DISSENTING OPINION OF
GALBRAITH, J.The proceedings in these “crown cases” or habeas corpus appeals have been most extraordinary and, as it seems to me, wanting in some of the necessary elements to entitle them to be called “legal proceedings.”
"When the special term of the Supreme Court convened on the 12th instant there was on the printed calendar six habeas corpus cases. Four of these were attempted appeals by the Attorney-General from the orders of the Judge of the First Circuit Court discharging the petitioners. The court ordered that the habeas corpus cases be taken up first. That of Osaki Mankichi was the first in order and the entry on the clerk’s minutes was made in that case. The clerk’s minutes also shows that counsel agreed to submit the other four cases with this one, the same question being involved in each case. The five cases were argued and submitted as one case. After the hearing the attorneys resisting the appeals filed an exception to one of the Justices of this court taking further part in the determination of the questions raised, alleging disqualification under the provisions of Section 81 of the Organic Act, said Justice as Circuit Judge having signed the indictment, presided at the trial and sentencéd three of the petitioners to the imprisonment from which they obtained release by the writs of habeas corpus *558sought to be reviewed in these proceedings. The majority have decided that this member of the court is not disqualified but instead of rendering the decision in the cases as argued and submitted have proceeded to divide the cases separating that of Ah Oi,. at whose trial the Justice did not preside, and rendered the • opinion in that case to be followed as a precedent in the other cases and to be filed, of course, “on the same day.” When, it is remembered that the identical question is raised in the cases in which the Justice sat as Circuit Judge and passed judgment as the one in which his associate entered judgment does-any good reason appear for this shuffling and separating the cases? To ask this question is to answer it. As an acrobatic-performance such proceedings might command my admiration but as the studied act of an appellate court in cases involving, life and liberty I am compelled to enter an earnest protest against it.
Was the objection to the qualification of the Justice well taken? To me it does not seem a debatable question. Circuit. Judge Gear decided that Circuit Judge Perry committed an error of law in sentencing persons accused of infamous crimes to years of imprisonment without an indictment by a grand jury and on the minority verdict of a petty jury. The Attorney-General affirms that Judge Gear was wrong and that Judge Perry was right and attempts to bring the cases before this court with the object of having this court decide that Judge Gear was wrong and Judge Perry was right. Now can Mr. Justice Perry approach the consideration of the question with the impartial and unbiased mind that the law requires and the petitioners have a right to demand of a judge? The majority of the court have answered this question in the affirmative. I think they are wrong. To call the cases civil proceedings and to say that they are not the same cases in which Judge Perry rendered judgment does not change the issue or befog the question. “No judge shall sit on an appeal, or new trial, in any case, in which he may have given a previous judgment,” is the language of the Organic Act. It is the “previous judgment” *559rendered by Circuit Judge Perry that is affirmed by tbe majority opinion.
Aside from this positive provision of tbe Organic Act tbe Justice would be disqualified under the general principles of the law, “No man shall be a judge in his own cause” is a maxim that is ancient in use and of universal application in Anglo-Saxon communities. “There is also a maxim of law regarding judicial action which may have an important bearing upon the constitutional validity of judgments in some cases. No one ought to be a judge in his own cause; and so inflexible and so manifestly just is this rule, that Lord Coke has laid it down that “even an act of parliament made against natural equity, as to make a man a judge in his own case, is void in itself, for jura naturae sunt immutabilia, and they are leges legum.”
“This maxim applies in all cases where judicial functions are to be exercised, and excludes all who are interested, however remotely, from taking part in their exercise. It is not left to the discretion of the judge, or to his sense of decency, to decide whether he shall act or not; all his powers are subject to this absolute limitation; and when his own rights are in question, he has no authority to determine the cause.” Cooley, Const. Lim., p. 506. Again the same distinguished author says, “The judge acting in such a case is not simply proceeding irregularly, but he is acting without jurisdiction. And if one of the judges constituting a court is disqualified on this ground, the judgment will be void, even though the proper number may have concurred in the result, not reckoning the interested party.” Id. p. 509.
