plainly given, and,’in the con[37]*37struction of this power by all the departments of the government, it has been held to authorize the acquisition of territory not fit for admission at the time, but to be admitted as soon as its population and situation would entitle it to be admitted.
It is acquired to become a state, and not to be held as a colony, and governed by Congress with absolute authority.
A power therefore in the general government to obtain and hold colonies and dependent territories, over which they might legislate without restriction, would be inconsistent with its own existence in its present form. * * * It cannot create for itself a new character, separate from the citizens of the United States, and the duties it owes them under the constitution. The territory being a part of the United States, the government and the citizens both enter it under the constitution, with their respective rights defined and marked out; and the federal government can exercise no power over his person or property beyond what that instruments confers, nor lawfully deny any right which it has reserved. * * * It could confer no power on any local government established by its authority to violate the provisions of the constitution.” Scott v. Sa/ndford, 19 How. H. S. 450-1-2-3.
“It cannot be admitted that the King of Spain (said Justice Daniels) could by treaty or otherwise, impart to the Hnited States any of his royal prerogatives; and much less can it be admitted that they have capacity to receive, or power to exercise them.
“Every nation acquiring territory by treaty or otherwise must hold it subject to the constitution and laws of its own government, and not according to those of the government ceding it.” Pallod’s Lessees v. Hagan, 3 How. 225.
In the license cases, 5 How. 613, Mr. Justice Daniel again said “Laws of the Hnited States,” in order to be binding, must be within the legislative powers vested by the constitution.
Treaties to be valid must be within the scope of the same powers for there can be no “authority of the Hnited States” save what is derived mediately, or immediately, and regularly and legitimately from the constitution.”
Chief Justice Marshall, speaking for the Supreme Court of the Hnited States relative to the territory of Florida acquired by the Hnited States by treaty from the King of Spain, said on the subject of the status of territory ceded by treaty: “The con[38]*38slitution confers absolutely on tbe government of tbe Union tbe powers of making war and of making treaties. Consequently, tbat government possesses the power of acquiring territory, either by conquest or treaty. Tbe usage of tbe world is, if a nation be not entirely subdued, to consider tbe bolding of conquered territory as a mere military occupation, until its fate shall be determined at tbe treaty of peace. If it be ceded by treaty, the acquisition is confirmed, and the ceded territory becomes a part of the nation to which it is annexed either on terms stipulated in the treaty of cession, or on such as its new master shall impose.” Am. Ins. Co. et. al. v. Canter, 1 Pet. 542.
There was no “conquest” by force in tbe annexation of tbe Hawaiian Islands, nor “bolding as conquered territory,” they came to tbe United States in tbe same way tbat Elorida did, to-wit, by voluntary cession, and tbe rule for determining their status is tbe same. The Hawaiian Islands became a part of tbe United States on tbe terms set forth in tbe Joint Resolution and on such terms “as its new master might impose;” not one or two years after tbe Resolution was in force and effect, but at once,— immediately.
Tbe Resolution of annexation further provided tbat “tbe municipal legislation of tbe Hawaiian Islands * * * not inconsistent with tbe Joint Resolution, nor contrary to tbe Constitution of tbe United States shall remain in force until, tbe Congress of tbe United States shall otherwise determine.”
It seems clear from tbe authorities cited tbat tbe Hawaiian Islands were a part of tbe territory of tbe United States on tbe 16th day of August, 1898, as much so as tbe State of Indiana or tbe Territory of New Mexico.
Was tbe Constitution of tbe United States in force here then, Gr tbe 5th and 6th amendments, as claimed for tbe petitioner?
These amendments are as follows:
“No person shall be held to answer for a capital or otherwise infamous crime, unless on a presentment or indictment by a grand jury, except in cases arising in tbe land or naval forces, or in tbe militia when in actual service in time of war or public danger; nor shall any person be subject for tbe same offence to be [39]*39twice put in jeopardy of life or limb; nor shall he be compelled, in any criminal case, to be a witness against himself; nor be deprived of life, liberty or prosperity, without due process of law; nor shall private property be taken for public use without just compensation.” 5th Amend. U. S. Const.
“In all criminal prosecutions the accused shall enjoy the right to a speedy and public trial by an impartial jury of the state and district wherein the crime shall have been committed (which district shall haveffieen previously ascertained by law) and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor; and to have the assistance of counsel for his defence.” 6th. Amend. U. S. Const.
