concurring.
I agree that it is not necessary to decide the habeas corpus proceeding on the merits. I arrive at this conclusion by the reasoning I set forth below, and for which purpose I find it essential to point out certain facts.
In this habeas corpus proceeding petitioner Leonides Diaz Diaz raised the issue of the nullity and legal nonexistence of .Act No. 53 of June 10, 1948 — 33 L.P.R.A. § 1471 — under •which she was sentenced to two to ten years in the penitentiary. We issued the writ on May 21, 1956. The hearing took place on June 12, 1956 and both parties were heard. 'On July 10,1957, petitioner requested that bail be fixed while the case was pending. Once the Prosecuting Attorney, who opposed in writing, was heard, an order was issued, on July 18, 1957, setting petitioner temporarily at liberty on bail, until the case was decided on the merits. The bail bond as :'it was approved by the Court included, for all obligation, the appearance of petitioner in Court and that she would ,at all times abide the orders and pronouncements that may be rendered, that she would be present when the judgment be entered, and that she would acquiesce in its performance, whether it be rendered by the lower or the appellate court. Besides the obligation afore-mentioned, petitioner, as a matter of fact, was temporarily left in the enjoyment of absolute liberty without any other restriction. On December 23, 1957, the Court, on its own initiative, entered the following order:
“Defendant is hereby ordered to send to the Secretary of this Court a certified copy of the pardon granted to petitioner ■by the Honorable Governor of Puerto Rico. A term of thirty *989days, counted from today, is granted to the parties to file complementary briefs in which they shall argue the nature and effects, if any, which said pardon may have upon the issues raised and upon the final determination of this case.”
In compliance with the above order both parties presented their respective positions. Petitioner reported the fact that she was notified by two communications of a pardon granted by the Governor, Hon. Luis Muñoz Marín, on July 19, 1957; the first one dated July 24, 1957, was sent to the Industrial School for Women, through its Directress, and the second one, dated July 29, was addressed by the Directress to the petitioner at Barrio Santana of Areeibo. Notwithstanding this, petitioner maintains on appeal to this Court that the pardon does not affect in a legal way the issues which have been raised, nor the final disposition of the habeas corpus proceeding since said pardon does not have any validity whatsoever without her acceptance, and therefore, it cannot render this case moot. She then affirms that she will not accept the pardon since it would imply that she was guilty of the crime for which she was sentenced, a culpability which she never admitted and does not admit now, for which reason her refusal to accept the pardon constitutes for her a matter of conscience and human dignity. That if they force her to accept it, thereby rendering the habeas corpus proceeding moot, it would constitute a violation of the constitutional rights guaranteed by the Constitution of the Commonwealth of Puerto Rico, among them, a violation of the right to freedom of conscience and of thought. Finally, she states that the pardon does not protect her rights as it does not blot out the criminal record of the crime for which she was sentenced, which would be the case if the sentence is set aside by the pending habeas corpus proceeding.
On the other hand, the Prosecuting Attorney assumes the position, citing the cases of People v. Albizu, 77 P.R.R. 843 and Emanuelli v. District Court, 74 P.R.R. 506, that the par*990don blots out forever the conviction of the offense committed, so that pardonee is thereafter as innocent as if he had never been convicted; that the defendant enjoys at the present moment an absolute liberty by virtue of the full and unconditional pardon granted her; that the effect of the pardon is to obliterate the cause and with it any bond posted by petitioner and that if she relies upon said pardon to enjoy the liberty granted by it she has accepted it, for her imprisonment being legal, an allegation of coercion does not lie for this motive, upon her accepting the pardon. Finally, he argues that petitioner being at liberty and not being restrained thereof, there is no practical use whatsoever in deciding the proceeding. The Prosecuting Attorney cites local authorities as well as decisions of other courts — among them the case of In re Callicot, 4 Fed. Cases 1075 (1870), which dealt with a habeas corpus proceeding wherein a pardon was granted — concerning the historic principle that a habeas corpus proceeding does not lie when the person is not actually held in restraint of his liberty; and as it was said in López v. District Court, 40 P.R.R. 478, the writ of habeas corpus is essentially and historically a proceeding to obtain the liberty of a person under custody.
