195 U.S. HOLMES, WHITE and MCKENNA, JJ., dissenting.

disagree, United States v. Perez, 9 Wheat. 579; see Simmons v. United States, 142 U. S. 148; Logan v. United States, 144 U. S. 263; Thompson v. United States, 155 U. S. 271, or notwithstanding their agreement and verdict, if the verdict is set aside on the prisoner's exceptions for error in the trial. Hopt v. People, 104 U. S. 631, 635; 110 U. S. 574; 114 U. S. 488, 492; 120 U. S. 430, 442; United States v. Ball, 163 U. S. 662, 672. He even may be tried on a new indictment if the judgment on the first is arrested upon motion. Ex parte Lange, 18.Wall. 163, 174; 1 Bish. Crim. Law (5th ed.), § 998. I may refer further to the opinions of Kent and Curtis in People v. Olcott, 2 Johns. Cas. 301; S. C., 2 Day, 507, n.; United States v. Morris, 1 Curtis, 23, and to the well-reasoned decision in State v. Lee, 65 Connecticut, 265.

If a statute should give the right to take exceptions to the Government, I believe it would be impossible to maintain that the prisoner would be protected by the Constitution from being tried again. He no more would be put in jeopardy a second time when retried because of a mistake of law in his favor, than he would be when retried for a mistake that did him harm. It cannot matter that the prisoner procures the second trial. In a capital case, like Hopt v. People, a man cannot waive, and certainly will not be taken to waive without meaning it, fundamental constitutional rights. Thompson v. Utah, 170 U. S. 343, 353, 354. Usually no such waiver is expressed or thought of. Moreover, it cannot be imagined that the law would deny to a prisoner the correction of a fatal error, unless he should waive other rights so important as to be saved by an express clause in the Constitution of the United States.

It might be said that when the prisoner takes exceptions he only is trying to get rid of a jeopardy that already exists— that so far as the verdict is in his favor, as when he is found guilty of manslaughter upon an indictment for murder, according to some decisions he will keep it and can be retried only for the less offense, so that the jeopardy only is con

HOLMES, WHITE and MCKENNA, JJ., dissenting. 195 U.S.

tinued to the extent that it already has been determined against him, and is continued with a chance of escape. I believe the decisions referred to to be wrong, but, assuming them to be right, we must consider his position at the moment when his exceptions are sustained. The first verdict has been set aside. The jeopardy created by that is at an end, and the question is what shall be done with the prisoner. Since at that moment he no longer is in jeopardy from the first verdict, if a second trial in the same case is a second jeopardy even as to the less offense, he has a right to go free. In view of these difficulties it has been argued that on principle he has that right if a mistake of law is committed at the first trial. 1 Bish. Crim. Law (5th ed.), §§ 999, 1047. But even Mr. Bishop admits that the decisions are otherwise, and the point is settled in this court by the cases cited above. That fetish happily being destroyed, the necessary alternative is that the Constitution permits a second trial in the same case. The reason, however, is not the fiction that a man is not in jeopardy in case of a misdirection, for it must be admitted that he is in jeopardy, even when the error is patent on the face of the record, as when he is tried on a defective indictment, if judgment is not arrested. United States v. Ball, 163 U. S. 662. Moreover, if the fiction were true, it would be equally true when the misdirection was in favor of the prisoner. The reason, I submit, is that there can be but one jeopardy in one case. I have seen no other, except the suggestion of waiver, and that I think cannot stand.

If what I have said so far is correct, no additional argument is necessary to show that a statute may authorize an appeal by the Government from the decision by a magistrate to a higher court, as well as an appeal by the prisoner. The latter is every day practice, yet there is no doubt that the prisoner is in jeopardy at the trial before the magistrate, and that a conviction or acquittal not appealed from would be a bar to a second prosecution. That is what was decided, and it is all that was decided or intimated, relevant to this case, in Wemyss

v. Hopkins, L. R. 10 Q. B. 378. For the reasons which I have stated already, a second trial in the same case must be regarded as only a continuation of the jeopardy which began with the trial below.

MR. JUSTICE BROWN dissenting.

Under our Anglo-Saxon system of jurisprudence I have always supposed that a verdict of acquittal upon a valid indictment terminated the jeopardy, that no further proceedings for a review could be taken either in the same or in an appellate court, and that it was extremely doubtful whether even Congress could constitutionally authorize such review.

