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[Cite as Kepner v. United States, 195 U.S. 100 (1904). NOTE: This decision concerns a period when the Philippine Islands were a U.S. territory and the extent to which Congress applied constitutional protections. A Manila lawyer was acquitted of embezzlement. An appeals court not only reversed the acquittal, but found the lawyer guilty. The Supreme Court decided this amounted to being tried twice for the same crime, and that Congress had applied the protection against double jeopardy. (P. 110) Being before the 14th amendment made any bill or rights protections applicable to state infringement, the government's arguement "that the first eight amendments to the Constitution do not operate upon the States" implies the second amendment was viewed as similar to other individual rights since it would be a logical absurdity to propose a protection of liberty could operate upon states to protect a state from infringing its own right by itself. (P. 108) Determing the extent to which Congress applied constitutional protections to the Philippine Territory, the Majority opinion noted it was "evident the intention of Congress to carry some at least of the essential principles of American constitutional jurisprudence to these islands and to engraft them upon the law of this people" (P. 121-122). Like so many other Supreme Court decisions, the "right of the people" to arms is listed among other rights which have always been treated as individual: "[The rights protected by the act] are the familiar language of the Bill of Rights, slightly changed in form, but not in substance, as found in the first nine amendments to the Constitution of the United States, with the omission of the provision preserving the right to trial by jury and the right of the people to bear arms, and adding the prohibition of the Thirteenth Amendment against slavery or involuntary servitude, ... bills of attainder and ex post facto laws. These principles ... were carefully collated from our own Constitution, and embody almost verbatim the safeguards of that instrument for the protection of life and liberty." (P. 123-124) Since the right to arms and the right to trial by jury were both withheld from the Philippine Territory, it is unlikely the ommission indicates they were considered state's rights. This becomes more apparent when the Tenth Amendment, explicitly a state's right, was also withheld but the Court did not to enumerate it as an exception. The Court made a similar statement a year later in Trono v. United States, 199 U.S. 521, 528 (1905).]

KEPNER v. UNITED STATES.

The facts, which involved the application of the constitutional immunity provision of the Constitution of the United States to the Philippine Islands, are stated in the opinion of the court.

Mr. Charles H. Aldrich for plaintiff in error:[1]

The result of De Lima v. Bidwell and the Fourteen Diamond Rings Case made these islands territory of the United States. They ceased to be foreign in any sense. Hence tariff laws were not applicable until Congress had made them so.

That the term "United States" in the Uniformity Clause had a restricted meaning and that these possessions were not within that clause of the Constitution, was the judgment of a majority of this court.

The status of the Philippine Archipelago is fixed as territory of the United States. Fourteen Diamond Rings Case, 183 U.S. 176, 179.

The question whether any particular provision is applicable depends upon whether Congress has extended that provision to such territory.

Considered in connection with the Hawaiian case, even the application of the bill of rights, so called, becomes a question of relation.

If we assume that enough has been done in the Philippines to incorporate them into the United States as required by one section of this court, or to extend the Constitution thereto as demanded by another view here expressed, then clearly the plaintiff in error must succeed.(p.102)

Again, if every agency of the Government is bound by these limitations upon the powers of Congress upon the establishment of civil government in the Philippines in dealing with persons not in the military service of the United States, the plaintiff in error must be sustained. See Hawaii v. Mankichi, 190 U.S. 197, 217; White, J., in same, p. 221; Harlan, J., in same, p. 237; Downes v. Bidwell, White, J., concurring opinion, 182 U.S. 244, 288, citing McLean, J., in Dred Scott v. Sanford, 19 How. 393, 542; Curtis, J., in same, p. 614.

The Territory being territory of the United States can only be governed by agencies of the United States, and as these agents are limited in their powers by the Constitution, it follows that without action by Congress, that is, in the absence of any action by Congress, unconstitutional acts may not be lawfully done in the Philippines.

