Considering the act of 1894 in Hy-yu-tse-mil-kin v. Smith, 194 U. S. 413, the court said:

"Under this statute there is no provision rendering it necessary in a private litigation between two claimants for an allotment to make the United States a party. The statute itself provides that the judgment or decree of the court, upon being properly certified to the Secretary of the Interior, is to have the same effect as if the allotment had been allowed and approved by the Secretary. This provision assumes that an action may be maintained without the Government being made a party, and provides for the filing of a certificate of the judgment and its effect; and the Government thereby, in substance and effect, consents to be bound by the judgment, and to issue a patent in accordance therewith."

The Rickert case settled that, as the necessary result of the legislation of Congress, the United States retained such control over allotments as was essential to cause the allotted land to enure during the period in which the land was to be held in trust "for the sole use and benefit of the allottees." As observed in the Smith case, 194 U. S. 408, prior to the passage of the act of 1894, "the sole authority for settling disputes concerning allotments resided in the Secretary of the Interior." This being settled, it follows that prior to the act of Congress of 1894 controversies necessarily involving a determination of the title and incidentally of the right to the possession of Indian allotments while the same were held in trust by the United States were not primarily cognizable by any court, either state or Federal. It results, therefore, that the act of Congress of 1894, which delegated to the courts of the United States the power to determine such questions, cannot be construed as having conferred upon the state courts the authority to pass upon Federal questions over which, prior to the act of 1894, no court had any authority. The purpose of the act of 1894 to continue the exclusive Federal control over the subject is manifested by the provision of that act, which commands that a judgment or decree rendered

in any such controversy shall be certified by the court to the Secretary of the Interior. By this provision, as pointed out in the Smith case, supra, the United States consented to submit its interest in the trust estate and the future control of its conduct concerning the same to the result of the decree of the courts of the United States, a power which such courts could alone exercise by virtue of the consent given by the act. The subsequent legislation of Congress, instead of exhibiting a departure from this policy, confirms it. By the amendments to the act of 1894, approved February 6, 1901, ch. 217, 31 Stat. 750, it is expressly required that in suits authorized to be brought in the Circuit Courts of the United States respecting allotments of Indian lands, "the parties thereto shall be the claimant as plaintiff and the United States as party defendant." Nothing could more clearly demonstrate, than does this requirement, the conception of Congress that the United States. continued as trustee to have an active interest in the proper disposition of allotted Indian lands and the necessity of its being made a party to controversies concerning the same, for the purpose of securing a harmonious and uniform operation of the legislation of Congress on the subject.

The suggestion made in argument that the controversy here presented involved the mere possession and not the title to the allotted land is without merit, since the right of possession asserted of necessity is dependent upon the existence of an equitable title in the claimant under the legislation of Congress to the ownership of the allotted lands. Indeed, that such was the case plainly appears from the excerpt which we have made from the concluding portion of the opinion of the Supreme Court of Oregon.

Because from the considerations previously stated we are constrained to the conclusion that the court below was without jurisdiction to entertain the controversy, we must not be considered as intimating an opinion that we deem that the principles applied by the court in disposing of the merits of the case were erroneous.

Argument for Plaintiffs in Error.

204 U. S.

The judgment of the Supreme Court of Oregon is reversed and the cause remanded to that court for further proceedings not inconsistent with this opinion.

The CHIEF JUSTICE, MR. JUSTICE BREWER and MR. JUSTICE PECKHAM dissent.

SERRA v. MORTIGA.

ERROR TO THE SUPREME COURT OF THE PHILIPPINE ISLANDS.

No. 202. Submitted February 1, 1907.—Decided February 25, 1907.

The guarantees extended by Congress to the Philippine Islands are to be interpreted as meaning what the like provisions meant when Congress made them applicable to those islands.

While a complaint on a charge of adultery under the Penal Code of the Philippine Islands may be fatally defective for lack of essential averments as to place and knowledge on the part of the man that the woman was married, objections of that nature must be taken at the trial, and if not taken, and the omitted averments are supplied by competent proof, it is not error for the Supreme Court of the Philippine Islands to refuse to sustain such objections on appeal.

While the Supreme Court of the Philippine Islands hears an appeal as a trial de novo and has power to reëxamine the law and the facts it does so entirely on the record.

THE facts are stated in the opinion.

