Mr. Justice MacLeary
delivered the following opinion of the court:
[509] On the 4th of this month Hobart S. Bird made application to Hon. José S. Quiñones, Chief Justice of the Supreme Court of Porto Pico; for a writ of habeas corpus, alleging that he had been arrested on said date by an officer of the District Court of San Juan and detained in custody, in accordance with a certain commitment issued by the said district court, under a judgment of the Supreme Court of Porto Eico rendered on the 27th of 'February previous, in the case of the People of Porto Rico v. Hobart S. Bird, attaching a copy of the said judgment to his application. The Chief Justice granted the writ making it returnable before the full bench on the 6th instant, and at the request of the applicant the hearing was set for the 12th, he being in the meantime released on bail. On the hearing the case was taken under advisement until to-day.
Petitioner alleged that he was unlawfully detained and deprived of his liberty by José Berrios, warden of the prison la “Cárcel,” corresponding to the court jail, in Puerta de Tierra, a suburb of San Juan, in violation of the Constitution of the United States, and the laws thereof, setting forth the following grounds:
“1. Defendant was prosecuted under section 265 of the Penal Code of Porto Rico in force in Porto Rico at the time of the American occupation, and which by the express enactment of the Congress of the United States, i. e., the Organic Act of April 12, 1900, and particularly section 8 thereof, was applied to Porto Rico and continued in full force and effect therein.
‘1 That said article 265 at the time of the commission of the alleged offense by the defendant was absolutely null and void, being incompatible with the institutions of the American Government, and because it did not apply to the case of circumstances which were made the basis of this proceeding against defendant.
“2. That said article 265 made the offense described therein an ‘infamous crime/ punishable by arresto mayor.
[511] “For tliis reason defendant sbonld not have been held to answer for tbe alleged offense except upon tbe presentment or indictment of a grand jury.
“3. Defendant was denied tbe right of trial by a petit jury as guaranteed bim by tbe United States Constitution.
“4. Tbe proceedings in tbe district court were not due process of law as provided for and understood in tbe Constitution of tbe United States.
“5. In tbe trial of defendant in tbe district court the court was illegally constituted in this, that by the provisions of section 33 of tbe said act of Congress of April 12, 1900, i. e., the Organic Act, it is provided that tbe judges of the district courts shall be appointed by the Governor by and with the advice and consent of the Executive Council. It appears from the record herein that at the time defendant was tried and convicted in tbe said district court one of the regular members thereof, to wit, Judge Morera, declined to sit in the case, and thereupon he was substituted by Sr. Don Angel García Yeve, who was appointed by the Governor as a special district court judge, but it does not appear that this nomination was approvd by the Executive Council, nor that the office of Judge Morera had become vacant by death, resignation, or legal termination of his appointment. For this reason all the proceedings had and held in the said district court and thereafter in the Supreme Court were without jurisdiction.
“6. The proceedings under which' defendant was convicted in the district eourt were not due process of law. It appears from the records in this case that defendant was charged to have committed the alleged offense on the thirteenth day of February, 1902. The second trial of defendant in which he was convicted occurred in October, 1903.
‘ ‘ On July 1, 1902, the new Law of Criminal Procedure took effect, and it appears from the records herein that no proceedings seem to have been taken under that law except the arraignment, pleading not guilty and setting the date for trial. It appears from the record that no information was filed herein against the defendant by the prosecuting attorney in open court in the name of the People of Porto Rico, and verified by his affidavit that the information was based upon the testimony of witnesses sworn before him. The information or accusation herein does not clearly set forth an offense as required by law. The judgment rendered by the district court was irregular and- void.
“7. Defendant was entitled to a jury trial in accordance with the [513] provisions of chapter 10 of the Penal Code, which took effect July 1, 1902.
“8. In the determination of this case by the Supreme Court of Porto Rico the latter refused to consider any points of law or error except those presented by defendant or his attorney, although prior to such sentence and judgment of the Supreme Court the latter had been created by an act of the Legislative Assembly of Porto Rico, approved March 12, 1902, a court of appeals, which said act provided that in its deliberations and decisions in all cases, civil and criminal,, said court shall not be confined to error in proceeding or of law only as are pointed out and saved by the respective parties to the suit or set forth in their briefs and exceptions, but in furtherance of justice the court may also take cognizance of all the facts and proceedings in the case as they appear in the record, and likewise consider the merits thereof so as to promote justice and right and to prevent injustice and delay.
“9. The judgment and sentence of the Supreme Court is irregular and void for the various reasons above enumerated.
“By reason of all of which the Supreme Court erred in rendering judgment and sentence against defendant in said cause, greatly to the prejudice and contrary to the rights of the defendant. ’ ’
Petitioner further alleged, that said arrest and detention is unlawful because of the illegal and void proceedings mentioned, and because of the absence of jurisdiction of the cause upon the part of the District Court of San Juan and the Supreme Court of Porto Eico, for which reasons he prayed that a writ of habeas corpus might be issued in his favor, and that he might be discharged from imprisonment. These grounds will be considered seriatim.