Hr. Justice Bell speaking for the Supreme Court of New Hampshire said, “The most perfect integrity that can be in judges' is no hindrance why the parties, who have causes depending before them, may not challenge them, or except against them, and why they ought not of their own accord to abstain from hearing causes in which they may have some interest, or where there may be some just ground for suspecting them, and they themselves are obliged to declare the causes which may render them suspected, if the parties are ignorant of them.” Moses v. Julian, 45 N. H. p. 52.
*560■ Has the Territory the right to appeal from the order of the circuit judge discharging the petitioner? The majority opinion says: “Some courts hold that an appeal or writ of error lies in cases of this kind under a general statute, others that cases of this kind must be expressly mentioned.” I submit that the courts that hold that appeals may be taken in habeas corpus cases under a general statute may be counted upon the fingers of one hand and that the overwhelming weight of authority is squarely against such holding. The general rule is thus stated. “A judgment on habeas corpus proceedings, either discharging the prisoner or remanding him, cannot be reviewed on appeal or writ of error unless authorized by statute.” Church on Habeas Corpus (2nd ed.) Sec. 586a. The fact admitted in the opinion that “statutes have been enacted in England, Canada, most of the states and by the Congress of the United States allowing appeals in habeas corpus cases,” is a confirmation of the correctness of the above rule and an absolute refutation of the claim that an appeal can be taken in such cases under a statute allowing appeals generally and that an appeal in such cases can be taken under Sec. 1433 Civil Laws.
The citations of cases from the United States Supreme Court can scarcely be in point on the issues presented in the cases' at bar. The language of the statute permitting appeals to the United States Circuit Court is as follows: “Erom the final decision of any court, justice, or judge inferior to the Circuit Court, upon an application for a writ of habeas corpus or upon such writ when issued, an appeal may be taken to the Circuit Court for the district in which the cause is heard: * * * (Sec. 763 U. S. Revised Statutes.) Section 764 provides for an appeal from the final decision of the Circuit Court to the Supreme Court of the United States in certain cases and the following section provides for the disposition of the prisoner pending appeal and the method “for sending up to the appellate tribunal a transcript of the petition, writ of habeas corpus, return thereto, and other proceedings.
*561The majority find that section 1145 Civil Laws and section 1433 Civil Laws construed together give the right to appeal in habeas coipus cases in this Territory. Section 1145 reads in part “The judges of the several Circuit Courts shall have power in Chambers within their respective jurisdictions, but subject to appeal to the Circuit and Supreme Courts according to law, as follows:” Then follows twelve subdivisions enumerating subjects over which Circuit judges may take jurisdiction at Chambers. The eighth subdivision is “To issue writs of habeas corpus according to law.” Erom the use of the phrase “subject to appeal to the Circuit and Supreme Courts” in said section it might be inferred that the legislature intended to provide for appeals in habeas corpus eases but I insist that the mere expression of an intention to do a thing is not doing the thing. The legislature is presumed to have known that at the time section 1145 was enacted that what is now published as chapter 105 Civil Laws was a part of the law of the Islands: that this chapter is composed of thirty-five sections all relating to habeas corpus and that not one word is found therein expressive of an intention or purpose that appeals were allowable in such cases. With these lights before it the legislature made no specific provision for appeals in habeas corpus cases. No provision was; made for the disposition of the prisoner pending the appeal in-cases where he was discharged by the Circuit Judge. No provision was made for bringing the record before the appellate-court. So it seems that the majority really have only section-1433 allowing appeals generally on which to base the conclusion-that appeals lie in these cases. This is not sufficient.