It has been repeatedly stated by this court that while municipal law in force under the former sovereign remained in force as governing private persons and property, until changed by Congress, those laws which were in conflict with our Constitution and the spirit of our institutions were by the fact of acquisition abrogated. Dred Scott v. Sanford, 19 How. 398, 450; Fong Yue Ting v. United States, 149 U.S. 716, 738; Pollard v. Hagan, 3 How. 212, 225; Leitensdorfer v. Webb, 20 How. 176; Murphy v. Ramsey, 114 U.S. 15, 44; Chicago, R. I. & P. v. McGlinn, 114 U.S. 542, 546; Downes v. Bidwell, White, J., 182 U.S. 244, 291.

Why appeal to the spirit of our institutions, when we have the spirit embodied in these amendments constituting a bill of rights, a Magna Charta, as they were frequently called in the debates upon the adoption of the Constitution?

Such a course is to make uncertain the liberties of the people. They rest not in the letter of the Constitution, but in judicial interpretation, and the recent cases show that the members of our highest courts are unable to agree as to what they are or when they are available to the protection of the people.

Why make a difference between these prohibitions upon the (p.103)power of Congress by stating that some protect natural rights and some only methods of procedure?

They are all in the Constitution of equal dignity, if we look to that instrument alone. See Reynolds v. United States, 98 U.S. 145, 154, 162; Callan v. Wilson, 127 U.S. 540, 549; Springville v. Thomas, 166 U.S. 707; Publishing Co. v. Fisher, 166 U.S. 464; Bauman v. Ross, 167 U.S. 548; Thompson v. Utah, 170 U.S. 343; Capital Traction Co. v. Hof., 174 U.S. 1, 5, 45; Black v. Jackson, 177 U.S. 349, 363.

The cases relating to the Territories and those relating to the District of Columbia are treated by this court as resting upon the same principle. It is evident that this is so, there being no distinction to be drawn between the power to make rules and regulations respecting the territory of the United States, and the power to exercise exclusive legislation, in all cases whatsoever, in the District; none, at least, which would tend to give less effect to the constitutional prohibitions in the former case than in the latter. The decisions in all these cases have been unanimous on the point to which we cite them. Every member of the bench, as it is now constituted, has participated in one or more of them, and the same is true, with, we believe, a single exception, of every one of its distinguished occupants since 1878.

See also Wong Wing v. United States, 163 U.S. 228, citing on p. 238, Yick Wo v. Hopkins, 118 U.S. 300, to effect that the provisions of the Fourteenth Amendment to secure life, liberty and property, "are universal in their application to all persons within the territorial jurisdiction." And see Webster v. Reid, 11 How. 437, 460.

And see the question again considered in Dred Scott v. Sanford, 19 How. 393, as to the validity of the Missouri Compromise Act, which prohibited slavery in that part of the Louisiana Purchase lying north of 36 degrees, 30 minutes, north latitude and not included in the limits of the State of Missouri.

See especially dissenting opinions of McLean, J., and Curtis, J., as to when does territory become so far incorporated, (p.104)to use the language of the concurring opinion in the Hawaiian case, as to make these provisions of the Constitution applicable. It was conceded by all that the act of April 30, 1900, was effectual for that purpose.

Tried by this test, the acts of the President, of the Commission, and of Congress of July 1, 1902, prevented double jeopardy and tried by any of the tests proposed by any of the variant opinions in the cases cited, the contention of the plaintiff in error must be sustained.

And see also the Spooner Resolution of March 2, 1901, which constituted full authority to the President to extend the Constitution, and perhaps such portions of it as he might deem advisable, to the Philippine Islands; and, as we have seen, he did extend the provision forbidding that a person should be twice put in jeopardy for the same offense. The conclusion follows that when the Congress has given a broad letter of attorney to the President, making him the judge of what is necessary to govern the Philippines, and he extends the Constitution in whole or in part, it is the act of his principal.

All of the acts relating to criminal trial were prior to the commission of the offense for which the plaintiff in error was submitted to a double jeopardy, except the act of Congress and that act was prior to his second trial.

Have not all these provisions extended this prohibition of the Constitution to the Philippine Islands? If they have not, what would be effective for that purpose?

The court will note that the right of appeal by the United States is predicated wholly upon General Orders No. 58, issued by the military commander under date April 23, 1900. It is submitted that this cannot override an order of the President taking effect at a later date and looking to the restoration of the ordinary civil and criminal jurisdiction of the courts of this country, and that the language used by the President and Congress must be held to have been used with its accepted meaning in this country. It seems certain, that as against the liberty of the citizen, this court is not authorized (p.105)to deny to the language thus used by the executive and legislative branches of the Government its ordinary acceptation.