1. The first claim alleging that article 265 of the old Penal Code under which defendant was convicted was absolutely null and void, being incompatible with the institutions of the American Government, and because it did not apply to the facts of the case, will be the first considered. This section had been the law of Porto Eico for many years previous to the American occupation, and all during the military government, and when civil government was established by the [515] act of Congress passed on the twelfth, day of April, 1900, it was continued in force by section 8 of said act, which, omitting the provisions which do not apply to this case, reads as' follows :
“That the laws and ordinances of Porto Rico now in force shall continue in full force and effect, except as altered, amended, or modified hereafter or as altered or modified by military orders and decrees in force when this act shall take effect, and so far as the same are not inconsistent or in conflict with the statutory laws of the United States not locally inapplicable, or the provisions hereof, until altered, amended or repealed by the legislative authority hereinafter provided for Porto Rico or by act of Congress of the United States.”
It is not contended that this law had been altered, amended or modified by military orders or decrees in force on the 1st of May, 1900, when the Organic Act took effect, nor is it contended that this statute is inconsistent or in conflict with the statutory laws of the United States, not locally inapplicable, or in conflict with the provisions of the Organic Act, nor that the same has ever been altered, amended or repealed by the legislative authority of Porto Rico. It is simply alleged that such an act is incompatible with the institutions of the American Government.
The presumption arises from the oral argument of applicant’s counsel that he considers this law to conflict with the first amendment to the Constitution of the United States, guaranteeing freedom of the press. But such is not the view taken by this court. That article of the Constitution reads as follows:
“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech or of the press; or the right of the people peaceably to assemble and to petition the government for a redress of grievances.”
It is confidently believed that no one, under these provi[517] sions of the Constitution, even if it should be held to be in force on this island, conld claim that be was thereby licensed to print any and everything which he might choose to publish in regard to persons or officers, or judges of courts in their public or private relations.
In other words, it is the liberty of the press, and not unbounded license, that is intended to be protected by this provision of the Constitution.
This court carefully considered this matter in the case of Julio Medina, which was decided on the 26th of March, 1902. It was decided in that case that, inasmuch as the penal law under which the defendant had been prosecuted had been abrogated by force of a subsequent act of the legislature, which was considered as a legislative pardon, that the defendant would have to be liberated, and the judgment rendered against him annulled. But Medina was not accused of publishing a libelous article, or of abusing the liberty of the press. The facts of his case show that the offense charged against him was publishing a newspaper without having previously secured a license from the, municipal authorities. This was the old Spanish law, which was, if not in conflict with the Organic Law of the Island, repealed by an act of the Legislative Assembly, passed on the 27th of February, 1902, entitled “An act to define the rights of the People” and in its third article providing that liberty of speech and freedom of the press should not be abridged and that every person in Porto Bico should have the liberty of speaking and writing and publishing everything which he pleased, upon any subject whatever, being responsible, however, for'all abuse of the said liberty, and which law went into force immediately upon its approval.
It is not perceived from an examination of the law itself, nor from a consideration of the arguments adduced by counsel on the trial, that this article 265 of the Spanish Penal Code is in any respect incompatible with American institutions, [519] and it certainly applies to the circumstances of the case, which were made the basis of the proceeding against the defendant. To make this evident it is only necessary to read the law in connection with the article which he is convicted of publishing and which is set ont in the opinion of this court, affirming the sentence of the court below.
2. The second claim of the applicant, that the offense described in article 265 of the old Penal Code, is an infamous, crime, and that therefore the defendant should not have been held to answer for it, except upon the presentment of an indictment by a grand jury, cannot be considered as well taken. In the first place the crime described and sought to be punished in article 265 of the Spanish Code by arresto mayor (greater imprisonment) is not an infamous crime, not being one on the conviction of which a defendant would be punished by a corporal penalty, but only punished by a correctional penalty.
Nor could this crime be considered infamous under the provisions of the new Penal Code, if such were applicable to it, because the distinction between felonies and misdemeanors is clearly drawn in section 14 of that act, which reads thus:
“A felony is a crime punishable with death or by imprisonment in the penitentiary. Every other crime is a misdemeanor.”.
Tried by this law, the crime of which the applicant was convicted is clearly a misdemeanor, since the only punishment which could be inflicted is not more than six months in the public jail. Nothing less than a felony can be considered an infamous crime under the provisions of the fifth amendment to the Constitution of the United States.
There is no difficulty at the present day in deciding what crimes are declared infamous under the fifth amendment to the Constitution of the United States. That question, which had been mooted for a long time, was forever set at rest by [521] Mr. Justice Gray in the case of Wilson, Ex parte, reported in 114 U. S., pp. 425, 426. In this lucid opinion the Supreme Court says:
“But, for the reasons aboye stated, haying regard to the object and the terms of .the first provision of the fifth amendment, as well as to the history of its proposal and adoption, and to the early understanding and practice under it, this court is of opinion that the competency of the defendant, if convicted, to be a witness in another case is not the true test; and that no person can be held to answer, without presentment or indictment by a grand jury, for any crime for which an infamous punishment may be imposed by the court.
