
    PEOPLE OF PORTO RICO, Plff., v. MATEO FAJARDO CARDONA, Dft.
    San Juan,
    Law,
    Nos. 1001, 1002, 1003.
    Removal of Criminal Cause under Revised Statutes, Section 641.
    Constitution.
    1. The 6th Amendment of the Constitution runs against the Federal government and not against the states.
    Constitution.
    2. It seems that by the 6th Amendment of the Constitution the Federal government is denied the right to change the venue in a criminal case.
    Removal of Causes.
    3. By § 171 of the Code of Criminal Procedure of Porto Rico, a criminal ease may be removed either by the government or by the defendant.
    Removal of Causes.
    4. The fact that inconvenience would result in the trial of a case removed from a local court to the Federal court by virtue of § 641 of the Revised Statutes of the United States is not controlling.
    Constitution.
    5. The Constitution is applied to the people of new territory by act of Congress and not by treaty, and this application can be made either in whole or in part.
    The Federal Court.
    6. The Federal court in Porto Rico is for some purposes required to treat the laws of Porto Rico as other district courts treat the laws of the individual states, but this does not mean that it is to treat the laws of Porto Rico as the laws of a state; it must approach the laws of Porto Rico as the laws of a territory.
    Constitution.
    7. Amendments 4 and 5 of the Constitution are applied to Porto Rico by virtue of the Foraker or Organic Act.
    
      Interpretation of Statutes.
    8. The occasion of the enactment of a law is not controlling, as its phraseology may be broader than’ the particular condition sought to be covered, but the occasion for the enactment often throws light upon its meaning.
    Civil Eights Law.
    9. Sections 641 and 642 of the Eevised Statutes of the United States are not applicable to cases involving wrongful procedure by local officials; they cover only cases where Federal rights are denied by legislation.
    Civil Eights Law.
    10. The removal of a criminal case by virtue of a local law from one district to another is not a denial of an equal civil right.
    Opinion filed November 30, 1915.
    Statement of Facts.
    The petition in tbis case, filed October 25, 1915, shows that the defendant is charged with having committed the offense of bribery in three instances, all in the district and municipality of Mayaguez, Porto Pico. It claims that a right to a jury trial in the district in which the offense is alleged to have been committed has been denied by the highest court in Porto Pico, and the said causes transferred to Aguadilla, thence to San Juan, and thence returned under certiorari from the local supreme court to the district of Aguadilla. The alleged grounds for removal were affidavits that in the opinion of affiants a fair trial could not be had in Mayaguez. The petition prays that the papers be' filed in the Federal court, and the case tried there. Proper bond and other papers were filed with the Federal court, the local court not having complied with the petition of tbe defendant for removal. Tbe case was docketed in tbe Federal court on October 25, 1915, and on tbe same day tbe People of Porto Pico appeared and prayed that tbe order of removal and docketing be set aside, and that tbe case be left in tbe district court of Aguadilla for proper proceedings in accordance with law.
    Tbe matter came up upon these cross motions, and was fully argued by counsel.
    
      Mr. Willis Sweet for petitioner to remove.
    
      Mr. B. W. Perlcins, Jr., acting Attorney General, for tbe People of Porto Pico.
   HamiltoN, Judge,

delivered tbe following opinion:

By bis petition filed in tbis court October 25, 1915, which is tbe basis of tbe proceedings in tbis court, Mateo Fajardo Oardona alleges that be is deprived of tbe civil rights guaranteed him by tbe 6th Amendment of tbe Constitution, which reads as follows: “In all criminal prosecutions, tbe accused shall enjoy tbe right to a speedy and public trial, by an impartial jury of tbe state and district wherein tbe crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of tbe nature and cause of tbe accusation; to be confronted with tbe witnesses against him; to have compulsory process for obtaining witnesses in bis favor, and to have tbe assistance of counsel for bis defense.”