As to the practice in this jurisdiction giving the right to-appeal I do not think the claim well founded. The citation of the cases from the earlier Hawaiian reports do not tend to substantiate this claim for the reason -that during a part of the “sixty years of the judicial history of these islands” appeals in habeas corpus cases were allowed by statute and in neither of' the two cases cited from the later reports was the question-*562■raised and under the established rules of practice the court was not expected to raise the question of its own motion so no inference can be drawn from these cases. We do not know what the decision would have been had the question been raised. During the reign of Kamehameha III an act was passed creating “The National Courts of Record.” Section 4 of Article-’1 of said act gives to the Circuit Courts power “to grant writs of habeas corpus.” Section 6 of Article 11 of the act reads in part as follows: “The Superior Court shall have full appellate jurisdiction, subject to the review and reversal of the Supreme Court, of all matters and controversies, civil, criminal or mixed, equitable or legal, public or private, from any inferior court, for causes of exception assigned, or when no exception has been assigned; or upon writs of error, certiorari, or habeas corpus allowed by either of the justices of the said Superior Court, upon subsequent assignment of error, or causes shown at Chambers.” * * * “Any of said suits, actions or controversies so cognizable before the Superior Court, whether entered originally or on appeal as aforesaid, may be carried to the 'Supreme Court of judicature created by the constitution and hereinafter methodized.” (Hawaiian Laws 1845 to 1856; Act IIL)
How long this practice- continued I am not advised nor do I know whether the legislature discovered that it was not a satisfactory practice to permit appeals from decisions of circuit judges in favor of personal liberty and repealed the- statute. But it seems to me that it is discrediting the wisdom of the early patriots of the country to hold that an appeal now lies under a general statute when the early law givers thought it necessary to specifically mention habeas corpus in order to- give an appeal.
Again the majority hold that there is no exception contemplated in section 14&3; that appeals lie in 'all cases from final decisions, etc., of circuit judges. A decision of a circuit judge at chambers adjudging a person guilty of contempt is a final decision. The- Supreme Court of the Republic in 1898, -after *563this statute, (section 1433) was in force, said, “We have no statute authorizing an appeal in matters of contempt.” (In re Davis, 11 Haw. 598.) This is one exception and one final decision from which no1 appeal would lie under this section. The effect of the majority opinion is to overrule this decision.
It seems that the majority over-looked an important provision in section 1434 which provides that “every such appeal shall be taken on the record.” So admitting that an appeal will lie in these cases it must be taken in such a manner as to bring the record before this Court for review. Where is the record in these cases? The decision of this Court on an appeal case to be binding must be based upon a record. There is mo record in this case unless we call the briefs and exceptions to the qualification to one of the justices a record. So far as my experience goes this Court has been rather exacting in requiring the i’ecord in appeal cases to be brought properly before it. Only recently the Court constituted of the present májority and “a member of the Bar” said relative to a deed that had been incorporated into the body of a bill of exceptions, allowed and certified by the Circuit Judge, “This deed has not been made a part of the bill of exceptions or of the record in this Court, and therefore cannot be considered by us on the exceptions. (Keliiilihune v. Vierra, ante 29-30.) Are we now going to relax the rule and say to1 any enthusiastic counsel that may be displeased with the decision of the Circuit Judge that he can grab up the records of the Circuit Court and bear them into this and we will consider them as a “record on appeal” ?
I have seen the files of the Circuit Court in these cases. Not one of them bears the file mark of the Supreme Court or have been properly brought into this, Court or are a part of the records of this Court. This, however, seems to- be no> obstacle to the majority rendering judgment and proceeding as though the cases were properly in this Court. This is one illustration of the many embarrassments that may result from the Court’s interpretation of this statute on appeals.
What disposition is to be made of the prisoner pending appeal *564where the Circuit Judge orders his discharge? It may not be convenient to call a special session of the Supreme Court every time the Circuit Judge discharges a prisoner that the Attorney-General thinks ought to be remanded. Long months may intervene between the discharge and the hearing on appeal, and it may happen in some cases that the appellate court might sustain the Circuit Judge, — is the prisoner to remain in jail pending the appeal?
Then again, are we to countenance and approve the practice adopted by the Attorney-General, in these cases, of re-arresting the prisoners after their discharge and holding them in confinement until his appeal is decided? If so, it seems that the writ of habeas corpus had better be “repealed” altogether. Under such practice “the great writ of liberty,” in this jurisdiction, is a “false, alarm.”
I am thoroughly convinced that the majority have no power to render a valid judgment in this case for the reasons given, to wit, (1) that one of the majority is disqualified; (2) that no appeal lies in habeas corpus cases; (3) that there is no record before the court on which a valid judgment can be based. Holding this view I can scarcely treat the majority opinion as a decision of the court but considered as a well written dissertation on an interesting question of law I will say that I have an absolute answer to every argument therein advanced, that is, I am of a different opinion. The reasons for this opinion are fully set out in the opinion of the court in the case of Ex parte Edwards, ante, pp. 32 to 49, and it will be unnecessary to reiterate them here.
