*142 nominated political, is necessarily changed, | may arise as to how far the exercise of the although that which regulates the inter- power is limited by the "prohibitions" of course and general conduct of individuals that instrument. The limitations which are remains in force until altered by the newly- to be applied in any given case involving created power of the state. territorial government must depend upon "On the 22d of February, 1819, Spain the relation of the particular territory to ceded Florida to the United States. the United States, concerning which Congress is exercising the power conferred by the Constitution. That the United States may have territory which is not incorporated into the United States as a body politic, we think was recognized by the framers of the Constitution in enacting the article already considered, giving power over The 6th article of the treaty of cession contains the following provision: "The inhabitants of the territories which His Catholic Majesty cedes the United States by this treaty shall be incorporated in the Union of the United States as soon as may be consistent with the principles of the Federal Constitution, and admitted to the enjoy- the territories, and is sanctioned by the ment of the privileges, rights, and immunities of the citizens of the United States.' [8 Stat. at L. 256.] "This treaty is the law of the land, and admits the inhabitants of Florida to the enjoyment of the privileges, rights, and immunities of the citizens of the United States. It is unnecessary to inquire whether this is not their condition, independent of stipulation. They do not, however, participate in political power; they do not share in the government till Florida shall become a state. In the meantime Florida continues to be a territory of the United States, governed by virtue of that clause in the Constitution which empowers Congress 'to make all needful rules and regulations respecting the territory or other property belonging to the United States."" While these cases, and others which are cited in the late case of Downes v. Bidwell, 182 U. S. 244-288, 45 L. ed. 1088-1106, 21 Sup. Ct. Rep. 770, sustain the right of Congress to make laws for the government of territories, without being subject to all the restrictions which are imposed upon that body when passing laws for the United States, considered as a political body of states in union, the exercise of the power expressly granted to govern the territories is not without limitations. Speaking of this power, Mr. Justice Curtis, in the case of Scott v. Sandford, 19 How. 614, 15 L. ed. 787, said: "If, then, this clause does contain a power to legislate respecting the territory, what are the limits of that power? "To this I answer that, in common with all the other legislative powers of Congress, it finds limits in the express prohibitions on Congress not to do certain things; that, in the exercise of the legislative power, Congress cannot pass an ex post facto law or bill of attainder; and so in respect to each of the other prohibitions contained in the Constitution." opinions of the justices concurring in the judgment in Downes v. Bidwell, 182 U. S. 244-288, 45 L. ed. 1088-1106, 21 Sup. Ct. Rep. 770. Until Congress shall see fit to incorporate territory ceded by treaty into the United States, we regard it as settled by that decision that the territory is to be governed under the power existing in Congress to make laws for such territories, and subject to such constitutional restrictions upon the powers of that body as are applicable to the situation. For this case the practical question is, Must Congress, in establishing a system for trial of crimes and offenses committed in the Philippine Islands, carry to their people by proper affirmative legislation a system of trial by jury? If the treaty-making power could incorporate territory into the United States without congressional action, it is apparent that the treaty with Spain, ceding the Philippines to the United States [30 Stat. at L 1759], carefully refrained from so doing; for it is expressly provided that (article 9): "The civil rights and political status of the native inhabitants of the territories hereby ceded to the United States shall be determined by the Congress." In this language it is clear that it was the intention of the framers of the treaty to reserve to Congress, so far as it could be constitutionally done, a free hand in dealing with these newly-aoquired possessions. The legislation upon the subject shows that not only has Congress hitherto refrained from incorporating the Philippines into the United States, but in the act of 1902, providing for temporary civil government (32 Stat. at L. 691, chap. 1369), there is express provision that § 1891 of the Revised Statutes of 1878 shall not apply to the Philippine Islands. This is the section giving force and effect to the Constitution and laws of the United States, not locally inapIn every case where Congress undertakes plicable, within all the organized territo legislate in the exercise of the power tories, and every territory thereafter organconferred by the Constitution, the question 'ized, as elsewhere within the United States. DORR v. UNITED STATES. The requirements of the Constitution as to a jury are found in article 3, § 2: 811 of carrying into the new government the those safeguards to life and liberty which guaranties of the Bill of Rights securing are deemed essential to our government, was careful to reserve the right to trial by jury, which was doubtless due to the fact that the civilized portion of the