such territories and subject to such constitutional restrictions upon the powers of
 that body as are applicable to the situation.27

 Justice Day then declared that the right to trial by jury was not a fundamental right and it was not
 intended that this right should hamper Congress in making regulations for the territories. "We conclude,"
 said the majority,

 that the power to govern territory, implied in the right to acquire it, and given to
 Congress in the Constitution in Article IV, Section 3, to whatever other limitations
 it may be subject, the extent of which must be decided as questions arise, does
 not require that body to enact for ceded territory, not made a part of the United
 States by congressional action, a system of laws which shall include the right of
 trial by jury, and that the Constitution does not, without legislation and of its own
 force, carry such right to territory so situated.28

 Justice Peckham wrote a concurring opinion. Justice Harlan maintained his consistent attitude by
 a vigorous dissent in which he inferred, significantly perhaps, that the character of the population was an
 influencing factor in these decisions:

 I do not believe now any more than I did when Hawaii v. Mankichi, 190 U. S. 197,
 was decided, that the provisions of the Federal Constitution as to grand and petit
 juries relate to mere methods of procedure and are not fundamental in their
 nature. In my opinion, guaranties for the protection of life, liberty and property, as
 embodied in the Constitution, are for the benefit of all, of whatever race or
 nativity, in the States composing the Union, or in any territory, however acquired,
 over the inhabitants of which the Government of the United States may exercise
 the Powers conferred upon it by the Constitution.29

 He reasoned that:

 The Constitution, without excepting from its provisions any persons over whom
 the United States may exercise jurisdiction, declares expressly that "the trial of
 all crimes, except in cases of impeachment, shall be by jury." It is not adjudged
 that that provision is not fundamental in respect of a part of the people over whom
 the United States may exercise full legislative, judicial and executive power.
 Indeed, it is adjudged, in effect, that the above clause, in its application to this
 case, is to be construed as if it read: "The trial of all crimes, except in cases of
 impeachment, and except where Filipinos are concerned, shall be by jury." Such
 a mode of constitutional interpretation plays havoc with the old-fashioned ideas
 of the fathers, who took care to say that the Constitution was the supreme law --
 supreme everywhere, at all times, and over all persons who are subject to the
 authority of the United States.so

 The doctrine of incorporation and the question of trial by jury were again presented in the case of
 Rasmussen v. United States31 In the code for Alaska adopted by Congress it was provided that: "In trials
 for misdemeanors six persons shall constitute a legal jury."32 An inhabitant of Alaska, convicted by such a
 jury, appealed to the Supreme Court from the verdict on the ground that it was contrary to the
 constitutional provisions.

 The case was significant in that the doctrine of incorporation was used, this time, to declare jury
trial as being repugnant to the Constitution. Justice White, having written the opinion of the Court,
interpreted the treaty with Russia for the purchase of Alaska as equivalent to expressing the purpose of
incorporating that territory into the United States. If this interpretation appeared contrary to the reasoning
in the case of Downes v. Bidwell, Justice White did not recognize such a contradiction. In that case the
treaty with France for the purchase of Louisiana was deemed not to incorporate that territory immediately
into the United States. A comparison of the respective sections of the two treaties concerning the rights