
    Ex Parte Bird.
    Application for a Writ of Habeas Corpus.
    No. 29.
    Decided March 15, 1904.
    Liberty or the Press. — The first amendment to the Constitution of the United States guarantees the freedom of the press, hut not an unbounded license to publish whatever may be thought .fit with respect to persons, publie officials or judges of the courts in their publie or private capacity.
    Insult to Authorities — American Institutions. — The provisions contained in article 265 of the Spanish Penal Code, which defines'and punishes the crime of insult to authorities, are not incompatible with the spirit of American institutions.
    Id. — Chime of an Infamous Character.- — The crime of insult to authorities is not of an infamous character, since it is not punishable by a corporal penalty but by a correctional penalty, and as the same is served in jail, such offense is a misdemeanor, and only crimes defined as felonies may have such character.
    Grand Jury — Insular Courts. — The provisions of article V of the amendments to the Constitution of the United States are not applicable to the insular courts, in which the indictment of a grand jury is not necessary in order to find the accused guilty.
    Trial by Jury. — If the accused person does not demand a trial by jury in due time, it shall be understood that he waives the same and such a trial can only be granted in eases of felony.
    Habeas Corpus — Appointment of Judges — Judge de Facto. — It is presumed that the appointment of a judge who is regularly acting in a court has been made with legal formalities, but in any event the legality or illegality of such appointment cannot be inquired into on habeas corpus proceedings, and even in the case in which he has not been legally appointed he shall be considered as a judge Ae facto, and as such his decisions would be considered valid and could not be collaterally attacked on habeas corpus.
    
    Code of Criminal Procedure- — Penal Code — Crimes Committed Prior to July 1, 1902. — The new Penal Code and the Code of Criminal Procedure, which went into effect on July 1, 1902, are not applicable to acts or crimes committed prior to that date.
    Laws in Pari Materia. — Laws in pari materia should be construed together, harmonizing them, if possible, and in such manner that they are not incompatible with the general principles of law.
    Constitution of the United States — Territories.—In order that the Constitution of the United States may be considered as in force in a territory, an act of Congress so providing is necessary, or that the benefits thereof are made extensive to such territory by other departments of the Government, and that Congress tacitly consents thereto, which has not taken place with re-speet to Porto Rico.
    Habeas Corpus — Jurisdiction Over the Person of the Accused and Over the Crime. — In cases in which it appears that the court has jurisdiction over the person of the defendant and over the crime of which he is accused, the petition for his discharge upon habeas corpus should be dismissed.
    Id. — Object of the Writ. — The object of the writ of habeas corpus is to deliver the petitioner from illegal restraint, but such proceeding cannot be availed of for the purpose of an appeal or a writ- of error.
    The facts are stated in the opinion.
    
      Messrs. Dexter and Hernández Tisera, for the petitioner.
    
      Mr. del Toro, Fiscal, for the People.
   Mr. Justice MacLeary

delivered the following opinion of the court:

On the 4th of this month Hobart S. Bird made application to Hon. José S. Quiñones, Chief Justice of the Supreme Court of Porto Pico; for a writ of habeas corpus, alleging that he had been arrested on said date by an officer of the District Court of San Juan and detained in custody, in accordance with a certain commitment issued by the said district court, under a judgment of the Supreme Court of Porto Eico rendered on the 27th of 'February previous, in the case of the People of Porto Rico v. Hobart S. Bird, attaching a copy of the said judgment to his application. The Chief Justice granted the writ making it returnable before the full bench on the 6th instant, and at the request of the applicant the hearing was set for the 12th, he being in the meantime released on bail. On the hearing the case was taken under advisement until to-day.

Petitioner alleged that he was unlawfully detained and deprived of his liberty by José Berrios, warden of the prison la “Cárcel,” corresponding to the court jail, in Puerta de Tierra, a suburb of San Juan, in violation of the Constitution of the United States, and the laws thereof, setting forth the following grounds:

“1. Defendant was prosecuted under section 265 of the Penal Code of Porto Rico in force in Porto Rico at the time of the American occupation, and which by the express enactment of the Congress of the United States, i. e., the Organic Act of April 12, 1900, and particularly section 8 thereof, was applied to Porto Rico and continued in full force and effect therein.
‘1 That said article 265 at the time of the commission of the alleged offense by the defendant was absolutely null and void, being incompatible with the institutions of the American Government, and because it did not apply to the case of circumstances which were made the basis of this proceeding against defendant.
“2. That said article 265 made the offense described therein an ‘infamous crime/ punishable by arresto mayor.
“For tliis reason defendant sbonld not have been held to answer for tbe alleged offense except upon tbe presentment or indictment of a grand jury.
“3. Defendant was denied tbe right of trial by a petit jury as guaranteed bim by tbe United States Constitution.
“4. Tbe proceedings in tbe district court were not due process of law as provided for and understood in tbe Constitution of tbe United States.
“5. In tbe trial of defendant in tbe district court the court was illegally constituted in this, that by the provisions of section 33 of tbe said act of Congress of April 12, 1900, i. e., the Organic Act, it is provided that tbe judges of the district courts shall be appointed by the Governor by and with the advice and consent of the Executive Council. It appears from the record herein that at the time defendant was tried and convicted in tbe said district court one of the regular members thereof, to wit, Judge Morera, declined to sit in the case, and thereupon he was substituted by Sr. Don Angel García Yeve, who was appointed by the Governor as a special district court judge, but it does not appear that this nomination was approvd by the Executive Council, nor that the office of Judge Morera had become vacant by death, resignation, or legal termination of his appointment. For this reason all the proceedings had and held in the said district court and thereafter in the Supreme Court were without jurisdiction.
“6. The proceedings under which' defendant was convicted in the district eourt were not due process of law. It appears from the records in this case that defendant was charged to have committed the alleged offense on the thirteenth day of February, 1902. The second trial of defendant in which he was convicted occurred in October, 1903.
‘ ‘ On July 1, 1902, the new Law of Criminal Procedure took effect, and it appears from the records herein that no proceedings seem to have been taken under that law except the arraignment, pleading not guilty and setting the date for trial. It appears from the record that no information was filed herein against the defendant by the prosecuting attorney in open court in the name of the People of Porto Rico, and verified by his affidavit that the information was based upon the testimony of witnesses sworn before him. The information or accusation herein does not clearly set forth an offense as required by law. The judgment rendered by the district court was irregular and- void.
“7. Defendant was entitled to a jury trial in accordance with the provisions of chapter 10 of the Penal Code, which took effect July 1, 1902.
“8. In the determination of this case by the Supreme Court of Porto Rico the latter refused to consider any points of law or error except those presented by defendant or his attorney, although prior to such sentence and judgment of the Supreme Court the latter had been created by an act of the Legislative Assembly of Porto Rico, approved March 12, 1902, a court of appeals, which said act provided that in its deliberations and decisions in all cases, civil and criminal,, said court shall not be confined to error in proceeding or of law only as are pointed out and saved by the respective parties to the suit or set forth in their briefs and exceptions, but in furtherance of justice the court may also take cognizance of all the facts and proceedings in the case as they appear in the record, and likewise consider the merits thereof so as to promote justice and right and to prevent injustice and delay.
“9. The judgment and sentence of the Supreme Court is irregular and void for the various reasons above enumerated.
“By reason of all of which the Supreme Court erred in rendering judgment and sentence against defendant in said cause, greatly to the prejudice and contrary to the rights of the defendant. ’ ’

Petitioner further alleged, that said arrest and detention is unlawful because of the illegal and void proceedings mentioned, and because of the absence of jurisdiction of the cause upon the part of the District Court of San Juan and the Supreme Court of Porto Eico, for which reasons he prayed that a writ of habeas corpus might be issued in his favor, and that he might be discharged from imprisonment. These grounds will be considered seriatim.

1. The first claim alleging that article 265 of the old Penal Code under which defendant was convicted was absolutely null and void, being incompatible with the institutions of the American Government, and because it did not apply to the facts of the case, will be the first considered. This section had been the law of Porto Eico for many years previous to the American occupation, and all during the military government, and when civil government was established by the act of Congress passed on the twelfth, day of April, 1900, it was continued in force by section 8 of said act, which, omitting the provisions which do not apply to this case, reads as' follows :

“That the laws and ordinances of Porto Rico now in force shall continue in full force and effect, except as altered, amended, or modified hereafter or as altered or modified by military orders and decrees in force when this act shall take effect, and so far as the same are not inconsistent or in conflict with the statutory laws of the United States not locally inapplicable, or the provisions hereof, until altered, amended or repealed by the legislative authority hereinafter provided for Porto Rico or by act of Congress of the United States.”

It is not contended that this law had been altered, amended or modified by military orders or decrees in force on the 1st of May, 1900, when the Organic Act took effect, nor is it contended that this statute is inconsistent or in conflict with the statutory laws of the United States, not locally inapplicable, or in conflict with the provisions of the Organic Act, nor that the same has ever been altered, amended or repealed by the legislative authority of Porto Rico. It is simply alleged that such an act is incompatible with the institutions of the American Government.

The presumption arises from the oral argument of applicant’s counsel that he considers this law to conflict with the first amendment to the Constitution of the United States, guaranteeing freedom of the press. But such is not the view taken by this court. That article of the Constitution reads as follows:

“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech or of the press; or the right of the people peaceably to assemble and to petition the government for a redress of grievances.”

It is confidently believed that no one, under these provisions of the Constitution, even if it should be held to be in force on this island, conld claim that be was thereby licensed to print any and everything which he might choose to publish in regard to persons or officers, or judges of courts in their public or private relations.

In other words, it is the liberty of the press, and not unbounded license, that is intended to be protected by this provision of the Constitution.

This court carefully considered this matter in the case of Julio Medina, which was decided on the 26th of March, 1902. It was decided in that case that, inasmuch as the penal law under which the defendant had been prosecuted had been abrogated by force of a subsequent act of the legislature, which was considered as a legislative pardon, that the defendant would have to be liberated, and the judgment rendered against him annulled. But Medina was not accused of publishing a libelous article, or of abusing the liberty of the press. The facts of his case show that the offense charged against him was publishing a newspaper without having previously secured a license from the, municipal authorities. This was the old Spanish law, which was, if not in conflict with the Organic Law of the Island, repealed by an act of the Legislative Assembly, passed on the 27th of February, 1902, entitled “An act to define the rights of the People” and in its third article providing that liberty of speech and freedom of the press should not be abridged and that every person in Porto Bico should have the liberty of speaking and writing and publishing everything which he pleased, upon any subject whatever, being responsible, however, for'all abuse of the said liberty, and which law went into force immediately upon its approval.

It is not perceived from an examination of the law itself, nor from a consideration of the arguments adduced by counsel on the trial, that this article 265 of the Spanish Penal Code is in any respect incompatible with American institutions, and it certainly applies to the circumstances of the case, which were made the basis of the proceeding against the defendant. To make this evident it is only necessary to read the law in connection with the article which he is convicted of publishing and which is set ont in the opinion of this court, affirming the sentence of the court below.