The government of the United States is one of delegated powers. The American nation, or, in the language of the constitution, “the people of the United States,” is absolutely sovereign. This sovereign has prescribed certain fundamental rules, contained in the constitution of the United States, which its servants, the President and each member of Congress, must take a solemn oath to support and defend as a condition precedent to taking office. These servants are nowhere authorized to exercise absolute sovereignty but their powers are limited by the very terms of the constitution under which they hold their respective offices and discharge their official duties.
Mr. Justice McLean, speaking for the Supreme Court of the United States, said:
“The federal government is one of delegated powers. All powers not delegated to it, or inhibited by it to the states are reserved to the states, or to the people.” Briscoe v. Bank, 11 Pet. 317.
Chief Justice Marshall said: “The Government, then, of the United States can claim no powers which are not granted to it by the constitution; and the powers actually granted must be such as are expressly given, or given by necessary implication.” Martin v. Hunter’s Lessee, 1 Wheat. 326,
Early in the constitutional history of the United States, (1820), Chief Justice Marshall, again speaking for the unanimous court on the question as to whether or not the provisions of the constitution extended to the District of Columbia, said as to the meaning of the term “United States”:
[40]*40“Does this term designate the whole or any particular part of the American empire? Certainly this question can admit of but one answer. It is the name given to our great republic, which is composed of states and territories. The District of Columbia, or the territory west of the Missouri, is not less within the United States than Maryland or Pennsylvania; and it is not less necessary, on the principles of our constitution, that uniformity in the imposition of imposts, duties, and exercises should be observed in the one than in the other.” Loughborough v. Blake, 5 Wheat. 317.
This opinion has stood as the decision of the highest court in the land for eighty years.
“Perhaps the power of governing a territory belonging to the United States, which has not by becoming a state acquired the means of self government may result from the fact, that it is not within the jurisdiction of any particular state, and is within the power and jurisdiction of the United States. The right to govern may be the inevitable consequence of the right to acquire territory. Whatever may be the source, whence the power is derived, the possession of it is unquestioned.” Am. Ins. Co. v. Canter, 1 Pet. 542.
Again in the same opinion the Chief Justice says: “In legislating for them, Congress exercises the combined powers of the general and of a state government.” 1 Pet. 540.
Chief Justice Waite says in First Nat. Bank v. Yankton, 101 U. S. 129: “All territory within the jurisdiction of the United States, not included in any state, must necessarily be governed by or under the authority of Congress. The territories axe but political subdivisions of the outlying dominion of the United States.
“Congress is supreme, and, for the purpose of this department of its governmental authority, has all of the powers of the people of the United States except such as have been expressly or by implication reserved in the prohibitions of the constitution.
“It may do for the territories what the people under the constitution may do for the states.”
Mr. Justice Curtis in his dissenting opinion in the Dred Scott case, says, on this subject: “If, then, this clause does contain a power to legislate respecting the territory, what are the limits of the power? To this I answer that in common with all other [41]*41legislative power of Congress, it 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.” 19 How. 614-15.
“The novel doctrine,” says Lochren, U. S. District Judge for Dist. of Minn., “that the power of Congress to govern territory-ceded to the United States may be conferred by a foreign sovereign, by and through the terms of a treaty of cession, and that the general government can exercise powers thus granted by a foreign sovereign, independent of and in disregard of the constitution, until Congress, mayhap, in the future, shall by its enactment, see fit to extend the constitution over the territory, is contrary to the holding of the Supreme Court of the United States above cited, to the effect that the general government is one of enumerated powers, and can claim and exercise no power not granted to it by the constitution, either expressly or by necessary implication.
“It is clear that the general government cannot legislate over territory where the constitution from which its every power is derived does not extend. The constitution must be in force over territory before the general government can have any authority to legislate respecting it. No foreign sovereign can invest the general government with any legislative power.
“The plain, obvious and undeniable fact is that the general government of the United States, created by the constitution and possessing no vitality or power not directly drawn from that instrument, can only exist and legislate where the constitution is in force, and that every tract of territory that comes under the sovereignty of the United States comes necessarily under that constitution which alone gives life to that sovereignty, and bevond which the sovereignty must cease.” Ex parte Oritts, 100 E. 961.
The first ten amendments to the constitution of the United States have been called the Federal Bill of Rights. Robertson v. Baldwin, 165 U. S. 275. And it is well understood that none of these amendments were adopted to announce new principles or to declare and define new rights, but were intended to carry for[42]*42ward and reaffirm the rights and privileges of freemen, well known and understood by the people who adopted them and whose ancestors had, at great sacrifice, forced their acknowledgment from the hand of unlimited power.