Two trials in a criminal case are not consistent with the prohibition against double jeopardy in the Federal Constitution. United States v. Sanges, 144 U.S. 310; Sparf v. United States, 156 U.S. 51, 87, 175; United States v. Ball, 163 U.S. 662, 669, 671; Ex parte Lange, 18 Wall. 163; Berkowitz v. United States, 93 Fed. Rep. 452, and other cases cited by the Government, distinguished. And see also In re Belt, 159 U.S. 95, 98; Ex parte Mason, 105 U.S. 696, 699; Murphy v. Massachusetts, 177 U.S. 155; Kohlheimer v. State, 39 Mississippi, 548; State v. Ward, 48 Arkansas, 36; Black v. State, 36 Georgia, 447; Hilands v. Commonwealth, 111 Pa. St. 1; State v. McKee, 1 Bailey Law, 651; S. C., 21 Am. Dec. 499, with notes; Commonwealth v. Fitzpatrick, 121 Pa. St. 109; McDonald v. State, 79 Wisconsin, 651; O'Brian v. Commonwealth, 9 Bush, 333; Durham v. State, 4 Scam. 172; People v. Miner, 144 Illinois, 308.

These cases show that while there is not a unanimity of decision as to the precise moment when jeopardy attaches, there is substantial unanimity that where the indictment or information is sufficient, and the defendant is acquitted in a court having jurisdiction, he cannot be called upon to again answer for the same offense.

Mr. Lebbeus R. Wilfley, Attorney General for the Philippine Islands, for the United States in this case and in Nos. 583 and 584.

Plaintiff in error, a member of the Manila bar, was tried by the court of first instance of the city of Manila in November, 1901, on the charge of estafa (embezzlement of the funds of a client) and acquitted.

Under the law now in force in the Philippine Islands, which gives the Government as well as the accused the right of appeal from final judgments of the courts of first instance in criminal cases, the Government appealed the case and the (p.106)Supreme Court reversed the judgment of the lower court, sentencing the plaintiff in error to one year, eight months and twenty-one days' imprisonment, together with suspension from the office of attorney at law.

The plaintiff in error contends that the right to trial by jury is in the Philippine Islands. The court has held in the Insular cases and in the case of Hawaii v. Mankichi that the Constitution does not of its own force attach to newly acquired territory immediately upon the date of acquisition; that power to extend the provisions of the Constitution to the Territories rests in Congress; that notwithstanding the fact that there are certain prohibitions contained in the Constitution relating to fundamental rights which go to the very root of the power of Congress to act, at all times, in all places, and under all circumstances, yet there are other limitations contained in that instrument, not absolute in their nature, relating to such matters as methods of procedure and forms of judicial trials, which do not restrict Congress in the exercise of its power to create local governments and make needful rules and regulations for the Territories of the United States.

The power of Congress to provide such modes of trial and methods of procedure as in its judgment are best adapted to the needs of the people of the Territory is clearly recognized in the foregoing cases.

The sole question raised in this case, in our opinion, is whether the provision of the Code of Criminal Procedure now in force in the Philippine Islands, which gives the Government, as well as the accused, the right of appeal from judgments of the trial court in criminal cases, is repealed by the act of Congress of July 1, 1902, entitled "An act temporarily to provide for the administration of the affairs of civil government in the Philippine Islands, and for other purposes," which provides that no person "for the same offence shall be twice put in jeopardy of punishment."

General Order No. 58 is not repealed by said act of Congress because the clause giving the Government the right of (p.107)trial in government cases does not violate the provision against double jeopardy contained in said act. The principle of law against double jeopardy exists in the Spanish as it does in the common law countries. The proceeding before the court of the first instance and the Supreme Court of the Philippine Islands are but parts of a single continuous trial. Congress in enacting this piece of special legislation, must be supposed to have had in view the conditions and circumstances existing in the Philippine Islands and the laws in force there on the subject of criminal procedure, and to have legislated with special reference thereto.

The system of trial by jury has been withheld from the Philippines by Congress.

