Remarks to the Grand Jury , 10 P.R. Fed. 342 ( 1918 )

Hamilton, Judge:

Gentlemen of the Grand Jury:

Matters which hare appeared in the public press make it proper that I should call your attention to constitutional rights •of American citizens of this island.

The United States are at war with certain other countries, and the way in which war is waged is by military operations ■conducted by the Army and Eavy. Upon the Army and Eavy we' justly rely for our success in this great war. Until Porto Pico, however, is within the zone of military operations and until a proclamation by the President suspending the operation of the right of habeas corpus, the civil law is supreme in Porto Pico as regards private citizens not in the military forces. The rights and duties of such citizens are not impaired by the fact that there are also military forces in Porto Pico.

America, including Porto Pico, is a country of law, not of ■force; and the laws are carried out by the courts, of which you and I form a part, by means of writs directed to the officer of this court known as the marshal, and his deputies. There is no other executive officer of this court, and no .other person is authorized to make an arrest. The marshal cannot himself usually act in a criminal case and make an arrest without that form of writ known as a warrant, and as to that the Constitution of the United States provides as follows:

Amendment 4. “The right of the people to be secure in their persons, houses, paper, and effects, against unreasonable searches and seizures, shall not he violated, and no warrants shall issue hut upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”

Custom and law have authorized the-arrest of a person in the actual committal of a crime, what is called “in flagrante delicto,” because in such case there is no time and there is no necessity for the action of a court. It is the duty of citizens to make an arrest under such circumstances. Anyone who attempts to arrest a citizen without a warrant, unless it is in flagrante delicto, is guilty of personating an officer, and commits a serious offense. There may be certain exceptions in special cases, but they need not be spoken of here.

Furthermore, important as they are for military operations, no member of the military or naval forces of the United States has the right to make an arrest for a civil offense, except under certain circumstances where the civil arm proves ineffective and the law authorizes the marshal or the court to call upon the military for assistance. If the Army or FTavy, or any member of either, attempt to make an arrest under any other circumstances, they are acting in violation' of both civil and military law, and it would be an illegality which could not be passed over. A civil court has no jurisdiction over the military acting within the scope of their powers, but no civil court would hesitate to go to the length of its jurisdiction, and at the least to make protest to the proper authorities against any abuse of law of this kind. The indiviual soldiers or sailors of course must obey- orders, and it is the officials who would be the ones to be called to account. I have the fullest confidence in the military authorities in this regard. When the war requires it I know that every one of ns will be willing to give np onr homes and all our property for our country. This is patriotic, hut it is only our duty. Until that time comes only the civil law prevails in this country. This is covered by the principle of Amendment 5 to the Constitution, which is as follows: “iSTo person . . . shall be deprived of life, liberty, or property without due process of law.”

I have not been able for several weeks past to meet with you, and, as no bills have been reported on the subject, it has seemed to me, gentlemen, that I should call your attention to these two principles as to warrants and as to the military. It may well be that you have investigated the matters to which I refer, and' nothing will give me greater pleasure than to know that you had found there was no just ground of complaint on the part of anyone. On the other hand I know that, if there has been a wrong committed affecting the life, - liberty, or property of citizens, you will not hesitate to do your-duty. I will be glad to advise you on any question that may arise, if you think it necessary to call upon me.