to the arrest and detention of persons charged with crime. The first article of this section, article 1552, as contained in the original Judicial Code of Colombia, was repealed by article 365 of Law 105 of 1890, and was replaced by article 340 of the said law and so far as the Agent for the United States is advised this article was in force in Panama in October 1910. Article 340 of Law 105 of 1890, in translation, reads as follows:

"Where action is taken on a crime or offense for which the penalty of death, 'presidio' or 'reclusión' is assigned, the accused shall be arrested or detained if there should be against him, at least, the declaration of one competent witness, even though such declaration may not as yet have been reduced to writing, or a strong indication (indicio grave) that he is the perpetrator, accomplice, abettor or concealer of the criminal act under investigation or if the official ordering the arrest or detention has seen him commit the act, or if he is discovered in the act (infraganti delito)."

The Agent for Panama has cited this provision in support of his allegation that the arrest of Perry was according to law. Answer, p. 2. It is not denied that the crime of robbery was punishable under the Colombian Penal Code, which was in force until 1917 in the Republic of Panama, with reclusión or presidio, as stated by the Agent for Panama. However, the Agent for Panama has failed to take any notice of articles 1553 and 1557 of the Colombian Judicial Code which had not been repealed. The first of these articles reads, in translation, as follows:

"ARTICLE 1553. No one shall be arrested or imprisoned except upon the order of the examining magistrate.

"Nevertheless, anyone can, and ought to apprehend a criminal in the act (infraganti delito) and thieves and malefactors publicly known as such, without waiting for an order from the competent authority, being obliged to deliver them at once to the said authority if he shall reside in the same place."

The second article just mentioned reads in translation as follows:

"ARTICLE 1557. The arrest or imprisonment of the accused or the presumed criminal having been effected, the examining magistrate, within the twelve hours next following, shall give to the warden or

the chief of the respective establishment the corresponding order, in order that the accused may be received in the place of detention. In said order the reason for the arrest shall be set out and whether the prisoner is to be held 'incomunicado'. The warden or official who shall receive an accused person without an express order shall demand such order within the time indicated.”

Of even more importance than these provisions of law is article 23 of the Constitution of Panama, which in translation reads as follows:

"ARTICLE 23. No one shall be molested in his person or family, nor imprisoned, arrested or detained nor his domicile searched, except by virtue of a written order from the competent authority, with the legal formalities, and for a cause previously defined by the laws.

"In no case shall there be imprisonment, arrest or detention for debts or purely civil obligations, saving judicial attachment of the person (arraigo judicial).

"An offender taken in the act (infraganti) may be apprehended and taken before the judge by any person whomsoever."

In the light of these provisions of law it is clear that the personal liberty of individuals is guaranteed protection by the Constitution and that no one may be legally arrested without a written order from a competent authority, unless he is arrested infraganti delito.

The policeman who took Perry into custody on October 28, 1910, did so at the oral request of Everhart. This clearly was not in compliance with article 23 of the Constitution and article 1553 of the Judicial Code. There is no question of the detention of an offender infraganti delito in this case. Everhart's accusation, expressing his suspicion that Perry had committed the alleged robbery, was given to the authorities on October 29, 1910, and it was not until November 7, 1910, that steps were taken by the authorities with a view to making Perry's subsequent detention legal.

An examination of the record fails to disclose that any such order, as required by article 1557 of the Judicial Code, to be issued within 12 hours, was ever issued prior to November 7, 1910. Under the circumstances, therefore,

Perry's arrest, imprisonment, and detention by the Panamanian authorities from October 28, 1910, to November 7, 1910, was illegal and was a violation of Perry's rights under the Constitution and laws of Panama.

In view of the above considerations it is submitted that the record shows that there is no foundation for the allegation of the Agent for Panama that "his arrest was due to the observance of legal provisions in force " and clearly establishes the fact that the original arrest and detention of James Perry were illegal.