Hence Congress cannot be presumed, by the use of general terms, to have engrafted on the Roman law system of trial by judges an application of the treaty against double jeopardy which is connected inseparably with the common law system of trial by jury. This could only be done by express, specific provision repealing unmistakably the law of procedure in force in the islands at the date of the passage of the act.

The adoption by Congress of the Spanish law application of the principle against double jeopardy is not in derogation of any fundamental right guaranteed by the Constitution of the United States, does not violate any principle of natural justice, and is not inconsistent with the universal principle of jurisprudence which enforces the conclusiveness of a final and valid judgment.

All rules of statutory construction support the interpretation herein contended for.

Mr. Solicitor General Hoyt for the United States in this case and in Nos. 583 and 584:

The first question here is whether the express limitations respecting trial by jury apply of their own force in the Philippines as a vital and inherent principle of our free government everywhere, or whether they constitute simply a remedial (p.108)right and a particular method of procedure peculiar to our Anglo-Saxon jurisprudence, but not essential to the protection of individual liberty.

This question was answered in the Mankichi Case, 190 U.S. 197. From that decision it seems clear that while most of the privileges and immunities of the bill of rights apply to Territories from the moment of acquisition, trial by jury does not. That institution is not a necessary and fundamental right, but concerns procedure mainly, and the guarantee does not apply to newly acquired territory. Trial by jury was entirely unknown to the civil law in general and as administered in the Philippines, and the civil law method of trial has always been in vogue there, is familiar to the people and is perfectly adequate to all the demands of justice.

The respect which we are bound to feel for the institutions of the civil law, and the idea that the rights of new people coming under our sovereignty should not be unnecessarily interfered with in respect to their historical institutions and jurisprudence, have been expressed by the court in opinions of great ability and force. Hurtado v. California, 110 U.S. 516; Holden v. Hardy, 169 U.S. 366.

Previous cases involving the question as to the right of trial by jury establish these propositions: that the first eight amendments to the Constitution do not operate upon the States; that accordingly, while jury trial is a necessary rule in courts of the United States, including the District of Columbia and the organized Territories, nevertheless the State may provide for other modes of accusation and trial consistently with due process of law and the principles of free government. Webster v. Reid, 11 How. 437; Hurtado v. California, 110 U.S. 516; In re Ross, 140 U.S. 473; American Pub. Co. v. Fisher, 166 U.S. 46; Thompson v. Utah, 170 U.S. 343; Bolin v. Nebraska, 176 U.S. 83; Maxwell v. Dow, 176 U.S. 584; Downes v. Bidwell, 182 U.S. 244. The Mankichi case and the present cases add to this rule Territories not organized.

The power of Congress here is plenary. Congress has exercised (p.109)it by maintaining all the guarantees vital and necessary to free government which our war power had imposed upon itself at the outset. Congress has not only not extended the Constitution and laws in general of the United States, but has affirmatively withheld them, and intentionally has not included trial by jury in the bill of rights conferred. Under these circumstances, and under the decisions as interpreted and applied by the Insular cases, the logic is certain and inevitable that the right of trial by jury does not apply to the Philippine Islands.

What does the provision as to jeopardy in the Philippine civil government act mean as applied to Philippine conditions? What was the intention of Congress? The principle is ancient and inherent in all just laws, and in some sense is a fundamental limitation on our Government everywhere. It is evident, however, that the scope and effect of our rules are essentially dependent upon the peculiar function and conclusive authority of a jury. The finality of a verdict against the prosecution rules the whole subject.

Under the system we founded in the Philippines all serious crimes were necessarily reviewed by the audiencia, whether acquittal or conviction resulted below, and the case was not final, the trial ended and the jeopardy complete until the audiencia had pronounced judgment. The American legislation has made no substantial changes in these proceedings. Under the present system there is not more than one trial; the original trial is a unitary and continuous thing and is not complete until the appellate court has pronounced judgment.