islands had a system of jurisprudence founded upon the civil law, and the uncivilized parts of the "The trial of all crimes, except in cases of impeachment, shall be by jury; and such trial shall be held in the states where the said crimes shall have been committed; but when not committed within any state, the trial shall be at such place or places as the Congress may by law have directed." And in article 6 of the amendments to the archipelago were wholly unfitted to exercise Constitution: tem, in force in the Philippines, gave the the right of trial by jury. The Spanish sysright to the accused to be tried before judges, who acted in effect as a court of inquiry, and whose judgments were not final until passed in review before the audiencia, or superior court, with right of final review, and power to grant a new trial for errors of "In all criminal prosecutions the accused shall enjoy the right to a speedy and public trial, by an impartial jury, of the state and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the wit-law, in the supreme court at Madrid. To nesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the assistance of counsel for his defense." It was said in the Mankichi Case, 190 U. S. 197, 47 L. ed. 1016, 23 Sup. Ct. Rep. 787, that when the territory had not been incorporated into the United States these requirements were not limitations upon the power of Congress in providing a government for territory in execution of the powers conferred upon Congress. Opinion of Mr. Justice White, p. 220, citing Hurtado v. California, 110 U. S. 516, 28 L. ed. 232, 4 Sup. Ct. Rep. 111, 292; ke Ross, 140 U. S. 453, 473, 35 L. ed. 581, 589, 11 Sup. Ct. Rep. 897; Bolln v. Nebraska, 176 U. S. 83, 44 L. ed. 382, 20 Sup. Ct. Rep. 287, and cases cited on page 86, L. ed. p. 383, Sup. Ct. Rep. p. 288; Maxwell v. Dow, 176 U. S. 581, 584, 44 L. ed. 597, 598, 20 Sup. Ct. Rep. 448, 494; Downes v. Bidwell, 182 U. S. 244, 45 L. ed. 1088, 21 Sup. Ct. Rep. 770. this system the Philippine Commission, in executing the power conferred by the orders of the President, and sanctioned by act L. 691, chap. 1369), has added a guaranty of of Congress (act of July 1, 1902, 32 Stat. at the right of the accused 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 against him face to face, and to have compulsory process to compel the at tendance of witnesses in his behalf. And, further, that no person shall be held to answer for a criminal offense without due process of law, nor be put twice in jeopardy of punishment for the same offense, nor be compelled in any criminal case to be a wit ness against himself. As appears in the Kepner Case, 194 U. S. Sup. Ct. Rep. 797, the accused is given the right of appeal from the judgment of the ante, 797, 24 court of first instance to the supreme court, and, in capital cases, the case goes to the In the same case Mr. Justice Brown, in latter court without appeal. It cannot be the course of his opinion, said: "We would even go farther, and say that most, if not all, the privileges and immunities contained in the Bill of Rights of the Constitution were intended to apply from the moment of annexation; but we place our decision of this case upon the ground that the two rights alleged to be violated in this case [right to trial by jury and presentment by grand jury] are not fundamental in their nature, but concern merely a method of procedure which sixty years of practice had shown to be suited to the conditions of the islands, and well calculated to conserve the rights of their citizens to their lives, their property, and their well being." As we have had occasion to see in the case of Kepner v. United States, 194 U. S. -, ante, 797, 24 Sup. Ct. Rep. 797, the President, in his instructions to the Philippine Commission, while impressing the necessity does not give an adequate and efficient meth- power of the United States, like other sov- known to civilized peoples, additional terri- | been deemed a matter of right that a local tory. The framers of the Constitution, rec- community should be suffered to lay the ognizing the possibility of future extension foundations of institutions, and erect a by acquiring territory outside the states, structure of government thereon, without did not leave to implication alone the power the guidance and restraint of a superior auto govern and control territory owned or to thority. Even in the older states, where sobe acquired, but, in the article quoted, ex-ciety is most homogeneous and has fewest of pressly conferred the needful powers to the elements of disquiet and disorder, the make regulations. Regulations in this sense must mean laws, for, as well as states, territories must be governed by laws. The limitations of this power were suggested by Mr. Justice Curtis in the Scott Case, above quoted, and Mr. Justice Bradley, in the Church of Jesus Christ of L. D. S. v. United States, 136 U. S. 1, 34 L. ed. 481, 10 Sup. Ct. Rep. 792, said: "Doubtless Congress, in legislating for the territories, would be subject to those fundamental limitations in favor of personal rights which are formulated in the Constitution and its amendments; but these limitations would exist rather by inference and the general spirit of the Constitution from which Congress derives all its powers, than by any express and direct application of its provisions." state reserves to itself the right to shape municipal institutions; and towns and cities are only formed under its directions, and according to the rules and within the limits the state prescribes. With still less reason could the settlers in new