Mr. Aldis B. Browne, Mr. Alexander Britton and Mr. Maurice Kelly, for plaintiffs in error, submitted:

The complaint herein fails to state the essential elements of the crime of adultery, and is hence fatally defective. In entering judgment of conviction thereon, the court below violated the fundamental guarantees of the Constitution and of the Philippine Bill of Rights. United States v. Cook, 17 Wall. 168; United States v. Cruikshank, 92 U. S. 542, 557; Evans v. United States, 153 U. S. 584; Cochran v. United States,

157 U. S. 286; Pettibone v. United States, 148 U. S. 196; United States v. Slenker, 32 Fed. Rep. 691.

The complaint herein fails to state any place where the alleged acts of adultery were committed, or to show that they were committed anywhere within the jurisdiction of the court, and is hence fatally defective. The court below in entering judgment of conviction thereon violated the fundamental constitutional guarantees of the Philippine Bill of Rights. United States v. Betiong, 2 Phillip. 126; United States v. Wood, 2 Wheeler Cr. Cas. 325; S. C., 28 Fed. Cas. No. 16,757; United States v. Anderson, 17 Blatchf. 238; United States v. Wilson, Baldw. 78; S. C., 28 Fed. Cas. No. 16,730, pp. 699, 717; United States v. Burr, Fed. Cas. No. 14,693; United States v. Jackalow, 1 Black, 484; Ledbetter v. United States, 170 U. S. 606; United States v. Burns, 54 Fed. Rep. 351; Knight v. State, 54 Ohio St. 365; Thayer v. Commonwealth, 12 Met. 9; Commonwealth v. Barnard, 6 Gray, 488; State v. Bacon, 7 Vermont, 219.

The substantial defects in the complaint were not waived by defendants' plea, nor aided by judgment. Objection may be raised at any stage of the proceedings and by appeal or writ of error. 1 Bishop on Criminal Procedure, 4th ed., § 98a; The Hoppet v. United States, 7 Cranch, 389; Markham v. United States, 160 U. S. 319; United States v. Morrisey, 32 Fed. Rep. 147; United States v. Hess, 124 U. S. 483; Kepner v. United States, 195 U. S. 100; Trono v. United States, 199 U. S. 521; United States v. Cajayon, 2 Off. Gaz. 157.

No counsel appeared for defendant in error.

MR. JUSTICE WHITE delivered the opinion of the court.

Articles 433 and 434, found in chapter 1 of title IX of the Penal Code of the Philippine Islands, define and punish the crime of adultery. The articles referred to are in the margin.1

1 ART. 433. Adultery shall be punished with the penalty of prisión correccional in its medium and maximum degrees.

It is conceded at bar that, under the Philippine law, the offense of adultery, as defined by the articles in question, is classed as a private offense, and must be prosecuted, not on information by the public prosecutor, but by complaint on behalf of an injured party. In the Court of First Instance of Albay, Eighth Judicial District, Philippine Islands, Adriano Mortiga, the defendant in error, as the husband of Maria Obleno, filed a complaint charging her with adultery committed with Vicente Serra, the other plaintiff in error, who was also charged. The complaint is in the margin.1

Adultery is committed by a married woman who lies with a man not her husband, and by him who lies with her knowing that she is married, although the marriage be afterwards declared void.

ART. 434. No penalty shall be imposed for the crime of adultery except upon the complaint of the aggrieved husband.

The latter can enter a complaint against both guilty parties, if alive, and never, if he has consented to the adultery or pardoned either of the culprits. 1 The United States of America,

Philippine Islands, Eighth Judicial District:

In the Court of First Instance of Albay.

The United States and Macario Mercades, in Behalf of Adriano Mortiga,

V.

Vicente Serra and Maria Obleno.

The undersigned, a practicing attorney, in behalf of Adriano Mortiga, the husband of Maria Obleno, accuses Vincente Serra and the said Maria Obleno of the crime of adultery, committed as follows:

That on or about the year 1899, and up to the present time, the accused, being both married, maliciously, criminally and illegally lived as husband and wife, and continued living together up to the present time, openly and notoriously, from which illegal cohabitation two children are the issue, named Elias and José Isabelo, without the consent of the prosecuting witness, and contrary to the statute in such cases made and provided.

(Signed)
(Signed)

MACARIO MERCADES,
Attorney at Law.

ADRIANO MORTIGA.

ALBAY, February 24, 1904.

Sworn and subscribed to before me this 24th day of February, 1904.

Witnesses: ADRIANO MORTIGA.

BERNARDO MORTIGA.

EULALIO MORTIGA.

PLACIDO SOLANO.

CASIMIRA MARIAS.

(Signed) F. SAMSON, Clerk.