“The question is whether the crime is one for which the statutes authorize the court to award an infamous punishment, not whether the punishment ultimately awarded is an infamous one. When the accused is in danger of being subjected to an infamous punishment if convicted, he has the right to insist that he shall not be put upon his trial, except on the accusation of a grand jury.
“Nor can we accede to the proposition, which has been sometimes maintained, that no crime is infamous within the meaning of the fifth amendment that has not been so declared by Congress. See United States v. Wynn, 3 McCrary, 266, and 11 Fed. Rep. 57; United States v. Petit, 11 Fed. Rep. 58; United States v. Cross, 1 Mc-Arthur, 149. The purpose of the amendment was to limit the powers of the legislature, as well as of the prosecuting officers of the United States.”
This case has been uniformly followed since 1884, and among others in the cases of United States v. Petit, 114 U. S. 429, and Mackin v. United States, 117 U. S. 348. (See also Miller on Constitution, p. 504; and 1 Rawle’s Bouvier’s Dictionary, p. 1026.)
The crime of which the applicant was convicted under article 265 of the Spanish Penal Code was punishable by the penalty of arresto mayor. This was classified as a “correctional penalty” under article 24 of the Spanish Penal Code. Only corporal penalties under said Code correspond to the [523] punishment of felonies in the American penal law. This will readily appear by a reading of the article, which is as follows:
“Article 24. — The penalties which may he imposed according to this code, and their different classes, are those included in the following general scale:
“Corporal Penalties. — Death; cadena perpetua, reclusión perpé-tua, relegación perpetua, perpetual expulsion, cadena temporal, re-clusión temporal, relegación temporal, temporary expulsion; presi-dio mayor, prisión mayor, confinamiento, perpetual absolute disqualification; temporary absolute disqualification; perpetual special disqualification from public office, the right of suffrage, active, passive, and from the exercise of a profession or trade; temporary special disqualification from a public office, the right of suffrage, both active and passive, and from the exercise of a profession or trade.
“Correctional Penalties. — Presidio correctional, prisión correc-cional; banishment, public censure, suspension from public office, active and passive right of suffrage and from the exercise of a profession or trade, arresto mayor.
“Light penalties. — Arresto mayor, private censure.
“Penalties Common to the Three Preceding Classes.- — Pine and caution.
“Accessory Penalties.- — Degradation, civil interdiction, subjection to the surveillance of the authorities, forfeiture or confiscation of the instruments and proceeds of the crime, payment of costs.”
Corporal penalties as above designated correspond to the capital and infamous punishments referred to in the fifth amendment to the Constitution; and correctional, light and accessory penalties are of lesser grade. The punishment of which the applicant complains is correctional only, and the offense is not punished by confinement in the presidio or penitentiary but only in the cárcel or county jail. Hence it could be prosecuted by information and would not require an indictment of a grand jury, even in the federal courts.
But aside from this view of the case, article 5 of the amendments to the Constitution of the United States has no application to the insular courts, and indictments by grand [525] juries are not, necessary to the conviction of a defendant in these courts any more than it would he in the state courts, or in the territorial courts in the United States. This is> well-settled in numerous cases, as is shown in the lectures of *Mr. Justice Miller on the Constitution of the United States, lecture 10, page 493, where that distinguished jurist, speaking of the seventh amendment, says:
“This article of the amendments to the Constitution, as well as all of the others from one to eight inclusive, applies to the powers exercised by the Government of the United States and not to those of the States. This has been repeatedly decided.” Citing Livingston v. Moore, 7 Pet. 469; The Justices v. Murray, 9 Wall. 274; Edwards v. Elliott, 21 Wall. 532.
Nor can this provision have any application to the insular courts in the Island of Porto Bico until they are made federal courts by an act of Congress. (Reynolds v. United States, 98 U. S. 145; Eilenbecker v. District Court, 134 U. S. 31; United States v. Cruikshank, 92 U. S. 542; Walker v. Sanvient, 92 U. S. 90; Fox v. Ohio, 46 U. S. 510; Holmes v. Jennings, 39 U. S. 549; Presser v. Illinois, 116 U. S. 252; Ross v. McIntyre, 140 U. S. 453; Cook v. United States, 138 U. S. 157; Hurtado v. California, 110 U. S. 516; MacAllister v. United States, 141 U. S. 174; Permoli v. N. O., 44 U. S. 589.)