Congress has manifested a clear intention to approve and sustain the established scheme as modified and enlarged under our authority; the Philippine situation was studied with particular care and great deliberation, and Congress acted upon full information. It is incredible that Congress meant to impose the peculiar conception and effect of the rule on jeopardy which is imbedded in our law simply because of its relation to trial by jury. If that view were sustained, such (p.110)mischiefs and confusion would follow as those which would be consequent upon the immediate introduction of grand and petit juries. It was never intended, by the insertion of the jeopardy clause to wipe out by mere remote implication the entire established course of state appeals in criminal cases. If Congress had desired to give to our Government in the Philippines the authority to strike down appeals by the prosecution in criminal cases, they would have done so in clear and unmistakable language.

There is due process of law in the Philippines within our own fundamental guarantees and by our own tests. The system is sufficient for the full demands of distributive justice. The law is equal and operates upon all alike. It is as right for this Government to preserve the essential character of the structure as a possession and cherished institution of the inhabitants, as it is for a State to adopt just such institutions upon the desires and demands of its people. See Missouri v. Lewis, 101 U.S. 22, 31.

The Philippine laws respecting criminal trials and appeals are entirely harmonious with the necessary principles of free government, and all the proceedings taken herein were due and legal and were not forbidden by the Constitution and laws of the United States.

Mr. Justice Day delivered the opinion of the court.

Thomas E. Kepner, a practicing lawyer in the city of Manila, Philippine Islands, was charged with a violation of the law in the embezzlement of the funds of his client (estafa). Upon trial, in November, 1901, in the court of first instance, without a jury, he was acquitted, it being the judgment of the court that he was not guilty of the offense charged. Upon appellate proceedings by the United States to the Supreme Court of the Philippine Islands the judgment of the court of first instance, finding the accused not guilty, was reversed, and Kepner was found guilty and sentenced to a term of imprisonment of one (p.111)year, eight months and twenty-one days, suspended from any public office or place of trust and deprived of the right of suffrage.

Error was assigned in the appellate court upon the ground that the accused had been put in jeopardy a second time by the appellate proceedings, in violation of the law against putting a person twice in jeopardy for the same offense, and contrary to the Constitution of the United States.

The appeal was taken by the United States on December 20, 1901. A motion to dismiss the appeal was made on January 1, 1902. The motion was finally overruled on October 11, 1902; the final decision in the case, finding the accused guilty and imposing the sentence, was rendered on December 3, 1902.

A proper consideration of the question herein made renders it necessary to notice some of the steps by which the jurisdiction of the courts in which the accused was tried was established.

The United States acquired the Philippine Islands by cession under the treaty of peace executed at Paris, between the United States and Spain, on December 10, 1898, the final ratifications being exchanged April 11, 1899.

The islands after American occupation had been under military rule prior to the creation of the Philippine Commission.

Under the control of the military government, orders had been issued, among others, military order number 58, dated April 23, 1900, which order was, in part as follows:

"General Orders, No. 58.

"Manila, P. I., April 23, 1900.

"In the interests of justice and to safeguard the civil liberties of the inhabitants of these islands, the criminal code of procedure now in force therein is hereby amended in certain of its important provisions as indicated in the following enumerated sections:

* * * * * * * *(p.112)

"Sec. 3. All public offences triable in courts of first instance or in courts of similar jurisdiction, now established or that hereafter may be established, must be prosecuted by complaint or information.

* * * * * * * *

Rights of accused at the trial.

"Sec. 15. In all criminal prosecutions the defendant shall be entitled:

"1. To appear and defend in person and by counsel at every stage of the proceedings.

"2. To be informed of the nature and cause of the accusation.

"3. To testify as a witness in his own behalf; but if a defendant offers himself as a witness he may be cross-examined as any other witness. His neglect or refusal to be a witness shall not in any manner prejudice or be used against him.

"4. To be exempt from testifying against himself.

"5. To be confronted at the trial by and to cross-examine the witnesses against him. Where the testimony of a witness for the prosecution has previously been taken down by question and answers in the presence of the accused or his counsel, the defence having had an opportunity to cross-examine the witness, the deposition of the latter may be read, upon satisfactory proof to the court that he is dead or insane, or cannot with due diligence be found in the islands.

"6. To have compulsory process issue for obtaining witnesses in his own favor.

"7. To have a speedy and public trial.

"8. To have the right of appeal in all cases.