territories be suffered to exercise sovereign powers. The practice of the government, originating before the adoption of the Constitution, has been for Congress to establish governments for the territories; and whether the jurisdiction over the district has been acquired by grant from the states, or by treaty with a foreign power, Congress has unquestionably full power to govern it; and the people, except as Congress shall provide for, are not of right entitled to participate in political authority until the territory becomes a state. Meantime they are in a condition of This language was quoted with approba- temporary pupilage and dependence; and tion by Mr. Justice Brown in Downes v. while Congress will be expected to recogBidwell, 182 U. S. 244-288, 45 L. ed. 1088-nize the principle of self-government to such 1106, 21 Sup. Ct. Rep. 770, and in the same case Mr. Justice White said: "Whilst, therefore, there is no express or implied limitation on Congress in exercising its power to create local governments for any and all of the territories, by which that body is restrained from the widest latitude of discretion, it does not follow that there may not be inherent, although unexpressed, principles which are the basis of all free government, which cannot be with impunity transcended. But this does not suggest that every express limitation of the Constitution which is applicable has not force, but only signifies that even in cases where there is no direct command of the Constitution which applies, there may nevertheless be restric-disturbance rather than to aid the orderly tions of so fundamental a nature that they cannot be transgressed, although not expressed in so many words in the Constitution." In treating of article 4, § 3, Judge Cooley, in his work on Constitutional Law, says: "The peculiar wording of the provision [§ 3, article 4] has led some persons to suppose that it was intended Congress should exercise, in respect to the territory, the rights only of a proprietor of property, and that the people of the territories were to be left at liberty to institute governments for themselves. It is no doubt most consistent with the general theory of republican institutions that the people everywhere should be allowed self-government; but it has never 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 Const. 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 ter ritory 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 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 such 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 the time of the trial of the plaintiffs in accept, in advance of incorporation into the | the truth of the alleged libelous matter. At 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. "An Act Defining the Law of Libel and Threats to Publish a Libel, Making Libel and Threats to Publish Libel Misdemeanors, Giving a Right of Civil Action Therefor, and Making Obscene or Indecent Publications Misdemeanors. "By authority of the President of the United States, be it enacted by the United *We conclude that the power to govern territory, implied in the right to acquire it, and given to Congress in the Constitution in article 4, § 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 terri-States Philippine Commission that: Sec 1. tory 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 Constiution does not, without legislation, and of its own force, carry such right to territory so situated. "Sec. 4. In all criminal prosecutions for libel the truth may be given in evidence to the court, and if it appears to the court that the matter charged as libelous is true, and was published with good motives, and for justifiable ends, the party shall be acquitted; otherwise he shall be convicted; but to establish this defense, not only must the truth of the matter so charged be proven, but also that it was published with good motives and for justifiable ends. A libel is a malicious defamation, expressed either in writing, printing, or by signs or pictures, or the like, or public theatrical exhibitions, tending to blacken the memory of one who is dead or to impeach the honesty, virtue, or reputation, or publish the alleged Other assignments of error bring further or natural defects of one who is alive, and questions before the court which we will thereby expose him to public hatred, conproceed to notice. The case was a prosecu-tempt, or ridicule. tion for libel, brought at the instance of Don Benito Legarda, a member of the Philippine Commission, against the plaintiffs in error, Dorr and O'Brien, who were proprietors and editors of a newspaper published in the city of Manila known as the "Manila Freedom." It appears that Legarda was the prosecuting witness against one Valdez, editor of a certain Spanish newspaper called the "Miau." At the time of the trial of Valdez, under the Spanish law then in force in the islands, the truth could not be given in defense in a prosecution for criminal libel. Notwithstanding this fact, counsel for Valdez, in the form of an offer of proof, read a paper in court, making certain statements with reference to the libel charged, tending to show the truth thereof. In what purported to be a report of the proceeding, the Manila Freedom printed an article containing the matter set forth in the offer to prove, with headlines in large type, as follows: "Sec. 6. Every author, editor, or proprie tor of any book, newspaper, or serial publication is chargeable with the publication of any words contained in any part of such book or number of each newspaper or serial, as fully as