We have been unable to find any decision of the Supreme Court which directly prescribes the status of territorial courts under the seventh amendment to the Constitution of the United States; hut in the case of Walker v. S. P. R. R. Co., decided in 1896, the question was presented by counsel and Mr. Justice Brewer, delivering the opinion of the court, said:
“We deem it unnecessary to consider the contention of defendant in error that the territorial courts are not courts of the United States and that the seventh amendment is not operative in the territories for by the act of April 7, 1874, c. 80, 18 Stat. 27, Congress, legislating [527] for all the territories, declared that no party ‘shall be deprived of the right of trial by jury in eases cognizable at common law’; and while this may not in terms extend all the provisions of the seventh amendment to the territories, it does secure all the rights of trial by jury as they existed at common law. Walker v. S P. R. R. Co., 165 U. S., pp. 595 and 596. This case was referred to with approval in the later ease of American Publishing Company v. Fisher, 166 U. S. 467.”
If the seventh amendment had applied to such courts it is quite probable that the decisions would have been based on the Constitution rather than on the statute; and we may reasonably infer that the Supreme Court does not consider territorial courts to be federal courts within the purview of the seventh amendment.
But the insular courts of Porto Bico of original jurisdiction are more nearly analogous to the trial courts of the states than to territorial courts. They were not created by an act of Congress, but were in existence before the passage of the Foraker Law, which recognized them and continued them in force. (See section 33 of the Organic Act.) Porto Bico is not a territory, nor is it a state of the American Union, but its trial courts have many, if not all the attributes of said courts; and at the signing of the Treaty of Paris, and all during the military government, there was a complete judicial system in the Island, which has only been modified, and not entirely changed during civil government, up to the present time.
For these reasons, even if the Constitution of the United States were in force in Porto Bico, the seventh amendment could not be considered as applying to its courts, but they would fall under the decisions quoted, holding that this amendment has no application to state courts.
Such a body as a grand jury has never been.known in the [529] insular courts of Porto Rico. There are now nearly a thous- and prisoners in the penitentiary of Porto Rico, who would have to be turned out' if this construction were put upon the penal laws; but if it were necessary to do justice in this case,, this court would not hesitate to open the doors of every prison in the Island. However, such a construction is not warranted by any authority which has been presented to the' court, or which can be found on diligent search.
3. It is claimed that defendant was denied the right of a trial by petit jury, as guaranteed to him by the United States Constitution. The same remarks in regard to this constitutional guarantee as those made in the foregoing paragraph in regard to indictment by grand juries are applicable to this claim for a trial by a petit jury. It is the sixth amendment, instead of the fifth, which is involved’ in this claim, and that is the only difference. But the defendant, as the record shows, waived all claim to a petit jury, under the laws of Porto Rico, and under the Constitution of the United States, if the same were applicable, by failing to make his application therefor in due time. It is provided by the jury law of Porto Rico that a defendant is entitled to a jury in all cases of felony, provided he demands the same at the first general call of the calendar and his case is put upon the jury docket. (See Code of Criminal Procedure, sec. 178.) No demand was ever made on behalf of the defendant for a jury prior to or at the time of his arraignment, or for more than a week thereafter, when his counsel came into court, attempting to excuse his neglect, and demanded a jury, which was refused, because the offense of which he was accused was only a misdemeanor, and not a felony, and moreover, because he had not demanded the jury within the time prescribed by law, and therefore waived the right, if any he had. The record of the case amply bears out this proposition, and a mere reference to the same is sufficient [531] to show that such a claim, has no foundation whereon to rest.
4. The fourth ground alleged by the applicant, that the proceedings of the district court were not due process of law, as provided for under the Constitution of the United States, seems to be merely a restatement of the second and third, with a probable allusion to the fifth and sixth grounds of this application. At least no other constitutional or statutory provision is invoked in the application, nor cited in the argument made by counsel in presenting the case to this court. However, by the use of the term ‘ ‘ due process of law, it is possible that reference may be made to the fourteenth amendment to the Constitution of the United States, which says:
“Nor shall any state deprive any person of life, liberty or property, without due process of law, nor deny to any person within its jurisdiction the equal protection of th'e laws.”
This is clearly a limitation upon the powers of the state legislatures, and can have no reference to Porto Eico. In lecture the XIII of Miller on the Constitution this amendment is discussed and the distinguished author uses the following language:
“That amendment was ordained to secure equal rights to all persons. To render its purpose effective Congress is vested with power •to enforce its provisions by appropriate legislation. On the other hand, it was not designed to interfere with the power of the state to protect the lives, liberty and property of its citizens, nor with the exercise of that power in the adjudications of the courts of the state [533] in administering the process provided by its laws. Therefore when a person accused of crime within a state is subjected, like all other persons in the state, to the law in its regular course of administration in the courts of justice, the judgment so arrived at cannot be held to be unrestrained and an arbitrary exercise of power and therefore void. Virginia, Ex parte, 100 U. S. 339; In re Converse, 137 U. S. 624.” (Miller on the Constitution, 658 and 659.)
The eminent authority continues:
“Law in its regular course of administration through the courts of law, is due process of law, and when it is secured by the law of the state, the requirements of the fourteenth amendment are satisfied. Due process of law, within the meaning of that amendment, is secured if the laws operate on all alike, and do not subject the individual to an arbitrary exercise of the powers of the government. Leeper v. Texas, 139 U. S. 462.” (Miller on the Constitution, p. 664.) (See, also, Miller on the Constitution, p. 675, for a case in point.)