The issue arising in this case, given the facts found therein, is not confined to the well-known classic principle that neither the issuance nor the decision of a habeas corpus proceeding will lie when the person is not held in restraint of his liberty, excepting, of course, those cases in which he is set at liberty on bail. Once we considered petitioner’s right to liberty and issued the writ while she was under custody, decreeing thereafter that she remain at liberty until we determine her rights, any consideration as to whether it was necessary to keep her under physical restraint in order for the proceeding to lie, disappeared. The issue created regarding the principle afore-mentioned and which does not occur in our prior decisions nor in the citations presented by *991the Prosecuting Attorney, including the case of In re Callicot, supra,1 is that upon considering in this case whether the case should be decided on the merits or not because of the absence of any restraint of petitioner’s liberty, it is impossible to determine as far as the facts are concerned, whether petitioner is at liberty because of the order of this Court dated July 18, 1957, and the bond furnished, or whether she is so because of the pardon granted to her. The Prosecuting Attorney seems to assume that petitioner avails herself of the pardon to enjoy her liberty and therefore has accepted it. But the record does not justify such an inference, not only because of petitioner’s position rejecting it but also because it does not present facts which will warrant an implied acceptance thereof. On the other hand, the pardon granted did not bring about in fact the absence of restraint of liberty enjoyed by petitioner. In the previous circumstances the controversy as to whether or not the case has become moot, places us before a strict legal problem — and not of fact on the basis of the material granting of the pardon — which is solved by the legal effect of the pardon on the state of liberty enjoyed by petitioner when she was notified of it. By virtue of this legal effect petitioner’s liberty, which was one of fact only, temporary and subject to termination, became a state of liberty at law, permanent and irrevocable. There would be no reason to decide the proceeding regarding petitioner’s final liberty, which is the only relevant issue in proceedings of this nature, and a sentence from this Court could not grant petitioner a more absolute and permanent liberty.
Yet, the problem does not end here, since petitioner has raised in this proceeding the question of the validity of the pardon as a question of law, because of the absence of the *992condition of acceptance, wherefore she denies it any legal effect. Undoubtedly, her argument is based upon authorities of great weight. See, for example: United States v. Wilson, 8 L. Ed. 640, 7 Peters 32 U. S. 150; Burdick v. United States, 236 U. S. 79; Ex parte Prout, 86 Pac. 275, 277 (Idaho) ; Weigel v. McCloskey, 166 S. W. 944 (Ark.) ; Chapman v. Scott, 10 F.2d 156; 10 F.2d 690 (C. A. 2), cert. denied, 270 U. S. 657; Carpenter v. Lord, 171 Pac. 577, 580 (Oregon) ; People v. Frost, 117 N. Y. S. 524, 528 (N. Y.) ; Annot., 52 A. L. R. 835; Fordham Law Review 255-269, vol. 6; 26 Col. L. Review 624; cf. Biddle v. Perovich, 274 U. S. 480.
I do not intend to engage myself in an elaborate discussion of the issue thus raised, and certainly frequently debated. This Court has rendered pronouncements about the effects of an absolute and unconditional pardon on the person thus pardoned, which in my opinion render a discussion futile. The first pronouncement regarding acceptance as a condition to an executive pardon under the Federal Constitution- was made in 1833 by Chief Justice Marshall in the case of United States v. Wilson, supra. Perhaps it is convenient to point out the legal issues and the circumstances under which the pronouncements were made, if we consider that a long line of decisions has thereafter relied thereon. According to the facts, Wilson was accused of several offenses to which he pleaded not guilty and a verdict of guilty was rendered against him as to one of the offenses and he was sentenced to death. Later, Wilson withdrew the pleas of not guilty to all the indictments against him and pleaded guilty. . Pending the execution, President Jackson granted him a pardon for the crime for which he was sentenced to death, with the express stipulation that the pardon should not extend to any other judgment which may be had or obtained against him in any other case now pending before the court wherein, he may stand charged. Months later, the Attorney of the *993United States moved the court for sentence upon Wilson, but the court wanted to inquire as to the effect of a certain pardon, understood to have been granted since the conviction of this indictment. The District Attorney made the point that the defendant could derive no advantage from the pardon without bringing the same judicially before the court by plea, motion or otherwise. The judges were thereupon divided in opinion on this point and ordered the question to be certified to the Supreme Court. Mr. Chief Justice Marshall said: (7 Peters 159).
“... Whether it [pardon] could avail without being- pleaded ... is substantially the same question with that presented in the second point, which is, ‘that the prisoner can, under this conviction, derive no advantage from the pardon, without bringing the same judicially before the court by plea, motion or otherwise.’
“The Constitution gives to the President, in general terms, ‘the power to grant reprieves and pardons for offenses against the United States.’