* * * * * * * *

"Sec. 43. From all final judgments of the courts of first instance or courts of similar jurisdiction, and in all cases in which the law now provides for appeals from said courts an appeal may be taken to the Supreme Court as hereinafter prescribed....

"Sec. 44. Either party may appeal from a final judgment (p.113)or from an order made after judgment affecting the substantial rights of the appellant or in any case now permitted by law. The United States may also appeal from a judgment for the defendant rendered on a demurrer to an information or complaint, and from an order dismissing a complaint or information.

* * * * * * * *

"Sec. 50. It shall not be necessary to forward to the Supreme Court the record, or any part thereof, of any case in which there shall have been an acquittal, or in which the sentence imposed does not exceed confinement in prison for one year, or a fine of 250 pesos, exclusive of costs, unless such case shall have been duly appealed. But such sentences shall be executed upon the order of the court in which the trial was had. The record in cases in which the death penalty, or imprisonment exceeding one year, or a fine exceeding 250 pesos, exclusive of costs of trial, shall have been imposed, shall be forwarded to the clerk of the criminal branch of the Supreme Court within twenty days, but not earlier than fifteen days after the rendition of the sentence. All cases involving sentence of death, or of imprisonment exceeding six years, or of fine exceeding 1250 pesos, or in which an appeal shall have been taken, shall be submitted to the criminal branch of the Supreme Court, and shall thereafter take the same course as is now provided by law. Cases forwarded to the Supreme Court involving sentences less serious than those hereinbefore last mentioned, and not appealed, shall be referred by the clerk to the ministerio fiscal for consideration, and if the latter return the same concurring in the sentence imposed, the record shall immediately be returned to the trial court for execution of sentence. If the ministerio fiscal shall not concur in the sentence the case shall be submitted to the criminal branch of the Supreme Court, and shall thereafter take the same course as is now provided by law when that officer shall recommend a sentence in any respect more severe than that imposed by the trial judge, and for the consideration of the (p.114)court, without the necessity of a further defence or hearing, when that officer recommends a lighter sentence."

This order was amended by an act of the commission (No. 194), passed August 10, 1901, and is as follows:

"(G) No. 194. An act conferring jurisdiction on justices of the peace, &c.

"Sec. 1. Every justice of the peace in the Philippine Islands is hereby invested with authority to make preliminary investigation of any crime alleged to have been committed within his municipality, jurisdiction to hear and determine which is by law now vested in the judges of courts of first instance....

"Sec. 4. So much of section fifty of said general order number fifty-eight as requires courts of first instance, or clerks thereof, to forward to the Supreme Court or the ministerio fiscal the record of all criminal cases for revision or consideration, except where the death penalty is imposed as the judgment or part of the judgment of such court of first instance, is hereby repealed, and it shall not be necessary to forward to the Supreme Court or the ministerio fiscal the record, or any part thereof, of any case in which there shall have been an acquittal, or in which the penalty imposed is not death, unless such case shall have been duly appealed, as provided in such order. The records of all cases in which the death penalty shall have been imposed by any court of first instance, whether the defendant shall have appealed or not, shall be forwarded to the Supreme Court for investigation and judgment, as law and justice shall dictate."

Courts were established for the islands under an act passed by the commission June 11, 1901:

"Sec. 2. The judicial power of the government of the Philippine Islands shall be vested in a Supreme Court, courts of first instance, and courts of justices of the peace, together with such special jurisdictions of municipal courts, and other special tribunals as now are or hereafter may be authorized by law. The two courts first named shall be courts of record.

* * * * * * * *(p.115)

"Sec. 16. The jurisdiction of the Supreme Court shall be of two kinds:

"1. Original; and

"2. Appellate.

"Sec. 17. The Supreme Court shall have original jurisdiction to issue writs of mandamus, certiorari, prohibition, habeas corpus and quo warranto in the cases and in the manner prescribed in the Code of Civil Procedure, and to hear and determine the controversies thus brought before it, and in other cases provided by law.

"Sec. 18. The Supreme Court shall have appellate jurisdiction of all actions and special proceedings properly brought to it from courts of first instance, and from other tribunals from whose judgment the law shall specially provide an appeal to the Supreme Court.

