United States v. Rasmussen,13 it was held that under the treaty with Russia by which Alaska had been acquired, the protection offered by the Bill of Rights in the United States Constitution had been extended over this latter region: "The treaty concerning Alaska instead of exhibiting, as did the treaty 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, in article 3, that "The inhabitants of the ceded territory * * * shall be admitted to the enjoyment of all the rights, advantages and immunities of citizens of the United States, and shall be protected in the free enjoyment of their liberty, property and religion.'" One more case relative to the civil rights of the residents in the colonies remains to be considered. This is the case of Kepner v. United States11 decided in 1904. This case involved the subject of double jeopardy. Under the Spanish law in force in the Philippines the government as well as the accused had the right to appeal in criminal cases. Under the American military government of the islands, this right was continued in force together with nearly all of the other Spanish rules of criminal procedure. The Act of Congress of July 1, 1902, "for the administration of the affairs of civil government in the Philippine Islands," provided: "No person for the same offense shall be twice put in jeopardy of punishment;"15 and again: That the Supreme Court and Courts of First Instance of the Philippine Islands shall possess and exercise jurisdiction as heretofore provided *** subject to the power of said government to change the practice and method of procedure." In common law countries the right of the prosecution to appeal has always been considered inconsistent, with the provision against double jeopardy. The underlying question before the court in Kepner v. United States. was whether the provision against double jeopardy was to be given the meaning which it has under the common law or that which it possesses in Spanish procedure. The count by a vote of five to four decided in favor of the former interpretation. This decision was probably erroneous. The right of appeal by 13 197 U. S. 516. 14 195 U. S. 100. 15 Sec. 5, Clause 3. 16 Sec. 9. the government in criminal cases, under common law procedure, is held to be double jeopardy principally because a new trial means a trial before a new jury, occasioning an obvious double chance of conviction. This reason does not exist under the Spanish criminal procedure (still in operation in the Philippines in its essential provisions) where no jury is known, and where the whole proceedings, from the arraignment to the review of the case by the Supreme Court, constitutes one action, and consequently one jeopardy.17 A summary of the decisions in these cases of Hawaii v. Mankichi, Dorr v. United States, United States v. Rasmussen, and Kepner v. United States, would establish the following general propositions: (1) The protection contained in the Bill of Rights of the United States Constitution does not attach to residents of territory under the authority of the United States government but outside the limits of the States themselves. (2) Such rights can be given to the residents in such territory either by legislation by Congress, or by treaty with the country from which such territory is acquired. (3) Where such rights are given by terms having an established meaning in the common law, these terms must be interpreted in accordance with their meaning under the common law. The most important and also the most dangerous of these propositions is the first. The decision that the Bill of Rights does not restrict Congress in legislating for territory belonging to the United States was only adopted by the Supreme Court by the smallest possible majority, and seems clearly in violation of the provisions of the Constitution. The Bill of Rights is in no manner, either by location or reference, so connected with the eighth section of the first article as to furnish any foundation for the theory that it was intended merely as a restriction upon the powers therein contained. It stands out by itself, and announces its purpose by its unambiguous opening words that" Congress shall make no law," etc. A reasonable interpretation of "This criticism of the decision in Kepner v. United States would only apply as long as the court holds that islands are not entitled to jury trials. this portion of the Constitution would hold it to mean that Congress should make no law of the kinds prohibited, either under its powers granted it by the eighth section of the first article over the United States or under its powers, under the third section of the fourth article over the territory belonging to the United States.18 This question is ably discussed by Mr. Justice Harlan in his dissenting opinion in Dorr v. United States, which is as follows: "I do not believe now any more than I did when Hawaii v. Mankichi, 190 U. S. 197, 47 L. ed. 1016, 23 Sup. Ct. Rep. 787 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, guarantees 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. "The Constitution declares that no person, except in the land or naval forces, shall be held to answer for a capital or otherwise infamous crime, except on the presentment or indictment of a grand jury; and forbids the conviction, in a criminal prosecution, of any person for any crime, except on the unanimous verdict of a petit jury composed of twelve persons. Necessarily, that mandate was addressed to every one committing crime punishable by the United States. This court, however, holds that these provisions are not fundamental, and may be disregarded in any territory acquired in the manner the Philippine Islands were acquired, although, as heretofore decided by this court, they could not be disregarded in what are commonly called the organized territories of the United States. Thompson v. Utah, 170 