“The Bill of Rights is historically considered the most interesting part of these constitutions, for it is the legitimate child and representative of Magna Oharta, and of those other declarations and enactments, down to the Bill of Rights of the Act of 1 William and Mary Session 2, by which the liberties of Englishmen have been seemed. Most of the thirteen colonies, when they asserted their independence and framed their constitution, inserted a declaration of the fundamental rights of the people, and the example then set has been followed by the newer states and indeed by the states generally in their most recent constitutions.”
* * * “A reason may be found in the remarkable constitutional conservatism of the Americans, and their fondness for the enunciation of the general maxims of political freedom.” * * * * * “They are therefore, it is held, still safeguards against tyranny and they serve the purpose 'of solemnly reminding a state legislature and its officers of those fundamental principles which they ought never to overstep.” Bryce, The Amer. Com. (2nd Ed. 1891) vol. 1, pp. 422-3.
Mr. Justice Cooley says: “The truth is the Bill of Rights in the American constitutions have not been drafted for the introduction of new law, but to secure old principles against abrogation or violation. They are conservatory instruments rather than reformatory, and they assume that the existing principles of the common law are ample for the protection of individual rights, when once incorporated in the fundamental law and thus secured against violation.” Weimer v. Bunbury, 30 Mich. 214.
Mr. Justice Matthews, speaking for the Court, said: “In .this country written constitutions were deemed essential. to protect the rights and liberties of the people against the encroachments of power delegated to their Governments, and the provisions of Magna Charta were incorporated into Bills of Rights.
These were limitations upon all the powers of Government, legislative, as well as executive and judicial.” Hurtado v. California, 110 U. S. pp. 531-2.
Hon. George E. Edmunds, who is justly regarded as one of the greatest living expounders of the constitution, said: “But [43]*43the constitution as such, I suppose all admit, is not subject to the control of Congress, either to enlarge or to diminish, extend or contract, or to be applied to or withdrawn from any people or placa It is not a movable thing like the Ark of the covenant of the Israelites, to be set up and moved here or there as the tribes might wander. It is the actual event and condition and not the legislative or executive will, that must, in the nature of things, determine the status of a man or a country under it.
“The instances in which Congress has declared in statutes organizing territories that the constitution and laws should be in force there are no evidence that the constitution and laws were not already there, for Congress and all legislative bodies have often made enactments that in effect merely declared existing law. In such cases they declare a pre-existing truth to ease the doubts of casuists.”
Letter to Senator Proctor, dated March 21st, 1900, and published in Congressional Record, March 30th, 1900, p. 3737.
We cannot assent to the doctrine that the operation of the constitution in the territories belonging to the United States depends upon the will or action of Congress extending it there. This doctrine necessarily carries with it the admission that what one Congress can give, the same or a succeeding Congress can take away; that although Congress by the Organic Act, organizing the Territory of Hawaii, extended the constitution and laws of the United States to this Territory, the next Congress might repeal that part of the Organic Act, and that then the people of this Territory would have none of the guarantees of life, liberty and property provided in the constitution and might thereafter be governed as a province, a Crown colony, or in any manner that Congress in its wisdom, or unwisdom, might provide; that a tariff might be levied on the products of the islands going into the states and citizens of this territory might be denied the rights and privileges of citizens of the United States residing in other parts of its imperial domain.
Erom the above citation of authorities we reach the conclusion that those negative provisions of the constitution, adopted to declare and protect the life, liberty and property of the [44]*44citizens were in force in the Hawaiian Islands as soon as the same became a part of the United States territory and subject to the “sovereign dominion thereof.” It is1 not necessary in order to decide the case at bar to express an opinion as to whether the constitution ex proprio vigore, and as a whole, extends to and is in force in all territory subject to the sovereignty of the United States. It is clear and well settled, that some of the provisions of the constitution do not apply to the territories whether there is an Act of Congress expressly extending them there, or not, for the reason that they are totally inapplicable to the conditions existing in the territories. However, the ablest and most earnest advocates of the unlimited power of Congress to legislate for the territories, unrestricted by the provisions of the constitution, frankly admit that those negative provisions of the constitution inserted to protect the life and property of the citizen are in force in the territories and are so far a limitation on the power of Congress in legislating for the territories.
“It may be admitted,” says Townsend, U. S. District Judge of Southern District of New York, “that the constitutional guarantees of civil rights would apply to the territory, under the sovereignty, but not a part of the United States. Certain civil rights which we believe belong to every one are crystalised into the negative provisions of our constitution in order to prevent any wrongful and improper use of our power, and these may he held to control our power wherever it reaches. These considr erations may he found to limit us in governing any territory/.” Goetze v. United States, 103, Fed. Rep. p. 85.
