and we held that that line must, therefore, be the limit of the grant, and the fact that outside the side lincs extended there was a body of water did not operate to extend the grant into any portion of that body of water. In the last of these cases the complainants, the owners of 859.38 acres as shown by the descriptions in their patents of fractional lots, claimed by reason thereof to be the owners of 1,202 acres lying between the meandered lines and a lake, and sought by injunction to restrain the Land Department from making a survey of these latter lands. We held that injunction would not lic, and that the officers of the Government could not be restrained from making a survey; that the rights of the complainants could be settled, after a survey and transfer of the legal title from the Government, by an action at law.

It is suggested in one of the briefs that this island extends up or down the river beyond the side lines of the tracts belonging to these riparian proprietors. A plat which is in evidence seems to support this statement, but the finding of the trial court, which is not disturbed by the Supreme Court, is to the effect that it lies between the tracts of the riparian proprietors. Of course, their title is only to the land which is in front of their banks and not beyond the side lines in either direction.

It must also be noticed that the Government is not a party to this litigation, and nothing we have said is to be construed as a determination of the power of the Government to order a survey of this island or of the rights which would result in case it did make such survey. As we reserve the rights of the United States we do not even impliedly sanction the intimation contained in the opinion of the court below that under the decision in Hardin v. Jordan, 140 U. S. 371, although, on non-navigable waters, riparian rights were not conferred by the state law, nevertheless the land beyond the banks passed to the State in virtue of the patents of the United States to the lot owners. Upon that question we express no opinion. Our conclusion, therefore, is that by the law of Nebraska, as interpreted by its highest court, the riparian proprietors are

the owners of the bed of a stream to the center of the channel; that the Government, as original proprietor, has the right to survey and sell any lands, including islands in a river or other body of water; that if it omits to survey an island in a stream and refuses, when its attention is called to the matter, to make any survey thereof, no citizen can overrule the action of the Department, assume that the island ought to have been surveyed, and proceed to occupy it for the purposes of homestead or preemption entry. In such a case the rights of riparian proprietors are to be preferred to the claims of the settler.

We see no error in the judgment of the Supreme Court of Nebraska, and it is

Affirmed.

RASSMUSSEN v. UNITED STATES.

ERROR TO THE DISTRICT COURT OF THE UNITED STATES FOR THE DISTRICT OF ALASKA.

No. 51. Argued November 4, 1904.-Decided April 10, 1905.

The treaty with Russia concerning Alaska, instead of exhibiting, as did the treaty with Spain respecting the Philippine Islands, the determination to reserve the question of the status of the acquired territory for ulterior action by Congress, manifested a contrary intention to admit the inhabitants of the ceded territory to the enjoyment of citizenship, and expressed the purpose to incorporate the territory into the United States.

Under the treaty with Russia ceding Alaska and the subsequent legislation of Congress, Alaska has been incorporated into the United States and the Constitution is applicable to that Territory, and under the Fifth and Sixth Amendments Congress cannot deprive one there accused of a misdemeanor of trial by a common law jury, and that § 171 of the Alaska Code, 31 Stat. 358, in so far as it provides that in trials for misdemeanors six persons shall constitute a legal jury, is unconstitutional and void.

THE facts are stated in the opinion.

197 U.S.

Argument for Plaintiff in Error.

Mr. R. W. Jennings and Mr. W. E. Crews for plaintiff in error submitted:

Section 171, p. 179, Carter's Annotated Alaska Codes, providing that in trials for misdemeanors six persons shall constitute a legal jury, was taken verbatim from the Oregon Code, with the proviso added.

That portion of § 171 authorizing a trial by a jury of six persons is void, because it deprives a person of the right of trial by a jury of twelve competent, impartial men as guaranteed to every citizen by the provisions of the Constitution, and Congress has no power under the Constitution to pass an act authorizing a trial in a criminal case by a jury of less than twelve men.

The terms "jury" and "trial by jury" are and always have been well known in the language of the law. They were used at the adoption of the Constitution, and always it is believed before that time; and almost since in a single sense. Cooley's Const. Lim. 391; 1 Bishop Crim. Procedure, §§ 764 et seq; Flint River Steamboat Co. v. Foster, 5 Georgia, 195; Stoppe v. Commonwealth, 74 Pa. St. 458; Wharton's Law Dict., Title "Challenge" U. S. Crim. Law (Lewis), 611; Worke v. State, 2 Ohio St. 277; People v. Bodine, 1 Denio, 304; Freeman v. People, 4 Denio, 34; Wyheimer v. People, 15 N. Y. 424; Cancemei v. People, 16 N. Y. 504; People v. Williams, 6 California, 207; Cooley v. State, 38 Texas, 637; Ingersoll v. Wilson, 2 W. Va. 59; Nevada v. McClare, 2 Nevada, 42, 60.