2. The second claim of the applicant, that the offense described in article 265 of the old Penal Code, is an infamous, crime, and that therefore the defendant should not have been held to answer for it, except upon the presentment of an indictment by a grand jury, cannot be considered as well taken. In the first place the crime described and sought to be punished in article 265 of the Spanish Code by arresto mayor (greater imprisonment) is not an infamous crime, not being one on the conviction of which a defendant would be punished by a corporal penalty, but only punished by a correctional penalty.

Nor could this crime be considered infamous under the provisions of the new Penal Code, if such were applicable to it, because the distinction between felonies and misdemeanors is clearly drawn in section 14 of that act, which reads thus:

“A felony is a crime punishable with death or by imprisonment in the penitentiary. Every other crime is a misdemeanor.”.

Tried by this law, the crime of which the applicant was convicted is clearly a misdemeanor, since the only punishment which could be inflicted is not more than six months in the public jail. Nothing less than a felony can be considered an infamous crime under the provisions of the fifth amendment to the Constitution of the United States.

There is no difficulty at the present day in deciding what crimes are declared infamous under the fifth amendment to the Constitution of the United States. That question, which had been mooted for a long time, was forever set at rest by Mr. Justice Gray in the case of Wilson, Ex parte, reported in 114 U. S., pp. 425, 426. In this lucid opinion the Supreme Court says:

“But, for the reasons aboye stated, haying regard to the object and the terms of .the first provision of the fifth amendment, as well as to the history of its proposal and adoption, and to the early understanding and practice under it, this court is of opinion that the competency of the defendant, if convicted, to be a witness in another case is not the true test; and that no person can be held to answer, without presentment or indictment by a grand jury, for any crime for which an infamous punishment may be imposed by the court.
“The question is whether the crime is one for which the statutes authorize the court to award an infamous punishment, not whether the punishment ultimately awarded is an infamous one. When the accused is in danger of being subjected to an infamous punishment if convicted, he has the right to insist that he shall not be put upon his trial, except on the accusation of a grand jury.
“Nor can we accede to the proposition, which has been sometimes maintained, that no crime is infamous within the meaning of the fifth amendment that has not been so declared by Congress. See United States v. Wynn, 3 McCrary, 266, and 11 Fed. Rep. 57; United States v. Petit, 11 Fed. Rep. 58; United States v. Cross, 1 Mc-Arthur, 149. The purpose of the amendment was to limit the powers of the legislature, as well as of the prosecuting officers of the United States.”

This case has been uniformly followed since 1884, and among others in the cases of United States v. Petit, 114 U. S. 429, and Mackin v. United States, 117 U. S. 348. (See also Miller on Constitution, p. 504; and 1 Rawle’s Bouvier’s Dictionary, p. 1026.)

The crime of which the applicant was convicted under article 265 of the Spanish Penal Code was punishable by the penalty of arresto mayor. This was classified as a “correctional penalty” under article 24 of the Spanish Penal Code. Only corporal penalties under said Code correspond to the punishment of felonies in the American penal law. This will readily appear by a reading of the article, which is as follows:

“Article 24. — The penalties which may he imposed according to this code, and their different classes, are those included in the following general scale:

“Corporal Penalties. — Death; cadena perpetua, reclusión perpé-tua, relegación perpetua, perpetual expulsion, cadena temporal, re-clusión temporal, relegación temporal, temporary expulsion; presi-dio mayor, prisión mayor, confinamiento, perpetual absolute disqualification; temporary absolute disqualification; perpetual special disqualification from public office, the right of suffrage, active, passive, and from the exercise of a profession or trade; temporary special disqualification from a public office, the right of suffrage, both active and passive, and from the exercise of a profession or trade.
“Correctional Penalties. — Presidio correctional, prisión correc-cional; banishment, public censure, suspension from public office, active and passive right of suffrage and from the exercise of a profession or trade, arresto mayor.
“Light penalties. — Arresto mayor, private censure.
“Penalties Common to the Three Preceding Classes.- — Pine and caution.
“Accessory Penalties.- — Degradation, civil interdiction, subjection to the surveillance of the authorities, forfeiture or confiscation of the instruments and proceeds of the crime, payment of costs.”

Corporal penalties as above designated correspond to the capital and infamous punishments referred to in the fifth amendment to the Constitution; and correctional, light and accessory penalties are of lesser grade. The punishment of which the applicant complains is correctional only, and the offense is not punished by confinement in the presidio or penitentiary but only in the cárcel or county jail. Hence it could be prosecuted by information and would not require an indictment of a grand jury, even in the federal courts.

But aside from this view of the case, article 5 of the amendments to the Constitution of the United States has no application to the insular courts, and indictments by grand juries are not, necessary to the conviction of a defendant in these courts any more than it would he in the state courts, or in the territorial courts in the United States. This is> well-settled in numerous cases, as is shown in the lectures of *Mr. Justice Miller on the Constitution of the United States, lecture 10, page 493, where that distinguished jurist, speaking of the seventh amendment, says:

“This article of the amendments to the Constitution, as well as all of the others from one to eight inclusive, applies to the powers exercised by the Government of the United States and not to those of the States. This has been repeatedly decided.” Citing Livingston v. Moore, 7 Pet. 469; The Justices v. Murray, 9 Wall. 274; Edwards v. Elliott, 21 Wall. 532.

Nor can this provision have any application to the insular courts in the Island of Porto Bico until they are made federal courts by an act of Congress. (Reynolds v. United States, 98 U. S. 145; Eilenbecker v. District Court, 134 U. S. 31; United States v. Cruikshank, 92 U. S. 542; Walker v. Sanvient, 92 U. S. 90; Fox v. Ohio, 46 U. S. 510; Holmes v. Jennings, 39 U. S. 549; Presser v. Illinois, 116 U. S. 252; Ross v. McIntyre, 140 U. S. 453; Cook v. United States, 138 U. S. 157; Hurtado v. California, 110 U. S. 516; MacAllister v. United States, 141 U. S. 174; Permoli v. N. O., 44 U. S. 589.)

We have been unable to find any decision of the Supreme Court which directly prescribes the status of territorial courts under the seventh amendment to the Constitution of the United States; hut in the case of Walker v. S. P. R. R. Co., decided in 1896, the question was presented by counsel and Mr. Justice Brewer, delivering the opinion of the court, said:

“We deem it unnecessary to consider the contention of defendant in error that the territorial courts are not courts of the United States and that the seventh amendment is not operative in the territories for by the act of April 7, 1874, c. 80, 18 Stat. 27, Congress, legislating for all the territories, declared that no party ‘shall be deprived of the right of trial by jury in eases cognizable at common law’; and while this may not in terms extend all the provisions of the seventh amendment to the territories, it does secure all the rights of trial by jury as they existed at common law. Walker v. S P. R. R. Co., 165 U. S., pp. 595 and 596. This case was referred to with approval in the later ease of American Publishing Company v. Fisher, 166 U. S. 467.”

If the seventh amendment had applied to such courts it is quite probable that the decisions would have been based on the Constitution rather than on the statute; and we may reasonably infer that the Supreme Court does not consider territorial courts to be federal courts within the purview of the seventh amendment.

But the insular courts of Porto Bico of original jurisdiction are more nearly analogous to the trial courts of the states than to territorial courts. They were not created by an act of Congress, but were in existence before the passage of the Foraker Law, which recognized them and continued them in force. (See section 33 of the Organic Act.) Porto Bico is not a territory, nor is it a state of the American Union, but its trial courts have many, if not all the attributes of said courts; and at the signing of the Treaty of Paris, and all during the military government, there was a complete judicial system in the Island, which has only been modified, and not entirely changed during civil government, up to the present time.

For these reasons, even if the Constitution of the United States were in force in Porto Bico, the seventh amendment could not be considered as applying to its courts, but they would fall under the decisions quoted, holding that this amendment has no application to state courts.

Such a body as a grand jury has never been.known in the insular courts of Porto Rico. There are now nearly a thous- and prisoners in the penitentiary of Porto Rico, who would have to be turned out' if this construction were put upon the penal laws; but if it were necessary to do justice in this case,, this court would not hesitate to open the doors of every prison in the Island. However, such a construction is not warranted by any authority which has been presented to the' court, or which can be found on diligent search.

3. It is claimed that defendant was denied the right of a trial by petit jury, as guaranteed to him by the United States Constitution. The same remarks in regard to this constitutional guarantee as those made in the foregoing paragraph in regard to indictment by grand juries are applicable to this claim for a trial by a petit jury. It is the sixth amendment, instead of the fifth, which is involved’ in this claim, and that is the only difference. But the defendant, as the record shows, waived all claim to a petit jury, under the laws of Porto Rico, and under the Constitution of the United States, if the same were applicable, by failing to make his application therefor in due time. It is provided by the jury law of Porto Rico that a defendant is entitled to a jury in all cases of felony, provided he demands the same at the first general call of the calendar and his case is put upon the jury docket. (See Code of Criminal Procedure, sec. 178.) No demand was ever made on behalf of the defendant for a jury prior to or at the time of his arraignment, or for more than a week thereafter, when his counsel came into court, attempting to excuse his neglect, and demanded a jury, which was refused, because the offense of which he was accused was only a misdemeanor, and not a felony, and moreover, because he had not demanded the jury within the time prescribed by law, and therefore waived the right, if any he had. The record of the case amply bears out this proposition, and a mere reference to the same is sufficient to show that such a claim, has no foundation whereon to rest.

4. The fourth ground alleged by the applicant, that the proceedings of the district court were not due process of law, as provided for under the Constitution of the United States, seems to be merely a restatement of the second and third, with a probable allusion to the fifth and sixth grounds of this application. At least no other constitutional or statutory provision is invoked in the application, nor cited in the argument made by counsel in presenting the case to this court. However, by the use of the term ‘ ‘ due process of law, it is possible that reference may be made to the fourteenth amendment to the Constitution of the United States, which says:

“Nor shall any state deprive any person of life, liberty or property, without due process of law, nor deny to any person within its jurisdiction the equal protection of th'e laws.”

This is clearly a limitation upon the powers of the state legislatures, and can have no reference to Porto Eico. In lecture the XIII of Miller on the Constitution this amendment is discussed and the distinguished author uses the following language:

“That amendment was ordained to secure equal rights to all persons. To render its purpose effective Congress is vested with power •to enforce its provisions by appropriate legislation. On the other hand, it was not designed to interfere with the power of the state to protect the lives, liberty and property of its citizens, nor with the exercise of that power in the adjudications of the courts of the state in administering the process provided by its laws. Therefore when a person accused of crime within a state is subjected, like all other persons in the state, to the law in its regular course of administration in the courts of justice, the judgment so arrived at cannot be held to be unrestrained and an arbitrary exercise of power and therefore void. Virginia, Ex parte, 100 U. S. 339; In re Converse, 137 U. S. 624.” (Miller on the Constitution, 658 and 659.)

The eminent authority continues:

“Law in its regular course of administration through the courts of law, is due process of law, and when it is secured by the law of the state, the requirements of the fourteenth amendment are satisfied. Due process of law, within the meaning of that amendment, is secured if the laws operate on all alike, and do not subject the individual to an arbitrary exercise of the powers of the government. Leeper v. Texas, 139 U. S. 462.” (Miller on the Constitution, p. 664.) (See, also, Miller on the Constitution, p. 675, for a case in point.)

