while Congress will be expected to recognize the principle of selfgovernment to such extent as may seem wise, its discretion alone can constitute the measure by which the participation of the people can be determined." Cooley, Principles of Constitutional Law,

164.

If the right to trial by jury were a fundamental right which goes wherever the jurisdiction of the United States extends, or if Congress, in framing laws for outlying territory belonging to the United States, was obliged to establish that system by affirmative legislation, it would follow that no matter what the needs or capacities of the people, trial by jury, and in no other way, must be forthwith established, although the result may be to work injustice and provoke disturbance rather than to aid the orderly administration of justice. If the United States, impelled by its duty or advantage, shall acquire territory peopled by savages, and of which it may dispose or not hold for ultimate admission to Statehood, if this doctrine is sound, it must establish there the trial by jury. To state much a proposition demonstrates the impossibility of carrying it into practice. Again, if the United States shall acquire by treaty the cession of territory having an established system of jurisprudence, where jury trials are unknown, but a method of fair and orderly trial prevails under an acceptable and long-established code, the preference of the people must be disregarded, their established customs ignored and they themselves coerced to accept, in advance of incorporation into the United States, a system of trial unknown to them and unsuited to their needs. We do not think it was intended, in giving power to Congress to make regulations for the territories, to hamper its exercise with this condition.

We conclude that the power to govern territory, implied in the right to acquire it, and given to Congress in the Constitution in Article IV, sec. 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.

Further error is assigned in that Act No. 277 [An Act defining

the law of libel, etc.] of the laws of the Philippine Commission was not passed by competent legal authority. The act was one of the laws of the Philippine Commission, passed by that body by virtue of the authority given the President under the so-called Spooner resolution of March 2, 1901. The right of Congress to authorize a temporary government of this character is not open to question at this day. The power has been frequently exercised and is too well settled to require further discussion. De Lima v. Bidwell, 182 U. S. 1, 196.

MR. JUSTICE PECKHAM, concurring.

Judgment affirmed.

I concur in the result of the opinion of the court in this case, which upholds the conviction of the plaintiffs in error on a trial at Manila, Philippine Islands, for a criminal offense, without a jury. I do so simply because of the decision in Hawaii v. Mankichi, 190 U. S. 197. That case was decided by the concurring views of a majority of this court, and although I did not and do not concur in those views, yet the case in my opinion is authority for the result arrived at in the case now before us, to-wit, that a ̃ jury trial is not a constitutional necessity in a criminal case in Hawaii or in the Philippine Islands. But, while concurring in this judgment, I do not wish to be understood as assenting to the view that Downes v. Bidwell, 182 U. S. 244, is to be regarded as authority for the decision herein. That case is authority only for the proposition that the plaintiff therein was not entitled to recover the amount of duties he had paid under protest upon the importation into the city of New York of certain oranges from the port of San Juan, in the Island of Porto Rico, in November, 1900, after the passage of the act known as the Foraker act. The various reasons advanced by the judges in reaching this conclusion, which were not concurred in by a majority of the court, are plainly not binding. The Mankichi case is, however, directly in point, and calls for an affirmance of this judgment.

I am authorized to say that the CHIEF JUSTICE and MR. JUSTICE BREWER agree in this concurring opinion.

[MR. JUSTICE HARLAN delivered a dissenting opinion.]

NOTE. "The expressed declarations of the President in Military Order, No. 58, of April 23, 1900, and in the act of July 1, 1902,

establishing a civil government in the Philippine Islands, both adopting with little alteration the provisions of the Bill of Rights, show that it was intended to carry to the Philippine Islands those principles of our Government which the President declared to be established as rules of law for the maintenance of individual freedom; and those expressions were used in the sense which has been placed upon them in construing the instrument from which they were taken." Kepner v. United States, 195 U. S. 100.

“Although a right of appeal was given to the Government by Military Order, No. 58, in criminal cases in the Philippine Islands, § 5 of the act of July 1, 1902, establishing a civil government in the Islands, specifically provided that no person should be put twice in jeopardy for the same offense, thereby repealing the provision in the military order, and nothing in § 9 of the act of 1902 can be construed as intending to prevail over the specific guaranty contained in § 5." Ibid.

INDEX.