According to the authorities cited, and after summarizing the point intended to he made by counsel in his application, we feel constrained to hold that the applicant in this case cannot complain that the proceedings of the district court were not conducted in accordance with due process of law, and that every right which he had, or any person could possibly claim under the fourteenth amendment to the Constitution, or any other section of that instrument, has been carefully safeguarded and extended to him in the trial of his case.
5. The fifth ground presented by the applicant for his discharge under the writ of habeas corpus has regard to the competency of the special district judge who was appointed to take the place of the regular district judge, who was disqualified because he was one of the judges .whom the defendant had attacked in the article for the publication of which he was [535] being prosecuted. It is alleged that the special district judge, though appointed by the Governor, was never confirmed by the Executive Council, as it is claimed should have been done under the Organic Law. If the Eoraker Law requires a special district judge not only to be appointed by the Governor, but to be confirmed by the Executive Council, there is nothing in the record to show that this judge was not so confirmed by the Executive Council. He was regularly appointed by the Governor, and whether or not he was confirmed by the Council does not affirmatively appear, the records showing nothing to the contrary; it will therefore be conclusively presumed that he was so confirmed, if the law required it. In other words, the fact that a judge was regularly acting on the district bench, with two others whose appointments are not questioned, and who took part in the trial under the direction of the Attorney General, as provided for by law, at least warrants the presumption that he was regularly and legally appointed and confirmed. At any rate, this judgment was that of a de facto court, and there is no law which would justify this court, in a habeas corpus proceeding, to inquire into the legality of his appointment.
The Supreme Court of the United States settles this question in the following language:
“A person is not denied the equal protection of the laws, nor deprived of liberty without due process of law in violation of the fourteenth amendment to the Constitution, by being tried and sentenced to imprisonment by a judge who, although appointed by the Governor without authority, is a judge de facto of a court de jure, by the law of the state as declared by its highest court. ’ ’ (In re Manning, 139 U. S. 504; Miller’s Lectures, p. 673.)
[537] As late as the year 1898 this doctrine was reaffirmed by the Supreme Court of the United States, in the case of Henry Ward, Ex parte, in which Mr. Chief Justice Fuller, in delivering the opinion of the court, says:
“We need not, however, consider the elaborate argument of counsel in this behalf, since we regard the well settled rule applicable here that where a court has jurisdiction of an offence, and of the accused and the proceedings are otherwise regular, a conviction is lawful although the judge holding the court may be only an officer de facto; and that the validity of the title of such judge to the office, or his right to exercise the judicial functions, cannot be determined on a writ of habeas corpus.” (Henry Ward, Ex parte, 173 U. S. 454.)
It is true that under the old Spanish law, on an appeal taken from the judgment rendered, such as the former appeal taken from the first conviction in this case, the qualifications of a special district judge were inquired into; hut that was not a case of habeas corptbs, and such inquiry was only made on the express provisions of the Spanish Code, which do not apply to habeas corpus proceedings, hut only to appeals. Then all the presumptions must he in favor of the regularity of the appointment of Special Judge Garcia, and of the validity of the judgment which he participated in making, and such judgment cannot be attacked collaterally, in a proceeding by habeas corpus.
6. The sixth reason assigned by the applicant for his enlargement is that he was not convicted by due process of law, because he alleges that his second trial in which he was convicted for the second time, occurred in October, 1903, and that on July 1, 1902, a new Law of Criminal Procedure took effect, and that he should have been tried under that Law, This court has repeatedly held that the new Law of Criminal [539] Procedure, which was passed on the 1st of March, 1902, and took effect on the 1st of July of the same year, had no application to acts or offenses done and committed prior to the first day of July, 1902. The offense of which the applicant was convicted was committed on the 13th of February, 1902, before1 the act to which he refers was passed and long before it took effect, and according to numerous decisions of this court, and especially that in Mauleón, Ex parte, 4 Porto Eico Eeports, 227, which is now pending in the Supreme Court of the United States, the new Code of Criminal Procedure could have no application to offenses committed prior to the date on which it took effect.
