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MR. JUSTICE DAY delivered
the opinion of the court and MR. JUSTICE
HARLAN, dissenting
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 trial at Manila, Philippine Islands, for a criminal
offense, without a jury. I do so simply because of the decision
in Hawaii v. Mankichi, 190 U.S. 197. That case was decided by
the concurring views of a majority of this court, and although
I did not and do not concur in those views, yet the case
in my opinion is authority for the result arrived at in the
case now before us, to wit, that a jury trial is not a constitutional
necessity in a criminal case in Hawaii or in the Philippine Islands.
But, while concurring in this judgment, I do not wish to be understood
as assenting to the view that Downes v. Bidwell, 182 U.S. 244,
is to be regarded as authority for the decision herein. That
case is authority only for the proposition that the plaintiff
therein was not entitled to recover the amount of duties he had
paid under protest upon the importation into the city of New York
of certain oranges from the port of San Juan, in the Island of
Porto Rico, in November, 1900, after the passage of the act known
as the Foraker act. The various reasons advanced by the judges
in reaching this conclusion, which were not concurred in by a
majority of the court, are plainly not binding. The Mankichi
case is, however, directly in point, and calls for an affirmance
of this judgment.
I am authorized to say that the CHIEF JUSTICE
and MR. JUSTICE BREWER agree in this concurring opinion.
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