"Sec. 19. The Supreme Court shall have power to issue writs of certiorari and all other auxiliary writs and process necessary to the complete exercise of its original or appellate jurisdiction.

* * * * * * * *

"Sec. 39. The existing audiencia or Supreme Court is hereby abolished, and the Supreme Court provided by this act is substituted in place thereof.

* * * * * * * *

"Sec. 55. The jurisdiction of courts of first instance shall be of two kinds:

"1. Original; and

"2. Appellate.

"Sec. 56. Courts of first instance shall have original jurisdiction.... 6. In all criminal cases in which a penalty of more than six months' imprisonment or a fine exceeding one hundred dollars may be imposed.

* * * * * * * *

"Sec. 65. The existing courts of first instance are hereby abolished, and the courts of first instance provided by this act are substituted in place thereof.(p.116)

"Sec. 66. There shall be courts of justice of the peace as in this section provided:

"1. The existing courts of justices of the peace, established by military orders since the thirteenth day of August, eighteen hundred and ninety-eight, are hereby recognized and continued, and the justices of such courts shall continue to hold office during the pleasure of the commission.

"2. In every province in which there now is, or shall hereafter be established, a court of first instance, courts of justice of the peace shall be established in every municipality thereof which shall be organized under the municipal code, or which has been organized and is being conducted as a municipality when this act shall take effect, under and by virtue of the municipal code.

* * * * * * * *

"Sec. 68. A justice of the peace shall have original jurisdiction for the trial of all misdemeanors and offences arising within the municipality of which he is a justice, in all cases where the sentence might not by law exceed six months' imprisonment or a fine of one hundred dollars; ..."

On July 1, 1902, Congress passed an act, 32 Stat. 691:

"An Act temporarily to provide for the administration of the affairs of civil government in the Philippine Islands, and for other purposes.

"Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That the action of the President of the United States in creating the Philippine Commission and authorizing said commission to exercise the powers of government to the extent and in the manner and form and subject to the regulation and control set forth in the instructions of the President to the Philippine Commission, dated April seventh, nineteen hundred, and in creating the offices of civil governor and vice-governor of the Philippine Islands, and authorizing said civil governor and vice-governor to exercise the powers of government to the extent and in the manner and form set forth in the executive (p.117)order dated June twenty-first, nineteen hundred and one, and in establishing four executive departments of government in said islands as set forth in the act of the Philippine Commission, entitled 'An act providing an organization for the departments of the interior, of commerce and police, of finance and justice, and of public instruction,' enacted September sixth, nineteen hundred and one, is hereby approved, ratified, and confirmed, and until otherwise provided by law the said islands shall continue to be governed as thereby and herein provided, and all laws passed hereafter by the Philippine Commission shall have an enacting clause as follows: 'By authority of the United States be it enacted by the Philippine Commission.' The provisions of section eighteen hundred and ninety-one of the Revised Statutes of eighteen hundred and seventy-eight shall not apply to the Philippine Islands.

"Future appointments of civil governor, vice-governor, members of said commission, and heads of executive departments shall be made by the President, by and with the advice and consent of the Senate.

* * * * * * * *

"Sec. 5. That no law shall be enacted in said islands which shall deprive any person of life, liberty or property without due process of law, or deny to any person therein the equal protection of the laws.

"That in all criminal prosecutions the accused shall enjoy the right to be heard by himself and counsel, to demand the nature and cause of the accusation against him, to have a speedy and public trial, to meet the witnesses face to face, and to have compulsory process to compel the attendance of witnesses in his behalf.

"That no person shall be held to answer for a criminal offence without due process of law; and no person for the same offence shall be twice put in jeopardy of punishment, nor shall be compelled in any criminal case to be a witness against himself.

"That all persons shall before conviction be bailable by sufficient sureties, except for capital offences.(p.118)

"That no law impairing the obligation of contracts shall be enacted.

"That no person shall be imprisoned for debt.

"That the privilege of the writ of habeas corpus shall not be suspended, unless when in cases of rebellion, insurrection or invasion the public safety may require it, in either of which events the same may be suspended by the President, or by the governor, with the approval of the Philippine Commission, whenever during such period the necessity for such suspension shall exist.

"That no ex post facto law or bill of attainder shall be enacted.

