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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. I cannot assent to this interpretation of the Constitution. It is, I submit, so obviously inconsistent 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 different 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 Constitution. The Constitution declares that it "shall be the supreme law of the land." But the court in effect adjudges that the Philippine Islands are not part of the "land," within the meaning of the Constitution, although they are 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 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

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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 over 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 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. There are many thousands of American soldiers in the Philippines. Besides, 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. Yet, if charged in the Philippines with having committed a crime against the United States of which a civil tribunal may take cognizance, they cannot, under the present decision, claim of right a trial by jury. So that, if an

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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 very 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, 446; 2 Story's 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. Comm. 379.

In a former case I had occasion 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."

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 relations 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

1 Hurtado v. California, 110 U. S. 516, 538; Thompson v. Utah, 170 U. S. 343; Maxwell v, Dow, 176 U. S. 581, 605; Downes v. Bidwell, 182 U. S. 244, 375; Hawaii v. Mankichi, 190 U. S. 197, 221, 226.

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necessary in the present case to enter upon a review of the authorities.

I dissent from the opinion and judgment of the court.

SECUNDINO MENDEZONA Y MENDEZONA v. UNITED STATES.

ERROR TO THE SUPREME COURT OF THE PHILIPPINE ISLANDS.

No. 584. Argued April 22, 1904.-Decided May 31, 1904.

Decided on authority of Kepner v. United States, ante, p. 100.

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.

MR. JUSTICE DAY delivered the opinion of the court.

This case involves the question just decided in Kepner v. United States, ante, p. 100. The plaintiff in error was acquitted in the court of first instance and convicted in the Supreme Court of the Philippine Islands.

For the reasons stated in the Kepner case, the judgment herein is reversed, and the prisoner discharged.

Dissenting: MR. JUSTICE BROWN, MR. JUSTICE WHITE, MR. JUSTICE MCKENNA and MR. JUSTICE HOLMES.

195 U.S.

Opinion of the Court.

CLIFF v. UNITED STATES.

ERROR TO THE DISTRICT COURT OF THE UNITED STATES FOR THE NORTHERN DISTRICT OF ILLINOIS.

No. 19. Argued December 2, 1983.-Decided October 24, 1904.

In enumerating the ingredients of oleomargarine in section 2 of the act of 1886 as amended in 1902, Congress included not only those substances which, entering into its composition make it suitable for food and form its body but also other ingredients used only for coloring, the purpose being to prevent excluding from the operation of the statute anything in its nature oleomargarine by reason of the addition of a substance not really an ingredient, but serving substantially only for coloring the product yellow. Under sections 2 and 8 of the act as amended, oleomargarine colored yellow by a small amount of palm oil serving no purpose other than coloration is artificially colored and is subject to the tax of ten cents a pound and does not come within the proviso to section 8 making the tax a quarter of a cent a pound when the oleomargarine is free from artificial coloration that causes it to look like butter of any shade of yellow. One claiming that his oleomargarine is not subject to the higher tax prescribed by section 8 of the oleomargarine act must make it clear that his product is clearly within the scope of the exception stated in the proviso.

The finding of a court upon a question of fact is as conclusive as the verdict of a jury and when supported by testimony admitted without objection will not be disturbed by this court.

THE facts are stated in the opinion of the court.

Mr. William D. Guthrie and Mr. Miller Outcalt, with whom Mr. Charles E. Prior, Mr. Francis J. Kearful, Mr. Delavan B. Cole, Mr. Charles C. Carnahan and Mr. John Maynard Harlan were on the brief, for plaintiff in error.

Mr. Solicitor General Hoyt for the United States.1

MR. JUSTICE BREWER delivered the opinion of the court.

August Cliff was convicted in the District Court of the

1 For abstract of arguments see McCray v. United States argued simultaneously with this case, ante, p. 30.

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