According to the authorities cited, and after summarizing the point intended to he made by counsel in his application, we feel constrained to hold that the applicant in this case cannot complain that the proceedings of the district court were not conducted in accordance with due process of law, and that every right which he had, or any person could possibly claim under the fourteenth amendment to the Constitution, or any other section of that instrument, has been carefully safeguarded and extended to him in the trial of his case.

5. The fifth ground presented by the applicant for his discharge under the writ of habeas corpus has regard to the competency of the special district judge who was appointed to take the place of the regular district judge, who was disqualified because he was one of the judges .whom the defendant had attacked in the article for the publication of which he was being prosecuted. It is alleged that the special district judge, though appointed by the Governor, was never confirmed by the Executive Council, as it is claimed should have been done under the Organic Law. If the Eoraker Law requires a special district judge not only to be appointed by the Governor, but to be confirmed by the Executive Council, there is nothing in the record to show that this judge was not so confirmed by the Executive Council. He was regularly appointed by the Governor, and whether or not he was confirmed by the Council does not affirmatively appear, the records showing nothing to the contrary; it will therefore be conclusively presumed that he was so confirmed, if the law required it. In other words, the fact that a judge was regularly acting on the district bench, with two others whose appointments are not questioned, and who took part in the trial under the direction of the Attorney General, as provided for by law, at least warrants the presumption that he was regularly and legally appointed and confirmed. At any rate, this judgment was that of a de facto court, and there is no law which would justify this court, in a habeas corpus proceeding, to inquire into the legality of his appointment.

The Supreme Court of the United States settles this question in the following language:

“A person is not denied the equal protection of the laws, nor deprived of liberty without due process of law in violation of the fourteenth amendment to the Constitution, by being tried and sentenced to imprisonment by a judge who, although appointed by the Governor without authority, is a judge de facto of a court de jure, by the law of the state as declared by its highest court. ’ ’ (In re Manning, 139 U. S. 504; Miller’s Lectures, p. 673.)

As late as the year 1898 this doctrine was reaffirmed by the Supreme Court of the United States, in the case of Henry Ward, Ex parte, in which Mr. Chief Justice Fuller, in delivering the opinion of the court, says:

“We need not, however, consider the elaborate argument of counsel in this behalf, since we regard the well settled rule applicable here that where a court has jurisdiction of an offence, and of the accused and the proceedings are otherwise regular, a conviction is lawful although the judge holding the court may be only an officer de facto; and that the validity of the title of such judge to the office, or his right to exercise the judicial functions, cannot be determined on a writ of habeas corpus.” (Henry Ward, Ex parte, 173 U. S. 454.)

It is true that under the old Spanish law, on an appeal taken from the judgment rendered, such as the former appeal taken from the first conviction in this case, the qualifications of a special district judge were inquired into; hut that was not a case of habeas corptbs, and such inquiry was only made on the express provisions of the Spanish Code, which do not apply to habeas corpus proceedings, hut only to appeals. Then all the presumptions must he in favor of the regularity of the appointment of Special Judge Garcia, and of the validity of the judgment which he participated in making, and such judgment cannot be attacked collaterally, in a proceeding by habeas corpus.

6. The sixth reason assigned by the applicant for his enlargement is that he was not convicted by due process of law, because he alleges that his second trial in which he was convicted for the second time, occurred in October, 1903, and that on July 1, 1902, a new Law of Criminal Procedure took effect, and that he should have been tried under that Law, This court has repeatedly held that the new Law of Criminal Procedure, which was passed on the 1st of March, 1902, and took effect on the 1st of July of the same year, had no application to acts or offenses done and committed prior to the first day of July, 1902. The offense of which the applicant was convicted was committed on the 13th of February, 1902, before1 the act to which he refers was passed and long before it took effect, and according to numerous decisions of this court, and especially that in Mauleón, Ex parte, 4 Porto Eico Eeports, 227, which is now pending in the Supreme Court of the United States, the new Code of Criminal Procedure could have no application to offenses committed prior to the date on which it took effect.

It has been repeatedly decided by this court that the Code of Criminal Procedure and the Penal Code which were passed on the first day of March, 1902, to take effect at noon on the first day of July thereafter, did not govern the prosecution and punishment of offenses committed prior to the latter date. The reasons for this decision are given in the elaborate concurring opinion delivered by Mr. Justice MacLeary in the case of Mauleón, Ex parte, supra, decided by this court on the 29th of October, 1903, and appealed by the petitioner to the Supreme Court of the United States. It may be well, however, to summarize them here. The construction given to these codes is in accordance with the manifest intention of the legislature as derived from the codes themselves, the contemporaneous history and surrounding circumstances (Church of H. T. v. United States, 143 U. S. 457; Siemans v. Sellers, 123 U. S. 276; United States v. U. P. R. R. Co., 91 U. S. 72; Aldrige v. Williams, 3 How. 8), the previous condition of the statutory laws existing in the island (Ross, Ex Parte, 140 U. S. 453; Platt v. U. P. R. R. Co., 99 U. S. 48), the contemporaneous construction by executive officers charged with their execution (United States v. Healy, 160 U. S. 136; People v. Dayton, 55 N. Y. 377; Wetmore v. State, 55 Ala. 198; United States v. A. G. S. R. R. Co., 142 U. S. 615; United States v. Johnston, 124 U. S. 236), and a reluctance to change a long current of decisions involving serious consequences to the administration of justice. (Sutherland on Statutory Construction, sec. 314, 323; In re Warfield, 22 Cal. 51; Broker v. Lorrilard, 4 N. Y. 261; Rogers v. Goodwin, 2 Mass. 477). Reference is made in the opinion cited to Soon Hing v. Crowley, 113 U. S. 703; Ming v. Gallun, 109 U. S. 99; Wisconsin Central R. R. Co. v. Forsythe, 159 U. S. 46; United States v. Clarke, 8 Pet. 436; Territory v. Commissioners, 8 Mont. 409, 411; Foster v. Blount, 18 Ala. 687; Phillips v. Detroit, 111 U. S. 604; United States v. Perot, 98 U. S. 428; Conger v. Weaver, 6 Cal. 548; Sparrow v. Strong, 3 Wall. 97; Tavner v. Patton, 49 Ala. 406; Stockton School District v. Wright, 134 Cal. 68; People v. Craycroft, 111 Cal. 544; Carpy v. Dowdell, 129 Cal. 245; Merced Bank v. Casaccia, 103 Cal. 645; People v. Curry, 130 Cal. 94; Black on Interpretation of Laws, 112; Bishop’s Criminal Law, 19; United States v. Webster, Davies, 38; Fosdick v. Perrysburg, 14 Ohio St. 473; and other authorities. The two codes being copied from the Penal Code of California, which is in the original a single act, and having the same object, to-establish a system of American criminal laws in the Island of Porto Rico repealing the former Spanish system, and being thus in pari materia, should be construed together and if possible be made to harmonize, and so construed as not to conflict with the general principle of law, which the legislature could not be presumed to desire to change. The two codes constituting a single system, and it being impossible to separate one from the other, they must be presumed to take effect at the same time in regard to any given case or class of cases, provided for therein; and as the Penal Code especially enacts that it shall not affect offenses committed prior to the 1st of July, 1902, the Code of Procedure must be construed to do the same. (Manuel v. Manuel, 13 Ohio St. 458, 465; Smith v. People, 47 N. Y. 330; Witcomb v. Rood, 20 Vt. 49; McDougal v. Dougherty, 14 Ga. 674; Hays v. Richardson, 1 Grill and J., 366; Noble v. State, 1 Greene, 325; Lane v. Missoula County, 6 Mont. 482; Carruthers v. Madison County, 6 Mont. 483; Thorne v. Schooling, 7 Nev. 17.) In so far as this ground of the application is concerned this case is exactly parallel with that of Mauleón, and the discussions in the opinion delivered in that case apply to the present and need not be repeated here.

7. The seventh reason assigned by the applicant for his discharge is a reiteration of his claim to a trial by petit jury, except that he claims it “under the provisions of chapter 10 of the Penal Code of Porto Rico,’’ which is said to have taken effect on the first day of July, 1902. This act expressly provides that it has no reference whatever to offenses which were committed prior to that date, and for this reason, as well as others hereinbefore stated, and especially under the third ground of the defendant’s application, he was not entitled to a jury trial, and there was no error committed in refusing his request for the same. Nevertheless we will examine the question from the view point of the applicant in order to give him the full benefit of all his claims.

Counsel in argument makes reference to chapter 10 of the .Penal Code of Porto Rico without saying what title they refer to or what section of the Code. There are three chapters numbered ten in said Code, one in title 12, in regard to libel;one in title 13 in regard to pawnbrokers, and one in title 17 in regard to false weights and measures. The first of the three-mentioned is probably the one to which counsel intended to refer, and section 246 is presumed to be the section which they had in mind, and which reads as follows:

“In all criminal prosecutions for libel, the truth may be given in evidence to the court or jury, and if it appears to the court or jury that the matter charged as libelous is true, and was published with good motives and for justifiable ends, the party shall be acquitted. The jury have the right to determine the law and the fact.”

Inasmuch as the jury law which has been incorporated into the Code of Criminal Procedure provides that no man has a right to be tried by a jury when charged with a mere misdemeanor, and libel is only a misdemeanor under the Code, the section above quoted cannot by implication give the right to defendant to demand a jury in a libel case. The mere fact that such a recitation is made does not contradict the jury law, since it must be construed to mean that whenever a jury may hereafter be provided for in a libel case they shall have the right to determine the law and the fact. Should the right of trial by jury be extended to defendants in misdemeanor cases, or should the offense of libel be raised to a felony, then this section could be applied; but until such changes in the laws are made, this recital cannot have the force or effect sought to be given it by the applicant in this case. Certainly, under no view of the case whatever could a jury have been awarded to defendant on the trial at which he was convicted. This, however, is not very material to the discussion, as it must be remembered that defendant was not charged with, or tried for, nor convicted of libel, but of an entirely different offense.

8. Tire eighth ground alleged by the defendant in support of his application has no foundation whatever in fact and is positively untrue. A-reference to the opinion of the court will show, and it is a fact, that in accordance with the act of March 12,1903, this court carefully examined the whole record in order to ascertain if there might be any point of law or of fact beneficial to the accused, on which a reversal of the judgment could be predicated. The record showed no incident in which the rights of the accused had been violated, there being no proceeding whatever of which he could reasonably complain. Notwithstanding the fact that counsel for defendant on the trial of this case on appeal made only two propositions and presented them to the court in his oral argument, the court examined the record minutely from one end to the other, and discussed all the points arising thereon in an ■elaborate opinion, which forms a part of the record in this case, and amply refutes the charge made in this portion of the application. Zeal in the interest of their clients on the part of counsel is always to be commended; but any departure from the facts contained in the record is unpardonable.