I am not unmindful of the fact that in forming this opinion it was necessary to reach another conclusion involved in the determination, that is, that those who were responsible for the administration of the law in these islands between July Ith, 1898, and June 14, 1900, committed grave errors in charging, trying and convicting persons accused of infamous crimes in a manner unknown to the Oonstitution and laws of the United States. I am willing to concede to them an honest purpose and *565unanimity of belief. The majority say, “The view that the Constitution did not extend here in all its fullness whatever might be true of some of its provisions, seems to have had the support of two former members and two present members of the court and of a former Circuit Judge and one member of the bar, and to some extent at least of two other members of the bar, sitting as substitutes, while the contrary view has had the support of but one member of the court and of one Circuit Judge sitting as a substitute.” I insist, however, that if the question is to be determined by a “show of hands” that the circle ought, in all fairness, to be extended beyond the limits prescribed by the majority.
The majority base the conclusion in this case on the “views adopted in the Peacock case and the first Edwards case,” and the claim is made that these views are supported to a “remarkable degree” by the recent decisions of the United States Supreme Court in the “Insular Oases.” It is pleasant to note the cheerfulness produced by this discovery, but I am inclined to the belief that the claim is not well founded and that the enthusiasm of the majority to find confirmation of “the reasoning in the Peacock case” prevented the exercise of the powers of discrimination displayed on other occasions and on other subjects.
The reasoning in the Peacock case is based principally on the case of Fleming v. Page, 19 How. (U. S.) 603, and this case the Supreme Court of the United States say was “practically overruled” by Cross v. Harrison, 16 How. 164.
“From this resume of the decisions of this court,” says Mr. Justice Brown, “the instructions of the executive departments and the above Act of Congress, it is evident that from 1803, the date of Mr. Gallatin’s letter, to the present time, there is not a shred of authority, except the dictum in Fleming v. Page (practically overruled in Cross v. Harrison), for holding that a district ceded to and in -the possession of the United States remains for any purpose a foreign country.” De Lima v. Bidwell, 21 Sup. Ct. Rep. 752.
*566Again, the author of the majority opinion in this case in closing the dissenting opinion in the second Edwards case, said, “Since the foregoing was written, the text of the decision in Goetze v. United States, 103 Fed. Rep. 72, has been received. It is strongly confirmatory of the above reasoning and the reasoning in the Peacock case above referred to.” Ante, 76. This Goetge case was decided by the United States Circuit Court for the Southern District of the State of New: York. An appeal was taken from this decision to the United States Supreme Court. The Goetge case was one of the “Insular Cases” recently decided. What did the United States Supreme Court do with this case that was so “strongly confirmatory of the reasoning in the Peacock case?” Reversed it. (21 Sup. Ct. Rep. 743.)
With Fleming v. Page overruled and Goetze v. United States reversed, it seems that the “reasoning in the Peacock case” remains with us little less than a disembodied shadow, thin substance on which to hang the decision in the case at bar.
The decision in the De Lima case settled one question squarely, that is, that when possession was delivered under the Newlands resolution the Hawaiian Islands became domestic territory of the United States and was not a foreign country for any purpose. The theory of “inchoate or partial annexation” finds no support in that decision. The question raised in the case was whether the island of Porto Rico' after the ratification of the treaty of cession was “foreign country” in the meaning of the Dingley tariff law authorizing the collection of customs duties on goods imported from a “foreign country.” The court said that when the island ceased to be foreign it became domestic and it ceased to be foreign immediately on the exchange of ratifications of the treaty of cession and the delivery of possession thereunder. In the Bidwell case the question was whether or not after the passage of the Foraker Act, providing for a temporary government for the island it then became a part of the “United States” within the provision of the Constitution requiring all “duties,” etc., to be uniform throughout the United States. The court held that the island was “a territory appur*567tenant and belonging to the United States, but not a part of the United States within the revenue clauses of the Constitution.”