Adams, Charles Francis, Life of Richard Henry Dana, 351.

Adams, President John, 17.

Aliens, Exclusion of, 596, 598, 600.

Amendments of U. S. Constitution, 498, 510.

Tenth, 125, 164, 310, 524.

Eleventh, 616, 632, 634.

Twelfth, 498.

Thirteenth, 491, 498, 499, 528, 531, 558.

Fourteenth, 290, 298, 307, 491, 501, 513, 516, 519, 523, 527, 531,

534, 540.

Fifteenth, 502.

Articles of Confederation, 86, 127, 163, 323, 480, 505, 555, 591, 622, 639, 640.
Compared with Constitution, 30.

Government under, 173, 200, 201, 604, 610.

Atterbury, Bishop, 375 n.

Attorney General, 334, 335.

Austria, Emperor of, 168.

Baldwin, Justice, 549, 590, 595.

Cited, 639.

Bank of the United States, 32, 33, 142.

Power of Congress to incorporate, 308.

Bankruptcy, 217, 405, 406, 408, 410, 432, 433, 438, 439, 448,

In England, 446.

Bates, Chancellor, 249.

Belligerents, 343, 349.

450.

Biddle, George W., Constitutional History as Seen in American Law,

491.

Bills of Attainder, 372, 383, 387, 403, 440.

Bills of Credit, 102, 103, 106, 107, 109-118, 127, 131, 156, 164, 166-169.

Legal tender not an essential quality, 105, 128.

Prohibition on States to issue, 112.

See Legal Tender, Money.

Bill of Rights, 469, 470, 539.

Black Code, 530.

Blackstone, Sir William, 377, 385, 402, 418, 515, 543.

Blair, Justice, 615.

Blockade, Effect of, 347.

Power of President to institute, 342, 348.

Relation of neutrals to, 343.

Bracton, 605,

Bradley, Justice, 510.

Cited, 285, 597, 660.

Opinions by, 68, 156, 519, 571.

Brewer, Justice, 280, 602.

Opinion by, 660.

Bridges, 303, 304.

Brougham, Lord, 368.

Brown, Justice, 100.

Bryce, American Commonwealth, 323, 490.

Burke, Edmund, 540.

Campbell, Justice, 488, 490, 491.

Capture, Right of, 343.

Carson, The Supreme Court of the United States, 351, 616.

Catron, Justice, 55, 219, 275, 350, 488, 489, 490, 491.

Census, Power to take, 142.

Charges, Regulation of, 291, 293, 294.

Chase, Chief Justice, 254, 371, 394, 500, 510.

Cited, 65, 167, 860.

Opinions by, 46, 57, 119, 552, 570, 654.

Chase, Justice, Opinions by, 26, 372.

Cherokee Nation, 585.

Chicago, 300.

Chicago River, 302.

Chinese cases, 595.

Citizens of United States, 473, 475, 478, 489, 502.

Privileges and immunities of, 54, 477, 497, 504, 507, 508, 509, 529.
Distinguished from citizens of the States, 474, 503.

See Negro.

Civil rights, 467, 472, 479, 518, 526.

Clarendon, Lord, 375 n., 388.

Cleveland, President, 638.

Clifford, Justice, 85, 254, 350, 518, 582.

Cited, 89.

Opinion by, 71.

Coasting trade, 187.

Coke, Sir Edward, 497, 536.

Commerce, 46, 47, 52, 173, 175, 179, 185, 191, 193, 200, 201, 210, 215, 223,
227, 229, 240, 241, 243, 246, 250, 253, 255, 259, 267, 270, 272,
275, 276, 302, 312, 528, 546, 665.

Concurrent or exclusive control of, 52, 180, 210, 242, 244, 245, 252,
261, 270, 271.

Control of Congress over, 179, 188, 205, 210, 213, 220, 232, 240, 244,

245, 255, 261, 266, 298, 303.

Control of States over, 215, 232, 254, 270, 275, 278, 280, 304.

Foreign commerce, 178.

Includes intercourse, 255, 261.

navigation, 175, 177, 188, 234.

passenger traffic, 189, 219, 222, 225, 232, 252, 254, 260.

transportation, 249, 250, 252-254, 260, 273, 660.

Regulation of charges not an interference with, 267, 293.