Tbe alleged violation is on tbe part of tbe People of Porto Rico, in securing through their attorney general a change of venue in three criminal cases against the defendant, from the Mayaguez district court, in which district defendant lives and where the crime is alleged to have been committed, to the Aguadilla district court, all against the defendant’s protest. The law under which the Federal court is asked to intervene is that contained in United States Bevised Statutes, § 641.

1. It. is not contended on behalf of petitioner that any right is violated which is dependent upon the 14th Amendment as to due process of law. Frank v. Mangum, 237 U. S. 309, 59 L. ed. 969, 35 Sup. Ct. Rep. 582. If it did, the procedure would perhaps be by habeas corpus after conviction. This eliminates from consideration a good deal that was argued by counsel. The case turns solely upon the applicability of the 6th Amendment. This requires due process of law, indeed, defines it in Federal procedure. But the 6th Amendment, like others in this Bill of Bights, runs against the Federal government, and not against the states. Therein is its difference from the 14th Amendment, which in many respects changed the entire relation of the Federal government and the states. It is conceded that the Federal government itself has never passed a statute authorizing its prosecuting officers to secure a change of venue on account of difficulty in securing a fair trial at any particular place. It is contended, however, that this happens to grow out of the fact that the Federal districts are large, and suitable jurymen can therefore be secured from a distance, if necessary. It is argued that by the common law, which came to America with the colonies, there was such a right on the part of the government to a change of venue. Rex v. Nottingham, 4 East, 208, 1 Smith, 31 (1803.) The court recites in that case that the court had originally the right of directing an indictment to be tried in tbe next adjoining county in cases where justice required it. Even if this authority were applicable, however, the 6th Amendment took away whatever right of this kind there was in the government. The Federal government does not seem to have the right to change the venue in a criminal ease.

2. Porto Pico originally did not have a jury system in either civil or criminal cases, and up to the present time Porto Picans do not, except in the Federal court, enjoy the right of a jury trial in civil cases. A civil government under the present Organic Act went into effect May 1, 1900, and the next year, on January 12, 1901 (P. R. Pev. Stat. § 1119), a jury trial was provided for, when demanded, in cases where the punishment was imprisonment for two years or more, that is to say, in what are ordinarily known as felonies. P. R. Penal Code, §§ 14 and 16; P. R. Rev. Stat. §§ 5420-5422. Other provisions were enacted in the Oode of Criminal Procedure in 1902. P. P. Code Crim. Proc. § 178. Under this the defendant was allowed a change of venue where injustice might be done him in the place of his residence.

The statute now in question was enacted afterwards. By this a right to change of venue was extended to the prosecution (Act of March 10, 1904, p. 61). This double right of removal is in the Code of Criminal Procedure, of which § 171 is as follows:

A criminal case may be removed by a district court, in which it is pending, on the application of the prosecuting attorney or of the defendant:

First. On the ground that a fair and impartial trial cannot be had in the district where said case is pending, or when by reason of public disorder existing in said district a fair and impartial trial as between tbe accused and tbe government cannot be safely and speedily bad, or whenever tbe life of tbe accused or of any of tbe witnesses should be jeopardized by a trial in that district.

Second. On tbe ground that no jury can be obtained for tbe trial of tbe case in such district.

For tbe same reasons a criminal case may be transferred to a municipal court.

Tbe supreme court of Porto Eico has in effect declared tbe removal law to be effective. In this very case of Fajardo v. Nussa, July 28, 1915, it remanded tbe trial of this case from San Juan to Aguadilla, and thus lets it remain for trial at Aguadilla.

Porto Eico, therefore, has by legislation authorized tbe procedure carried out in this case by its officers, and sanctioned by its supreme court, all against petitioner’s objection. Does this violate an equal civil right declared in Eev. Stat. § 641 ? Is a jury of tbe vicinage such a Federal right ?

