DisseNtiNG Opinion op
Mr. Justice Sulzbacher.This is an application for a writ of habeas corpus by Ho*561bart 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 *563supplementary 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, *565that 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 *567a 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 render*569ed 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-*571for 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 *573to 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.
*575‘ ‘ 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 *577readily 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 *579been 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, *581kindly 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 inappli*583cable, 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 *585States 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 *587of 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:
*589“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).
*591In 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, *593did 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 *595was 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 *597officials 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:.
*599“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.”
*601In 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 *603expressions 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 *605decision, 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 *607are 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 *609these 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.