Syllabus. 195 U.S. was a crime against the United States; as the Constitution expressly declares, without qualification, that the trial of all crimes, except impeachment, shall be by jury; as Congress has not assumed to declare that this case and like ones may be tried without a jury, the parties assenting; and as 'the trial of these cases by the court alone, without a jury, has no other sanction than the consent of the accused and the District Attorney, the judgment in each case should be reversed, and each case remanded with directions to set aside the judgment, grant a new trial, and take such further proceedings as may be in conformity with law. KEPNER v. UNITED STATES. ERROR TO THE SUPREME COURT OF THE PHILIPPINE ISLANDS. No. 244, Argued April 22, 1904.-Decided May 31, 1904. 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. It is a well settled rule of construction that language used in a statute which has a settled and well known meaning, sanctioned by judicial decision, is presumed to be used in that sense by the legislative body. It is a well settled principle of construction that specific terms covering the given subject matter will prevail over general language of the same or another statute which might otherwise prove controlling. 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. In ascertaining the meaning of a phrase in the Constitution taken from the Bill of Rights, it must be construed with reference to the common law from which it was taken. 195 U. S. Argument for Plaintiff in Error. At common law protection from second jeopardy for the same offense clearly included immunity from second prosecution where the court having jurisdiction had acquitted the accused of the offense; and it is the settled law of this court that former jeopardy includes one who has been acquitted by a verdict duly rendered, although no judgment be entered on the verdict, and it was found upon a defective indictment. The second jeopardy is not against the peril of second judgment, but against being again tried for the same offense. 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. 'Dorr v. United States, No. 584, post, 138, and Mendezona v. United States, No. 583, post, 158, were argued simultaneously with this case. Argument for Plaintiff in Error. . 195 U. S. 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 195 U. S. Argument for Plaintiff in Error. 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°, 30', 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, Argument for Plaintiff in Error. 195 U. S. 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 ་ |