Conceding all this, however, I think that in applying the principle to the Philippine Islands, Congress intended to use the words in the sense in which they had theretofore been understood in those Islands. By that law, in which trial by jury was unknown, the jeopardy did not terminate, if appeal were taken to the audiencia or Supreme Court, until that body had acted upon the case. The proceedings before the court of first instance were in all important cases reviewable by the Supreme Court upon appeal, which acted finally upon the case and terminated the jeopardy. This was evidently the view of the military commander in General Order, No. 58, and of the Philippine Commission in the act of August 10, 1901, (No. 194,) in both of which an appeal to the Supreme Court was contemplated, even after a judgment of acquittal. I think this also must have been the intention of Congress, particularly in view of sec. 9 of the Philippine act of July 1, 1902, which provided that "the Supreme Court and the 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." It seems to me impossible to suppose that Congress intended to place in the hands of a single judge the great and dangerous power of finally acquitting the most notorious criminals.

Syllabus.

195 U.S.

B

DORR v. UNITED STATES.

ERROR TO THE SUPREME COURT OF THE PHILIPPINE ISLANDS.

No. 583. Argued April 22, 1904.-Decided May 31, 1904.

While it is settled that the Constitution of the United States is the only
source of power authorizing action by any branch of the Federal Gov-
ernment, it is equally well settled that the United States may acquire
territory in the exercise of the treaty-making power by direct cession
as the result of war, and in making effective terms of peace and for that
purpose has the powers of other sovereign nations.
Congress has the right to make laws for the government of Territories,
without being subject to all the restrictions which are imposed upon it
when passing laws for the United States considered as a political body
of States in union and, until territory ceded by treaty has been incor-
porated into the United States, it is to be governed under Congress sub-
ject only to such constitutional restrictions upon its powers as are appli-
cable to the situation.

It is evident, from Article IX of the treaty with Spain ceding the Philippine
Islands, that the intention of the framers of the treaty was to reserve
to Congress, so far as it could constitutionally be done, a free hand in
dealing with the territory ceded by the treaty.
Congress has not up to the present time incorporated the Philippine Islands
into the United States, and by an express provision of the act of July 1,
1902, § 1891, Rev. Stat., by which force and effect is, given to the Con-
stitution and laws of the United States in the Territories, does not apply
to the Philippine Islands.

The power to govern territory implied in the right to acquire it, and given
to Congress in Article IV, 3 of the Constitution, to whatever other
limitations it may be subject, does not require Congress to exact 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
the Constitution does not, without legislation and of its own force, carry
such right to territory so situated.

Under 7 and 8 of the libel law enacted by the Philippine Commission, permitting a fair and true report of judicial, legislative and public official proceedings as privileged communications but excluding libelous remarks or comments from the privilege, the headlines "Traitor, Seducer, Perjurer-Wife would have killed him," over the report of a trial, although in quotation marks, are not within the privilege given by the act, and, if proved to be without basis, are libelous.

The power of Congress to authorize the temporary government, such as

that established under the Spooner Resolution of March 2, 1901, for the Philippine Islands, has been frequently exercised and is not now open to question, and the Philippine Commission established under that act had power to enact the libel law involved in this case.

THE facts, which involved the question whether in the absence of a statute of Congress expressly conferring the right of trial by jury, when demanded by the accused, is a necessary incident of judicial procedure in the Philippine Islands, are stated in the opinion of the court.

No brief filed for plaintiff in error.

Mr. L. R. Wilfley, Attorney General for the Philippine Islands and Mr. Solicitor General Hoyt, for the United States.1

MR. JUSTICE DAY delivered the opinion of the court.

This case presents the question whether, in the absence of a statute of Congress expressly conferring the right, trial by jury is a necessary incident of judicial procedure in the Philippine Islands, where demand for trial by that method has been made by the accused and denied by the courts established in the islands.

The recent consideration by this court and the full discussion had in the opinions delivered in the so-called "Insular cases," renders superfluous any attempt to reconsider the constitutional relation of the powers of the government to territory acquired by a treaty cession to the United States. De Lima v. Bidwell, 182 U. S. 1; Downes v. Bidwell, 182 U. S. 244. The opinions rendered in those cases cover every phase of the question, either legal or historical, and it would be useless to undertake to add to the elaborate consideration of the subject had therein. In the still more recent case of Hawaii v. Mankichi, 190 U. S. 197, the right to a jury trial in outlying

This case was argued simulatenously with Kepner v. United States. abstracts of arguments, see ante, p. 100.

For