"That no law granting a title of nobility shall be enacted, and no person holding any office of profit or trust in said islands shall, without the consent of the Congress of the United States, accept any present, emolument, office or title of any kind whatever from any king, queen, prince or foreign State.

"That excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishment inflicted.

"That the right to be secure against unreasonable searches and seizures shall not be violated.

"That neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist in said islands.

"That no law shall be passed abridging the freedom of speech or of the press, or the right of the people peaceably to assemble and petition the Government for redress of grievances.

"That no law shall be made respecting an establishment of religion or prohibiting the free exercise thereof, and that the free exercise and enjoyment of religious profession and worship, without discrimination or preference, shall forever be allowed.

"That no money shall be paid out of the treasury except in pursuance of an appropriation by law.

"That the rule of taxation in said islands shall be uniform.(p.119)

"That no private or local bill which may be enacted into law shall embrace more than one subject, and that subject shall be expressed in the title of the bill.

"That no warrant shall issue but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched and the person or things to be seized.

"That all money collected on any tax levied or assessed for a special purpose shall be treated as a special fund in the treasury and paid out for such purpose only.

* * * * * * * *

"Sec. 9. That the Supreme Court and the courts of first instance of the Philippine Islands shall possess and exercise jurisdiction as heretofore provided, and such additional jurisdiction as shall hereafter be prescribed by the government of said islands, subject to the power of said Government to change the practice and method of procedure. The municipal courts of said islands shall possess and exercise jurisdiction as heretofore provided by the Philippine Commission, subject in all matters to such alteration and amendment as may be hereafter enacted by law; and the chief justice and associate justices of the Supreme Court shall hereafter be appointed by the President, by and with the advice and consent of the Senate, and shall receive the compensation heretofore prescribed by the commission until otherwise provided by Congress. The judges of the court of first instance shall be appointed by the civil governor, by and with the advice and consent of the Philippine Commission: Provided, That the admiralty jurisdiction of the Supreme Court and courts of first instance shall not be changed except by act of Congress.

"Sec. 10. That the Supreme Court of the United States shall have jurisdiction to review, revise, reverse, modify or affirm the final judgments and decrees of the Supreme Court of the Philippine Islands in all actions, cases, causes and proceedings now pending therein or hereafter determined thereby in which the Constitution or any statute, treaty, title, right or privilege of the United States is involved, or in causes in (p.120)which the value in controversy exceeds twenty-five thousand dollars, or in which the title or possession of real estate exceeding in value the sum of twenty-five thousand dollars, to be ascertained by the oath of either party or of other competent witnesses, is involved or brought in question; and such final judgments or decrees may and can be reviewed, revised, reversed, modified or affirmed by said Supreme Court of the United States on appeal or writ of error by the party aggrieved, in the same manner, under the same regulations, and by the same procedure, as far as applicable, as the final judgments and decrees of the Circuit Courts of the United States."

The act just quoted became a law before the final conviction of the accused in the Supreme Court of the islands.

It is contended by the Government that that part of the law under immediate consideration, which provides that no person, for the same offense, shall be twice put in jeopardy, must be construed in view of the system of laws prevailing in the islands before the same were ceded to the United States, and that the purpose of Congress was to make effectual the jurisprudence of the islands as known and established before American occupation, and that the provision against double jeopardy must be read in the light of the understanding of that expression in the civil law, or rather the Spanish law as it was then in force.

The citations in the brief of the learned counsel for the Government seem to establish that under the Spanish law, as theretofore administered, one who had been convicted by a judgment of the court of last resort could not again be prosecuted for the same offense. We notice some of these provisions:

In Spanish law the doctrine found expression in the Fuero Real (A.D. 1255) and the Siete Partidas (A.D. 1263).

"After a man, accused of any crime, has, been acquitted by the court, no one can afterwards accuse him of the same offence (except in certain specified cases). Fuero Real, lib. iv, tit. xxi, 1, 13.

[Currently at pages 100-120 (Majority opinion).
Proceed to pages 121-124 (Majority opinion cont.).
Proceed to pages 125-133 (Majority opinion cont.).
Proceed to pages 134-137 (Dissenting opinions).]