if he were the author of the same. "Sec. 7. No reporter, editor, or proprietor of any newspaper is liable to any prosecu tion for a fair and true report of any ju dicial, legislative, or other public official proceedings, or of any statement, speech, argument, or debate in the course of the same, except upon proof of malice in making such report, which shall not be implied from the mere fact of publication. "Sec. 8. Libelous remarks or comments connected with matter privileged by the last section receive no privilege by reason of being so connected. "Enacted October 24, 1901." The contention is that the publication is privileged under §§ 7 and 8, the claim being that the publication was a fair and truthful report of judicial proceedings. Testimony was introduced in the court below tending to show malice, and there was no proof to 150 151 152 support the truth of the charges in the al-ply his comment on what occurred, and leged libel, which were found to be without to this no privilege attaches. Often such basis and wanton, and as the findings of the comments may be justified on another two lower courts in a case brought in re-ground,—that they are fair and bona fide view here are not ordinarily disturbed, the criticism on a matter of public interest, case upon this branch might rest upon that and are therefore not libelous. But such proposition. It is evident, however, that observations, to which quite different conthe publication in question did not stop with siderations apply, should not be mixed up a simple report of the judicial proceedings. with the history of the case. Lord CampIndeed, the paper offered in evidence could bell said: 'If any comments are made, they not have been received under the law then should not be made as part of the report. in force, a fact concerning which no com- The report should be confined to what takes ment was made in the report of the proceed-place in court; and the two things-reings. Furthermore, § 8 of the law, while port and comment-should be kept separate.' permitting, as privileged, a fair and truth- And all sensational headings to reports ful report of judicial proceedings, except should be avoided." Thomas v. Croswell, 7 upon express proof of malice, does not make Johns. 264, 5 Am. Dec. 269. privileged libelous remarks or comments in connection with the privileged matter. The draftsman of the law evidently had in mind the law of criminal libel in newspaper publications as it exists in this country. The privilege extends to a full and correct report of judicial proceedings without prejudicial comment. The rule is nowhere better stated than by Judge Cooley in his work on Constitutional Limitations, 7th ed., p. 637: These headlines were not privileged mat ter at the common law, and were libelous remarks or comments if the matter could be deemed otherwise privileged, within the meaning of § 8 of the Philippine libel law. An inspection of them would seem to be sufficient to demonstrate this fact. The complainant was held up to the public where the paper circulated in striking headlines as "Traitor, Seducer, Perjurer," and while these words were quoted, as well as the phrase "Wife would have killed him," their publication in this manner was certainly the essary to a fair and truthful report of judicial proceedings, and likely to raise inferences highly detrimental to the character and standing of the one concerning whom they were printed and published. "It seems to be settled that a fair and impartial account of judicial proceedings, which have not been ex parte, but in the hearing of both parties, is, generally speak-equivalent to a remark or comment unnecing, a justifiable publication. But it is said that if a party is to be allowed to publish what passes in a court of justice, he must publish the whole case, and not merely state the conclusion which he himself draws from the evidence. A plea that the supposed libel was, in substance, a true account and report of a trial, has been held bad; and a statement of the circumstances of a trial as from counsel in the case has been held not privileged. The report must also be strictly confined to the actual proceedings in court, and must contain no defamatory observations or comments from any quarter whatsoever, in addition to what forms strictly and properly the legal proceedings." Many cases are cited by the learned author in support of this conclusion. In Hayes v. Press Co. 127 Pa. 642, 5 L. R. A. 643, 14 Am. St. Rep. 874, 18 Atl. 331, headlines stating "Hotel Proprietors Embarrassed," in giving an account of a judg ment rendered in the suit of a bank against the proprietors of a certain hotel, was held not privileged. In Newell on Defamation, Slander and Libel, chap. 19, § 163, the author says: Further error is assigned in that act No. 277 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 [31 Stat. at L. 910, chap. 803]. 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, 45 L. ed. 1041, 1056, 21 Sup. Ct. Rep. 743. Judgment affirmed. Mr. Justice Peckham, concurring: 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 "The publisher must add nothing of his trial at Manila, Philippine Islands, for a own. He must not state his opinion of the criminal offense, without a jury. I do so conduct of the parties, or impute motives simply because of the decision in Hawaii v. therefor; he must not insinuate that a par- Mankichi, 190 U. S. 197, 47 L. ed. 1016, 23 ticular witness committed perjury. That | Sup. Ct. Rep. 787. That case was decided is not a report of what occurred; it is sim- by the concurring views of a majority of 153 |