U. S. 343, 42 L. ed. 1061, 18 Sup. Ct. Rep. 620. I cannot assent to this interpretation of the Constitution. It is, I submit, so obviously in consistent with the Constitution that I cannot regard the judgment of the court otherwise than as an amendment of that instrument by judicial construction, when a differ ent mode of amendment is expressly provided for. Grand juries and petit juries may be, at times, somewhat inconvenient in the administration of criminal justice in the Philippines. But such inconveniences are of slight consequence compared with the dangers to our system of government arising from judicial amendments of the Consti tution. The Constitution declares that it shall be the supreme law of the land." But the court in effect adjudges that the Philip pine Islands are not part of the 'land' within the meaning of the Constitution, although they are § 281. Revenue laws of the United States.-The majority of the cases involving the status of territory under the control of the United States but outside the limits of any State have arisen in relation to some aspect of the revenue laws. The various tariff laws of the United States, provide (and have provided) for certain duties to be imposed on articles imported governed by the sovereign authority of the United States, and although their inhabitants are subject in all respects to its jurisdiction as much SO as are the people in the District of Columbia or in the several states of the Union. No power exists in the judiciary to suspend the operation of the Constitution in any territory governed, as to its affairs and people, by the authority of the United States. As a Filipino committing the crime of murder in the Philippine Islands may be hung by the sovereign authority of the United States, and as the Philippine Islands are under a civil, not military, government, the suggestion that he may not, of right, appeal for his protection to the jury provisions of the Constitution, which constitutes the only source of the power that the government may exercise at any time or at any place, is utterly revolting to my mind, and can never receive my sanction. The Constitution, without excepting from its provisions any persons 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 now adjudged that that provision is not fundamental in respect of a part of the people over whom the over 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. According to the principles of the opinion just rendered, neither the governor nor any American civil officer in the Philippines, although citizens of the United States, although under an oath to support the Constitution, and although in those distant possessions for the purpose of enforcing the authority of the United States, can claim, of right, the benefit of the jury provisions of the Constitution, if tried for crime committed on those islands. Besides, there are many thousands of American soldiers in the Philippines. They are there by command of the United States to enforce its authority. They carry the flag of the United States, and have not lost their American citizenship. from any foreign country. A general definition of a foreign. country would be as follows: "Foreign country was defined by Mr. Chief Justice Marshall and Mr. Justice Story, to be one exclusively within the sovereignty of a foreign nation and without the sovereignty of the United States."19 The important cases on this subject prior to the famous Porto Yet, if charged in the Philippine 3 with having committed a crime against the United States of which a tribunal may take cognizance, they cannot, under the present decision, claim, of right, a trial by jury. So, that if an American soldier, in discharge of his duty to his country, goes into what some call our 'outlying dependencies' he is, it seems, 'outside of the Constitution,' in respect of a right which this court has said was justly dear to the American people,' and has always been an object of deep interest and solicitude, and every encroachment upon it has been watched with great jealousy'; a right which, Mr. Justice Story said, was from early times insisted on by our ancestors in the parent country as the great bulwark of their civil and political liberties.' Parsons v. Bedford, 3 Pet. 433, 436, 7 L. ed. 732, 733; 2 Story, Const. 1779. Referring to the declaration by a French writer that Rome, Sparta and Carthage having lost their liberties, those of England must in time perish. Blackstone observed that the writer 'should have recollected that Rome, Sparta and Carthage, at the time their liberties were lost, were strangers to the trial by jury.' 2 Bl. Com. 379. In a former case I had occa sion to say, and I still think, that 'neither the life nor the liberty nor the property of any person within any territory or country over which the United States is sovereign can be taken, under the sanction of any civil tribunal, acting under its authority by any form of procedure inconsistent with the Constitution of the United States'; that 'the Constitution is the supreme law in every territory, as soon as it comes under the sovereign dominion of the United States for purposes of civil administration and whose inhabitants are under its entire authority and jurisdiction.' (Hawaii V. Mankichi, 190 U. S. 197, 47 L. ed. 1016, 23 Sup. Ct. Rep. 787.) "My views as to the scope and meaning of the provisions of the Constitution which relate to grand and petit juries, and as to the relation of the United States to our newly acquired possessions, have been more fully stated in cases heretofore decided in this court, and I have therefore not deemed it necessary, in the present case, to enter upon a review of the authorities. "I dissent from the opinion and judgment of the court." 19 De Lima v. Bidwell, citing The Boat Eliza, 2 Gall. 4; Taber v. the United States, 1 Story, 1; The Ship Adventure, 1 Brock, 255. |