9. The ninth ground, that the judgment and sentence of the Supreme Court are irregular and void, for the various reasons previously enumerated, is merely a summing up ■of what has been said before, and needs no further consideration, except to say that it has never been decided by the Supreme Court of the United States that “the Constitution follows the flag. ’ ’ In every tract of territory which has heretofore been acquired by the United States before the Constitution with all its powers and restrictions could be considered as applicable to the government, to the courts and to the people of that territory, it bas been deemed necessary that Congress should act in the matter either by a direct statute extending the benefits of the Constitution to such territory, or tacitly acquiescing in such action by other branches of the Government. No such act of Congress has been passed in regard to Porto Eico, and no such acquiescence has been made. It may'be stated, and it is believed to be the case, that certain personal rights of the individual citizen are, by the mere fact of American possession, extended to every one residing within the jurisdiction of the United States. They are such as the right to worship according to the dictates of his own conscience, the right to be secure in his house, person, papers and effects from unreasonable searches and seizures, and the equal protection of the laws; but other provisions of the Constitution which have reference to their political status, to civil rights, or to citizenship, or to suffrage, and the like, have no reference whatever to a people inhabiting an island or a tract of country which has been acquired by discovery, conquest, treaty or otherwise. And if it were necessary to invoke that document it can easily be seen and understood from the Treaty of Paris itself, that the condition of the people of Porto Eico as to their civil rights and political status depends entirely upon the will of Congress, as expressed in legislative enactment (See Treaty of Paris, Art. IX); and until Congress sees fit to extend the provisions of the Constitution of the United States, and the laws passed in pursuance thereof, to the inhabitants of this Island, they must be limited to the enjoyment of. such liberty as is granted them in the Organic Act, by which they were given the privileges of a limited autonomy and of civil government.

The mere fact that the United States is a republic instead of a monarchy does not deprive its government of the power to levy and carry on war, to expand its boundaries, to make conquests, to make treaties, and to acquire territory, in suck a manner as may seem wisest and best to the executive and to the legislative power. It is of course to be presumed that a free government like that of the United States, when it does acquire territory, will concede to the population inhabiting the same a greater measure of liberty than they previously enjoyed under royal rule; but to contend that the inhabitánts of such territory have, at once immediately on the occupation by the armies of the American Government, all the rights of citizenship which the original citizens of the republic acquired by inheritance from their forefathers, is not warranted by anything in the Constitution or in the laws of the United States, or in the institutions which have grown up, in the progress of thirteen decades, under the protection of that Constitution and those laws.

Until Congress shall enact a law extending the Constitution of the United States to Porto Eico, or until the Supreme Court of the United States shall decide that instrument to be in full force and vigor here, this court must content itself with administering the laws of this Island as they are found upon the statute books and it should never attempt to usurp legislative or executive functions, in grasping after the phantom of imaginary rights.

We deduce from the opinions in the Insular Cases in 182 U. S. Eeports, the following propositions:

(a) Considering the various and numerous treaties by which the American Government has acquired foreign territory in the light of circumstances surrounding them when made, the treaty-making power was always devoid of authority, to incorporate territory into the United States without the assent, express or implied, of the National Congress.

(b) When a treaty contains no conditions for incorporation, and, above all, where it not only has no snob conditions but expressly provides to the contrary, incorporation does not arise nntil, in the wisdom of Congress, it is deemed that the acquired territory has reached that state where it is proper that it should enter into and form a part of the American family.

(c) The provisions of the For alter Law, taken as a whole, plainly manifest the intention of Congress that, for the present, at least, Porto Eico is not to be incorporated into the United States.

In the recent case of G-onzález appealed to the Supreme Court of the United States from the Circuit Court of the United States in New York the former court held that the intended immigrant was not an alien within the purview of the immigration laws, but at the same time did not decide that she was a citizen of the United States, thus leaving the status of Porto Eico as to citizenship where it had been placed by the Foraker Act and the decisions of the Insular Cases.. Whatever aspirations our people may have in the direction of citizenship, selfjgovernment, territorial government and statehood, must be directed to the National Congress, or at least to some other authority than the insular courts, which are bound to adjudicate questions submitted to them in accordance with the existing laws.

Although it was contended by counsel in his argument that this application should stand or fall on the provisions of the Constitution of the United States, and on the thirty-fifth section of the Organic Act giving to this court power to issue writs of habeas corpus, and he maintained that the Leg-Mature of Porto Eico could neither enlarge nor restrict the powers therein conferred, yet we do not believe such a position to be well taken. Inasmuch as the Legislature of Porto Eico has power to legislate in regard to the jurisdiction and procedure of courts, and has passed an act concerning habeas corpus, which lays down all the well-known principles of American law applicable to this great writ, and in regard to the application for and the granting of the same, we believe it is the duty of this court to follow that law; and we shall examine it to see if there is anything contained therein under which this applicant can claim his discharge.

The statutes in regard to habeas corpus applicable to this case are particularly sections 482 and 483 of the Code of Criminal Procedure, which read as follows:

‘ ‘ Section 482. — The court or judge, if the time during which such party may be legally detained in custody has not expired, must remand such party, if it appears that he is detained in custody;
“1. By virtue of process issued by the court or judge of the United States District Court, in a ease where such a court or judge has exclusive jurisdiction; or,
“2. By virtue of a warrant or final judgment or decree of any competent court of criminal jurisdiction, or of any process issued upon such warrant, judgment' or decree.
“Section 483.- — If it appears on the return of the writ that the prisoner is in custody by virtue of process from any court of Porto Rico, or judge or officer thereof, such prisoner may be discharged in any of the following eases, subject to the restrictions of the preceding section:
“1. When the jurisdiction of such court or officer has been exceeded.
“2. When the imprisonment was at first lawful yet by some act, omission, or event which has taken place afterwards, the party has become entitled to a discharge.
!i3. "When the process is defective in some matter of .substance required by law rendering such process void.
“4. "When the process, though proper in form, has been issued in a case not allowed by law.
“5. When the person having custody of the prisoner is not the person allowed by law to detain him.
‘ ‘ 6. Where the process is not authorized by any order, judgment, or decree of any court, nor by any provision of law.
“7. Where a party has been committed on a criminal charge without reasonable or probable cause.”

It is plain from an examination of these sections that the only one applicable hereto is'paragraph 1 of section 483 declaring that “when the jurisdiction of such court or officer has been exceeded” the prisoner may be discharged. There can be no doubt, after a careful review of the whole record and the reasons assigned by the applicant for his discharge, that in this case the district court had jurisdiction of the offense charged, and of the person of the defendant, and of the subject-matter of the case, and that the jurisdiction was not in the least exceeded, and that the Supreme Court had appellate jurisdiction to decide the same on appeal.

Nothing has been shown in the application or argument which can successfully attack this jurisdiction or the manner of its exercise, and for this reason, as well as the others herein set forth, the application cannot prevail.

Most of the points made in this application attack the method of procedure rather than the jurisdiction of the courts deciding the case and rendering the judgment under which the defendant was convicted, and thereby seek to pervert the purpose of the writ of habeas corpus from its original design of freeing the applicant from illegal restraint or imprisonment, so as to make it take the place of a writ of error or an appeal. It is an elementary principle that this cannot be done and in support of it no authorities are deemed necessary; but reference may be made to a few. (Storti v. Massachusetts, 183 U. S. 141; Minnesota v. Brundage, 180 U. S. 499; Markuson v. Boucher, 175 U. S. 184; Tinsley v. Anderson, 171 U. S. 101; Baker v. Grice, 169 U. S. 284.)

It was well said by Judge Taft in the case of McKhight, in Federal Eeporter, page 801, that “before a court can interfere with the judgment of another court by habeas corpus, it must be able to say that the judgment is void and null.” Again it is said by the Supreme Court of the United States that, “when the objection to the sentence goes only to the regularity of the proceedings which resulted in the adjudication and not to the jurisdiction of the court to enforce the sentence, such an irregularity does not render the judgment void.” (Harding, Ex parte, 120 U. S. 782.) There is nothing in this record to invalidate the judgment and support the application.

Having carefully examined all the claims made by the applicant for his enlargement, and having gone into the questions presented in his case even more fully and extensively than his counsel has indicated in his argument, and'having searched in vain for some ground on which he could be liberated, none has been found, and for that reason the application for habeas corpus must be denied.

Denied.

Chief Justice Quiñones and Justices Hernández and-Fi-gueras concurred.

Mr. Justice Sulzbacher dissented.

DisseNtiNG Opinion op

Mr. Justice Sulzbacher.

This is an application for a writ of habeas corpus by Hobart S. Bird, who, on the twenty-first day of October, 1903, on a second trial of this case, was convicted in the District Court, of San Jnan for the offense of libel against the authorities, under article 285 of the old Penal Code. He appealed to this, court, and on the 27th of February, 1904, the judgment of the-district court was affirmed. I did not sit in the case when it' came before the court on appeal, nor did I take any part in its-decision. The case was remanded to the district court and the defendant,- Bird, was arrested and taken to jail to serve his sentence.

He sued out a writ of habeas corpus before this court and after argument the writ was denied by a majority of the court. I am of the opinion that the writ should have been granted and the prisoner discharged. For the purpose of my dissenting views I deem it necessary to make a statement of the material facts of the case from its beginning.

The accusation was filed in the District Court of San Juan in the month of March, 1902, and the defendant was convicted by said court on the 19th of September. From that judgment he appealed to this court, and by its decision of the 15th of June, 1903, the judgment of the district court was reversed and a new trial ordered- I concurred in reversing the judgment, stating my reasons in a separate opinion. The district court, under the law, is composed of three judges, but one of the judges at the trial was a special or supplementary judge. Mr. Chief Justice Quiñones, Mr. José C. Hernán-dez and Mr. José Ma. Figueras held that, under a certain royal decree of Spain, and still in force in Porto Bico, the defendant would have to be notified, at least twenty-four hours in advance of the trial that a supplementary judge would also sit in his case, and this notice not having been given a new trial would have to be granted. I held that no special or supplementary judge could sit in any case and that the- judgment had to he reversed.

During the time the supposed offense was committed and the day of trial the Insular Legislature passed a new Penal Code, and one of Procedure, which, by their terms, went into effect on the 1st of July, with the proviso, in substance, that all criminal offenses committed prior to that date should be prosecuted the same as if the neio law had not been passed. This court, on the twenty-ninth day of October, 1903, In re Mauleón, 4 Porto Rico Reports, 227, held that, as to the offenses committed prior to July 1, 1902, the old Penal Code of Procedure only was applicable, stating:

“There is no doubt that the new Penal Code and the new Code of Criminal Procedure are parts of the same system and closely related to each other. As universally recognized the former defines the crime and fixes the punishment, whilst the other outlines the manner, the course and the proceedings to prosecute and enforce the latter. It is evident to this court that it was the intention of the legislature that section 558 should be considered as a saving clause, for it states in most positive and unequivocal terms that any act or omission committed prior to the establishment of the. Code ‘shall be en-quired of, prosecuted and punished in the same manner as if this Code had never been passed. ’ Hence, as to all crimes or offenses committed prior to the first day of July, 1902, the new Penal Code and the Code of Criminal Procedure could not be applied, but had to be considered as if they were not in existence at all. ’ ’

The new criminal system was copied from the statutes of Montana and California, but it is provided, by the insular law, that no appeals shall lie from the district court to the Supreme Court in cases of misdemeanor.- For this reason felonies only are appealable and when appealed, this conrt, as is generally the practice in the United States, nnder similar modern codes, can only consider snch errors which are pointed ont or saved by bill of exceptions, except when they are otherwise apparent upon the face of the record, after motions for a new trial or arrest of judgment, respectively. Bnt since a misdemeanor is not appealable to the Supreme Conrt, it would be unavailing for a defendant to save any objections to the rulings of the trial court, and he would have to submit without remedy to all its errors.