V. DOCUMENTS OF VALUE TO PERRY WERE SEIZED FROM HIM UPON HIS ARREST AND WERE NEVER RETURNED TO HIM.

It is clearly established from the record in this case that shortly after Perry's incarceration he made complaint that documents were taken from him at the time that he was taken to the Guardia, on October 28, 1910.

In view of the irregular and illegal arrest of Perry, of his statements regarding the seizure of his papers, and of the inquiries of the American Legation and the American consul, it is believed that at least an investigation should have been made at the time when the facts were fresh in the minds of all concerned. Had such an investigation been made by the Panamanian authorities and had it been definitely determined thereby that no papers were taken from Perry, a specific and frank statement regarding the investigation doubtless would have been made to the American Legation. In the absence of any such investigation it is believed that the specific evidence filed by the United States in this case must be considered as establishing the fact that the private papers were seized as alleged, since the Panamanian Government has offered no proof of any kind to the contrary. See the Opinion of the General Claims Commission, United States and Mexico, under the

Convention of 1923, in 1931 Opinions, pp. 36-50, at pp. 44

et seq.

It should be borne in mind in this connection that the evidence offered by the United States is all the evidence of this kind which, under the circumstances of the case, it would be reasonable to suppose is in existence.

VI. THE EVIDENCE ADDUCED IN THE PROCEEDINGS WAS INSUFFICIENT UNDER PANAMANIAN LAW TO JUSTIFY THE ORDER FOR THE ARREST OF PERRY OR HIS DETENTION FOR TRIAL.

Under article 340 of Law 105 of 1890, quoted above, the order for the arrest of one charged with robbery was to be issued only if "there should be against him, at least, the declaration of one competent witness, even though such declaration may not as yet have been reduced to writing, or a strong indication (indicio grave) that he is the perpetrator, accomplice, abettor or concealer of the criminal act under investigation or if the official ordering the arrest or detention has seen him commit the act, or if he is discovered in the act (infraganti delito)".

The order for Perry's arrest was eventually issued on November 7, 1910, p. 105. The testimony of a competent witness did not exist. The order, therefore, stated that it was issued because there are on record graves indicios that Perry committed the alleged theft in question. It is believed that there was no just foundation in the record for that conclusion, and that the issuance of the order was consequently illegal and wholly unjustified.

Under Panamanian law, an indicio is defined as "a fact or act which indicates the existence of some other fact or act which some specified person may have executed or helped to execute". Art. 1702, Judicial Code. With respect to the proof necessary to establish an indicio, article 1709 provides:

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"The accessory facts which supply the indicios' or signs of the principal fact should be fully proven (plenamente probados), that is to say that one 'indicio' shall not be held to be proven by another 'indicio "."

It will be seen, therefore, that to establish an indicio, it is necessary to have plena prueba of the fact which is to be taken as an indicio.

The following articles of the Judicial Code show what constitutes plena prueba:

"ARTICLE 1674. One witness only cannot furnish ‘plena prueba"." "ARTICLE 1675. Two witnesses qualified to testify, who agree as to the act and the person, and who do not differ notably as to the manner, time and other circumstances, furnish' plena prueba"."

"ARTICLE 1676. Declarations concerning words only serve to prove words, and only when the witness deposes to have heard them uttered."

"ARTICLE 1677. Those who testify as to words or utterances should not only repeat the words which they heard, but also reproduce the tone and gestures which accompanied them, and the circumstances under which they were uttered. The uniformity of the two witnesses ought to relate both to the words and the circumstances which may tend to alter or modify them."

The following article is also of interest:

"ARTICLE 1678. The declaration of a witness who deposes with regard to another person shall have no more weight than the word of the person referred to."

It must be remembered that an indicio under article 1709, Judicial Code, can be established only by the testimony of at least two witnesses. (This rule is common to civil jurisprudence, as is illustrated by the cases given by Escriche in his discussion of indicios, a translation of which is to be found in annex C, at p. 167—the illustrative cases appearing on pp. 168-169 and 169-170.) The indicios to which Mayers testified were certain alleged words—and there being no other witness to such words, these clearly were not established as an indicio. The indicios to which Loud testified were also certain alleged words-and since there were no other witnesses to such