3. An argument is drawn from inconvenience, in that, if tbe case at bar is tried in tbe Federal court, it will involve tbe trial of a local crime and there will be no provision for prosecution by any official. Tbe law, however, is otherwise. A change of tribunal, and not a change of prosecuting officers, is contemplated by this section, and an indictment removed into tbe circuit court must be prosecuted by a representative of tbe state. Tbe attorney general of Porto Eico would have tbe same right of prosecution in this court in tbe case of such removal as be would have in tbe local court. Tbe whole case would be removed, with its plaintiff, prosecuting officer, and defendant. The only change would be in the officers of the court trying the case. Delaware v. Emerson, 8 Fed. 411. The law.of the state defining the offense charged will be followed on the trial of an action removed into the Federal court. North Carolina v. Gosnell, 74 Fed. 734. See also Richter v. Magone, 47 Fed. 194, opinion by Circuit Judge Lacombe. It has also been suggested on the argument that such a decision would have the effect of paralyzing the administration of local criminal law, and that many cases will be transferred from the local courts to the Federal court. Even if true, this, of course, would not be controlling. The argument from inconvenience is unsafe. See Hawaii v. Mankichi, 190 U. S. 223, 248, 47 L. ed. 1025, 1034, 23 Sup. Ct. Rep. 787, 12 Am. Crim. Rep. 465. The fact that there were many cases which should be removed under Revised Statutes of the United States, § 641, would not be an argument against the application of that section. In point of fact, however, there is no reason to suppose that this result would follow. In all cases where there has been conviction the right could not now be set up. Section 641 itself provides that the right must be claimed in the early progress of the case. The principal result would be that the local prosecuting officers would hereafter refrain from seeking a change of venue in criminal cases, and thus violating a constitutional right of defendants.

4. There are practically two answers made to the merits of the petition by the answer or motion of the People of Porto Rico. One is that Porto Rico is for jury matters invested with state powers, and the other is that Rev. Stat. § 641, invoked by petitioner, does not apply to the facts of this case.

What, then, are the political powers of Porto Rico?

The acquisition of territory beyond the four seas, so to speak, raised the difficult question of the relation of the people in such acquisitions to the citizens of the United States. This became especially acute because of their being to a large extent of alien races and alien civilizations. There were judges who held that the acquisition of territory by treaty made the inhabitants Americans, and others that such acquisition made the territory American but did not make the people Americans. In the Insular Cases the opinion by Justice White suggested a view which finally prevailed as the opinion in later cases. This suggested a double distinction. In the first place, if the territory acquired was unorganized, the people had none except personal rights under the Constitution, that is to say, rights of life, liberty, and property. On the other hand, if it had an organized government, civil rights were affected by the acquisition, where such people had, by some distinct action of Congress, been incorporated with the United States. In other words, that not a treaty but an act of Congress applied the Constitution to the people of the new territory, and that this application could be made either in whole or in part. Downes v. Bidwell, 182 U. S. 244, 45 L. ed. 1088, 21 Sup. Ct. Rep. 770; Hawaii v. Mankichi, 190 U. S. 197, 47 L. ed. 1016, 23 Sup. Ct. Rep. 787, 12 Am. Crim. Rep. 465.

The distinction as to unorganized territory ■ is seldom applicable. It would apply to the North Pole, which Peary claimed to turn over to President Taft as part of the United States; but it will be very seldom that there is territory so sparsely settled as not to have an organized government. The distinction as to incorporation with the United States, however, is a vital one. It was held in the Mankichi Case, against strong protest, that territory wbicb is annexed does not necessarily come under tbe full sway of tbe Constitution; tbat tbe Constitution does not apply until made applicable • by act of Congress. • It certainly does become applicable where act of Congress incorporates tbe territory as a part of tbe United States, as was done by tbe Organic Act of April 30, 1900, for Hawaii. Wbat was done in the interval between tbe Newlands resolution of annexation and tbe Organic Act was tbe subject of discussion in tbe Mankichi Case; and it was held that, while fundamental personal rights applied, these did not include tbe right of presentment by a grand jury and the right of a unanimous verdict by tbe historical jury of twelve men. There is no question tbat “as tbe guaranty of a trial by jury, in tbe 3d article, implied a trial in tbat mode and according to tbe settled rules of tbe common law, tbe enumeration in tbe 6th Amendment of tbe rights of tbe accused in criminal prosecutions is to be taken as a declaration of wbat those rules were, and is to be referred to tbe anxiety of tbe people of tbe states to have in tbe supreme law of tbe land, and so far as the agencies of tbe general government were concerned, a foil and distinct recognition of those rules, as involving the fundamental rights of life, liberty, and property.” Callan v. Wilson, 127 U. S. 540, 549, 32 L. ed. 223, 226, 8 Sup. Ct. Rep. 1301. But this is not to be held to apply until tbe formal incorporation of tbe territory with tbe United States.