The old criminal procedure, the Spanish law, and as modified by military orders, and in force up to July 1, 1902, and applicable to all crimes and offenses committed prior to that date, is entirely different from that of the new law. Every criminal case originating in the district court was appeal-able to the Supreme Court, and, upon conviction, the defendant had ten days during which to file his motion for appeal, and the judgment did not become final until after these ten days. The distinction of the modern jurisprudence, of felonies and misdemeanors, was not known and did not exist under the Spanish law. The two criminal systems were so entirely different and dissimilar that it would he unsound and without legal foundation for one acquainted with both methods to apply the term “misdemeanor’’ to any offense under the old criminal law, and any allusions or comparisons would be misleading.

Under the old system the trial court would have to write a judgment (sentencia) in strict conformity with, the laws of criminal procedure. A correct statement of all the facts {hechos probados) (facts proven) as they appear from the evidence during the trial, would have to be stated in that sentencia. The court had also to give its legal findings and conclude with the punishment inflicted. These three component parts were imperatively required. This statement of the facts as it appeared in the sentencias, a,s “facts proven,’' {hechos probados) was all the appellate court could consider in reviewing the case,, under the criminal procedure in force' prior to July 1, 1902. The difference therefore between the old and the new law is most marked and notable. Under the new procedure, in cases of felony, there appeared the whole evidence or so much thereof as the appellant deemed proper to save by bill of exceptions; under the other, the Spanish law, a statement of the facts gathered from the evidence during the trial, and as contained in the judgment (sentencia) of the district court, and although this court had decided that all offenses in violation of the former Spanish Penal Code and committed prior to the first day of July, 1902, had to be tried and punished under the old system, the district court, nevertheless, and as it plainly appears by its record, ruled at the second trial of this case, that the new Code of Criminal Procedure was applicable, treating the offense even as a misdemeanor, when this nomenclature was absolutely unknown to the Spanish system, thereby taking a position without any authority or foundation. This fact seems conclusive by the record entry of the district court of October 1, 1903:

“Finding: that the Supreme Court reversed the judgment rendered in this case, and declared null all the proceedings had since the accusation of the Fiscal, and ordered that a new trial be had in accordance with law.
“Finding: that from the first of July, 1902, and after filing the information in this ease, a new law of procedure has been in force.
“Notify the accused, Hobart S. Bird, in order that he may appear before the court on the twelfth day of the present month at nine o’clock a. m. and hear the accusation of the Fiscal (formerly provisional conclusions) and answer said accusation in accordance with the Code of Criminal Procedure in force, and to set a day for the trial.

In accordance with, this action by the district court the defendant, after the rendition of the judgment of conviction, was speedily taken to jail, and the ten days of grace and privilege for appeal under the old system were not conceded to him.

Late at night on the evening of his imprisonment an application for habeas corpus was presented to Mr. Justice Hernández, one of the justices of this court, who made an order referring the application to the full bench for the following morning. This court, in its decision on the writ of habeas corpus, stated amongst other things, the following:

“Considering that in this case the court should have continued under the old procedure, inasmuch as it treats of the investigation and punishment of a crime, committed prior to the date on which the new Penal Code went into effect on this Island, as has already been declared by this Supreme Court in other and analogous eases, the petitioner could not be compelled to serve a sentence which was not final, inasmuch as the ten days allowed by article 81 of General Order No. 118 to perfect an appeal had not yet expired, which was an indispensable requisite in order that the same be final, and the execution of the same be proceeded with in accordance with article 988, in connection with 141 of the old Code of Criminal Procedure.”

—which can have no other meaning than .that, since the prosecution was commenced under the old Criminal Code, and being-for an offense committed prior to Jnly 1, 1902, it had to be continued and concluded in the same manner. This the trial court had not done, thereby denying him even the right of an appeal, treating it as a misdemeanor. The Supreme Court being satisfied of the error committed by the district court in so holding, granted the writ and discharged the prisoner.

The defendant thereafter prosecuted his appeal on the judgment of the district court to this court and on the twenty-seventh day of February, 1904, the judgment of the district court was affirmed.

The case was remanded to the district court and the defendant, Bird, was again arrested and taken to jail, when he sued out this present writ of habeas corpus, I am unable to concur with my brethern in denying the writ, for I am of the opinion that all the proceedings in this criminal accusation, from the beginning were absolutely void, and that many other errors were committed which affected a civil right of personal liberty and properly reviewable by writ of habeas corpus.

In the second trial of this case, again a special judge was sitting together with the regularly appointed judges. In the appeal from the first trial I expressed my views upon this subject in the following manner:

‘ ‘ The district court derives its existence from section 10 of General Order No. 118, which reads as follows:
“ ‘Each district court shall be composed of three judges, one of whom shall be presiding judge, and who jointly shall constitute a bench for civil and criminal business.
“The authority to appoint supplementary judges is derived from section 94 of the same order, which reads as follows:
‘The court shall nominate one or more supplementary judges to substitute tbe, incumbent in case of vacancy, absence or sickness. Eaeli attorney shall also nominate his substitute for the same reason.
“ ‘These nominations must be made from among lawyers registered at the bar of this island who are practicing in the town where the court sits. Substitute judges shall receive six dollars for each day’s services in the district courts and ten dollars if serving in the Supreme Court of Justice.’
“By section 33 of the act of Congress, entitled ‘An act temporarily to provide revenues and a civil government for Porto Rico, and for other purposes,’ approved April 12, 1900, the district courts were continued. The following is the language of said section:
“ ‘That the judicial power shall be vested in.the courts and tribunals of Porto Rico as already established and now in operation which courts and tribunals are hereby continued, .... provided, however, the judges of the district courts shall be appointed by the governor, by and with the advice and consent of the executive council.’
“Thus it appears that it was specially provided by said act of Congress that to be constituted a judge of the district court of Porto Rico, two absolute and positive conditions must exist, namely, that such judges must be appointed by the Governor and with the consent and advice of the Executive Council, tacitly implying, but effectually indicating that only those possessing these qualifications, and none other, are to be judges of the district court of Porto Rico, and vested with the jurisdiction of said tribunal.
“But were it otherwise, and said act of Congress should not preclude the appointment of supplementary judges, still I contend that said article of General Order No. 94 is void, because it says: ‘The court shall nominate one or more supplementary judges,’ etc. This would mean that a court could appoint as many as three supplementary judges, thereby forming an entirely new tribunal.
“But even admitting that the supplementary judges could be appointed it will be observed that said section says, the court shall nominate supplementary judges. Hence if any authority exists to appoint supplementary judges, such appointments must be made by, the court, constituted of three judges.
‘ ‘ Section 33 of the Organic Act reads as follows:
“ ‘Section 33. — That the judicial power shall'be vested in the courts and tribunals of Porto Rico as already established and now1 in Operation, including municipal courts, under and by virtue of General Orders, numbered One Hundred and Eighteen, as promulgated by Brigadier-General Davis, United States Volunteers, August sixteenth, eighteen hundred and ninety-nine, and including also the police courts established by General Orders Numbered One hundred and ninety-five, promulgated November twenty-ninth, eighteen hundred and ninety-nine, by Brigadier-General Davis, United States Volunteers, and the laws and ordinances of Porto Rico and the municipalities thereof in force, so far as the same are not in conflict herewith, all which courts and tribunals are hereby continued. The jurisdiction of'said courts and the form of procedure in them, and the various officials and attaches thereof, respectively, shall be the same as defined and prescribed in and by said laws and ordinances, and said General Orders, Numbered One hundred and eighteen and One hundred and ninety-five, until otherwise provided by law; Provided, however, That the chief justice and associate justices of the supreme court and the marshal thereof shall be appointed by the President, by and with the advice and consent of the Senate, and the judges of the district courts shall be appointed by the governor, by and with the advice and consent of the executive council, and all other officials and attaches of all the other courts shall be chosen as may be directed by the legislative assembly, which shall have authority to legislate from time to .time as it may see fit with respect to said courts, and any others they may deem it advisable to establish, their organization, the number of judges and the officials and attaches for each, their jurisdiction, their procedure, and all other matters affecting them.” ’

Although the act of Congress states “that the judicial power shall he vested in the courts and tribunals as already-established, and now in operation, . . . . . all of which courts and tribunals are hereby continued, ’ ’ they became nevertheless creatures of Congress to the same extent as if the law would read: “There shall be a supreme court, a district court,” etc. It must have been the intention of the Congress to create courts for Porto Eico, which can be readily inferred from the very title of the law, “An act temporarily to provide revenues and a civil government.” The most important requirements for a civil government are courts of justice. If Congress considered that the courts theretofore established by the Military Government were proper tribunals, no phraseology more appropriate could have been employed than the very term “continued.” It therefore seems that these courts, the Supreme Court and district courts, cannot he affected in their constitution by any laws-of the Legislative Assembly of Porto Eico. They are constitutional courts in so far as the act of April 12, 1900 (For-aker Act), is the constitution for Porto Eico; and if any changes are to he made, he they supplementary or special judges, the Congress alone, the creator of these organizations,, can legislate upon this subject, and provide the manner of their appointment. The Governor, by and with the advice and consent of the Executive Council, can appoint a new judge to fill a vacancy hut not a special or substitute judge.

It will also he observed that said section 33 provides that the legislature “shall have authority to legislate from time to time as to those courts, and any others they may deem it advisable to establish, their organisation, their number of judges, their jurisdiction,” etc.

The first words “shall have authority to legislate with respect to those courts” can only have reference to the courts established or continued by said act of Congress. This the legislature has from time to time carried out by enacting, for instance, a law of mandamus, and others, changing the procedure and the like, but the latter portion of the act, referring to the number of judges and their jurisdiction, can only have application to the new courts to be established by the legislature, by virtue of this congressional authorization. The jurisdiction of the Supreme Court and district courts has been defined at the beginning of said section when it reads: “They shall be the same as defined and prescribed by said laws, ordinances, and military orders.” The Legislature may enlarge and amplify the jurisdiction of said constitutional courts, provided sncb innovations and extensions are witbin the scope of their intended organization.

The special or substitute judge who -sat in the case was not appointed by the court but by order of the Attorney General, undoubtedly under the following lines found in the annual budget, or appropriation act of the Insular Legislature, approved March 12, 1903. • -

“Por one associate substitute judge, with fixed residence in San Juan, whose duties shall be subject to the orders of the Attorney General, to temporarily fill such vacancies as may occur in the District Courts of the Island, fifteen hundred dollars.”