It has been repeatedly decided by this court that the Code of Criminal Procedure and the Penal Code which were passed on the first day of March, 1902, to take effect at noon on the first day of July thereafter, did not govern the prosecution and punishment of offenses committed prior to the latter date. The reasons for this decision are given in the elaborate concurring opinion delivered by Mr. Justice MacLeary in the case of Mauleón, Ex parte, supra, decided by this court on the 29th of October, 1903, and appealed by the petitioner to the Supreme Court of the United States. It may be well, however, to summarize them here. The construction given to these codes is in accordance with the manifest intention of the legislature as derived from the codes themselves, the contemporaneous history and surrounding circumstances (Church of H. T. v. United States, 143 U. S. 457; Siemans v. Sellers, 123 U. S. 276; United States v. U. P. R. R. Co., 91 U. S. 72; Aldrige v. Williams, 3 How. 8), the previous condition of the statutory laws existing in the island (Ross, Ex Parte, 140 U. S. 453; Platt v. U. P. R. R. Co., 99 U. S. 48), the contemporaneous construction by executive officers charged with their exe[541] cution (United States v. Healy, 160 U. S. 136; People v. Dayton, 55 N. Y. 377; Wetmore v. State, 55 Ala. 198; United States v. A. G. S. R. R. Co., 142 U. S. 615; United States v. Johnston, 124 U. S. 236), and a reluctance to change a long current of decisions involving serious consequences to the administration of justice. (Sutherland on Statutory Construction, sec. 314, 323; In re Warfield, 22 Cal. 51; Broker v. Lorrilard, 4 N. Y. 261; Rogers v. Goodwin, 2 Mass. 477). Reference is made in the opinion cited to Soon Hing v. Crowley, 113 U. S. 703; Ming v. Gallun, 109 U. S. 99; Wisconsin Central R. R. Co. v. Forsythe, 159 U. S. 46; United States v. Clarke, 8 Pet. 436; Territory v. Commissioners, 8 Mont. 409, 411; Foster v. Blount, 18 Ala. 687; Phillips v. Detroit, 111 U. S. 604; United States v. Perot, 98 U. S. 428; Conger v. Weaver, 6 Cal. 548; Sparrow v. Strong, 3 Wall. 97; Tavner v. Patton, 49 Ala. 406; Stockton School District v. Wright, 134 Cal. 68; People v. Craycroft, 111 Cal. 544; Carpy v. Dowdell, 129 Cal. 245; Merced Bank v. Casaccia, 103 Cal. 645; People v. Curry, 130 Cal. 94; Black on Interpretation of Laws, 112; Bishop’s Criminal Law, 19; United States v. Webster, Davies, 38; Fosdick v. Perrysburg, 14 Ohio St. 473; and other authorities. The two codes being copied from the Penal Code of California, which is in the original a single act, and having the same object, to-establish a system of American criminal laws in the Island of Porto Rico repealing the former Spanish system, and being thus in pari materia, should be construed together and if possible be made to harmonize, and so construed as not to conflict with the general principle of law, which the legislature could not be presumed to desire to change. The two codes constituting a single system, and it being impossible to separate one from the other, they must be presumed to take effect at the same time in regard to any given case or class of cases, provided for therein; and as the Penal Code especially enacts that it shall not affect offenses committed prior to [543] the 1st of July, 1902, the Code of Procedure must be construed to do the same. (Manuel v. Manuel, 13 Ohio St. 458, 465; Smith v. People, 47 N. Y. 330; Witcomb v. Rood, 20 Vt. 49; McDougal v. Dougherty, 14 Ga. 674; Hays v. Richardson, 1 Grill and J., 366; Noble v. State, 1 Greene, 325; Lane v. Missoula County, 6 Mont. 482; Carruthers v. Madison County, 6 Mont. 483; Thorne v. Schooling, 7 Nev. 17.) In so far as this ground of the application is concerned this case is exactly parallel with that of Mauleón, and the discussions in the opinion delivered in that case apply to the present and need not be repeated here.
7. The seventh reason assigned by the applicant for his discharge is a reiteration of his claim to a trial by petit jury, except that he claims it “under the provisions of chapter 10 of the Penal Code of Porto Rico,’’ which is said to have taken effect on the first day of July, 1902. This act expressly provides that it has no reference whatever to offenses which were committed prior to that date, and for this reason, as well as others hereinbefore stated, and especially under the third ground of the defendant’s application, he was not entitled to a jury trial, and there was no error committed in refusing his request for the same. Nevertheless we will examine the question from the view point of the applicant in order to give him the full benefit of all his claims.
Counsel in argument makes reference to chapter 10 of the .Penal Code of Porto Rico without saying what title they refer to or what section of the Code. There are three chapters [545] numbered ten in said Code, one in title 12, in regard to libel;one in title 13 in regard to pawnbrokers, and one in title 17 in regard to false weights and measures. The first of the three-mentioned is probably the one to which counsel intended to refer, and section 246 is presumed to be the section which they had in mind, and which reads as follows:
“In all criminal prosecutions for libel, the truth may be given in evidence to the court or jury, and if it appears to the court or jury that the matter charged as libelous is true, and was published with good motives and for justifiable ends, the party shall be acquitted. The jury have the right to determine the law and the fact.”
Inasmuch as the jury law which has been incorporated into the Code of Criminal Procedure provides that no man has a right to be tried by a jury when charged with a mere misdemeanor, and libel is only a misdemeanor under the Code, the section above quoted cannot by implication give the right to defendant to demand a jury in a libel case. The mere fact that such a recitation is made does not contradict the jury law, since it must be construed to mean that whenever a jury may hereafter be provided for in a libel case they shall have the right to determine the law and the fact. Should the right of trial by jury be extended to defendants in misdemeanor cases, or should the offense of libel be raised to a felony, then this section could be applied; but until such changes in the laws are made, this recital cannot have the force or effect sought to be given it by the applicant in this case. Certainly, under no view of the case whatever could a jury have been awarded to defendant on the trial at which he was convicted. This, however, is not very material to the discussion, as it must be remembered that defendant was not charged with, or [547] tried for, nor convicted of libel, but of an entirely different offense.