5. It is argued tbat Porto Bico is by tbe Foraker Act, § 34, likened to a state so far as its laws are concerned, and United States v. Cerecedo, 6 Porto Rico Fed. Rep. 607 and 615, and Gromer v. Standard Dredging Co. 224 U. S. 370, 56 L. ed. 805, 32 Sup. Ct. Rep. 499, are cited as showing tbat Porto Rico is to be regarded as a dependent, autonomous state, and not as technical territory. A further proof of this is also sought in the Rosaly Case, 227 U. S. 270, 57 L. ed. 507, 33 Sup. Ct. Rep. 352, where the people of Porto Rico are declared to be exempt from suit on quasi sovereign grounds. A state can change or even abolish the jury system. Frank v. Mangum, 237 U. S. 309, 342, 343, 59 L. ed. 969, 986, 987, 35 Sup. Ct. Rep. 582.

The question, therefore, is the relation of the Porto Rican government to the United States. As to this there can be no doubt. The United States, being a sovereign nation, can, so far as concerns foreign governments, acquire and hold territory in any way it sees proper. Downes v. Bidwell, 182 U. S. 244, 45 L. ed. 1088, 21 Sup. Ct. Rep. 770. This country can do whatever any country can do. It is, in its foreign relations, sovereign in every sense of the word. It is, however, within its own bounds, divided into the Federal government on the one side and a number of constituent states on the ether, and has ever since 1787 held territory which it has “regulated” in such manner as it saw proper. Constitution, art. IV., § 3: “. . . The Congress shall have power to dispose of, and make all needful rules and regulations respecting the territory or other property belonging to the United States; and nothing in this Constitution shall be so construed as to prejudice any claims of the United States, or of any particular state.”

“Regulate” here means by means of laws, that is to say, is the same as legislation. Dorr v. United States, 195 U. S. 138, 144, 49 L. ed. 128, 130, 24 Sup. Ct. Rep. 808, 1 Ann. Cas. 697. It happened that this original territory was within the bounds of the United States recognized by the Treaty of Independence of 1782, and from the beginning provision was made for creating new states therefrom. Under this a system of wbat came to be known as territories grew np, whose general features are found in United States Revised Statutes, §§ 1839-1895, Comp. Stat. 1913, §§ 3425 — 3527, and to which the Constitution applies by Rev. Stat. § 1891.

With the purchase of Alaska in 1867, and especially with the acquisition of the Hawaiian Eepublic (late Kingdom) in 1897, and of the Philippines and Porto Eico from Spain by the Treaty of 1898, a new system was entered upon. The territory thus acquired is not contiguous to the old states, and has required special rules not applicable to the original territories as such, but there seems to be no reason why the United States should not make new regulations if it sees proper. It is, indeed, the part of the sovereign power to make laws differing in detail, so as to suit the varying circumstances of different conditions as they arise. The country acquired as above is all territory of the United States, and governed by territorial laws prescribed by the United States. Being far separated and in different climates, no uniform territorial plan has been prescribed, and possibly none can be prescribed. The rules are different in each ease.

Alaska originally had no legislature, and Congress adopted a series of codes and laws for all purposes there. Hawaii was originally an independent kingdom and much of its legislation was retained upon the acquisition of that country. The Philippines at first had a military government, which, however, as all military governments, recognized local civil'laws, as modified by the Federal authority from time to time. Porto Eico at first was under military rule and the old Spanish laws were enforced. In 1900, however, a civil government was established for Porto Eico with limited legislative powers, and there have been many changes made, especially with the adoption of the codes of procedure in 1902. In 1904 the Spanish Civil Code, in force for many years, was revised.