■This portion alone could not have the effect of repealing the general order of supplemental judges,' should the same still be in force. The district court, perhaps, doubtful as to the propriety of whether or not a special judge could sit in this case, asked the advice of the Attorney General on the ■question, which can be inferred from the following letter found in the record:

“Office of the Attorney General of Porto Rico, San Juan, July 7, 1903. Hon. Prank H. Richmond, Temporary Presiding Judge, District Court of San Juan. — Sir: Replying to your favor of the 3rd instant, I beg to say that I am informed that Hon. Angel García Veve holds an appointment from the Governor as a substitute judge, whose duty it is to serve in cases of this character, and 'that he is paid an annual salary therefor. If I am correctly advised, then it seems to me he should be the person to act in the premises. If this is an error, kindly advise me wherein the mistake occurs. Very truly yours, Willis Sweet, Attorney General.”

It will therefore be observed that the Hon. Angel G-arcia Veve bad been appointed by the Governor, only, and was not confirmed by the Executive Council. Had it been otherwise the Honorable Attorney General, who is a member of the Executive Council, would have disclosed it in bis letter to the court, and that a doubt as to the legality of a judge not duly qualified under the law must have been entertained by him can be inferred from bis letter.

The letter from the distinct court to the Attorney General is not found in the record, and for this reason it does not affirmatively appear that any vacancy existed on that bench, but there is a correspondence between the Attorney General and the district court in connection with the first trial, from which it does appear that two judges of the district court considered themselves disqualified to sit in the case. It can therefore reasonably be inferred that the same conditions existed at the second trial as to one of the judges, that there was no vacancy, and in that event the legislative lines, contained in the appropriation act, were inapplicable.

The American doctrine of a judge de facto could not be well applied to Spanish criminal courts under which the defendant was tried and convicted, and it must be borne in mind that by section 8 of the Foraker Act these laws remained in force. It reads:

“Section 8. — That the laws and ordinances of Porto Rico now in force shall continue in full force and effect except as altered, amended or modified by military orders and decrees in force when this act shall take effect, and so far 'as the same are not inconsistent or in conflict with the statutory laws of the United States not locally inapplicable, or tbe provisions hereof, until altered, amended or repealed by the legislative authority hereinafter provided for Porto Rico or by act of Congress of the United States. ’ ’

Under the Spanish Government supplemental judges were appointed by the Captain General of the Island, but this was changed by the general order and they had to be appointed by the court (sitara).

The district court in such criminal cases sits as a jury, and for this reason an express and valid law should exist authorizing the appointment of supplemental or special judges,because otherwise it would almost appear that such functionary should become a juror “de facto.”

The Supreme Court of the United States, in Ex parte. Henry Ward, vol. 173, p. 452, says:

“We need not, however, consider the elaborate argument of counsel in this behalf, since we regard the well-settled rule applicable here that where a court has jurisdiction of an offense, and of the accused, and the proceedings are otherwise regular, a conviction is lawful though the judge holding the court may be only an officer de facto; and that the validity of the title of such judge to the office, or his right to exercise the judicial functions, cannot be determined on a writ of habeas corpus.”

The court qualifies its conclusions by the requirement that the proceedings must be otherwise regular, but it will be found that the proceedings in the case under consideration were most irregular, and even from the very beginning. The act of April 12, 1900, known as the Foraker Act, in its section 16, required that all judicial powers shall run in the name of the “United States of America, ss: the President of the United States of America.” The process, the warrant, goes to the very foundation of a criminal proceeding. In this case there was no snch process issued.

The doctrine of a judge de facto has been frequently decided in the United States and in favor of snch official, but in this instance it should be borne in mind that a .jurisprudence, totally American, is attempted to he applied to a procedure and system of laws entirely foreign to the former, and where the designation of judge de facto is absolutely unknown. The application is therefore forced and strained. We must administer the law as we find it.

The royal decree, that a defendant has to be notified at least twenty-four hours of the fact that a special judge will sit in his judgment, had likewise not been repealed, and the old procedure, as to offenses committed prior to the 1st of July, 1902, was as much in force at the time of the second trial as it was at the first, as this court has held in the habeas corpus proceeding. The record does hot show that any such notification was ever given. This omission must have escaped the justices of the Supreme Court at the hearing of the appeal of the second trial.

It is therefore evident that the district court committed an error and the case should have been reversed for the same reasons as those of the first trial.

It might be contended that no objections were raised on the part of the defendant, but the said three justices in this decision, the 15th of June, 1903, reversing the first judgment and ordering a new trial, held that since the Legislative Assembly of Porto Bico, on the twelfth day of March, 1903. changed the character of the Supreme Court of Cassation to a court of appeals, “this court, to accomplish the highest ends of justice, it is its duty to pay attention to the proceedings, and to decide such critical errors which may have been committed, although the parties did not point them out.” These same ends of justice should have been also applied to the second appeal. In the first appeal the court, of its own motion, supplied the defendant’s omission.

It is evident that the defendant was tried under the new Code of Criminal Procedure, and the question arises whether the court, in trying and convicting the defendant Bird under that system, instead of the old Spanish Code, committed errors to his prejudice and injury.

The laws governing trials and judgments (sentencias) of the district court under the old system are mandatory and imperative, and the strictest compliance was required. Section 142 of the Law of Criminal Procedure reads as follows:

“Decisions (sentencias) shall be prepared subject to the following rules:
“1. They shall begin by stating the place at and date on which rendered; the facts which gave rise to the formation of the cause; the names and surnames of the private complainants, should there be any, and of the accused; the titles and nicknames by which they are known; their age, conjugal condition, nativity, domicile, trade or profession, and in the absence thereof all the other matters by which they may have figured in the cause, and also the name and surname of the justice ponente.” (The judge who writes the judgment.)
“2. In numbered restdtandos (findings of facts) shall be stated the facts which may be related to the questions which are to be decided, making a clear and positive statement of those considered proved.
“3. The definite findings both of the accusation and of the defense shall be stated, as also, in a proper case, any proposal made by the court, in pursuance of the provisions of article 733.
“4. Also in numbered paragraphs, which shall begin with the word considerando (conclusions of law) shall be stated:
“First. Tbe points of law and legal principles relating to tbe classification of tbe acts which are considered proven.
“Second. Tbe points of law and legal principles relating to the participation in said acts of each of the accused.
“Third. Tbe points of law and legal principles for the classification of extenuating or aggravating circumstances or exemption from criminal liability, if such be attendant.
“Fourth. Tbe points of law and legal principles for the classification of tbe acts which may have been considered as proven with regard to the civil liability incurred by the person accused or the persons subject thereto heard in the cause, and those pertaining to decisions upon costs, and, in a proper case, to a declaration of a calumnious complaint.”

The resultandos (findings of fact) must contain “the facts which may be related with the question. ”. I do not accept the translation of the second paragraph to he correct. These translations were made in the War Department at Washington, and have never been considered in Porto Eico as official translations, but merely as a matter of convenience. The Spanish for the word “related” is in the original “en-lazadas/’ which in this instances means, interwoven or connected. The principal and essential evidence in this case was the article published. This, under the old practice, could not be gathered aliunde from the other portions of the record; it had to be set out at length in the resultandos (findings of fact), as facts proven, as this court has invariably held be-foreand this the district court had done at the first trial. This court, however, has also decided, that, and in accordance with decisions of the Supreme Court of Spain, when a finding of facts was not complete and did not sufficiently set out an offense, and it could be gathered from the legal conclusions when they contain the remaining portions, the court could consider the latter in connection with the former, but all the facts must appear in the judgment (sentencia).

In this case the district court did not write any sentencia (judgment) as imperatively required by the Spanish procedure, under which Bird was accused, tried and convicted. There were neither resultandos (findings of fact) nor consi-derandos (legal conclusions),.but in lieu thereof the judgment of October 21, 1903, and which is all this court could consider in passing on the appeal.

In a case before this court against Mariano Abril Ostaló, the .editor of a newspaper called “La Democracia,” the statement of facts in the judgment (sentencia) of the district court only reads as follows:

Resultando (findings of fact) : "Whereas, the newspaper ‘La Democracia, ’ on the 7th day of the month in its second sheet contains an article styled ‘Tribunal de Policía,’ which contains phrases and expressions injurious to the municipal alcalde (mayor) of this city in his functions as police judge.”

This statement of the facts the Supreme Court did not consider sufficient, and in a judgment or decision reversing the case states:

“Concluding that section 142 of the Law of Criminal Procedure provides that the facts which are held to be proven, and which are connected (enlazados) (interwoven) with the question and which have to be taken in connection with the conviction must be set out in the numbered findings of facts.
“Concluding that in the findings of fact (resultandos) of the judgment from which the appeal is taken, and which statement has been copied above, there has not been set forth any word, phrase or period of the article inserted in the newspaper ‘La Democracia’ under the title of ‘Police Court,’ which constitutes the crime of an offense against the authorities, which as such is classified and punished; and that the said judgment does not contain merits of fact upon which to affirm that the acts committed by the accused constitute the essential requisites of the said offense (que el procesado reúna los re-quisitos integrantes de aquel delito), so that in consequence of this the cassation (reversal) requested for that reason is proper.”

The District Court of Ponce, in which the case was tried, did not follow the strict precepts of the law, as laid down in article 142. The findings of. fact (resultados) did not contain the article published. The Supreme Court therefore-reversed the judgment of the district court and acquitted the-defendant, which power the court possessed under the old’ criminal system.

It has been intimated that the law of April 12,1903, changing this court from a court of cassation to a court of appeals,, thereby relieving it from its narrow rules and limitations, and granting the privilege of a more liberal construction, would' authorize this court to supply any defects of the trial court in a criminal case for the purpose of convicting a defendant. I cannot reconcile such assertion. A subsequent statute may ameliorate the conditions of a defendant in a criminal case, but that the privileges of liberal construction by a court of appeals could be utilized for the purpose of a conviction is a position so extravagant that the terms “ex post facto” or “retroactivo” would be inadequate to portray it. Under the Spanish system and und.er the universal rules of criminal law in such cases, the whole of the publication should be before the court for its consideration, so as to entitle the defendant to the benefit of any expressions which may tend in mitigation or explanation.

The resultandos (findings of fact) in the judgment containing the facts proven take the place of the evidence .saved by a bill of exceptions, under the American criminal procedure. "Would an appellate court in the United States reverse a judgment when the appellant had failed to comprise in his bill of exceptions' the libelous article upon which he was convicted, whereby the court would have no opportunity to pass on it? Applying this statement in a converse, but just, manner, how can an appellate court, under the Spanish practice, affirm a judgment when the trial court, whose sacred duty it was to embody the libelous article in the findings of fact of its judgment (sentencia), in violation of the strict rules of the law, failed to do so, and when it is beyond the power of the appellant to control the action of the court, thereby depriving him of the benefit of having his case reviewed by the higher court?