8. Tire eighth ground alleged by the defendant in support of his application has no foundation whatever in fact and is positively untrue. A-reference to the opinion of the court will show, and it is a fact, that in accordance with the act of March 12,1903, this court carefully examined the whole record in order to ascertain if there might be any point of law or of fact beneficial to the accused, on which a reversal of the judgment could be predicated. The record showed no incident in which the rights of the accused had been violated, there being no proceeding whatever of which he could reasonably complain. Notwithstanding the fact that counsel for defendant on the trial of this case on appeal made only two propositions and presented them to the court in his oral argument, the court examined the record minutely from one end to the other, and discussed all the points arising thereon in an ■elaborate opinion, which forms a part of the record in this case, and amply refutes the charge made in this portion of the application. Zeal in the interest of their clients on the part of counsel is always to be commended; but any departure from the facts contained in the record is unpardonable.
9. The ninth ground, that the judgment and sentence of the Supreme Court are irregular and void, for the various reasons previously enumerated, is merely a summing up ■of what has been said before, and needs no further consideration, except to say that it has never been decided by the Supreme Court of the United States that “the Constitution follows the flag. ’ ’ In every tract of territory which has heretofore been acquired by the United States before the Constitution with all its powers and restrictions could be considered [549] as applicable to the government, to the courts and to the people of that territory, it bas been deemed necessary that Congress should act in the matter either by a direct statute extending the benefits of the Constitution to such territory, or tacitly acquiescing in such action by other branches of the Government. No such act of Congress has been passed in regard to Porto Eico, and no such acquiescence has been made. It may'be stated, and it is believed to be the case, that certain personal rights of the individual citizen are, by the mere fact of American possession, extended to every one residing within the jurisdiction of the United States. They are such as the right to worship according to the dictates of his own conscience, the right to be secure in his house, person, papers and effects from unreasonable searches and seizures, and the equal protection of the laws; but other provisions of the Constitution which have reference to their political status, to civil rights, or to citizenship, or to suffrage, and the like, have no reference whatever to a people inhabiting an island or a tract of country which has been acquired by discovery, conquest, treaty or otherwise. And if it were necessary to invoke that document it can easily be seen and understood from the Treaty of Paris itself, that the condition of the people of Porto Eico as to their civil rights and political status depends entirely upon the will of Congress, as expressed in legislative enactment (See Treaty of Paris, Art. IX); and until Congress sees fit to extend the provisions of the Constitution of the United States, and the laws passed in pursuance thereof, to the inhabitants of this Island, they must be limited to the enjoyment of. such liberty as is granted them in the Organic Act, by which they were given the privileges of a limited autonomy and of civil government.
The mere fact that the United States is a republic instead of a monarchy does not deprive its government of the power [551] to levy and carry on war, to expand its boundaries, to make conquests, to make treaties, and to acquire territory, in suck a manner as may seem wisest and best to the executive and to the legislative power. It is of course to be presumed that a free government like that of the United States, when it does acquire territory, will concede to the population inhabiting the same a greater measure of liberty than they previously enjoyed under royal rule; but to contend that the inhabitánts of such territory have, at once immediately on the occupation by the armies of the American Government, all the rights of citizenship which the original citizens of the republic acquired by inheritance from their forefathers, is not warranted by anything in the Constitution or in the laws of the United States, or in the institutions which have grown up, in the progress of thirteen decades, under the protection of that Constitution and those laws.
Until Congress shall enact a law extending the Constitution of the United States to Porto Eico, or until the Supreme Court of the United States shall decide that instrument to be in full force and vigor here, this court must content itself with administering the laws of this Island as they are found upon the statute books and it should never attempt to usurp legislative or executive functions, in grasping after the phantom of imaginary rights.
We deduce from the opinions in the Insular Cases in 182 U. S. Eeports, the following propositions:
(a) Considering the various and numerous treaties by which the American Government has acquired foreign territory in the light of circumstances surrounding them when made, the treaty-making power was always devoid of authority, to incorporate territory into the United States without the assent, express or implied, of the National Congress.
(b) When a treaty contains no conditions for incorpora[553] tion, and, above all, where it not only has no snob conditions but expressly provides to the contrary, incorporation does not arise nntil, in the wisdom of Congress, it is deemed that the acquired territory has reached that state where it is proper that it should enter into and form a part of the American family.
(c) The provisions of the For alter Law, taken as a whole, plainly manifest the intention of Congress that, for the present, at least, Porto Eico is not to be incorporated into the United States.