The same principle, however, applies. Porto Eico is to-day, as fully as when it was acquired by the Treaty of Paris, territory of the United States, — although Congress in its wisdom has seen fit not to use of it the word “Territory,” as it did about the same time for Hawaii, and to govern it, not by the old territorial form of government throughout, with one system of courts to take care of both Federal and local business, but with a Federal court on the one side, looking after Federal jurisdiction precisely as in the states, and on the other a local government and local courts looking after local matters, much as in the states. In § 17 of the Organic Act, however, it is expressly made like a territory. The local government, no matter how autonomous in form, is not a state government in any sense of the word, and is simply a means by which Congress governs Porto Eico.

The Federal court in Porto Eico is vested with the same and as to persons with even greater jurisdiction than the other district courts in the United States, and for some purposes it is required to treat the laws of Porto Eico as other district courts treat the laws of the individual states. This does not, in any sense of the word, mean that this court shall treat the laws of Porto Eico as the laws of a state. It must approach the laws of Porto Eico as those of a territory.

6. The doctrine of incorporation of territory may be stated as follows: If a territory has been incorporated into the Union by definite act of Congress, its people become subject to tbe Constitution in all respects, and bave all tbe rights wbicb are guaranteed by that instrument so far as applicable to people under a territorial form of government. Rasmussen v. United States, 197 U. S. 516, 523, 529, 49 L. ed. 862, 864, 867, 25 Sup. Ct. Rep. 514 (Alaska). On tbe other band, nonincorporation of an organized territory does not necessarily put its inhabitants outside tbe pale of tbe Constitution. Tbe Constitution does not ipso facto apply to them, except as to certain personal rights, wbicb, for example, do not include jury trial. But, nevertheless, when Congress legislates for this territory and its people, it may, and frequently does, extend certain provisions of tbe Constitution thereto. Ocampo v. United States, 234 U. S. 91, 98, 58 L. ed. 1231, 1234, 34 Sup. Ct. Rep. 712 (Philippines). This is a matter within tbe discretion of Congress, but when tbe discretion is exercised tbe constitutional rights are complete so far as they go.

If tbe question arises whether Porto Rico has been so incorporated into tbe Union, tbe answer, as above, must be that it has not been fully incorporated. 'Whether there can be a partial incorporation may be an open question. Practically it is not important. A partial incorporation would bave few effects, so far as constitutional rights are concerned, except to extend tbe constitution pro tanto, and this would amount to very much tbe same thing as Congress extending these specific rights by legislation to an organized but unincorporated territory. Wbicb view should be taken of Porto Rico it is unnecessary to decide. It has been held in this court in tbe Cerecedo Case that Amendments 4 and 5 of tbe Constitution apply to Porto Rico under and by virtue of tbe Foraker or Organic Act. This is unquestionably so as to all proceedings in tbe Federal court, and no reason is perceived wby tbe same should not be true of other rights in what is called tbe Bill of Bights. Tbe recent enactment of tbe law making Porto Bico an integral member of tbe first judicial circuit, in its terms placing it upon an equality with Maine, Massachusetts, and tbe other districts, at least confirms this view. Tbe court of appeals of tbe first circuit, it is to be noted also, has this jurisdiction not only over tbe Federal district court for Porto Bico, but by appeal also over tbe supreme court of Porto Bico. Whether this amounts to an incorporation of Porto Bico with tbe Union for all judicial purposes is a question unnecessary to be decided in this case. Tbe right now set up does not originate in tbe Federal court or Federal procedure per se, but in tbe local courts of Porto Bico, and tbe principal point to be determined is whether tbe district court of tbe United States can consider tbe alleged right arising in tbe local court in tbe form in which it is at present presented.

Tbe point is tbe more important, because tbe establishment of tbe Federal and local systems of courts in Hawaii, as well as in Porto Bico, seems to indicate that, on account of contact with new conditions and new civilizations in those places, tbe United States has found it necessary to create a new kind of territory from that of tbe past. Instead of there being one set of courts, as under tbe Bevised Statutes, tbe new territories have local and Federal jurisdictions in separate tribunals, whose relations can be settled only gradually and by careful construction.