Since the district court applied the new Code of Criminal Procedure, trying the case as a misdemeanor, from which there was no appeal, it would have been superfluous and fruitless for the defendant to prepare a bill of exceptions and to embody therein the whole of the publication, so as to present it to this court for review. This ruling and position of the district court was therefore detrimental to the defendant, and the judgment of the district court should have been reversed. The opinion of this court of February 27, 1904, affirming the judgment of the district court, contains the whole article or publication, copying it, undoubtedly, from the exhibit in the files, but this amplification by this court can neither supply the omissions of the district court nor cure its errors.

The law under which the defendant Bird was accused and convicted is article 265 of the old Spanish Penal Code, and reads as follows:

“Those who, while a minister of the Crown or an authority is in the exercise of his functions or on the occasion thereof, shall calumniate, outrage or insult him by deed or word, outside his presence or in a writing not addressed to him, shall be punished with the penalty of arresto mayor.”

It seems evident that this law could only have reference to ministers of the Crown, under the Spanish Government, or to officials under that monarchy, and conld have no application to a judge or institution which received its existence by an act of Congress of the United States or any other American authority. Laws which are found upon the acquisition of a foreign territory, and which are in conflict, or incompatible with our American institutions, constitution and jurisprudence, must fall without any special legislative act to that effect, and I can therefore safely assert that when, after the Treaty of Peace between the Government of the United States and the Kingdom of Spain, the “ministers of the Crown and authorities in the exercise of their functions ’ ’ left the Island of Porto Rico and returned to their mother country, they carried with them the soul and the spirit of this very section 265 of the Penal Code, and surrendered it to its maker, in Spain, and there remained in Porto Rico only its lifeless corpse in the nature of a dead letter upon the statute book, and the courts and tribunals of the Island of Porto Rico are not endowed with the supernatural judicial power to resurrect this cadaver, to inspire it with animation and vitality and to fit and adjust it as a panel in the structure of criminal law, under a republican form of government. And the prisoner Bird was accused, tried and convicted under this inanimate ordinance.

But this statute should also be viewed from another aspect. It is neither a law for contempt of court, nor in the nature of a general libel law. It prohibits and forbids publications against certain persons only. This court has held that the first amendment to the Constitution of the United States as to the freedom of the press and speech exists in Porto Rico, and that decision was based upon the expressions of the Supreme Court of the United States in the case of Chicago, Rook Island, etc., R. R. Co., v. McGlinn, 114 U. S. 546, where, speaking through Mr. Justice Field, the court said:.

“It is a general rule of public law, recognized and acted upon by the United States, that whenever political jurisdiction and legislative power over any territory are transferred from one nation or sovereign to another, the municipal laws of the country, that is, laws which are intended for the protection of private rights, continue in force until abrogated or changed by the new government or sovereign. By the cession public property passes from one.government to the other, but private property remains as before, and with it those municipal laws which are designed to secure its peaceful use and enjoyment. As a matter of course, all laws, ordinances and regulations in conflict with the political character, institutions and constitution of the new government are at once displaced. Thus upon a cession of political jurisdiction and legislative power — and the latter is involved in the former — to the United States, the laws of the country in support of an established religion, or abridging the freedom of the press, or authorizing cruel and unusual punishments, and the like, would at once cease to be of obligatory force without any declaration to that effect; and the laws of the country on other subjects would necessarily be superseded by existing laws of the new government upon the saíne matters. But with respect to other laws affecting the possession, use and transfer of property, and designed to secure good order and peace in the community, and promote its health and prosperity, which are strictly of a municipal character, the rule is general, that a change of government leaves them in force until, by direct action of the new government, they are altered or repealed.”

It would therefore seem that the law above mentioned is in violation of this amendment, for, apparently, it makes the publication itself illegal, and thereby infringes upon the liberty of the press. We'find in Story on the Constitution, vol. II, p. 643, the following:

“A person is responsible for the abuse of the right of freedom of the press, but any law which forbids the publication itself is certainly in violation of the Constitution.”

In tlie application for a writ of habeas corpus it is also claimed that there should have been afforded to the prisoner a trial by jury. The question whether or not the Constitution is in force in Porto Eico does not necessarily arise in connection with the contention of the applicant; but we find some expressions by the Supreme Court of the United States in Downes v. Bickoell, which might be considered at this moment. In a dissenting opinion, in this court, in the case of Stahl v. Soldini, I had occasion to refer to this same decision. Without going into any details of this litigation, I shall briefly state that Stahl brought a suit under the old Penal Code in the nature of libel against Soldini. The defendant was acquitted by the district court, and the plaintiff, a private accuser, appealed to this court. A majority of the court, the Hon. Mr. Chief Justice Quiñones, José C. Hernandez and José Ma. Pigueras, reversed the judgment of the trial court and merely upon the findings of fact, contained in the judgment (sentencia) of the district court, convicted the defendant and imposed a certain punishment. I dissented from that opinion in the following terms:

‘'It is contended that by section 8 of the above-mentioned act of Congress the laws and ordinances of Spain in force at that date, became the laws of Porto Rico by re-enactment, subject to certain modifications, as therein stated. But whatever the extent of this law may be, it could never be to the effect that there should remain in Porto Rico laws which are in absolute contravention of our institutions, violating general and universal principles of the American system, affecting personal rights, impairing the security of life, liberty and property, thereby depriving a person of sacred privileges guaranteed by the Constitution and which are granted to all persons living under the protection of this government who claim the United States of America as their country, or who reside within the domain of this Republic. In this position we are, seemingly, sustained by the expressions of the Supreme Court of the United States in Downes v. Bidwell, 182 U. S., p. 282.
“ ‘We suggest, without intending to decide, that there may be a distinction between certain natural rights, enforced in the Constitution by prohibitions against interference with them, and what may be termed artificial or remedial rights, which are peculiar to our own system of jurisprudence. Of the former class are the rights to one’s own religious opinion and to public expressions of -them, or, as sometimes said, to worship God according to the dictates of one’s own conscience; to the right to personal liberty and individual property; to freedom of speech and of the press; to free access to courts of justice ; to due process of law and to an equal protection of the laws; to immunities from unreasonable searches and seizures, as well as cruel and unusual punishments; and to such other immunities as are indispensable to a free government. ’
“Although the expressions of the Supreme Court in the foregoing citation may not be quite definite, nevertheless, the court continuing declares in most positive terms the degree of protection the People of Porto Rico shall have under the Constitution.
“ ‘Whatever may be finally decided by the American people as to the status of these islands and their inhabitants — whether they shall be introduced into the sisterhood of States, or be permitted to form independent governments — it does not follow that, in the meantime, awaiting that decision, the people are in the matter of personal rights unprotected by the provisions of our Constitution, and subject to .the merely arbitrary control of Congress. Even if regarded as aliens, they are entitled under the principles of the Constitution to be protected in life, liberty and property. This has been frequently held by this court in respect to the Chinese, even when aliens, not possessed of the political rights of citizens of the United States. ’
“It seems the Supreme .Court of the United States, by the above decision, indicates that the provisions of the sixth amendment to the Constitution, in protecting personal rights, are in force in Porto Rico.”

The spirit of the Constitution of the United States, this civil or political article of faith of the American people and the protection of life and liberty under its-provisions, must accompany the banner of the Nation, and remain, whenever the government becomes the owner of the soil and of a country. When the officers sent to the new possessions and placed in charge of the local.administration are bound to their functions by a solemn oath to support that Constitution, does it then become simply their duty to instruct and enlighten the residents of its principles and of its blessings? To draw images of moral freedom and to muse their imaginations by visionary fancies of equal protection under the law? Will these teachings and illustrative exhibitions of probabilities suffice without realization? More than all that must have been the intention of the Congress of the United States when by its act of April 12, 1900, the Foraker Act, creating a civil government for Porto Rico, it allows appeals to the Supreme Court of the United States “in all cases where the Constitution of the United States is brought in question.’’

We observe that the Supreme Court of the United States in its wisdom says:

“Whatever may be finally decided by the American people as to the status of this Island and its inhabitants .... it does not follow that, in the meanwhile, awaiting that decision, the people are in the matter of personal rights, unprotected by the Constitution. .... Even if regarded as aliens, they are entitled under the principles of the Constitution to be protected in life, liberty and property. ’ ’

The principles and provisions of the Constitution are the protection of life, liberty and property, and there can be no higher protection than that of a trial by jury.

To establish uniformity of laws and to grant equal rights to all the inhabitants of Porto Eico was beyond a doubt the aim of Congress when a civil government was established for the Island.

Section 34 of the act of Congress, approved April 12, 1900, and generally known as the Foraker Act, reads as follows:

“That Porto Rico shall constitute a judicial district to be called ‘the district of Porto Rico.’ The President, by and with the advice and consent of the Senate, shall appoint a district judge, a district attorney, and a marshal for said district, each for a term of four years, unless sooner removed by the President. The district court for said district shall be called the district court of the United States for Porto Rico and shall have power to appoint all necessary officials and assistants, including a clerk, an interpreter, and such commissioners as may be necessary, who shall have like powers and duties as are exercised and performed by commissioners of the circuit courts of the United States, and shall have, in addition to the ordinary jurisdiction of the district courts of the United States, jurisdiction of all eases cognizant in the circuit courts of the United States, and shall proceed therein in the same manner as a circuit court.”

Would it be conceivable that a United States district or circuit court could be conducted without trials by jury, and how unreasonable it would appear that in one building in the city of San Juan, on the Island of Porto Eico, a citizen should enjoy all the rights and protection of and under our American institutions, and in another locality, in the same capital, these privileges and immunities should be denied to him, when all these tribunals received their existence from the same source, the Congress of the United States, and when the law is silent as to the constitutional attributes of either?

The writ of habeas corpus should have been granted and the prisoner discharged.

ConcuRRing Opinion op

Mr. Chief Justice Quiñones anb Justices Hernández and Pigueras.

The undersigned justices find themselves obliged to prepare this concurring opinion, inasmuch as the reasons set forth by the dissenting justice were not expressed at the proper time,, that is, when the decision was rendered denying the writ of habeas corpus applied for by Hobart S. Bird. If said reasons had been expressed, they would have been discussed and considered in said decision, and thus what may perhaps appear as an impropriety would have been avoided.

The said justice discusses some facts and certain proceedings which do not appear upon this record, and to which we can only refer.

The dissenting justice starts with a presumption for the purpose of impeaching the validity of the appointment of Angel García Veve, as associate judge of all the district courts, and who acted as such in the present case; and although he acknowledges that he was appointed by the Govern- or, he contends that such appointment was not made with the consent of the Executive Council. However, we must assume that the first authority of the Island complied with that duty if he considered himself bound to do so by the law; and until the absence of that requirement is shown, it is necessary to accept the legality of the appointment and to hold valid all the proceedings in which the substitute judge intervened.

It is alleged that when said García Veve formed part of the court notice of his appointment should have been given to Bird, and that if this was not done the judgment should he declared void, as the judgment rendered on September 19, 1902, was held void for a like reason. But the fact should be taken into consideration that the cases discussed by the dis-. senting justice are quite different.