In the recent case of G-onzález appealed to the Supreme Court of the United States from the Circuit Court of the United States in New York the former court held that the intended immigrant was not an alien within the purview of the immigration laws, but at the same time did not decide that she was a citizen of the United States, thus leaving the status of Porto Eico as to citizenship where it had been placed by the Foraker Act and the decisions of the Insular Cases.. Whatever aspirations our people may have in the direction of citizenship, selfjgovernment, territorial government and statehood, must be directed to the National Congress, or at least to some other authority than the insular courts, which are bound to adjudicate questions submitted to them in accordance with the existing laws.
Although it was contended by counsel in his argument that this application should stand or fall on the provisions of the Constitution of the United States, and on the thirty-fifth section of the Organic Act giving to this court power to issue writs of habeas corpus, and he maintained that the Leg-[555] Mature of Porto Eico could neither enlarge nor restrict the powers therein conferred, yet we do not believe such a position to be well taken. Inasmuch as the Legislature of Porto Eico has power to legislate in regard to the jurisdiction and procedure of courts, and has passed an act concerning habeas corpus, which lays down all the well-known principles of American law applicable to this great writ, and in regard to the application for and the granting of the same, we believe it is the duty of this court to follow that law; and we shall examine it to see if there is anything contained therein under which this applicant can claim his discharge.
The statutes in regard to habeas corpus applicable to this case are particularly sections 482 and 483 of the Code of Criminal Procedure, which read as follows:
‘ ‘ Section 482. — The court or judge, if the time during which such party may be legally detained in custody has not expired, must remand such party, if it appears that he is detained in custody;
“1. By virtue of process issued by the court or judge of the United States District Court, in a ease where such a court or judge has exclusive jurisdiction; or,
“2. By virtue of a warrant or final judgment or decree of any competent court of criminal jurisdiction, or of any process issued upon such warrant, judgment' or decree.
“Section 483.- — If it appears on the return of the writ that the prisoner is in custody by virtue of process from any court of Porto Rico, or judge or officer thereof, such prisoner may be discharged in any of the following eases, subject to the restrictions of the preceding section:
“1. When the jurisdiction of such court or officer has been exceeded.
“2. When the imprisonment was at first lawful yet by some act, [557] omission, or event which has taken place afterwards, the party has become entitled to a discharge.
!i3. "When the process is defective in some matter of .substance required by law rendering such process void.
“4. "When the process, though proper in form, has been issued in a case not allowed by law.
“5. When the person having custody of the prisoner is not the person allowed by law to detain him.
‘ ‘ 6. Where the process is not authorized by any order, judgment, or decree of any court, nor by any provision of law.
“7. Where a party has been committed on a criminal charge without reasonable or probable cause.”
It is plain from an examination of these sections that the only one applicable hereto is'paragraph 1 of section 483 declaring that “when the jurisdiction of such court or officer has been exceeded” the prisoner may be discharged. There can be no doubt, after a careful review of the whole record and the reasons assigned by the applicant for his discharge, that in this case the district court had jurisdiction of the offense charged, and of the person of the defendant, and of the subject-matter of the case, and that the jurisdiction was not in the least exceeded, and that the Supreme Court had appellate jurisdiction to decide the same on appeal.
Nothing has been shown in the application or argument which can successfully attack this jurisdiction or the manner of its exercise, and for this reason, as well as the others herein set forth, the application cannot prevail.
Most of the points made in this application attack the method of procedure rather than the jurisdiction of the courts deciding the case and rendering the judgment under which the defendant was convicted, and thereby seek to pervert the purpose of the writ of habeas corpus from its original design of freeing the applicant from illegal restraint or imprisonment, [559] so as to make it take the place of a writ of error or an appeal. It is an elementary principle that this cannot be done and in support of it no authorities are deemed necessary; but reference may be made to a few. (Storti v. Massachusetts, 183 U. S. 141; Minnesota v. Brundage, 180 U. S. 499; Markuson v. Boucher, 175 U. S. 184; Tinsley v. Anderson, 171 U. S. 101; Baker v. Grice, 169 U. S. 284.)
It was well said by Judge Taft in the case of McKhight, in Federal Eeporter, page 801, that “before a court can interfere with the judgment of another court by habeas corpus, it must be able to say that the judgment is void and null.” Again it is said by the Supreme Court of the United States that, “when the objection to the sentence goes only to the regularity of the proceedings which resulted in the adjudication and not to the jurisdiction of the court to enforce the sentence, such an irregularity does not render the judgment void.” (Harding, Ex parte, 120 U. S. 782.) There is nothing in this record to invalidate the judgment and support the application.
Having carefully examined all the claims made by the applicant for his enlargement, and having gone into the questions presented in his case even more fully and extensively than his counsel has indicated in his argument, and'having searched in vain for some ground on which he could be liberated, none has been found, and for that reason the application for habeas corpus must be denied.
Denied.
Chief Justice Quiñones and Justices Hernández and-Fi-gueras concurred.
Mr. Justice Sulzbacher dissented.