1. Tbe second defense to tbe petition set up by tbe People of Porto Bico, therefore, is that whatever tbe powers of Porto Rico on tbe subject, tbe statute invoked, Rev. Stat. § 641, is inapplicable to tbe circumstances of tbe case at bar. Tbe,Con-stitution of tbe United States governs every citizen witbin tbe territorial limits of tbe Union. It is equally binding upon a state, territory, or Federal official. It was found wise, however, to fix tbe ultimate interpretation of rights arising under tbe Constitution in tbe Federal courts, because there bad to be some final arbiter. What provisions might have been adopted it is unnecessary to discuss; those actually adopted are that causes may be removed from local courts, including those of Porto Rico, to tbe Federal courts in certain cases prescribed by law. U. S. Rev. Stat. § 639. These relate principally to where tbe defendants are nonresidents and wish to avoid what they may deem to be prejudice in tbe local courts. There is also tbe provision invoked in tbe case at bar. U. S. Rev. Stat. § 641. This latter system originated at tbe close of tbe Civil War, when it was deemed proper, before and after tbe 14th Amendment, to secure to persons lately in servitude tbe right to transfer civil or criminal cases from tbe local to tbe Federal courts when tbe states were supposed to violate any of tbe equal civil rights provided by tbe Federal laws. Tbe occasion of tbe enactment of a law is not controlling. Its phraseology may be broader than tbe particular condition sought to be covered, and in such case it will be so interpreted; but the occasion for tbe enactment of a law often throws light upon its meaning. Heydenfeldt v. Daney Gold & S. Min. Co. 93 U. S. 634, 638, 23 L. ed. 995, 996, 13 Mor. Min. Rep. 204; Church of Holy Trinity v. United States, 143 U. S. 457, 36 L. ed. 226, 12 Sup. Ct. Rep. 511. A question in tbe case at bar is, bow far this act goes in providing for a removal ? These are tbe only two laws on tbe subject of removal of causes from local to Federal courts. It must not be overlooked, however, that tbe Federal policy is not exhausted by these two removal laws. There are many rights arising under the Constitution of the United States which may be asserted in a local court, but the decision of the local court is not final. It is not part of the Federal system to encourage clashes between Federal a.nd local courts. Within their sphere both are of equal usefulness, and, in fact, are co-ordinated into one grand judicial system. At the same time, the final decision of such Federal rights rests with the Supreme Court of the United States, by reason of the law authorizing a writ of error from that court in such cases to the highest trial court of the state, and thus removing the decision to the supreme Federal tribunal. Rev. Stat. § 109. Virginia v. Rives, 100 U. S. 313, 25 L. ed. 667, 3 Am. Crim. Rep. 524. It is clear that the ordinary removal law does not apply to the case at bar. The question is, does what may be called the civil rights removal act apply, or is the defendant relegated to making his defense in the local court, setting up there the Federal right which he deems violated, and, if this is denied below, having -the right of appeal from the highest local court to the Supreme Court of the United States ?

8. What may be called the equal civil rights removal act is contained in §§ 641 and 642 of the Revised Statutes of the United States, and read as follows:

“See. 641. When any civil suit or criminal prosecution is commenced in any state court, for any cause whatsoever, against any person who is denied or cannot enforce in the judicial tribunals of the state, or in the part of the state where such suit or prosecution is pending, any right secured to Mm by any law providing for the equal civil rights of citizens of the United States, or of all persons within the jurisdiction of the United States, or against any officer, civil or military, or other person, for any arrest or imprisonment or other trespasses or wrongs, made or committed by virtue of or under color of authority derived from any law providing for equal rights as aforesaid, or for refusing to do any act on the ground that it would be inconsistent with such law, such suit or prosecution may, upon the petition of such defendant, filed in said state court at any time before the trial or final hearing of the cause, stating the facts and verified by oath, be removed, for trial, into the next circuit court to be held in the district where it is pending. Upon the filing of such petition all further proceedings in the state courts shall cease, and shall not be resumed except as hereinafter provided. But all bail and other security given in such suit or prosecution shall continue in like force and effect as if the same had proceeded to final judgment and execution in the state court. It shall be the duty of the clerk of the state court to furnish such defendant, petitioning for a removal, copies of said process against him, and of all pleading, depositions, testimony, and other proceedings in the case. If such copies are filed by said petitioner in the circuit court on the first day of its session, the cause shall proceed therein in the same manner as if it had been brought there by original process; and if the said clerk refuses or neglects to furnish such copies, the petitioner may thereupon docket the case in the circuit court, and the said court shall then have jurisdiction therein, and may, upon proof of such refusal or neglect of said clerk, and upon reasonable notice to the plaintiff, require the plaintiff to file a declaration, petition, or complaint in tbe cause; and, in case of bis default, may order a nonsuit, and dismiss tbe case at tbe costs of tbe plaintiff, and sucb dismissal shall be a bar to any further suit touching tbe matter in controversy. But if, without sucb refusal or neglect of said clerk to furnish sucb copies and proof thereof, tbe petitioner for removal fails to file copies in tbe circuit court as herein provided, a certificate, under tbe seal of tbe circuit court, stating sucb failure, shall be given, and upon thq production thereof in said state court,' tbe cause shall proceed therein as if no petition for a removal bad been filed.

“See. 642. When all tbe acts necessary for tbe removal of any suit or prosecution, as provided in tbe preceding section, have been performed, and tbe defendant petitioning for sucb removal is in actual custody on process issued by said state court, it shall be tbe duty of ‘the clerk of said circuit court to issue a writ of habeas corpus cum causa, and of the marshal, by virtue of said writ, to take tbe body of tbe defendant into bis custody, to be dealt with in said circuit court according to law and tbe orders of said court, or, in vacation, of any judge thereof; and tbe marshal shall file with or deliver to tbe clerk of said state court a duplicate copy of said writ.”

Tbe decisions upon this law are uniform to tbe effect that even as to civil cases it is not applicable to wrongful procedure by a local official. Tbe remedy for sucb administrative injuries is of another character. Rev. Stat. § 709. Tbe statute quoted refers only to cases where Federal rights are denied by legislation.

Tbe Supreme Court of tbe United States has declared this principle as follows: “Tbe question as to tbe scope of § 641 of tbe Revised Statutes again arose in tbe subsequent cases of Neal v. Delaware, 103 U. S. 370, 386, 26 L. ed. 567, 570; Bush v. Kentucky, 107 U. S. 110, 116, 27 L. ed.. 354, 356, 1 Sup. Ct. Rep. 625; Gibson v. Mississippi, 162 U. S. 565, 581, 584, 40 L. ed. 1075, 1078, 1079, 16 Sup. Ct. Rep. 904, and Smith v. Mississippi, 162 U. S. 592, 600, 40 L. ed. 1082, 1085, 16 Sup. Ct. Rep. 900. In eacb of these cases it was distinctly adjudged, in harmony with previous cases, that the words of § 641, ‘who is denied or cannot enforce in the judicial tribunals of the state, or in the part of the state where such suit or prosecution is pending, any right secured to him by any law providing for the equal civil rights of citizens of the United States, or of all persons within the jurisdiction of the United States,’ did not give the right of removal, unless the Constitution of the laws of the state in which the criminal prosecution was pending denied or prevented the enforcement in the judicial tribunals of such state of the equal rights of the accused as. secured by any law of the United States. Those cases, as did the prior ones, expressly held that there was no ■ right of removal under § 641, where the alleged discrimination against the accused, in respect of his equal rights, was due to the illegal or corrupt acts of administrative officers, unauthorized by the Constitution or laws of the state, as interpreted by its highest court. Bor wrongs of that character the remedy, it was held, is in the state court, and ultimately in the power of this court, upon writ of error, to protect any right secured or granted to an accused by the Constitution or laws of the United States, and which has been denied to him in the highest court of the state in which the decision in respect of that right could be had.” Kentucky v. Powers, 201 U. S. 1, 50 L. ed. 633, 26 Sup. Ct. Rep. 387, 5 Ann. Cas. 692 (1905).