That some of those “negative provisions” are contained in the Fifth and Sixth Amendments to the constitution no one will deny, and it is equally clear to us that these were in force in the Hawaiian Islands on the 16th day of August, 1898, at the time cf the trial and conviction of the petitioner.
Was the petitioner then denied any of the rights and privileges guaranteed thereby? That he was tried and convicted of an “infamous crime” no citation of authorities will be necessary to establish.
The question is not whether an indictment found by the Circuit Judge as provided by the laws of the Republic of Hawaii, [45]*45is as good a protection to the life and liberty of the citizen as one presented by a grand jury, bnt it is whether or not the Fifth amendment requires or guarantees to the citizen that he shall not be placed on trial for an infamous crime without an indictment by a grand jury.
Mr. Justice Gray said, “But if the crime of which the petitioner was accused was an infamous crime, within the meaning of the Fifth amendment of the constitution, no court of the United States had jurisdiction to try to punish him, except upon presentment or indictment by a grand jury.” Ex parte Wilson, 110 U. S. 422.
The reason why a person so accused cannot be tried or punished in any “Court of the United States” and may be in a state court, is that the Federal Bill of Rights, or first ten amendments to the constitution, do not apply to the people of the states in making their state constitutions nor to the state legislatures in legislating for the states. But it is well settled that Congress in legislating for the territories is bound by these amendments. It cannot be seriously contended 'that Congress intended by the Joint Resolution of annexation, or did it in fact authorize the courts of the Hawaiian Islands to do what the courts of no other territory of the United States could do. After annexation the courts of the Hawaiian Islands exercised all their power and authority under the Joint Resolution and by direction of the President of the United States,.and we may observe in this connection that the judges of the courts were required and did in fact take an oath to support the constitution of the United States.
Mr. Justice Gray further said in case last cited, “That no person can be held to answer, without presentment or indictment by a grand jury, for any crime for which 'an infamous punishment may be imposed by the court. The question is whether the crime is one for which the statute authorizes the court to award an infamous punishment, not whether the punishment ultimately awarded is an infamous one. When the accused is in danger of being subjected to an infamous punishment if convicted, he has the right to insist that he shall not be put on trial, except [46]*46upon the accusation of a grand jury.” * * * “But the constitution, protecting every one from being prosecuted without the intervention of a grand jury for any crime which is subject by law to an infamous punishment, no declaration of Congress is needed to secure, or competent to defeat, the constitutional safeguard.” Ex parte Wilson, 110 U. S. p. 426.
Mr. Justice Harlan in Thompson v. Utah, 170 U. S. 346, says: “That the provisions of the constitution of the United States relating to the right of trial by jury in suits at common law apply to the territories of the United States is no longer an open question.”
Oiting Webster v. Reid, 11 How. 437, 460; Am. Pub. Co. v. Fisher, 166 U. S. 464, 468; Springville v. Thomas, 166 U. S. 70-7.
“In the last named case it was claimed that the territorial legislature of Utah was empowered by the Organic Act of the territory of Sept. 9th, 1850, 9 U. S. St. Lt. 453, c. 57, por. 6, to provide that unanimity of action on the part of jurors in civil cases was not necessary to a valid verdict. That court said: “In our opinion the Seventh Amendment secured unanimity in finding a verdict as an essential feature of trial by jury in common law cases and the Act of Congress could not impart the power to change the constitutional rule, and could not be treated as attempting to do so. It is equally beyond question that the provisions of the national constitution relating to trial by jury for crimes and to criminal prosecutions apply to the territories of the United States, 170 U. S. pp. 346, 347.
“Assuming that the provisions of the constitution relating to trials for crimes and to criminal prosecutions apply to the territories of the United States, the next inquiry is whether the jury referred to in the original constitution and the Sixth amendment is a jury constituted; as it was at common law, of twelve persons, neither more or less. 2 Hale’s P. C. 161; 1 Chitty’s Cr. Law, 505. This question must be answered in the affirmative.” Thompson v. Utah, 170 U. S. p. 349.
It will be remembered that Thompson was placed upon trial, after the admission of Utah as a state, for a felony, committed when Utah was a territory, and under the state constitution eight persons composed a lawful trial jury, and such a jury tried and found Thompson guilty. In the opinion last cited the court [47]*47further says: “Was it then competent for the state of Utah, upon its admission to the Union to do in respect to Thompson’s crime what the United States could not have done while Utah was a territory, namely, to provide for his trial by a jury of eight persons? We are of opinion that the state did not acquire upon its admission into the Union the power to provide in respect to felonies committed within its limits while it was a territory, that they should be tried otherwise than by a jury such as is provided by the constitution of the United States. When Thompson’s crime was committed, it was his constitutional right to demand that his liberty should not be tahen from him except by the joint action of the court and the unanimous verdict of a jury of twelve persons. To hold that a state could deprive him of his liberty by the concurrent action of a court and eight jurors, would recognize the power of the state not only to do what the United States in respect to Thompson’s crime could not, at any time, have done by legislation, but to take from the accused a substantial right belonging to him when the offense was committed.” Thompson v. Utah, 170 U. S. pp. 350-1.