“As this power had been exercised from time immemorial by the executive of that nation whose language is our language, and to whose judicial institutions ours bear a close resemblance; we adopt their principles respecting the operation and effect of a pardon, and look into their books for the rules prescribing the manner in which it is to be used by the person who would avail himself of it.
“A pardon is an act of grace, proceeding from the power intrusted with the execution of the laws, which exempts the ■individual on whom it is bestowed from the punishment the law inflicts for a crime he has committed. It is the private, though official act of the executive magistrate, delivered to the individual for whose benefit it is intended, and not communicated officially to the court. It is a constituent part of the judicial system that the judge sees only with judicial eyes, and knows nothing respecting any particular case, of which he is not informed judicially. A private deed, not communicated to him, whatever may be its character, whether a pardon or release, is totally unknown and cannot be acted on. The looseness which *994would be introduced into judicial proceedings would prove fatal to the great principles of justice, if the judge might notice and act upon facts not brought regularly into the cause. Such a proceeding, in ordinary cases, would subvert the best established principles, and overturn those rules which have been settled by the wisdom of ages.
“Is there anything peculiar in a pardon which ought to distinguish it in this respect from other facts?
“We know of no legal principle which will sustain such a distinction.
“A pa/rdon is a deed, to the validity of which delivery is essential, and delivery is not complete without acceptance. It may then be rejected by the person to whom it is tendered; and if it be rejected, we have discovered no power in a court to force it on him.” (Additional emphasis.)
Citing English authorities all to the effect that a pardon ought to be pleaded, Mr. Chief Justice Marshall concluded that the pardon, not having been brought judicially before the lower court by plea, -motion or otherwise, it could not be noticed by the judges. The doctrine, sometimes reasoned out in different ways — that acceptance of the pardon constitutes an intrinsic element of the same essential to its validity and legal effect — is based upon the pronouncement emphasized by me and which recurs again and again in numerous decisions, although it is interesting to note that such a proposition was not presented nor decided as a matter of fact in the Wilson case. The pardon had been accepted as a question of fact. This contention was not presented nor decided in those terms in the Callicot case either.
It was in Burdick v. United States, supra, (1915), where it was actually decided in unequivocal terms, and as a legal principle, that a pardon which has not been accepted even though absolute and unconditional, is not valid and has no legal effect whatsoever. The Court relied entirely upon the pronouncement made by Mr. Chief Justice Marshall — the private act of the executive which requires the delivery and *995acceptance of the pardon — although the concept of acceptance was developed far beyond that which appears in the pronouncement itself.2
Twelve years later, in 1927, the case of Biddle v. Perovich, supra, was decided wherein a capital punishment was commuted by the President for another of life imprisonment.3 Expounding the contention of the Solicitor General for the United States, that in no case was the acceptance of an unconditional pardon necessary and that it had never been adjudged as such before the Burdick case, supra; that the English cases turn on the necessity that the pardon should be pleaded, but that when it was brought to the judicial knowledge of the Court “. . . and yet the felon pleads not guilty and waives the pardon, he shall not be hanged, . . . *996(English citation by Jenkins, 129 Third Century, Case 62), Mr. Justice Holmes speaking on behalf of an unanimous Court said:
“We will not go into history, but we will say a word about the principles of pardons in the law of the United States. A pardon in our days is not a private act of grace from an individual happening to possess power. It is a part of the Constitutional scheme. When granted it is the determination of the ultimate authority that the public welfare will be better served by inflicting less than what the judgment fixed. [Citation] Just as the original punishment would be imposed without regard to the prisoner’s consent and in the teeth of his will, whether he liked it or not, the public welfare, not his consent, determines what shall be done...”
I would rather believe as does Mr. Justice Holmes, that the power of executive grace of our Governor is a function of the people’s sovereignty, entrusted to him, under the constitutional structure we adopted, as a prerogative of his high office which he holds without the intervention of any extraneous dictates whatsoever, and when he exercises this function, it carries with it the determination, as Holmes points out, that the public interest has thus been better served. Constitution, Art. I, §§ 1, 2; Art. IV, ⅜ 4. Since the function exercised by the Executive under the constitutional scheme is one of public power for the general welfare and not a private act, I am inclined to believe that the acceptance or non-acceptance of an absolute pardon, which does not impose any condition whatsoever to be accepted or complied with by the pardonee in return for the same, as a requisite for its validity and legal effect, should be out of consideration.