The first designation made of a substitute judge was for a specific case, and the accused having no knowledge of his designation, it was necessary that notice of such appointment should be served upon him so that he could, if he desired, exercise the right of challenge for the causes which are specifically prescribéd by the law then applicable. But in this case the appointment of Judge García Veve was of a general character, since it was made for the purpose of providing a substitute for all the regular judges of the district court of the Island in cases of vacancies. His appointment, therefore, possessed a public character. But in addition to this, it does not appear from the habeas corp%t,s proceedings whether notice of the appointment was given to Bird or not, and it is not possible to refer from memory to proceedings which were not -taken into consideration in the decision which is now the subject of the appeal.

The procedure adopted by the District Court of San Juan is also attacked; but that procedure does not depart from that established by Judicial Order No. 228 of December, 1899, and it is necessary to respect the provisions of said order in cases in which, as in the present one, the Fiscal is asking for a correctional penalty. That order had the laudable object of expediting criminal proceedings, in so far as possible, and of reducing the term of provisional imprisonments.

The form of the judgment rendered by the District Court of San Juan is also drawn into question, on the ground that it fails to comply with the provisions of article 142 of the Law -of Criminal Procedure, which was antecedent to the law enacted by the Legislative Assembly of Porto Rico, approved March 1,1902; and hence it is concluded that the judgment of conviction against Bird should be reversed, as was done in the case of Mariano Abril from the District Court of Ponce by reason of a defect of form.

But the dissenting justice forgets the different periods of time in which the facts occurred. When the case of Abril came to this court the old law of procedure established here by Spain was in full force and effect, and this was a tribunal having cognizance of appeals in cassation, which were extraordinary remedies which would lie in all criminal causes from the final decisions of courts, the object of which was to correct any wrong committed in the judgment through errors of law affecting the substance of the subject-matter, or for failure to observe the essential forms of the proceedings. The record of the preliminary proceedings could not then be taken into consideration for any purpose. That court of cassation had to form its opinions in view of the judgment of the lower court; and Mariano Abril was therefore discharged because the alleged punishable article was not set forth in the judgment, and there was therefore no way by which the court of cassation could correctly judge as, to the scope and importance of the words published in the newspaper, “La Democra-cia.” And hence in that case and in other similar ones, and always complying with the law in force, the judgment was annulled and the accused acquitted of the crime with which he was charged.

But the present case of Hobart S. Bird is different in every respect. It came to this court on appeal, and not in cassation like that of Abril. The judgment against Bird contains the words and phrases which the court a quo considered defamatory, and this court of which we form part as judges is no longer required to subject itself to the strict limits of the old law. It can now examine the article complained of, even though the necessary matter is not included in the judgment, as has been done, because we are authorized to do so by the act of the Legislative Assembly, approved March 12, 1903, which reads as follows:

“AN ACT ESTABLISHING THE SUPREME COURT OE PORTO RIOO AS A COURT OE APPEALS..
“Be it enacted by the Legislative Assembly of Porto Rico:
“Section 1. — That’ the Supreme Court of Porto Rico shall hereafter be a Court of Appeals and not a Court of Cassation. In its deliberations and decisions, in all eases, civil or criminal, said court shall not be confined to the errors in, proceeding (procedure) or of law only, as they are pointed out, alleged or saved by the respective parties to the suit, or as set forth in their briefs and exceptions, but in furtherance of justice, the court may also take cognizance of all the facts and proceedings in the case as they appear in the record, and likewise consider the merits thereof, so as to promote justice and right and to prevent injustice and delay.
‘ ‘ Section 2. — All the sections of the Law of Civil Procedure establishing proceedings for appeals on cassation-are hereby repealed.
“Section 3. — The procedure on appeals shall conform to the provisions of the Code of Civil Procedure for suits of greater import, suppressing the proceedings known by the name of ‘Apuntamiento
“Section 4. — In all cases where reference is made in the Law of Civil Procedure to actions on cassation, the same shall be construed as meaning actions on appeals.
“Section 5. — All laws or parts of laws in conflict with this act are hereby repealed.
“Section 6.- — -This act shall take effect from and after its passage.
“Approved, March 12, 1903.”

We believe that the promotion of justice and right and the desire to prevent injustice, which are the objects proposed by this law, are attained as well by absolving the innocent as by condemning the person found guilty of a crime.

Neither have we ever considered in such an absolute manner the necessity of an express declaration in the judgment appealed from of the facts proved in the findings of fact, and it was once pointed out that it was sufficient to deduce the nature of the crime and the participation of the accused therein from the findings of fact, without the positive declaration of “facts proven,” and from the conclusions of law contained in the judgment appealed from. This occurred in the appeal of Pablo Pont y Crespo, from the District Court of Ponce, in which there was no declaration of facts proved in the findings of fact; and this court, which was then one of cassation, in its judgment of November 22, 1902, and the opinion having been prepared by the dissenting justice himself, held in one of its conclusions of law that the absolute and categorical terms in which the first finding of fact was embodied in the judgment appealed from, and the intimate connection which it bore to a consideration of said judgment, were sufficient grounds for holding that the court a quo had considered in its conscience as proven, the facts' set forth in said first finding of fact. This same doctrine was laid down in the judgment of this court of March 25, 1902, which was also subscribed by the dissenting justice.

The attack upon the form in which the judgment of the District Court of San Juan was drafted has therefore been answered, apart from the fact that it is not a proper subject of habeas corpus, as is likewise improper the procedure adopted by our illustrious colleague, the dissenting justice, in reviewing the decision rendered by this court in the case pending on appeal and filing a dissenting opinion in the matter of habeas corpus, for it is well-known law that regardless of the errors of a court, they cannot affect the decision on habeas corpus unless they operate to divest the trial court of its jurisdiction.

Let ns now enter upon a consideration of the last point discussed by the dissenting .justice, and that is the theory maintained by him that the soul and spirit (so he says) of article 265 of the Penal Code, applied to Bird, went away to Spain upon the cessation here of her sovereignty. Bnt the dissenting justice has come to see this very late, since he forgets that by his vote he condemned Práxedes Rosario de Je-sús, and signed the judgment of conviction of June 17, 1902, applying article 258, and in another judgment for which he also voted, and signed on June 26,1902, application was made of article 262, which, owing to its character and to the fact that it relates to criminal attempts against agents of authority and disrespect toward the same, and is included in the same title as article 265, should also have gone with the sovereignty of Spain, as now contended by the dissenting justice.

But where the involuntary forgetfulness of the dissenting justice is clearly seen is in the judgment of June 3,1902, which reads as follows:

“In the city of San Juan, Porto Rico, June 3, 1902. This is an appeal in cassation for error of law, which is pending before us, prosecuted by Antonio Pomales Gómez from a judgment of the District Court of Arecibo, in a case instituted against him for insults and calumny against authorities. ' ,
“Said judgment, which was rendered on the 24th of August last, contains the following finding of fact:
“The fact has been proved that the accused, Antonio Pomales, a resident of Manatí, stated publicly to various persons, and among them to Virgilio Pozo and José Rivera, that the mayor of the town, Virgilio Ramos, had been paid the sum of one hundred dollars by Abelardo de la Haba not to oppose the re-building of a house, situated in the town of Manatí, and the property of the estate of Brunet.
“The trial court declared that the facts proved constituted the crime included in article 265 of the Penal Code, and that Antonio Pomales Gómez was guilty of the same, without any circumstances modifying his liability, by reason whereof it condemned him to the penalty of two months and one day’s imprisonment, accessory penalties and costs.
“Prom this judgment the counsel for the defendant has taken an appeal in cassation for error of law, as authorized by subdivision 1 of article 849 of the Law of Criminal Procedure, citing as having been violated article 265 of the Penal Code by reason of the improper application thereof, since in the finding of fact above set forth it is not stated that Yirgilio Bamos received the gift in question as mayor in the exercise of his functions, which is an indispensable requisite to make it possible for him to have been calumniated as such mayor. Nor has he been insulted in his capacity as mayor, not only for the reason above set forth, but also because the fact that a person has been rewarded for not performing lawful acts which he may perform does not redound in his dishonor, discredit or contempt, especially in the ease of a person who, like Mr. Bamos, has his reputation well established.
‘ ‘ The Fiscal opposed the appeal upon the hearing.
‘ ‘ The case having been heard, the opinion of the court was prepared and delivered by Associate Justice José C. Hernández, as follows:
‘ ‘ The crime defined and punished by article 265 of the Penal Code is committed by those who, while an authority is in the exercise of his functions, or on the occasion thereof, shall calumniate, outrage, or insult him by deed or word, outside his presence, or in a writing not addressed to him; calumny consisting of the false imputation of any crime which gives rise to a prosecution at the instance of the government, and insult of any expression made or act committed in dishonor, discredit or contempt of another person, according to articles 471 and 475 of the same Code.
“The imputation publicly made by the appellant against the mayor of Manatí, Virgilio Bamos, outside his presence, to the effect that he had been paid the sum of one hundred dollars for the purposes mentioned, undoubtedly constitutes the crime of bribery under some or any of the forms defined in chapter 9 of title 7 of book 2 of the Penal Code, and if it did not constitute said crime, it would be insulting to the authority of said official as offensive to the uprightness and impartiality which he should evince in the exercise of the duties of his office. It is evident, therefore, that the trial court has not committed the error of law on which the appeal is based, nor has it committed the violation of law with which it is charged.
“We therefore adjudge that we ought to declare and do declare that the appeal in cassation prosecuted by Antonio Pomales Gómez was not properly taken, and we condemn him to the payment of the costs. Let the record of the case be returned and this decision be communicated to the District Court of Arecibo for proper action.
“Thus by tbis our judgment, which will be published in the Official Gazette, we pronounce, order and sign. José S. Quiñones, José C. Hernández, José Ma. Figueras, Louis Sulzbacher, J. H. Mac-Leary.
“Publication. — The foregoing judgment was read and published by José C. Hernández, associate justice of the Supreme Court, a public session of said court having been held on this day, to which I certify as clerk, in Porto Rico, July 3, 1902: Antonio F. Castro.”

As will be observed, the dissenting justice voted for and signed this judgment. In said judgment the same article 265 of the Penal Code was applied, namely, the one which went in soul and spirit, according to him, with the Spanish sovereignty.

And is it possible that that cadaver lived in the law and in the mind and conscience of the dissenting justice in the case referred to in the judgment set forth, and on a date on which Spanish sovereignty had ceased, and that to-day that article is really dead so that it cannot be applied to Hobart S. Bird under the argument of the change of sovereignty? There comes before us the inconsistency of such a position, which may find its justification in the involuntary forgetfulness of those cases in which the dissenting justice previously intervened with his vote and signature.

All the other points made in the dissenting opinion are discussed in the decision of the judge who prepared the opinion of the court, which we accept and adopt as our own, in denying the writ of habeas corpus applied for by Hobart S. Bird.

We conclude by stating that only the necessity of justifying our consistency and conduct in expressing our opinion and rendering our decision constrains us to come out in this way against the opinion of the dissenting justice, since he failed to express the reasons therein set forth in due season, that is to say, at the time the case was discussed, and then they would have been refuted, as we now do, after having ascertained the reasons upon which he bases his dissent to the judgment.  