“It follows that all the provisions of the constitution in respect to personal and property rights, including the right to trial by jury in criminal prosecutions, became at once, when the cession was completed, a part of the supreme law of the land. The character of an offense and the measure of its punishment would be determined by the law in force when and where the act was committed, the laws of that character remain in force after the cession until changed; but the manner of the trial must depend on the law in force when the trial is had, even though the establishment and organization of courts must be awaited before the trial can be had.” Ex parte Ortiz, 100 Fed. p. 962.
Does this construction of the law mean, as has been so earnestly contended, that criminals should, of necessity, go unpunished and that there was no protection to life and property on the Hawaiian Islands between the 7th day of July, 1898, the date of signing the Joint Eesolution, and the 14th day of June, 1900, the date the Organic Act went into effect? Certainly not. During all of this period there was organized Government here; there were officers and courts, legally constituted, continued in [48]*48office and existence by the order of President McKinley, under the authority given in the Joint Resolution. There was the great body of the municipal laws of the late republic “not inconsistent with the resolution, not contrary to the constitution of the United States,” continued in force until Congress should otherwise direct. There was provision for a trial jury of twelve and that part of the statute authorizing nine jurors to return a verdict could have been controlled by a simple direction, or instruction of the trial court, that there must be a unanimous verdict to convict, and those additional safeguards to the life, liberty and property of the citizen prescribed by the constitution of the United States, were here in full force and vigor.
Among the municipal laws of the Republic of Hawaii continued in force was Sec. 1109 of the Civil Laws, which provide that the common law of England, as ascertained by English and American decisions, is declared to be the common law of the Hawaiian Islands, except when changed by decision, usage or law. The Circuit Court of the Eirst Circuit was a Court of Record and of common law jurisdiction, and on August 16th, 1898, had the undoubted power to issue an open venire and summons and empanel a grand jury in the manner provided by the •rules of the common law.
As Justice Cooley said: “They assume that the existing principles of the common law are ample for the protection of individual lights, when once incorporated in the fundamental law and thus secured against violation.” Weimer v. Banbury, Mich. 214.
Chief Justice Marshall, speaking of the authority of Courts to issue an open venire, in the absence of any statute authorizing it, and of the law at that time, said. “It has been justly observed that no act of Congress directs grand juries, or defines' their powers. By what authority then, are they summoned, and whence do they derive their powers.
The answer is, that the laws of the United States have-erected Courts which are vested vrith criminal jurisdiction. This 'jurisdiction they are bound to exercise, and it can only b'e exercised [49]*49through the instrumentality of grand juries. They are, therefore, given by a necessary and indisputable implication.
Davis and Gear, attorneys for the petitioner.
Hon. E. P. Dole, Attomey-G-eneral, opposing.
But how far is this implication necessary and indisputable? The answer is obvious. Its necessity is co-extensive with the jurisdiction to which it is essential.” United States v. Hill, 1 Brock. 159.
In Clawson v. United States, 114 U. S. 486, in approving the action of the Supreme Court of Utah, whose opinion sustained the action of a District Court of the territory in issuing an open venire for jurors and who based its judgment not on any statute authorizing it, but the fact that such “power was inherent in the Court and was not forbidden by any statute in force in Utah,” said, “We concur in this view, so far as the resort to the open venire, after the exhaustion of the two hundred names, is concerned.”
The following authorities also support'this proposition: 1 Chitty, Crim. Law, 518; 2 Hale, P. C. 265; Mackay v. People, 2 Cal. 13; Wilburn v. State, 21 Ark. 198, 201; Goodwin v. United States, 54 Pac. 432.
Deciding only the questions presented by the case at bar, we hold that the Hawaiian Islands were a part of the United States on the 16th day of August, A. D. 1898; that the Eifth and Sixth Amendments to the Constitution of the United State's were in force here at that time; that the petitioner having been put to his trial on the 16th day of August, A. D. 1898, upon an “indictment” found by a circuit judge, charging him with an infamous crime, and thereof convicted by a verdict of ten jurors, was thereby deprived of his constitutional rights, and his detention is illegal.
Let the writ issue- and the petitioner be discharged.