The provisions of the Constitution relating to the right of the trial by jury in suits at common law apply to the Territories of the United States. Webster v. Reid, 2 How. 437, 460; Publishing Co. v. Fisher, 166 U. S. 464; Springville v. Thomas, 166 U. S. 707; Reynolds v. United States, 98 U. S. 145, 154; Callan v. Wilson, 127 U. S. 540, 548; Thompson v. Utah, 170 U. S. 343, citing Mormon Church Case, 136 U. S. 1, 44; Bank v. Yankton, 101 U. S. 129; Murphy v. Ramsay, 114 U. Ș. 15, 44. Such an act can not be sustained as a police regulation; for, as such, it would be equally obnoxious. Citizens of Alaska are

guaranteed the constitutional right of a trial by jury. They are under the direct and complete jurisdiction of the United States. The courts are clothed with the power and jurisdiction of Circuit and District Courts of the United States. Section 367, p. 432, Alaska Code; Art. 3, Treaty of Cession between United States and Russia.

Mr. Assistant Attorney General Robb for the United States: Cases cited by plaintiff in error do not apply as the Constitution has not been extended over the Territory as it had been in the cases cited. This case is controlled by Hawaii v. Mankichi, 190 U. S. 197; Dorr v. United States, 195 U. S. 138; and see Downes v. Bidwell, opinion Brown, J., 182 U. S. 280.

As to Art. 3 of the treaty with Russia it was intended to extend, and no doubt did extend, to the civilized inhabitants of the Territory certain fundamental attributes and privileges of American citizenship, but it will hardly be contended that it was thereby intended to extend all the provisions of the Constitution to this barren and desolate region, peopled as it was by savages and an alien race, wholly out of sympathy with our customs and institutions.

As to legislation regarding Alaska see §§ 2, 9, 14, 23 Stat. 24; Crim. Code, Alaska, March 3, 1899, 30 Stat. 1253; Act of June 6, 1900, 31 Stat. 321; § 1891, Rev. Stat., does not cover Alaska as it is not an organized Territory. And see Standard and Century Dictionaries, Sub "Territory." The Coquitlam, 163 U. S. 346, and Binns v. United States, 194 U. S. 486, do not decide that Alaska is organized Territory. And see In re Lane, 135 U. S. 443.

MR. JUSTICE WHITE delivered the opinion of the court.

The plaintiff in error was indicted for violating section 127 of the Alaska Code, prohibiting the keeping of a disreputable house and punishing the offense by a fine or imprisonment in the county jail.

As stated in the bill of exceptions, when the case was called

the court announced "that the cause would be tried before a jury composed of six jurors," in accordance with section 171 of the Code for Alaska adopted by Congress, wherein, among other things, it was provided as follows (31 Stat. 321, 359): "That hereafter in trials for misdemeanors six persons shall constitute a legal jury." To this announcement by the court an exception was duly preserved. A jury of six persons was then empanelled, when the objection was renewed and a demand made for a common law jury, which was refused, and an exception was again taken.

To a verdict and judgment of conviction this writ is prosecuted directly to this court, reliance for a reversal being had on the violation of the Constitution alleged to have resulted from the trial of the case by a jury of six persons and upon other errors of law which, it is asserted, the court committed in the course of the trial.

At the threshold of the case lies the constitutional question whether Congress had power to deprive one accused in Alaska of a misdemeanor of trial by a common law jury, that is to say, whether the provision of the act of Congress in question was repugnant to the Sixth Amendment to the Constitution of the United States.

At the bar the Government did not deny that offenses of the character of the one here prosecuted could only be tried by a common law jury, if the Sixth Amendment governed. The Government, moreover, did not dispute the obvious and fundamental truth that the Constitution of the United States is dominant where applicable. The validity of the provision in question is therefore sought to be sustained upon the proposition that the Sixth Amendment to the Constitution did not apply to Congress in legislating for Alaska. And this rests upon two contentions which we proceed separately to consider.

1. Alaska was not incorporated into the United States, and therefore the Sixth Amendment did not control Congress in legislating for Alaska.