But there remains another point, perhaps the most sensitive one. Petitioner contends, following a line of authority, that a pardon does not wipe off the guilt, that its voluntary acceptance implies the acceptance of a guilt which she rejects, and that under these circumstances to force it on her *997against her will is to coerce her conscience. The decisions show that, apart from the description given by Mr. Chief Justice Marshall, this has practically been the other consideration behind the theory of the acceptance of a pardon even though it be unconditional, to give it effect. It has been said that to force a pardon on a person would oblige the latter to accept the guilt although he be innocent. As the Supreme Court stated in Burdick, supra, “. . . Circumstances may be made to bring innocence under the penalties of the law. If so brought, escape by confession of guilt implied in the acceptance of a pardon may be rejected, — preferring to be the victim of the law rather than its acknowledged transgressor — preferring death even to such certain infamy. This, at least theoretically, is a right and a right is often best tested in its extreme. Tt may be supposed,’ the court said in United States v. Wilson (p. 161), ‘that no being condemned to death would reject a pardon; but the rule must be the same in capital cases and in misdemeanors. .
There exist two lines of authority in open conflict, one which holds that the pardon only reaches the punishment, relieving the pardonee from serving his sentence and of the legal effects thereof; and another which holds that it also reaches the guilt, blotting out every vestige of the commission of a crime. In Emanuelli v. District Court, 74 P.R.R. 506, 513, we adopted one of these two criteria and we said:
“... Pardon blots out the very existence of his guilt so that in the eyes of the law he is thereafter as innocent as if he had never committed the offense...”
See: Downs v. Porrata, 76 P.R.R. 572. In harmony with the concept which I have of the function of the executive grace under our Constitution, which would not require the acceptance of a total pardon without conditions, I adhere also to the previous pronouncement which in my opinion should continue to be the norm in this jurisdiction as it is *998in many others. Cf. Commonwealth v. Cain, 28 A.2d 897 (Pa.) ; Diehl v. Rodgers, 32 Atl. 424 (Pa.) ; Marsh v. Garwood, 65 So. 2d 15 (Fla.) ; Taran v. United States, 266 Fd.2d 561 (C. A. 8); People v. Hardwick, 269 Pac. 427 (Cal.) ; State v. Swenson, 76 A.2d 150 (Md.) ; Ex parte Anderson, 229 P.2d 633 (Ore.) ; Ex parte Garland, 71 U. S., 4 Wall, 333,; In re Ringnalda, 48 Fed. Supp. 975 (Cal.) ; United States v. Palermo, 17 F.2d 534 (C. A. 2) ; In re Stephenson, 10 So. 2d 1 (Ala.).
The absolute pardon granted in this case having the effect of blotting out petitioner’s conviction and her guilt, the reason for the other basis which would render necessary its acceptance disappears, as well as the sensitive problem of conscience which petitioner alleges.
In view of the foregoing argument, I understand that the pardon was valid and that it became legally effective as soon as it was notified to petitioner and the petitioner having obtained her full and irrevocable liberty by virtue of the effect which the said pardon had at law, it is not necessary, as I said before, to render a judgment which could never grant petitioner a greater liberty.
According to the facts found therein the case dealt with the initial phase of whether or not a habeas corpus proceeding would lie for a person who was already pardoned and who according to the judge’s words if he remained in prison did so of his own present will and that he was then free to leave when and to whatever place he wanted.
It is possible that the facts in this case provide an explanation therefor. Burdick is the City Editor of a newspaper. He declined to testify before the Grand Jury as to the sources of information concerning certain articles published in his paper regarding frauds committed against the Custom House and which the Grand Jury investigated, alleging that his declaration might tend to incriminate him. Thereupon he was remanded to appear at a later day and he was handed then a pardon which had been obtained for him from President Wilson. This document set up as facts that Burdick had refused to testify on the ground that his testimony would tend to incriminate him, that the district attorney desired to use his testimony for the purpose of determining whether any employee of the Treasury Department at the Custom House had been betraying information obtained by him in an official capacity, and in the belief that Burdick would again refuse to testify on the ground of incrimination, the President granted him a full and unconditional pardon for all offenses against the United States which Burdick had committed or might have committed in connection with the afore-mentioned articles and in connection with any other article or matter concerning which he may be interrogated, thereby absolving him from the consequences of such criminal acts. Burdick declined to accept the pardon or testify, insisting that it might tend to incriminate him. He was punished for contempt and committed to custody until he decided to testify. The motives behind this pardon and other circumstances around this case may perhaps explain certain reasonings by Mr. Justice McKenna. (236 U. S. p. 90.)
The power of the President to commute a sentence falls under the general power to grant pardons. The Federal Constitution, different from ours, does not grant this power separately.