9. The question arises, what are the rights covered by § 641 ? The section by its words applies where “any person is denied or cannot enforce in the judicial tribunals of the state, any right secured to him by any law providing for the equal civil rights of citizens of the United States.” The definition of civil rights is not always clear. They do not cover social or domestic rights, such as marriage between persons of different races. Hoover v. State, 59 Ala. 57; Pace v. Alabama, 106 U. S. 583, 27 L. ed. 207, 1 Sup. Ct. Rep. 637; Ex parte Francois, 3 Woods, 367, Fed. Cas. No. 5,047. It does not apply where a law prescribes the jurisdiction of courts as to territorial limits or subject-matter of judgments. Missouri v. Lewis (Bowman v. Lewis) 101 U. S. 22, 25 L. ed. 989. Nor to the right to sell liquor. Bartemeyer v. Iowa, 18 Wall. 129, 21 L. ed. 929. Nor to Sunday laws. Frolickstein v. Mobile, 40 Ala. 725. Nor to police laws. Miller v. Texas, 153 U. S. 535, 38 L. ed. 812, 14 Sup. Ct. Rep. 874. Nor to separate quarters in public conveyances. Civil Rights Cases, 109 U. S. 3, 27 L. ed. 835, 3 Sup. Ct. Rep. 18. Nor to separate schools for different races. Bertonneau v. City Schools, 3 Woods, 177, Fed. Cas. No. 1,361. The law was designed primarily to assure all people, regardless of color or race, their rights of life, liberty, or property. It applies to an act of a state legislature giving a few persons the right to carry on stock yards near a large city, such as New Orleans. Slaughter-House Cases, 16 Wall. 36, 21 L. ed. 394. It has been frequently applied to juries, and forbids that juries be composed exclusively of persons of one race. Neal v. Delaware, 103 U. S. 370, 26 L. ed. 567.

Tbe above cases arose principally under tbe 14th Amendment, but it would be a strained construction wbicb would. confine tbe operation of § 641 to sucb cases. It would apply to Chinese if treated differently from other races. California v. Chue Fan, 42 Fed. 865. It applies to any right secured by law for equal civil rights, and the Constitution and its Amendments are as much laws as any. statute passed by Congress. They are, in fact, the supreme law of the land.

This removal statute is limited to a denial of “the equal civil rights.” Can it be said that the removal under local law of a criminal cause from the district in which it should be tried is a denial of an equal civil right provided by law? The defendant is treated precisely as all other defendants are treated. If there is a wrong, it is a wrong applicable equally to all. If there is no discrimination, Rev. Stat. § 641, does not apply. New Jersey v. Corrigan, 139 Fed. 761. The defendant may have a right to a trial by a jury of the vicin-age, and its denial by statute may be wrongful. But in what respect is there any inequality, such as to call into effect the provisions of this statute? It is not alleged that the defendant is picked out for special maltreatment or wrongful execution of .the law; under this statute only the law itself can be complained of, and that does not seem to deny any equality of treatment, such as is required by § 641. It is not every denial by a state enactment, of rights secured by the Constitution or laws of the United States, that is embraced by § 641 of the Bevised Statutes. The right of removal given by that section exists only in the special cases mentioned in it. Gibson v. Mississippi, 162 U. S. 566, 40 L. ed. 1075, 16 Sup. Ct. Rep. 904.

The Supreme Court has suggested that iu cases when jurisdiction must be refused, it is well not to indicate any opinion as to the rights claimed, but leave that to the court which will act. This opinion, therefore, merely decides that Porto Eico has not state powers as to juries, but not what powers it has over the subject as a territory. This it is not necessary to determine because Eevised Statutes, § 641, does not bring the matter here so that it can be determined.

An order will therefore be entered remanding and restoring the case to the District Court of Aguadilla.

It is so ordered.  