The reasoning by which the court arrived at the conclusion and judgment announced in those cases is interesting and instructive, and the individual opinions of the judges are replete with learning but the important fact must not be lost sight of, that all of the questions raised and passed upon in those cases related to the revenue clauses of the Constitution — questions that affected property only. That no question was raised relative to the fundamental safeguards to life and liberty contained in the 5th and 6th Amendments. These last are of a different character and cannot be considered with the former unless life and liberty are placed on a commercial basis. This cannot,be done under the Constitution and laws of the United States. This is a distinction that the court failed to make in the first Edwards case, a case involving liberty, where the decision was based on the “reasoning in the Peacock case/’ a case involving a commercial question pure and simple.
Judge Rrannon of the Supreme Court of West Virginia says, “Strictly speaking, we can assign no limit otherwise to the power of Congress over the territories except that found in the Fifth and Sixth Amendments, tut they teajr sway wherever the flag waves over territory within the civil jurisdiction of the United States. Those amendments tie the hands of Congress wherever it makes laws for civil government (the italics are mine). Justice Brewer so declared. The Constitution stretched over these islands the moment they became territory of the nation to give them freedom, just as the Thirteenth Amendment abolished slavery at once in Alaska, as held in In re Sah Quah (31 Fed. Rep. 327). The proclamations of' President HcXinley have declared and admitted these principles of free government as the right of Filipinos and Porto. Ricans. He so directed the military commander and the commissioners sent to the Philippine Islands. So this governmental action concedes this doctrine.” Brannon, Fourteenth Amendment, pp. 36 and 37.
*568The discussion of the question whether the Constitution came to these islands ex prdpi’io vigore with the acceptance of the cession to the United States, or by the express terms of the Newlands resolution, or whether it came in whole or in part only, may be interesting and profitable but is not altogether pertinent to the issue presented. The question ought to be determined by the language of the Resolution independent of the fact whether the Constitution came or remained at home.
By the terms of the resolution certain municipal legislation of tbe Hawaiian Islands “not inconsistent with the Constitution of the United States” was continued in force until such time as the Congress of the United States should otherwise determine. Congress must have had some purpose in placing this phrase in the resolution. It is possible that it was inserted out of abundance of caution. It is possible that the representation had been made to Congress that the government of the Hawaiian Islands was “the best on earth;” that American civilization was firmly established here and that the laws and institutions were modeled after American laws and institutions. It is possible that these representations were believed and relied on by the author of the resolution or the committee that reported it but out of abundant caution to avoid any possibility of continuing in force any of the Hawaiian laws that were “contrary to the Constitution of the United States,” if there were any, this phrase was inserted. This it seems was the clear purpose and intent of Congress. If this interpretation is correct it follows that any laws of the Hawaiian Islands that were contrary to the Constitution of the' United States were annulled and abrogated by the resolution no matter whether the Constitution was here or elsewhere. It setems to be conceded that the provision of the Hawaiian law authorized the Circuit Judges to perform the functions of a grand jury and for nine jurors to return a verdict are now contrary to the Constitution. If these laws are now contrary to the Constitution they were so on July 7th, 1898, and were abrogated and annulled by the resolution. The Constitution *569has not changed. It is the same now as on the 7th day of July, 1898.
The argument advanced at the hearing that it cost “a great deal of money” to convict these petitioners and that to hold their conviction illegal would mean a general jail delivery is unworthy of serious consideration. If they were illegally convicted they are entitled to their freedom and those who were responsible for the error ought to bear the burden. It was pointed out how such results could have been avoided in Ex parte Edwards, (see ante, pp. 47 and 48).
It is common knowledge that the provision of Sec. 83 of the Organic Act, authorizing “Grand Juries to be drawn in the manner provided by Hawaiian statutes for drawing petty juries” cannot be and has not been enforced for the reason that when the parts of the Hawaiian statutes providing for drawing petty juries annulled by the Organic Act were stricken out not enough remained to provide a method for drawing a jury of any kind and that since June 14th, 1900, grand and petty juries have been drawn under the common law powers of the Circuit Courts and in the manner provided by the common law. The prison is being filled with convicts indicted and convicted by juries drawn in this manner and no question as to its legality has been raised. The Circuit Courts during the time these petitioners were convicted had the same powers in this respect that the Circuit Courts have exercised since June 14th, 1900.
The “appeals” should be dismissed and the decision of the Circuit Judge affirmed.